Effective Date: September 8, 2022
Welcome to OrderMyGear (or OMG, for short)!
This Terms of Service sets forth the general terms and conditions for the services you purchase or use from us (OrderMyGear LLC, or “OMG”) including when you are selling stuff through a store powered by OMG’s web interface (a “store”) (we’ll call you a “merchant”), shopping in a merchant’s store powered by OMG (we’ll call you a “customer”), or simply checking out our website. It applies to your use or purchase of OMG’s “services,” which include, for example, this website (www.ordermygear.com), webpages on stores (whose URL will end in .itemorder.com or .ordermygear.com), our services for merchants (for example, our web interface ), and our customer support. If you are using our services on behalf of a company, the Terms of Service apply to you, your company, and your company’s employees, representatives, successors, and assigns.
If you are a merchant and you have one or more separate agreements (referred to as a “separate merchant agreement”) with us regarding our services, the terms of any separate merchant agreement will control over the Terms of Service, if there is a conflict between what those terms say and what the Terms of Service say.
1. By using our services, you accept the Terms of Service. We will change them occasionally, so make sure you stay up to date.
Make sure you read everything in the Terms of Service before you use our services. You are legally bound by the Terms of Service each time you use our services, even if the Terms of Service have been updated since you last read them.
Please do not use our services or even browse our website or any store if you disagree with any part of the Terms of Service, including, for example:
– the waiver of your right to a jury trial or court resolution to a dispute (see Section 20 for more);
– the requirement to resolve disputes with us in arbitration (rather than, for example, by suing us in court) (see Section 20 for more);
– the prohibition of class action lawsuits against us (see Section 20 for more); and
– the one (1) year time period you have to sue us under the Terms of Service (see Section 23 for more).
We may update the Terms of Service at any time. When we make significant changes to the Terms of Service, we’ll update the date at the top of this page. Your continued use of our services following the posting of an updated Terms of Service means that you accept and agree to the changes, so please check this page occasionally to make sure that you are up to date. A version of the Terms of Service becomes effective when it is first posted on our website. The current Terms of Service supersede anything we may have already discussed or agreed to with you about our services, except to the extent you have a separate merchant agreement with us.
If you are a merchant, additional terms apply (see Section 28 for more).
2. By using our services, you are warranting certain information about yourself and how you will act.
By using our services (for example, this website or a store), you represent and warrant that:
– You are 18 years of age or older or the parent or guardian of a minor who you are authorizing to use our services;
– You understand and agree that the Terms of Service are a legally binding agreement and the equivalent of a signed, written contract;
– If you are a representative of a business or company, that you are authorized to bind the business or company to the Terms of Service;
– You will provide only true, accurate, complete and current information to OMG;
– You are not a resident of the European Economic Area (EEA);
– You will abide by the Terms of Service; and
– If you are a merchant, you have established practices and policies to comply with the privacy and data security laws in each jurisdiction where your customers reside.
3. Minors under 18 are not allowed to use this website or browse stores.
Our services are not intended for use by minors. If you are under 18 years of age, you are not authorized to use our services.
4. You do not own our website. Our website is our valuable intellectual property.
Our website, all the content, code, data, works of authorship and materials on our website, the look and feel, design and organization of our website, and the compilation of the material on our website (collectively referred to as “our content”) are protected by U.S. and international trade secret, copyright, trademark, and other laws. OMG and its licensors own, solely and exclusively, all rights, title and interest in and to our website and our content, including, for example, all intellectual property and proprietary rights. Your use of our website or our content does not grant to you any ownership in any of it.
OMG owns (or licenses the right to use) all trademarks, logos, service marks and trade names (collectively referred to as “our trademarks”) displayed on our website. To use any of our trademarks, you must have our written permission (or the written permission of the actual owner of the trademark, if they license it to us).
OMG will let you access, display and use our website as long as you continue to comply with the Terms of Service. This right is granted solely to allow you to use our services as permitted by the Terms of Service. You agree not to remove, alter or obscure any proprietary notices provided in or with our website’s content.
If you are a merchant, see Section 28(B) for information on your rights to your content.
5. The Terms of Service grant OMG significant rights.
OMG has the following rights:
– To decline to offer you our services for any reason or no reason, in our sole discretion.
– To suspend, limit access to, limit the use of, or terminate any account, in our sole discretion.
– To reject, cancel, interrupt, remove, or suspend any store at any time and for any reason.
– To change or alter our website, the form and nature of our website or any services provided through our website, including requiring payment for some or all uses of our website, at any time.
– To review, modify, filter, disable, delete and remove any and all content and information from our website or from a store.
– To update and download automatically any software provided on or through our website.
– To cooperate, in accordance with applicable law, with any law enforcement, court or government investigation or order or third party requesting or directing that we disclose content or information that you provide.
– To terminate, change, upgrade, suspend, limit, or discontinue any aspect of the services, including, for example, content, features, hours of availability or equipment required for access.
You agree that the foregoing are rights of, but not obligations of, OMG and that OMG may, but is not obligated to, exercise any of these rights.
6. OMG does not manufacture, decorate, or sell stuff to merchants or customers. OMG is not responsible for any issues you may have with merchants, suppliers, manufacturers, decorators, or anyone else involved in the fulfillment of your order.
OMG has developed a web interface that enables merchants to sell stuff online. Sales are between the merchant and the customer and not between OMG and the customer. If you experience any issues or problems with an order you place through a store or any product you receive, you should address them with the merchant. OMG is not responsible for any issues or problems you may have with the stuff you order.
OMG is not responsible if disputes arise between customers, merchants, decorators, and suppliers. When you use our services, you release OMG from claims, damages, and demands of every kind — known or unknown, suspected or unsuspected, disclosed or undisclosed — related to disputes among merchants, suppliers, manufacturers, decorators, and customers.
7. Don’t do things that will violate law or the Terms of Service.
You may use our website and our services only for lawful purposes, and you are solely responsible for ensuring that you do so. OMG does not review or take responsibility for any information that you, or other users, may create, transmit, post, store, distribute, display or present using our website or our services.
Do not use our website or our services for any of these things:
– Don’t breach any contract or legal duty you have toward anyone.
– Don’t infringe or violate anyone’s trademarks or other intellectual property rights.
– Don’t offer any products or services that are illegal under any applicable laws or that violate any of OMG’s policies.
– Don’t spam people or send them any other junk mail.
– Don’t bypass any measures we’ve put in place to secure our services.
– Don’t use any kind of software or device (whether it’s manual or automated) to “crawl” or “spider” any part of our website.
– Don’t falsely state or imply that OMG sponsors, endorses, or is otherwise affiliated with you or your content. But keep in mind that if you are a merchant, you will not get in trouble for the OMG logo we place at the bottom of your stores.
– Don’t violate or infringe anyone’s privacy rights.
– Don’t use, modify, collect, publish, transmit, participate in the transfer, rental or sale of, create derivative works from, or in any way exploit any of our content, in whole or in part, for any purpose.
– Don’t frame or use framing techniques to enclose our website or any part thereof.
As provided in Section 5, we may immediately remove materials that violate the prohibitions above, stop your use of our website, and/or remove your account, among other things. We may cooperate with any law enforcement authorities or court order or subpoena or third party requesting or directing us to disclose the identity of anyone posting such materials.
8. We use a third party to process your payments and financial information. OMG is not liable for the third-party payment processor’s actions.
Your payments will be processed through Stripe, Inc. or through another third party payment processor. Payments may not be processed for certain activities such as illegal or other prohibited activities.
Your relationship with a third-party payment processor is separate from your relationship with OMG and may be governed by the terms and conditions contained in the processor’s agreement. OMG is not responsible for the actions or omissions of any third-party payment processor.
If you are a merchant, you may be subject to additional terms and conditions provided by Stripe, Inc. See Section 28(E) for more information.
9. Merchants are responsible to collect and remit any sales tax due to state and/or local governments.
As a merchant, you might need to charge taxes on your sales, and collect, report, and remit taxes to state and/or local governments. OMG is not a marketplace facilitator for state sales tax purposes and is not required to nor does it collect and remit sales taxes on your behalf. You may be required to register your business with state or local federal tax authority to be authorized to conduct business in their jurisdictions and to remit sales tax. You should always check with a taxing authority or tax attorney or accountant to determine your sales and use tax collection obligations and to make sure you collect the correct amount of sales tax, and to make sure you file and remit taxes correctly.
10. Your personal information will be handled according to our Privacy Policy.
OMG agrees to handle your personal information according to the terms of our Privacy Policy, which is incorporated into the Terms of Service by reference. You agree to our use of your personal information in accordance with our Privacy Policy, which may be updated from time to time.
11. If you are a customer shopping in a store, these terms apply to you in addition to the Terms of Service.
– You’re charged as soon as you place an order. Even though your order may be delivered weeks or months after the fact, your credit card will be charged immediately. See Section 8 for how your payments are processed.
– If you have questions about your order, contact the merchant directly, and not OMG. Contact information for the merchant is available on the web page for the store. The merchant can answer questions, make changes, or issue credits or refunds for your order. In some instances, at the direction of the merchant, OMG may facilitate an additional charge or credit using your original payment method. For example, our customer service representatives may, on behalf of the merchant, refund you for an item you returned.
– The delivery date listed on a store, if provided, is the merchant’s estimate of when they will deliver your order — not a guarantee.
12. Your use of any services provided by third parties is separate of your use of our services, so use them at your own risk.
Occasionally, as we think it may be helpful to you, we may suggest or incorporate third party services (“third party services“) provided by third parties (“third party providers“) into our services. For example, we may connect you with shipping, payment, and fulfillment services via third-party providers. Sometimes we will collect a fee from these third-party providers in connection with their third-party services.
Your use of any third-party services will be governed by the terms of service of the third-party provider of the third party services and is at your own risk, so please proceed carefully if you decide to use them.
We cannot and do not make any promises or warranties about the quality of third-party services. You acknowledge that OMG has no control over third party providers and so we will not be liable to anyone for problems with third party services. The availability of third-party services on OMG’s websites or the integration of such third party services with our services does not mean OMG endorses, authorizes, or otherwise takes responsibility for the actions of any third party providers.
If you use a third-party service, you grant OMG permission to allow the applicable third party provider to access your data and your customers’ data and to take any other actions as required for the coordination of the third-party services with our services. Any exchange of data or other interaction between you and the third-party provider is solely between you and such third-party provider and is subject to the terms of the third-party provider’s privacy policy. OMG is not responsible for any disclosure, modification or deletion of your data or your content, or for any corresponding losses or damages you may suffer, as a result of access to or use of your data or your content by a third-party provider.
Our liability is limited to you for your use of third-party services as provided in Section 19 below, and you agree to indemnify us for issues with third-party services as provided in Section 17 below.
13. You must abide by laws that control what sales can take place with persons outside of the U.S.
United States export control laws govern your use of our services. These laws apply to you and your use of our services regardless of whether you actually reside in the U.S.
You may not use our services for any purpose that violates export control laws, which may include the sale of products that may be legal to sell in the U.S., but illegal to export. You may not use our services to offer or provide services to end customers with whom U.S. citizens may not do business.
Additional information about U.S. export laws may be obtained from the United States government’s portal to exporting and trade services at the following website: https://www.export.gov/Legal-Considerations.
14. If you are a resident of the European Economic Area (EEA), our services are not intended for your use.
We do not knowingly collect information from any residents protected by the European Union (EU) privacy and data security laws and are not certified by the EU to transfer or protect information of residents of the EEA according to EU laws and regulations. THEREFORE, IF YOU ARE AN EEA RESIDENT, PLEASE DO NOT USE OUR WEBSITE.
15. If you come to our website from another website, or if you click any links on our website to another website, you do so at your own risk.
You may be able to link from our website to third party website and third-party website may link to our website (in both cases, referred to as a “linked site”). Your use of linked sites is completely at your own risk. You acknowledge and agree that OMG has no responsibility or liability for what you see on or obtain through a linked site. We do not know if the content of any linked site is accurate, compliant with state or federal law, or compliant with copyright or other intellectual property laws.
16. The Terms of Service will apply indefinitely.
All provisions of the Terms of Service survive if you stop using our services and/or if you terminate your account, including, for example, our rights regarding any content you’ve already submitted to our website. Also, everything that you have represented to us in the Terms of Service will survive indefinitely.
17. If you do something wrong and it causes us problems, you will have to pay us (that is, indemnify us) for our trouble.
To the maximum extent permitted by law, you agree to indemnify and hold harmless OMG, its affiliates, officers, members, owners, directors, managers, employees, agents, and representatives (collectively referred to as “related parties”) from and against any and all claims, damages, obligations, losses, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ fees), arising out of or related in any way to (a) your use of our services, (b) your submission, posting, transmittal, transfer (whether intentional or unintentional), display, storage, distribution, removal, or any other use of any personal information pertaining to yourself or another, (c) your violation of the Terms of Service, (d) your violation of any law or regulation, including, without limitation, any anti-spam laws of any applicable jurisdiction, (e) your violation of any intellectual property right, including, without limitation, copyright, patent, trademark or trade secret, (f) any claim that your information or any other content by you caused damage to a third party, (g) your misuse of customer information, (h) your failure to secure customer information in accordance with applicable law and any other action you take in violation of privacy and data security laws applicable to the situation, (i) your use of third party services or your relationship with a third party provider or (j) your failure to collect, remit, and/or report the appropriate amount of sales or use tax (including any penalties and interest) to any state or local government. This indemnification obligation will survive the Terms of Service and your use of our services. OMG reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with OMG’s defense of such claim.
18. WE DISCLAIM ANY WARRANTIES. YOUR USE OF OUR SERVICES (WHICH INCLUDES OUR WEBSITE) AND OUR CONTENT IS AT YOUR OWN RISK.
You agree to assume all responsibility and risk for your use of our website, our services, and our content. To the fullest extent permissible under applicable law, neither OMG nor its related parties make any express or implied warranties or representations whatsoever with respect to our website, our services, or our content, including but not limited to any warranties of merchantability, non-infringement, and fitness for particular purpose.
Neither OMG nor any related parties endorse or make any representation or warranty with respect to the accuracy, reliability, timeliness, or completeness of our website, our services, or our content or that our website, our services or our content is non-defamatory, non-infringing or otherwise lawful. Neither OMG nor any related parties warrant that the functions performed by our website, our services, or our content will be uninterrupted, timely, secure or error-free, or that defects in our website, our services, or our content will be corrected. Neither OMG nor any related parties guarantee or warrant that the files available for downloading will be free from infection by software viruses or other harmful computer code, files, or programs. Our website, our services, and our content are provided on an “as is,” “where is, “ “where available” and “as available” basis. You acknowledge that any reliance on or use of our website, our services, and our content is at your sole risk.
To the fullest extent provided by law, we will not be liable for any loss or damage caused by a distributed denial-of-service attack, viruses, or other technologically harmful material that may infect your computer equipment, computer programs, data, or other proprietary material due to your use of our website, any downloads from our website or through our services, or any other of our services.
19. OUR LIABILITY TO YOU IS LIMITED. THAT MEANS THAT IF YOU SUFFER LOSSES, WE DO NOT HAVE TO COMPENSATE YOU FOR THEM.
To the fullest extent provided by law, in no event will OMG or any related party be liable to any person or entity for any indirect, special, punitive, incidental or consequential damages or damages resulting from lost profits, lost data or business interruption, even if foreseeable, arising out of or in connection with the use, inability to use, or the results of use of OMG’s services, any third party services or third party provider, any website linked to OMG’s website, or OMG’s content, whether based on warranty, contract, tort or any other legal theory and whether or not OMG or a related party is aware of or of advised the possibility of such damages.
You specifically agree that OMG will not be liable for any users’ content or any defamatory, offensive or illegal conduct of a third party and that you assume the full risk of harm or damage from the foregoing.
If you are a customer, the total dollar amount of OMG’s liability to you shall not under any circumstances exceed ten U.S. dollars ($10.00).
If you are a merchant, see Section 28(J) for more.
20. YOU AGREE TO RESOLVE ISSUES BETWEEN YOU AND OMG IN MANDATORY ARBITRATION IN DALLAS, TEXAS, AND NOT BY A COURT OR BY A JURY.
Any dispute or claim relating in any way to the Terms of Service, your relationship with OMG, or your use of our services (collectively referred to as a “claim”) will be resolved exclusively by final and binding arbitration, rather than by court or a jury. The only exception to such mandatory arbitration is that you are NOT prohibited from resolving any such dispute or claim as an individual claim in a small claims court. The exclusive venue for the arbitration shall be Dallas County, Texas.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the Terms of Service as a court would.
If for any reason a claim proceeds in court rather than in arbitration, we each waive any right to a jury trial. You acknowledge that you make this jury waiver knowingly, voluntarily, and willingly.
This arbitration provision is entered pursuant to the Federal Arbitration Act. The arbitration, and any appeal, shall be governed by the substantive law of the State of Texas and the applicable rules of the American Arbitration Association (“AAA”).
If, for any reason, the arbitration and/or appeal cannot be conducted before AAA or pursuant to AAA rules, and the parties cannot agree to an alternative arbitration service and/or rules, any court of competent jurisdiction in Dallas County, Texas may appoint an arbitrator and/or select appropriate arbitration rules to govern the arbitration and/or appeal.
Each party shall pay an equal share of the arbitrator(s)’ fees and costs relating to the arbitration, subject to the arbitrator(s)’ authority to reallocate such fees and costs in his or her discretion. In any event, each party shall be responsible for payment of their own attorney’s fees and legal costs.
Either party may seek temporary injunctive relief in federal or state court in Dallas County, Texas, exclusively, at any time until the selection of the arbitrator(s) is completed. Once the selection of the arbitrator(s) is completed, the arbitrator(s) shall assume responsibility for any further action or rulings with respect to any such temporary injunction action. The parties consent to personal jurisdiction and venue in the federal and state courts of Dallas County, Texas, solely for the purpose of any such temporary injunction action.
We each agree that any dispute, whether arbitrated or brought in small claims court, will be conducted only on an individual basis and not in a class, consolidated or representative action. Without limiting the generality of the preceding sentence, each party agrees to pursue its claims on an individual basis and not to (1) join its claims with any other person or entity’s claims, (2) pursue any claim as a representative of a class, as a private attorney general or in any representative capacity, or (3) participate in a class or collective action or mass action with respect to any claim. It is the express intent of the parties that the arbitrator, or, as applicable, small claims court, shall not have the power to award class or collective relief or to determine or order that the dispute should proceed as a class or collective action, whether in arbitration or in any other forum or venue. The parties understand and acknowledge that by entering this arbitration provision, they are waiving their rights to have a court or jury adjudicate their claims.
If any inconsistency arises between the terms of this arbitration provision and any other arbitration agreement applicable to the parties, the terms of this arbitration provision shall control.
The parties adopt and agree to implement the AAA Optional Appellate Arbitration Rules with respect to any award subject to this arbitration provision. Written notice of appeal shall be provided to the opposing party and the arbitration service and shall comply with the requirements of the AAA Optional Appellate Arbitration Rules or such other arbitration appellate rules to which the parties may agree or which a court may designate pursuant to the process described earlier in this arbitration provision.
21. The Terms of Service are governed by Texas law.
The Terms of Service, the Privacy Policy, and the relationship between you and OMG shall be governed by and construed in accordance with the laws of the State of Texas, without regard to its conflict of law provisions.
22. If a court finds part of the Terms of Service invalid, it won’t invalidate the whole of the Terms of Service.
If any provision of the Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the tribunal should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms of Service remain in full force and effect.
23. You have one year to sue us if something goes wrong.
Any cause of action you may have with respect to your use of our website or our services must be commenced within one (1) year after the claim or cause of action arises.
24. No Other Agreements.
The Terms of Service and any order you make of OMG services on our website or otherwise constitutes the entire agreement between OMG and you with respect to our services and our content, and supersedes all prior or contemporaneous communications and proposals, whether electronic, oral, or written, between you and OMG with respect to our services and our content, unless an agreement specifically provides that it is not superseded by the Terms of Service and said agreement is in writing and signed by both parties.
However, if you are a merchant and you have a separate merchant agreement with us regarding our services, the terms of that separate merchant agreement will control over the Terms of Service, if there is a conflict.
Upon termination, those provisions of the Terms of Service that expressly or by their nature survive will continue in full force and effect.
25. You can’t substitute anyone else in your place as a party to the Terms of Service without permission, but we can.
You may not assign the Terms of Service or delegate your obligations under the Terms of Service, or any part of the Terms of Service, without the express written consent of OMG. You agree that OMG may assign, transfer, or delegate any of its rights or obligations under the Terms of Service at any time and for any reason without prior notice or your consent.
26. If you suspect someone is infringing your registered trademark, please let us know.
OMG takes trademark rights seriously and will investigate reasonable trademark issues that are brought to its attention. Please keep in mind, however, that sometimes more than one person can own the same or similar trademarks, depending on where and how they are used.
If you believe that a merchant is infringing your registered trademark, then you may send us a takedown request. We will not be able to properly review a request unless it includes all of the following:
– Your physical or electronic signature.
– The registration number(s) for the trademark.
– The countries or territory in which the trademark is registered.
– What the trademark is. For instance, is the trademark a word mark, design mark or combination?
– A list of the goods and/or services for which the trademark is registered and the length of time you have been using the trademark on those goods and services.
– A statement of why you believe your trademark rights have been infringed.
– Sufficient identification of the material you believe to be infringing.
– Your name, postal address, telephone number, and, if available, email address.
– A statement that the information in the written notice is accurate.
– A statement, under penalty of perjury, that you are authorized to act on behalf of the trademark owner.
If you have a legitimate claim, then the allegedly infringing material will be taken down. If action is taken, we will forward the claim to the merchant along with notice of what we did. If we believe a merchant is potentially infringing another person’s trademark, we can take all action we deem necessary to take down the allegedly infringing material.
27. If you suspect someone is infringing your copyright, please let us know.
We will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any materials accessible on or from our website infringe your copyright, you may request our removal of those materials (or access to them) by submitting written notification to our copyright agent designated below. In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”), the written notice must include substantially the following:
– Your physical or electronic signature.
– Identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on our website, a representative list of such works.
– Sufficient identification of the material you believe to be infringing.
– Your name, postal address, telephone number, and, if available, email address.
– A statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent, or the law.
– A statement that the information in the written notice is accurate.
– A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
Our designated copyright agent to receive these notices is:
Copyright Agent
OrderMyGear LLC
2211 Commerce St.
Suite 300
Dallas, TX 75201
copyright@ordermygear.com
If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your notice may not be effective.
Please be aware that if you knowingly materially misrepresent that material or activity on our website is infringing your copyright, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.
28. If you are a merchant, the special terms in this Section apply to you in addition to the rest of the Terms of Service.
A. PRIVACY PRACTICES.
You must establish and agree to maintain and adhere to privacy practices for your store(s) that comply with applicable laws and regulations. You will collect and protect your customers’ personal information with equal or greater care than OMG does.
You consent to the processing and transfer of all your information and customer information by OMG, and third parties contracted by OMG, to assist in the performance and improvement of our services. You may not use your customers’ information in violation of any law, statute, ordinance, regulation, or industry guideline.
B. STORE OPERATION AND INTELLECTUAL PROPERTY.
You are responsible for all activities that occur in, on, or through your account, regardless of who did it. It is your responsibility to secure and protect your account and to manage the users within your account.
You must sufficiently monitor all of your stores. Except to the extent you separately engage OMG to conduct fulfillment services, you are responsible for fulfilling your customers’ orders as well as any other obligations after the order has been fulfilled, such as returns, refunds, or the handling of defective products. We are not involved in fulfillment or delivery of any goods or services purchased through our platform, except to the extent we have been separately engaged to provide fulfillment services to you.
You own and are responsible for the stuff you post, create, or put up for sale, including, for example, product artwork, images, logos, and text (collectively referred to as “your content”). OMG will not be liable for any errors or omissions in any of your content.
OMG does not own your content and does not seek to infringe your intellectual property rights, but we may need to use your content to provide our services. So, to the extent that you post or otherwise provide OMG with your content, including photographs, audio, text, graphics or other works of authorship, on or through the website or your account, you grant to OMG the right (which is a non-exclusive, fully paid up, royalty free, irrevocable, unlimited, worldwide license) to reproduce, display, perform, use and create derivative works from such content.
You promise that if we use your content, we’re not violating anyone else’s rights, including, for example, any trademarks, publicity rights, contract rights, or any other intellectual property or proprietary rights.
Any royalties or licensing on your content are your responsibility. You will pay all royalties and other amounts owed to any person or entity based on your content, or on OMG’s hosting of that content.
C. PAYMENT FOR PURCHASES AND OUR FEES.
You agree to pay all amounts due for services according to the terms posted online on our website or otherwise communicated to you in writing. The fees charged by OMG shall be deemed to have been earned on the date payment is due and shall be non-refundable. We reserve the right to change our prices and fees at any time, and such changes will be posted online on the website or otherwise communicated to you and shall be effective immediately upon no further notice to you.
We’ll deposit your funds based on the payout schedule you configure with us. We are not responsible for ensuring that the information you provide us for your payouts (for example, ACH account numbers) is accurate or that your payouts are transferred successfully or timely. You are liable for any issues that arise due to your (or one of your employee’s) provision of invalid information for payouts.
OMG allows you to control the payout frequency of deposits in your account preferences. The fees you will owe will be posted in your account or otherwise be communicated to you, and by using our services you agree to pay those fees. We reserve the right to change the payout schedule or suspend deposits if we determine it’s necessary due to fraud, excessive disputes, or other suspicious activity.
You authorize us to direct a third-party payment processor to: (a) receive, hold, and disburse funds, (b) issue charges, refunds, and deposits, and (c) otherwise handle funds on your behalf. For example, if you refund a customer’s order, we will notify the third-party payment processor to issue a credit to that customer’s card. You agree that you are not entitled to interest or other compensation associated with funds held on your behalf as you use our services.
OMG’s current service and payment processing fees are listed in your account. If our fees ever change, we’ll let you know by email or posting a notice on your account. Funds are collected by third party payment processors. Each third-party payment processor is its own company, and OMG isn’t responsible for its performance. See Section 8 for how your payments are processed.
We or the third-party payment processor may subtract our fees and any other amounts you owe to OMG before depositing the proceeds of a store to your bank account. If you are in a country that is not supported by the third-party payment processor or we are unable to subtract fees for any reason, you are responsible for paying all fees billed to your account.
However, there are exceptions. We may charge you directly for some fees. In these cases, by default, we will debit these fees from the payment method currently on file. Most often these are non-transactional fees, such as store-building fees.
If at any point the amount of fees you owe OMG results in a negative balance in your account, we may limit, suspend, or terminate your account until such fees are paid.
You’re responsible for paying any additional fees or taxes associated with your use of our services.
D. CHARGEBACKS.
You are responsible for all transactions involving your store(s), including chargebacks from your customers. A chargeback is typically caused by a customer disputing a charge that appears on their bill. You are liable to us for all chargeback amounts and are responsible for contesting chargebacks. We will recover chargeback amounts, plus any applicable fees, expenses, or fines, by instructing our third-party payment processor to withhold from your next payout or to debit your account on file. If we are unable to recover funds, you agree pay us the full amount of the chargeback immediately upon demand. You agree to pay us for all costs, expenses, and attorneys’ fees that we incur collecting chargeback amounts from you.
If we determine that a chargeback is likely with respect to any transaction, you agree that we may instruct our third-party payment processor to withhold the amount from those transactions (plus chargeback fees) from your payouts unless and until the matter is otherwise resolved. If we or our third-party payment processor determine that you are incurring excessive chargebacks, we may limit, suspend, or terminate your account.
E. ACCOUNT WITH THIRD PARTY PAYMENT PROCESSOR.
You are required to establish an account with Stripe, Inc. (or whichever third-party payment processor we have engaged instead of Stripe, Inc.). In your capacity as a merchant, you must maintain your account with, and abide by, any agreements you have with Stripe, Inc. (or whichever third-party payment processor we have engaged instead of Stripe, Inc.) for so long as you remain a merchant. For terms and conditions applicable to your relationship with Stripe, Inc., see https://stripe.com/us/connect-account/legal.
F. SENDING MARKETING EMAILS TO CUSTOMERS.
You may use our services to send emails to market your goods and services, but only if you comply with our Terms of Service and Privacy Policy and all applicable laws including, but not limited to, the CAN-SPAM Act and Canada’s Anti-Spam Law. You must keep adequate and verifiable records to prove that your marketing is strictly permission-based. You are solely responsible for the transmission of all such marketing communications related to your store and your use of our services. OMG reserves the right to suspend or terminate our services to you in the event we receive, in our sole and exclusive discretion, an excessive number of complaints related to your marketing communications, whether such complaints are made by parties who “opt-in” or otherwise.
G. YOUR RELATIONSHIP WITH OMG.
You and OMG are independent contractors, and the Terms of Service are not intended to create, and do not create, any agency, partnership, joint venture, employee-employer, or franchiser-franchisee relationship between you and OMG.
H. ACCOUNT AND STORE TERMINATION.
We may terminate or suspend your account with us, the services we are providing to you, or any stores operated under your account, at any time. For more information on our rights to suspend and terminate your account or stores, see Section 5.
I. PERSONS WORKING ON BEHALF OF A COMPANY
If you create or administer an account on our website for your employer or for another company you legally represent, you agree to abide by all of the terms and conditions provided in the Terms of Service with respect to merchants.
J. LIMITATION ON LIABILITY APPLICABLE TO MERCHANTS
In addition to the limitations set forth in Section 19, if you are a merchant, in no event shall the total dollar amount of OMG’s liability for damages to you exceed the amount of fees incurred by you for OMG’s services in the last twelve (12) months.
K. CALIFORNIA PROPOSITION 65 WARNINGS
You, the merchant, are responsible for ensuring that all necessary consumer warnings, including the warnings under California’s Proposition 65 regarding exposure to harmful chemicals, are properly made for the stuff you sell in your stores. Proposition 65 generally provides that warnings for products sold online should be made both online and on the product itself. OMG’s online platform allows you to include your consumer warnings on the product display page. OMG is not responsible for any issues with deficient consumer warnings, and you agree to indemnify OMG in accordance with Section 17 above for any losses resulting from such issues.
