Terms of Service

Last updated: December 1, 2022

I. General Terms of Service

1. About these Terms of Service

These Terms of Service constitute a legally binding agreement made between you, whether personally or on behalf of an entity (“you”, “Shop”, or “End User”) and Shopmonkey, Inc., including its affiliates ("Shopmonkey", the “Company,” “we”, “us”, or “our”), concerning your access to and use of our websites (including shopmonkey.io and our mobile websites, referred to as the “Sites”), applications and mobile applications (“Mobile App”), software services and professional services, as well as any media, information, or content made available therein, therefrom or otherwise related to or connected therewith (collectively, the “Services”). 

YOU AGREE THAT BY CLICKING “I ACCEPT” OR BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE SERVICES, YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY ALL OF THESE TERMS OF SERVICE, INCLUDING SHOPMONKEY’S PRIVACY POLICY (TOGETHER WITH ANY OTHER SPECIFIC AGREEMENTS BETWEEN YOU AND SHOPMONKEY, INCLUDING BUT NOT LIMITED TO ANY SHOP SERVICES AGREEMENT, THE “AGREEMENT”). IF YOU DO NOT AGREE WITH THE AGREEMENT, THEN YOU ARE EXPRESSLY PROHIBITED FROM USING THE SERVICES AND YOU MUST DISCONTINUE USE IMMEDIATELY.

YOU AGREE TO RECEIVE TEXTS/CALLS FROM OR ON BEHALF OF SHOPMONKEY AT THE PHONE NUMBER YOU PROVIDE TO US. THESE TEXTS/CALLS WILL INCLUDE OPERATIONAL MESSAGES OR PROMOTIONAL CONTENTS. YOU UNDERSTAND AND AGREE THAT THESE TEXTS/CALLS MAY BE CONSIDERED TELEMARKETING UNDER APPLICABLE LAW, THEY MAY BE SENT USING AN AUTOMATIC TELEPHONE DIALING SYSTEM OR OTHER AUTOMATED TECHNOLOGY, AND YOUR CONSENT IS NOT A CONDITION OF ANY PURCHASE.

Supplemental terms and conditions or documents that may be posted on the Sites from time to time are hereby expressly incorporated herein by reference.   We may make changes to this Agreement from time to time. Please check this Agreement periodically for changes. Revisions will be effective immediately except that, for existing users, material revisions will be effective 30 days after posting or notice to you of the revisions (unless otherwise stated). We may also require that you accept modified Terms in order to continue to use the Service. We will further alert you about any changes by updating the “Last updated” date of this Agreement.  If you do not agree to the modified Agreement, then you should remove your User Content and discontinue your use of the Service. Except as expressly permitted in herein, this Agreement may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. 

Additional terms and conditions with respect to new and add-on products and services may also be added to this Agreement at any time by appending them hereto.  Such terms and conditions are “Product Specific Terms” as set forth below.

ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 20, you agree that disputes arising under this Agreement will be resolved by binding, individual arbitration, and BY ACCEPTING THIS AGREEMENT, YOU AND SHOPMONKEY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this Agreement (except for matters that may be taken to small claims court), and your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (See Section 20).

The information provided on and through the Services and Sites is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject us to any registration requirement within such jurisdiction or country. Accordingly, those persons who choose to access the Services or Sites from other locations do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent local laws are applicable.

The Services and Sites are intended for users who are at least 18 years old. Persons under the age of 18 are not permitted to use or register for the Services or the Sites.   

2. Privacy Policy

Please refer to Shopmonkey’s Privacy Policy (found here: https://shopmonkey.io/legal/privacy-policy) which explains how we collect, use, and disclose information that pertains to your privacy.  By using the Services or the Sites, you agree to be bound by our Privacy Policy, which is incorporated into, and made part of, this Agreement. Please be advised the Services are hosted in the United States. 

3. Registration; Rules For User Conduct And Use Of The Services

You must register for and maintain an account with us to access the Services.  When registering, you may be required to provide us with some information about yourself, such as your name, email address, or other contact information. You must provide accurate and complete information and promptly update this information. If you provide any information that is inaccurate or incomplete, or we have reason to believe that the information is inaccurate or incomplete, we may suspend or terminate your account and your use of the Services. Only authorized users may use your account to use the Services and conduct other activities with us. When you register, you will be asked to create a password. You agree to keep your password confidential and will be responsible for all use of your account and password. You will not allow use of your credentials to access the Services through automated or non-human means, whether through a bot, script or otherwise.  We reserve the right to remove, reclaim, or change a username or any end-customer facing names, slogans or other content you select if we determine, in our sole discretion, that is inappropriate, obscene, or otherwise objectionable.  You agree to notify us immediately of any unauthorized use of your password and/or account. Shopmonkey will not be responsible for any losses or damages arising out of or related to the unauthorized use of your account name, password and/or account. If you believe that your account is no longer secure, then you should immediately notify us at support@shopmonkey.io

By agreeing to this Agreement, you represent and warrant to us that: (a) you are at least 18 years old; (b) you have not previously been suspended or removed from the Services; and (c) your registration and your use of the Services is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company (“Corporate Entity”), the individual accepting this Agreement on your behalf represents and warrants that they have authority to bind the Corporate Entity to this Agreement and the Corporate Entity agrees to be bound by this Agreement. You may allow individuals working for you or your affiliates as End Users to use the Services under your subscription to the Services, but must maintain subscriptions for individual business locations and the total number of End Users for each business location must not exceed the number of users that you are paying for under your subscription for that individual business location. If you allow your End Users to use the Services under one or more subscriptions that you maintain, you agree that: (a) you will at all times be liable and responsible for all acts and omissions of these End Users that use the Service as though those acts and omissions were committed by you; and (b) you agree that your affiliates and their End Users may have access to all data and information that you can access through your account and we are not responsible for enforcing any data access restrictions between you and your affiliates. Failure to do so will constitute a breach of your obligations pursuant to this Agreement. An “affiliate” means any entity that, directly or indirectly, through one or more intermediaries, you control, by way of ownership or otherwise. If you registered for the Services under a name other than the legal name of a business, we may from time to time require you to verify that all subscriptions purchased by you are used only by you and your affiliates and in the operation of the business locations specified in your subscriptions.  If you are using individual End User accounts in connection with the operation of more than one business location, you must disclose this fact to us at time of registration and renewal for the Services, as separate business locations require separate agreements with us.  Failure to do so will constitute a breach of your obligations.

4. Software Subscription Service; Professional and Other Services

The Service includes certain subscription-based plans with automatically recurring payments for periodic charges (“Subscription Service”). The “Subscription Billing Date” is the date when you purchase your first subscription to the Service and on the date of each recurring charge.  Unless otherwise agreed, the Subscription Service will begin on the Subscription Billing Date and continue for the subscription period described on your individual Shop Services Agreement (“SSA”) (such period, the “Initial Subscription Period”), and will automatically renew for successive periods of the same duration as the Initial Subscription Period (the Initial Subscription Period and each such renewal period, each a “Subscription Period”) unless you cancel the Subscription Service or we terminate it. Shopmonkey may allow you to access and use the Subscription Services during the Initial Subscription Period on a free trial basis (if applicable).   No refunds will be given for partially completed subscription Periods. 

If you are on a legacy monthly subscription plan, the Subscription Period shall commence upon the successful processing of your payment on the Subscription Billing Date and renew on the same day of each successive month thereafter, unless and until you provide Shopmonkey with notice of your intent to cancel, or as otherwise may be terminated by Shopmonkey in accordance with the terms set forth herein. Monthly subscriptions, once terminated, will not be re-offered, as annual commitments are required for new service.  

Professional Services. Shopmonkey may offer certain data migration or related professional services (“Professional Services”). If you elect to purchase Professional Services, Shopmonkey will provide you with a scope of work, and payment shall be due on or prior to the commencement of Professional Services and shall be non-refundable following payment. Payment for services in addition to the scope of work will be due up front. Additional professional services may be agreed upon in writing with specific terms and conditions.

Support and Service Levels.  If you are current with payment of your subscription and usage fees, and subject to any other agreement you may have for support for the Services, Shopmonkey will provide you with its standard technical support services relating to the Services, subject to published standard support and service levels (found here: https://www.shopmonkey.io/legal/service-level-agreement)

Other Fees.  Certain features and other current or future Shopmonkey services and products may involve usage-based fees or costs, including applicable taxes and governmental fees; such costs and fees will be published or otherwise disclosed to you when you sign up for or activate the use of such services or products.  Some such fees may be billed to you in arrears.  You are responsible for usage and other fees and taxes incurred by your usage of Shopmonkey services and products.

5. Payments.

(a) General Payment Terms. Before payment is processed, you will receive an invoice and have an opportunity to review the fees that you will be charged. Unless otherwise agreed, all fees are in U.S. Dollars and are non-refundable and non-recoupable unless otherwise specifically provided for in this Agreement. Shopmonkey reserves the right to change the required method of payment at any time, upon notice to you. You are responsible for updating your account information should the required payment method change. If you agreed to purchase a minimum number of End User subscriptions as part of registering for the Services (the “Minimum Subscription Level”), you must pay for at least that number of subscriptions during the applicable term.  Additional subscriptions may be purchased at the same pricing during the term, with fees prorated for partial months, and you may make adjustments in the actual number of licenses from time to time, provided that you must always purchase a number of licenses equal to or greater than the Minimum Subscription Level. You agree that your purchases under this Agreement are neither contingent on the delivery of any future functionality or features of the Services nor dependent on any oral or written public comments made by us regarding future functionality or features.

(b) Price. Shopmonkey reserves the right to determine pricing for the Services. Shopmonkey will make reasonable efforts to keep pricing information published on the Sites up to date. We encourage you to check our Sites periodically for current pricing information. Shopmonkey may change the fees for any feature of the Service, including additional fees or charges, if Shopmonkey gives you advance notice of changes before they apply (i.e., in future or renewal terms). If new fees or taxes are imposed on Services by governmental, regulatory or similar third parties, Shopmonkey shall be entitled to pass on such fees or taxes to the extent it is legal to do so, even prior to a renewal of the current term.  Shopmonkey, at its sole discretion, may make promotional offers with different features and different pricing to any of Shopmonkey ’s customers. These promotional offers, unless made to you, will not apply to your offer or this Agreement.

(c) Authorization. The Subscription Services are billed as automatically recurring payments for periodic charges. If you activate a Subscription Service, you authorize Shopmonkey to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or your account, all accrued sums on or before the payment due date for the accrued sums. Your account will be charged automatically on the Subscription Billing Date all applicable fees and taxes for the next subscription period and for usage-based fees and taxes payable with respect to prior periods in arrears. The subscription will continue unless and until you cancel your subscription or we terminate it. You must cancel your subscription before it renews in order to avoid charging of the next periodic Subscription Services fee to your account. You may cancel the Subscription Service at a termination point determined by your SSA and by contacting us at: support@shopmonkey.io.  Termination will not affect amounts due and payable at the time of termination, including amounts owed in arrears. YOUR CANCELLATION MUST BE RECEIVED BEFORE THE RENEWAL DATE OR THE NOTICE DATE SPECIFIED IN YOUR AGREEMENT IN ORDER TO AVOID CHARGE FOR THE NEXT SUBSCRIPTION PERIOD.

(d) Delinquent Accounts. Shopmonkey may suspend or terminate access to the Services, including usage and fee-based portions of the Services, for any account for which any amount is due but unpaid, including, but not limited to amounts due for subscription fees or usage fees, taxes or charges. In addition to the amount due for the Services, a delinquent account will be charged with fees, charges or expenses (including attorneys’ fees) that are incidental to any chargeback or collection of any the unpaid amount, including collection fees. If your payment method is no longer valid at the time a renewal Subscription Services fee is due, Shopmonkey will attempt to contact you to reestablish payment in a grace period determined solely by Shopmonkey, but, if a payment method is not reestablished in such period, Shopmonkey reserves the right to delete your account without any liability to you.

6. Term and Termination.

(a) Term. The term of this Agreement begins when you accept the Terms or first download, install, access, or use the Service, and ends when terminated as described in this Section 6. Subscriptions will automatically renew for additional successive terms unless terminated as specified in this Section. For the purposes of providing notice of non-renewal as described in this paragraph, notice will be required not less than thirty (30) days prior to renewal in the case of annual subscriptions.  Monthly subscriptions may be terminated at any time by written notice, but no refund will be due for partial months; monthly subscriptions terminated will not be re-offered. Notice via email to Shopmonkey at success@shopmonkey.io will be deemed sufficient. Upon termination, your access to the Service and any information stored by the Service will also terminate, subject to Section 9 below. Shopmonkey may terminate this Agreement at any time upon 30 days’ prior written notice for its convenience, and will refund to you a pro-rata portion of any unused, prepaid fees, less deductions in accordance with this Agreement.

(b) Termination. We may immediately, without notice, suspend or terminate your access to the Services and terminate this Agreement for any of the following reasons: (i) you breach any provision of this Agreement; (ii) we determine that your use of the Services poses a security risk to us or to another user of the Service; (iii) you introduce a malicious program into the network or a virtual machine instance; (iv) you cause network interference that affects Services performance for other customers; (v) you use the Services in a way that we determine, in our sole discretion, is abusive or disrupts or threatens the performance or availability of the Service; or (vi) we receive notice or we otherwise determine, in our sole discretion, that you may be using the Services for an illegal purpose or in a way that violates the law or violates, infringes, or misappropriates the rights of any third party. In addition, Shopmonkey may, at its sole discretion, terminate this Agreement or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice, and without any liability to you arising from such termination.

(c) Early Termination: If you want to terminate this Agreement before your then-current Subscription Period expires, you will owe a termination fee equal to all the remaining payments for such Subscription Period. The only exception is that you may terminate with thirty (30) days' written notice if Shopmonkey materially breaches specific obligations under this Agreement and does not cure the breach within thirty (30) days' of receiving your written notice. 

(d) Effect of Termination. If this Agreement is terminated for any reason: (i) your license rights will terminate and you must immediately cease all use of the Service; (ii) you will no longer be authorized to access your account or the Service, except during the Retrieval Period, if applicable, as described in Section 9; (iii) you will pay to Shopmonkey any unpaid amount that was due prior to termination and any fees or other amounts that have accrued prior to the effective date of the termination; (iv) any and all liabilities accrued prior to the effective date of the termination will survive; and (v) the following sections will survive: Sections 6, 7, 9 through 31. If your account has been terminated for a breach of these Terms, then you are prohibited from creating a new account on the Service using a different name, email address or other forms of account verification.

7. Ownership.

The Service is owned and operated by Shopmonkey. Shopmonkey retains all right, title, and interest in and to the Services and the Sites, including without limitation all computer code (including source code and object code), databases, functionality, products, software, website designs, interfaces, compilation, audio, video, text, photographs, information, and graphics on or integrated with the Services and the trademarks, service marks, and logos contained therein (“Materials”).  All Materials are owned or controlled by us or licensed to us and are protected by copyright and trademark laws and various other intellectual property rights and unfair competition laws of the United States, foreign jurisdictions, and international conventions.  Except as expressly authorized by Shopmonkey, you may not make use of the Materials. There are no implied licenses in this Agreement and Shopmonkey reserves all rights to the Materials not granted expressly in this Agreement. Except as expressly provided in this Agreement, no part of the Services or the Sites and no Materials may be copied, reproduced, aggregated, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted, distributed, sold, licensed, or otherwise exploited for any commercial purpose whatsoever, without our express prior written permission.

8. License.

Subject to your complete and ongoing compliance with the terms and conditions of this Agreement, Shopmonkey grants to you a limited, worldwide, non-exclusive, non-transferable, non-sublicensable right during the term of this Agreement to: (a) install and use one object code copy of any Mobile App associated with the Services obtained from a legitimate marketplace (whether installed by you or pre-installed on your mobile device by the device manufacturer) on a mobile device that you own or control; and (b) access and use the Services solely in connection with the internal business operations of a number of business locations specified in your subscription Agreement, in each case solely for use by a number of End Users that does not exceed the number of paid subscriptions associated with your account, with no substitution of such End Users except as expressly permitted. By way of example only, if you have 10 employees and a sole shop location in your company, and if you have only paid for 3 End User subscriptions, you are granted a limited non-exclusive license to have up to 3 employees only access the Services, without substitution. Use of the Services by any number of individuals above the number of End User subscriptions you have purchased is a violation of your Agreement. Any number of individuals using the Services in excess of the number of End User subscriptions you have will be subject to immediate additional subscription purchases to the payment method on file, pro-rated for any partial period.  Further, if Shopmonkey provides you with any API or software outside the Services (“Ancillary Software”), Shopmonkey hereby grants you a limited, non-exclusive, non-transferable right to use one object code copy of that Ancillary Software solely in connection with your use of the Services. You may not, and you must ensure that your End Users do not, share accounts with each other or any other individuals. You are responsible and liable for ensuring that your End Users (or anyone else using your accounts or the accounts of your End Users) comply with the terms of this Agreement.

Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, publicly perform, or create derivative works of the Service; (b) make modifications to the Service; or (c) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, then you may not use it.

9. Data Retention

Unless this Agreement is terminated due to your breach, upon termination of your subscription, Shopmonkey will give you limited access to the Service for a period of up to thirty (30) days, at no additional cost, solely for purposes of retrieving your Customer Data (“Retrieval Period”). “Customer Data” means electronic data or information or business data submitted to the Services by you or any authorized End User or directly created by any such person for your use in connection with the use of the Service. Notwithstanding the foregoing, Customer Data does not include non-identifiable or aggregated data compiled by Shopmonkey in connection with your use of the Services. After such Retrieval Period and subject to Shopmonkey’s legal obligations, Shopmonkey has no obligation to maintain or provide any Customer Data and shall be entitled to, unless legally prohibited, delete Customer Data by deleting your account; provided, however, that Shopmonkey will not be required to remove copies of the Customer Data from its backup media and servers until such time as the backup copies are scheduled to be deleted in accordance with our Privacy Policy, provided further that in all cases Shopmonkey will continue to protect the Customer Data in accordance with the Agreement. Customer Data will be made available to authorized points of contact in industry standard formats. For clarity, during the term of this Agreement, you may extract Customer Data using Shopmonkey standard Services, via reports and data export functionality.  

10. Trials; Early Access

If you obtain a subscription to a trial or new feature or any add-on to the Services designated by us as “Trial,” “Preview”, “Beta”, “Early Access” or “Evaluation Services” which we may provide for free or not (an “Early Access Service”), notwithstanding any other terms to the contrary, you may use such Early Access Service only for your internal demonstration, test, or evaluation purposes. NOTWITHSTANDING ANY TERMS TO THE CONTRARY IN THE AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL REPRESENTATIONS, WARRANTIES, CONDITIONS, GUARANTEES AND OTHER KINDS OF PROMISES, EXPRESS OR IMPLIED, FOR EARLY ACCESS SERVICE AND THEY ARE PROVIDED ON AN “AS IS” AND “AS AVILABLE” BASIS. EARLY ACCESS SERVICE HAVE A NON-PERPETUAL TIME LIMITED SUBSCRIPTION TERM AND WE MAY “TIME-OUT” AND DISABLE THE EARLY ACCESS SERVICES OR OTHERWISE DISCONTINUE YOUR ACCESS AND USE OF THE EARLY ACCESS SERVICE AT ANY TIME WITHOUT PRIOR NOTICE. You will not attempt to defeat or circumvent any duration mechanism for the Early Access Service and will not use any Early Access Service beyond the prescribed term of early access. Your use of an Early Access Service may be subject to additional terms and conditions that you must agree to when accessing the Early Access Service.

11. Customer Data

You may upload Customer Data and other User Content to the Services and link other services to the Service to integrate your Customer Data and User Content from those other services. In addition, we may collect registration and other information about your use of the Services and the Sites. You hereby grant us a non-exclusive, worldwide, royalty-free, perpetual, irrevocable license to host, store, use, reproduce, modify, transmit, modify for the purpose of formatting for display, create derivative works as authorized in this Agreement, distribute and otherwise exploit all such Customer Data and User Content: (a) to provide the Service to you; (b) internally in any way subject to Shopmonkey’s obligation of non-disclosure in Section 11; and (c) internally or externally in any way in aggregate or anonymous format or otherwise in conformity with our Privacy Policy. “User Content” means text, photographs, videos, other audiovisual or informational content and any other works of authorship or other works. You may only upload User Content to the Services if you own the rights to that User Content, or if another rights holder has given you permission. You retain any copyright and other proprietary rights that you may hold in the User Content that you upload to the Service, subject to the licenses granted in this Agreement. You agree that Shopmonkey may use your name, logo and marks to identify you as a Shopmonkey customer on Shopmonkey’s Sites and other marketing materials.

12. Confidentiality

  1.  Definition of Confidential Information.  “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Customer Data; Confidential Information of Shopmonkey includes the Services and Materials, the terms and conditions of all customer agreements and order forms  (including pricing). Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party.  However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

  2. Disclosure of Confidential Information.  Subject to Shopmonkey’s rights under Sections 11, 14 and 15, Shopmonkey will not disclose to any third party, without your consent, Customer Data or User Content you upload to the Service. This includes information about the pricing of the products and services that you might sell and promote through the Services. Shopmonkey may, however, disclose that Customer Data or User Content if required by law or if Shopmonkey reasonably determines that disclosure is necessary to prevent harm to Shopmonkey or any third party. Your consent to disclosure shall be deemed given in the event that you access Shopmonkey or your Shopmonkey data through a third-party application, solely with respect to disclosure in connection with your use of such third-party application.  For example, if you use Shopmonkey payments, you consent to the exchange of required information with and to your Stripe account. If Shopmonkey is required by law to disclose any of that information or material, Shopmonkey will make reasonable efforts to provide you prompt written notice of that requirement prior to disclosure. Further, if you register for the Service through a referral or other promotional partner or through your franchisor, a buying group or in a similar structure, we may disclose information about your account to that referral partner or industry group in connection with our direct commercial relationship with them. For the avoidance of doubt, except to the extent required for compliance with applicable law, to enforce our rights pursuant to this Agreement or in the delivery of the Services or support for the Services, Shopmonkey will not directly contact your end-customers or make personally identifying or contact data regarding your end customers available to any third party without your consent. Such consent will be deemed given, however, in the event that you access Shopmonkey or your Shopmonkey data through a third-party application, solely with respect to disclosure in connection with your use of such third-party application. 

  3. Protection of Confidential Information. Receiving Party shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of Disclosing Party.  Without limiting the foregoing, Receiving Party shall take at least those measures that it employs to protect its own confidential information of a similar nature (but in no event less than a commercially reasonable standard of care) and shall ensure that its representatives who have access to Confidential Information of Disclosing Party have signed a nonuse and nondisclosure agreement in content at least as protective of Disclosing Party’s Confidential Information as the provisions of this Agreement, prior to any disclosure of Confidential Information to such Receiving Party.  The Receiving Party shall reproduce Disclosing Party’s proprietary rights notices on any copies made by the Receiving Party in the same manner in which such notices were set forth in or on the original Confidential Information.  The Receiving Party shall promptly notify Disclosing Party of any unauthorized use or disclosure, or suspected unauthorized use or disclosure, of Disclosing Party’s Confidential Information of which Receiving Party becomes aware.

13. Feedback

If you provide input and suggestions regarding existing functionalities, problems with or proposed modifications or improvements to the Service (“Feedback”), you authorize us to use that Feedback without restriction and without payment to you. Accordingly, you hereby grant to us a non-exclusive, fully-paid, royalty-free, perpetual and irrevocable license to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services. We will have no obligation to provide you with attribution for any Feedback you provide to us.

14. Assignability

You may not assign this Agreement or any right, duty, or obligation under this Agreement, without Shopmonkey’s prior written consent, including, for the avoidance of doubt, to any acquirer of your business. If consent is given, this Agreement will bind your successors and assigns. Any attempt by you to transfer any right, duty, or obligation under this Agreement except as expressly provided in this Agreement is void. Shopmonkey may assign this Agreement or any right, duty, or obligation under this Agreement, at any time without your consent.

15. Subcontractors

Shopmonkey may utilize one or more subcontractors or other third parties to perform its duties under this Agreement so long as Shopmonkey remains responsible for all of its obligations under this Agreement.

16. Disclaimer of Warranties

You represent and warrant that: (a) you will not upload or request that Shopmonkey import any information (including personal information) or User Content to the Service unless you have all consents, permissions and licenses necessary to do so and to authorize Shopmonkey’s collection, use, disclosure and retention of that information in accordance with this Agreement; and (b) your use of the Service will not subject Shopmonkey to any liability or cause Shopmonkey to violate any law, rule, or regulation or guideline.

THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. SHOPMONKEY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, CONDITIONS, GUARANTEES AND PROMISES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, RELATING TO THE SERVICES AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED REPRESENTATION, WARRANTY, CONDITION, GUARANTEE OR PROMISE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY REPRESENTATION, WARRANTY, CONDITION, GUARANTEE OR PROMISE ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. SHOPMONKEY DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND SHOPMONKEY DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR SHOPMONKEY ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY REPRESENTATION, WARRANTY, CONDITION, GUARANTEE OR PROMISE REGARDING ANY OF THE SHOPMONKEY ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THIS AGREEMENT. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING CUSTOMER DATA AND USER CONTENT.

THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Shopmonkey does not disclaim any warranty or other right that Shopmonkey is prohibited from disclaiming under applicable law.

17. Limitation of Liability

TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE SHOPMONKEY ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS, ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE OR ARISING OUT OF OR WITH RESPECT TO ANY PRODUCTS OR SERVICES (INCLUDING PROFESSIONAL SERVICES) PROVIDED BY SHOPMONKEY, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE OR WILFUL MISCONDUCT), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY SHOPMONKEY ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.

TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE SHOPMONKEY ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THIS AGREEMENT, WHETHER IN CONTRACT, (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE OR WILFUL MISCONDUCT), STATUTE, OR ANY OTHER LEGAL THEORY, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO SHOPMONKEY FOR ACCESS TO AND USE OF THE SERVICE IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM; OR (B) $100.

EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THIS AGREEMENT. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 17 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

18. Indemnity

To the fullest extent permitted by law, you are responsible for your use of the Services, and you will defend and indemnify Shopmonkey and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Shopmonkey Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Services or the Sites; (b) your violation of any portion of this Agreement, any representation, warranty, or agreement referenced in this Agreement, or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right, in connection with your use of the Services, the Sites or any data, materials or information you provide to the Services; or (d) any dispute or issue between you and any third party (including, but not limited to any disputes with your end customers or any financial institution with respect to services provided by your Shop). We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.

19. Force Majeure

Shopmonkey will not be liable to you for any delay or failure to perform any obligation under this Agreement if the delay or failure is due to circumstances beyond Shopmonkey’s reasonable control.

20. Notices

Except as otherwise expressly set forth in this Agreement, any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth below for Shopmonkey, and at the address set forth in your account for you, and with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier.

Shopmonkey, Inc.
Attn: Legal
155 E Main Ave. Suite 150
Morgan Hill, CA 95037

21.    Dispute Resolution

(a) Generally. In the interest of resolving disputes between you and Shopmonkey in the most expedient and cost effective manner, and except as described in Sections 21(b), (c) and (g), you and Shopmonkey agree that every dispute arising in connection with this Agreement, the Sites, the Service, or communications from us will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of this Agreement, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this Agreement. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND SHOPMONKEY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

(b) Exceptions. Despite the provisions of Section 21(a), nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, provincial or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.

(c) Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 21 within 30 days after the date that you agree to this Agreement by sending a letter to Shopmonkey, Inc., Attn: Legal, 155 E Main Ave., Suite 150, Morgan Hill, CA 95037 that specifies: your full legal name, the email address associated with your account on the Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Shopmonkey receives your Opt-Out Notice, this Section 21 will be void and any action arising out of this Agreement will be resolved as set forth in Section 22. The remaining provisions of this Agreement will not be affected by your Opt-Out Notice.

(d) Arbitrator. Any arbitration between you and Shopmonkey will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by this Agreement. The AAA Rules and filing forms are available online at https://www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Shopmonkey. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.

(e) Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Shopmonkey’s address for Notice is: Shopmonkey, Inc., Attn: Legal, 155 E Main Ave., Suite 150, Morgan Hill, CA 95037. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Shopmonkey may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Shopmonkey must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. Except as provided in Section 21(g), the arbitrator can award any relief that would be available if the claims had been brought in a court of competent jurisdiction. If the arbitrator awards you an amount higher than the last written settlement amount offered by Shopmonkey in settlement of the dispute prior to the award, Shopmonkey will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000. The arbitrator’s award shall be final and binding on all parties, except (1) for judicial review expressly permitted by law or (2) if the arbitrator's award includes an award of injunctive relief against a party, in which case that party shall have the right to seek judicial review of the injunctive relief in a court of competent jurisdiction that shall not be bound by the arbitrator's application or conclusions of law. Judgment on the award may be entered in any court having jurisdiction.

(f) Fees. If you commence arbitration in accordance with this Agreement, Shopmonkey will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Santa Clara County, California, but if the claim is for $10,000 or less (and does not seek injunctive relief), you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your residence/billing address. If the arbitrator finds that either the substance of the claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Shopmonkey for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. 

(g) No Class Actions. YOU AND SHOPMONKEY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Shopmonkey agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.

(h) Modifications to this Arbitration Provision. If Shopmonkey makes any future change to this arbitration provision, other than a change to Shopmonkey’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Shopmonkey’s address for Notice of Arbitration, in which case your account with Shopmonkey will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.

(i) Enforceability. If Section 21(g) or the entirety of this Section 21 is prohibited by applicable law or found by a court of competent jurisdiction to be unenforceable, or if Shopmonkey receives an Opt-Out Notice from you, then the entirety of this Section 21 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 22 will govern any action arising out of or related to this Agreement.

22. Governing Law

This Agreement is governed by the laws of the State of California without regard to conflict of law principles. Subject to Section 21, you and Shopmonkey hereby irrevocably and unconditionally submit and attorn to the personal and exclusive jurisdiction of the state courts and federal courts located within Santa Clara County, California for resolution of any lawsuit or court proceeding permitted under this Agreement. We operate the Service from our offices in California, and offer the Services in the United States.  We make no representation that the Services are appropriate or available for use in other locations.

23. Waiver

The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.

24. Severability

If any part of this Agreement is found by a court of competent jurisdiction to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the Services under this Agreement is found to be illegal, unenforceable, or invalid, your right to use the Services will immediately terminate.

25. Consent to Electronic Communications

(a) By using the Services, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.

(b) By entering into this Agreement, you agree to receive calls and text (SMS) messages from Shopmonkey and persons acting on our behalf to the telephone number you provided to us.  You understand and agree that these calls and text messages may be made using an autodialer, artificial or prerecorded voice, or other automated technology. These communications may include operational communications concerning your account, communications regarding the Service and marketing communications.  Standard text messaging rates will apply. Your agreement to receive promotional calls and texts is not a condition of any purchase or of use of the Services.

(c) When you install our app on your mobile device, you agree to receive push notifications, which are messages an app sends you on your mobile device when you are not in the app. You can turn off notifications by visiting your mobile device’s “settings” page. We may also send you emails concerning our products and services, as well as those of third parties. 

(d) IF YOU WISH TO OPT OUT OF COMMERCIAL EMAILS FROM SHOPMONKEY, YOU CAN UNSUBSCRIBE BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE EMAIL ITSELF. IF YOU WISH TO OPT OUT OF MARKETING CALLS AND TEXT MESSAGES FROM SHOPMONKEY, YOU CAN EMAIL SUPPORT@SHOPMONKEY.IO OR TEXT THE WORD “STOP” TO THE NUMBER FROM WHICH YOU ARE RECEIVING THE MESSAGES. IF YOU WISH TO OPT OUT OF ALL CALLS AND TEXT MESSAGES FROM SHOPMONKEY, YOU CAN EMAIL SUPPORT@SHOPMONKEY.IO OR TEXT THE WORD “STOPALL” TO THE NUMBER FROM WHICH YOU ARE RECEIVING THE MESSAGES, HOWEVER YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL MESSAGES MAY IMPACT YOUR USE OF THE SERVICE. You may continue to receive calls and text messages for a short period while we process your request, including a message confirming the receipt of your opt-out request. 

26. Notice to California Residents

If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.

27. International Use; Export Control

The Service is intended for use within the United States and Canada. We make no representation that the Service is appropriate or available for use outside of the United States and Canada. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited. Software available in connection with the Services and the transmission of applicable data, if any, is subject to United States export controls. No software (including the Mobile Apps) may be downloaded from the Services or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using any software (including the Mobile Apps) is at your sole risk. You certify that you are not on any of the relevant U.S. government lists of prohibited persons, including the Treasury Department’s List of Specially Designated Nationals and the Commerce Department’s List of Denied Persons or Entity List. You further certify that you will not export, re-export, ship, transfer or otherwise use the Service in any country subject to an embargo or other sanction by the United States, including Iran, Syria, Cuba, Sudan and North Korea and that you will not use the Service for any purpose prohibited by applicable export laws, including, but not limited to, nuclear, chemical, missile or biological weapons related end uses. 

28. Third-Party Services and Websites.

(a) Third-Party Services. The Services may provide links or other access to services, sites, technology, and resources that are provided or otherwise made available by third parties (the “Third-Party Services”). Your access and use of the Third-Party Services may also be subject to additional terms and conditions, privacy policies, or other agreements with such third party, and you may be required to authenticate to or create separate accounts to use Third-Party Services on the websites or via the technology platforms of their respective providers. Some Third-Party Services will provide us with access to certain information that you have provided to third parties, including through such Third-Party Services, and we will use, store and disclose such information in accordance with our Privacy Policy. For more information about the implications of activating Third-Party Services and our use, storage and disclosure of information related to you and your use of such Third-Party Services within the Services, please see our Privacy Policy. We have no control over and are not responsible for such Third-Party Services, including for the accuracy, availability, reliability, or completeness of information shared by or available through Third-Party Services, or on the privacy practices of Third-Party Services. We encourage you to review the terms of use and privacy policies of the third parties providing Third-Party Services prior to using such services. You, and not Shopmonkey, will be responsible for any and all costs and charges associated with your use of any Third-Party Services. We enable these Third-Party Services merely as a convenience and the integration or inclusion of such Third-Party Services does not imply an endorsement or recommendation. Any dealings you have with third parties while using the Service are between you and the third party. We will 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 Third-Party Services.

(b) Google Maps. Google Maps presented to you through the Services are powered by Google. Your use of Google Maps is subject to the Google Maps Terms of Service, available online at https://www.google.com/intl/en-US_US/help/terms_maps.html, and https://www.google.com/intl/ALL/policies/privacy/index.html, and by using the Service, you are agreeing to be bound by such terms.

(c) Additional Third-Party Services. Certain additional terms that apply to your use of Third-Party Services within certain features or functionality of the Services are attached to this Agreement. If you access or use those features or functionality, you hereby agree to those additional terms.

29. Third Party Distribution

(a)   Distribution Channels. This Section 29 only applies to the extent you are using our Mobile App on a mobile device. Shopmonkey makes available our Mobile App through the Apple App Store, the Google Play Store, or other distribution channels (“Distribution Channels”). If you obtain our Mobile App through a Distribution Channel, you may be subject to additional terms of the Distribution Channel. This Agreement is between you and us only, and not with the Distribution Channel. To the extent that you utilize any other third-party products and services in connection with your use of the Service, you agree to comply with all applicable terms of any agreement for such third-party products and services.

(b) Notice Regarding AppleThis Section 29(b) only applies to the extent you are using our mobile application on an iOS device. You acknowledge that this Agreement are between you and Shopmonkey only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service or the content thereof. Apple has no obligation to furnish any maintenance and support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including: (a) product liability claims; (b) any claim that the Service fails to conform to any applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third-party claim that the Service and/or your possession and use of the Service infringe a third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Service. Apple and Apple’s subsidiaries are third party beneficiaries of this Agreement, and upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary of this Agreement. You hereby represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

(c) Google-Sourced Software.  The following applies to any Mobile App you download from the Google Play Store (“Google-Sourced Software”): (i) you acknowledge that this Agreement is between you and Company only, and not with Google, Inc. (“Google”); (ii) your use of Google-Sourced Software must comply with Google’s then-current Google Play Terms of Service; (iii) Google is only a provider of Google Play where you obtained Shopmonkey’s Google-Sourced Software; (iv) Shopmonkey, and not Google, is solely responsible for the Google-Sourced Software; (v) Google has no obligation or liability to you with respect to Google-Sourced Software or this Agreement; and (vi) you acknowledge and agree that Google is a third-party beneficiary to this Agreement as it relates to Shopmonkey’s Google-Sourced Software.

30. Restrictions

You must comply with all applicable laws, including privacy laws, when using the Services; for the avoidance of doubt, you will be responsible to ensure that all SMS/text messages sent through the Services are sent with the recipients’ valid consent and include prescribed information and an effective unsubscribe mechanisms to the extent required. Except as may be expressly permitted by applicable law or authorized by us in writing, you will not, and will not permit anyone else to:

a.  use the Services for any illegal purpose or in violation of any local, state, national, or international law;

b.  harass, threaten, demean, embarrass, or otherwise harm any other user of the Services;

c.  violate, or encourage others to violate, or provide instructions on how to violate, any right of a third party, including by infringing or misappropriating any third- party intellectual property right;

d.  use the Services in violation of any advertising and marketing laws such as CAN-SPAM, the Telephone Consumer Protection Act, the FTC’s Telemarketing Sales Rule, Canada’s Anti-Spam Legislation (CASL) and the CRTC Unsolicited Telecommunications Rules, including those that relate to (i) permitted calling times; (ii) customers’ consent to be contacted by telephone and/or text messages (including opt in/opt out consent where applicable and do not call lists); (iii) the required content of text messages and requirements for promptly implementing unsubscribe requests; (iv) any registration requirements relating to do not call lists; and (v) any notices that need to be given to potential customers during telephone calls.

e.  import or transfer to the Services any data that is sensitive financial information (including credit card numbers), health information, medical information, pharmaceutical information, information regarding children under 13 years of age, or other sensitive or regulated information (for example, Social Security Numbers);

f.   access, search, or otherwise use any portion of the Service through the use of any engine, software, tool, agent, device, or mechanism (including spiders, robots, crawlers, and data mining tools) other than the software or search agents provided by Shopmonkey;

g. interfere with security-related features of the Services, including by: (i) disabling or circumventing features that prevent or limit use or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;

h.  interfere with the operation of the Services or any user’s enjoyment of the Services, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Services; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Services;

i.  perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission, or falsifying your age or date of birth;

j.   sell or otherwise transfer the access granted under this Agreement or any Materials or any right or ability to view, access, or use any Materials; or

k.   attempt to do any of the acts described in this Section 30 or assist or permit any person in engaging in any of the acts described in this Section 30.

31. Entire Agreement

This Agreement, along with any Product Specific Terms appended hereto, is incorporated by reference to any written agreement between you and Shopmonkey and, taken together, it is the final and complete expression of the agreement between these parties regarding your use of the Service. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement; provided, however, that, to the extent your Shop Services Agreement or any other written agreement between you and Shopmonkey directly conflicts with the subject matter of these terms, such other agreement shall control. No employee, agent, or other representative of Shopmonkey has any authority to bind Shopmonkey with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. Shopmonkey will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by you in any receipt, acceptance, confirmation, correspondence, or otherwise, unless Shopmonkey specifically agrees to such provision in writing and signed by an authorized agent of Shopmonkey. 

Unless otherwise agreed by Shopmonkey and provided in Section 4, Shopmonkey is under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies. In order to resolve a complaint regarding the Site or to receive further information regarding use of the Site, please contact us at: support@shopmonkey.io 

II. PRODUCT-SPECIFIC SERVICES

Shopmonkey may offer, and you may elect, from time to time, to utilize certain Product Specific Services offered on the Site. In addition to any other terms and conditions, the following additional terms will apply specifically to the following Services:

Shopmonkey Payments

1. Definitions.  For the purposes of this section related to Shopmonkey Payments, the following definitions shall apply:

  • “Charge” means a credit or debit instruction to capture funds from an account that an end customer maintains with a bank or other financial institution in connection with a transaction.

  • “Dispute” means an instruction initiated by an end customer for the return of funds for an existing Charge (including a chargeback or dispute on a payment card network; and disputes on the Automated Clearinghouse (ACH) network) initiated pursuant to the Stripe Services Agreement or pursuant to your agreement with any Other Processor.

  • “Fine” means any fines, levies, or other charges imposed by us or Stripe or any Other Processor, caused by your violation of laws or this Agreement.

  • “Other Processor” means any payment processor or payment facilitator other than Stripe providing payment processing services to Shopmonkey Payments customers with custom implementations.

  • “Refund” means an instruction initiated by you to return funds to an end customer for an existing Charge initiated pursuant to the Stripe Services Agreement or pursuant to your agreement with any Other Processor.

  • “Return” means an instruction initiated by you, an end customer, an issuing bank or an acquiring bank to return funds unrelated to an existing Charge initiated pursuant to the Stripe Services Agreement or pursuant to your agreement with any Other Processor.

  • “Reversal” means an instruction initiated by Stripe or an Other Processor pursuant to the Stripe Services Agreement or pursuant to your agreement with any Other Processor to return funds for an existing Charge. Reversals may result from (i) invalidation of a charge by the processor; (ii) funds settled to you in error or without authorization; and (iii) submission of a Charge in violation of the applicable terms of the Stripe Services Agreement or your agreement with any Other Processor, or where submission of the Charge or your use of Shopmonkey Payments violates this Agreement, the Stripe Services Agreement or your agreement with an Other Processor.

2. Use of Payment Processors.  Except with respect to customers using Other Processors, payment processing services on the Site are facilitated by Stripe, Inc. (“Stripe”), and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By agreeing to this Agreement or continuing to use the Services and your use of Stripe as a Payment Processor, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of us enabling Shopmonkey Payments with Stripe, you agree to provide us accurate and complete information about you and your business, and you authorize us to share it and transaction information related to your use of Shopmonkey Payments.  If your implementation of Shopmonkey Payments uses an Other Processor, you agree to be bound by your agreement with such party.

3. 1-Day Payout.  Shopmonkey may (but is not required to) make applicable to your account Stripe’s 1-day payout functionality, providing expedited depositing of net processing transaction proceeds.  Shopmonkey reserves the right to pause or disable expedited 1-day payouts or revert payouts to 2-day payouts at any time, with or without notice.  To qualify for 1-day payout functionality, Shop must meet the following criteria:

  • 3.1 Shop must have processed a minimum credit/debit card transaction volume of $50,000 in the six (6) months preceding the determination;

  • 3.2 Shop must have an active and valid bank account connected for use with Shopmonkey payouts;

  • 3.3 Shop must have no active customer disputes or pending dispute decisions. Shopmonkey reserves the right in its sole and absolute discretion to pause or disable all payouts until the dispute is resolved or a dispute decision is determined; and

  • 3.4 ​Shop must be active and current in its Shopmonkey subscription billing.

4. Payments and Fees.  All payments facilitated by us through the Services or otherwise shall be paid by providing valid credit/debit card information of an end customer to us for an authorized Charge for amounts due under the terms of a valid agreement for products and/or services by and between the you and your Shop and such end customer (“Shop Agreement”). The Shop and end customer each agree and acknowledge that Shopmonkey is only providing billing and collection services for the Shop and is not a party to the Shop Agreement nor responsible for performance of or any obligations relating to the Shop or customer pursuant to the Shop Agreement.  Shop shall bear all payment processing fees applicable to it, and Shopmonkey shall be entitled to pass along any fees, charges, surcharges or expenses directly borne by it with respect to any Shop’s use of Shopmonkey Payments.  

5.  Payment Disputes Involving Shopmonkey Payments

You may only submit Charges through Shopmonkey Payments that are authorized by your end customers. To enable us to process transactions through Stripe or your Other Processor, as applicable, you authorize and direct us, our affiliates, to cause Stripe or your Other Processor to receive and settle any payment processing proceeds owed or owning through Shopmonkey Payments. You may not grant or assign any interest in payment processing proceeds to any third party. You appoint us as your agent for the limited purpose of facilitating the direction, receipt, holding and settling of proceeds by Stripe or your Other Processor. You agree that Stripe’s or your Other Processor’s receipt of such proceeds satisfies the relevant end customer’s obligations to make payments to you.

Except where we have otherwise agreed, Shops maintain the direct relationship with end customers and are responsible for: (i) acquiring appropriate consent to submit Charges through Shopmonkey Payments on an end customer’s behalf, as applicable; (ii) providing confirmation or receipts to end customers for each Charge; (iii) verifying end customers’ identities; and (iv) determining an end customer’s eligibility and authority to complete transactions.  

Disputes may only be initiated through (i) Stripe and pursuant to the Stripe Services Agreement or (ii) pursuant to your agreement with your Other Processor. We are not responsible for or liable to you for authorized and completed Charges that are later the subject of a Dispute, Refund, or Reversal, are submitted without authorization or in error, or violate any laws. You are immediately responsible to us for all amounts paid to you through Shopmonkey Payments that subsequently become subject to Disputes, Refunds, Reversals, Returns, or Fines regardless of the reason or timing and hereby agree to indemnify us for any such amounts and any charges, expenses, liabilities, losses or costs incurred by us in connection with the foregoing, including amounts claimed against Shopmonkey by your end customers and including reasonable attorneys’ fees and other costs we incur in order to collect such amounts. In accordance with your indemnification obligations pursuant to this Agreement, Shopmonkey has the right to deduct from and offset from any payments which you may otherwise be entitled to receive any and all (i) fees owed to us in connection with or related to the Services or (ii) charges, expenses, losses, claims or damages incurred by Shopmonkey from your use of Shopmonkey Payments. We have the right to charge any of a Shop’s financial accounts on file with us the full amount of any such amounts, charges, and costs incurred in connection with any Dispute, Refund, Reversal, Return, or Fine, and you hereby consent to such charge. If, for whatever reason, you do not have a financial account on file with us, we reserve the right to collect any amounts due in connection with the foregoing through any other channels we deem appropriate or necessary.

In many but not all cases, you may have the ability to challenge a Dispute through Stripe or your Other Processor. We encourage you to review the Stripe Services Agreement or your agreement with your Other Processor to understand the process for doing so.  Shops are liable for all losses they incur when lost or stolen payment credentials or accounts are used to purchase products or services from them. Shopmonkey does not and will not insure any Shop against losses caused by fraud under any circumstances. For example, if someone pretends to be a legitimate buyer but is a fraudster, you will be responsible for any resulting costs, including Disputes, even if you do not recover the fraudulently purchased products or services.

6. Miscellaneous Terms Applicable to all Shopmonkey Payments.

Taxes. Shops are responsible for charging and collecting applicable sales, use, property, and other taxes, fees, and other assessments and governmental charges, together with any penalties or interest thereon, levied on or associated with the Shop Agreement.  You hereby indemnify Shopmonkey from all liability on any such amounts.

Not an Agent. The Shop agrees and acknowledges that it is using the Shopmonkey Payments and Site to facilitate the payments made under the Shop Agreement and, at Shop’s own risk, that Shopmonkey is not an agent for either party.  

Personal Guarantees.  At any time or from time to time, Shopmonkey may require that a Shop provide a personal guarantee from a suitable person in order to begin or continue using Shopmonkey Payments.  Shopmonkey may at any time and without notice suspend Shop’s use or access to Shopmonkey Payments pending the delivery of such a guarantee and, if Shop refuses to provide or otherwise cannot provide such a guarantee within five (5) business days, Shopmonkey shall be entitled to suspend or terminate Shop’s access to Shopmonkey Payments as it deems fit without penalty or liability to Shop.

PCI/DSS Compliance.  In the course of using Shopmonkey Payments, Shop will have access to and may collect, access, use, store, process, dispose of, or disclose credit, debit, or other payment cardholder information.  Shop agrees and acknowledges that Shop shall at all times remain in compliance with Payment Card Industry Data Security Standard ("PCI/DSS") requirements, including remaining aware at all times of changes to the PCI/DSS and promptly implementing all procedures and practices as may be necessary to remain in compliance with the PCI DSS, in each case, at Shop's sole cost and expense.  

Shopmonkey Marketing

Shop will pay Shopmonkey fees for the Shopmonkey marketing services, if and when purchased by the Shop.

Your permission to use the Services is conditioned upon the restrictions set forth in this Agreement, including in Section 30 of the Terms of Service.  Additionally, the guidelines below are examples of practices that may violate this Agreement or applicable law when generating or sending commercial electronic messages, including Email and text/SMS messages (“Customer Contacts”) through Shopmonkey Marketing:

  1. Using non-permission based Customer Contact lists (i.e., lists in which each recipient has not explicitly granted permission to receive communications from you by affirmatively opting-in to receive those communications);

  2. Using purchased or rented Customer Contact lists;

  3. Using third party email addresses, domain names, or mail servers without proper permission;

  4. Sending emails to non-specific addresses (e.g., webmaster@domain.com or info@domain.com) or text messages to randomly generated or sequential numbers;

  5. Sending text messages without the recipients’ valid consent or an effective unsubscribe mechanism; including by repurposing transactions SMS message functionality to send marketing communications;

  6. Sending Emails that result in an unacceptable number of spam or UCE complaints (even if the Emails themselves are not actually spam or UCE);

  7. Failing to include a working “unsubscribe” link in each Email that allows the recipient to remove themselves from your mailing list;

  8. Failing to comply with any request from a recipient to be removed from your mailing list within 10 days of receipt of the request (or immediately from text message communications);

  9. Failing to include in each Email a link to the then-current privacy policy applicable to that Email;

  10. Disguising the origin or subject matter of any Email or falsifying or manipulating the originating email address, subject line, headers, or transmission path information for any Email;

  11. Failing to include in each Email your valid physical mailing address or a link to that information; and

  12. Including “junk mail,” “chain letters,” “pyramid schemes,” incentives (e.g., coupons, discounts, awards, or other incentives) or other material in any Email that encourages a recipient to forward the Email to another recipient.

  13. Sending any information that is abusive, threatening, obscene, defamatory, libelous, or racially, sexually, religiously, or otherwise objectionable and offensive;

  14. Using the service for any unlawful purpose or for the promotion of illegal activities;

  15. Attempting to, or harass, abuse or harm another person or group;

  16. Using another user’s account without permission;

  17. Providing false or inaccurate information when registering an account;

  18. interfering or attempt to interfere with the proper functioning of the Service;

  19. Make any automated use of the system, or take any action that we deem to impose or to potentially impose an unreasonable or disproportionately large load on our servers or network infrastructure;

  20. Bypassing any robot exclusion headers or other measures we take to restrict access to the Services or use any software, technology, or device to scrape, spider, or crawl the Services or harvest or manipulate data; or

  21. Publishing or linking to malicious content intended to damage or disrupt another user’s browser or computer.

III.    Shopmonkey California Data Processing Addendum

Pursuant to the General Terms of Service (“the Agreement”) between Shop and Shopmonkey (each a “Party”; collectively the “Parties”), and in furtherance of obligations under the California Consumer Privacy Act of 2018 (California Civil Code §§ 1798.100 to 1798.199) and its implementing regulations, as amended or superseded from time to time (“CCPA”), the Parties hereby adopt this California Data Processing Addendum (“Addendum”) for so long as Shopmonkey maintains Personal Information on behalf of Shop. This Addendum prevails over any conflicting terms of the Agreement.

1. Definitions. For the purposes of this Addendum

  • 1.1.     The capitalized terms used in this Addendum and not otherwise defined in this Addendum shall have the definitions set forth in the CCPA.

2. Roles and Scope.

  • 2.1.     This Addendum applies only to the Collection, retention, use, disclosure, and Sale of Personal Information provided by Shop to, or which is Collected on behalf of Shop by, Shopmonkey to provide Services to Shop pursuant to the Agreement or to perform a Business Purpose (“Shop Personal Information”). 

  • 2.2.     The Parties acknowledge and agree that Shop appoints Shopmonkey as a Service Provider to process Shop Personal Information on behalf of Shop.

3. Restrictions on Processing.

  • 3.1.     Except as otherwise permitted by the CCPA, Shopmonkey is prohibited from (i) retaining, using, or disclosing Shop Personal Information for any purpose other than for the specific purpose of performing the Services specified in the Agreement for Shop, as set out in this Addendum and (ii) further Collecting, Selling, or using Shop Personal Information except as necessary to perform the Services.

4. Consumer Rights.

  • 4.1.     Shopmonkey shall provide commercially reasonable assistance to Shop for the fulfillment of Shop’s obligations to respond to CCPA-related Consumer rights requests regarding Shop Personal Information. 

5. Security.

  • 5.1.     Shopmonkey hereby represents and warrants that it shall implement and maintain no less than reasonable security procedures and practices, appropriate to the nature of the information, to protect Shop Personal Information from unauthorized access, destruction, use, modification, or disclosure.

6. Subcontractors.

  • 6.1.     To the extent Shopmonkey provides Shop Personal Information to its subcontractors, Shopmonkey will obligate each such subcontractor in writing to obligations at least as protective of Shop Personal Information as those set forth in this Addendum.

7. Sale of Information.

  • 7.1.     The Parties acknowledge and agree that the exchange of Personal Information between the Parties does not form part of any monetary or other valuable consideration exchanged between the Parties with respect to the Agreement or this Addendum.

8. CCPA Exemption.

  • 8.1.     Notwithstanding any provision to the contrary of the Agreement or this Addendum, the terms of this Addendum shall not apply to Shopmonkey’s processing of Shop Personal Information that is exempt from the CCPA, including under Cal. Civ. Code 1798.145(a).

9. Changes to Applicable Privacy Laws.

  • 9.1.     The Parties agree to cooperate in good faith to enter into additional terms to address any modifications, amendments, or updates to applicable statutes, regulations or other laws pertaining to privacy and information security, including, where applicable, the CCPA.