2. PRODUCTS

2.1. Products. The Website and Services may make available listings, descriptions and images of goods (collectively, "Products"). Such Products may be made available by UpMerch or by third parties. The availability through the Website of any listing, description or image of any Product does not imply an endorsement of such Product or an affiliation with the manufacturer or provider of such Product. Any such reference does not imply or warrant that any such products or services shall be available at any time. We make no representations as to the completeness, accuracy or timeliness of such listings, descriptions or images (including any features, specifications and prices contained therein). Such information and the availability of any Product is subject to change at any time without notice. Certain weights, measures and similar descriptions are approximate and are for convenience only. It is your responsibility to ascertain and obey all applicable local, state, federal and foreign laws (including minimum age requirements) regarding the possession, use and sale of any Product.

2.2. Availability. The availability and pricing of Products identified on our Website or an Accepted Invoice is subject to change. The Website and Services may contain references to products and services that may no longer be available. In the event an Accepted Invoice has been agreed upon or Fees have been paid by you and the Product is unavailable, UpMerch will provide you notice of the unavailable Product and provide suggestions for a suitable replacement.

2.3. Restrictions. UpMerch reserves the right, including without prior notice to you: (i) to limit the available quantity of or discontinue making available any Product, (ii) to impose conditions on the honoring of any coupon, discount, credit or similar promotion, (iii) to bar any user from completing an order, and (iv) to cancel any order even after it has been placed on line through the Website and to refuse to provide any user with any Product, subject to any applicable laws.

2.4. Use of Products.  You represent that the applicable Products will be used only in a lawful manner in accordance with any instructions provided. You agree that you will not resell any products or services obtained through UpMerch, unless we have provided our express prior written consent for you to do so. You agree to take full responsibility for the selection and use of any Products you purchase on behalf of yourself or others including the determination of whether such Products are appropriate for the recipient, and except as provided herein, UpMerch shall not be liable to you or the recipient for any damages in connection with the use of any Products.

2.5. Title; Risk of Loss. Title passes to you upon the Purchase of Products. You agree that at no time during the period that Products are held by UpMerch will UpMerch hold title, or any other rights of ownership or control the risk of loss in the Products. You provide direction to UpMerch on shipments or disposition of the inventory and as such you are in control of the Products at all times.  You agree that, all times following your purchase of Products, you bear the risk of loss of any Products.  

2.6. Defective and Damaged Products. All Losses for Products that are non-conforming, defective or damaged must be made in accordance with our Shipping and Return/Refund Policies located at the bottom of these Terms.

3. ACCEPTED INVOICES

3.1. You may request that UpMerch supply Products and Services pursuant to the terms of an accepted order form (an "Accepted Invoice"). 

3.2. Each Accepted Invoice shall identify the specific Products and Services to be delivered by us, and the quantities and pricing for the same

3.3. For clarity, an Accepted Invoice shall not be effective until it is also accepted by us. The parties may agree to terms in an Accepted Invoice which vary from or would be inconsistent with the provisions of these Terms, in which case any conflict between the terms of these Terms and the Accepted Invoice, the Terms hereto will prevail. 

4. PAYMENTS

4.1. Pricing. All prices are subject to change from time to time, and your purchase will be based on prices in effect at the time of an agreed upon Accepted Invoice. All prices are exclusive of sales and other applicable taxes, shipping and handling and freight charges, all of which will be your responsibility and may be set forth in any Accepted Invoice as separate line items, unless otherwise specified. When you place an order on the Website, we will provide an estimated total price which will include estimated sales and other applicable taxes, shipping and other applicable fees. However, you acknowledge and agree that the final purchase price will be as stated on an Accepted Invoice as set forth in Section 4.2

4.2. Fees. You will pay all fees specified in any Accepted Invoice (the “Fees”). Payment obligations are non-cancelable and, except as expressly set forth herein, Fees paid are non-refundable and payable in United States dollars (subject to the refund and/or credit rights set forth herein). Except as set forth in any Accepted Invoice, due to the customized nature of the Products, Fees are due upfront in advance of any production.

4.3. Late Payment. If any Fees owed by you (excluding amounts disputed in reasonable and good faith) have not been paid by the applicable due date (within 30 days of receipt of an agreed upon Accepted Invoice unless otherwise agreed in writing by the parties), we reserve the right to cancel any order or apply a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, and be reimbursed for all expenses of collection.

4.4. Modification of Any Accepted Invoice. If you choose to modify your Accepted Invoice or any Product is unavailable or has changed in price, any incremental cost increase or decrease shall be reflected in an updated Accepted Invoice. Any incremental increase in Fees shall be payable by you in accordance with these Terms. Any refund owed to you shall be payable in accordance with these Terms.

4.5. Taxes. You will be solely responsible for, all applicable taxes in connection with these Terms and any Accepted Invoice, including any sales, use, excise, value-added, goods and services, consumption, and other similar taxes or duties (but excluding taxes based on UpMerch’s net income) unless otherwise specified in writing. Should any payment for the Products and Services provided by UpMerch be subject to withholding tax by any taxing authority, you will reimburse UpMerch for such withholding tax. In the event you are tax-exempt, you shall provide a valid tax exemption certificate to UpMerch. 

4.6. Credits. UpMerch allows you to load a dollar value onto your account in return for credits for use on its Website for its Services (“Credits”). The dollar value that you load onto your account may be a prepayment for the Products and Services provided by UpMerch. We offer the Credits to make it easier for you to use our Website and Services. Unless otherwise required by law or permitted by these Terms, Credits are nonrefundable and may not be redeemed for cash. The value of your credits are not insured by UpMerch or by the Federal Deposit Insurance Corporation (FDIC), nor do Credits earn interest.

5. INTELLECTUAL PROPERTY

5.1. Ownership. UpMerch shall retain all intellectual property rights in the Website and the Services, including any and all derivatives, changes and improvements thereof, and Customer agrees that it obtains no intellectual property rights or licenses by these Terms except those expressly granted herein. Except for User Content (as defined below), all content and material made available on the Website, (collectively “Website Content“), including, without limitation, catalogs, product photos and images, graphics, designs, artwork, text, written/editorial material, audios, videos, animations, databases, layouts, user interfaces, software programs (including their source code and object code), and social media applications and plug-ins, belong exclusively to us and/or our licensors and partners, and are protected by U.S. and international copyright and trademark laws. Any use or copying of the Website or Website Content, without written permission from UpMerch, is strictly prohibited. Customer hereby grants UpMerch a non exclusive, perpetual, irrevocable, royalty-free license to any ideas, suggestions, feedback, product ideas or categories, or service improvements given by Customer pertaining to the Website or the Service.

5.2. User Content. As used herein, “User Content” means any marks, artwork, logos, design, data, files, specifications visual, graphic, pictorial, photographic, written, or other material furnished to us by you. You retain ownership of all User Content furnished by you, but subject to your license grant to us as set forth herein. By furnishing User Content to us, (i) you grant to us a worldwide, non-exclusive, royalty-free, license (with the right to sublicense to our suppliers, designers and our fulfillment partners) to use, copy, reproduce, distribute, prepare derivative works of, display and perform, to the extent required to perform the Services, make custom products and fulfill order(s); (ii) you represent and warrant that you own and control all rights in and to such User Content and have the legal right and authority to grant the aforementioned license to us; and (iii) you agree to defend, indemnify and hold us and our officers, directors, employees, agents, suppliers, vendors, and fulfillment partners harmless pursuant to Section 13.1 below, in the event any User Content furnished by you infringes upon, violates or misappropriates any property, personal or proprietary right of any person or entity.

5.3. Copyright Complaints. We are under no obligation to, and do not, scan content used in connection with the Website or Services for the inclusion of illegal or impermissible content. However, we respect the copyright and intellectual property interests of others. It is our policy not to permit materials known by us to infringe another party’s copyright to remain on the Website.

• 5.3.1. If you believe that an infringement of intellectual property rights exists, please provide us with notice of the same to support@upmerch.com
• 5.3.2. If you believe there is or has been a copyright infringement, you should provide us with written notice that contains the following information required by the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. 512
• 5.3.3. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
• 5.3.4. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
• 5.3.5. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit us to locate the material;
• 5.3.6. Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number and, if available, an email address at which the complaining party may be contacted;
• 5.3.7. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law;
• 5.3.8. A statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed

6. STORAGE

6.1. Storage. Upon payment of all additional charges, as part of our Services, Customer may store its Products or 3rd party products at facilities operated by UpMerch or a 3rd party logistics company (“Inventory”), subject to these Terms, UpMerch’s Shipping Policy (located at the bottom of this page) and its Return/Refund  Policy (located at the bottom of this page). Presently, unless otherwise indicated in your Accepted Invoice, you will not be charged for storing Inventory. Storage pricing, if applicable, will be billed at our then-current rates or as otherwise agreed in writing. Our obligations regarding products held in Inventory will be limited to a duty to exercise only reasonable care in handling and storage of such products. You agree that UpMerch will only ship products held in Inventory to you or your designee upon your instruction and at your expense. In the event that you request shipment of products held in Inventory and subsequently cancel a portion or all of such request, you will be liable for any and all applicable cancellation, restocking, and similar charges imposed by UpMerch or its suppliers. We hold such items on behalf of Customer and you hereby agree that at no time during the period that your products are held in Inventory will UpMerch or any other third party hold title, or any other rights of ownership in the Inventory. Title in Inventory will continue to be held by You, you have control of inventory stored at our facilities.

6.2. Inactive Inventory. Upon notice to you, we may require you to take physical possession of Inactive Inventory upon thirty (30) days’ prior written notice, unless otherwise mutually agreed by the parties in writing. “Inactive Inventory” is defined as those Products or 3rd party products that we hold in Inventory for you that we received six (6) months or more prior and you are not continuing the payment of any applicable storage fees. In the event that UpMerch requires you to take physical possession of your products held in Inventory, we will require you to provide an address for delivery and pay any additional fees including shipping. If no address is provided by you, UpMerch reserves the right to destroy, donate or discard of, any Inactive Inventory that remains unclaimed after such period.  You acknowledge and agree that, in no event, shall UpMerch be liable to you for any losses, demands, suits, actions, proceedings, judgments, orders, damages, liabilities, penalties, costs or expenses (including, without limitation, attorney fees and court costs) (collectively “Losses“) of any kind related to Inactive Inventory.

7. SHIPPING

7.1 Shipping Fees and Terms. Shipping pricing will be charged at UpMerch’s then-current rates for domestic and international shipping which can be found below. You agree to pay all charges incurred by you or on your behalf through the Website at the prices in effect when such charges are incurred. In accordance with our Shipping Policy (located at the bottom of this page) and our Return/Refund Policy (located at the bottom of this page). Any delivery date(s) are approximate and are subject to a variety of factors including but not limited to carrier operations, weather, strikes and acts of god. We are not liable for any Losses incurred by you resulting from failure to meet the estimated delivery date. All other shipping information is set forth in our Shipping Policy linked below.  

8. WARRANTIES

8.1. Customer Warranties. Customer represents and warrants that (a) the User Content does not infringe upon any third party’s proprietary rights, including intellectual property rights (b) Customer will use the Website and Service in compliance with all applicable laws and regulations, including laws applicable to the jurisdictions in which they send items, and any corporate policies to which its recipients are subject.

8.2. Disclaimer of Warranties.you expressly acknowledge and agree that the usage of the site and services, and all products are sold “as is, where is, with all faults” without warranties of any kind, whether expressed or implied, including the warranty of merchantability, and fitness for particular purpose whether alleged to arise by law, by usage in the trade, by course of dealing or course of performance. we neither make nor assume, and do not authorize any other person to make or assume, any obligation, liability or warranty in connection with any products. notwithstanding anything to the contrary herein, upmerch does not warrant that the site, service or any services related thereto (a) will be delivered or performed without mistake or interruption, (b) that customer will achieve any particular business results by use of the site, service or products or (c) the site, or service will be uninterrupted, timely, secure, or error-free.

some jurisdictions do not allow the exclusion of certain warranties. the foregoing disclaimer of warranties shall apply to the fullest extent permitted by law in any applicable jurisdiction. accordingly, some of the above disclaimers set forth above may not apply to you or be enforceable with respect to you. if any portion of this section is held to be invalid, invalidity of such portion will not affect the validity of the remaining portions of the applicable section.

9. CONFIDENTIALITY

9.1. Non-Disclosure. Each party (each a “Receiving Party”) agrees that it shall use and reproduce the Confidential Information of the other party (the “Disclosing Party”) only for purposes of exercising its rights and performing its obligations under these Terms and only to the extent necessary for such purposes and shall restrict disclosure of such Confidential Information to the Receiving Party’s employees, contractors, subcontractors, agents, fulfillment partners, suppliers, consultants, or advisors who have a need to know and who are bound by obligations of confidentiality and non-use at least as protective of such information as these Terms and shall not disclose such Confidential Information to any third party without the prior written approval of the Disclosing Party except as set forth herein. The foregoing obligations shall be satisfied by the Receiving Party through the exercise of at least the same degree of care used to restrict disclosure and use of its own information of like importance, but not less than reasonable care. Notwithstanding the foregoing, it shall not be a breach of these Terms for the Receiving Party to disclose Confidential Information if compelled to do so under law, in a judicial or other governmental investigation or proceeding, provided that, to the extent permitted by law, the Receiving Party has given the Disclosing Party prior notice and reasonable assistance to permit the Disclosing Party a reasonable opportunity to object to and/or limit the judicial or governmental requirement to disclosure. “Confidential Information” means all information of a party disclosed to the other party, regardless of the form of disclosure, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.

9.2. Exceptions. Notwithstanding anything to the contrary herein, neither party shall be liable for using or disclosing information that such party can prove: (i) was publicly known at the time it was disclosed or has become publicly known through no fault of the Receiving Party; (ii) was known to the Receiving Party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (iii) is disclosed with the prior written approval of the Disclosing Party; (iv) was independently developed by the Receiving Party without any use of the Confidential Information, as demonstrated by files created at the time of such independent development; (v) becomes known to the Receiving Party, without restriction, from a source other than the Disclosing Party without breach of these Terms by the Receiving Party and otherwise not in violation of the Disclosing Party’s rights; or (vi) is disclosed generally to third parties by the Disclosing Party without restrictions similar to those contained in these Terms.

10. THIRD PARTY SITES

10.1. Third Party Websites. The Website or Services may provide links to third party websites or resources (“Third Party Websites”). Because we have no control over Third Party Websites and resources, you acknowledge and agree that we are not responsible for the truthfulness, accuracy, quality or completeness of the content, services, links displayed and/or any other activities conducted on or through such Third Party Websites, and do not endorse and are not responsible or liable for any content, advertising, goods, services or other materials on, available through or provided by such Third Party Websites. You agree that we shall not be responsible or liable for any loss or damage of any sort incurred as the result of any interaction you may have with such Third Party Websites. We may enable social media connectivity on the Website from time to time. This connectivity may link to our own social media accounts. Those social media websites are also Third Party Websites. You acknowledge and agree that the Third Party Websites may have different privacy policies and terms and conditions and/or user guides and business practices than us, and you further acknowledge and agree that your use of such Third Party Websites is governed by the respective Third Party Website terms and conditions and any other applicable policies. Third Party Websites may also be able to use information about action you take on our Website. However, note that where you choose to publish or share information through the social media links or on our Website, we have no control over that activity. It will not be protected by us. YOU AGREE THAT UPMERCH WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY GOODS, SERVICES, INFORMATION, RESOURCES AND/OR CONTENT AVAILABLE ON OR THROUGH ANY THIRD PARTY SITES AND/OR THIRD-PARTY DEALINGS OR COMMUNICATIONS, OR FOR ANY HARM RELATED THERETO, OR FOR ANY DAMAGES OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH YOUR USE OR RELIANCE ON THE CONTENT OR BUSINESS PRACTICES OF ANY THIRD PARTY.

11. LIMITATION OF LIABILITY

11.1. Exclusion of Damages. IN NO EVENT WILL UPMERCH BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS, LOSS OF SALE, LOSS OF DATA OR INFORMATION OF ANY KIND, LOSS OF OPPORTUNITY, LOSS OF USE, LOSS OF GOODWILL, COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, OR OTHER INTANGIBLE LOSSES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, WHETHER OR NOT UPMERCH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES RELATED TO (A) THE PRODUCTS OR THE USE OR THE INABILITY TO USE THE SITE OR SERVICES; (B) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY USER CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH THE USE OF THE SITE OR SERVICES; (C) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITE OR SERVICE; AND (D) ANY DAMAGE TO INVENTORY HELD BY UPMERCH ON BEHALF OF CUSTOMER (EXCEPT AS OTHERWISE STATED HEREIN).

11.2. MAXIMUM AGGREGATE LIABILITY. ANYTHING HEREIN TO THE CONTRARY NOTWITHSTANDING, UPMERCH’S MAXIMUM AGGREGATE LIABILITY UNDER, ARISING OUT OF OR RELATING TO THE TERMS OR THE SITE OR SERVICES SHALL IN NO EVENT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO UPMERCH DURING THE SIX (6) MONTHS PRECEDING THE DATE THE LIABILITY FIRST ARISES (THE “CAP”).

THE FOREGOING CAP ON LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN ANY APPLICABLE JURISDICTION. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU. IF ANY PORTION OF THIS SECTION IS HELD TO BE INVALID, INVALIDITY OF SUCH PORTION WILL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTION. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SITE OR SERVICE OR WITH THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SITE OR SERVICE.

12. INDEMNITY

12.1. Customer Indemnities. By using the Website and Services, you agree to defend, indemnify and hold us and our members, managers, officers, consultants, employees, agents, suppliers, and fulfillment partners, successors and permitted assigns, harmless from and against any Losses arising from or in connection with: (i) your misuse of the Website or Services; (ii) any User Content furnished by you; (iii) your misuse, resale or further distribution of any Products you purchase from us, or your use of the Products in any manner not contemplated by these Terms; (iii) your breach or violation of any of these Terms, and any applicable law, rules, regulations or governmental order; or (iv) any harm including but not limited to injury, damage to property, sickness, disease or death, suffered or alleged to be suffered by any third party caused by or in connection with products sent by UpMerch, other than as a result of any gross negligence, fraud, malicious, or reckless conduct on the part of UpMerch. For the sake of clarity, nothing in these Terms is intended to limit liability on the part of UpMerch for any gross negligence, fraud, malicious, or reckless conduct on the part of UpMerch.

12.2. UpMerch Indemnities. Subject in all events to the Cap, UpMerch shall defend, indemnify and hold harmless Customer and its officers, directors, consultants, employees, successors and permitted assigns, from and against any Losses arising out of its (i) breach of these Terms and Conditions and (ii) its gross negligence or willful misconduct.

13. PUBLICITY

13.1. Publicity. Customer hereby approves the display by UpMerch of Customer’s name and logo on its website and in marketing materials, subject to Customer’s right to revoke such approval upon written notice to UpMerch.

14. GOVERNING LAW AND DISPUTE SETTLEMENT; ARBITRATION CLAUSE AND CLASS ACTION WAIVER—IMPORTANT—PLEASE REVIEW AS THIS AFFECTS YOUR LEGAL RIGHTS

14.1. Arbitration. Any dispute or claim arising under or relating to these Terms, the Website, Services or any other products or services provided by us (each, a “Dispute”), will be determined by confidential and binding arbitration in Chicago, Illinois, United States, before a single arbitrator. The arbitration shall be commenced and conducted by the Judicial Arbitration and Mediation Services (“JAMS”) pursuant to its then current Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those rules, or, where appropriate, pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. The parties will treat all disputes arising under these Terms, including arbitration proceedings and awards, as Confidential Information of both parties, except as necessary in connection with a judicial challenge to or enforcement of an award or otherwise required by law or judicial decision. Notwithstanding the above, either party may seek injunctive relief in a court of competent jurisdiction, and issues of patent or copyright ownership or infringement may be decided in the state or federal courts of Chicago, Illinois. The prevailing party in any action arising from or relating to these Terms shall be entitled to recover its reasonable attorneys’ fees and costs including, without limitation, arbitration and expert fees.

14.2. Governing Law. These Terms are governed by the laws of the State of Illinois, without regards to its conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.

14.3. Class Action Waiver. Both parties agree that all Losses brought against the other must be brought in such party’s individual capacity, and not as a plaintiff or class member in any purported class action, collective action, private attorney general action or other representative proceeding, except to the extent such restriction is prohibited by applicable law.

15. GENERAL TERMS

15.1. Assignment. You may not assign these Terms or your rights and obligations without the prior written consent of UpMerch, but UpMerch may freely assign or transfer these Terms and its rights and obligations, in whole or in part, without restriction. Subject to the foregoing, these Terms will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.

15.2. Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given when sent electronically, via e-mail or regular mail to the address provided by you. When you use the Website or Services or send communications to us through the Website, you are communicating with us electronically. You consent to receive electronically any communications related to your use of the  Website and Services. 

Notices intended for UpMerch shall be sent to the following address:

UpMerch, LLC
c/o: Kevin Alsterda
6634 N Minnehaha Ave
Lincolnwood, IL 60712
Email: kevin@upmerch.com

15.3. Relationship of the Parties. The parties are independent contractors and will have no right to assume or create any obligation or responsibility on behalf of the other party. Neither party shall hold itself out as an agent of the other party. These Terms and any Agreement will not be construed to create or imply any partnership, agency, joint venture or formal business entity of any kind.

15.4. Severability. If any provision of these Terms or any Agreement is held invalid or unenforceable, it shall be replaced with the valid provision that most closely reflects the intent of the parties and the remaining provisions of these Terms will remain in full force and effect.

15.5. Force Majeure. UpMerch shall not be in default or liable for any loss, damage, or penalty resulting from any failure or delay in the performance of its obligations where such failure or delay is due to civil disturbances, riot, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, weather, acts of God, flood, fire, labor strikes, sabotage, fluctuations or unavailability of electrical power, network access or equipment, or any other circumstances or causes beyond our reasonable control (collectively, “Force Majeure Events”).

15.6. Entire Understanding. Both parties agree that these Terms, including all exhibits and addenda hereto and all Accepted Invoices, is the complete and exclusive statement of the mutual understanding of the parties and supersedes all previous written and oral  agreements, communications and other understandings relating to the subject matter of these Terms, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.  To the extent of any conflict or inconsistency between the provisions in these Terms and any services agreement, exhibit or addendum hereto or any Accepted Invoice, the Terms hereto shall prevail and govern in all instances.

Special Terms Governing Returns, Refunds and Shipping

Recommend you and your merchandise recipients inspect all items upon receipt. If there is an issue with your merchandise, we want to make it right. All requests for a refund or credit must be submitted to our Customer Support team

General Refunds and Returns Policy Terms

We want you and your merchandise recipients to have the best merchandise experience. We strongly within fourteen (14) days of any recipient’s receipt of merchandise. Refund or credit requests should be submitted to support@upmerch.com or via chat on our website. Refund requests will be subject to a ten (10) day review period.  In addition to the foregoing, UpMerch is not responsible for “rogue” invoices which were placed by individuals not authorized to receive a claim page password, and you agree that you shall be responsible in all events for any such orders placed by any individual who has been granted (or has received) your claim page password and no such refunds shall be granted as a result of the same.

Our current estimated production lead time is 2-3 weeks but may vary due to a variety of factors (including but not limited to Force Majeure Events). Orders exceeding 500 units may be subject to longer lead times. We are able to request RUSH production on select products for a fee and reduce the timeline by approximately five (5) business days. RUSH production is not applicable to any non-US suppliers.

Although we are able to take requests for actual delivery dates, we aren’t always able to execute all items in an order by the date requested. To that end, we do not guarantee delivery or “in hands” dates and will not be able to refund orders for missing a requested date.

Due to the custom nature of our product offering, once your order has been approved for production, we are unable to cancel the order and fully refund or credit it.

Product Satisfaction

Upon our review of your refund request, we will, at our election, either replace the items, if possible, or issue a credit or refund for such items on all reasonable and valid claims.

Decoration and imprint method results may vary compared to the mock-ups that were approved. Mockups are meant to be a digitized visual representation of the final product but are by no means the exact results of the final product. As such, any request for a refund will be assessed for accuracy against the approved mock-ups and brand colors submitted and approved or denied based on what is reasonably achievable within each imprint or decoration method. Errors that are uncommon but are eligible for a refund, account credit or replacement items are as follows:

• Items are printed or decorated with the wrong colors entirely or more than a 2 shade difference in color
• Incorrect font(s) used
• Incorrect imprint or decoration method used
• Logo or decoration size varies by +/- 0.5” (only applicable to specific logo size requested by customer)
• Base product color is incorrect or was misrepresented in digital imagery
• Logo or decoration placement varies compared to approved location
• Items arrived with product quality defects: dents, significant scratches and/or tears in apparel items

Damaged Items

‍If you discover broken and/or damaged items, please provide photos of the damaged or broken products. Upon review, we will either, at our election, replace the damaged products, if possible, or issue a credit or refund.

Please note that UpMerch is not responsible for how an item is cared for once in the hands of a recipient.

UpMerch is not responsible for any decorations that are damaged due to improper care of items and therefore is unable to offer any refunds, credits or replacement items due to an issue of this sort.

To be eligible for a full refund or credit, certain items must be returned to us. If merchandise is already in hand of multiple recipients and you do not feel it would be a good experience for them to send their merchandise back to us, we will provide a fifty percent (50%) refund for the purchase price of the affected items in the form of shipping credits, a credit on a future order or return the funds to your original form of payment.

If the items are received in bulk and can be returned easily, UpMerch will provide a return shipping label in order to send back the items. Once we receive your qualifying return and approve your refund or credit, you will be able to choose whether to receive a credit or refund of your payment.

‍Notice Regarding Ceramic Mugs

‍Please note that ceramic mugs are not covered by this policy due to their higher risk of breakage. While we can ship ceramic mugs for you if you wish to include them in your merchandise projects, we recommend going with alternative mug options that are known to be more durable in the shipping process. Proceeding with a ceramic mug order is an assumption of risk that will exclude the order from replacement and refunding or crediting if received damaged or broken. If you do order ceramic mugs, we suggest purchasing extra units in case replacements are needed.

‍Items Not True to Size

‍Prior to placing your order, our sales team can help you with sizing for all products available in the catalog and recommend the best options based on desired fit preferences.  We strongly recommend confirming sizing for specific products before ordering.  If you discover the items you ordered are not true to size as advertised, please notify us. Upon review, we will either replace the items with corrected sizing, if available, or recommend alternative products.  In either case, the original items must be returned undamaged and unused.

UpMerch does not provide exchanges of merchandise. Sizing across apparel can vary and comes in unisex, men’s and women’s sizing. It’s important to confirm which style you are purchasing. Once a recipient chooses a size and they have received their item(s), we are unable to exchange the item for another size.

Perishable Items

UpMerch does not recommend storing food items in our warehouse. While we do offer food, beverages, and even plants, these items have a shelf life and should be sent out to recipients within 2 weeks of entering our warehouse. We are unable to compensate for any perishable items that have a ‘best by’ date or expiration date that has lapsed if the item was stored for longer than 2 weeks.

Missing Items in Merch Bundle

‍Please confirm with your merchandise recipients that all the merchandise items were properly received. If you find that there are missing items in any of the Merch Bundles, we will either replace the missing items, if possible, or issue a refund or credit in the amount of the missing items.

Notice Regarding Third (3rd) Party Items

‍Please note that while UpMerch may allow customers to use the Merch Storage to store, manage and ship third party items that are not otherwise offered by UpMerch, UpMerch cannot guarantee the quality of such items. As a result, we are not responsible for such third party items in the event that they break, are lost during shipment or become damaged during shipping or otherwise, and such third party items are expressly excluded from this policy. Additionally, UpMerch, in its sole discretion, has the right to accept or reject any third party items for any reason. UpMerch will promptly notify you if it rejects any third-party items. If an item is lost in transit due to incorrect information, UpMerch will not refund or credit the 3rd party charge. If an item is lost in transit due to carrier error, UpMerch will refund the 3rd party charge.

Additional information on shipping 3rd party items can be found in our UpMerch Shipping Policy below.

UpMerch Shipping Policy

Policy Overview

It is our goal at UpMerch to provide our customers with a seamless shipping experience. From the shipping methods we offer, the best rates available and the ability to manage your shipments using our dashboard, we strive to provide a best in class experience putting the merch you designed into the hands of your merch recipients.

Carrier selection is done by default based on the best available rate for the size and weight of the package being sent. We are unable to adjust or select a preferred carrier. Shipments may be pre-scheduled but can only be fulfilled and shipped once the inventory becomes available. To that end, UpMerch is unable to guarantee delivery deadlines or in-hands dates. Once a shipment is handed over to the carrier, UpMerch will not be able to provide any type of refund or credit related to delivery and transit times. 

Scheduled shipments with available inventory will ship within 2-3 business days except during peak season and on holidays at which point, shipments will be fulfilled within 4-6 business days. The tracking of customer shipments will be emailed directly to the customer, and also be made available via the dashboard.  The movement of packages will be displayed once the carrier has picked up from our warehouse and the packages have been scanned in. This may take up to 24 hours for the tracking number to become available. 

UpMerch customers are ultimately responsible for monitoring scheduled shipments via their dashboard to ensure they are being delivered.

Address Corrections

For shipments en route - we will make every effort to update an address when requested, however these requests are not guaranteed. It is up to the carrier and if they are operationally able to make the change prior to the delivery of the shipment. All associated charges from a successful address correction will be billed back to the customer’s account. UpMerch customers are responsible for providing correct address information for shipments. UpMerch will not be liable for shipments sent to the wrong address or any upcharges related to changing an address. Please confirm that all UpMerch items including but not limited to Merch Bundles are received by your intended recipients. If you discover that an intended recipient did not get their items due to a shipping error made by us, please notify us within fourteen (14) days after the expected delivery and we will remedy the situation.

Current Shipping Rates (subject to change)

International Shipments

UpMerch ships globally, but a few countries are restricted

UpMerch prides itself on being a global solution. We work with companies who have a presence globally and are relied upon to help provide a consistent experience anywhere in the world. 

However, there are a few countries that we are unable to ship to due to carrier restrictions. You can find that list of restricted countries linked below as well links for restricted items and shipping requirements required by certain countries:

Restricted Countries See list of countries: [________________]

Restricted Items See list of restricted items: [________________]

Requirements by Country See list of requirements by country: [________________]

Shipments being sent outside of the US will require the recipient to have a valid and working phone number and email address and the recipient must answer carrier calls to release their package from customs. The contact information provided must be that of the RECIPIENT of the package with a phone number containing the country code matching the destination country. UpMerch relies on carrier information and will not be able to reimburse, reproduce, provide a cash refund or pay for a subsequent outbound shipment for any shipment outside of the US that has been abandoned or returned to us due to non-compliance with customs regulations, requirements and formalities. 

Note: If you are collecting and uploading recipient information to our system, we strongly encourage double checking all recipient information as charges incurred for incorrect addresses/address corrections (if we are able to intercept and update the address once it’s en route)  will be passed onto the customer and are typically several times the original shipping cost. 

All international addresses must be provided in English characters. Carriers do not accept non-english characters. Failure to provide addresses in the correct format may result in failed or abandoned shipments. UpMerch is not responsible for providing any type of refund or credit for any shipment that is deemed undeliverable and has an address with non-english character.

International large bulk shipments, and/or shipments of a high dollar value (think $1k+), may require the recipient to be a registered business in the country of importation, or have an import license. The shipment will still be sent DDP, and duties/taxes are still covered by UpMerch, but the recipient will need to act as the importer in these instances. Failure to comply may result in return fees for the customer or abandonment of the shipment. In such cases, UpMerch is not liable to pay any fees associated with a returned shipment, consequential additional shipment once the original shipment has been returned or any type of warehousing fee for holding a shipment while the proper requirements are being met by the recipient.

International Shipment duties and taxes are paid by UpMerch. Tax bills received in error from carriers can be submitted for payment within forty-five (45) days of receipt to support@upmerch.com.

Exceptions and Refunds

Shipping Errors:

During shipping, some packages may be considered undeliverable by the carrier. Most commonly, this means that one of the following situations occurred, in which case UpMerch is not responsible for refunding or crediting any shipments or items for the following errors or issues:

• An incorrect address was provided
• An address was provided in non-English characters
• The recipient was unresponsive/unable to receive the package
• The recipient is no longer at the provided address
• The recipient no longer works at your organization
• The recipient refused to accept delivery of the package
• The package was delivered but deemed stolen 
• A shipment or shipments were scheduled by the customer erroneously

UpMerch is not responsible for any compensation related to returned shipments that are lost or damaged in transit if the return is due to an error indicated in the above list. 

If you have shipped items erroneously and would like to return them to the warehouse to store, you may ship them at your own cost. Warehouse/storage fees will be applicable.  In addition, UpMerch is not responsible for “rogue” invoices which were placed by individuals not authorized to receive a claim page password.

Lost in Transit Packages:

Packages must be deemed Lost in Transit by our carriers in order for our customers to receive compensation. Shipments showing no movement cannot be deemed failed or lost in transit prior to 30 days from the ship date. Shipments showing delivered and proof of delivery is verified as delivered to the wrong address by the recipient will also be covered by this policy. Should you suspect a shipment is lost in transit or delivered to the wrong address, please submit a request to investigate to spport@upmerch.com. Claims must be submitted within 45 days from the ship date. Once we have determined the status is indeed lost in transit, we are able to provide the following remedies as options:

Courtesy credit applied to the customer dashboard for the cost of the lost in transit product 

OR

Courtesy credit to be used for a future order for the cost of the lost in transit product

Please note that a shipment status of ‘delivered’ cannot be considered lost and will not be eligible for a credit or refund.

Damaged Items

While UpMerch does source best-in-class custom boxes, it is well within reason that they would endure some damage through the shipping process. Minor cosmetic damage is not eligible for any type of compensation, however, if you have received a package that is crushed, torn, contents are missing or broken you may send photos of the damaged items to support@upmerch.com or chat with us online. This policy does not cover or provide compensation for weather related damages to packages that have been delivered.

Photo evidence of any damage to items or packages must be provided within seven (7) days of receipt of the shipment. The photos will be reviewed by our team and a credit will be processed for use on shipping credits or a future order should we decide the carrier was at fault. 

Replacement Items

Due to minimum quantity orders, we are unable to reorder replacement items for shipping related errors occurring after the shipment(s) leave our warehouse. We always suggest ordering extras in the initial order as shipping errors and lost in transit shipments do happen. The choice to order additional items to replace lost in transit items will result in a new sale at the cost of the customer.

Inbound Third (3rd) Party Items

UpMerch will not refund the cost of 3rd party items or shipping fees for items not produced by UpMerch. UpMerch will only refund the cost charged for the 3rd party item that is reflected on the UpMerch invoice for the warehousing of the items should they be deemed lost in transit via the tracking number on the way to our warehouse.

Items Returned to Sender

In many cases, undelivered packages are returned to our warehouse.  In such cases, the return postage fees will be billed to your account. You will still be able to use the returned merch items as part of your inventory. Upon receiving the items, we will update your merch inventory to reflect the new status. Returned merch items ship as-is and require additional postage costs to re-ship.

If you have any questions regarding this policy please reach out to support@upmerch.com