Last Updated: February 22nd, 2024

Company’s Standard Terms and Conditions

These Standard Terms and Conditions (sometimes herein called the “STCs”) shall apply to the Scope of Services Outline & Mainfactor, Inc. E-Commerce, Merchandise, Marketing, and Creative Services Agreement, or Scope of Work as agreed in writing between the Parties (sometimes herein or otherwise referred to as the “Scope of Work”; "Scope"; "Agreement" or "Scope of Services" ) entered into by Client and Mainfactor Inc., or any of its affiliates or subsidiaries, including but not limited to Mainfactor Holdings Inc., Mainfactor Inc., Mainfactor Brands LLC, or Spellbound LLC ("Company"). The "Parties" shall be defined as you ("Client"), and the Company. These STCs shall additionally govern any invoice or exchange of services for payment between you (“Client”) and the Company. By paying an invoice to the Company with these STCs referenced therein, you hereby agree to these STCs. These STCs together with the Scope of Work constitute the full Agreement between Company and Client (the “Agreement”). Client’s execution of a Scope of Work, or payment of any applicable invoice confirms that Client accepts and agrees with these STCs as follows:

Company offers various Services, some of which may be outlined in the Scope of Services, on an invoice, or in email communications between the Parties.  Any and all duties performed by Company for Client shall be considered Services.

Client may receive requests for approval for certain Services, which may also include projections and actual amounts for expenses associated with such Services. Upon Client’s approval of any such requests, any additional Services will be governed by these STC's, and considered as added to any applicable Scope of Work, Client will be billed for such approved Services and expenses accordingly, and they will be reflected on Client’s quarterly sales statement as applicable. Certain expenses, including but not limited to production of Merchandise or other Client-approved products, packaging materials, freight shipping, and warehousing costs may include a built-in mark-up above Company’s actual cost. Any such mark-up is in consideration of Company’s additional efforts and internal costs that will be required to perform the Services related to the marked-up expenses.

The Client shall receive invoices following the regular accounting basis as described in the Statement of Services for costs and expenses associated with any applicable Services. Client must dispute invoices or charges within sixty (60) days of the invoice or charge date, otherwise the applicable invoices, charges, and fees shall be deemed fully accepted and approved by the Client. Unpaid invoices will accrue interest at the rate of 1% per month after being unpaid for sixty (60) days. If the Client’s Product Sales for a quarterly period are below $5,000, the Company may opt to delay the detailed statement and settlement to the following quarter on an ongoing basis, until such time that the total Product Sales amounts that are unsettled equal $5,000 or more, or until the report due for year-end, at which point the Company must send a statement and settle payment with the Client.

All Mainfactor payables are paid in US Dollars (USD), regardless of the currency basis of the Client's bank account. Mainfactor is not liable for any currency fluctuations.

The Client understands that most shipping, packaging, and handling costs and fees for online orders are billed directly to the consumer, unless in some instances the fees to the consumer do not fully cover the costs, or if the Client decides to subsidize some or all of such costs, and in such cases the applicable direct to consumer shipping, packaging, and handling costs and fees will be billed to the Client. Further, the Client understands that shipping and handling costs and fees are subject to change incrementally on an ongoing basis. All Merchandise and products must be bagged and size-tagged for formal ingestion into the Company's warehouse systems. Merchandise and products received by the Company that are not bagged and tagged will be bagged and tagged by the Company and the applicable costs will be billed back to the Client accordingly.

Certain packaging materials and costs and shipping overages may be billed back to the Client, or reduced from the amounts payable to the Client, if such Expenses are not covered by the price paid for by the consumer for shipping.  

Inactive Products or "inactive products" shall mean any product that does not sell for a period of 90 days.

The Client understands that digital mock up files for Merchandise and product designs presented to the Client, consumers, fans, or anyone else are for example purposes only, and that the final product may not exactly match digital mock up files. There are regularly variations in garment colors, printing resolution, and inks.

If Client has events that are canceled or postponed for more than a month, and the Company has produced goods for such events, Client agrees to pay Company in full for the costs and fees for such goods within 15 days of the canceled or postponed event, including but not limited to Cost of Product (or "Cost of Goods" if defined as such in the Scope), shipping Expenses, and related handling and logistics Expenses. In no event does the Company have any liability whatsoever for canceled or postponed tours, shows, and events, and the Client agrees to pay all such costs related to fees and services incurred by the Company in full following the cancelation of such an event.

All quotes for the production of Merchandise or products are subject to a 5% overage or underage of the initial quantity and cost quoted, due to unforeseen circumstances related to the manufacturing of the goods.

Quotes or estimates provided by the Company to the Client for Merchandise, products, shipping, services, or other fees are subject to change at any time prior to a final invoice. statement, or e-commerce implementation.
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Client shall retain full ownership of all of their intellectual property. Company shall retain full ownership of all of its intellectual property. All Merchandise, product designs, website designs, webstore designs, video content, and custom graphics created by Company for Client shall, following the full payment to Company of all approved costs and expenses associated with such designs, be fully owned by Client and considered to be “works made for hire” for Client, as that term is understood under United States copyright laws.

The product of all work performed by Company, except for the above mentioned designs made for Client, including but not limited to work on technology platforms and business processes, ideas and concepts generated, creative and business know-how and trade secrets, development of source code, apps, websites, web stores and other technology, and Company’s trademarks, patents, designs, copyrights and its other forms of intellectual property shall at all times remain the sole property of  Company.

Subject to the rights granted in the Scope of Work, all licenses held or owned by each Party respectively shall remain its licenses solely.

Except as may be otherwise stated in the Scope of Work or these STCs, nothing contained herein shall be construed to assign or convey any license or ownership rights from one Party to the other.

All physical Merchandise and product inventory shall be held with the Company at a designated warehouse facility, unless otherwise agreed upon in writing by the Client and the Company. When the Company produces goods for the Client, the Company is doing so on behalf of the Client, and the Cost of Product (or "Cost of Goods" if defined as such in the Scope) are invoiced to the Client or deducted, in full from the amounts payable to the Client. Upon any Termination between the Client and the Company, the Client must pay Company all amounts due to the Company prior to any such Termination becoming effective.

Data collected on the Mainfactor Domain specific to the Client's purchasers and customers shall be co-owned by the Client and Mainfactor. Data collected on the Client's domain shall be owned by the Client outright.
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Either Party may  use technologies or services provided by entities or individuals that are not the Client or Company (“Third Party Vendors”) in connection with the fulfillment of its obligations under this Agreement.  All applicable Third Party Vendors shall retain full ownership of their own respective intellectual property. Company and Client shall each respectively remain responsible for managing their relationships with Third Party Vendors, and shall each respectively assume all liabilities that may arise or accrue in connection with with any such relationships. However, for the avoidance of doubt and notwithstanding anything to the contrary, the Company and the Client shall not be liable in any manner for website or web service downtime from a Third Party Vendor that provides software-as-a-service. Further, Client represents and warrants that their business and business practices do not breach the terms of any Key Third Party (defined as a Third Party Vendor required for the Company to deliver the Services, including but not limited to Shopify, Facebook, Instagram, TikTok, Google, and Twitter). The Company shall have no liability whatsoever related to a Key Third Party's claim that the Client breaches a Key Third Party's terms.

Notwithstanding the foregoing, the Company shall not be liable for damages to goods delivered, following the receipt of such goods by a person or company, as evidenced by a tracking number, signed receipt, or signed bill of lading.  Further, the Company is not liable under any circumstance for a delay by a shipping carrier or freight provider, including a delay by a shipping carrier in scanning packages for tracking updates, or any such delay by a carrier with reference to street-week album scan reporting to Luminate or other chart-reporting music and media services. In an instance where a shipment is delayed by the Client or a carrier or freight provider and a Client, Mainfactor, or other receiving party does not receive Merchandise on the initially projected timeline due to such a delay, the carrier shall be the responsible party (or in the instance of a Client-delay, the Client shall be responsible), and the Company shall have no liability.  The Client must request insurance coverage for carrier-related insurance where applicable. Regarding street-week order processing for shipping as many albums or media as possible to meet album or media charting goals, changes or delays in receiving timelines from a Client, manufacturer, carrier or other entity, will affect output and timelines, and the Company is not liable whatsoever for any such delays or decreased shipping outputs for charting purposes.

Further, and notwithstanding the foregoing, with respect to Large Freight Shipments (shipments of a full pallet or skid of goods or more), the Company is not responsible or liable for freight shipments once they leave from, or are en route to the Company's facilities. The moment a Large Freight Shipment has left the Company facilities or is en route to the Company facilities, it is the carrier's responsibility and liability is covered under the carrier's insurance. The Client must request additional insurance where applicable. When a freight shipment is signed for by a receiver, it is the recipient's responsibility. Notwithstanding the foregoing or anything to the contrary, the Company is not liable or responsible for the condition of goods shipped to the Company by the Client, or by a Third Party on behalf of the Client, and there is no duty for the Company to inspect every item shipped to the Company by the Client, except in the instance where the Company has been specifically contracted to do so.

Certain Third Party Vendors may pay referral fees to the Company, and such fees are solely revenue attributed to the Company, and the Client shall have no claim over such revenue.

For the avoidance of any doubt, the Company is not liable for any music rights royalties or payments due to any collection societies or rights organizations unless otherwise specifically agreed upon between the Parties. All such music royalty payments, rights payments, publishing, and other music-based money due to Third Parties shall be the Client's liability.
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Each party is responsible for the accuracy and completeness of its proprietary and other information as may be provided to the other and also for the maintenance of any property that may be provided from one Party to another. Each Party is responsible for its own independent legal review of this Agreement and any advertising campaign contracts or other supplemental contracts that may be associated with the performance of this Agreement. Each Party is responsible for its own protection of its intellectual property, including without limitation, for the registration of any and all of its copyrights, trademarks, patents, etc. that may be applicable to its names, designs, ideas, products, and other elements that enable the fulfillment of the services from each respective Party.
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Either Party may terminate this Agreement for a material breach if such breach is not rectified within thirty (30) days following a written notice of such alleged breach. Either Party may terminate this Agreement if the other Party files for any form of bankruptcy, stops doing business, or becomes insolvent. Any form of termination shall not relieve either Party of any remaining financial or other obligations that existed or accrued prior to or at the time of termination. If  Client terminates this Agreement, Client shall be responsible to pay for all transportation and personnel costs associated with moving  the Merchandise and products out of the facilities where Company warehouses the Merchandise. if the Client does not respond to the Company with details for where to send the Client's Merchandise and products within 90 days following the Termination, the Company shall have the right to donate or destroy the Client's leftover Merchandise and products. For avoidance of any doubt and notwithstanding anything to the contrary, the Company may Terminate this Agreement at any time with 30 days notice to the Client, if the Client's business is not profitable, and in such case the Client shall pay the Company any amounts due to the Company within 30 days of Termination.

Prior to any Termination under the Term as outlined in the applicable Scope of Work, the Client must pay any amounts due to the Company in full, prior to any such Termination becoming effective.
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Each Party warrants and represents as follows:

- It has all rights and authority necessary to carry out the purposes of and to fulfill its obligations under this Agreement.

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

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

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

Neither Party makes any warranties  or representations with respect to the accuracy of any data or information reporting provided from or through Third Party Vendors.
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Each Party hereto agrees to indemnify, defend and hold the other Party, its affiliates, licensees, licensors, officers, directors, employees, consultants, contractors, sublicensees and agents  (collectively, “Representatives”) harmless from and against any and all damages or other amounts payable to a claimant, as well as any reasonable attorneys’ fees and costs of litigation (collectively, “Damages”) arising out of or resulting from any claim, suit, proceeding or cause of action (each, a “Claim”) brought against a Party or its representatives based on: (a) breach of any representation or warranty by the respective indemnifying Party contained in this Agreement; (b) breach of any applicable Law by such indemnifying Party; or (c) gross negligence or willful misconduct by such indemnifying Party or its Representatives.
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The maximum liability of Company for any Claims associated with the Services shall be the fees otherwise payable to the Company for such applicable Service(s) plus any interest associated with the collection of those fees. In no event shall either Party be responsible for liquidated damages, punitive damages, or consequential or indirect damages.
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For the avoidance of all doubt, Company shall not have any liability whatsoever with respect to Claims arising out of any injuries or Damages sustained by any person or entity in connection with Company possessing, distributing, selling, advertising, or otherwise using any product or Merchandise or products delivered from Client to  Company.  There is no basis for any present or future action, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand against the Company giving rise to any such product-related liability. If product delivered to the Company by the client is damaged or defective prior to the Company's receipt of the goods, the Client shall be Iiable for any losses related to such damages or defects.  The Client understands that Company may not be able to fully inspect all items shipped by Client to Company upon receipt, and that defects or damages to product pre-existing to the Company's receipt of the goods may become known or discovered at a later date, following the Company's receipt.
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The Parties acknowledge that the terms of this Agreement, and any oral or written information exchanged between the Parties in connection with the preparation and performance this Agreement that may be notated as “confidential”, shall be regarded as confidential information. Each Party shall maintain confidentiality of all such confidential information, and without obtaining the prior written consent of the other Party, it shall not disclose any such confidential information to any third parties, except for any information that: (a) is in the public domain (other than through the receiving Party’s unauthorized disclosure); (b) is required to be disclosed pursuant to any applicable laws, legal proceedings, or regulations, or orders of government authorities; or (c) is required to be disclosed by any Party to its shareholders, investors, legal counsels, potential acquirers, or financial advisors, provided that all of them shall be bound by confidentiality obligations similar to those set forth in this section. These confidentiality provisions and this section of the Agreement shall survive the termination of this Agreement.
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For the purpose of this Agreement, an “Event of Force Majeure” means any circumstance not within the reasonable control of the Party affected, but only if and to the extent that (i) such circumstance, despite the exercise of reasonable diligence, cannot be, or be caused to be, prevented, avoided or removed by such Party, and (ii) such circumstance materially and adversely affects the ability of the Party to perform its obligations under this Agreement, and such Party has taken all reasonable precautions, due care and reasonable alternative measures in order to avoid the effect of such event on the Party’s ability to perform its obligations under this Agreement and to mitigate the consequences thereof. The Parties acknowledge than an Event of Force Majeure may cause a delay with the Services and other aspects of Company’s performance under this Agreement. If a delay occurs for more than one hundred and twenty (120) days due to an Event of Force Majeure, either Party may terminate this Agreement.
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This Agreement and all matters relating to its validity, interpretation, performance and enforcement shall be governed by and construed, interpreted and enforced in accordance with the laws of the Commonwealth (state) of Pennsylvania, and Pennsylvania shall be the exclusive forum of jurisdiction for all matters proceedings relating to this Agreement, regardless of the domicile or citizenship of the Parties hereto.
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During the Term and for one year following the Term,  the Client will not solicit employees from the Company to work for them as an employee, contractor or consultant without express prior written consent from the Company; provided, however, the Client shall not be liable to the Company if an employee, contractor or consultant of the Company independently and without solicitation responds to a job advertisement from the Client, and is hired solely as a result of applying from seeing from such advertisement. Further, the Client agrees to not directly solicit any of the Company’s e-commerce or Merchandise or product vendors or service providers without express prior written consent from the Company.

This Agreement does not create, nor shall it be construed to create, a partnership or joint venture. Company is solely acting as an independent contractor for Client, except in the cases where Company and Client have agreed separately in writing that Company will act as an agent for the purposes of purchasing media or purchasing anything else on behalf of Client.

If any provision in this Agreement shall be determined to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, and such provision shall be ineffective only to the extent of such invalidity, illegality or un-enforceability.

No breach or waiver of these terms will be construed as a continuing waiver or consent to any breach.

Neither Party may assign this Agreement without mutual, express prior written consent, except that either Party may assign this Agreement and all obligations hereunder to a subsidiary, affiliate, or a purchaser of such Party, or upon a merger or change of control.

The headings in this Agreement are for reference only and will not affect the interpretations herein.

All provisions herein that are intended to survive this Agreement, shall survive the termination of this Agreement or the end of the Services, to the fullest extent permitted by law.

This Agreement may be modified or amended only upon the mutual agreement of the Parties in writing.

This Agreement represents the complete and entire understanding of the Parties with respect to the subject matter hereof, and it shall replace and supersede all prior written and oral understandings and agreements between the Parties.

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

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

or via email to legal@mainfactor.com

If mailed or delivered, notices must be sent via US Certified Mail, Federal Express or UPS and with delivery confirmation services secured by Client.

Notices to Client shall be provided in the same manner as described above, but to either Client’s mailing or email address that Client has provided to Company.

The Parties may during and after the Term of this Agreement provide each other in writing by email or other written method, with notices of a change of address, also in the same manner as described above.

Payments between the Parties may be made by checks or mutually agreeable electronic means to the addresses and accounts as instructed.

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

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

Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Pennsylvania. The arbitration shall be administered either by JAMS, or by a mutually agreed upon party or parties. Judgment on the Award may be entered in any court having jurisdiction. The arbitrator may, in the Award, allocate all or part of the costs of the arbitration, including the fees of the arbitrator and the reasonable attorneys’ fees of the prevailing party.

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