Terms of service

Mainfactor, Inc. - Platform Services Terms

Last Updated: April 27th, 2023

“Ours” or “We” or “Us” “Company” means Mainfactor Inc.

“Platform” means the digital experience, website, and associated services provided at the web address for the website you are currently on, including but not limited to ecommerce.raptive.com and all Raptive e-commerce services sites.

“You” or “Client” or “User” means Platform user/Shop Owner

Definitions

 All terms that are defined in any applicable Scope of Work shall have the same meaning in these STCs, unless they may be defined otherwise herein. ‍ 

  Company’s Standard Terms and Conditions  

These Standard Terms and Conditions (sometimes herein called the “STCs”) shall apply to any exchange of Services through the Platform, and if applicable, to the Scope of Services Outline & Mainfactor, Inc. E-Commerce, Merchandise, Marketing, and Creative Services Agreement (sometimes herein or otherwise referred to as the “Scope of Work”; "Scope"; "Agreement" or "Scope of Services") entered into by Client and Mainfactor Inc., or any of its affiliates or subsidiaries, including but not limited to Mainfactor Holdings Inc., Mainfactor Inc., Mainfactor Brands LLC, or Spellbound LLC ("Company"). These STCs shall additionally govern any invoice or exchange of services for payment between you (“Client”) and the Company, whether such services were implemented on the Platform or otherwise. These STCs together with any Scope of Work constitute the full Agreement between Company and Client (the “Agreement”). Client’s execution of a Scope of Work, or payment of any applicable invoice confirms that Client accepts and agrees with these STCs as follows: 

Account – Terms and Activation

To use the Platform services, a shop owner must register for an Account. To successfully register an Account, a user must provide Platform with information including but not limited to Name, Address/Business Address, Phone Number, Valid Email address, and specific information and assets for the User’s e-commerce shop, site, and product, as well as other information and assets. The User must also be 18 years of age or over to use Platform and its services. Platform may reject requests for an Account at our sole discretion.

Platform will use all contact information You provide when registering for an Account as the primary method of communication between Platform and You .

You are responsible for keeping your password secure. Platform will not be liable for any loss or damage from failure to maintain the security of your Account.

You must confirm that You are receiving Services provided by Platform for the purposes of carrying out a business activity and not for any personal use or purpose. You agree not to reproduce, duplicate, copy, resell or exploit any portion of the Service provide by Platform unless express written permission is given to You by Platform

Services, Expenses, and Fees

 Company offers various Services, some of which may be offered on the Patform, outlined in the Scope of Services, on an invoice, or in email communications between the Parties (Company and Client). Any and all duties performed by Company for You (“Client”) shall be considered Services.   Client may receive requests for approval for certain Services, which may also include projections and actual amounts for expenses associated with such Services. Upon Client’s approval of any such requests, any additional Services will be governed by these STC's, and considered as added to any applicable Scope of Work., Client will be billed for such approved Services and expenses accordingly, and they will be reflected on Client’s quarterly sales statement as applicable. Certain expenses, including but not limited to production of merchandise, packaging materials, freight shipping, and warehousing costs may include a built-in mark-up above Company’s actual cost. Any such mark-up is in consideration of Company’s additional efforts and internal costs that will be required to perform the Services related to the marked-up expenses.  The Client shall pay for Services through the Platform. For any additional services not paid through the Platform, the Client shallreceive invoices for costs and expenses associated with any applicable Services, and shall pay such invoices in full within 30 days of receipt. Client must dispute invoices or charges within sixty (60) days of the invoice or charge date, otherwise the applicable invoices, charges, and fees shall be deemed fully accepted and approved by the Client. Unpaid invoices will accrue interest at the rate of 1% per month after being unpaid for sixty (60) days.   All amounts payable from the Client to the Company hereunder shall be paid in US Dollars (USD), regardless of the currency basis of the Client's bank account. Company is not liable for any currency fluctuations.  The Client understands that most shipping, packaging, and handling costs and fees for online orders are billed directly to the consumer, unless in some instances the fees to the consumer do not fully cover the costs, or if the Client decides to subsidize some or all of such costs, and in such cases the applicable direct to consumer shipping, packaging, and handling costs and fees will be billed to the Client. Further, the Client understands that shipping and handling costs and fees are subject to change incrementally on an ongoing basis. All merchandise and products must be bagged and size-tagged for formal ingestion into the Company's warehouse systems. Merchandise and products received by the Company that are not bagged and tagged will be bagged and tagged by the Company and the applicable costs will be billed back to the Client accordingly.   Certain packaging materials and costs and shipping overages may be billed back to the Client, or reduced from the amounts payable to the Client, if such Expenses are not covered by the price paid for by the consumer for shipping.   Inactive Products or "inactive products" shall mean any product that does not sell for a period of ninety (90) days.

  If Client has events that are canceled or postponed for more than a month, and the Company has produced goods for such events, Client agrees to pay Company in full for the costs and fees for such goods within 15 days of the canceled or postponed event, including but not limited to Cost of Goods, shipping Expenses, and related handling and logistics Expenses. In no event does the Company have any liability whatsoever for canceled or postponed tours, shows, and events, and the Client agrees to pay all such costs related to fees and services incurred by the Company in full following the cancelation of such an event.   All quotes for the production of merchandise or products are subject to a 5% overage or underage of the initial quantity and cost quoted, due to unforeseen circumstances related to the manufacturing of the goods.  Quotes or estimates provided by the Company to the Client for merchandise, shipping, services, or other fees are subject to change at any time prior to a final invoice, statement, or e-commerce implementation. ‍

Domain Name of Shops

The Domain Name for Your Shop on the Platform will be provided by the Your to Platform unless otherwise agreed upon by Company and user. Company may be able to provide assistance in acquiring a Domain Name upon request from Shop owner. However, for avoidance of doubt and notwithstanding anything to the contrary, thw Company shall have no liability over Your domain name, and shall not own, control, or manage Your domain name, In the event of a hacked domain name, or breached domain name, the company shall have no liability whatsoever to You.

Mainfactor/Platform Rights

We may terminate an account at any time and at our sole discretion. Platform has sole discretion to remove any materials from Shops located on Platform. The goods, products, or merchandise uploaded on Platform by or for a Shop owner does not represent the views of Mainfactor Inc or its Platform. We reserve the right to provide our service to users and competitors in the same field or business as You. Mainfactor Inc. shall not be responsible for any losses or liabilities arising from access, use, or reliance on Platform or any information Platform provides including third-party links.

Online Payment

To use Platform’s services, users must provide a valid form of payment when directed to pay any applicable fees on Platform.

The user may have to pay fees including but not limited to,

A one-off launch fee along with a monthly subscription fees to the Company, as applicable
Fees associated with the design and production of merchandise and products
Fees for other Services provided on the platform
The amount charged to You for such fees is subject to change at Company’s discretion with notice to You.

If a valid form of payment is not received, we reserve the right to pause or “freeze” the users’ shop.

Third Party Vendors & Liabilities

 Either Party may use technologies or services provided by entities or individuals that are not the Client or Company (“Third Party Vendors”) in connection with the fulfillment of its obligations under this Agreement. All applicable Third Party Vendors shall retain full ownership of their own respective intellectual property. Company and Client shall each respectively remain responsible for managing their relationships with Third Party Vendors, and shall each respectively assume all liabilities that may arise or accrue in connection with any such relationships. However, for the avoidance of doubt and notwithstanding anything to the contrary, the Company and the Client shall not be liable in any manner for website or web service downtime from a Third Party Vendor that provides software-as-a-service. Further, Client represents and warrants that their business and business practices do not breach the terms of any Key Third Party (defined as a Third Party Vendor required for the Company to deliver the Services, including but not limited to Shopify, Facebook, Instagram, TikTok, Google, and Twitter). The Company shall have no liability whatsoever related to a Key Third Party's claim that the Client breaches a Key Third Party's terms.   Notwithstanding the foregoing, the Company shall not be liable for damages to goods delivered, following the receipt of such goods by a person or company, as evidenced by a tracking number, signed receipt, or signed bill of lading. Further, the Company is not liable under any circumstance for a delay by a shipping carrier or freight provider. In an instance where a shipment is delayed by a carrier or freight provider and a Client or other party does not receive merchandise on the initially projected timeline due to such a carrier delay, the carrier shall be the responsible party, and the Company shall have no liability. The Client must request insurance coverage for carrier-related insurance where applicable.   Further, and notwithstanding the foregoing, with respect to Large Freight Shipments (shipments of a full pallet or skid of goods or more), the Company is not responsible or liable for freight shipments once they leave from, or are en route to the Company's facilities. The moment a Large Freight Shipment has left the Company facilities or is en route to the Company facilities, it is the carrier's responsibility and liability is covered under the carrier's insurance. The Client must request additional insurance where applicable. When a freight shipment is signed for by a receiver, it is the recipient's responsibility. Notwithstanding the foregoing or anything to the contrary, the Company is not liable or responsible for the condition of goods shipped to the Company by the Client, or by a Third Party on behalf of the Client, and there is no duty for the Company to inspect every item shipped to the Company by the Client, except in the instance where the Company has been specifically contracted to do so.  Certain Third Party Vendors may pay referral fees to the Company, and such fees are solely revenue attributed to the Company, and the Client shall have no claim over such revenue.   For the avoidance of any doubt, the Company is not liable for any media or music rights royalties or payments due to any collection societies or rights organizations, or any other applicable Third Party, unless otherwise specifically agreed upon between the Parties. All such media or music royalty payments, rights payments, publishing, and other media or music-based money due to Third Parties shall be the Client's liability. ‍

Privacy

While using Platform] the site will automatically collect information about users such as but not limited to users’ IP address, web browser, time zone, and cookies installed on the user’s device.

We collect Device Information using the following technologies:

- “Cookies” are data files that are placed on your device or computer and often include an anonymous unique identifier. For more information about cookies, and how to disable cookies, visit http://www.allaboutcookies.org.

- “Log files” track actions occurring on the Site, and collect data including your IP address, browser type, Internet service provider, referring/exit pages, and date/time stamps.

- “Web beacons”, “tags”, and “pixels” are electronic files used to record information about how you browse the Site. -Information contained within and relating to communications between you and the Site, including but not limited to emails, texts, and phone calls.

-Other web and/or mobile technology tracking that may become available to us for the purposes of marketing the Site, the products on the Site, or for marketing research and development.

How do we use your Personal Information?

We use the Order Information that we collect generally to help you transact on the site, and to fulfill any orders placed through the Site (including processing your payment information, arranging for shipping, and providing you with invoices and/or order confirmations).

Additionally, we use this Order Information to:

- Communicate with you;

- Screen our orders for potential risk or fraud; and

- When in line with the preferences you have shared with us, provide you with information or advertising relating to our products or services.

- Analyze audience and demographics

- Marketing research

- Customer analysis

You agree that when you provide Your email address and/or mobile phone number in the Site’s checkout process, that we may contact you at such email address or phone number to remind you to finish your order if it is not yet complete, or for us to send you any other information related to your order.

We use the Device Information that we collect to help us screen for potential risk and fraud (in particular, your IP address), and more generally to improve and optimize our Site (for example, by generating analytics about how our customers browse and interact with the Site, and to assess the success of our marketing and advertising campaigns).

We may also use the Device information for various marketing and advertising purposes, including but not limited to targeted social media marketing, lookalike audiences on social media sites, re-targeting, re-marketing, mobile marketing, display advertising, and other forms of advertising and digital marketing.

We use Marketing Information to send you promotional emails, text messages, social media messages, phone calls, targeted social media marketing, lookalike audiences on social media sites, re-targeting, re-marketing, mobile marketing, display advertising, and other forms of advertising and digital marketing.

When we collect any Personal Information including Order Information, your email address or mobile phone number for any marketing purposes whatsoever, we may contact you for purposes of marketing promotions, order updates, and other offers. We may also use your email or phone number for advertising purposes including but not limited to lookalike audience targeting on social media sites, re-targeting, re-marketing, and other forms of advertising.

We may also collect marketing information from user shops specifically for the purpose of market research, promotion, marketing, and customer analysis.

Customers of your shop will be protected under data privacy protections including EU or UK General Data Protection Regulation and the California Consumer Privacy Act

Sharing Personal Information

We share your Personal Information with third parties to help us use your Personal Information to provide our services to you, as described above. For example, we use Shopify to power our online store – you can read more about how Shopify uses your Personal Information here: https://www.shopify.com/legal/privacy. We also use Google Analytics to help us understand how our customers use the Site - you can read more about how Google uses your Personal Information here: https://www.google.com/intl/en/policies/privacy/. You can also opt-out of Google Analytics here: https://tools.google.com/dlpage/gaoptout. We use other applications and programs to deliver our services to you, many of which will have access to your personal information.

Finally, we may also share your Personal Information to comply with applicable laws and regulations, to respond to a subpoena, search warrant or other lawful request for information we receive, or to otherwise protect our rights.

Some content or applications on the Site, including advertisements and social media content integrations, if applicable, are served by third-parties, including advertisers, social media sites, ad networks and servers, content providers and application providers. These third parties may use cookies alone or in conjunction with web beacons or other tracking technologies to collect information about you when you use the Site. The information they collect may be associated with your personal information or they may collect information, including personal information, about your online activities over time and across different websites and other online services. They may use this information to provide you with interest-based (behavioral) advertising or other targeted content. We do not control these Third Parties’ tracking technologies or how they may be used. If you have any questions about an advertisement or other targeted content, you should contact the responsible provider directly.

The Site may distribute products to third parties, including but not limited to social media sites, blogs, and third party retailers. When such third parties are selling products that are delivered directly from the Site to You (regardless of such third party interaction), this Privacy Policy shall govern the orders and information relating to such transactions.

Legal Review

 Each party is responsible for the accuracy and completeness of its proprietary and other information as may be provided to the other and also for the maintenance of any property that may be provided from one Party to another. Each Party is responsible for its own independent legal review of this Agreement and any advertising campaign contracts or other supplemental contracts that may be associated with the performance of this Agreement. Each Party is responsible for its own protection of its intellectual property, including without limitation, for the registration of any and all of its copyrights, trademarks, patents, etc. that may be applicable to its names, designs, ideas, products, and other elements that enable the fulfillment of the services from each respective Party. ‍

Warranties and Representation

 Each Party warrants and represents as follows:  - It has all rights and authority necessary to carry out the purposes of and to fulfill its obligations under this Agreement.  

- It owns, controls and will protect all rights associated with any of its intellectual property that will be used in connection with this Agreement.  

- It will fully comply with all federal, international and local laws and regulations that may be related to the fulfillment of its obligations under this Agreement (“Law(s)”), including, without limitation, those pertaining to business licensing, taxation, the protection of privacy rights, the protection of data, and false or deceptive advertising. Examples of some of these Laws and regulations include, without limitation, The Children’s Online Privacy Protection Act (COPPA), The Federal Trade Commission (FTC) Act, the European Union General Data Protection Regulations (GDPR), and the California Consumer Privacy Act (CCPA).  

Client warrants and represents that all products and merchandise it may provide to Company for fulfillment will be authentic and properly licensed as applicable. For autographed or signed products and merchandise ”authentic” means hand-signed by the individual who is advertised as the signatory.  

Neither Party makes any warranties or representations with respect to the accuracy of any data or information reporting provided from or through Third Party Vendors. ‍

Mutual indemnification

 Each Party hereto agrees to indemnify, defend and hold the other Party, its affiliates, licensees, licensors, officers, directors, employees, consultants, contractors, sublicensees and agents (collectively, “Representatives”) harmless from and against any and all damages or other amounts payable to a claimant, as well as any reasonable attorneys’ fees and costs of litigation (collectively, “Damages”) arising out of or resulting from any claim, suit, proceeding or cause of action (each, a “Claim”) brought against a Party or its representatives based on: (a) breach of any representation or warranty by the respective indemnifying Party contained in this Agreement; (b) breach of any applicable Law by such indemnifying Party; or (c) gross negligence or willful misconduct by such indemnifying Party or its Representatives. ‍

Limits on Liability

 The maximum liability of Company for any Claims associated with the Services shall be the fees otherwise payable to the Company for such applicable Service(s) plus any interest associated with the collection of those fees. In no event shall either Party be responsible for liquidated damages, punitive damages, or consequential or indirect damages. ‍

Product Liability and Disclaimer for Goods Provided by Client

 For the avoidance of all doubt, Company shall not have any liability whatsoever with respect to Claims arising out of any injuries or Damages sustained by any person or entity in connection with Company possessing, distributing, selling, advertising, or otherwise using any product or merchandise delivered from Client to Company. There is no basis for any present or future action, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand against the Company giving rise to any such product-related liability. If product delivered to the Company by the client is damaged or defective prior to the Company's receipt of the goods, the Client shall be Iiable for any losses related to such damages or defects. The Client understands that Company may not be able to fully inspect all items shipped by Client to Company upon receipt, and that defects or damages to product pre-existing to the Company's receipt of the goods may become known or discovered at a later date, following the Company's receipt. ‍

Ownership & Inventory

 Client shall retain full ownership of all of their intellectual property. Company shall retain full ownership of all of its intellectual property. All merchandise designs created by Company for Client shall, following the full payment to Company of all approved costs and expenses associated with such designs, be fully owned by Client and considered to be “works made for hire” for Client, as that term is understood under United States copyright laws.   The product of all work performed by Company, except for the above mentioned designs made for Client, including but not limited to work on technology platforms and business processes, ideas and concepts generated, creative and business know-how and trade secrets, development of source code, apps, websites, web stores and other technology, and Company’s trademarks, patents, designs, copyrights and its other forms of intellectual property shall at all times remain the sole property of Company.  

Subject to the rights granted in the Scope of Work, all licenses held or owned by each Party respectively shall remain its licenses solely.   Except as may be otherwise stated in the Scope of Work or these STCs, nothing contained herein shall be construed to assign or convey any license or ownership rights from one Party to the other.   All physical merchandise and product inventory shall be owned outright by the Client, and shall be held with the Company on consignment, unless otherwise agreed upon in writing by the Client and the Company. When the Company produces goods for the Client, the Company is doing so on behalf of the Client with the Client as the outright owner of such goods, and the Cost of Goods are deducted from the amounts payable from the Company to the Client. Unless otherwise agreed upon between the Parties, the Company shall have no monetary inventory risk for the ownership of the Client's merchandise.

Confidentiality

 The Parties acknowledge that the terms of this Agreement, and any oral or written information exchanged between the Parties in connection with the preparation and performance of this Agreement that may be notated as “confidential”, shall be regarded as confidential information. Each Party shall maintain confidentiality of all such confidential information, and without obtaining the prior written consent of the other Party, it shall not disclose any such confidential information to any third parties, except for any information that: (a) is in the public domain (other than through the receiving Party’s unauthorized disclosure); (b) is required to be disclosed pursuant to any applicable laws, legal proceedings, or regulations, or orders of government authorities; or (c) is required to be disclosed by any Party to its shareholders, investors, legal counsels, potential acquirers, or financial advisors, provided that all of them shall be bound by confidentiality obligations similar to those set forth in this section. These confidentiality provisions and this section of the Agreement shall survive the termination of this Agreement. ‍

Force Majeure

 For the purpose of this Agreement, an “Event of Force Majeure” means any circumstance not within the reasonable control of the Party affected, but only if and to the extent that (i) such circumstance, despite the exercise of reasonable diligence, cannot be, or be caused to be, prevented, avoided or removed by such Party, and (ii) such circumstance materially and adversely affects the ability of the Party to perform its obligations under this Agreement, and such Party has taken all reasonable precautions, due care and reasonable alternative measures in order to avoid the effect of such event on the Party’s ability to perform its obligations under this Agreement and to mitigate the consequences thereof. The Parties acknowledge that an Event of Force Majeure may cause a delay with the Services and other aspects of Company’s performance under this Agreement. If a delay occurs for more than one hundred and twenty (120) days due to an Event of Force Majeure, either Party may terminate this Agreement. ‍ 

Controlling Law

 This Agreement and all matters relating to its validity, interpretation, performance and enforcement shall be governed by and construed, interpreted and enforced in accordance with the laws of the Commonwealth (state) of Pennsylvania, and Pennsylvania shall be the exclusive forum of jurisdiction for all matters proceedings relating to this Agreement, regardless of the domicile or citizenship of the Parties hereto. ‍

Other Provisions

 During the Term and for one year following the Term, the Client will not solicit employees from the Company to work for them as an employee, contractor or consultant without express prior written consent from the Company; provided, however, the Client shall not be liable to the Company if an employee, contractor or consultant of the Company independently and without solicitation responds to a job advertisement from the Client, and is hired solely as a result of applying from seeing from such advertisement. Further, the Client agrees to not directly solicit any of the Company’s e-commerce or merchandise vendors or service providers without express prior written consent from the Company.  This Agreement does not create, nor shall it be construed to create, a partnership or joint venture. Company is solely acting as an independent contractor for Client, except in the cases where Company and Client have agreed separately in writing that Company will act as an agent for the purposes of purchasing media or purchasing anything else on behalf of Client.  If any provision in this Agreement shall be determined to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, and such provision shall be ineffective only to the extent of such invalidity, illegality or un-enforceability.  No breach or waiver of these terms will be construed as a continuing waiver or consent to any breach.  Neither Party may assign this Agreement without mutual, express prior written consent, except that either Party may assign this Agreement and all obligations hereunder to a subsidiary, affiliate, or a purchaser of such Party, or upon a merger or change of control.  The headings in this Agreement are for reference only and will not affect the interpretations herein.  All provisions herein that are intended to survive this Agreement, shall survive the termination of this Agreement or the end of the Services, to the fullest extent permitted by law.  This Agreement may be modified or amended only upon the mutual agreement of the Parties in writing.  This Agreement represents the complete and entire understanding of the Parties with respect to the subject matter hereof, and it shall replace and supersede all prior written and oral understandings and agreements between the Parties.  

Notices to Company shall be in writing and sent or delivered to:

  Mainfactor Inc. Legal Dept.  100 Lombard St., Philadelphia, PA 19147

or via email to legal@mainfactor.com

  If mailed or delivered, notices must be sent via US Certified Mail, Federal Express or UPS and with delivery confirmation services secured by Client.  Notices to Client shall be provided in the same manner as described above, but to either Client’s mailing or email address that Client has provided to Company.  

The Parties may during and after the Term of this Agreement provide each other in writing by email or other written method, with notices of a change of address, also in the same manner as described above.  Payments between the Parties may be made by checks or mutually agreeable electronic means to the addresses and accounts as instructed.

  Each Party will comply with all Laws and regulations that are relevant to this Agreement.

  These Terms may be updated at any time by the Company by providing a notice of the date of such changes at the top of this page.

  This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original, but all of which together will constitute the same instrument. It may be executed by physical or electronic means, including via the execution of, or a single Party’s consent to, a so-called “digital click through '' version through” version. In the event that any signature is delivered by facsimile transmission or by email delivery of a PDF format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as “wet signatures” on paper documents.

eCompany may revise these terms at any time.