TERMS OF SERVICE, USE, AND PURCHASE
The services on the website located at elmerch.com (the “Site”) are owned and operated by El Merch LLC (the “Company” or “EM”). By accessing or otherwise using the Site, you are indicating your agreement to the Terms of Service, Use, and Purchase contained herein. Please read them carefully.
BY ACCESSING OR USING THE SITE OR SERVICES ON ANY COMPUTER, MOBILE PHONE, TABLET, CONSOLE, OR OTHER DEVICE (collectively, “Device”), YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE, USE, AND PURCHASE (the “Terms”) AND ANY OTHER APPLICABLE LAW. BEFORE PLACING AN ORDER, IF YOU HAVE ANY QUESTIONS RELATING TO THESE TERMS OF SERVICE, PLEASE EMAIL OUR CUSTOMER SERVICE TEAM AT SERVICE@ELMERCH.COM.
EM may change these Terms of Service at any time without notice. All changes and revisions will be posted on the Site and will be effective immediately upon posting. Your continued use of the Site shall be considered acceptance to the revised Terms of Service.
IF YOU DO NOT AGREE WITH THESE TERMS OF SERVICE, PLEASE DISCONTINUE USE OF THE SITE AND SERVICES.
If any of these conditions shall be deemed invalid, void, or for any reason unenforceable, that condition shall be deemed severable and shall not affect the validity and enforceability of any remaining condition.
When you access the Site, use its services, or send e-mails to EM, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on the Site. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
SHIPPING AND DELIVERY
The order will ship within 7 days of the campaign being finished. It may take another 1-2 days for your order to be shipped out. You will get a shipping confirmation via email the day your order is packed. If the item you are purchasing is not a campaign (campaign-related items have sales timers on the product pages), your order will take up to 3 business days to process, and another 1-2 days for your order to be shipped out. EM does not guarantee any specific delivery dates or times. We do our best to ensure the timely delivery of all orders.
At times, the courier will not scan the package immediately. Once you have been notified about your package's departure, please allow tracking information 48 hours to update once notified. Once a package has been returned to us due to address issues, we will contact you to organize a new delivery. If you do not respond to our email within 30 days, your order is Null & Void.
RETURNS AND EXCHANGES
All sales are final. If you receive damaged goods or the wrong size/item, simply email firstname.lastname@example.org with your order number and name so we can best resolve your situation. We do reserve the right to cancel and refund any order that is deemed potentially fraudulent by Shopify's payment system. There is a five-day grace period upon receipt of item to contact us about defects or wrong items.
Unfortunately, we do not offer international shipping at the moment.
ACCOUNT CONFIDENTIALITY AND ACCESS
You represent that you are a human, as accounts registered by automated methods are not permitted. If you use the Site, you are responsible for maintaining the confidentiality of your account and password, as well as for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. EM shall not be liable or responsible for any loss or damage arising from any unauthorized use, access, or any other breach of security of your account. You agree to notify us immediately of any unauthorized use of your account and/or password, or other personal information, and agree that we shall not be liable for any loss or damage arising out of your failure to comply with this obligation.
The Company reserves the right to refuse service, terminate accounts, remove or edit content, or cancel orders at our sole discretion. You further agree not to access any other person’s or member’s account or account information without their express permission.
All content, text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, code, and software used on or incorporated into the Site, and the arrangement or integration of all such content, text, graphics, logos, button icons, images, audio clips, digital downloads, data compilation, code, and software property are owned by the Company or content suppliers, and are subject to copyrights held by or licensed to the Company and all rights thereto are specifically reserved and protected by all applicable laws of the United States of America and international copyright laws.
EM, and other marks indicated on our site are trademarks or registered trademarks of EM in the United States of America and other countries. EM graphics, logos, page headers, button icons, scripts, and service names are trademarks of and/or are the fully owned intellectual property of EM. The foregoing trademarks and intellectual property may not be used in connection with any product or service that isn’t operated by EM, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits EM. All other trademarks and intellectual property not owned by EM or its affiliates that appear on the Site are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by EM.
LICENSE AND SITE ACCESS
Except as otherwise provided herein, use of the Site does not grant you a license to any materials, content, or features you may access on the Site or its services. You may not modify, lease, loan, sell, display, reproduce, distribute, or create derivative works of such materials and content, features or materials, in whole or in part. You may not download (other than page caching) or save a copy of any of the materials and content or screens for any purpose without the express written consent of EM. Any resale or commercial use of the Site or its contents is strictly prohibited. Any collection and use of any product listings, descriptions, or prices, downloading or copying of account information for the benefit of another merchant, or any use of data mining, robots, or similar data-gathering and extraction tools is strictly prohibited.
You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of EM without express written consent. You may not use any meta tags or any other "hidden text" utilizing EM's name or trademarks without the express written consent of EM. Any unauthorized use terminates the permission or license granted by EM. You are granted a limited, revocable, and nonexclusive right to create a hyperlink to the Site’s home page, so long as the link does not portray EM or our products or services in a false, misleading, derogatory, or otherwise offensive matter. You may not use any EM logos or other proprietary graphic or trademark as part of the link without express written permission.
RISK OF LOSS
All items purchased from EM are made pursuant to a shipment contract. This means that the risk of loss and title for such items passes to you upon our delivery to the carrier.
EM has made every effort to display as accurately as possible the colors of our products that appear on the website. However, as the actual colors you see will depend on your monitor, we cannot guarantee that your monitor's display of any color will accurately reflect the color of the product on delivery.
All sizes and measurements are approximate and allow for a compensated margin of error, however we do make every effort to ensure they are as accurate as possible. We will take all reasonable care to ensure that all details, descriptions, and prices of products appearing on the website are correct at the time when the relevant information was entered onto the system. We reserve the right to refuse orders where product information has been incorrectly published, including prices and promotions.
EM attempts to be as accurate as possible. However, EM does not warrant that product descriptions or other content of the Site are accurate, complete, reliable, current, or error-free. If a product offered by EM is not as described, please contact our customer service team at email@example.com.
To make purchases through the Site, you must submit credit card information. You represent and warrant to EM that such information is true and that you are authorized to use the payment instrument. You will promptly update your Account information with any changes that may occur regarding your billing information, including billing address changes. Furthermore, you authorize EM to use any updated credit card information submitted by your credit card company directly to EM. If you dispute any charges, you must inform EM within thirty (30) days upon receipt of EM’s invoice. We reserve the right to change prices or fees required to purchase items.
Any and all EM’s services may be used for lawful purposes only and are available for your personal, noncommercial use, which shall be limited to viewing the Site, purchasing products, providing information to EM, and downloading product information for your personal review. You are responsible for your own communications, including transmission, posting, and uploading of information and are responsible for the consequences of such communications. EM specifically prohibits its users from any use of the Site’s services for any of the following:
Posting, transmitting, uploading, distributing or publishing any content that is libelous, defamatory, blasphemous, fraudulent, invasive of another’s privacy, tortuous, obscene, pornographic, abusive, infringing or otherwise illegal, as determined in the sole discretion of the Company.
Creating multiple accounts for the same user;
Creating fraudulent accounts;
Engaging in conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any city, state, national, or international law or regulation;
Communicating, transmitting, or posting material that is infringing of a third party’s intellectual property, privacy, or publicity right;
Attempting to interfere in any way with the Site’s network security, or attempting to use this Site’s services to gain unauthorized access to any other accounts or computer system.
You agree to comply with all other restrictions applicable local, provincial, federal and international laws, regulations and treaties while using this site. In addition, while using the website in accordance with these terms as modified from time to time, you agree to comply with generally accepted Internet standards and shall refrain from any abusive use of the Site.
Any and all content, comments, feedback, suggestions, ideas, concepts, photos, questions or other communications (collectively, “User Content”) that you submit or post through the Site or its services or channels shall be deemed non-confidential and non-proprietary. By submitting or posting any User Content, you grant to the Company and its affiliates a perpetual, irrevocable, royalty-free, worldwide, sublicensable and transferable license to copy, publish, translate, modify, create derivative works form, distribute, reproduce, display, or use the User Content in any commercial or non-commercial manner whatsoever, including but not limited to developing, manufacturing, and marketing products that incorporate or otherwise rely upon such information. The Company shall have no obligation to compensate you for submitting User Content, or respond to any User Content. The Company retains the right, in its sole discretion and without prior notice, to remove, revise, or refuse to post any User Content for any reason or no reason.
By connecting to EM with a third-party service (i.e. Facebook), you give us permission to access and use your information from that service as permitted by that service, and to store your log-in credentials for that service. You agree that the Company is not responsible for any content or information related to your account once it is shared and posted on Facebook, Instagram, Twitter, or any other third-party service.
By submitting User Content, you represent and warrant that the User Content does not (i) contain false or misleading information, (ii) infringe on the intellectual property rights of any third party, (iii) contain any libelous, defamatory, obscene, offensive, threatening, or otherwise harassing content, (iv) contain any addresses, email addresses phone numbers or any contact information, or (v) contain computer viruses or other harmful files. You are solely responsible for the User Content and you hereby agree to indemnify and hold the Company and its employees, agents, and affiliates harmless from any and all damages, claims, expenses, costs, or fees arising from or in connection with a breach of any of the foregoing representations or your violation of any law or rights of a third party.
DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
THE SITE IS PROVIDED BY THE COMPANY ON AN "AS IS" AND "AS AVAILABLE" BASIS. THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THIS SITE OR THE INFORMATION, CONTENT, MATERIALS, OR PRODUCTS INCLUDED ON THIS SITE. YOU EXPRESSLY AGREE THAT YOUR USE OF THIS SITE IS AT YOUR SOLE RISK.
TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, EM DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY AND FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY. EM AND ITS SUPPLIERS DO NOT WARRANT THE ACCURACY AND COMPLETENESS OF CONTENT, MATERIALS, AND PRODUCTS AVAILABLE ON OR THROUGHOUT THE SITE. EM DOES NOT WARRANT THAT THE SITE, ITS SERVERS, OR E-MAILS SENT FROM EM OR THE SITE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
EM, ITS PARTNERS, AFFILIATES AND SUPPLIERS AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, AGENTS, REPRESENTATIVES AND SUPPLIERS WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THE SITE, OR THE RELATED SERVICE, INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, INCIDENTAL, PUNITIVE (INCLUDING, WITHOUT LIMITATION, THOSE DAMAGES RESULTING FROM LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION), AND CONSEQUENTIAL DAMAGES.
THE LAWS OF CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MIGHT NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE EM SERVICES, OR WITH ANY OF THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE EM SERVICES AND SITE. IF A PRODUCT OFFERED THROUGH THE SITE IS NOT AS DESCRIBED, YOUR SOLE REMEDY IS TO RETURN IT IN ACCORDANCE WITH THE RETURN POLICY SET FORTH IN DETAIL IN THESE TERMS OF SERVICE.
LINKS TO OTHER WEBSITES
Links to third party websites on this site are provided solely as a convenience to you. If you use these links, a new browser will be lodged to access linked websites. The Company has not reviewed these third party websites and does not control and is not responsible for any of these websites or their content. The Company does not endorse or make any representations about them, or any information, or other products or materials found there, or any results that may be obtained from using them. If you decide to access any of the third party websites linked to this site, you do this entirely at your own risks.
SUSPENSION AND TERMINATION OF ACCOUNT
You acknowledge and agree that EM, in its sole and absolute discretion may, without notice to you, suspend or terminate your use of, or access to the Site, for any services and remove and discard any related materials for any reason, including where EM believes that you have violated any of these terms, and at any time without notice. You agree that EM (including its parents, subsidiaries, affiliates, directors, officers, agents, and representatives) shall not be liable to you or to any person as a result of any such suspension or termination. If you are unsatisfied with any of these terms, please discontinue using the Site.
You shall indemnify, defend, and forever hold harmless EM and its partners, affiliates, parents, subsidiaries, and suppliers and each of their respective directors, officers, employees, consultants, and agents from and against any and all claims, demands, actions, suits, losses, costs, charges, expenses, damages and liabilities (including reasonable attorney’s fees) which arise out of, may be incurred by reason of, or are in connection with your use of the Site or any related service, including but not limited to information or content submitted, transmitted, or otherwise made available on or through the Site or any breach or attempted breach of these Terms of Service.
By visiting the Site, you agree that these Terms of Service and any action, controversy, claim, or dispute arising out of or relating in any way to your use of the Site shall be governed by United States federal law, and (to the extent not inconsistent with or pre-empted by federal law) the laws of California, without regard to conflict of laws principles.
Any claim or cause of action you may have with respect to EM or the Site must be commenced within one (1) year after the claim or cause of action arose.
Please read the following section carefully. It is part of your contract with us and contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
ARBITRATION AGREEMENT; WAIVER OF TRIAL BY JURY; CLASS ACTION WAIVER
Notice and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to the Company should be sent to the following address: EM, 6380 Wilshire Blvd, Suite 1110, Los Angeles, CA 90048. If the parties do not resolve the claim or dispute within sixty (60) days after the Notice is received, either party may begin an arbitration proceeding.
Forum Selection/Jurisdiction. Jurisdiction and venue for any dispute shall be in Los Angeles, California. Each party submits to personal jurisdiction and venue in that forum for any and all purposes.
Arbitration Agreement. Any claims arising out of, relating to, or connected with these Terms of Service and use of the Site that cannot be resolved informally must be asserted individually in binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Terms and the AAA Supplementary Procedures for Consumer-Related Disputes (including, without limitation, utilizing desk, phone or video conference proceedings where appropriate and permitted to mitigate costs of travel). The arbitration shall be conducted by a single, neutral arbitrator. The arbitrator shall not conduct any form of class or collective arbitration nor join or consolidate claims by or for individuals. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of these Terms, including, any claim that all or any part of these Terms is void or voidable or a particular claim is subject to arbitration. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Unless otherwise agreed to, all arbitration proceedings will be held in English. This Arbitration Agreement applies to you and us, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, assigns, suppliers and licensors as well as all authorized or unauthorized users or beneficiaries of the Services.
Award. For matters where the relief sought is over $5,000, the arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. The arbitrator will decide the substance of all claims in accordance with applicable law, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section as to the types and the amounts of damages for which a party may be held liable. The arbitrator shall not be bound by rulings in prior arbitrations involving different users, but is bound by rulings in prior arbitrations involving the same EM user to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER USERS.
Non-Appearance Based Arbitration. A non-appearance based arbitration will be conducted by telephone, online, and/or based solely on written submissions. The specific manner will be chosen by the party initiating the arbitration. The arbitration will not involve any personal appearance by the parties or witnesses, unless otherwise agreed by the parties.
If either party pursues arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the Arbitration Rules for the pertinent claim.
Waiver of Trial by Jury. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes will be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between the parties in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, THE PARTIES WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, will be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph will not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts will be of no force and effect and will be severed and the remainder of this Arbitration Agreement will continue in full force and effect.
Opt-Out. If you are a new user, you may elect to opt out (exclude yourself) from the final, binding arbitration procedure and the class actions waiver specified in these Terms of Service by submitting an Opt-Out Notice to EM directed to Arbitration Opt Out and addressed to EM, 6380 Wilshire Blvd, Suite 1110, Los Angeles, CA 90048. The opt-out notice must be received no later than thirty (30) days after the date you open an account and accept these terms for the first time.
Survival. This Arbitration Agreement will survive the termination of your relationship with us.
Small Claims Court. Notwithstanding the foregoing, either party may bring an individual action in small claims court.
Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets will not be subject to this Arbitration Agreement.
Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Los Angeles County, California for such purpose and agree that the laws of the State of California will govern the litigated dispute.
REVISION OF TERMS
EM may revise these terms at any time by updating this posting. You should visit this page from time to time to review the then-current terms because they are binding on you and your continued use of this site signifies your acceptance of these revised terms.
EM will not be considered to have waived any of its rights or remedies described in these terms unless the waiver is in writing and signed by EM. No delay or omission by EM in exercising its rights or remedies will impair or be considered as a waiver of its rights to enforce such rights at any time.
You also may be subject to additional terms and conditions that are applicable to certain parts of the services provided by EM. The invalidity of any term, condition or provision in these Terms of Service shall not affect the enforceability of those portions deemed enforceable by applicable courts of law. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect.
Updated September 2019