This Master Services Agreement (“MSA”) is entered into between Brandmerch LLC, a North Carolina limited liability company with a business address at 3915 Beryl Rd, Ste 120, Raleigh, NC 27607 (“Brandmerch”), and the customer identified in an Order Form that references this MSA (“Customer”). This MSA becomes effective on the effective date of the first Order Form executed by both parties (the “Effective Date”).
How this agreement is used. This MSA is the fixed legal framework. Customer-specific pricing, subscription term, storefront allowances, storage treatment, fulfillment rates, implementation scope, and service-level elections belong in an Order Form or Statement of Work.
1. Agreement Structure
1.1 Agreement. The “Agreement” consists of this MSA, each executed Order Form, Statement of Work (“SOW”), amendment, and any policy or addendum expressly incorporated by reference, including the Brandmerch Service Level Agreement (“SLA”), Data Processing Agreement (“DPA”), Warehousing and Fulfillment Addendum, and Fulfillment Rate Schedule, as applicable.
1.2 Order Forms. Each Order Form will identify the services purchased, subscription term, fees, billing schedule, included allowances, usage charges, and incorporated documents. An affiliate may purchase services only through an Order Form signed by that affiliate or expressly including it.
1.3 Order of Precedence. In the event of conflict, the following order controls: (a) a signed amendment; (b) an Order Form or SOW, but only for the services and subject matter it expressly addresses; (c) this MSA; (d) an incorporated addendum or policy; and (e) a purchase order or administrative document. Purchase-order terms do not modify the Agreement unless expressly signed by both parties.
2. Services
2.1 Platform Services. Brandmerch will provide Customer access to the hosted Brandmerch platform and the features, user roles, storefronts, catalogs, reporting, ordering workflows, integrations, and support identified in the applicable Order Form.
2.2 Implementation and Managed Services. Brandmerch will provide implementation, configuration, catalog setup, brand asset organization, training, sourcing, account management, or other managed services described in an SOW. Target dates depend on Customer’s timely cooperation, approvals, content, data, and access.
2.3 Merchandise and Fulfillment. Brandmerch may source, customize, produce, store, receive, inspect, kit, pick, pack, ship, return, or otherwise coordinate merchandise. Product, printing, decoration, packaging, storage, receiving, fulfillment, carrier, duties, taxes, customs, brokerage, returns, and reshipment charges are separate from platform fees unless the applicable Order Form expressly states otherwise.
2.4 Changes and Out-of-Scope Work. Customer requests outside an Order Form or SOW, including material custom development, API work, new integrations, accelerated implementation, unusual data migration, or special operational handling, require a written change order, separate quote, or additional SOW.
2.5 Subcontractors. Brandmerch may use affiliates, suppliers, decorators, manufacturers, hosting providers, warehouses, carriers, and other subcontractors to provide the services. Brandmerch remains responsible for its contractual obligations, subject to the Agreement’s exclusions and limitations.
3. Customer Responsibilities
3.1 Customer Cooperation. Customer will timely provide accurate information, brand assets, artwork, specifications, user lists, approvals, forecasts, addresses, tax documentation, purchase orders, payment information, systems access, and personnel reasonably needed to perform the services.
3.2 Authorized Users. Customer is responsible for its users, role assignments, account permissions, credentials, and all activities under its accounts. Customer will promptly notify Brandmerch of unauthorized access or personnel changes.
3.3 Customer Materials. Customer represents that it owns or has sufficient rights to all names, trademarks, artwork, content, recipient data, and other materials it provides, and that Brandmerch’s permitted use will not violate law or third-party rights.
3.4 Forecasts and Volume. Customer will provide reasonable advance notice of material volume increases, launches, events, or deadlines. Brandmerch is not responsible for delays or capacity constraints caused by unforecasted or materially changed volume.
4. Fees, Invoicing, and Taxes
4.1 Fees. Customer will pay all fees, charges, and approved pass-through costs stated in the Agreement, quotes, and accepted orders. Except as expressly stated, fees are noncancelable and nonrefundable.
4.2 Subscription Billing. Subscription fees are billed in advance according to the billing frequency in the Order Form. A billing frequency does not alter the committed subscription term. A twelve-month commitment billed monthly remains a twelve-month commitment.
4.3 Usage and Order Charges. Product, fulfillment, storage, shipping, duties, taxes, and other usage charges may be billed as incurred, upon order approval, before production, or under agreed payment terms. Brandmerch may require deposits or prepayment for custom, high-value, international, or special-order work.
4.4 Payment. Unless an Order Form states otherwise, invoices are due within 30 days. Customer will notify Brandmerch of a good-faith invoice dispute before the due date and pay undisputed amounts when due. Overdue undisputed amounts accrue interest at 1.5% per month or the maximum lawful rate, whichever is lower, plus reasonable collection costs.
4.5 Taxes. Fees exclude applicable sales, use, excise, value-added, withholding, and similar taxes. Customer is responsible for taxes arising from its purchases, except taxes based on Brandmerch’s net income. Brandmerch may collect taxes unless Customer provides valid exemption documentation.
4.6 Rate Changes. Rates fixed in an Order Form or versioned Fulfillment Rate Schedule remain in effect for the stated term. At renewal, Brandmerch may update recurring or usage rates by giving at least 30 days’ notice, unless the Order Form provides a different adjustment rule.
5. Subscription Term, Renewal, and Suspension
5.1 Term. This MSA continues while an Order Form remains active. Each Order Form begins and continues for its stated initial term.
5.2 Renewal. Unless an Order Form states otherwise, an Order Form renews for successive twelve-month periods unless either party gives at least 30 days’ written notice before the then-current term ends.
5.3 Suspension. Brandmerch may suspend affected services for overdue undisputed amounts, security risks, unlawful use, misuse, or material breach, after reasonable notice when practicable. Customer remains responsible for fees during a suspension caused by Customer.
6. Orders, Production, and Logistics
6.1 Quotes and Orders. A quote is an estimate until accepted and confirmed. Supplier inventory, pricing, freight, tariffs, duties, and production availability may change before confirmation. Brandmerch may reject, cancel, or revise an order affected by error, unavailability, fraud, compliance restrictions, or circumstances outside its reasonable control.
6.2 Proofs and Approvals. Customer is responsible for reviewing and approving artwork, proofs, specifications, quantities, addresses, and personalization. Brandmerch may rely on Customer approval. Minor variations customary in manufacturing, decoration, color, sizing, placement, and materials are not defects.
6.3 Timelines. Production, processing, transit, delivery, and in-hands dates are estimates unless expressly guaranteed in writing. Delays caused by suppliers, decorators, carriers, customs, authorities, weather, shortages, force majeure, Customer changes, approvals, payment, or inaccurate addresses are outside Brandmerch’s control.
6.4 Risk of Loss. Unless an Order Form or applicable shipping term states otherwise, title and risk of loss transfer when goods are tendered to the carrier. Brandmerch will reasonably assist with carrier claims but does not guarantee recovery.
6.5 Defects and Claims. Customer must inspect goods promptly and report visible shortages, damage, or material defects within 10 business days after delivery. Custom goods are nonreturnable except for verified defects or as otherwise agreed. Brandmerch may repair, replace, reperform, credit, or refund affected goods at its reasonable election.
7. Platform Rights and Acceptable Use
7.1 Access Right. Subject to the Agreement, Brandmerch grants Customer a limited, nonexclusive, nontransferable right during the applicable term to access and use the platform for Customer’s internal business operations and authorized storefront programs.
7.2 Restrictions. Customer will not reverse engineer, copy, scrape, interfere with, circumvent, resell, sublicense, or use the platform to build or benchmark a competing service, except where an Order Form expressly authorizes an agency or reseller use case.
7.3 Changes. Brandmerch may improve or modify the platform, provided it does not materially reduce the core paid functionality during the then-current term. Beta or preview features may be changed or withdrawn at any time.
8. Intellectual Property and Data
8.1 Brandmerch Materials. Brandmerch and its licensors retain all rights in the platform, software, workflows, templates, documentation, designs, data models, product configurations, know-how, improvements, and related intellectual property. No rights are granted except as expressly stated.
8.2 Customer Materials and Data. Customer retains rights in Customer Materials and Customer Data. Customer grants Brandmerch a limited right to host, reproduce, modify, transmit, disclose to service providers, and otherwise use them only as necessary to perform the Agreement, comply with law, prevent harm, and enforce the Agreement.
8.3 Feedback and Aggregated Data. Brandmerch may use feedback without restriction. Brandmerch may create and use aggregated or deidentified information that does not reasonably identify Customer or an individual to operate, secure, analyze, and improve its services.
9. Confidentiality
9.1 Confidential Information. Confidential Information means nonpublic information disclosed by one party that reasonably should be understood as confidential, including business plans, pricing, security information, customer lists, technical information, and the nonpublic terms of an Order Form.
9.2 Protection and Use. The receiving party will use Confidential Information only to perform or exercise rights under the Agreement, protect it using at least reasonable care, and disclose it only to personnel, advisors, and contractors who need to know and are bound by confidentiality obligations.
9.3 Exclusions and Required Disclosure. Confidential Information excludes information the receiving party can document was lawfully known without restriction, becomes public without breach, is received lawfully from a third party, or is independently developed. Required disclosures are permitted after advance notice when legally allowed.
9.4 Equitable Relief. Unauthorized disclosure may cause irreparable harm for which monetary damages are inadequate. The disclosing party may seek appropriate injunctive relief without limiting other remedies.
10. Privacy, Security, and Compliance
10.1 Data Processing. Where Brandmerch processes personal data for Customer, the Brandmerch DPA identified in the Order Form is incorporated into the Agreement. Customer is responsible for having a lawful basis to provide recipient and user information.
10.2 Security. Brandmerch will maintain reasonable administrative, technical, and organizational safeguards appropriate to the services. Additional security commitments apply only if stated in an Order Form, SLA, DPA, or security addendum.
10.3 Compliance. Each party will comply with laws applicable to its performance. Customer is responsible for the legality of its products, campaigns, recipients, content, export destinations, and instructions. Neither party will knowingly violate applicable sanctions, export controls, anti-bribery, or anti-corruption laws.
11. Warranties and Disclaimers
11.1 Mutual Authority. Each party represents that it is duly organized, has authority to enter the Agreement, and will perform its obligations in a professional and lawful manner.
11.2 Limited Services Warranty. Brandmerch warrants that it will perform its professional services in a commercially reasonable manner. Customer’s exclusive remedy for breach of this warranty is re-performance if Customer gives written notice within 30 days after performance.
11.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED, THE SERVICES, PLATFORM, THIRD-PARTY CONTENT, PRODUCTS, AND DELIVERABLES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” BRANDMERCH DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY WARRANTY ARISING FROM COURSE OF DEALING OR USAGE. BRANDMERCH DOES NOT WARRANT UNINTERRUPTED OR ERROR-FREE OPERATION, PARTICULAR BUSINESS RESULTS, OR THIRD-PARTY PERFORMANCE.
12. Indemnification
12.1 Customer Indemnity. Customer will defend and indemnify Brandmerch and its affiliates, personnel, and subcontractors from third-party claims arising from Customer Materials, Customer’s products or campaigns, unlawful instructions, Customer’s breach of Section 3.3 or 7.2, or Customer’s violation of law.
12.2 Brandmerch IP Indemnity. Brandmerch will defend Customer from a third-party claim that the unmodified Brandmerch platform infringes a United States patent, copyright, or trademark, and will pay finally awarded damages or approved settlements. Brandmerch has no obligation for claims caused by Customer Materials, third-party products, combinations not supplied by Brandmerch, modifications, or continued use after notice.
12.3 Remedies and Procedure. For a covered platform claim, Brandmerch may obtain continued use rights, modify or replace the affected functionality, or terminate it and refund prepaid unused subscription fees. The indemnified party must promptly notify the indemnifying party, allow control of the defense and settlement, and reasonably cooperate. No settlement may admit fault or impose nonmonetary obligations on the indemnified party without consent.
13. Limitation of Liability
13.1 Excluded Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY IS LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR LOST PROFITS, REVENUE, GOODWILL, OR DATA, EVEN IF ADVISED OF THEIR POSSIBILITY.
13.2 Liability Cap. EXCEPT FOR EXCLUDED CLAIMS, EACH PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF THE AGREEMENT WILL NOT EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER UNDER THE AFFECTED ORDER FORM DURING THE TWELVE MONTHS BEFORE THE EVENT GIVING RISE TO LIABILITY.
13.3 Excluded Claims. The exclusions and cap do not apply to Customer’s payment obligations, either party’s fraud or willful misconduct, Customer’s breach of Section 7.2, or liabilities that cannot lawfully be limited. Indemnification obligations remain subject to the cap unless an Order Form expressly provides otherwise.
14. Termination
14.1 Termination for Cause. Either party may terminate an affected Order Form or this MSA for material breach if the breach is not cured within 30 days after written notice. Nonpayment must be cured within 10 business days. A party may terminate immediately for insolvency, unlawful performance, or an uncured material security risk.
14.2 Early Termination. Customer may not terminate an Order Form for convenience during its committed term unless the Order Form expressly permits it. If an Order Form permits early termination, Customer remains responsible for stated early termination charges, committed fees, and any conditionally waived setup fee.
14.3 Effect. Upon termination, Customer will stop using affected services and pay accrued and committed amounts. Brandmerch will make Customer Data reasonably available for export for 30 days unless prohibited by law, subject to payment of amounts due and reasonable export costs. Sections intended by their nature to survive will survive.
15. General
15.1 Notices. Legal notices must be in writing and delivered by nationally recognized overnight courier or email with confirmation to the addresses in the Order Form. Notices to Brandmerch must also be sent to legal@brandmerch.com and 3915 Beryl Rd, Ste 120, Raleigh, NC 27607.
15.2 Assignment. Neither party may assign the Agreement without the other’s consent, except to an affiliate or in connection with a merger, reorganization, sale of substantially all assets, or change of control, provided the assignee assumes the Agreement. An assignment to a direct competitor of the nonassigning party requires consent.
15.3 Force Majeure. Neither party is liable for delay caused by events beyond its reasonable control, excluding Customer’s payment obligations. Affected performance will resume as reasonably practicable.
15.4 Independent Contractors. The parties are independent contractors. The Agreement does not create a partnership, franchise, joint venture, fiduciary, agency, or employment relationship.
15.5 Governing Law and Venue. North Carolina law governs without regard to conflicts principles. The state and federal courts located in Wake County, North Carolina have exclusive jurisdiction, and each party consents to venue and waives trial by jury to the extent permitted by law.
15.6 Miscellaneous. The Agreement is the entire agreement about its subject matter and supersedes prior proposals and discussions. Amendments and waivers must be in writing and signed by authorized representatives. If a provision is unenforceable, it will be modified to the minimum extent necessary and the remainder remains effective. Headings are for convenience. Electronic signatures and counterparts are effective.