1. ACCEPTANCE OF TERMS
Official Merchandise LLC (“Official Merchandise”) provides the Rockmerch.com Web site and the features, content and services on the Rockmerch.com Web site (collectively, the “Service”) to you, subject to the following Terms of Service (the “TOS”). By accessing the Service or any portion thereof, you signify your agreement to all terms, conditions, and notices contained or referenced in the TOS. If you do not agree to the TOS, do not use the Service. Rockmerch.com reserves the right, at its discretion, to update or revise the TOS from time to time without notice to you. Please check the TOS periodically for changes. You can review the most current version of the TOS at any time at http://www.Rockmerch.com/TermsOfUse.htm. Your continued use of this Service following the posting of any changes to the TOS constitutes acceptance of any such changes. In addition, when using particular services or features of the Service, you shall be subject to any guidelines or rules applicable to such services which may be posted from time to time. All such guidelines or rules are hereby incorporated by reference into the TOS.
The Addendum attached at the bottom of the TOS will, in conjunction with the TOS, govern all use of the Rockmerch.com online store. In the event you have a concern, claim or dispute relating to your use of the Online Store, please refer to the additional terms and conditions set forth in the Addendum.
3. DESCRIPTION OF SERVICE AND GENERAL OBLIGATIONS
3.1 Description of Service. The Service provides a collection of on-line resources, including without limitation: (a) email accounts (“Email Service”); (b) access to Internet audio transmissions (“Audio Service”); (c) access via the Internet to music videos and text and video news regarding the music and entertainment industries (“News Service”); (d) a forum to upload and listen to music from independent artists (“Independent Music Service”); (e) a personal Web page hosting service (“Web Hosting Service”); (f) a sub-domain redirection service permitting redirection to another Web site by means of a Rockmerch.com sub-domain selected by the user (“Redirection Service”); (g) a social networking service that allows users to create personal profiles and communicate through chat, confidential messaging, online forums and other communications tools (“Social Network Service”); (h) the ability to purchase merchandise and concert tickets (“Merchandise Service”); (i) a concierge service, in which Rockmerch.com assists users in locating and purchasing concert tickets and related travel services and accommodations (“Concierge Service”); and (j) the ability to access and play Internet-based games (“Game Service”). You also understand and agree that the Service may include advertisements and that these advertisements are necessary for Rockmerch.com to provide the Service. You also understand and agree that the Service may include certain communications from Rockmerch.com and its Service Providers, such as product/service announcements, administrative messages, special offers and newsletters, and that these communications are considered part of Service membership and you will not be able to opt out of receiving them. Unless explicitly stated otherwise, any new features that augment or enhance the current Service, including the release of new Rockmerch.com properties or services, shall be subject to the TOS.
3.2 Membership Levels. Rockmerch.com reserves the right, at any time and without prior notice, to: (a) establish different membership levels, such as trial and full memberships, that provide different Service features and privileges; (b) charge fees for access to the Service or any portion thereof, or for participation in different membership levels; and/or (c) require users to take other actions to obtain or maintain participation in certain membership levels, including without limitation making qualifying purchases through the Service. In consideration of your use of the Service and/or participation in certain membership levels, you hereby agree to pay Rockmerch.com any such fees or take such other qualifying actions specified within the Service, as modified determined by Rockmerch.com from time to time in its sole discretion. Unless otherwise specified, all fees are due immediately and are non-refundable. Set up fees, if any, will become payable on the applicable effective date for the applicable portion of the Service. You agree to pay all value added, sales and other taxes related to the services or payments made by you hereunder. All payments of fees for Rockmerch.com services shall be made in U.S. dollars. In the event that you fail to make timely payment of fees that have become due and payable, such failure shall constitute a material breach of the TOS, and, in addition to any other remedies available to Rockmerch.com: (a) Rockmerch.com may permanently or temporarily suspend your access to the Service until such payment is received; (b) all sums due and payable that remain unpaid will accrue interest as a late charge of 1.5% per month or the maximum amount allowed by law, whichever is less ; and (c) you will be liable for any attorney fees, collections agency fees and other service fees that Rockmerch.com incurs to collect unpaid fees.
3.3 Access to Service. You are responsible for obtaining access to the Service, and that access may involve third-party fees (such as Internet service provider, telephone or airtime charges). You are responsible for those fees. In addition, you must provide and are responsible for all equipment necessary to access the Service.
3.4 Registration, Accounts and Passwords. In consideration of your use of the Service, you represent that: (i) you are of legal age to form a binding contract; or (ii) your registration for, and use of, the Service is expressly authorized by a parent or guardian of legal age to form a binding contract and who agrees to be bound by the TOS. You further represent that you have provided accurate information regarding your age as part of the Registration Data and that you are not a person barred from receiving services under the laws of the United States or other applicable jurisdiction. Your right to use the Service is personal to you. Therefore, a user may only be an individual, not a corporation or other business entity. You also agree to: (a) provide true, accurate, current and complete Registration Data; and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. Note that providing and maintaining an accurate Alternate Email address is required for use of the service.;If you provide any information that is untrue, inaccurate, not current or incomplete, or Rockmerch.com has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Rockmerch.com has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof). You will receive a password and account designation upon completing the Service's registration process. Your password and account are solely for your personal use, and you shall not authorize others to use your account, including your profile or email address. You are responsible for maintaining the confidentiality of the password and account, and are fully responsible for all activities that occur under your password or account. You agree to: (x) immediately notify Rockmerch.com of any unauthorized use of your password or account or any other breach of security; and (y) ensure that you exit from your account at the end of each session. Once an email address has been upgraded to a Premium Email account, it is no longer eligible to be used as a free, standard account after the subscription ends. Neither Rockmerch.com nor its Service Providers will be liable for any loss or damage arising from your failure to comply with this section.
3.6 User Content and Member Conduct. You understand that all information, data, text, software, music, sound, photographs, graphics, video, messages or other materials that any user stores on the Services or posts, sends, publishes or otherwise transmits by any means through the Service (collectively “User Content”) are the sole responsibility of the person from which such User Content originated. This means that you, and not Rockmerch.com or its Service Providers, are entirely responsible for all User Content that you upload, post, email, transmit or otherwise make available via the Service. Rockmerch.com does not control the User Content posted via the Service and, as such, does not guarantee the accuracy, integrity, legality or quality of such User Content. You understand that by using the Service, you may be exposed to User Content that is offensive, indecent, objectionable or violative of third-party rights. Under no circumstances will Rockmerch.com or its Service Providers be liable in any way for any User Content, including, but not limited to, for any errors or omissions in any User Content, or for any loss or damage of any kind incurred as a result of the use of any User Content posted, emailed, transmitted or otherwise made available via the Service. Additionally, items (a) through (q) below apply to content that is submitted as private for friends only. It it further understood that there is no guarantee that content that is submitted as private for friends only will only be displayed as such, as further distribution of such content cannot be controlled, nor is there any guarantee that the Service will retain such content as private. As such, the Service will not be liable for the dissemination of content noted as private or for friends only.
You agree to not use the Service to:
(a) upload, post, email, transmit or otherwise make available any User Content that is false or misleading, promotes illegal activities, unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, contains nudity, patently offensive, libelous, invasive of another’s privacy, hateful, or racially, ethnically, or is otherwise objectionable;
(b) harm minors in any way, provide User Content that exploits people under the age of 18 in a sexual or violent manner, or solicit personal information from anyone under 18;
(c) impersonate any person or entity, including, but not limited to, a Rockmerch.com official, forum leader, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity;
(d) forge headers or otherwise manipulate identifiers in order to disguise the origin of any User Content transmitted through the Service;
(e) upload, post, email, transmit or otherwise make available any User Content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
(f) upload, post, email, transmit or otherwise make available any User Content that infringes, or contributes to or facilitates the infringement of, any patent, trademark, trade secret, copyright or other proprietary rights of any party, including, without limitation, pirated computer programs or links to them, information to circumvent manufacturer-installed copy-protect devices, or pirated music or films or links to pirated music or film files;
(g) upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation, except in those areas (if any) that are clearly designated for such purpose (for the purposes of the TOS, "spam" has the meaning generally understood among Internet users, and includes without limitation "unsolicited electronic mail advertisements" as that phrase is defined under California Business and Professions Code section 17538.45 or any successor statutory provision);
(h) upload, post, email, transmit or otherwise make available any material that contains software viruses, spyware or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or designed to collect, transmit or monitor private information or activities of users;
(i) disrupt the normal flow of dialogue, cause a screen to “scroll” faster than other users of the Service are able to type, or otherwise act in a manner that negatively affects other users’ ability to engage in real time exchanges;
(j) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service, including, without limitation, imposing an unreasonable or disproportionately large load (as determined by Rockmerch.com in light of the load imposed by other users generally) on the infrastructure of Rockmerch.com or its Service Providers, or using any "bot" or other automated repetitive or iterative mechanism or the like to gain any sort of benefit from Rockmerch.com or any of its Service Providers;
(k) intentionally or unintentionally violate any applicable local, state, national or international law or regulation, including, but not limited to any rules or regulations promulgated by any securities regulatory agency or exchange;
(l) “stalk” or otherwise harass another;
(m) upload, post, transmit, publish or otherwise make available passwords or any other personal or personally identifiable information of any individual;
(n) solicit, collect, store, transmit or publish personal or confidential information of other users or third parties by means of fraud, false pretenses or “phishing” schemes;
(o) provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to Section 219 of the Immigration and Nationality Act;
(p) promote or provide instructional information about illegal activities, promote physical harm or injury against any group or individual, or promote any act of cruelty to animals, including, without limitation, providing instructions on how to assemble bombs, grenades and other weapons, creating computer viruses and creating "Crush" sites; or
(q) engage in the following commercial activities:
· stating or implying any affiliation with, or endorsement by, Rockmerch.com in connection with offering for sale or barter any products or services;
· reselling or relicensing the Service or any portion thereof in any form;
· promoting advertising or pyramid schemes;
· soliciting for advertisers or sponsors; or
· conducting raffles, sweepstakes or contests.
You acknowledge that Rockmerch.com does not pre-screen User Content, but that Rockmerch.com and its Service Providers shall have the right (but not the obligation) in their sole discretion to refuse or remove any User Content that is made available via the Service. Without limiting the foregoing, Rockmerch.com and its Service Providers shall have the right, without notice, to monitor and review the Service (including without limitation user accounts and any User Content stored in public and non-public areas of user accounts), and remove User Content, in the event that Rockmerch.com or its Service Providers: (a) suspect that any user activity or any User Content violates the TOS, violates applicable laws or regulations or rights of third parties, or is otherwise objectionable; or (b) need to diagnose and/or correct potential problems with the Service. You agree that you must evaluate, and bear all risks associated with, the use of any User Content, including any reliance on the accuracy, completeness, or usefulness of such User Content. Similarly, you acknowledge that you may not rely on any content of the Service created or submitted to Rockmerch.com or its Service Providers, including without limitation information in the News Service, and in all other parts of the Service. If you believe your copyrighted content has been posted without your consent, please contact store@Rockmerch.com so we can remove such content.
You acknowledge and agree that Rockmerch.com and/or its Service Providers may, without notice, review, preserve, copy and disclose User Content (including without limitation any User Content stored in public and non-public areas of user accounts) to service providers, law enforcement officials, courts and/or other third parties if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) conform to legal requirements or to comply with a subpoena, search warrant or other legal process received by Rockmerch.com or its Service Providers, whether or not a response is required by applicable law; (b) enforce the TOS or to protect the rights of Rockmerch.com or its service providers; (c) respond to claims that any User Content violates applicable laws or regulations or the rights of third parties; or (d) protect the rights, property, or safety of the public and users of the Service. NEITHER Rockmerch.com NOR ANY SERVICE PROVIDER SHALL HAVE ANY LIABILITY WHATSOEVER ARISING IN CONNECTION WITH ANY REPRODUCTION, RELEASE OR DISCLOSURE OF USER CONTENT PURSUANT TO THIS PARAGRAPH. WITHOUT LIMITING THE GENERALITY OF THE PRECEDING SENTENCE, UNDER NO CIRCUMSTANCES SHALL Rockmerch.com HAVE ANY LIABILITY OR RESPONSIBILITY IN CONNECTION WITH: (I) ANY RELEASE OR DISCLOSURE OF USER CONTENT BY ANY SERVICE PROVIDER UNDER THIS PARAGRAPH, EVEN IF SUCH RELEASE OR DISCLOSURE RESULTS FROM MISTAKE, ERROR IN JUDGMENT, NEGLIGENCE OR WILLFUL MISCONDUCT ON THE PART OF SUCH SERVICE PROVIDER; OR (II) ANY FAILURE OR REFUSAL OF A SERVICE PROVIDER TO COMPLY WITH A SUBPOENA, SEARCH WARRANT OR OTHER LEGAL PROCESS WHERE USER CONTENT IS CONTROLLED BY SUCH SERVICE PROVIDER. Subject to the foregoing limitations, subpoena requests may be initiated by sending an email to store@Rockmerch.com, and Rockmerch.com will respond to such request or provide information regarding how to contact the Service Provider that can respond to such request.
You understand that the technical processing and transmission of the Service, including your User Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
You understand that the Service and software embodied within the Service may include security components that permit digital materials to be protected, and use of these materials is subject to usage rules set by Rockmerch.com and/or Service Providers. You may not attempt to override or circumvent any of the usage rules embedded into the Service. Any unauthorized reproduction, publication, further distribution or public exhibition of the materials provided on the Service, in whole or in part, is strictly prohibited.
3.7 Export Restrictions. Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable User Content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.
3.8 General Practices Regarding Use and Storage. You acknowledge that Rockmerch.com and its Service Providers may establish general practices and limits concerning use of the Service, including without limitation the maximum number of days that email messages, message board postings or other uploaded User Content will be retained by the Service, the maximum number of email messages that may be sent from or received by an account on the Service, the maximum size of any email message that may be sent from or received by an account on the Service, the maximum disk space that will be allotted on Rockmerch.com’s servers on your behalf, and the maximum number of times (and the maximum duration for which) you may access the Service in a given period of time. You agree that neither Rockmerch.com nor its Service Providers has any responsibility or liability for the deletion or failure to store any messages and other communications or other User Content maintained or transmitted by the Service. You further agree that neither Rockmerch.com nor its Service Providers has any responsibility or liability for any interrruption of the Service, inability to access the Service, and any failure to transmit or receive any message or other communication or content of any kind in connection with the Service. You acknowledge and agree that Rockmerch.com reserves the right to terminate and delete accounts, including any related User Content, that are inactive for an extended period of time. You agree that any User Content may be posted on Social Media or any other platform without restriction. You further acknowledge and agree that Rockmerch.com reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
3.9 Modifications to Service. Rockmerch.com reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that neither Rockmerch.com nor its Service Providers shall be liable to you or to any third party for any modification, suspension or discontinuation of the Service.
3.10 Links. The Service may provide, or third parties may provide, links to other Internet sites or resources. Because Rockmerch.com does not evaluate, and has no control over, such sites and resources, you acknowledge and agree that Rockmerch.com is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources . You further acknowledge and agree that Rockmerch.com shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource. You should carefully review the privacy statements and other conditions of use governing such sites or resources.
3.11 Participation in Rockmerch.com Contests and Promotions. By entering or participating in any promotion, contest or prize-related activity provided or promoted on the Service, participants agree to release, discharge, and hold harmless Rockmerch.com, its Service Providers and participating sponsors, affiliates, subsidiaries and their respective officers, directors, employees, and agents from any injury, loss, liability, damages or other harm of any kind that may arise out of participation in such promotion, contest or activity or out of acceptance, use, misuse, or possession of prizes. By participating, you agree to the decisions of the judges regarding contest winners, which are final and binding in all respects. Further, you agree and give permission to use your name and likeness without compensation in perpetuity in connection with such promotion, contest or activity. Void where prohibited by law, rule, or regulation. All federal, state, and local laws, rules, and regulations shall apply.
3.12 RockMerch.com reserves to right to limit quantities ordered and to cancel any order for any or no reason.
4. ADDITIONAL SERVICE OBLIGATIONS
4.1 Third-Party Providers. Certain third-parties (“Service Providers”) provide services in connection with portions of the Service (including the Online Store) on behalf of Rockmerch.com (“Provider Services”). The Service Providers include, but are not limited to, the following: (a) IBM Corp provides services in connection with the Email Service and Social Network Service; (b) Live365, Inc. provides services in connection with the Audio Service; (c) IndieClick Media Group, Inc. provides services in connection with the Streaming Videos Service; (d) KickApps Corporation provides services in connection with the Social Network Service; (e) IndieClick Media Group, Inc, and Gorilla Nation Media, LLC, ValueClick, Inc., Google Inc., and Casalemedia, Inc. provide certain advertising services in connection with the Service. In the course of using such Provider Services, you may become subject to the terms and conditions of such Service Providers. In the event of any conflict between such terms and conditions and the TOS, the TOS shall control. To the fullest extent permitted by law, Rockmerch.com and Service Providers disclaim any and all liability for any damage, expense or other harm that may arise in connection with your use of any Provider Service or in connection Rockmerch.com's use of any logos, trademarks, or intellectual property of any kind of Service Providers. You further agree that each Service Provider shall be a third-party beneficiary to certain indemnities, limitations of liability and disclaimers of warranty where specifically stated in the TOS, and that such provisions are made expressly for the benefit of the Service Providers and are enforceable by Service Providers in addition to Rockmerch.com.
Note that the Email Service located at RockMail.email is run by a 3rd party and OfficialMerchandise.com LLC and the 3rd party service provider disclaim any liability for use of this service. It is available as is with no warranty provided of any kind for suitability or reliability. User accounts may be suspended as well as the entire service at any time for any or no reason.
4.3 Audio Service. You may not, by means of linking, redirecting or any other method, make available or list any Internet radio program generated by or offered through the Audio Service or Rockmerch.com’s or its Service Provider’s servers on any other Web site or in any other medium without the prior express written permission of Rockmerch.com or its Service Provider. You may not download or store any sound recordings or Internet radio programs from the Audio Service to the hard drive of your computer. Rockmerch.com may take any action with respect to the Audio Service if Rockmerch.com believes, in its sole discretion, that the Audio Service may create liability for itself or any third parties or may cause Rockmerch.com to lose (in whole or in part) the services of its Service Providers, ISPs, vendors or advertisers.
4.4 Independent Music and Video Service. You understand and agree that you will receive no compensation with respect to any permitted use of any User Content you submit or upload to the Independent Music and Video Service, a component of the Rockmerch.com Social Network. Neither Rockmerch.com nor its Service Provider is under any obligation to post or use any User Content you may provide and either Rockmerch.com or its Service Provider may remove any User Content at any time in its sole discretion. USER AGREES THAT NO PUBLISHER OR PERFORMANCE ROYALTIES WILL BE PAID ON ANY WORKS SUBMITTED TO THE INDEPENDENT MUSIC AND VIDEO SERVICE. USER MAY REMOVE WORKS AT ANY TIME DIRECTLY THROUGH THE INDEPENDENT MUSIC AND VIDEO SERVICE OR BY NOTIFYING Rockmerch.com AT store@Rockmerch.com. As further provided in Section 5.4, by submitting or posting User Content to the Independent Music and Video Service, you warrant and represent that: (a) you own or otherwise have the right (including, without limitation, consent from all composers and band members having any rights to the User Content) to submit and upload any User Content to the Independent Music and Video Service; (b) that each person depicted or described in such User Content, if any, has consented to your submission and upload of the User Content; and (c) neither the User Content nor any license to the User Content granted herein violates or will violate any intellectual property right or proprietary right of any third party.
4.7 Merchandise Service. As further provided in Section 6, except as otherwise provided in the Addendum below with respect to the Online Store, any contract or order for merchandise or tickets through the Merchandise Service is between you and the applicable Service Provider, and Rockmerch.com shall have no liability or obligation in connection with such contract or order, including, without limitation, any liability of obligation for: (a) any late delivery, mis-delivery, non-delivery, loss or destruction of merchandise or tickets or cancellation, postponement or modification of related concerts or events; (b) any defects in merchandise or tickets or any misrepresentation by a Service Provider regarding the nature or quality of merchandise or tickets; or (c) any billing errors or inaccuracies or any loss or misuse of personal or financial information by a Service Provider. Without limiting the scope of any other applicable disclaimer set forth in the TOS, Rockmerch.com does not warrant or guarantee any merchandise or tickets purchased through the Merchandise Service in any way and hereby disclaims any and all warranties, representations or guarantees made by any Service Providers in connection with any such merchandise or tickets.
4.8 Concierge Service.
(a) General. The Concierge Service permits users to contact Rockmerch.com for assistance in locating and purchasing concert tickets and related travel services and accommodations in two ways: (i) via special pages on the Rockmerch.com site; and (ii) via a phone number designated on the site through which users speak with a live representative. Rockmerch.com will only make the Concierge Service available to registered Rockmerch.com members, who will be required to provide a valid username and password to use the service. All of the provisions is Section 4.8 apply with equal force to the Concierge Service, including without limitation any tickets and travel-related services.
(b) Rockmerch.com Is an Intermediary. Rockmerch.com acts solely as an intermediary to assist users in contacting third-party Service providers and vendors of tickets and travel and other related services (“Concierge Vendors”), which have no affiliation with Rockmerch.com. The Concierge Service is provided solely to assist users in determining the price and availability of tickets and travel-related goods and services and to make legitimate reservations or otherwise transact business with Concierge Vendors. Accordingly, Rockmerch.com does not provide tickets or related services directly and is not directly involved in any sale transaction between users and such Concierge Vendors. Tickets sold to users who access the Concierge Service are generally from Concierge Vendors that are secondary ticket market brokers and are being resold in many cases above the price or "face value" listed on the ticket. Rockmerch.com and its Service Providers are not directly affiliated with any performer, sports team, promoter, venue or provider of travel or accommodation services, and Rockmerch.com does not act as a primary sale box office or travel agent. Separate terms and conditions will apply to your reservations with, and purchase of tickets and travel-related goods and services from, Concierge Vendors. You agree to abide by the terms or conditions of purchase imposed by any Concierge Vendor with whom you elect to deal, including, but not limited to, payment of all amounts when due and compliance with the Concierge Vendor's rules and restrictions regarding availability and use of tickets, fares, products, or services. You understand that any violation of any such Concierge Vendor’s conditions of purchase may result in cancellation of your reservation(s) or purchase, in your being denied access to any concerts, events, flights, hotels, transportation or other services, in your forfeiting any monies paid for such reservation(s) or purchase, and in the termination of your Rockmerch.com account.
(c) Charges and Payment. You shall be completely responsible for all charges, fees, duties, taxes, and assessments arising out of your use of the Concierge Service, and all sales through the Concierge Service are final and non-refundable. Rockmerch.com will forward any credit card and other user information collected through the Concierge Service to Concierge Vendors, which will charge users directly for tickets and any related travel services. Concierge Vendors will typically pay Rockmerch.com a commission for such user purchases. Rockmerch.com will not directly charge users with respect to tickets and any related travel services purchased through the Concierge Service; provided, however, that, with respect to purchases made via the personalized Concierge Service phone line, Rockmerch.com will charge a 5% "Concierge Fee" directly to the user’s credit card account provided. When booking, users will see various charges on their credit card statement from the various Concierge Vendors used, as well as from Rockmerch.com for the Concierge Fee, if applicable. In the event that the amounts charged to your credit card differ from the confirmation Rockmerch.com or the Concierge Vendor(s) send to you, or you otherwise wish to question or dispute a charge on your credit card related to any tickets or services provided to you via the Concierge Service, you agree to contact the relevant Concierge Vendors or Rockmerch.com directly prior to disputing the charge with the credit card company or initiating a chargeback. In the event that you initiate a dispute or chargeback with your credit card company with respect to any valid charge for tickets or services provided to you via the Concierge Service, and Rockmerch.com, in its sole reasonable discretion, determines that such dispute or chargeback is without merit or fraudulent, without limiting any other rights and remedies available to Rockmerch.com and the affected Concierge Vendors: (i) you shall promptly refund to Rockmerch.com or its designee the full amount of the refund plus an additional fifty percent of the chargeback (50%) as liquidated damages to compensate Rockmerch.com and its Concierge Vendors for resulting administrative and accounting costs; (ii) you shall promptly reimburse Rockmerch.com or its designee for the full amount of any reasonable collection fees, attorney fees, and any other costs associated with recouping the chargeback or otherwise resolving the dispute; (iii) Rockmerch.com may immediately terminate your Rockmerch.com account; and (iv) Rockmerch.com may, to the extent permitted by applicable law, report your conduct to the credit reporting agencies. In any legal proceeding relating to a credit card dispute or chargeback, the user will bear the burden of proving that the dispute or chargeback was justified and that charges were incorrect or not authorized by the user. If a user withdraws payment prior to using purchased tickets, travel or other services for any reason, the Concierge Vendors and/or their vendors have the right, without limitation, to cancel the relevant tickets, reservations and travel. Rockmerch.com and the Concierge Vendors shall report, and shall have the right to report, any user suspected of fraud to all applicable law enforcement authorities, and in no event shall Rockmerch.com or any Concierge Vendor have any liability to any user for making any such report based upon reasonable information.
(d) Disclaimers and Limitations. Although most travel is completed without incident, travel to certain destinations and use of certain accommodations may involve greater risks than others. We urge you to review and evaluate travel prohibitions, warning, announcements, and advisories issued by the government and the aviation administration before booking travel and accommodations. Information on conditions in various countries and the level of risk associated with travel to particular destinations can be found on public sites, such as www.state.gov, www.tsa.gov, www.dot.gov, www.faa.gov, www.cdc.gov, www.treas.gov/ofac, and www.customs.gov. By making purchases of travel and accommodations from Concierge Vendors available through the Concierge Service, Rockmerch.com does not represent or warrant that any such travel or use of accommodations are advisable or without risk. Rockmerch.com has not investigated or evaluated, does not endorse, recommend, or guarantee, and shall not be responsible or liable with respect to, the quality, suitability or safety of any travel or accommodations obtained via the Concierge Service. Rockmerch.com shall have no liability for damages, losses, or delays that may result from improper documents for entry, exit, length of stay.
Concerts, sporting events and other attractions corresponding to tickets purchased through the Concierge Service may not be appropriate for all ages or for individuals with certain medical conditions, and may present certain other risks. Attendance of such concerts, sporting events and other attractions may be subject to codes, rules or regulations (collectively, "Attraction Rules") established by the venue or provider. Failure to comply with such Attraction Rules may result in denial of admission to or removal from the event. Other restrictions, terms and conditions may apply, and you are encouraged to contact the venue or provider for details. By making tickets from Concierge Vendors available through the Concierge Service, Rockmerch.com does not represent or warrant that any attendance of any corresponding concerts, sporting events or other attractions is advisable or without risk. Rockmerch.com has not investigated or evaluated, does not endorse, recommend or guarantee, and shall not be responsible or liable with respect to, the quality, suitability or safety of any concerts, sporting events or other attractions corresponding to tickets obtained via the Concierge Service.
YOU ACKNOWLEDGE THAT THE USE OR ENJOYMENT OF CONCERTS, SPORTING EVENTS, OTHER ATTRACTIONS AND RELATED TRAVEL SERVICES MADE AVAILABLE THROUGH THE CONCIERGE SERVICE MAY BE HAZARDOUS AND INHERENTLY RISKY, AND, TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU ASSUME ALL RISK OF INJURY OR DEATH ARISING OUT OF OR IN CONNECTION WITH ALL SUCH CONCERTS, SPORTING EVENTS, OTHER ATTRACTIONS AND RELATED TRAVEL SERVICES. WITHOUT LIMITING ANY OTHER LIMITATION OF LIABILITY SET FORTH IN THE TOS, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL Rockmerch.com, ITS SERVICE PROVIDERS OR CONCIERGE VENDORS BE LIABLE TO ANY PARTY FOR ANY COSTS, EXPENSES, CLAIMS, HARM, OR DAMAGES OF ANY NATURE ARISING FROM OR IN CONNECTION WITH THE CONCIERGE SERVICE, INCLUDING WITHOUT LIMITATION: (i) IDENTITY THEFT; (ii) ACTS, OMISSIONS, ERRORS, PERFORMANCE OR NON-PERFORMANCE, REPRESENTATIONS, WARRANTIES, BREACHES OR NEGLIGENCE OF CONCIERGE VENDORS OR THEIR RESPECTIVE VENDORS; (iii) PERSONAL INJURY OR DEATH; (iv) DAMAGE TO, THEFT OF, OR LOSS OF, PERSONAL PROPERTY; (v) CANCELLATION, SUBSTITUTION, DELAY, POSTPONEMENT, OVERBOOKING, DOUBLE BOOKING, MODIFICATION OR CHANGE IN FARES OR RATES WITH RESPECT TO ANY EVENT, TRAVEL OR ACCOMMODATION; (vi) HAZARDOUS EVENTS OR CONDITIONS OCCURRING DURING EVENTS OR TRAVEL; OR (vii) FORCE MAJEURE OR OTHER CAUSES BEYOND THE DIRECT CONTROL OF Rockmerch.com, THE CONCIERGE VENDORS OR THEIR RESPECTIVE VENDORS. THE CONCIERGE VENDORS AND THEIR RESPECTIVE VENDORS ARE INDEPENDENT CONTRACTORS AND NOT AGENTS, AFFILIATES OR EMPLOYEES OF Rockmerch.com OR ITS AFFILIATES. IN ADDITION TO ANY LIMITATION OF LIABILITY SET FORTH ELSEWHERE IN THE TOS, IN NO EVENT WILL Rockmerch.com BE LIABLE FOR ANY AMOUNTS THAT EXCEED COMMISSION AND FEE INCOME RECEIVED BY Rockmerch.com IN CONNECTION WITH THE RELEVANT USER’S USE OF THE CONCIERGE SERVICE. Rockmerch.com MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE CONCIERGE SERVICE OR ANY TICKETS OR SERVICES PURCHASED THROUGH IT, WHICH ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND.
You expressly provide your consent to publish any reviews of RockMerch and its products you provide on TrustPilot or by any other means on any website or social media page without limitation and for no compensation.
5. PROPRIETARY RIGHTS IN THE SERVICE AND USER CONTENT
5.1 Proprietary Rights of Rockmerch.com. You acknowledge and agree that all content, data, software, code, advertisements and other materials appearing on or used in the Service, other than User Content (collectively “Service Content”), is the proprietary and/or confidential information of Rockmerch.com, its Service Providers and/or advertisers, and is protected by applicable intellectual property and other laws. Subject to the license granted in Section 5.2, Rockmerch.com, its Service Providers and/or advertisers shall own and retain all right, title and interest in and to all Service Content. Except with respect to information that is in the public domain or as expressly authorized by Rockmerch.com, its Service Providers or advertisers, you may not (and may not authorize or sublicense a third party to) copy, modify, publish, transmit, perform, display, rent, lease, loan, sell, resell, trade, assign, grant a security interest in or otherwise transfer any right in, exploit for any commercial purpose, reverse engineer, reverse assemble or otherwise attempt to discover any source code of, create derivative works based on, or distribute the Service (excluding any User Content owned or controlled by you), your account or password, or any Service Content, in whole or in part.
5.2 License to Service. Subject to the restrictions and conditions set forth in the TOS, Rockmerch.com grants you a limited, revocable, personal, non-transferable, non-sublicenseable and non-exclusive right and license to use and display the Service Content on a single computer. You agree not to access the Service by any means other than through the interface that is provided by Rockmerch.com for use in accessing the Service.
5.3 License to User Content.
(a) License to Rockmerch.com and Service Providers. Rockmerch.com does not claim ownership of User Content you submit or make available for inclusion on the Service. With respect to User Content you submit or make available for inclusion in the Service, however, you grant Rockmerch.com and its Service Providers the following unlimited, transferable, world-wide, royalty free, non-exclusive license(s), with right to grant and authorize sublicenses, as applicable:
(i) With respect to all User Content you submit or make available for inclusion on publicly accessible areas of the Service, the perpetual and irrevocable license to use, distribute, reproduce, modify, adapt, edit, translate, reformat, publish, translate, create derivative works from, publicly perform and publicly display such User Content (in whole or in part), in any format or medium now known or later developed, to provide and operate any portion of the Service and any related service of a Service Provider, and to promote and market the Service and Rockmerch.com in any manner. For the avoidance of doubt, any photographs or names submitted as part of the Independent Music Service would be User Content licensed pursuant to this Section 5.3(a)(ii).
(ii) With respect to all User Content you submit or make available for inclusion in areas of the Service that are not publicly accessible, the perpetual and irrevocable license to use, distribute and reproduce such User Content (in whole or in part), in any format or medium now known or later developed, for the purpose of exercising any right of Rockmerch.com or a Service Provider set forth in the TOS, including without limitation pursuant to Sections 3.6.
"Publicly accessible" areas of the Service are those areas of the Service and related sites and service of Service Providers that are intended by Rockmerch.com to be available to the general public. For the avoidance of doubt, publicly accessible areas of the Service would include message boards and the Social Network Service or the Web Hosting Service that are open to either registered users or visitors. Publicly accessible areas of the Service would not include portions of the Service intended for private communication, however, such as the Email Service, text or instant messages, or areas outside of the Service such as portions of World Wide Web sites that are accessible through via hypertext or other links but are not hosted or served by Rockmerch.com or its Service Providers. No compensation will be paid with respect to the exercise of any license to your User Content.
(b) License to Users and General Public. With respect to User Content you submit or make available for inclusion in the Service, you grant other users of the Service and the general public a limited, personal, world-wide, royalty free, non-exclusive license to access and use such User Content solely through and in connection with use of the Service.
5.4 Representation and Warranties of Users Regarding Rights to User Content. By submitting or posting User Content to the Service, you warrant and represent that: (a) you own, have a license to, or otherwise control, the copyright and any other intellectual property, publicity or other rights to such User Content, including, without limitation, all the rights necessary for you to use, distribute, publicly display or perform, reproduce, prepare derivative works from, provide, post, upload, input or submit the User Content and grant the licenses and/or sublicenses to such User Content described in the TOS; (b) that each person depicted or described in such User Content, if any, has provided consent to the use of the User Content as set forth in the TOS, including, by way of example, and not as a limitation, the distribution, public display and reproduction of such User Content; and (c) neither the User Content nor any license to the User Content granted herein violates or will violate any copyright, trademark, right of privacy or publicity or any other intellectual property or proprietary right of any third party.
5.5 Trademarks. Without the prior permission of Rockmerch.com or the relevant Service Provider, as applicable, you are not permitted to use or display any name, trademark or service mark of Rockmerch.com, any affiliate of Rockmerch.com or any Service Provider in any manner. Without limitation, Rockmerch, and THE Neighborhood Record Store are trademarks and/or service marks of Rockmerch.com. Other trademarks appearing in the Service are the property of the respective Service Providers and other third parties. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of Rockmerch.com and its affiliates without express written consent. You may not use any meta tags or any other "hidden text" utilizing the name or trademarks of Rockmerch.com or its affiliates without the express written consent of Rockmerch.com.
5.6 Procedure for Making Claims of Intellectual Property Infringement. Rockmerch.com respects the intellectual property of others, and we ask our users to do the same. Rockmerch.com may, in appropriate circumstances and at its discretion, disable and/or terminate the accounts of users who may be repeat infringers. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide Rockmerch.com's copyright agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest; (b) a description of the copyrighted work or other intellectual property that you claim has been infringed; (c) a description of where the material that you claim is infringing is located on the Service; (d) your address, telephone number, and email address; (e) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on behalf of the copyright or intellectual property owner. Rockmerch.com’s agent for notice of claims of copyright or other intellectual property infringement can be reached at store@Rockmerch.com.
Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Service, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser. You agree that Rockmerch.com shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on the Service. EXCEPT WITH RESPECT TO THE ONLINE STORE, AS FURTHER PROVIDED IN THE ADDENDUM BELOW, ALL MERCHANDISE AND SERVICES SOLD THROUGH THE SERVICE, INCLUDING WITHOUT LIMITATION ALL PRODUCTS, BOTH PHYSICAL AND ELECTRONIC, AS WELL AS CONCERT TICKETS, ARE PROVIDED BY ADVERTISERS OR SERVICE PROVIDERS AND NOT Rockmerch.com, REGARDLESS OF THE APPEARANCE OR BRANDING OF THE PRODUCT OFFERING OR ADVERTISEMENT ON THE SERVICE. IF YOU DO NOT WISH TO DEAL WITH SUCH ADVERTISERS OR SERVICE PROVIDERS, DO NOT PURCHASE ANY ITEMS OR SERVICES FOR SALE ON THE SERVICE. Rockmerch.com IS NOT RESPONSIBLE FOR ANY LOSS, DAMAGE, INJURY, OR HARM THAT MAY RESULT FROM YOUR INTERACTIONS WITH ADVERTISERS OR SERVICE PROVIDERS. NOTE THAT CONCERT TICKETS MAY ALSO BE PURCHASED BY CONTACTING THE VENUES DIRECTLY AND MAY BE AVAILABLE AT A SIGNIFICANTLY LOWER COST THAN PROVIDED BY OUR ADVERTISERS AND SERVICE PROVIDERS.
7. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
(a) YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY FOR INFORMATION, DATA, SERVICES, UNINTERRUPTED ACCESS, OR PRODUCTS OR SERVICES PROVIDED THROUGH OR IN CONNECTION WITH THE SERVICE. SPECIFICALLY, Rockmerch.com AND ITS SERVICE PROVIDERS DISCLAIM ANY AND ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, COMPLETENESS, RELIABILITY, USEFULNESS, OR CONTENT OF INFORMATION, PRODUCTS OR SERVICES, AND DISCLAIMS WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THIS DISCLAIMER OF LIABILITY APPLIES TO ANY DAMAGES OR INJURY WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION.
(b) NEITHER Rockmerch.com NOR ITS SERVICE PROVIDERS MAKES ANY WARRANTY: (i) THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; (ii) THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (iii) THAT COMMUNICATIONS AND USER SETTINGS WILL BE DELIVERED OR STORED; (iv) THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE; (v) THAT THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS; (vi) THAT ANY ERRORS IN THE SERVICE WILL BE CORRECTED; OR (vii) WITH RESPECT TO ANY OTHER MATTER.
(c) ANY SERVICE CONTENT, USER CONTENT OR OTHER MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM Rockmerch.com OR ITS SERVICE PROVIDERS OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS.
(e) NEITHER Rockmerch.com NOR ITS SERVICE PROVIDERS MAKES ANY WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE SERVICE OR ANY TRANSACTIONS ENTERED INTO THROUGH THE SERVICE. THIS DISCLAIMER DOES NOT APPLY TO ANY PRODUCT WARRANTY OFFERED BY THE MANUFACTURER OF A PRODUCT SOLD THROUGH THE SERVICE, PROVIDED THAT ANY SUCH WARRANTY IS SOLELY BETWEEN THE PURCHASER AND SUCH MANUFACTURER, AND Rockmerch.com SHALL HAVE NO LIABILITY OR OBLIGATION WITH RESPECT TO SUCH WARRANTY.
8. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT NEITHER Rockmerch.com NOR ITS SERVICE PROVIDERS SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO, OR USE OR ALTERATION OF, YOUR TRANSMISSIONS, INFORMATION OR DATA, WHETHER STORED ON Rockmerch.com SERVERS OR THE SERVERS OF ANY THIRD-PARTY SERVICE PROVIDER; (iv) STATEMENTS OR CONDUCT OF ANY THIRD-PARTY SERVICE PROVIDER, ANY THIRD PARTY ON THE SERVICE, OR ANY USER CONTENT TRANSMITTED THROUGH THE SERVICE; (v) ACCESS DELAYS OR ACCESS INTERRUPTIONS; (vi) DATA NON-DELIVERY OR DATA MIS-DELIVERY; (vii) ACTS OF GOD; (viii) THE UNAUTHORIZED USE OR MISUSE OF YOUR ACCOUNT NUMBER, PASSWORD OR SECURITY AUTHENTICATION OPTION; (ix) ERRORS, OMISSIONS, OR MISSTATEMENTS IN ANY AND ALL INFORMATION OR SERVICE(S) PROVIDED UNDER THIS AGREEMENT; (x) PROCESSING OF YOUR APPLICATION, ORDER OR SERVICE CHANGES; (xi) DAMAGE TO COMPUTER HARDWARE OR SOFTWARE RESULTING FROM USE OF THE SERVICE OR ANY SERVICE CONTENT OR USER CONTENT THEREIN; OR (xii) ANY OTHER MATTER RELATING TO THE SERVICE. THIS LIMITATION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF Rockmerch.com OR ITS SERVICE PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT WILL THE LIABILITY OF Rockmerch.com OR ITS SERVICE PROVIDERS TO YOU ARISING UNDER OR RELATING TO THE TOS OR THE SERVICE EXCEED THE TOTAL AMOUNT OF PAYMENTS, IF ANY, ACTUALLY RECEIVED BY Rockmerch.com OR ITS SERVICE PROVIDERS FROM YOU FOR THE SERVICE OR FOR ANY ORDERS SUBMITTED VIA THE SERVICE OR ONLINE STORE DURING YOUR TERM OF MEMBERSHIP.
BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR LIMITATION OR EXCLUSION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SOME OF THE ABOVE DISCLAIMERS AND LIMITATIONS IN SECTIONS 7 AND 8 MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, THE RESPECTIVE LIABILITY OF Rockmerch.com AND ITS SERVICE PROVIDERS IS LIMITED TO THE GREATEST EXTENT PERMITTED BY SUCH LAW.
You agree to defend, indemnify, and hold harmless Rockmerch.com, its Service Providers and their respective affiliated companies, employees, contractors, officers, and directors from all liabilities, damages, claims, expenses (including attorney’s fees and court costs) and other harm arising from: (a) your use or misuse of the Service; (b) any User Content you submit, post, transmit or make available through the Service; (c) any breach or violation by you of the TOS; or (d) or your violation of any intellectual property, right of privacy or publicity, or other right of any person or entity. Rockmerch.com reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you, in which event you will cooperate with Rockmerch.com at your expense in asserting any available defenses.
10.1 Termination by Rockmerch.com. Rockmerch.com reserves the right, in its sole discretion, to terminate your access to all or part of this Service, with or without notice. You agree that Rockmerch.com, in its sole discretion, may terminate your use of the Service for any reason or no reason, including, without limitation, as a result of your cancellation pursuant to Section 10.2, for lack of use or if Rockmerch.com believes that you have violated or acted inconsistently with the letter or spirit of the TOS. Rockmerch.com may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this TOS may be effected without prior notice. Further, you agree that neither Rockmerch.com nor any Service Provider shall be liable to you or any third-party for any termination of your access to the Service.
10.3 Effects of Termination. Upon termination of the Service, your right to use the Service immediately ceases and neither Rockmerch.com nor any Service Provider shall have any obligation thereafter to forward any unread or unsent messages or any other User Content to you or any third party. You acknowledge and agree that, upon termination of the Service, Rockmerch.com or its Service Provider may immediately cancel and pending orders, deactivate or delete your account and all User Content and related information and files in your account and/or bar any further access to such User Content, files or the Service. You agree that, upon termination of the Service, neither Rockmerch.com nor any Service Provider shall be liable to you or any third-party for canceling orders or deleting or barring further access to User Content, information and files.
Notices to you may be made via either email or regular mail. The Service may also provide notices of changes to the Service or to the TOS or other matters by displaying to you notices or links to notices on the Service. Any such email messages, displays or postings shall constitute sufficient written notice to a you and such notice will be deemed given upon initial transmission. You may give notice to Rockmerch.com under the TOS as provided in Section 14.
12.1 Governing Law and Venue. The construction, interpretation and performance of the TOS and all transactions related thereto shall be governed by and construed in all respects in accordance with the laws of the State of California, without giving effect to the principles of conflicts of law thereof. You irrevocably consent to venue in Orange County, California, and you agree that any mediation, arbitration, action or lawsuit arising under this Agreement or relating to the subject matter thereof shall be maintained in Orange County, California. You agree that, regardless of any statute or law to the contrary, any dispute or claim arising out of or related to use of this Service provided by Rockmerch.com or otherwise arising out of or related to the provisions and conditions of the TOS, must be asserted within one (1) year after such claim or cause of action first arose or shall be forever barred.
12.2 Dispute Resolution. Except where expressly indicated to the contrary in the TOS, any dispute, claim or controversy arising out of or relating to the TOS, or breach of the TOS, shall be resolved in accordance with the dispute resolution procedure set forth below:
(a) The parties will attempt in good faith to resolve through negotiation any such dispute, claim, controversy arising of or relating to the TOS or breach of the TOS. Either party may initiate negotiations by providing written notice in letter form to the other party setting forth the subject of the dispute and the relief requested. Within fifteen (15) days after receipt of said notice (or such longer period as may be agreed to by the parties), the receiving party shall submit to the other party a written response. The notice and response shall include (i) a general statement of the party’s position, and (ii) recommended solution to the dispute.
(b) If the dispute is not resolved by this exchange of correspondence, then representatives of each party with full settlement authority will meet at a mutually agreeable time and place within fifteen (15) days of the date of receipt of the notice and response in order to exchange relevant information and perspectives, and to attempt to resolve the dispute. All such communications, correspondence, proposals and recommendations are confidential, privileged and inadmissible for any purpose, including impeachment, in any arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use as aforesaid.
(c) If the dispute is not resolved by these negotiations, then the parties agree that the dispute shall be submitted to the CPR International Institute for Conflict Prevention and Resolution (the “CPR”), or its successor, for mediation in accordance with the Model Procedure for Mediation of Business Disputes (or successor procedure). The parties will cooperate with the CPR and with one another in selecting a mediator from the CPR’s panel of neutrals, and in scheduling the mediation proceedings. The parties agree that they will participate in the mediation in good faith, and that they will share equally in the costs of utilizing the CPR. All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the parties, their agents, employees, experts and attorneys, and by the mediator or any CPR employees, are confidential, privileged and inadmissible for any purpose, including impeachment, in any arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation.
(d) Either party may initiate arbitration with respect to the matters submitted to mediation by filing a written demand for final and binding arbitration at any time following the initial mediation session or forty-five (45) days after the date of filing the written request for mediation, whichever occurs first. The mediation may continue after the commencement of arbitration if the parties so desire. Unless otherwise agreed by the parties, the mediator shall be disqualified from serving as arbitrator in the case. The provisions of this section may be enforced by any Court of competent jurisdiction, and the party seeking enforcement shall be entitled to an award of all costs, fees and expenses, including reasonable attorneys fees, to be paid by the party against whom an order of enforcement is obtained.
(e) If the matter has not been resolved pursuant to the aforementioned mediation procedure within sixty (60) days of the initiation of such procedure, except where such time has been extended by mutual consent of the parties in writing, then the controversy shall be resolved by arbitration in accordance with the CPR’s Rules for Non Administered Arbitration of Business Disputes, or successor rules (the “Rules”), by a sole arbitrator. The arbitrator shall be selected by agreement of the parties in accordance with such Rules. The parties will cooperate in good faith with the CPR and with one another in selecting the sole arbitrator, and in scheduling the arbitration.
(f) The parties further agree that they will participate in the arbitration in good faith. The parties agree that the arbitrator shall not be empowered to award damages in excess of compensatory damages, and each party irrevocably waives all rights to recover such non-compensatory damages with respect to any dispute resolved by arbitration hereunder. The arbitration shall be governed by the United States Arbitration Act, 9 U.S.C. Sections 1-16 (or successor statute), and judgment upon the award rendered by the arbitrator may be entered by any court having jurisdiction thereof. The provisions of this section may be enforced by any Court of competent jurisdiction, and the party seeking enforcement shall be entitled to an award of all costs, fees and expenses, including attorney’s fees, to be paid by the party against whom an order of enforcement is obtained.
(g) By entering into the TOS, the parties expressly agree to have all such disputes, claims or, controversies arising out of or relating to the TOS or the breach of the TOS decided by neutral arbitration, and they each hereby agree to give up any rights they might possess to have those matters litigated in a court or jury trial. By entering into the TOS, the parties give up their judicial rights to discovery and appeal, except to the extent that they are specifically provided for under the TOS or the CPR’s Rules. If a party refuses to submit to arbitration after agreeing to this provision, it may be compelled to arbitrate under federal or state law. Notwithstanding anything to the contrary set forth in this Section 12.2, Rockmerch.com may immediately apply to any court of competent jurisdiction for injunctive or equitable relief, without any need to pursue mediation or arbitration, in the event of any breach of its site security or intellectual property rights.
If you believe your copyrighted content has been posted without your consent, please contact store@Rockmerch.com so we can remove such content. Please report any violations of the TOS to store@Rockmerch.com.
15. ADDITIONAL INFORMATION
If you have any questions about the Terms of Service, the practices of Rockmerch.com, or your dealings with this Web site, please contact us at store@Rockmerch.com to:
23046 Avenida de la Carlota
Laguna Hills, CA 92653
Effective Date: September 6, 2021
ADDENDUM TO TERMS OF SERVICE FOR Rockmerch.com STORE LOCATED AT STORE.Rockmerch.com, ROCKMERCH.COM, OFFICIALMERCHANDISE.COM AND AS DISTRIBUTED AND SYNDICATED THROUGHOUT THE WEB The Online Store located at rockmerch.com, and and as syndicated and distributed throughout the web is a component of the Rockmerch.com Web site operated on behalf of Rockmerch.com by Rockmerch.com Ventures LLC (“OfficialMerchandise.com LLC”), an affiliate and licensee of Rockmerch.com, Inc. This Addendum supplements the TOS, the terms of which are incorporated here by reference. Without limiting the generality of the preceding sentence, OfficialMerchandise.com LLC shall be a third-party beneficiary under the TOS, and all disclaimers of warranty, limitations of liability, indemnities, licenses, protections, rights and remedies in favor of Rockmerch.com shall equally apply in favor of OfficialMerchandise.com LLC. In the event of any conflict between the provisions of this Addendum and the TOS, the provisions of this Addendum shall govern.
Duties, VAT, and other Fees or Taxes Due
Import duties, VAT, and other fees or taxes that may be due to the package destination country or jurisdiction are not included in the product price or shipping and handling cost and it may be collected upon delivery from the carriers or governmental authorities for certain packages. These charges are the package recipient’s responsibility. You may check with your country’s or jurisdiction's customs office or other authority to determine what these additional costs may be.
Disputes. To the extent any claim, demand, proceeding, litigation, investigation or other action (collectively, and “Action”) arises in connection with the Online Store or any transaction conducted through the Online Store, such Action shall be brought exclusively against OfficialMerchandise.com LLC pursuant to the dispute provisions of Section 12 of the TOS. You expressly agree that you will not assert any Action against Rockmerch.com relating to the Online Store, and you hereby forever waive the right to do so. For the avoidance of doubt, this paragraph does not relate to ticket purchases or transactions conducted on areas of the Rockmerch.com Web site other than the Online Store located at store.Rockmerch.com.
Shipping and Processing Fees. OfficialMerchandise.com LLC’s shipping and processing charges are intended to compensate OfficialMerchandise.com LLC for the cost of processing your order, handling and packing the products you purchase and delivering them to you.
Delivery Schedule. THE RockMerch.com STORE RESERVES THE RIGHT TO REFUSE ANY ORDERS. For example, please note that we cannot accept orders that appear to be wholesale in nature, in our sole discretion. Further, international vinyl record orders are limited to one order per month of up to three titles maximum. OfficialMerchandise.com LLC strives to deliver your order as quickly as possible. This typically means that U.S. domestic customers will receive their order within five business days; provided, however, that there is always the possibility that it could take much longer to receive your product, especially for international orders. PLEASE NOTE THE PACKING SLIP OF ALL ORDERS PRINTS THE BILL TO ADDRESS AND EMAIL ADDRESS SO THAT ORDERS SENT TO A DIFFERENT SHIPPING ADDRESS WILL DISCLOSE THIS INFORMATION TO THE RECIPIENT.
Returns. OfficialMerchandise.com LLC wants its customers to feel comfortable with their purchase. If for any reason you are dissatisfied with your purchase, then send back your order and we will provide an Online Store merchandise credit for the amount of your purchase, subject to the following limitations:
· Only products that have not been used, worn, washed, or damaged will be eligible for a store credit. Returns must be made no later than thirty (30) days from the date you received your order based on the delivery date of the shopmen’t tracking details. Shipments made after 30 (30) days will be rejected at the customer’s expense.
· OfficialMerchandise.com LLC will not provide any refunds for shipping expenses or cover shipping costs incurred during the return process.
· If you returned only one item from a multi-item shipment, you will be reimbursed with the store credit only for the per-item cost.
To return your product successfully, please carefully follow the following steps:
(a) You must first email OfficialMerchandise.com LLC’s Retail Customer Service at store@Rockmerch.com for a Return Merchandise Authorization (RMA) number within thirty (30) days of receiving your order. You must state the reason for your return in the email. If you send a package without an RMA number, your package will not be accepted and will be returned at your expense.
(b) You must include your (RMA) number, email receipt, and packing slip with the item being returned.
(c) OfficialMerchandise.com LLC will not be responsible for lost items. Please ship your return via a trackable and insured method.
(d) All shipping costs for items being returned must be paid by the customer.
(e) Once OfficialMerchandise.com LLC inspects the returned merchandise and verifies the product has not been worn, used, damaged, washed, or handled inappropriately, the customer will receive an email notice including a store credit for the amount of the initial product purchased from the Online Store.
Cancellations. All orders are final. Once an order has been processed, a customer may not cancel or receive any reimbursement or refund with respect to that order.
Please review the provided shipping address carefully before placing your order as RockMerch is not responsible for orders with incorrect addresses.
Inaccuracies and Quantities. From time to time there may be information on the Service that contains typographical errors, inaccuracies, or omissions that may relate to product descriptions, pricing, and availability. OfficialMerchandise.com LLC reserves the right to correct any errors, inaccuracies or omissions and to change or update information at any time without prior notice (including after you have submitted your order). OfficialMerchandise.com LLC also reserves the right to limit quantities you may order (including after you have submitted your order). OfficialMerchandise.com LLC apologizes for any inconvenience this may cause you. NONE OF OfficialMerchandise.com LLC, ITS AFFILIATES OR THEIR RESPECTIVE SERVICE PROVIDERS SHALL HAVE ANY LIABILITY OF ANY KIND IN CONNECTION WITH: (a) ANY ERRORS, INACCURACIES, OR OMISSIONS THAT MAY RELATE TO PRODUCT DESCRIPTIONS, PRICING, AND/OR AVAILABILITY; OR (b) OfficialMerchandise.com LLC’S EXERCISE OF ANY RIGHT SET FORTH IN THIS PARAGRAPH.
DISCOUNTS, STORE CREDITS AND LOYALTY POINTS
DISCOUNTS, STORE CREDITS AND LOYALTY POINTS ARE OF NO VALUE AND MAY NOT BE REDEEMED FOR CASH OR OTHER MONETARY VALUE. Additionally, these may be invalidated at any time without prior notice. No liability is created on the part of OfficialMerchandise.com, its brands, affiliates, subsidiaries, parent companies, investors, employees, or any other party as a result of issuing discounts, store credits, and loyalty points. Further, if discounts, store credits, and loyalty points are issued in error, these cannot be utilized by the customer and will be cancelled or adjusted in value by OffficialMerchandise.com LLC. Customers cannot bring a claim regarding the loss of discounts, store credits, and loyalty points as these are not liabilities of OffficialMerchandise.com LLC and are to be considered promotions which can be cancelled at any time for any or no reason. If you do not agree with these terms, do not accept and utilize discounts, store credits, and loyalty points issued by OfficialMerchandise.com and its brand RockMerch.
Charges and Payment. You shall be completely responsible for all charges, fees, duties, taxes, and assessments arising out of your use of the Online Store, and all sales through the Online Store are final and non-refundable. OfficialMerchandise.com LLC may process credit card charges directly, or it may forward credit card and other user information collected through the Online Store to a third-party credit card processor. In the event that the amounts charged to your credit card differ from the confirmation OfficialMerchandise.com LLC or its third-party processor sends to you, or you otherwise wish to question or dispute a charge on your credit card related to any merchandise provided to you via the Online Store, you agree to contact OfficialMerchandise.com LLC directly prior to disputing the charge with the credit card company or initiating a chargeback. In the event that you initiate a dispute or chargeback with your credit card company with respect to any valid charge for merchandise provided to you via the Online Store, and OfficialMerchandise.com LLC, in its sole reasonable discretion, determines that such dispute or chargeback is without merit or fraudulent, without limiting any other rights and remedies available to OfficialMerchandise.com LLC: (a) you shall promptly refund to OfficialMerchandise.com LLC or its designee the full amount of the refund plus an additional fifty percent of the chargeback (50%) as liquidated damages to compensate OfficialMerchandise.com LLC for resulting administrative and accounting costs; (b) you shall promptly reimburse OfficialMerchandise.com LLC or its designee for the full amount of any reasonable collection fees, attorney fees, and any other costs associated with recouping the chargeback or otherwise resolving the dispute; (c) Rockmerch.com may immediately terminate your Rockmerch.com user account; and (iv) OfficialMerchandise.com LLC may, to the extent permitted by applicable law, report your conduct to the credit reporting agencies. In any legal proceeding relating to a credit card dispute or chargeback, the user will bear the burden of proving that the dispute or chargeback was justified and that charges were incorrect or not authorized by the user. OfficialMerchandise.com LLC and its Online Store Service Providers shall report, and shall have the right to report, any user suspected of fraud to all applicable law enforcement authorities, and in no event shall OfficialMerchandise.com LLC or any Online Store Service Provider have any liability to any user for making any such report based upon reasonable information.
Limitations. THIS ADDENDUM STATES THE SOLE RESPONSIBILITY OF OfficialMerchandise.com LLC AND ITS AFFILIATES, AND YOUR SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT ALL ORDERS AND PURCHASES THROUGH THE ONLINE STORE. THE RISK OF LOSS AND TITLE TO ITEMS PURCHASED FROM THE ONLINE STORE PASS TO THE PURCHASER UPON OUR DELIVERY TO THE CARRIER. EXCEPT AS EXPRESSLY PROVIDED BELOW IN THIS ADDENDUM, NEITHER OfficialMerchandise.com LLC NOR ITS AFFILIATES SHALL HAVE ANY LIABILITY OR OBLIGATION IN CONNECTION WITH ANY CONTRACT OR ORDER FOR MERCHANDISE THROUGH THE ONLINE STORE, INCLUDING, WITHOUT LIMITATION, ANY LIABILITY OR OBLIGATION FOR: (A) ANY LATE DELIVERY, MIS-DELIVERY, NON-DELIVERY, LOSS OR DESTRUCTION OF MERCHANDISE; (B) ANY DEFECTS IN MERCHANDISE OR ANY MISREPRESENTATION BY A SERVICE PROVIDER REGARDING THE NATURE OR QUALITY OF MERCHANDISE; OR (C) ANY BILLING ERRORS OR INACCURACIES OR ANY LOSS OR MISUSE OF PERSONAL OR FINANCIAL INFORMATION BY A SERVICE PROVIDER. WITHOUT LIMITING THE SCOPE OF ANY OTHER APPLICABLE DISCLAIMER SET FORTH IN THE TOS: (I) NEITHER OfficialMerchandise.com LLC NOR ITS AFFILIATES WARRANT OR GUARANTEE ANY MERCHANDISE PURCHASED THROUGH THE ONLINE STORE IN ANY WAY AND HEREBY DISCLAIM ANY AND ALL WARRANTIES, REPRESENTATIONS OR GUARANTEES MADE BY ANY SERVICE PROVIDERS IN CONNECTION WITH ANY SUCH MERCHANDISE; AND (II) UNDER NO CIRCUMSTANCES WILL OfficialMerchandise.com LLC OR ITS AFFILIATES BE LIABLE OR RESPONSIBLE FOR ANY PERSONAL INJURY OR DAMAGE TO PROPERTY RESULTING FROM ANY DESIGN OR MANUFACTURING DEFECT IN ANY MERCHANDISE ORDERED THROUGH THE ONLINE STORE, OR FROM USE OR MISUSE OF ANY SUCH MERCHANDISE, INCLUDING WITHOUT LIMITATION ANY ALLERGIC REACTIONS OR INFANT CHOKING HAZARDS. NEITHER OfficialMerchandise.com LLC NOR ITS AFFILIATES MAKE ANY WARRANTIES TO THOSE DEFINED AS "CONSUMERS" IN THE MAGNUSON-MOSS WARRANTY-FEDERAL TRADE COMMISSION IMPROVEMENTS ACT.
Miscellaneous. Without limitation, Rockmerch.com, THE NEIGHBORHOOD RECORD STORE, ROCKMERCH are trademarks and/or service marks of Rockmerch.com or its parents or affiliates licensed for use in the Online Store by OfficialMerchandise.com LLC. Other trademarks appearing in the Online Store or the Service are the property of Rockmerch.com, the respective Service Providers or other third parties. WITHOUT LIMITING THE GENERALITY OF ANY DISCLAIMER OF WARRANTY SET FORTH IN THE TOS, OfficialMerchandise.com LLC AND ITS AFFILIATES DISCLAIM ANY LIABILITY AS TO THE ACCURACY OR COMPLETENESS OF EACH DESCRIPTION OF ITEMS FOR SALE IN THE ONLINE STORE. ALL PRODUCT DESCRIPTIONS ORIGINATE FROM THE MANUFACTURER OF THE ITEM.