Terms & Policies
Copyright Policy and DMCA Notice
Fancy respects artist and content owner rights. It is our policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 ("DMCA").Digital Millennium Copyright Act of 1998 may be found at http://www.copyright.gov/legislation/dmca.pdf Note: This Copyright Policy is effective as of September 10, 2014.
Reporting alleged copyright infringements
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify our Designated DMCA Agent listed below. For your complaint to be valid under the DMCA, you must provide the following information in writing to the Designated DMCA Agent listed below:
- a)An electronic or physical signature of a person authorized to act on behalf of the copyright owner.
- b)Identification of the copyrighted work that you claim has been infringed.
- c)Identification of the material that is claimed to be infringing and where it is located on the Service.
- d)Information reasonably sufficient to permit Thing Daemon to contact you, such as your address, telephone number, and, e-mail address.
- e)A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law and
- f)A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
Once a proper, bona fide infringement notification is received by the Designated DMCA Agent listed below, it is our policy:
- To remove or disable access to the infringing material
- To notify the content provider, member or user that we have removed or disabled access to the material
- That repeat offenders will have the infringing material removed from the system and that we will terminate such content provider’s, member’s or user’s access to the Service.
How to File a Counter-Notice
If the content provider, member, or user believes that the material that was removed (or to which access was disabled) is not infringing, or the content provider, member or user believes that it has the right to post and use such material from the copyright owner, the copyright owner’s agent, or pursuant to the law, the content provider, member or user must send a counter-notice containing the following information to the Designated DMCA Agent listed below:
- A physical or electronic signature of the content provider, member or user
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared on the Service before such removal or disabling.
- A statement that the content provider, member or user has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material.
- Content provider’s, member’s, or user’s name, address, telephone number, and, if available, and, if available, email address, and a statement that such person or entity consents to the jurisdiction of the Federal Court for the judicial district in which the content provider’s, member’s or user’s address is located, or, if the content provider’s, member’s or user’s address is located outside the United States, for any judicial district in which Company is located, and that such person or entity will accept service of process from the person who provided notification of the alleged infringement.
Fancy Copyright Agent Address
The above information must be submitted to the following Designated DMCA Agent:
Fancy Copyright Agent
96 Spring Street
New York, NY 10012
Telephone: (917) 746-9895
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS' FEES.
Please note that this procedure is exclusively for notifying Thing Daemon and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with our rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
Terms and Conditions of Sale
Fancy's products and services are provided by Thing Daemon, Inc. These Terms and Conditions of Sale ("Terms") govern your access to and use of Fancy's website, products, and services ("Products") for the purchase of items (“Merchandise”) directly through the Site or Applications.Note: These Terms of Service are effective as of October 19, 2017.
Thing Daemon, Inc. ("Thing Daemon", "our", "us" or "we") provides the services offered by Fancy (the "Services") through our website, accessible at www.www.danhowes.com (the "Site"), and our applications for mobile devices (the "Applications").
1. Terms and Conditions
Merchandise offered for sale directly through the Site or Applications is sold by Thing Daemon or the merchant that the item is specified as sold by ("Merchant"). Not all Merchandise on the Site or Applications is available for purchase; instead, you may be re-directed to a third party website for purchase. These Terms do not apply to Merchandise purchased on such third-party websites.
Merchandise for shipment within the United States may be subject to taxes or additional delivery fees. Merchandise for shipment to countries outside of the United States may be subject to taxes, customs duties and fees levied by the destination country ("Import Fees"). The recipient of the shipment is the importer of record in the destination country and is responsible for all Import Fees.
With respect to each item for which Import Fees have been calculated, you authorize Thing Daemon or Merchant (as applicable) to designate a carrier ("Designated Carrier") to act as your agent with the relevant customs and tax authorities in the destination country, to clear your merchandise, process and remit your actual Import Fees for such item.
These terms and conditions are in addition to the standard Terms of Service of the Site. Pursuant to those terms, title and risk of loss for the items transfer to the recipient upon delivery to the common carrier in the United States.
Please note that Merchants may have policies that differ from Thing Daemon’s Terms. For items you have purchased from a Merchant, please see the applicable Merchant's policies for any other terms and conditions that may apply to your purchase of such items.
In connection with the Site, Thing Daemon may provide Fancy members referral credits when members invite their friends to join Fancy or registered members complete a purchase through a referral link from another member (collectively “Referral Credits”). Referral Credits may be awarded to the referrer when her friends join, as well as when her friends make their first purchases.
For products shipped internationally, please note that any manufacturer warranty may not be valid; manufacturer service options may not be available; product manuals, instructions and safety warnings may not be in destination country languages; the products (and accompanying materials) may not be designed in accordance with destination country standards, specifications, and labeling requirements; and the products may not conform to destination country voltage and other electrical standards (requiring use of an adapter or converter if appropriate). You are responsible for assuring that the product can be lawfully imported to the destination country. When ordering from the Site or Applications, the recipient is the importer of record and must comply with all laws and regulations of the destination country.
3. Risk of Loss
All merchandise purchased from Thing Daemon or Merchant is made pursuant to a shipment contract. This means that the risk of loss and title for such items pass to you upon our delivery to the carrier.
4. Product Descriptions
Thing Daemon attempts to be as accurate as possible. However, Thing Daemon does not warrant that product descriptions or other content of any Thing Daemon Service is accurate, complete, reliable, current, or error-free. If a product offered by Thing Daemon itself is not as described, your sole remedy is to return it in unused condition.
Except where noted otherwise, the price or suggested price displayed for products on the Site or Applications represents the full retail price listed on the product itself, suggested by the manufacturer or supplier, or estimated in accordance with standard industry practice; or the estimated retail value for a comparably featured item offered elsewhere. Where an item is offered for sale by one of our Merchants, the list price or suggested price may be provided by the Merchant.
Product specifications, prices and quantity are subject to change. With respect to items sold by Thing Daemon, we cannot confirm the price of an item until you order. Despite our best efforts, a small number of the items in our catalog may be mispriced. If the correct price of an item sold by Thing Daemon is higher than our stated price, we will, at our discretion, either contact you for instructions before shipping or cancel your order and notify you of such cancellation. Other merchants may follow different policies in the event of a mispriced item. From time to time, we may offer coupon codes or rebates as a form of purchase. All purchases paid with a coupon code or rebate are final sale and may not be returned. Terms of coupon codes and rebates are subject to change in the sole discretion of Thing Daemon and may be altered without notice.
We generally do not charge your credit card until after your order has entered the shipping process. Products offered for sale on the Site or Applications may be limited to stock and while supplies last. Product offerings are available for end users only. Not available to distributors, dealers or resellers, as determined by Thing Daemon.
6. Other Businesses
Parties other than Thing Daemon may operate stores, provide services, or sell product lines on the Site or through the Applications. In addition, we provide links to the sites of affiliated companies and certain other businesses. We are not responsible for examining or evaluating, and we do not warrant the offerings of, any of these businesses or individuals or the content of their websites. Thing Daemon does not assume any responsibility or liability for the actions, product, and content of all these and any other third parties. You should carefully review their privacy statements and other conditions of use.
7. Returns, Refunds and Title
Thing Daemon does not take title to returned items until the item arrives at our designated fulfillment center. Customer Merchandise returns will issued credit toward the Site, exclusive of shipping fees. Shipping shall not be credited upon return of Merchandise. At our discretion, a credit may be issued without requiring a return. In this situation, Thing Daemon does not take title to the refunded item. For more information about our returns and refunds, please see our FAQs.
7. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
ALL INFORMATION, CONTENT, MATERIALS, MERCHANDISE, PRODUCTS (INCLUDING SOFTWARE) AND OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THING DAEMON SERVICES ARE PROVIDED BY THING DAEMON ON AN "AS IS" AND "AS AVAILABLE" BASIS, UNLESS OTHERWISE SPECIFIED IN WRITING. THING DAEMON MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE THING DAEMON SERVICES, OR THE INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) OR OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SERVICES, UNLESS OTHERWISE SPECIFIED IN WRITING. YOU EXPRESSLY AGREE THAT YOUR USE OF THE THING DAEMON SERVICES IS AT YOUR SOLE RISK.
TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, THING DAEMON DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THING DAEMON DOES NOT WARRANT THAT MERCHANDISE, INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) OR OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU FOR PURCHASE THROUGH THE SITE OR APPLICATIONS ARE FREE OF HARMFUL COMPONENTS. THING DAEMON WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF ANY THING DAEMON SERVICE, OR FROM ANY MERCHANSIE, INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) OR OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH ANY THING DAEMON SERVICE, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES, UNLESS OTHERWISE SPECIFIED IN WRITING.
CERTAIN STATE LAWS 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 MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
8. Controlling Law and Jurisdiction
These Terms and any action related thereto will be governed by the laws of the State of New York without regard to its conflict of laws provisions.
Any dispute or claim relating in any way to your use of any Thing Daemon Service, or to any products or services sold or distributed by Thing Daemon or through the Site or Applications shall be finally settled by arbitration in New York County, New York, using the English language in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. ("JAMS") then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Streamlined Arbitration Rules and Procedures of JAMS. Judgment upon the award so rendered may be entered in a court having jurisdiction, or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Any arbitration under this Agreement will take place on an individual basis: class arbitrations and class actions are not permitted. YOU UNDERSTAND AND AGREE THAT BY ENTERING INTO THIS AGREEMENT, YOU AND THING DAEMON ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. Notwithstanding the foregoing, each party shall have the right to institute an action at any time in a court of proper jurisdiction for injunctive or other equitable relief.
10. Site Policies, Modification, and Severability
Please review our other policies. These policies also govern your use of the Services. We reserve the right to make changes to our site, policies and Terms at any time. If any of these Terms shall be deemed invalid, void, or for any reason unenforceable, that Term shall be deemed severable and shall not affect the validity and enforceability of any remaining condition.
11. How to contact Fancy
We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Site, Applications and Services. If you have any enquiries about these Terms or any questions, complaints or claims with respect to the Applications, please contact us at email@example.com.
Terms of Service
Fancy's products and services are provided by Thing Daemon, Inc. These Terms of Service ("Terms") govern your access to and use of Fancy's website, products, and services ("Products").Note: These Terms of Service are effective as of September 10, 2014.
Thing Daemon, Inc. ("Thing Daemon", "our", "us" or "we") provides the services offered by Fancy (the "Services") through our website, accessible at www.www.danhowes.com (the "Site"), and our applications for mobile devices (the "Applications").
By accessing or using the Site, Applications or Services, or by posting any Member Content, you acknowledge that you have read, understood and agree to be bound by these Terms. Thing Daemon reserves the right, at its sole discretion, to modify, discontinue or terminate the Site, Applications or Services or to modify these Terms, at any time and without prior notice.
Click on the links below to jump to each section of these terms:
- Key Terms related to Content
- Account Registration
- Application License
- Fancy Content and Member Content License
- Member Content
- General Prohibitions
- Change or Termination
- Limitation of Liability
- Thing Daemon Application from iTunes
- Proprietary Rights Notices
- Controlling Law and Jurisdiction
- Notification Procedures
- Entire Agreement
- How to contact Fancy
1) Key Terms related to Content
- "Content" means text, graphics, images, music, software, audio, video, information or other materials, including the infrastructure used to provide such Content.
- "Fancy Content" means all Content that Thing Daemon makes available through the Site, Applications or Service, including any Content licensed from a third party, but excluding Member Content.
- "Member" means a person that completes our account registration process, as described under "Account Registration" below.
- "Member Content" means all Content that a Member posts, uploads, publishes, submits or transmits to be made available through the Site, Application or Services.
- "Site Content" means Member Content and Fancy Content.
The Site, Applications and Services are intended solely for persons who are 13 or older. Any access to or use of the Site, Applications or Services by anyone under 13 is expressly prohibited. By accessing or using the Site, Applications or Services you represent and warrant that you are 13 or older.
You will not use Fancy if you are located in a country embargoed by the U.S., or are on the U.S. Treasury Department's list of Specially Designated Nationals.
You will not use Fancy if you are a convicted sex offender.
3) Account Registration
In order to access certain features of the Site, Applications and Services and to post any Member Content on the Site, Applications or through the Services, you must register to create an account ("Account"). You may register with Fancy through your account with certain third party social networking services, including Facebook and Twitter (collectively, "SNS"). When you register through your SNS account, you will be asked to login to the Services using your SNS account credentials. By creating an Account via your account with an SNS, you are allowing Fancy to access your SNS account information and you are agreeing to abide by the applicable terms and conditions of your SNS in your use of the Services via such SNS. Members have the option to disable the connection between their Fancy Account and SNS account at any time by accessing the SNS account and disconnecting access to the Services.
You will not share your password, let anyone else access your Account, or do anything else that might jeopardize the security of your Account. You will not transfer your Account to anyone without first getting our written permission.
We reserve the right to suspend or terminate your Account if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete.
The Site, Applications, Services and Site Content are protected by copyright, trademark, and other laws of the United States and foreign countries. To the extent permitted by applicable law, Thing Daemon owns all right, title and interest in and to the Site, Applications, Services and Site Content, including all associated intellectual property rights. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site, Applications, Services or Site Content.
6) Application License
If you decide to use an Application, subject to your compliance with these Terms, Thing Daemon grants you a limited non-exclusive, non-transferable, revocable license, without the right to sublicense, for you to install, access and use such Application on a mobile device that you own or control, solely for your personal and non-commercial purposes. Thing Daemon reserves all rights in the Applications not expressly granted to you by these Terms.
7) Fancy Content and Member Content License
Subject to your compliance with these Terms, Thing Daemon grants you a limited, non-exclusive, non-transferable license, without the right to sublicense, to access, view, download and print any Fancy Content solely for your personal and non-commercial purposes. Subject to your compliance with these Terms, Thing Daemon grants you a limited, non-exclusive, non-transferable license, without the right to sublicense, to access and view any Member Content solely for your personal and internal business purposes. You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Site, Applications, Services, or Site Content except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Thing Daemon or its licensors, except for the licenses and rights expressly granted in these Terms.
8) Member Content
We may permit Members to post, upload, publish, submit or transmit Member Content. Thing Daemon does not claim any ownership rights in any Member Content and nothing in these Terms restricts any rights that you may have to use and exploit any Member Content. By making available any Member Content through the Site, Applications or Services, you grant Thing Daemon a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such Member Content only on, through or by means of the Site, Applications or Services.
You are solely responsible for all Member Content that you make available through the Site, Applications and Services. You represent and warrant that you are the sole owner of all Member Content that you make available through the Site, Applications and Services or you have all rights, licenses, consents and releases necessary to grant to Thing Daemon the rights in such Member Content, as contemplated under these Terms. You also represent and warrant that neither the Member Content nor your posting, uploading, publication, submission or transmittal of the Member Content or Thing Daemon’s use of the Member Content will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
Members may post comments and other content so long as the content is not illegal, obscene, threatening, defamatory, invasive of privacy, infringing of intellectual property rights, or otherwise injurious to third parties or objectionable and does not consist of or contain software viruses, political campaigning, commercial solicitation, chain letters, mass mailings, or any form of "spam." You may not use a false e-mail address, impersonate any person or entity, or otherwise mislead as to the origin of a card or other content. Thing Daemon reserves the right (but not the obligation) to remove or edit such content, but does not regularly review posted content.
9) General Prohibitions
You agree not to do any of the following, either directly or indirectly:
- Post, upload, publish, submit, provide access to or transmit any Content that:
- i. infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy.
- ii. violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability.
- iii. is fraudulent, false, misleading or deceptive.
- iv. is defamatory, obscene, vulgar or offensive, pornographic or contains nudity.
- v. promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group.
- vi. is violent or threatening or promotes violence or actions that are threatening to any other person.
- vii. promotes illegal or harmful activities or substances.
- Modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell or re-sell any Content, software, products, services or other intellectual property obtained from or through this Site, without our express written consent.
- Use, display, mirror or frame the Site or Applications, or any individual element within the Site or Applications, the Fancy name, any Fancy trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without our express written consent.
- Access, tamper with, or use non-public areas of the Site or Applications, our computer systems, or the technical delivery systems of our providers.
- Attempt to probe, scan, or test the vulnerability of any Thing Daemon system or network or breach any security or authentication measures.
- Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Thing Daemon or any of our providers or any other third party (including another user) to protect the Site, Applications or Site Content.
- Attempt to access, monitor, search, copy, download or scrape the Site, Applications, or Site Content, for any purpose, through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like), or through the use of any manual process, other than the tools provided by Thing Daemon within the Site or by means of generally available third party web browsers, without our express written permission.
- Take any action that is harmful to, inconsistent with or disruptive of the Site or Applications, and/or the beneficial use and enjoyment of the Site by its users, including but not limited to any form of unauthorized automated traffic or scripted scraping, or taking any action that may impose, in our discretion, an unreasonable load on our infrastructure.
- Access or use the Site, Applications, or Site Content, to design, develop, test, update, operate, modify, maintain, support, market, advertise, distribute or otherwise make available any website, program, application, service, device, technology, product, or computer program that competes with, or enables or provides access to, use of, operation of or interoperation with, the Site or Applications.
- Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation.
- Use any meta tags or other hidden text or metadata utilizing a Thing Daemon or Fancy trademark, logo URL or product name without Thing Daemon’s express written consent.
- Use the Site, Applications or Site Content for any commercial purpose or the benefit of any third party or in any manner not permitted by these Terms.
- Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Site, Applications, or Site Content to send altered, deceptive or false source-identifying information.
- Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site, Applications or Site Content.
- Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Site or Applications.
- Collect or store any personally identifiable information from the Site or Applications from other users of the Site or Applications without their express permission.
- Impersonate or misrepresent your affiliation with any person or entity.
- Use the Site if you are a convicted sexual offender.
- Violate any applicable law or regulation or.
- Encourage or enable any other individual to do any of the foregoing.
Thing Daemon reserves the right, at any time and without prior notice, to remove or disable access to any Site Content that Thing Daemon, at its sole discretion, considers to be objectionable for any reason, in violation of these Terms or otherwise harmful to the Site, Applications or Services.
11) Change or Termination
We may, without prior notice, change the Site, Applications or Services, stop providing the Site, Applications or Services, or create usage limits for the Site, Applications or Services. We may permanently or temporarily terminate or suspend your access to the Site, Applications or Services without notice or liability, for any reason or for no reason, including if in our sole determination you violate any provision of this Agreement. Upon termination of this Agreement or your access to the Site, Applications or Services for any reason or no reason, you will continue to be bound by the terms of this Agreement which, by their nature, should survive termination, including without limitation ownership provisions, warranty disclaimers, indemnity, and limitations of liability.
THE SITE, APPLICATIONS, SERVICES AND SITE CONTENT ARE PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. THING DAEMON EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. THING DAEMON MAKES NO WARRANTY THAT THE SITE, APPLICATIONS, SERVICES OR SITE CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. THING DAEMON MAKES NO WARRANTY REGARDING THE QUALITY OF ANY PRODUCTS, SERVICE OR SITE CONTENT OBTAINED THROUGH THE SITE, APPLICATIONS OR SERVICES OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY SITE CONTENT OBTAINED THROUGH THE SITE, APPLICATIONS OR SERVICES.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE, APPLICATIONS OR SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, APPLICATIONS OR SERVICES. YOU UNDERSTAND THAT THING DAEMON DOES NOT SCREEN OR INQUIRE INTO THE BACKGROUND OF ANY USERS OF THE SITE, APPLICATIONS OR SERVICES, NOR DOES THING DAEMON MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SITE, APPLICATIONS OR SERVICES. THING DAEMON MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SITE, APPLICATIONS, OR SERVICES OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE SITE, APPLICATIONS OR SERVICES.
We take no responsibility and assume no liability for any Member Content posted or sent over the Site, Applications or Service. You shall be solely responsible for your Member Content and the consequences of posting or publishing it, and you agree that we are only acting as a passive conduit for your online distribution and publication of your Member Content. You understand and agree that you may be exposed to Member Content that is inaccurate, objectionable, or otherwise unsuited to your purpose, and you agree that we shall not be liable for any damages you incur or allege to incur as a result of Member Content.
You agree to defend, indemnify, and hold Thing Daemon, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with:
- i. Your access to or use of the Site, Applications, Services or Site Content,
- ii. Your Member Content
- iii. Your violation of these Terms.
14) Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SITE, APPLICATIONS, SERVICES AND SITE CONTENT REMAINS WITH YOU. NEITHER THING DAEMON NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SITE, APPLICATIONS, SERVICES OR CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SITE, APPLICATIONS, SERVICES, SITE CONTENT , OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SITE, APPLICATIONS OR SERVICES OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, APPLICATIONS OR SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THING DAEMON HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL THING DAEMON’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SITE, APPLICATIONS, SERVICES OR SITE CONTENT EXCEED ONE HUNDRED DOLLARS ($100). THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN THING DAEMON AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
The Service is controlled and operated from its facilities in the United States. We make no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You represent and warrant you are not located in a country embargoed by the United States or that has been designated by the United States government as a “terrorist-supporting” country, and that you are not a foreign person or entity blocked or denied by the United States government or otherwise listed on any United States government list of prohibited or restricted parties. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the United States.
15) Thing Daemon Application from iTunes
The following applies to any Applications accessed through or downloaded from the Apple iTunes Store ("iTunes Sourced App"):
You acknowledge and agree that:
- i. These Terms are concluded between you and Thing Daemon only, and not Apple, and
- ii. Thing Daemon, not Apple, is solely responsible for the iTunes Store Sourced App and content thereof. Your use of the iTunes Store Sourced App must comply with the App Store Terms of Service.
You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support Application with respect to the iTunes Store Sourced App.
In the event of any failure of the iTunes Store Sourced App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if applicable, for the iTunes Store Sourced App to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the iTunes Store Sourced App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Thing Daemon.
You and Thing Daemon acknowledge that, as between Thing Daemon and Apple, Apple is not responsible for addressing any claims by you or any third party relating to the iTunes Store Sourced App or your possession and use of the iTunes Store Sourced App, including, but not limited to:
- i. Product liability claims"
- ii. Any claim that the iTunes Store Sourced App fails to conform to any applicable legal or regulatory requirement or.
- iii. Claims arising under consumer protection or similar legislation.
You and Thing Daemon acknowledge that, in the event of any third party claim that the iTunes Store Sourced App or your possession and use of that iTunes Store Sourced App infringes that third party’s intellectual property rights, as between Thing Daemon and Apple, Thing Daemon, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms.
You and Thing Daemon acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms as related to your license of the iTunes Store Sourced App, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the iTunes Store Sourced App against you as a third party beneficiary thereof.
Without limiting any other terms of these Terms, you must comply with all applicable third party terms of agreement when using the iTunes Store Sourced App.
16) Proprietary Rights Notices
All trademarks, service marks, logos, trade names and any other proprietary designations of Thing Daemon used herein are trademarks or registered trademarks of Thing Daemon. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
17) Controlling Law and Jurisdiction
These Terms and any action related thereto will be governed by the laws of the State of New York without regard to its conflict of laws provisions.
Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by arbitration in New York County, New York, using the English language in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. ("JAMS") then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Streamlined Arbitration Rules and Procedures of JAMS. Judgment upon the award so rendered may be entered in a court having jurisdiction, or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Any arbitration under this Agreement will take place on an individual basis: class arbitrations and class actions are not permitted. YOU UNDERSTAND AND AGREE THAT BY ENTERING INTO THIS AGREEMENT, YOU AND THING DAEMON ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. Notwithstanding the foregoing, each party shall have the right to institute an action at any time in a court of proper jurisdiction for injunctive or other equitable relief.
19) Notification Procedures
We may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, as determined by us in our sole discretion. We reserve the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in this Agreement. We are not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us.
20) Entire Agreement
These Terms constitute the entire and exclusive understanding and agreement between Thing Daemon and you regarding the Site, Applications, Services, Site Content, and Member Content and these Terms supersede and replace any and all prior oral or written understandings or agreements between Thing Daemon and you regarding the Site, Applications, Services and Content.
You may not assign or transfer these Terms, by operation of law or otherwise, without Thing Daemon’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Thing Daemon may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by Thing Daemon:
- i. via email (in each case to the address that you provide)
- ii. by posting to the Site or via the Application. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
The failure of Thing Daemon to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Thing Daemon. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
24) How to contact Fancy
We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Site, Applications and Services. If you have any enquiries about these Terms or any questions, complaints or claims with respect to the Applications, please contact us at firstname.lastname@example.org.
Terms of Merchant Sale
Fancy's products and services are provided by Thing Daemon, Inc. These Merchant Terms and Conditions of Sale ("Merchant Agreement") govern your access to and use of Fancy's website, products, and services ("Products") for the sale of items (“Merchandise”) directly through the Site or Applications. This Merchant Agreement is between you, the merchant, together with any company, affiliate or other business entity you are representing (collectively, the “Seller”, “you” or “your”) and Thing Daemon.Note: These Terms of Service are effective as of October 19, 2017.
Thing Daemon, Inc. ("Thing Daemon", "our", "us" or "we") provides the services offered by Fancy (the "Services") through our website, accessible at www.www.danhowes.com, and other websites that we power or manage (collectively, the "Site"). We also provide the Services through our applications for mobile devices (the "Applications"). An agreement by a Seller to sell or list Merchandise on www.www.danhowes.com includes permission to list that Merchandise on any other Site that we power or manage.
Any Seller who wants to access the Site or Applications for use of the Services to sell Merchandise must accept the terms and conditions of this Merchant Agreement without change. BY REGISTERING FOR AND USING THE SERVICES, YOU AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS MERCHANT AGREEMENT, AND ALL POLICIES AND GUIDELINES OF THE SITE THAT ARE INCORPORATED BY REFERENCE.
Thing Daemon reserves the right to change any of the terms and conditions contained in this Merchant Agreement or any policies or guidelines governing the Site, Applications or Services, at any time and in its sole discretion. Any changes will be effective upon posting of the revisions on the Site. You are responsible for reviewing the notice and any applicable changes. Changes to referenced policies and guidelines may be posted without notice to you. YOUR CONTINUED USE OF THIS SITE AND THE SERVICES FOLLOWING THING DAEMON’S POSTING OF ANY CHANGES WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGES OR MODIFICATIONS. IF YOU DO NOT AGREE TO ANY CHANGES TO THIS MERCHANT AGREEMENT, DO NOT CONTINUE TO USE THE SERVICES, THE SITE OR APPLICATIONS.
Use of the Site, Applications and Services is limited to parties that lawfully can enter into and form contracts under applicable law. For example, minors are not allowed to use the Services. To register, you must provide your real name, address, phone number, e-mail address, tax identification number and valid banking information. You represent and warrant that: (a) if you are a business, you are duly organized, validly existing and in good standing under the laws of the country in which your business is registered and that you are registering for the Services within such country; and (b) you have all requisite right, power and authority to enter into this Merchant Agreement and perform your obligations hereunder. If for any reason, Thing Daemon, in its discretion, believes such information to be incorrect, it reserves the right, without provision of any notice to the Seller, to suspend or revoke any and all licenses under this Seller Agreement or to refuse to provide the Services of the Site to the Seller under this Seller Agreement.
2) Sellers' Listing Fees and Payment Terms
All fees for use of the Site and Applications are listed as a percentage of final sale price unless stated otherwise and are incorporated herein by reference. All fees and payment terms may vary in the future. The fee and payment terms in effect on the date of sale of the Merchandise shall govern the transaction. You should check the fees and terms each time you participate. All fees are deducted from the final transfer of funds to the Seller. By listing an item for sale on the Site, you authorize Thing Daemon to deduct any fees from amounts due.
3) Applicable Policies and Guidelines
4) Thing Daemon’s Role
Thing Daemon provides a platform for Sellers and buyers ("Buyers") to complete transactions. Thing Daemon is not involved in the actual transaction between Sellers and Buyers and is not the agent of Sellers except for the limited purpose of processing payments and has no agency authority for any other purpose, and Thing Daemon is not the agent of Buyers for any purpose. As a Seller, you may list any item on the Site unless it is a prohibited item as defined in the Site’s Terms of Service, this Merchant Agreement or otherwise prohibited by law. Without limitation, you may not list any item or link or post any related material that (a) infringes any third-party intellectual property rights (including copyright, trademark, patent, and trade secrets) or other proprietary rights (including rights of publicity or privacy); (b) constitutes libel or slander or is otherwise defamatory; or (c) is counterfeited, illegal, stolen, or fraudulent. It is up to the Seller to accurately describe the item for sale. As a Seller, you use the Site and the Services at your own risk.
As the Seller, you acknowledge that, by only providing you with the ability to publish, sell and distribute your own or third party products, services or content, the Services act only as passive conduits for the distribution and/or publishing of such products. Thing Daemon has no obligation to you or any third party, and undertakes no responsibility, to review your sale, the products listed therein or any other content to determine whether any such product, service or content may incur liability to third parties. Notwithstanding anything to the contrary herein, if Thing Daemon believes in its discretion that your sale or any products, services, content or other materials in the listing or on Thing Daemon’s servers may create liability for Thing Daemon or harm other users of the Services, then you agree that Thing Daemon may take any actions with respect to the content or materials or listing that Thing Daemon believes are prudent or necessary to minimize or eliminate our potential liability or to protect other users of our Services.
5) Merchant Responsibilities
Seller is solely responsible for creating, managing, editing, reviewing, deleting and otherwise controlling the content of the sale posted to the Site, including all descriptions of Merchandise and disclosure and warnings of product materials that are required to be disclosed by any applicable domestic and international laws, statutes, ordinances and/or regulations where the Merchandise is offered for sale. If you have reason to believe that your sale is in violation of any law or the rights of any third party, you will promptly send notices to us using the functionality for contacting Thing Daemon as provided on the Site. Notwithstanding anything contained in the foregoing, if you breach any of the terms of this Merchant Agreement, Thing Daemon is entitled to suspend or terminate your sale(s) and/or any access to information or data related to your merchant account.
6) Service License
Seller acknowledges and agrees that, as between you and Thing Daemon, all Services and Applications provided by Thing Daemon, and all worldwide intellectual property rights therein, are the exclusive property of Thing Daemon. All rights not expressly granted to you in this Agreement are reserved by Thing Daemon.
Seller acknowledges that the Services and Applications and their structure, organization, and source code constitute valuable intellectual property of Thing Daemon. Accordingly, you will not, either directly or through a third party, (a) modify, adapt, alter, translate, or create derivative works from the Site, Applications or Services; or (b) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Site, Applications or Services.
7) Merchant Registration
IN ORDER TO SELL MERCHANDISE ON THE SITE, YOU MUST REGISTER YOUR MERCHANT INFORMATION ON THE SITE. You must provide us true and accurate information when registering and must maintain and update that information as applicable. Seller will not impersonate any person or use a name he or she is not legally authorized to use. Seller authorizes us to verify his or her information (including any updated information), to obtain credit reports about Seller in order to approve Seller for use of the Site and to obtain an initial credit authorization from Seller's bank account at time of registration.
- a. Thing Daemon and any third party agents designed by Thing Daemon facilitate the purchase of Merchandise listed on the Site. A Buyer's authorized credit card or other form of payment ("Payment Transaction") is credited to a registered Seller's account, and funds are periodically transferred to the Seller's designated checking account ("Seller's Account"). The Buyer may authorize a Payment Transaction with any major credit card accepted by Thing Daemon or a coupon code, referral credit or gift card(s) issued by Thing Daemon or any combination thereof. Receipt of Payment Transaction funds by us on a Seller's behalf will be deemed receipt of funds by Seller and will satisfy the obligations owed to Seller by the Buyer in the amount of the applicable Payment Transaction. Upon completion of a Payment Transaction a receipt indicating that payment has been made will be furnished to the Buyer. Our obligation to remit funds collected by us on your behalf will be limited to funds that we have actually received and that are not subject to chargeback or reversal. Thing Daemon and any third party agents designed by Thing Daemon help facilitate Payment Transactions and are not the purchaser of the Seller's goods. Seller will resolve any dispute directly with Buyer or with the assistance of Thing Daemon.
- b. Payment Transactions can be credited only to bank checking accounts in the United States or any other country shown as supported by our standard functionality and enabled for your account (which functionality may be modified or discontinued by us at any time without notice). Sellers waive any rights with respect to payment when shipping to an address other than that provided by the Buyer..
- c. The Site is generally available seven (7) days per week, twenty-four (24) hours per day, except for scheduled downtime due to system maintenance. We can initiate Payment Transaction credits to Seller's Account only on a Business Day when the automated clearinghouses are open for business. For purposes of this Merchant Agreement, a Business Day is a Monday through Friday, excluding United States federal banking holidays. We will inform you of each completed transaction using our standard procedures..
- d. You may provide refunds or adjustments to Buyers for their purchases through the Site using functionality we enable for your account. This functionality may be modified or discontinued by us at any time without notice and is subject the terms of this Merchant Agreement. You only use functionality provided by the Site to create invoices for sales processed through the Site or Applications..
- e. We will initiate a transfer to the Seller on a rolling basis for the total amount of Payment Transactions received from Buyer's authorized credit card transactions, less any refunds, adjustments, or other amounts paid to Buyers in connection with purchases as well as applicable Seller fees. In the event that the Buyer submits payment, or partial payment, to the Seller via Thing Daemon issued gift card, coupon code or user earned referral credit, Thing Daemon shall be responsible for transferring the value of such portion of the Buyer’s transaction to the Seller upon deposit of payment..
- f. Transfers to the Seller's Account will generally be credited within five Business Days of the date we initiate the transfer..
- g. As a security measure, we may, but are not required to, impose transaction limits on some or all Buyers and Sellers relating to the value of any transaction, disbursement, or adjustment, the cumulative value of all transactions, disbursements, or adjustments during a period of time, or the number of transactions per day or other period of time. We will not be liable to Seller: (i) if we do not proceed with a transaction, disbursement, or adjustment that would exceed any limit established by us for a security reason, or (ii) if we permit a Buyer to withdraw from a transaction because the Site or Applications are unavailable following the commencement of a transaction..
- h. If we reasonably conclude based on information available to us that Seller's actions and/or performance in connection with the Services may result in Buyer disputes, chargebacks or other claims, then we may, in our sole discretion, delay initiating any remittances and withhold any payments to be made or that are otherwise due to you in connection with the Services or this Merchant Agreement for the shorter of: (a) a period of 90 days following the initial date of suspension; or (b) completion of any investigation(s) regarding any Seller actions and/or performance in connection with this Merchant Agreement. We will not be liable to Seller if we act in accordance with the provisions of this Section..
- i. All notices will be sent by e-mail or will be posted on the Site. We will send notices to Seller at the e-mail address maintained in Thing Daemon’s records for Seller. Seller will monitor his or her e-mail messages frequently to ensure awareness of any notices sent by us. Seller will send notices to us using the functionality for contacting Thing Daemon as provided on the Site..
- j. The fees for sales processed via the Site or Applications are deducted from any final payments transferred to Sellers. We may, in our sole discretion, waive, reduce, or reverse charges or fees for a specific transaction..
- k. We may refuse service to anyone for any reason. We may earn interest or other compensation from the balances in our bank accounts that result from the timing difference between our being paid by Buyer and our bank account being debited to pay Payment Transaction credits to Seller. Seller will bear all risk of credit card fraud fraud (i.e. fraudulent purchase arising from the theft and unauthorized use of a third party's credit card information) or loss in connection with Payment Transactions. We will not bear the risk of credit card fraud in connection with any of Seller's products that are not fulfilled strictly in accordance with the order information and shipping information that we provide you. We reserve the right to seek reimbursement from Seller if we, in our sole discretion, decide to reimburse Buyer, provide a refund to Buyer if Seller cannot promptly deliver the goods, discover erroneous or duplicate transactions, or receive a chargeback from Buyer's credit card issuer for the amount of Buyer's purchase from Seller. We may obtain reimbursement of any amounts owed by Seller to Thing Daemon by deducting from future payments owed to Seller, reversing any credits to Seller's Account, or seeking such reimbursement from Seller by any other lawful means. You authorize us to use any or all of the foregoing methods to seek reimbursement, including the debiting of your checking account..
- l. Seller may terminate his or her participation in the Site or Applications at any time by informing us using the standard method then-currently provided by Thing Daemon for such termination, and we may terminate Seller's participation in the Site or Applications at any time without notice to Seller. Upon termination, Seller must pay us whatever fees were incurred prior to the effective date of the termination. Also upon termination, any pending transactions will be canceled..
- m. We reserve the right, upon termination,to set off against any payments to be made to Seller, an amount determined by us to be adequate to cover chargebacks, refunds, adjustments or other amounts paid to Buyers in connection with purchases from Seller's Account for a prospective three-month period. At the end of such three-month period following termination, we will disburse to Seller any amount not used to offset chargebacks, refunds, adjustments, or such other amounts paid to Buyers, or seek reimbursement from Seller via any of the means authorized in Section 5.k. above for any additional amount required to offset chargebacks, refunds, adjustments, or other amounts paid to Buyers, as applicable.
8) Reservation of Rights
Thing Daemon retains the right to determine the content, appearance, design, functionality and all other aspects of the Site and the Services (including the right to re-design, modify, remove and alter the content, appearance, design, functionality, and other aspects of the Site, Application and the Service and any element, aspect, portion or feature thereof, from time to time), and to delay or suspend listing of, or to refuse to list, or to de-list, or to require Seller not to list, any or all products in our sole discretion. We may in our sole discretion withhold for investigation, refuse to process, restrict shipping destinations for, stop and/or cancel any of your transactions. You will stop and/or cancel orders of your products if we ask you to do so (provided that if you have transferred your products to the applicable carrier or shipper, you will use commercially reasonable efforts to stop and/or cancel delivery by such carrier or shipper). You will refund any customer (in accordance with this Merchant Agreement) that has been charged for an order that we stop or cancel.
9) Employee Participation
Employees of Thing Daemon and its affiliates are permitted to participate in their personal capacity in the transactions conducted through the Site and Applications (unless they have confidential information about a particular item). Employees of Thing Daemon and its affiliates, when participating in any transaction in their personal capacity, are subject to this Merchant Agreement and the same procedures and guidelines contained in Thing Daemon’s Terms of Service as any Buyer or Seller on this Site.
10) Seller Transactions
- a. Fees and Pricing. For each purchase completed through the Site or Applications, Thing Daemon collects the amount paid by the Buyer, including the item price, shipping or other charges and any applicable taxes. We deduct, as a referral fee, a percentage of the item price excluding shipping and any taxes collected through Thing Daemon or its tax collection services or agents. Thing Daemon shipping rates apply to all items sold (see table of shipping rates and credits at the time of listing).
- b. Pricing. You may list items at any price you feel is fair. We recommend that the item price and total price of an item you list on the Site and Applications are at or below the item price and total price at which you offer and/or sell the item via any other online sales channel. The item price is the amount payable by a Buyer, excluding shipping and handling, as it appears when you list an item.
- c. Total Price. The total price is the amount payable by a Buyer as well as all terms of offer/sale. This includes discounts, rebates, coupon codes, or special sales/promotions you offer/make with respect to purchases.
- d. Sale Price. The Seller is obligated to sell the goods at the listed price to Buyers who meet the Seller's terms. By listing an item on the Site and Applications, you represent and warrant to prospective Buyers that you have the right and ability to sell, and that the listing is accurate, current, and complete and is not misleading or otherwise deceptive.
- e. Order Fulfillment. The Seller is solely responsible processing and fulfilling customer orders generated through the Seller’s listing, and handling any customer inquiries, complaints, or disputes arising from orders or sales generated through your listing. You agree that Thing Daemon has no obligation to back-up any data related to your listing and you should independently take appropriate steps to maintain such data in accordance with your needs and requirements.
- f. Purchase Price. Seller will determine the purchase price for each item he or she lists on the Site, subject to Thing Daemon’s standard functionality for listing the purchase price, provided that the Seller must abide by any procedures and guidelines Thing Daemon may indicate with respect to pricing.
- g. Other Services. Thing Daemon may make certain order fulfillment services, such as payment verification and processing, available through third party vendors (“Vendor(s)”), which may be pursuant to a separate agreement between you and the applicable Vendor. You understand and agree that Thing Daemon is not responsible for the availability or provision of such services or for such Vendor’s non-performance or breaches. Thing Daemon does not guarantee the availability, security or delivery of such services or that you will be eligible for any Vendor’s services.
11) Seller Obligation
By entering into this Merchant Agreement and posting a listing for sale, Seller agrees to complete the transaction as described by this Merchant Agreement. You acknowledge that by not fulfilling these obligations, your action or inaction may be legally actionable.
You covenant that any products, services, or content published and listed shall not violate Thing Daemon’s Terms of Service as it may be amended from time to time, or any of the following:
- a. Be false, inaccurate or misleading;
- b. Be fraudulent or involve the sale of counterfeit, stolen or infringing items;
- c. Infringe or misappropriate any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy;
- d. Violate any law, statute, ordinance or regulation (including those governing privacy, publicity, export control, consumer protection, intellectual property, gambling, unfair competition, antidiscrimination, criminal activities or false advertising);
- e. Be defamatory, libelous, offensive, unlawfully threatening or harassing, or advocating, promoting or providing assistance involving violence, significant risk of death or injury, or other unlawful activities;
- f. Be obscene or contain adult items, nudity or child pornography;
- g. Contain any viruses, Trojan horses, worms, time bombs, spiders, or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information;
- h. Involve the transmission of any unsolicited commercial or bulk email (known as "spamming") and you shall not use your account as a return address for unsolicited commercial mail originating elsewhere or participate in any activities related to so-called pyramid, ponzi schemes or the like;
- i. Involve the collection, sale or transmission of, or attempt to collect personally identifiable information of any person or entity, except with the express written consent of that person or entity and of which consent you shall maintain a written record for a period of three (3) years after any termination of this Merchant Agreement;
- j. Be harmful or potentially harmful to Thing Daemon’s Server structure as determined Thing Daemon’s discretion, including without limitation overloading the Thing Daemon’s technical infrastructure;
- k. Create liability for Thing Daemon and its subcontractors or expose them to undue risk or otherwise engage in activities that Thing Daemon , in its sole discretion, determines to be harmful to Thing Daemon, its affiliates, operations, reputation, or goodwill; and
- l. Link directly or indirectly to or include descriptions of goods or services that violate any applicable law, statute, ordinance or regulation, or that violate this Merchant Agreement; and Seller agrees not to publish, offer for sale, sell or otherwise distribute any of the following items on, through or connected with your sale:
- a. Blood, bodily fluids or body parts;
- b. Burglary tools;
- c. Counterfeit items;
- d. Illegal drugs and drug paraphernalia;
- e. Fireworks, destructive devices and explosives;
- f. Identity documents, government documents, personal financial records or personal information (in any form, including mailing lists);
- g. Lottery tickets, sweepstakes entries or slot machines;
- h. Obscene material or child pornography;
- i. Offensive material or hate speech;
- j. Police badges or uniforms;
- k. Prescription drugs or devices;
- l. Chemicals;
- m. Pets;
- n. Recalled items;
- o. Prohibited services;
- p. Stocks or other securities;
- q. Stolen property; or
- r. Any product or service that is illegal or marketed or sold in such a way as to create liability for Thing Daemon.
- a. Digital files that you do not own or have all necessary rights or license to store, display, perform, copy and distribute;
- b. Event tickets;
- c. Food items;
- d. Tobacco products;
- e. Alcoholic products;
- f. Hazardous, restricted or perishable items;
- g. Pesticides;
- h. Animals, animal products, plants and seeds;
- i. Charitable services or goods and fundraising;
- j. Artifacts;
- k. Currency and stamps;
- l. Used items, such as clothing or, bedding and cosmetics;
- m. Adult items or pornography;
- n. Content or material that is infringing or otherwise violates the law, including: music; movies; e-books; games; videos; photographs and software; or
- o. Weapons and other related items, including, without limitation, firearms, firearm parts and magazines, ammunition, BB and pellet guns, tear gas, stun guns, switchblade knives and martial arts weapons.
12) Seller Taxes
You agree that it is the Seller's responsibility to determine whether Seller Taxes apply to the transactions and to collect, report, and remit the correct Seller Taxes to the appropriate tax authority, and that Thing Daemon is not obligated to determine whether Seller Taxes apply and is not responsible to collect, report, or remit any sales, use, or similar taxes arising from any transaction, except to the extent Thing Daemon expressly agrees to collect taxes or other transaction-based charges in connection with a collection service made available by Thing Daemon and used by Seller. "Seller Taxes" means any and all sales, goods and services, use, excise, import, export, value added, consumption and other taxes and duties assessed, incurred or required to be collected or paid for any reason in connection with any advertisement, offer or sale of products by you on or through the Site, or otherwise in connection with any action, inaction or omission of you or any of affiliate of yours, or any of your or their respective employees, agents, contractors or representatives.
13) Returns and Refunds
You will accept and process returns, refunds and adjustments in accordance with this Merchant Agreement and the Thing Daemon return policies published on the Site and Applications at the time of the applicable order, and we may inform customers that these policies apply to your products. You will determine and calculate the amount of all refunds and adjustments (including any taxes, shipping and handling or other charges) or other amounts to be paid by you to Buyers in connection with purchases, using functionality we enable for your account, and will route all such payments through Thing Daemon and any third party agents designed by Thing Daemon. We will provide any such payments to the Buyers (which may be in the same payment form originally used to purchase your product), and you will reimburse us for all amounts so paid. We may offset such payments against any amounts to be remitted or paid by Thing Daemon to Seller under this Agreement or seek reimbursement from Seller via any of the means authorized in Section 7.k. You will promptly provide refunds and adjustments that you are obligated to provide under the applicable Thing Daemon return policies and as required by law, and in no case later than thirty (30) days after the obligation arises.
14) Password Security
Your password may be used only to access the Site and Application, use the Services, electronically sign your transactions, and review your completed transactions. You are solely responsible for maintaining the security of your password. You may not disclose your password to any third party (other than third parties authorized by you to use your account) and are solely responsible for any use of or action taken under your password on this Site. If your password is compromised, you must change your password.
15) Illegal Activity
- a. Compliance with Laws; Fraud. The Site and Services may be used only for lawful purposes and in a lawful manner. You agree to comply with all applicable laws, statutes, and regulations. You may not register under a false name, business entity, tax identification number or use an invalid or unauthorized bank account. You may not impersonate any participant or use another participant's password(s). Such fraudulent conduct is a violation of federal and state laws. Fraudulent conduct may be reported to law enforcement, and Thing Daemon will cooperate to ensure that violators are prosecuted to the fullest extent of the law.
- b. Investigation Thing Daemon has the right, but not the obligation, to monitor any activity and content associated with the Site and Applications and investigate as we deem appropriate. Thing Daemon also may investigate any reported violation of its policies or complaints and take any action that it deems appropriate. Such action may include, but is not limited to, issuing warnings, suspension or termination of service, denying access, and/or removal of any materials on the Site or Applications, including listings. Thing Daemon reserves the right and has absolute discretion to remove, screen, or edit any content that violates these provisions or is otherwise objectionable.
- c. Disclosure of Information. Thing Daemon also reserves the right to report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other third parties. In order to cooperate with governmental requests, to protect Thing Daemon’s systems and customers, or to ensure the integrity and operation of Thing Daemon’s business and systems, Thing Daemon may access and disclose any information it considers necessary or appropriate, including but not limited to user contact details, IP addressing and traffic information, usage history, and posted content.
16) Privacy; Use of Thing Daemon Transaction Information.
- b. Confidentiality. You will not, and will cause your affiliates not to, directly or indirectly disclose, convey or use any order or Buyer information or other data or information acquired by you or your affiliates from Thing Daemon or its affiliates (or otherwise) as a result of this Merchant Agreement, the transactions contemplated hereby or the parties' performance hereunder, except you may disclose this information as necessary for you to perform your obligations under this Merchant Agreement, provided that you ensure that every recipient uses the information only for that purpose and complies with the restrictions applicable to you related to that information.
17) No Warranties
THE SITE AND THE SERVICES ARE PROVIDED ON AN "AS IS" BASIS. THING DAEMON MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION:
- a. THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT;
- b. THAT THE SITE OR THE SERVICES WILL MEET YOUR REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, OR OPERATE WITHOUT ERROR;
- c. THAT YOU WILL SELL ANY MERCHANDISE THROUGH THE SITE OR APPLICATIONS OR THAT BUYERS WILL PERFORM AS PROMISED;
- d. ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE; AND
- e. ANY OBLIGATION, LIABILITY, RIGHT, CLAIM, OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF THING DAEMON.
TO THE FULL EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THING DAEMON DISCLAIMS ANY AND ALL SUCH WARRANTIES.
18) General Release
BECAUSE THING DAEMON IS NOT INVOLVED IN TRANSACTIONS BETWEEN BUYERS AND SELLERS OR OTHER PARTICIPANT OR MERCHANT DEALINGS, IF A DISPUTE ARISES BETWEEN ONE OR MORE PARTIES, YOU RELEASE THING DAEMON (AND ITS AGENTS AND EMPLOYEES) FROM CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
19) Indemnity/Limitation of Liability.
- a. Indemnity and Defense. You will defend, indemnify and hold harmless Thing Daemon and its affiliates (and their respective employees, directors, officers agents and representatives) from and against any and all claims, costs, losses, damages, judgments, penalties, interest and expenses (including reasonable attorneys' fees) arising out of any Claim that arises out of or relates to: (i) any actual or alleged breach of your representations, warranties, or obligations set forth in this Merchant Agreement; or (ii) your own website or other sales channels, the products you sell, any content you provide, the advertisement, offer, sale or return of any products you sell, any actual or alleged infringement of any intellectual property or proprietary rights by any products you sell or content you provide, or Seller Taxes or the collection, payment or failure to collect or pay Seller Taxes. For purposes hereof: "Claim" means any claim, action, audit, investigation, inquiry or other proceeding instituted by a person or entity.
- b. Limitation of Liability. THING DAEMON WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS MERCHANT AGREEMENT, THE SITE, THE SERVICES, THE INABILITY TO USE THE SERVICES, OR THOSE RESULTING FROM ANY GOODS OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE SERVICES.
20) Applicable Law
The laws of the state of New York govern this Merchant Agreement and all of its terms and conditions, without giving effect to any principles of conflicts of laws or the Convention on Contracts for the International Sale of Goods. Any dispute with Thing Daemon or its affiliates relating in any way to these terms and conditions or your use of the Services in which the aggregate total claim for relief sought on behalf of one or more parties exceeds $5,000 shall be adjudicated in any state or federal court in New York County, New York, and you consent to exclusive jurisdiction and venue in such courts.
You shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of the Services, and your listing, sale and fulfillment of products through the Site or Applications.
Because Thing Daemon is not the agent of Seller except for the limited purpose of processing payments and is not the agent of Buyer for any purpose, Thing Daemon will not act as either party's agent in connection with resolving any disputes between participants related to or arising out of any transaction. Thing Daemon urges Sellers and Buyers to cooperate with each other to resolve such disputes.
22) Your Grant
By entering into this Merchant Agreement and listing an item, you grant us a royalty-free, non-exclusive, worldwide, perpetual, irrevocable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all of the content you submit to Thing Daemon, the Site, Applications and its affiliates, and to sublicense the foregoing rights to our affiliates and operators of any website or other online or mobile point of presence (other than the Site or Applications) through which the Site, Applications and/or products or services available thereon are syndicated, offered, merchandised, advertised or described; provided, however, that we will not alter any of your trademarks (i.e., trademarks of yours that you provide to us in non-text form for branding purposes that are separate from and not embedded or otherwise incorporated in any product specific information or materials) from the form provided by you (except to re-size trademarks to the extent necessary for presentation, so long as the relative proportions of such trademarks remain the same) and will comply with your removal requests as to specific uses of your trademarks (provided you are unable to do so using standard functionality made available to you via the Site, Applications or Services); provided further, however, that nothing in this Merchant Agreement will prevent or impair our right to use without your consent the content and any other materials provided by you, to the extent that such use is allowable without a license from you or your affiliates under applicable law (e.g., fair use under copyright law, referential use under trademark law, or valid license from a third party). You represent and warrant that you own or otherwise control all of the rights to the content you submit to Thing Daemon, the Site, Applications and its affiliates, and that the use of such materials by Thing Daemon, the Site, Applications and its affiliates will not infringe upon or violate the rights of any third party.
Thing Daemon, in its sole discretion, may suspend or terminate this Merchant Agreement, your access to the Site, Applications or the Services, or any current sales immediately without notice for any reason.
24) Rights Upon Termination
In the event of expiration or termination for any reason, any rights granted under this Merchant Agreement shall automatically and immediately cease and you shall stop using the Site, Services and Applications. Termination shall not affect the rights of Thing Daemon to recover from You losses, damages, indemnity, defense costs, expert costs, collection costs and/or attorney’s fees or expert witnesses’ cost or other costs of any kind under this Merchant Agreement. The provisions of this Merchant Agreement that by their nature are ongoing, or as explicitly provided, will survive termination or expiration of this Merchant Agreement for any reason.
25) General Provisions
- b. No Agency; Third-Party Beneficiary. You hereby appoint Thing Daemon or any third party selected by us as your payment processing agent for the limited purpose of receiving Payment Transaction funds on your behalf. Except as provided in the preceding sentence, Thing Daemon is not the agent, fiduciary, trustee, or other representative of you. Nothing expressed or mentioned in or implied from this Merchant Agreement is intended or shall be construed to give to any person other than the parties hereto any legal or equitable right, remedy, or claim under or in respect to this Merchant Agreement. This Merchant Agreement and all of the representations, warranties, covenants, conditions, and provisions hereof are intended to be and are for the sole and exclusive benefit of Thing Daemon, you, and relying Buyers or Sellers.
- c. Severability. If any provision of this Merchant Agreement shall be deemed unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these terms and conditions and shall not affect the validity and enforceability of any remaining provisions.
- d. No Waiver. Thing Daemon will not be considered to have waived any of our rights or remedies described in this Merchant Agreement unless the waiver is in writing and signed by us. No delay or omission by us in exercising our rights or remedies will impair or be construed as a waiver. Any single or partial exercise of a right or remedy will not preclude further exercise of any other right or remedy. Thing Daemon’s failure to enforce the strict performance of any provision of this Merchant Agreement will not constitute a waiver of Thing Daemon’s right to subsequently enforce such provision or any other provisions of this Merchant Agreement.
26) How to Contact Fancy
We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Site, Applications and Services. If you have any questions, complaints or claims, please contact us at email@example.com.
Thank you for using Fancy! We wrote this policy to help you understand what information we collect, the purposes for which we collect it, how we use it, and what choices you have regarding your information.
As used in this policy, the terms "using" and "processing" information include using cookies on a computer, subjecting the information to statistical or other analysis and using or handling information in any way, including, but not limited to collecting, storing, evaluating, modifying, deleting, using, combining, disclosing and transferring information within our organization or among our affiliates within the United States or internationally.
Controllers of Personal Information: Any personal information provided to us or gathered by us is controlled by us, namely, Thing Daemon, Inc., Email: legal@fancy.
Click on the links below to jump to each section of these terms:
- Personally Identifiable Information We Collect and The Purposes For Which We Use It
- Information Sharing and Disclosure
- Changing or Deleting Your Information
- International Transfer
- Links to Other Sites
- Our Policy Towards Children
- How to Contact Fancy
1) Personally Identifiable Information We Collect and The Purposes For Which We Use It
When you register with us through the Site or Applications to become a Member of Fancy, we may ask you for personally identifiable information. This refers to information about you that can be used to contact or identify you ("Personal Information"). Personal Information includes, but is not limited to, your name, username, phone number, credit card and other billing information, email address, shipping address, and your friends’ email addresses (which we will only use in order to invite them to use the Service), and in some cases your Internet Protocol address if it is combined with other information. We may also collect information you supply to us regarding your personal preferences and interests. You can choose not to provide us with any or all of the information we specify or request, but then you may not be able to register with us or to take advantage of some or all of our features provided through the Services. You can register to join Fancy via the Site or Applications or by logging into your account with Google or certain third party social networking sites ("SNS") (including Facebook and Twitter) via our Site. If you decide to create your Account by logging into Google or a SNS via the Site, we may extract the Personal Information you have provided to Google or the SNS (such as your "real" name, email address and other information you make publicly available via Google or the SNS) from the account you have with Google or such SNS and use that information to create your Account; the information we extract may depend on the privacy settings you have with Google or the SNS.
- We use your Personal Information mainly to provide the Service and administer your inquiries. We will create your Account for your use of the Site and Applications based upon the Personal Information you provide and you will become a Member of Fancy.
- We also collect the other information that you provide as part of registration and the administration and personalization of your profile webpage on Fancy (e.g., without limitation, age and individual preferences) ("Non-Identifying Information").
- We also collect the other information that you provide as part of registration and the administration and personalization of your profile webpage on Fancy (e.g., without limitation, age and individual preferences) ("Non-Identifying Information").
Certain Non-Identifying Information would be considered a part of your Personal Information if it were combined with other identifiers (for example, combining your zip code with your street address) in a way that enables you to be identified. But the same pieces of information are considered Non-Identifying Information when they are taken alone or combined only with other non-identifying information (for example, your viewing preferences). We may combine your Personal Information with Non-Identifying Information and aggregate it with information collected from other Fancy Users (defined below) to attempt to provide you with a better experience, to improve the quality and value of the Services and to analyze and understand how our Site, Applications and Services are used. We may also use the combined information without aggregating it to serve you specifically, for instance to deliver a product to you according to your preferences or restrictions.
Marketing to You.
We also use your Personal Information to contact you with Fancy newsletters, marketing or promotional materials and other information that may be of interest to you. If you decide at any time that you no longer wish to receive such communications from us, please follow the unsubscribe instructions provided in any of the communications or update your "preferences" information. (See "Changing or Deleting Information," below.)
When you visit the Site or Applications, or use our Services, whether as a Member or a non-registered user just browsing (any of these, a "Fancy User"), our servers automatically record information that your browser sends whenever you visit a website ("Log Data"). This Log Data may include information such as your Internet Protocol address, the browser type or the webpage you were visiting before you came to our Site and Application, pages of our Site and Application that you visit, the time spent on those pages, information you search for on our Site and Application, access times and dates, and other statistics. We may use this information to monitor and analyze use of the Site, Applications and the Service and for the Site and Applications’ technical administration, to increase our Site and Applications’ functionality and user-friendliness, and to better tailor our Site and Applications to our visitors’ needs. For example, some of this information is collected so that when you visit the Site and Application again, it may recognize you and serve advertisements and other information appropriate to your interests. We also use this information to verify that visitors to the Site and Application meet the criteria required to process their requests. We do not treat Log Data as Personal Information or use it in association with other Personal Information, though we may aggregate, analyze and evaluate such information for the same purposes as stated above regarding other Non-Identifying Information.
In addition to Log Data, we may also collect information about the device you’re using Fancy on, including what type of device it is, what operating system you’re using, device settings, unique device identifiers, and crash data. Whether we collect some or all of this information often depends on what type of device you’re using and its settings. To learn more about what information your device makes available to us, please also check the policies of your device manufacturer or software provider
If you do not wish to accept
cookies, you can instruct your browser, by changing its options or settings, to stop accepting cookies or to prompt you before accepting a cookie from the websites you visit. If you do not accept cookies, however, you may not be able to use all portions of the Site and Applications or all functionality or features of the Service.
3) Information Sharing and Disclosure
When you register through the Site and Applications and submit Personal Information to create a profile or visual collection, Fancy Users may see your name. If you choose to provide additional Personal Information in your profile, Fancy Users may see such additional Personal Information, including, but not limited to, your photo, location, website and biography. Providing additional Personal Information is voluntary and should correlate with the degree of interaction you want to have with Fancy Users. We recommend that you guard your sensitive information.
Aggregate Information and Non-Identifying Information.
We may share aggregated information that does not include Personal Information and we may otherwise disclose Non-Identifying Information and Log Data with third parties for industry analysis, demographic profiling and other purposes. Any aggregated information shared in these contexts will not contain your Personal Information.
We may employ third party companies and individuals to facilitate our Service, to provide the Service on our behalf, to perform Site and Application-related services (e.g., without limitation, maintenance services, database management, web analytics and improvement of the Site and Application’s features) to assist us in analyzing how our Site, Applications and Service are used, or to perform other services (e.g. without limitation, processing and fulfillment of orders, delivering packages, sending postal mail and e-mail, providing marketing assistance, processing credit card payments during ordering and providing customer service). These third parties have access to your Personal Information only to perform these tasks on our behalf and are obligated not to disclose or use it for any other purpose.
Social Networking Sites.
We may share the information in your account (including your Personal Information) with the SNSs that you have linked to your account. These third parties have access to your Personal Information only for this purpose (unless the SNS has received your Personal Information independently of the Service) and are obligated not to disclose or use it for any other purpose.
We allow users to automatically post recent activity back to Facebook, and give them the option to disable Facebook Connect at any time by logging into their profile and selecting the option to disable Facebook Connect. Further, you may be able to edit your privacy settings for the content that you post which appears on Facebook by making selections in your “Edit Profile” settings via the Site and Applications.
Compliance with Laws and Law Enforcement.
Thing Daemon may cooperate with government and law enforcement officials and private parties to enforce and comply with the law. We may disclose any information about you to government or law enforcement officials or private parties as we believe necessary or appropriate to respond to claims and legal process (including, but not limited to, subpoenas), to protect the property and rights of Thing Daemon or a third party, to protect the safety of the public or any person, or to prevent or stop activity we may consider to be, or to pose a risk of being, illegal, unethical or legally actionable activity.
Thing Daemon may sell, transfer or otherwise share some or all of its assets, including your Personal Information, in connection with a merger, acquisition, reorganization or sale of assets or in the event of bankruptcy.
4) Changing or Deleting Your Information or Requesting No Further Use of Your Information
All Members may review, update, correct or delete the Personal Information in their Account by contacting us at the following email address: firstname.lastname@example.org or by editing such profile via the Site and Applications. If you completely delete all such information, then your Account may become deactivated. You may also contact us at the foregoing email address to submit a request that we make no further use of your information. We will use commercially reasonable efforts to honor all requests within a commercially reasonable time. We may retain an archived copy of your records as required by law or for legitimate business purposes.
We work to protect the security of your Personal Information. We maintain a variety of physical, electronic, and procedural safeguards when it comes to collecting, storing, and disclosing Personal Information. For example, we take steps to protect against unauthorized access to our systems that store Personal Information such as by using policies limiting access to those systems to authorized personnel.
When you order products or services through the Site or Applications, we employ the abovementioned safeguards for the transmission of the information from you to us. For example, we may use Secure Sockets Layer (SSL) protocol or encryption technologies.
You should keep your user name(s), password(s), or other access information safe and confidential to protect against unauthorized access to your account information or computer. You should adopt passwords that others cannot figure out easily. You should also be sure to sign off of your computer or any shared computers when you are finished using them.
We may make any legally required disclosures of any breach of the security, confidentiality, or integrity of your unencrypted electronically stored "personal data" (as defined in applicable state statutes on security breach notification) to you via email or conspicuous posting on this Site or via the Application in the most expedient time possible and without unreasonable delay, insofar as consistent with (i) the legitimate needs of law enforcement or (ii) any measures necessary to determine the scope of the breach and restore the reasonable integrity of the Site, Applications, or data system.
6) International Transfer
7) Links to Other Sites
Our Site and Applications may contain links to other websites. If you choose to visit an advertiser by "clicking on" a banner ad or other type of advertisement, or click on another third party link, you will be directed to that third party’s website. The fact that we link to a website or present a banner ad or other type of advertisement is not an endorsement, authorization or representation of our affiliation with that third party, nor is it an endorsement of their privacy or information security policies or practices. We do not exercise control over third party websites. These other websites may place their own cookies or other files on your computer or mobile device, collect data or solicit personal information from you. Other sites follow different rules regarding the use or disclosure of the personal information you submit to them. We encourage you to read the privacy policies or statements of the other websites you visit.
8) Our Policy Towards Children
Our Site, the Applications, and the Services we provide are not directed to children under the age of 13 years. We do not knowingly collect personally identifiable information from children under 13 years of age. If a parent or guardian becomes aware that his or her child has provided us with Personal Information without their consent, he or she should contact us at email@example.com. If we become aware that a child under 13 has provided us with Personal Information, we will delete such information from our files. Similarly, we do not seek to collect personal information from children under the legal age of majority in any country where the information is collected, nor are the Site, Applications, or Services directed to such children in another country. Children should ask their parents or guardians for permission before disclosing any personal information. If we become aware that a child under the legal age of majority in another country has provided personal information, we will delete such information from our files. By continuing to use the Site or Applications and/or providing any personal information to us, you represent and warrant that you are not under 13 years of age or, if using the Site or Applications from another country and/or providing information to us from another country, are not under the legal age of majority in that country.
9) How to Contact Us
If you have any questions about this Policy or any of the practices described herein, please contact us at firstname.lastname@example.org.
The Terms and Conditions described herein constitute a legal agreement ("Agreement") among the sole proprietor, individual or business, partnership, LLC, or corporation listed as the "Merchant" in the Fancy service registration page, (the "Merchant" on the registration page, sometimes referred to as "you," "your", "user"), Thing Daemon, Inc. ("Fancy") and its third-party payment processor ("Payment Gateway") third party logistics center (“3PL,” collectively with Fancy referred to as "we", "our" or "us").
Fancy may, in its sole and absolute discretion, change or modify this Agreement, and any policies or agreements which are incorporated herein, at any time, and such changes or modifications shall be effective immediately upon posting to this Site. Your use of this Site or the Services after such changes or modifications have been made shall constitute your acceptance of this Agreement as last revised. If you do not agree to be bound by this Agreement as last revised, do not use (or continue to use) this Site or the Services. In addition, we may occasionally notify you of changes or modifications to this Agreement by email. It is therefore very important that you keep your Merchant Account information current. Fancy assumes no liability or responsibility for your failure to receive an email notification if such failure results from an inaccurate email address.
If you are entering into this Agreement on behalf of a corporate entity, you represent and warrant that you have the legal authority to bind such corporate entity to the terms and conditions contained in this Agreement, in which case the terms "you", "your", "user" or "customer" shall refer to such corporate entity. If, after your electronic acceptance of this Agreement, Fancy finds that you do not have the legal authority to bind such corporate entity, you will be personally responsible for the obligations contained in this Agreement, including, but not limited to, the payment obligations. Fancy shall not be liable for any loss or damage resulting from Fancy’s reliance on any instruction, notice, document or communication reasonably believed by Fancy to be genuine and originating from an authorized representative of your corporate entity. If there is reasonable doubt about the authenticity of any such instruction, notice, document or communication, Fancy reserves the right (but undertakes no duty) to require additional authentication from you. You further agree to be bound by the terms of this Agreement for transactions entered into by you, anyone acting as your agent and anyone who uses your account or the Services, whether or not authorized by you.
The Fancy Service (the "Service")
1. Our Role
The Fancy service ("Fancy" or the "Service") is an e-commerce retail service that helps you customize a website, offer retail merchandise for sale to end users, manage inventory, fulfill customer orders and accept and process credit card, debit card and other types of online payment methods (collectively "payments") from your customers in exchange for your products and services for internet-based transactions ("Card Not Present Transactions" or "CNP Transactions"). The Payment Gateway provides the payment services to you on behalf of Fancy. Neither Fancy nor the designated Payment Gateway is a bank or a money services business ("MSB") nor do they offer banking or MSB services as defined by the United States Department of Treasury. In addition, we do not assume any liability for the products or services purchased by and sold to customers using our Service. You will be required to register for a Merchant Account to use the Service. This account allows you to review card transactions that are in the process of settling from Payment Networks (as defined below) and us to your designated settlement bank account.
2. Our Services
Payment Gateway and Fancy provide the e-commerce tools to enable you to use the Service. We reserve the right to require you to install or update any and all software updates to continue using the Service. The foregoing offering is separate and distinct from the Fancy e-commerce and other services that are provided by Fancy Inc. under separate terms and conditions, which are independent of this Agreement (such services being a "Fancy User Account" and such agreement being the "Terms of Merchant Sale" available at: http://www.danhowes.com/about#terms-merchant).
Our Service may also include tools to help you manage recurring and subscription billing charges for your products and services. It is your responsibility to obtain your customers’ consent to be billed on a recurring basis in compliance with applicable legal requirements and Visa Europe Ltd, Visa U.S.A., Inc., Visa Canada Inc. and Visa International (collectively, “Visa”) and MasterCard International Incorporated (“MasterCard”), Discover, American Express or other applicable card network (collectively, the “Payment Networks”) payment rules.
3. Authorization for Handling of Funds
By accepting this Agreement, you authorize Fancy or the Payment Gateway to hold, receive, and disburse funds on your behalf when such funds from your card transactions settle from the Payment Networks. You further authorize Payment Gateway, on behalf of Fancy, of Fancy to instruct Payment Gateway in the manner of how your card transaction settlement funds should be disbursed to you (such as by ACH credit transaction) and the timing of such disbursements. You also authorize Payment Gateway or Fancy to hold settlement funds in a deposit account pending disbursement of the funds to you in accordance with the terms of this Agreement. You agree you are not entitled to any interest or other compensation associated with the settlement funds held in the deposit account pending settlement to your designated bank settlement account, that you have no right to direct that deposit account, and that you may not assign any interest or grant any security interest or lien in the settlement funds or the deposit account. From time to time, we may make available to you information in your Merchant Account regarding anticipated settlement amounts that we have received on your behalf from the Payment Networks and are being held by us pending settlement. The settlement information reflected in the Merchant Account is for reporting and informational purposes only, and does not create any ownership or other rights in settlement funds, which are provisional credits only, until such funds are credited to your designated bank settlement account. Your authorizations set forth herein will remain in full force and effect until your Merchant Account is closed or terminated.
4. Payment Methods
The Payment Gateway processing service supports any U.S.-issued card and most non-U.S. issued payments with a Payment Network logo, including credit, debit, pre-paid, or gift payments. ?Fancy will only process card transactions that have been authorized by the applicable Payment Network, card issuer or Payment Gateway. You are solely responsible for verifying the identity of users and of the eligibility of a presented payment card used to purchase your products and services, and Fancy does not guarantee or assume any liability for transactions authorized and completed which may later be reversed or charged back (See Chargebacks?section below). You are solely responsible for all reversed or charged back transactions, regardless of the reason for, or timing of, the reversal or chargeback. Fancy may add or remove one or more types of payments as a supported payment card any time without prior notice to you.
5. Customer Service
Payment Gateway and Fancy will provide you with customer service to resolve any issues relating to your Merchant Account, your card payment processing and use of our software, and the distribution of funds to your designated bank settlement account. You and you solely, are responsible for providing service to your customers for any and all issues related to your products and services, including but not limited to issues arising from the processing of customers' payments through the Service.
6. Taxes and Reporting
It is your responsibility to determine what, if any, taxes apply to the sale of your goods and services and/or the payments you receive in connection with your use of the Service ("Taxes"). It is solely your responsibility to assess, collect, report, or remit the correct tax to the proper tax authority. We are not obligated to, nor will we determine whether Taxes apply, or calculate, collect, report, or remit any Taxes to any tax authority arising from any transaction. Fancy may provide access to third party tools for calculating sales tax. Fancy is shall not be responsible for the accuracy or the failure of such tools in assessing and collecting applicable sales tax. You acknowledge that we may make certain reports (including, e.g., 1099 forms) to tax authorities regarding transactions that we process and merchants to which we provide card payment services.
Pursuant to the Internal Revenue Code, merchant acquiring entities and third party settlement organizations are required to file an information return with the IRS for each calendar year, reporting all payment card transactions and third party network transactions with merchants occurring in that calendar year as required by law.
Fancy and Payment Gateway maintain commercially reasonable administrative, technical and physical procedures to protect all the personal information regarding you and your customers that is stored in our servers from unauthorized access and accidental loss or modification. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use such personal information for improper purposes. You acknowledge that you provide this personal information regarding you and your customers at your own risk.
8. Data Security
You are fully responsible for the security of data, whether customer or otherwise, in your possession. You agree to comply with all applicable state, federal and international laws and rules in connection with your collection, security and dissemination of any personal, financial, Card, or transaction information (defined as "Data") on your website. You agree that at all times you shall be compliant with the Payment Card Industry Data Security Standards ("PCI-DSS") and the Payment Application Data Security Standards ("PA-DSS"), as applicable. If applicable, you also agree that you will use only PCI-compliant service providers in connection with the storage, or transmission of Card Data, defined as a cardholder's account number, expiration date, and / or CVV2. You must not store CVV2 data at any time. You agree to promptly provide us with documentation evidencing your compliance with PCI DSS and/or PA DSS if requested by us. Information on PCI-DSS can be found on the PCI Council's?website. It is your responsibility to comply with these standards.
9. Audit Right
If we believe that a security breach or compromise of data has occurred, Fancy may require you to have a third party auditor that is approved by Fancy conduct a security audit of your systems and issue a report to be provided to Fancy, financial banks, and the Payment Networks.
Your privacy and the protection of your data are very important to us. Fancy works with Payment Gateway to provide the Fancy service, and both Fancy and Payment Gateway may collect or receive certain personal data about you and your customers. For more information about Fancy's privacy practices, you should review h"ps://www.danhowes.com/about#terms-privacy. Reviewing these policies will help you understand how we collect, use and safeguard the information you provide to us.
11.Privacy of Others
If you receive information about others, including Cardholders, through the use of the Service, you must keep such information confidential and only use it in connection with the Service.
You may not disclose or distribute any such information to a third party or use any such information for marketing purposes unless you receive the express consent of the user to do so.
You are required to obey all laws, rules, and regulations applicable to your use of the Service (for example, those governing financial services, consumer protections, unfair competition, anti-discrimination or false advertising). In addition to any other requirements or restrictions set forth in this Agreement, you shall not: (i) utilize the credit available on any Card to provide cash advances to Cardholders,(ii) submit any card transaction for processing that does not arise from your sale of goods or service to a buyer customer, (iii) act as a payment intermediary or aggregator or otherwise resell our services on behalf of any third party, (iv) send what you believe to be potentially fraudulent authorizations or fraudulent card transaction, or (v) use your Merchant Account or the Service in a manner that Visa, MasterCard, American Express, Discover or any other Payment Network reasonably believes to be an abuse of the Payment Network or a violation of Payment Network rules.
You further agree not to, nor to permit any third party to, do any of the following: (i) access or attempt to access our systems, programs or data that are not made available for public use: (ii) copy, reproduce, republish, upload, post, transmit, resell or distribute in any way material from us; (iii) permit any third party to use and benefit from the Service via a rental, lease, timesharing, service bureau or other arrangement; (iv) transfer any rights granted to you under this Agreement; (v) work around any of the technical limitations of the Service, use any tool to enable features or functionalities that are otherwise disabled in the Service, or decompile, disassemble or otherwise reverse engineer the Service, except to the extent that such restriction is expressly prohibited by law; (vi) perform or attempt to perform any actions that would interfere with the proper working of the Service, prevent access to or use of the Service by our other users, or impose an unreasonable or disproportionately large load on our infrastructure; or (vii) otherwise use the Service except as expressly allowed under this section.
13.Suspicion of Unauthorized or Illegal Use
We reserve the right to not authorize or settle any transaction you submit which we believe is in violation of this Agreement, any other Fancy or Payment Gateway agreement, or exposes you, other Fancy users, Merchants, our processors or Fancy or Payment Gateway to harm, including but not limited to fraud and other criminal acts. You are hereby granting us authorization to share information with law enforcement about you, your transactions, or your Merchant Account if we reasonably suspect that your Merchant Account has been used for an unauthorized, illegal, or criminal purpose.
14.Payment Network Rules
The Payment Networks have established guidelines, bylaws, rules, and regulations ("Payment Network Rules"). You are required to comply with all Payment Network Rules that are applicable to merchants. You can review portions of the Payment Network rules at?Visa?and?MasterCard. The Payment Networks reserve the right to amend the Payment Network Rules. Payment Gateway, acting on behalf of Fancy, reserves the right to amend the Agreement at any time with notice to you as necessary to comply with Network Rules or otherwise address changes in the Service.
15.Disclosures and Notices
You agree that Fancy can provide disclosures and notices, including tax forms such as the IRS form 1099-K, regarding the Service to you by posting such disclosures and notices on our website, emailing them to the email address listed in your Merchant Account, or mailing them to the address listed in your Merchant Account. You also agree that electronic disclosures and notices have the same meaning and effect as if we had provided you with a paper copy. Such disclosures and notices shall be considered to be received by you within 24 hours of the time it is posted to our website or emailed to you unless we receive notice that the email was not delivered.
Registering a Merchant Account
The Service is only made available to persons that operate a business selling goods and services, and the Service is not made available to persons to accept card payments for personal, family or household purposes. To use Fancy for your business, you will first have to register for a Fancy Merchant Account ("Merchant Account"). When you register for a Merchant Account, we will collect basic information including your name, company name, location, address, personal information, banking information, email address, tax identification number and phone number.
You may choose to register as an individual (sole proprietor) or as a company or other business organization. If you register as a company or business, you must also provide information about an owner or principal of the business and you must be authorized to act on behalf of the business and have the authority to bind the business to this Agreement. In order to sign up a business to use the Service, you must agree to this Agreement on behalf of the business. If you have so agreed, the term "you" will mean you, the natural person, as well as the business you represent. You understand that by registering for a Merchant Account, you are also registering for a Payment Gateway Account, and that you are simultaneously providing your information to Fancy for the purpose of opening a Merchant Account, and to Payment Gateway for the purpose of establishing your Payment Gateway Account.
2. Company Descriptions and Site URL
As part of your registration, you must provide the name under which you do business (which may be the business's legal name or a "doing business name"). To avoid customer confusion and transaction disputes, you may be required to you enter a description that clearly identifies your business, including a billing descriptor. You agree to indemnify us from any costs from disputes due to your failure to do so.
3. Verification and Underwriting
To verify your identity, we will require additional information including your business EIN or Tax ID, social security number, and date of birth. We may also ask for additional information to help verify your identity and assess your business risk including business invoices, a driver's license or other government issued identification, or a business license. We may ask you for financial statements. We may request to audit your books and records that pertain to your compliance with this Agreement. Your failure to comply with any of these requests within five (5) days may result in suspension or termination of your Merchant Account. You authorize us to retrieve additional information about you from third parties and other identification services. Fancy may use your information to apply for card merchant acquiring accounts on your behalf with certain Payment Networks (such as American Express).
After we have collected and verified all your information, Fancy will review your account and determine if you are eligible to use the Service. Fancy may also share your information with our payment processors (such as Payment Gateway), each of which may also make a determination regarding your eligibility. We will notify you once your account has been either approved or deemed ineligible for use of the Service.
By accepting the terms of this Agreement, you are providing us with authorization to retrieve information about you by using third parties, including credit bureaus and other information providers. You acknowledge that such information retrieved may include your name, address history, credit history, and other data about you. We may periodically update this information to determine whether you continue to meet the eligibility requirements for a Merchant Account.
You agree that Fancy is permitted to contact and share information about you and your application (including whether you are approved or declined), and your Merchant Account with the payment processor, including Payment Gateway. This includes sharing information (a) about your transactions for regulatory or compliance purposes, (b) for use in connection with the management and maintenance of the Service, (c) to create and update their customer records about you and to assist them in better serving you, and (d) to conduct risk management process pertaining to your Merchant Account.
4. Merchant Account - US only
By registering for a Merchant Account, you are confirming to be either a legal resident of the United States, a United States citizen or a business entity authorized to conduct business by the state or jurisdiction in which you operate. The Service and your Merchant Account may only be used in the fifty states of the United States of America and the District of Columbia. You may not export the Service directly or indirectly, and you acknowledge that the Service may be subject to export restrictions imposed by US law, including US Export Administration Regulations (15 C.F.R. Chapter VII).
By accepting this Agreement you confirm that you will satisfy these requirements.
- Door-to-door sales
- Offering substantial rebates or special incentives to the Cardholder subsequent to the original purchase
- Negative response marketing
- Engaging in deceptive marketing practices
- Sharing Cardholder’s data with another Merchant Account or third party for payment of up-sell or cross-sell product or service
- Evading a Payment Network’s chargeback monitoring programs
- Engaging in any form of licensed or unlicensed aggregation or factoring
- Age verification
- Age restricted products or services
- Bail bonds
- Bankruptcy lawyers
- Bidding fee auctions
- Collection agencies
- Chain letters
- Check cashing, wire transfers or money orders
- Counterfeit goods
- Currency exchanges or dealers
- Embassies, foreign consulates or other foreign governments
- Firms selling business opportunities, investment opportunities, mortgage consulting, credit repair or protection or real estate purchases with no money down
- Credit card and identity theft protection
- Cruise lines
- Essay mills
- Flea markets
- Drug paraphernalia
- Extended warranties
- Fortune tellers,
- “Get rich quick” schemes
- Sports forecasting or odds making
- Illegal products or services
- Mail-order brides
- Marijuana dispensaries and related businesses
- Money transmitters or money service businesses
- Counterfeit goods
- Currency exchanges or dealers
- Embassies, foreign consulates or other foreign governments
- Firms selling business opportunities, investment opportunities, mortgage consulting, credit repair or protection or real estate purchases with no money down
- Credit card and identity theft protection
- Cruise lines
- Essay mills
- Flea markets
- Drug paraphernalia
- Extended warranties
- Fortune tellers,
- “Get rich quick” schemes
- Sports forecasting or odds making
- Illegal products or services
- Mail-order brides
- Marijuana dispensaries and related businesses
- Money transmitters or money service businesses
- Weapons and munitions
- Virtual currency that can be monetized, re-sold or converted to physical or digital goods or services or otherwise exit the virtual world
- Personal computer technical support
- Selling video game or virtual world credits (unless you are the operator of the video game or virtual world)
- Selling social media activity, such as Twitter followers, Facebook likes or Youtube views
- Human hair
- Any product or service that infringes upon the copyright, trademark, or trade secrets of any third party
- Any product, service or activity that is deceptive, unfair, predatory or prohibited by one or more Card Networks
By accepting this Agreement you confirm that you will satisfy these requirements and will continue to do so in connection with your use of the Service.
Processing Card Transactions and Receiving Your Funds
1. Processing Card Transactions
You agree that you will honor all eligible payments presented for payment by your customers for your goods and services in accordance with the Payment Network rules, this Agreement and any operating guides that we may provide you from time to time. You agree that you will obtain an authorization from the Payment Network(s) for each card transaction, as required under the Payment Network rules. You acknowledge that the existence of an affirmative authorization from us or the Payment Networks does not mean that a particular card transaction will not be subject to Chargeback, Reversal or Claim at a later date.
You will not impose any fee or surcharge on a customer that seeks to use an eligible payment card. ?You will use our Service provide a receipt to the customer at the conclusion of the purchase transaction that includes all information required under Payment Network rules and applicable law.
You will display all Payment Network marks in accordance with the rules and procedures of the Payment Networks, and will use such marks only to indicate that you accept their payments for payment.
2. Payouts and Transaction History
We will pay out funds settling from the Payment Networks to your designated bank settlement account in the amounts actually received (less our Fees as defined below) for card transactions submitted to our Service. The payouts will be made to the bank account ("Bank Account") you provide for your Merchant Account. The Bank Account must be an account located at a bank in the United States and held in the name of the business. You are responsible for the accuracy and correctness of information regarding your Bank Account. Funds for any given transaction will not be transferred to your Bank Account until the transaction is deemed complete. Transactions will be deemed complete when we have received funds settling from the Payment Networks and when we or our processing financial institutions have accepted such funds. The actual timing of the transfers to your Bank Account of the settling funds will be subject to the Payout Schedule as defined below.
Notwithstanding the foregoing, you acknowledge that all credits for funds provided to you are provisional and subject to reversal including without limitation if there are adjustments for inaccuracies and errors (including rejects) and Chargebacks, Reversals or Claims in accordance with this Agreement and the Card Network payment rules, whether or not a transaction is charged back by the issuer of the Card or the Cardholder. Accordingly, you authorize us to initiate reversal or adjustment (debit or credit) entries to the Bank Account and to initiate or suspend such entries in accordance with this Agreement as may be necessary to grant or reverse provisional credit for any transaction.
After each payout of card settlement funds to your Bank Account, we will update information in your Merchant Account to reflect settlement. Information regarding your card transactions processed and settled with the Services ("Transaction History") will be available to you when you login to our website using your Merchant Account. Except as required by law, you are solely responsible for compiling and retaining permanent records of all transactions and other data associated with your Merchant Account, your Transaction History and your use of the Service.
3. Payout Schedule
Payout schedule refers to the time it takes for us to initiate a transfer to your Bank Account of settlement funds arising from card transactions processed through the Service ("Payout Schedule"). Once your bank account information has been reviewed, the Payment Gateway, on behalf of Fancy, or Fancy itself will initiate transfer of settlement funds (net Fees, chargebacks, and other funds owed to us for any reason) in accordance with the Payout Schedule. The settlement funds should normally be credited to your Bank Account within 1-2 days of us initiating the payout. We are not responsible for any action taken by the institution holding your Bank Account that may result in some or all of the funds not being credited to your Bank Account or not being made available to you in your Bank Account. You can contact Fancy to inquire about changing the timing of your Payout Schedule. Upon submitting a request, you will be informed of the process and requirements for Fancy to review your Payout Schedule.
Payment Gateway, on behalf of Fancy, and Fancy reserve the right to change the Payout Schedule or suspend payouts to your Bank Account should we determine it is necessary due to pending disputes, excessive or anticipated excessive Chargebacks or refunds, or other suspicious activity associated with your use of the Service or if required by law or court order.
4. Reconciliations and Errors
Your Transaction History will be available to you when you login to our website using your Merchant Account. Except as required by law, you are solely responsible for reconciling your Transaction History with your actual card payment transactions. You agree to notify us of any discrepancies arising from such reconciliation and verification. We will investigate any reported discrepancies and attempt to rectify any errors that you or we discover. In the event you are owed money as a result of the discrepancy, we will transfer funds to your Bank Account in the next scheduled payout. Your failure to notify us of an error or discrepancy in your Transaction History within sixty (60) days of when it first appears on your Transaction History will be deemed a waiver of any right to amounts owed to you in connection with any such error or discrepancy in processing your card payments.
If you submit or cause us to process transactions erroneously, you agree to contact us immediately. We will investigate any reported errors and attempt to rectify any errors that you or we discover by crediting or debiting your Merchant Account as appropriate. Fancy will only correct transactions that you process incorrectly if and when you notify us of such an error. Your failure to notify us of a processing error within thirty (30) days of when it first appears on your electronic transaction history will be deemed a waiver of any right to amounts owed to you.
5. Refunds and Returns
By accepting these terms of service, you agree to submit any and all refunds and adjustments for returns of your products and services through the Service to the Cardholder's card in accordance with the terms of this Agreement and Payment Network Rules. Payment Network Rules require that you will (i) maintain a fair return, cancellation or adjustment policy; (ii) disclose your return or cancellation policy to customers at the time of purchase, (iii) not give cash refunds to a customer in connection with a Card sale, unless required by law, and (iv) not accept cash or any other item of value for preparing a Card sale refund.
Full refunds must be for the exact dollar amount of the original transaction including tax, handling charges, and other charges. The refund amount may not exceed the original sale amount except by an amount equal to any reimbursements to customer for postage costs incurred for product returns. Refunds processed though the Service must be submitted within sixty (60) days of the original transaction but in all cases, within three (3) days of approving the Cardholder refund.
For processed refunds, we, will deduct the refund amount (including any applicable Fees) from (i) settlement funds owed to you from processing of other card transactions, or (ii) funds in any Reserve Account (as defined below). If these funds are not sufficient, you authorize us, to initiate an ACH debit entry to your Bank Account in the amount necessary to complete the refund transaction to the Cardholder's card. In the event we cannot access your Bank Account by means of ACH debit entry, you agree to pay all funds owed to us upon demand. You are solely responsible for accepting and processing returns of your products and services; we have no responsibility or obligation for processing such returns.
A Chargeback (defined below in Section D(6)) is typically caused when a customer disputes a charge that appears on their bill. A Chargeback may result in the reversal of a transaction, with the amount charged back to you. You can be assessed Chargebacks for: (i) customer disputes, (ii) unauthorized or improperly authorized transactions, or (iii) transactions that do not comply with Payment Network Rules or the terms of this Agreement or are allegedly unlawful or suspicious, or (iv) any reversals for any reason by the Network, our processor or acquiring bank, or the Cardholder's card issuing financial institution.
When a Chargeback is issued, you are immediately liable to Fancy for the full amount of payment of the Chargeback plus any associated Fees, fines, expenses or penalties (including those assessed by the Payment Networks or our payment processors). You agree that we may recover these amounts by means of ACH debit of your Bank Account associated with your Merchant Account, debiting your Reserve Account, or setting off any amounts owed to you by us. If we are unable to recover funds related to a Chargeback for which you are liable, you will pay us the full amount of the Chargeback immediately upon demand. You agree to pay all costs and expenses, including without limitation attorneys' fees and other legal expenses, incurred by or on behalf of us in connection with the collection of any unpaid Chargebacks unpaid by you.
Further, if we reasonably believe that a Chargeback is likely with respect to any transaction, we may withhold the amount of the potential Chargeback from payments otherwise due to you under this Agreement until such time that: (a) a Chargeback is assessed due to a customer's complaint, in which case we will retain the funds; (b) the period of time under applicable law or regulation by which the customer may dispute that the transaction has expired; or (c) we determine that a Chargeback on the transaction will not occur.
7. Contesting your Chargebacks
You or Fancy may elect to contest Chargebacks assessed to your account. Fancy may provide you with assistance including notifications and software to help contest your Chargebacks. We do not assume any liability for our role or assistance in contesting Chargebacks.
You agree to provide us with the necessary information, in a timely manner and at your expense, to investigate or help resolve any Chargeback. You also grant us permission to share records or other information required with the Cardholder, the Cardholder's financial institution, and your financial institution to help resolve any disputes. You acknowledge that your failure to provide us with complete and accurate information in a timely manner may result in an irreversible Chargeback being assessed.
If the Cardholder's issuing bank or the Payment Network does not resolve a dispute in your favor, we may recover the Chargeback amount and any associated fees from you as described in this Agreement.
We reserve the right, upon notice to you, to charge a fee for mediating or investigating Chargeback disputes.
8. Excessive Chargebacks
At any point, Fancy, Payment Gateway, the Payment Networks, or our payment processor(s) may determine that you are incurring excessive Chargebacks. Excessive Chargebacks may result in additional fees, penalties, or fines. Excessive Chargebacks may also result in additional controls and restrictions to your use of the Service, including without limitation, (i) changes to the terms of your Reserve Account, (ii) increases to your applicable Fees, (iii) delays in your Payout Schedule, or (iv) possible suspension or termination of your Merchant Account and the Service. The Networks may also place additional controls or restrictions as part of their own monitoring programs for merchants with excessive Chargebacks.
9. Fancy Fees
You agree to pay the Fees ("Fees") assessed by us to you for providing the payment services described in this Agreement. These fees will be calculated pursuant to a?Fee Schedule?incorporated into this Agreement.
We reserve the right to revise our Fees at any time, subject to a thirty (30) day notice period to you.
You acknowledge that you are also responsible for any penalties or fines imposed on us or directly on you by any Payment Network or financial institution as a result of your activities.
10.Our Collection Rights
To the extent permitted by law, we may collect any obligations you owe us under this Agreement by deducting the corresponding amounts from the Reserve Account or from funds payable to you arising from the settlement of card transactions. Fees will be assessed at the time a transaction is processed and will be first deducted from the funds received for such transactions. If the settlement amounts or Reserve Account are not sufficient to meet your obligations to us, we may charge or debit the bank account or credit card registered in your Merchant Account for any amounts owed to us. Your failure to fully pay amounts that you owe us on demand will be a breach of this Agreement. You will be liable for our costs associated with collection in addition to the amount owed, including without limitation attorneys' fees and expenses, costs of any arbitration or court proceeding, collection agency fees, and any applicable interest.
Additionally, we may require a personal guaranty from a principal of a business for funds owed under this Agreement. If we require a personal guarantee we will specifically inform you in advance.
In addition to the amount due, delinquent accounts may be charged with fees that are incidental to the collection of delinquent accounts and chargebacks including, but not limited to, collection fees and convenience fees and other third parties charges.
You hereby explicitly agree that all communication in relation to delinquent accounts will be made by electronic mail or by phone, as provided to Fancy by you. Such communication may be made by Fancy or by anyone on its behalf, including but not limited to a third party collection agent.
Funds held in reserves are amounts of money set aside to cover Chargebacks, refunds, Fees, or other payment obligations under this agreement (a "Reserve Account"). We, in our discretion, will set the terms of your Reserve Account and notify you of such terms, which may require that a certain amount (including the full amount) of the funds received for your transaction is held for a period of time or that additional amounts are held in the Reserve Account. We, in our discretion, may elect to change the terms of the Reserve Account at any time for any reason based on your payment processing history or as requested by our payment processors.
We may require you to fund the Reserve Account by means of: (i) any funds payouts made or due to you for card transactions submitted to the Service, or, or (ii) amounts available in your Bank Account by means of ACH debit to that Bank Account, or (iv) other sources of funds associated with your Merchant Account, including credit card; or (iv) requesting that you provide funds to us for deposit to the Reserve Account.
You agree that you are not entitled to any interest or other compensation associated with the funds held in the Reserve Account, that you have no right to direct that account, that you have no legal interest in those funds or that account and that you may not assign any interest in those funds or that account.
You grant us a lien and security interest in the Reserve Account, all Card transactions (including future Card transactions), any rights to receive credits or payments under this Agreement, and all deposits and other property of yours possessed or maintained by us on your behalf. You will execute, deliver, and pay the fees for any documents we request to create, perfect, maintain and enforce this security interest.
1. Subdomain Web Hosting
As part of the Services, as of the date of your use and registration of a Merchant Account, Fancy will assign you a subdomain (eg.“www.YourMerchantStoreName.www.danhowes.com) hosted on Fancy’s primary domain (“Merchant Site”). Each Merchant account will be able to select a unique Merchant Site name, provided that the name is previously registered to another Merchant Account. By registering a subdomain, you recognize that the subdomain is the property of Fancy and is non-transferrable upon termination of Service under this Agreement. Each Merchant Site is placed within one or more Servers (defined below) and resources are shared between many customers on the same servers; however, each Merchant Site is given a unique subdomain address. If you are setting up a domain you already license from a Third-Party Provider (defined below) setting up your domain and re-directing to a Fancy subdomain with an outside provider must be completed through the provider itself using a "Canonical Name" (“CNAME”) point.
Any Server maintenance for your Merchant Site, including setting up your control panel, patching cycles and back-ups shall be managed by Fancy in accordance with its terms with its Host Provider. By registering a Merchant Account, you hereby accept the terms and conditions of the Host Provider Agreement incorporated herein by reference.
3. Limitations; Account Termination
- Migration of Servers. You acknowledge and agree that as a normal course of business, it may be necessary for us to migrate our servers. We do not warrant that you will be able to consistently maintain your Merchant Site.
- Termination of Services. You acknowledge and agree that upon expiration or termination of your Services, you must discontinue use of the Services and relinquish use of the Merchant Site assigned to you in connection with Services, including pointing the domain name system (“DNS”) for your primary domain name away from our Servers. Prior to termination of the Services, you are responsible for moving your website or server content off our Servers. We will not transfer or FTP your Merchant Site content to another provider. If you fail to move your Merchant Site content off our servers prior to cancellation, then all such content will be deleted and we will not be able to provide a copy of such content.
4. Your Obligations
- We prohibit the running of a public recursive DNS service on any of our Servers. All recursive DNS servers must be secured to allow only internal network access or a limited set of IP addresses. We actively scan for the presence of public DNS services and reserve the right to remove any servers from the network that violate this restriction.
- Storage and Security. You shall be solely responsible for undertaking measures to: (1) prevent any loss or damage to your primary domain, website or server content; (2) maintain independent archival and backup copies of content on your Merchant Site; and (3) ensure the security, confidentiality and integrity of all your content transmitted through or stored on our Servers. Our Servers are not an archive and we shall have no liability to you or any other person for loss, damage or destruction of any of your content. You shall not use the Service in any way, in our sole discretion, that shall impair the functioning or operation of our services or equipment. Specifically by way of example and not as a limitation, you shall not use the Services as: (1) a repository or instrument for placing or storing archived files; and/or (2) placing or storing material that can be downloaded through other websites. You acknowledge and agree that we have the right to carry out a forensic examination in the event of a compromise to your server or account.
- Website/Server Content. You shall be solely responsible for providing, updating, uploading and maintaining your website or server and any and all files, pages, data, works, information and/or materials on, within, displayed, linked or transmitted to, from or through your website or server including, but not limited to, trade or service marks, images, photographs, illustrations, graphics, audio clips, video clips, email or other messages, meta tags, domain names, software and text. You acknowledge and agree that in the course of providing you with the Service, it may be necessary for our support staff to modify, alter or remove the content hosted on your Merchant Site.
5. General Rules of Conduct
You acknowledge and agree that:
- Your use of this Site and the Services , including any content you submit, will comply with this Agreement and all applicable local, state, national and international laws, rules and regulations.
- You will not collect or harvest (or permit anyone else to collect or harvest) any user content, customer information or any non-public or personally identifiable information about any Fancy user or any other person or entity without their express prior written consent.
- You will not use your Merchant Site or the Services in a manner (as determined by Fancy in its sole and absolute discretion) that:
- Is illegal, or promotes or encourages illegal activity;
- Promotes, encourages or engages in child pornography or the exploitation of children
- Promotes, encourages or engages in terrorism, violence against people, animals, or property
- Promotes, encourages or engages in any spam or other unsolicited bulk email, or computer or network hacking or cracking
- Violates the Ryan Haight Online Pharmacy Consumer Protection Act of 2008 or similar legislation, or promotes, encourages or engages in the sale or distribution of prescription medication without a valid prescription
- Infringes on the intellectual property rights of another User or any other person or entity;
- Violates the privacy or publicity rights of another User or any other person or entity, or breaches any duty of confidentiality that you owe to another User or any other person or entity
- Interferes with the operation of this Site or the Services found at this Site;
- Contains or installs any viruses, worms, bugs, Trojan horses or other code, files or programs designed to, or capable of, disrupting, damaging or limiting the functionality of any software or hardware; or Contains false or deceptive language, or unsubstantiated or comparative claims, regarding Fancy or Fancy’s Services.
- You will not copy or distribute in any medium any part of this Site or the Services
- You will not modify or alter any part of this Site or the Services found at this Site or any of its related technologies.
- You agree to back-up all of your User Content so that you can access and use it when needed. Go Daddy does not warrant that it backs-up any Account or User Content, and you agree to accept as a risk the loss of any and all of your User Content.
- You agree to provide government-issued photo identification and/or government issued business identification as required for verification of identity when requested.
- You are aware that Fancy may from time-to-time call you about your account, and that, for the purposes of any and all such call(s), you do not have any reasonable expectation of privacy during those calls; indeed you hereby consent to allow Fancy, in its sole discretion, to record the entirety of such calls regardless of whether Fancy asks you on any particular call for consent to record such call. You further acknowledge and agree that, to the extent permitted by applicable law, any such recording(s) may be submitted in evidence any legal proceeding in which Fancy is a party.
6. Third Party Software
“Third Party Software” means any web-based tool or application developed and owned by a third party provider that we may contract with from time to time. We reserve the right to modify, change, or discontinue any Third-Party Software at any time, and you agree to cooperate in performing such steps as may be necessary to install any updates to the Third-Party Software. The Third-Party Software is neither sold nor distributed to you, and you may use the Third-Party Software solely as part of the Services. You may not use the Third-Party Software outside of the Services. We may provide your personal information to third-party providers as required to provide the Third-Party Software. You acknowledge and agree that your use of the Third-Party Software is subject to our agreement(s) with the third-party providers. In addition, if the Third-Party Software is accompanied by or requires consent to a service or license agreement from the third-party provider, your use of the Third-Party Software is subject to such service or license agreement. You may not download, install, or use any Third-Party Software that is accompanied by or requires consent to a service or license agreement from a third-party provider unless you first agree to the terms and conditions of such service or license agreement. You may not remove, modify, or obscure any copyright, trademark, or other proprietary rights notices that are contained in or on the Third-Party Software. You may not reverse engineer, decompile, or disassemble the Third-Party Software, except and only to the extent that such activity is expressly permitted by applicable law. You acknowledge and agree that the third-party providers (and their affiliates and suppliers) make no representations or warranties about any Third-Party Software offered in connection with the Services, and expressly disclaim any liability or damages (whether direct, indirect, or consequential) arising from the use of the Third-Party Software. You acknowledge and agree that any Third-Party Software will be supported by us and not by the third party providers (or their affiliates or suppliers).
Warehousing and Logistics Services
Fancy hereby agrees to provide Merchant with the receiving, warehousing, order processing, packing, shipping, returns processing and other related services (“Fulfillment Services”) through a 3PL.
1. Description of Warehouse Services
Fancy will provide a solution to Merchant for 3PL fulfillment operations (“Fulfillment Services”) which will include: (a) inventory receipt processing and storage functions; (b) inventory management; (c) receiving orders sent from Merchant’s Merchant Account, then picking and packaging those orders for customer shipment; (d) outbound order packaging, delivery and tracking for customer orders; and (e) the ability to view Fancy’s electronic fulfillment management system to track all activities outlined herein.
All fees shall be outlined at the time of registration of a Merchant Account. Fancy shall provide the Services for Merchant at the prices set forth at the time of registration. As part of its process, Fancy will bill a monthly inventory management fee prior to the month for which the fees are to apply.
3. Price Increases
If Fancy is asked to perform Fulfillment Services for products which do not materially conform to the pricing assumptions and fees identified at the time of registration of a Merchant Account, Fancy may, in its sole discretion, increase the per unit price for the Fulfillment Services for certain Services or individual inventory pieces.
4. Your Responsibilities
- You shall deliver all inventory offered for sale through your Merchant Account (“Inventory”) to Fancy’s designated 3PL warehouse (“Fulfillment Center”) in order to enable Fancy to perform the Fulfillment Services.
- At the time of delivery of Inventory, you shall provide Fancy with a summary, aggregated cost list for all Products (a "Product Cost List"). The Product Cost List will be confidential. This information will be used for the purposes of inventory valuation in connection with the determination of the Shrinkage Allowance (defined below).
- You shall ensure that all Inventory, when delivered to the Fulfillment Center, have proper labeling for identification and storage.
- You shall will provide all shipping and packaging materials to the Distribution Center. In the event that you requests Fancy to source and order all required shipping and packaging materials, Fancy will charge you for the cost of the materials plus an administration fee equal to 10% of the cost of such materials.
5. Title of Goods
Title to Inventory shall remain with the Merchant. Nothing in the Agreement shall be deemed to waive or otherwise limit any lien rights that Fancy may have under applicable law with respect to the inventory.
6. Shrinkage Allowance.
Shrinkage is an uncorrectable negative difference between physical Inventory and Fancy’s book inventory of stock. If inventory accuracy has been maintained between 99.5% and 99.8%, the cost of any inventory discrepancy shall be shared equally by both parties. If the inventory accuracy is less than 99.5%, Fancy shall reimburse Merchant, at Merchant’s, out-of-pocket cost (not to exceed $50 per item), for the amount of the inventory adjustment, which may be provided as a credit toward future services. Inventory accuracy shall be defined as inventory overages minus inventory shortages, as measured by dollar value of the discrepancy and a percentage of total inventory value at Merchant’s cost. The measurement shall be based upon the results of Fancy’s cycle count program with its third party logistics provider unless Merchant requests an additional physical inventory which will be billed to Merchant at an agreed upon rate. Shrinkage overages and shortages roll forward throughout the duration of the contract term and are only payable after two consecutive shortages or expiration of this Agreement.
Termination and Other General Legal Terms
The Agreement is effective upon the date you agree to it (by electronically indicating acceptance) and continues so long as you use the Service or until terminated by Fancy or Payment Gateway.
You may terminate this Agreement by closing your Merchant Account at any time by following the instructions on our website in your account profile or Merchant Account. We may terminate this Agreement and close your Merchant Account at any time for any reason effective upon providing you notice in accordance with this Agreement. We may suspend your Merchant Account and your access to the Service and any funds in your Merchant Account, or terminate this Agreement, if (i) we determine in our sole discretion that you are ineligible for the Service because of the risk associated with your Merchant Account, including without limitation significant credit or fraud risk, or for any other reason; or (ii) you do not comply with any of the provisions of this Agreement, (iii) upon request of an Organization or the a card issuer. ?Termination of your Merchant Account does not terminate your separate account with Payment Gateway or the Fancy Merchant Agreement.
3. Effects of Termination?
Upon termination and closing of your Merchant Account, we will immediately discontinue your access to the Service. You agree to complete all pending transactions, immediately remove all logos for Payments, and stop accepting new transactions through the Service. You will not be refunded the remainder of any Fees that you have paid for the Service if your access to or use of the Service is terminated or suspended. Any funds in our custody will be paid out to you subject to the terms of your payout schedule.
Termination does not relieve you of your obligations as defined in this Agreement and we may elect to continue to hold any funds deemed necessary pending resolution of any other terms or obligations defined in this Agreement, including but not limited to Chargebacks, Fees, Refunds, or other investigations or proceedings.
Termination of this Agreement will not necessarily terminate your Fancy Merchant Agreement, unless Fancy informs you otherwise.
Upon termination you agree: (i) to immediately cease your use of the Service outlined in this Agreement (ii) to discontinue use of any Fancy or Payment Gateway trademarks and to immediately remove any Fancy or Payment Gateway references and logos from your Site (iii) that the license granted under this Agreement shall end, (iv) that we reserve the right (but have no obligation) to delete all of your information and account data stored on our servers, and (v) we will not be liable to you for compensation, reimbursement, or damages in connection with your use of the Service, or any termination or suspension of the Service or deletion of your information or account data.
4. Your License
We grant you a personal, limited, non-exclusive, revocable, non-transferable license, without the right to sublicense, to electronically access and use the Service solely to accept and receive payments and to manage the funds you so receive. The Service includes our website, documentation, tools, internet-based services, components, and any updates (including Site or Application maintenance, service information, help content, or other releases) thereto provided to you by us. You will be entitled to download updates to the Service, subject to any additional terms made known to you at that time, when we make these updates available.
The Service is licensed and not sold. We reserve all rights not expressly granted to you in this Agreement. The Service is protected by copyright, trade secret and other intellectual property laws. We own the title, copyright and other worldwide Intellectual Property Rights (as defined below) in the Service and all copies of the Service. This Agreement does not grant you any rights to our trademarks or service marks.
For the purposes of this Agreement, "Intellectual Property Rights" means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
You may choose to or we may invite you to submit comments or ideas about the Service, including without limitation about how to improve the Service or our products ("Suggested Enhancements"). By submitting any Suggested Enhancement, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place us under any fiduciary or other obligation, and that we may implement the Suggested Enhancement without any additional compensation to you, and/or to disclose the Suggested Enhancement on a non-confidential basis. You further acknowledge that, by acceptance of your submission, we do not waive any rights to use similar or related ideas previously known to us, or developed by our employees, or obtained from sources other than you.
6. Your Liability
You are responsible for all Reversals, Chargebacks, Claims, fines, fees, penalties and other liability arising out of or relating to your breach of this Agreement, and/or your use of the Service. You agree to reimburse your customer, Fancy or Payment Gateway and any third party designated by Fancy, or Payment Gateway for any and all such liability. "Chargeback" means a request that a buyer customer files directly with his or her card company or card issuing bank to invalidate a processed payment. "Claim" means a challenge to a payment that you or a buyer customer files directly with Fancy. "Reversal" means Fancy reverses the settlement of funds from a processed card transaction that you received because (a) the card transaction is invalidated by the card issuer, (b) the settlement funds were sent to you in error by (i) Fancy, Payment Gateway or Payment Gateway; (ii) the processors, suppliers or licensors of Fancy, Payment Gateway or Payment Gateway; or (iii) any of the respective affiliates, agents, directors and employees of any of the entities listed in (i) or (ii) above, (c) the sender of the payment did not have authorization to send the payment (for example: the customer used a card that that the customer was not authorized to use), (d) you received the payment for activities that violated this Agreement or any other Fancy or Payment Gateway agreement, or (e) we decided a Claim against you.
We will have the final decision-making authority with respect to Claims, including without limitation claims for refunds for purchased items that are filed with us by you or your customers. You will be required to reimburse us for your liability. Your liability will include the full purchase price of the item plus the original shipping cost (and in some cases you may not receive the item back). You will not receive a refund of any fees paid to us.
Without limiting the foregoing, you agree to defend, indemnify, and hold harmless Fancy, and Payment Gateway and their respective employees and agents (collectively "Disclaiming Entities") from and against any claim, suit, demand, loss, liability, damage, action or proceeding arising out of or relating to (i) your breach of any provision of this Agreement, and/or (ii) your use of the Service, including without limitation any Reversals, Chargebacks, Claims, fines, fees, penalties and attorneys' fees; (iii) your, or your employee's or agent's, negligence or willful misconduct; or (iv) third party indemnity obligations we incur as a direct or indirect result of your acts or omissions (including indemnification of any Payment Network or Issuer).
If you are liable for any amounts owed to us, we may immediately remove such amounts from your Reserve Account and deduct the amounts owed to us from such Reserve Account funds. If you do not have sufficient funds in the Reserve Account to cover your liability, you will be required to immediately add additional funds to your Reserve Account to cover funds owed to us. If you do not do so, we may engage in collections efforts to recover such amounts from you at your cost and expense.
7. Representation and Warranties
You represent and warrant to us that: (a) you are at least eighteen (18) years of age; (b) you are eligible to register and use the Service and have the right, power, and ability to enter into and perform under this Agreement; (c) the name identified by you when you registered is your name or business name under which you sell goods and services and are authorized to do so; (d) any sales transaction submitted by you will represent a bona fide sale by you; (e) any sales transactions submitted by you will accurately describe the goods and/or services sold and delivered to a purchaser; (f) you will fulfill all of your obligations under the Merchant Account and to each customer and as required when you submit a transaction and will resolve any consumer dispute or complaint directly with the purchaser; (g) you and all transactions initiated by you will comply with all federal, state, and local laws, rules, and regulations applicable to your business, including any applicable tax laws and regulations; (h) except in the ordinary course of business, no sales transaction submitted by you through the Service will represent a sale to any principal, partner, proprietor, or owner of your entity; (i) you will not use the Service, directly or indirectly, for any fraudulent undertaking, material misrepresentation to Fancy or a third party, or in any manner so as to interfere with the use of the Service.
8. No Warranties
THE SERVICE AND ALL ACCOMPANYING DOCUMENTATION ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. USE OF THE SERVICE, INCLUDING THOSE PROVIDED BY FANCY OR PAYMENT GATEWAY IS AT YOUR OWN RISK.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM OR THROUGH THE SERVICE OR FROM (I) FANCY OR PAYMENT GATEWAY; (II) THE PROCESSORS, SUPPLIERS OR LICENSORS OF FANCY, OR PAYMENT GATEWAY; OR (III) ANY OF THE RESPECTIVE AFFILIATES, AGENTS, DIRECTORS AND EMPLOYEES OF ANY OF THE ENTITIES LISTED IN (I) OR (II) ABOVE (COLLECTIVELY, THE "DISCLAIMING ENTITIES" AND INDIVIDUALLY A "DISCLAIMING ENTITY"), WILL CREATE ANY WARRANTY. YOU SPECIFICALLY ACKNOWLEDGE THAT WE DO NOT HAVE ANY CONTROL OVER THE PRODUCTS OR SERVICES THAT ARE PAID FOR WITH THE SERVICES, AND WE CANNOT ENSURE THAT YOUR CUSTOMERS WILL COMPLETE A TRANSACTION OR ARE AUTHORIZED TO DO SO AT THE TIME OF THE TRANSACTION.
WITHOUT LIMITING THE FOREGOING, THE DISCLAIMING ENTITIES DO NOT WARRANT THAT THE INFORMATION THEY PROVIDE OR THAT IS PROVIDED THROUGH THE SERVICE IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, THAT THE SERVICE WILL FUNCTION IN AN UNINTERRUPTED MANNER OR BE SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY SUBJECT MATTER DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD. THE DISCLAIMING ENTITIES MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT HOW LONG WILL BE NEEDED TO COMPLETE THE PROCESSING OF A TRANSACTION.
THE DISCLAIMING ENTITIES DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND NEITHER FANCY NOR PAYMENT GATEWAY WILL BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
9. Limitation of Liability and Damages
IN NO EVENT SHALL A DISCLAIMING ENTITY (AS DEFINED IN SECTION 8 ABOVE) BE LIABLE FOR ANY LOST PROFITS, LOSS OF DATA, OR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF, IN CONNECTION WITH OR RELATING TO THIS AGREEMENT OR THE SERVICES, INCLUDING WITHOUT LIMITATION THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE SERVICE. UNDER NO CIRCUMSTANCES WILL ANY OF THE DISCLAIMING ENTITIES (AS DEFINED IN SECTION 8 ABOVE) BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR MERCHANT ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
THE DISCLAIMING ENTITIES ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (A) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICE FOR ANY PURPOSE; (B) ANY UNAUTHORIZED ACCESS TO OR USE OF SERVERS USED IN CONNECTION WITH THE SERVICES AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (C) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (D) ANY SOFTWARE BUGS, VIRUSES, TROJAN HORSES, OR OTHER HARMFUL CODE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICE; (E) ANY ERRORS, INACCURACIES OR OMISSIONS IN ANY CONTENT OR INFORMATION, FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT OR INFORMATION, IN EACH CASE POSTED, EMAILED, STORED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (F) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY.
WITHOUT LIMITING THE FOREGOING PROVISIONS OF THS SECTION 9, THE DISCLAIMING ENTITIES' CUMULATIVE LIABILITY TO YOU SHALL BE LIMITED TO DIRECT DAMAGES AND IN ALL EVENTS SHALL NOT EXCEED IN THE AGGREGATE THE AMOUNT OF FEES PAID BY YOU TO FANCY DURING THE NINTY (90) DAY PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY.
THIS LIMITATION OF LIABILITY SECTION APPLIES REGARDLESS OF THE LEGAL THEORY ON WHICH THE CLAIM IS BASED, INCLUDING WITHOUT LIMITATION CONTRACT, TORT, INCLUDING NEGLIGENCE, OR STRICT LIABILITY, OR ANY OTHER BASIS. THE LIMITATIONS APPLY EVEN IF FANCY, PAYMENT GATEWAY OR PAYMENT GATEWAY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
THE PROVISIONS OF THIS SECTION 9 SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
The Service is controlled and operated from its facilities in the United States and internationally. We make no representations that the Service is appropriate or available for use in locations outside the United States. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States, foreign and local laws and regulations, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the United States.
10.Disputes; Choice of Law; Jurisdiction and Venue
You agree that any disputes arising out of or relating to this Agreement or the Service shall be resolved in accordance with this Section 10.
This Agreement is governed by the laws of the State of New York without regard to its choice of law provisions. The exclusive venue for any actions or claims arising under or related to this Agreement shall be in the appropriate state or federal court located in New York County, New York. ALL PARTIES IRREVOCABLY WAIVE ANY AND ALL RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING ANY CLAIM RELATING TO OR ARISING UNDER THIS AGREEMENT. You and we each represent to the other that this waiver is knowingly, willingly and voluntarily given. Headings are included for convenience purposes only, and shall not be considered in interpreting this Agreement. The Agreement does not limit any rights that we may have under trade secret, copyright, patent or other laws. Our failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term.
11.Right to Amend
We have the right to change or add to the terms of this Agreement at any time, and to change, delete, discontinue, or impose conditions on any feature or aspect of the Service or software with notice that we in our sole discretion deem to be reasonable in the circumstances, including such notice on our Site (www.www.danhowes.com/terms) or any other website maintained or owned by us for the purposes of providing services in terms of this Agreement.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you without our prior written consent, but may be assigned by us without consent or other restriction.
13.Change of Business
You agree to give us at least 30 days prior notification of your intent to change your current product, offerings or services types, your trade name or the method in which you accept payment. You agree to provide us with prompt notification if you are the subject of any voluntary or involuntary bankruptcy or insolvency petition or proceeding. You also agree to promptly notify us of any adverse change in your financial condition, any planned or anticipated liquidation or substantial change in the basic nature of your business, any transfer or sale of 25% or more of your total assets or any change in the control or ownership of you or your parent entity. You will also notify us of any judgment, writ, warrant of attachment, execution or levy against 25% or more of your total assets not later than three days after you obtain knowledge of it.
This Agreement binds you and your respective heirs, representatives, and permitted and approved successors (including those by merger and acquisition) or any permitted assigns.
15.Third Party Services and Links to Other Web Sites
No party will be liable for delays in processing or other nonperformance caused by such events as fires, telecommunications failures, utility failures, power failures, equipment failures, labor strife, riots, war, terrorist attack, nonperformance of our vendors or suppliers, acts of God, or other causes over which the respective party has no reasonable control, except that nothing in this section will affect or excuse your liabilities and obligations under Section D6, including without limitation for Reversals, Chargebacks, Claims, fines, fees, refunds or unfulfilled products and services.
17.Entire Agreement; Remedies
These terms and conditions and all policies and procedures that are incorporated herein by reference constitute the entire agreement between you, Fancy and the Payment Gateway with respect to the provision of the Service. In the event of a conflict between this Agreement and any other Fancy or Payment Gateway agreement or policy, this Agreement shall prevail on the subject matter of this Agreement. Except as expressly provided in this Agreement, these terms describe the entire liability of Fancy and Payment Gateway and our vendors and suppliers (including processors) and sets forth your exclusive remedies with respect to the Service and your access and use of the Service. If any provision of this Agreement, or portion thereof, is held to be invalid or unenforceable under applicable law, then it shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect.
This Agreement has been reviewed by you with the benefit of independent legal counsel, to the extent you consider necessary, and any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply to the construction or interpretation of this Agreement. The rights conferred upon us in this Agreement are not intended to be exclusive of each other or of any other rights and remedies we may have at law or in equity. Rather, each and every right we may have under this Agreement, at law or in equity is cumulative and concurrent and in addition to every other right.
In addition to any provision that is reasonably necessary to accomplish or enforce the purpose of this Agreement, the following sections of this Agreement survive and remain in effect in accordance with their terms upon the termination of this Agreement: Sections A(10), C(4), C(5),C(6),C(9), C(10),C(11), C(12), F(3), F(5), F(6), F(8), F(9), F(10), F(17), F(18) and F(19).
Fancy can be reached via email at email@example.com and its phone number is 1-917-746-9895. Fancy and Payment Gateway disclose that: (a) it is responsible for and must provide settlement funds to you; and (b) it is responsible for all funds held in reserve that are derived from settlement.