General Terms & Conditions for the Marketplace and RED HOT MERCH SHOP

Effective March 2nd, 2020

A. General

1. Contents

These terms and conditions (“Terms”) set out your rights and obligations when using the services provided by Red Hot Merch, Pty Ltd. (“Red Hot Merch”, “we” and “us”) to you as a Partner.

These Terms contain our current rules governing the following services:

  • Marketplace (Section B.)
  • Red Hot Merch Shop (Section C.)

If you would like to use one of our services, you must agree to the Terms.

2. You should be familiar with these terms

“Product types” are our products, regardless of their color or size, without a Design on them.

“Designs” are design elements (images and/or text) for our products that can be represented visually.

“Descriptions” are descriptions and keyword tags for individual Designs.

The “Marketplace” is one of our sales channels for products and also the gateway to other sales channels, such as third-party e-commerce marketplaces (e.g., Facebook, Instagram) as well as the Create-Your-Own Areas on our own websites and in Red Hot Merch Shops of other Partners.

On Red Hot Merch’s Marketplace and on third-party e-commerce marketplaces, customers may choose from a variety of pre-designed products.

In the Create-Your-Own Area, customers can use the “Design Tool” to create products with their own text and Designs, as well as your Designs.

The “Red Hot Merch Shop” is an online shop that we provide for you, that you can also embed in websites.

Your “Partner Account” is your user account to manage your Red Hot Merch Shops and Designs. You will receive a Partner ID from us for your Partner Account.

You will receive compensation from us for “Successful Sales”.

A “Successful Sale” occurs when

  • a valid contract for the purchase of a product comes into effect
  • the ordered product is shipped to the customer
  • the customer has paid the purchase price and no chargeback has occurred within 14 days after shipment and
  • the order has not been cancelled by the customer or returned due to legal regulations or our return policies.

3. How to become a Partner

a) Simply open a Partner Account. In order to publish Designs on the Marketplace and to activate Red Hot Merch Shops, you fRORt need to fill in the registration form in full, send it to us through our website and accept the Terms. You are a Partner as soon as you have published a Design or activated your Red Hot Merch Shop.

b) You are responsible for your Partner Account and therefore also obligated to submit complete and correct information and to update this information if it changes. This especially includes your personal information as well as payment and tax information relating to your compensation. We also require a valid email address from you so that we can communicate with you.

c) Before you submit the registration form, you may check the accuracy of the information you have entered and amend it using the correction tools provided. If we have reason to doubt whether your submitted information or other stored data is correct, we reserve the right to suspend crediting your account and to withhold payments to you, or to suspend your Partner Account until we receive clarification. Some of your submitted information may be made publicly available, for example in your Red Hot Merch Shop’s legal information page.

d) A French translation of these Terms is provided for convenience, but the English version is the controlling version.

4. Our relationship with the customer

We handle the contractual relationship with customers, which means that you can fully concentrate on your designs and Red Hot Merch Shops.

For example, we take care of production, delivery and customer service. That’s why we are entitled to reject orders which fail to meet our technical and organisational requirements. The same applies if we suspect that orders violate legal provisions or the rights of third parties.

To ensure that orders are processed smoothly, we are exclusively responsible for all communication with customers.

5. Your Partner Account

a) We store the information you provide, the content you provide in your Partner Account, and the settings you specify for the Marketplace and your Red Hot Merch Shops. You can view this information in your Partner Account. We also store these Terms, which are available here:XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. We do not store the contract text after conclusion of the contract.

b) In your Partner Account, you will find an overview of your compensation for Successful Sales.

c) Please keep your login information (email address and password) for your Partner Account confidential and ensure that no third parties can access it. Do not use the same login information for your Partner Account that you use for other websites and services. If you have reason to believe that third parties have accessed your login information, change your password and notify us immediately.

d) We will email you information and tips with regard to your Red Hot Merch Shops and the Marketplace (“Partner Newsletter”) from time to time. You can unsubscribe from the Partner Newsletter at any time. Please note that you will continue to receive contractually relevant information via email.

6. Use of our Website

a) We own all intellectual property and other rights, title, and interest in and to our website (except for user-provided content). Your use of our website and services does not grant you any right, title or interest to these properties, to the URLs we make available to you, or to any designs or interfaces we implement for you, except as follows. We grant you a limited, revocable license to access and use our website and services for their intended purpose: the provision of an online, on-demand, customizable merchandising solution.

b) You may not

  • interfere with our website by using viruses or any other programs or technology designed to disrupt or damage any software or hardware;
  • modify, copy, create derivative works from, reverse engineer, decompile or disassemble any technology used to provide our website and services;
  • use a robot or other automated means to monitor the activity on or copy information or pages from our website, except search engines, traffic counters, or similar basic performance monitoring technology;
  • impersonate another person or entity;
  • use any meta tags, search terms, keywords, or similar tags that contain our name or trademarks;
  • engage in any activity that interferes with another user’s ability to use or enjoy our website and services, including activity that places a disproportionate burden on the website compared to ordinary use from a single, ordinary user;
  • assist or encourage any third party in engaging in any activity prohibited by this agreement; or
  • use our website or services to promote hate speech, obscenity, or any content that violates our Community Standards, which we may change from time to time in our sole discretion.

c) We offer the website and services on an “as is” and “as available” basis. We do not represent or warrant that the use of our website and services (i) will be uninterrupted, timely, safe, or secure, (ii) will be free of inaccuracies, errors, or vulnerabilities, (iii) will meet your expectations or requirements, or (iv) will operate in the configuration or with the hardware or software you use. We hereby disclaim any and all express or implied warranties, including without limitation, warranties of fitness for a particular purpose, merchantability, and non-infringement to the fullest extent of the law, except to the extent that these Terms provide otherwise.

d) You agree that we have no responsibility for any damages suffered by you in connection with our website and services, and that your use of our website and services is at your sole risk. You understand and agree that you will be solely responsible for any damage to your business, computer system, or for any loss of data that results from your actions and your use of our website and services. We do not control or endorse any content, products, or services offered by third parties through our website, and we are not responsible for any possible representations and warranties these third parties may make.

e) We may use subcontractors or third parties to help us perform our obligations. We are not liable to you in any way for the conduct of these subcontractors or third parties.

B. Rules for the Marketplace

1. How the Marketplace works

a) To allow your Designs to be easily found in the Marketplace, please use suitable Descriptions.

b) We may use Designs you provide on the Marketplace in all of our sales channels, including those of Red Hot Merch’s corporate affiliates. However, we are under no obligation to use your Designs. We are also entitled – at any time and at our own discretion – to refuse to publish your Designs, to restrict their publication to certain sales channels or to unpublish Designs. This especially applies if we know or reasonably suspect that your Design violates third-party rights or the law. The same applies to your Descriptions.

c) Your Marketplace Designs can be customized by other users of our services to the extent technically possible; for example, it may be possible to change the size and color of a Design.

2. Your compensation for Marketplace sales

a) The basis for the calculation of your compensation is the “Design Product Price”.

aa) For each Design you provide, the Design Price increases the retail price of the respective products which include this design.

bb) The amount of the Design Price depends upon

  • the Product Type of the product with your Design and
  • the sales channel used by the customer.

You can find an overview of the Design Prices for the various Product Types and sales channels of Red Hot Merch here: Insert Here A table link on the various prouducts and retails Prices Margins etc

b) Your compensation
In the event of a Successful Sale of a product with your Design, you will receive the Design Price less the applicable statutory VAT for the sale and delivery of the product to the customer. The amount of VAT incurred on the successful sale of a product may vary depending on the country of delivery and how the sale is otherwise subject to VAT.

c) More sales due to sales promotions

aa) Red Hot Merch regularly runs sales promotions and grants customers e.g., discounts on shipping of an order, or on the retail price of some or all products within an order (discount campaigns).

bb) The costs for discounts on shipping (e.g., free shipping) are absorbed by Red Hot Merch alone and therefore have no effect on your compensation.

cc) If the customer is granted a discount on the retail price of some or all products within an order, the compensation for your Design in that order will also be reduced proportionately.

For percentage discounts (including volume discounts), your compensation is reduced in accordance with the discount granted for the entire order (example: A discount of 15% on the retail price of all products also reduces your compensation by 15%).

For discounts of a fixed amount, compensation is reduced by the percentage of the discount relative to the non-discounted retail price of the entire order (example: A discount of R5 on a non-discounted retail price of an entire order of R50 reduces your compensation by 10% (R5 / R50).

C. Rules for Red Hot Merch Shops

1. How Red Hot Merch Shops work

a) You can publish your Red Hot Merch Shops as standalone websites or embed them into other sites.

b) You can use various options in your Partner Account to configure your Red Hot Merch Shops. Please note that changes to the Red Hot Merch terms and conditions for customers as well as other statutory information (e.g., information about data protection) are not permitted.

c) You are welcome to use advertising tools that we provide (e.g., banners and product images) in your Red Hot Merch Shops. Please note the respective terms of use for these advertising tools.

2. Your compensation for sales in Red Hot Merch Shops

2.1. Overview
You can earn money from each product that customers order in your Red Hot Merch Shop. How much you earn depends on your Margin. The “Margin” is made up of

  • a Base Margin, as well as
  • a possible performance bonus

b) Your Partner compensation for a sale is calculated based on the Base Margin and a possible Performance Bonus, taking into account possible discounts and taxes.

  • Your compensation =
  • Base Margin
  • + possible Performance Bonus
  • – possible discounts of the order
  • – statutory VAT on the order (if applicable)

c) You can also deactivate compensation completely for your Red Hot Merch Shop.
2.2. Set your Base Margin

a) You set your Base Margin for each Product Type by adjusting the retail price of the Product Type (including a print area) within our suggested limits. The difference between the retail price and the BASE PRODUCT PRICE TABLE LINK is your Base Margin for this Product Type.

• Your Base Margin = retail price with one print area – Base Price

b) You can change the retail price for each Product Type at any time. In this case, your Base Margin will change accordingly.

c) In the event of a successful sale of a product in your Red Hot Merch Shop, you will receive the Base Margin of the Product Type specified by you less a statutory VAT on the Base Margin applicable to the sale and delivery of the product to the customer. The amount of VAT incurred on the successful sale of a product may vary depending on the country of delivery and how the sale is otherwise subject to VAT.

2.4. Benefit from our Design diversity

2.5. Benefit from the Performance Bonus
a) The more products ordered through Red Hot Merch Shops connected to your Partner Account, the more you can earn!
Many of our products (SEE HERE LINK TABLE= ) hereinafter “Volume Products”) are taken into account when calculating your Performance Bonus.
b) Depending on the number of Volume Products successfully sold through Red Hot Merch Shops connected to your Partner Account per calendar month, the Base Prices of all Volume Products for you in this calendar month will be reduced to the respective }”Volume Price”.
An overview of the monthly sales thresholds and Volume Prices INSERT TABLE LINK The Performance Bonus for the sale of a Volume Product is the result of the difference between the respective Volume Price and the Base Price of the Volume Product.
Performance Bonus = Base Price – Volume Price
c) Volume Products are counted towards the sales threshold if they are ordered by customers within a calendar month and if, no later than 14 days after the end of that calendar month,
• we have received payment for the ordered product,
• the ordered product has been shipped, and
• the ordered product has not been returned to us due to legal regulations or our return policies.
d) In the event of a Successful Sale of a Volume Product in your Red Hot Merch Shop, you will receive the respective Performance Bonus less the statutory VAT on the Performance Bonus applicable to the Volume Product’s sale and delivery. The amount of VAT incurred on the successful sale of a product may vary depending on the country of delivery and how the sale is otherwise subject to VAT.
2.6. Benefit from sales promotions through discounts for customers (discount campaigns)
a) You decide your participation in discount campaigns
You are free to decide if and how you want to participate in discount campaigns for your Red Hot Merch Shop. You can completely opt-out of discount campaigns. Then you do not participate in discount campaigns. Your Base Margin remains the same in this case.
In your Partner Account, you can also choose to
• participate in all discount campaigns as suggested by Red Hot Merch, or
• only participate in certain discount campaigns.
You can also adjust the timing of a discount campaign within our suggested limits.
b) Effect of a discount campaign on your Margin
aa) The costs for discounts on shipping (e.g., free shipping) are absorbed by Red Hot Merch alone and therefore have no influence on your compensation.
bb) If the customer is granted a discount on the retail price of some or all products within an order, your Margin(s) for that order will also be reduced proportionately.
For percentage discounts (including volume discounts), your Margin is reduced in accordance with the discount granted for the entire order (example: A discount of 15% on the retail price of all products also reduces your Margin(s) by 15%).
For discounts of a fixed amount, your Margin is reduced by the percentage of the discount relative to the non-discounted retail price of the entire order (example: A discount of R5 for a non-discounted retail price of the entire order of R50 reduces your Margin by 10% (R5 /R 50).
D. Common Rules for the Marketplace and Red Hot Merch Shops
1. Changes to the product range
1.1. New Products
Red Hot Merch strives to constantly improve and expand its product range. “New Products,” as used below, means consumer merchandise and promotional and decorative items (in particular clothing, footwear and headgear; printed articles such as cards, pictures, posters and stickers; bags, pouches and cases; umbrellas; tableware, containers, glassware and earthenware; cushions, curtains and rugs; toys and sports articles).
1.2 Offering New Products
a) If New Products are made available at Red Hot Merch, Red Hot Merch is entitled to use your Designs for these New Products in accordance with these Terms.
b) In this case, Red Hot Merch may, in its reasonable discretion, determine
• the Design Price of your Designs on the Marketplace (see section B.2.a)), and
• your Base Margin (see section C.2.2.) and the possible Performance Bonus (see section C.2.6.) in your Red Hot Merch Shop by publishing these in your Partner Account.
When making this determination, Red Hot Merch will take into account the sales channel, Product Type and retail price of the New Product as well as the Design Prices, Base Margins and Performance Bonuses of comparable products. For sales on the Marketplace of Red Hot Merch and on e-commerce marketplaces of third parties, the Design Price will be at least 10% of the retail price of the product with your Design, and the Base Margin for sales in your Red Hot Merch Shop will be at least 10% of the retail price with one print area.
2. What else you should know about your compensation
2.1. Orders from customer accounts
Customers can reorder previously purchased products in their customer account. Your compensation for such an order is determined by the sales channel used by the customer for the prior order.
2.2. Credits and payments
a) Our conditions for crediting your compensation are:
• providing your data according to section A.3.b) and
• achieving the minimum balance on your Partner Account.
b) If these conditions are met, crediting will take place monthly, on no later than the fifteenth business day of the following month. We will send you an electronic credit note in PDF format. The minimum balance threshold depends on the currency you selected in your Partner Account.
c) We pay you the credited amount in the currency shown on the credit note within 15 business days after crediting you. We are also entitled to make payment in U.S. Dollars; in that case, the currency exchange rates of the Federal Reserve will apply.
d) You can choose a payment method for payouts in your Partner Account that is convenient for you. To receive payments, please enter the necessary payment information. You must be the recipient of the payments. You bear any costs we incur as a result of your providing false or incorrect payment information.
e) If we are unable to make a payment, e.g., due to incorrect payment information, we will cancel the credit note and the amount will be added back to your Partner Account.
2.3. VAT
In certain circumstances, a value-added tax (“VAT”) may apply to the sale and delivery of products. If so, it may be deducted from your compensation according to the applicable VAT rate. “VAT,” as used in these Terms, refers broadly to all consumption taxes that are imposed at each stage of production (as opposed to solely at the final retail sale), regardless of their actual names under local applicable law (e.g., “Goods and Services Tax”).
2.4. Tax withholding
a) Even if you are not based in the South Africa, your compensation may be subject to income tax liability in the South Africa. Where required by law, we will withhold income tax from your compensation.
b) If we are obligated to withhold the tax on your behalf, we will reduce your compensation payment accordingly. We will report and pay the withheld tax to the Receiver Of Revenue (ROR) We may file certain income reporting forms with the ROR in order to comply with applicable law . However, we are not liable for the consequences of any such filing, and are not responsible for maintaining tax records for your benefit.
c) Applicable law may provide for different withholding rates. This makes it possible for your compensation to be tax-exempt in the South Africa, or taxed at a lower rate. For non-SA. persons, withholding exemption or reduction requires a double taxation treaty between the South Africa and the country where you are resident/based, along with other conditions. The South Africa tax authorities may inform the tax authorities in the country in which you are resident/based about the compensation payments.
d) If we have valid documentation of exemption at the time of crediting your compensation, we will not withhold tax according to the extent of the applicable exemption.
e) If you are only partially exempt from tax withholding according to sections c) or d), we are obligated to withhold tax on your behalf for the remaining part, and your compensation payment will be reduced accordingly. In this case we will report and pay the withheld tax to the ROR. If required by law, you will receive an annual tax form from us.
2.4. Missing Information and Waiver of Compensation
If you fail to provide valid information described in paragraphs A.3.b) and A.3.c) above, and do not respond to requests for valid information within one year from the ROR message we send asking you for valid information, then you waive all rights and claims to your compensation.
3. Your content and use of our services
a) Content that you publish using our services belongs to you (“your Content”) , and you agree that we may reproduce, adapt, modify, translate, publish, publicly perform, publicly display, sell, and distribute your Content in order to for us to provide our services.
This includes in particular:
• the Designs you submit
• your Descriptions and
• additional content you provide in your Red Hot Merch Shops (e.g., logos and graphics).
b) You are responsible for your Content. You therefore represent and warrant to us and our affiliates, legal representatives, employees and persons whom we use to perform our obligations (referred to collectively as “Authorized Parties”) that
• your Content
• the websites on which you embed Red Hot Merch Shops or products,
• your advertising activities for your Content and Red Hot Merch Shops as well as
• any other use of our services by you
do not violate any laws or the rights of third parties (especially copyrights, personality rights, trademark rights, and other related rights). If such claims are asserted against you, you must inform us immediately.
c) We are not obligated to use your Content. Notwithstanding any other provision in these Terms, we may at any time refuse to publish your Content, restrict it to certain sales channels, or remove it.
d) If we have reason to suspect that your behavior has violated any laws or rights of third parties, we may take the following actions, in particular:
• withholding your compensation until final clarification of the dispute
• immediately terminating of the publication of your Content and
• providing third parties with information about your Content upon their request (this also includes your contact information and information on the origin, production, sale and distribution of your Content).
e) In the case of your (alleged) violation of any of these Terms (including the aforementioned obligations regarding your Content), the Authorized Parties may demand compensation for the resulting costs and damages (including our reasonable attorney’s fees), including indemnification from all claims by third parties. We may offset the compensation in your Partner Account to satisfy this indemnity.
f) We respond to legitimate requests under the Digital Millennium Copyright Act (“DMCA”). If you become aware of user content that infringes your copyright rights, you may submit a DMCA takedown notice according the instructions in our INSERT OUR COPYRIGHT POLICY . We may deactivate your Partner Account if you are the target of repeated legitimate takedown notices.
4. Advertising
We are entitled to use your Content and mention you as a reference for promotional purposes in any and all media now existing or later arising. However, we are under no obligation to mention you in such promotions.
5. Limitation of liability
a) You use our website and services at your own risk. We are not responsible for the actions, content, information, or data of third parties. You hereby release us and the Authorized Parties from any claims and damages, known and unknown, arising out of or in any way connected with any claim you have against us or the Authorized Parties.
b) We are not liable to you for any lost profits or other consequential, special, indirect, or incidental damages arising out of or relating to your use of our website and services or any other agreement between you and us, even if foreseeable or if we are advised of the possibility of such damages. Our aggregate liability to you may not exceed the amount of compensation actually paid to you within the most recent six months. If applicable law does not allow the limitation or exclusion of liability described in this section, then our liability is limited to the fullest extent according to such applicable law.
6. Contract duration
This contract with you is effective for an indefinite period and may be terminated in writing by either party at any time, for any reason or no reason. You are deemed to have terminated this contract if you close your Partner Account with us. Upon termination, we will credit your Partner Account in accordance with Section D.2.2. without regard to the existence of a minimum balance.
Any Products that have already been ordered prior to termination, and which would be affected by such a termination, may continue to be fulfilled. Due to technical and practical limitations, your Content may remain on Red Hot Merch’s site and service for several days following termination.
7. Final provisions
a) You are only entitled to rights of set-off or retention to the extent that your claim has been legally recognized and finally adjudicated, or is uncontested. In addition, you may only exercise a right of retention if your claim is based on this contract. However, your defect and warranty claims remain unaffected.
b) You may not transfer your Partner Account and this contract with us to other persons. The same applies for your claims from this contract.
c) These Terms are the entire agreement between you and us and replace any prior oral and written agreements. No oral modifications, express or implied, may change these terms. You and Red Hot Merch both represent that each has not relied on any representations or promises relating to these Terms that are not contained within these Terms.
d) Changes to the contract with you (including these Terms) may be agreed on as follows:
aa) Provided the change is reasonable for you, we are entitled to change the contract if
• the legal, regulatory, economic or technical conditions on which the contract is based change, or
• we introduce new features to our services, or existing features of the services are adjusted.
A change is reasonable if it would not significantly disturb the contractual balance between you and us, and if it would not result in a significant restriction of the services you use.
bb) If we wish to change these Terms in the cases specified, we will inform you of this no later than three weeks prior to the scheduled effective date of the contractual change, and we will give you the opportunity to accept the validity of the new Terms. Upon receipt of our offer, if you do not object to the validity of the new Terms within three weeks by notifying us in writing, then once this deadline passes the changes shall be deemed accepted by you. If you object to the validity of the new Terms in the required manner and on time, these Terms shall continue to be effective unchanged. In such cases, we reserve the right to terminate these Terms with you in order to ensure the uniform treatment of all Partners. At the beginning of the three-week objection period, we will inform you again of this right of objection, the ways in which you can declare your objection, and the intended significance of your behavior.
e) The formation, construction, and performance of these Terms must be construed in accordance with the laws of the South Africa. We both agree to personal jurisdiction and venue in the province of Gauteng and the legal justriction of Johannesburg. All claims filed contrary to this paragraph (except for those to enforce a judgment) are improperly filed, and the non-filing party is entitled to recover all attorney’s fees and costs relating to dismissal of the improperly filed claim incurred after the non-filing party has given notice in writing of the improperly filed claim.
f) If one or more of the provisions within these Terms is or becomes wholly or partially ineffective or void, the remainder of these Terms will remain in full force and effect. If any provision is held invalid or unenforceable with respect to particular circumstances, it will remain in full force and effect in all other circumstances.
g) These Terms and your status as a Partner do not constitute a joint venture, partnership, agency, employment or fiduciary relationship between you and us. Neither you nor Red Hot Merch (nor Red Hot Merch’s agents) have any authority to bind the other, and the relationship between you and us is that of independent contractors.
h) These Terms inure to the benefit of and bind the successors, assigns, he ROR, executors and administrators of you and us. However, you may not assign or delegate any right or duty under this agreement without written consent from us. Any attempt to do so is null and void. If there is an involuntary assignment, then we may request reasonable documentation from your successors or estate to prove that an involuntary assignment of your rights under this agreement has actually taken place.
i) Written notices and other communications described herein may be made electronically and are effective when sent or published. You guarantee that the information provided in your orders or user account is accurate and hereby waive all rights or objections relating to not having received notices from us because of incorrect or incomplete information.
j) Waivers are only effective when in writing. If we waive enforcement of a breach of any term of this agreement, later breaches of the same or other terms are not waived. Accepting late performance of any act or late fulfillment of any condition of this agreement is not a waiver of the act or condition itself.
k) “Or” when used in a group of phrases or nouns intends to include any combination of all or any of the items in the group, and not merely one member or the other of such a group. When “includes” or “including” begins a list of items, the list is not exclusive. All headings used in these Terms are for convenience only, and are not to be taken into account when interpreting the meaning of these Terms.
l) These Terms do not and are not intended to confer any rights or remedies upon any person(s) other than you and us.
m) Persons under the age of 13 may not use the site. We will not collect, use, or disclose any personal information associated with a person under age 13.
n) Paragraphs A.2. (Definitions), A.6. (Use of our Website), D.3. (rules regarding your Content and Indemnity), D.5. (Limitation of Liability), and D.7.e), f), g), h), j), k), and n) (Final provisions) survive the termination of these Terms.
Thank you for reading these Terms in their entirety. We wish you every success with Red Hot Merch!