Shopmonkey.io Terms of Service
Last updated: May 29, 2019
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", “we”, “us”, or “our”), concerning your access to and use of our websites, as well as any other media form, media channel, mobile website or mobile application related, linked, or otherwise connected thereto (collectively, the “Site”). You agree that by accessing the Site, you have read, understood, and agree to be bound by all of these Terms of Service. IF YOU DO NOT AGREE WITH ALL OF THESE TERMS OF SERVICE, THEN YOU ARE EXPRESSLY PROHIBITED FROM USING THE SITE AND YOU MUST DISCONTINUE USE IMMEDIATELY.
Supplemental terms and conditions or documents that may be posted on the Site from time to time are hereby expressly incorporated herein by reference. We reserve the right, in our sole discretion, to make changes or modifications to these Terms of Service at any time and for any reason. We will alert you about any changes by updating the “Last updated” date of these Terms of Service, and you waive any right to receive specific notice of each such change. It is your responsibility to periodically review these Terms of Service to stay informed of updates. You will be subject to, and will be deemed to have been made aware of and to have accepted, the changes in any revised Terms of Services by your continued use of the Site after the date such revised Terms of Services are posted.
The information provided on the Site 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 Site 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 Site is 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 Site.
Further, we do not knowingly accept, request, or solicit information from children or knowingly market to children. Therefore, in accordance with the U.S. Children’s Online Privacy Protection Act (as amended), if we receive actual knowledge that anyone under the age of 13 has provided personal information to us without the requisite and verifiable parental consent, we will delete that information from the Site as quickly as is reasonably practical.
ABOUT THE SERVICE
The services provided on the Site, including, without reservation, the subscription services (“Services”) are designed to allow you to manage customer information and communication, vehicle information, the internal operations of your shop, including (without limitation) tracking and ordering parts, tracking employee timesheets, workflow and reporting to your customers (“End Users”).
REGISTRATION; RULES FOR USER CONDUCT AND USE OF THE SERVICE
You must be a resident of the United States to register for and use the Services.
You may be required to register with the Site. You agree to keep your password confidential and will be responsible for all use of your account and password. We reserve the right to remove, reclaim, or change a username you select if we determine, in our sole discretion, that such username 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 member name, password and/or account.
SOFTWARE SUBSCRIPTION SERVICE; PROFESSIONAL SERVICES
You may access and use the subscription Services during a free trial (if applicable) and thereafter upon the successful processing of your payment until such subscription expires or is cancelled (the “Subscription Period”). To date, Shopmonkey offers the following Subscription Periods (which may be updated from time to time):
Monthly Subscriptions. If you elect to purchase a Monthly Subscription, the Subscription Period shall commence upon the successful processing of your payment and renew at the 1st of each month thereafter, unless and until you provide Shopmonkey with 10 calendar day’s prior written notice of your intent to cancel the Monthly Subscription, or as otherwise may be terminated by Shopmonkey in accordance with the terms set forth herein.
Annual Subscriptions. If you elect to purchase an Annual Subscription, the Subscription Period shall commence upon the successful processing of your payment and renew on the annual anniversary date such period began, unless and until you provide Shopmonkey with 30 calendar day’s prior written notice of your intent to cancel the Annual Subscription, or as otherwise may be terminated by Shopmonkey in accordance with the terms set forth herein.
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. Shopmonkey retains all right, title, and interest in and to the Service, including without limitation all software incorporated into or used by the Service, and these Terms of Service do not grant you any intellectual property rights in the Subscription Services or any of its components.
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 set forth under these Terms of Service, the following additional terms will apply specifically to the following Services:
Shopmonkey Payments - Payment processing services on the Site are facilitated by Stripe, Inc. (“Stripe”), and are subject to the Stripe Connected Account Agreement (https://stripe.com/connect-account/legal), which includes the Stripe Terms of Service (https://www.stripe.com/legal) (Collectively the "Stripe Services Agreement").
By agreeing to these Terms of Service or continuing to use the Site, 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 payment processing services through 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 the payment processing services provided by Stripe.
All payments facilitated by us through the Site or otherwise shall be paid by providing valid credit/debit card information of End User to us. End User hereby authorizes us to charge End User's credit/debit card for all charges due under the terms of the agreement for services by and between the Shop and End User (“Shop Agreement”). The Shop and End User, each, understands and agrees that Shopmonkey is only providing billing and collection services for the Shop, and is not a party to the Shop Agreement nor responsible for any obligations of the Shop or End User under the Shop Agreement.
Shopmonkey’s standard fees for the Services are posted on the Site, although we may have negotiated fees with a particular Shop that are different from these amounts. Shopmonkey’s fees will either be disclosed to you separately, or will be consolidated with the fees for the Services. Shopmonkey has the right to deduct and offset any payments which you may otherwise be entitled to receive any and all fees owed to us in connection with or related to the Services. To the extent you have an account with us, you authorize us to debit the amount owed from said account, regardless of whether or not the balance becomes negative. If you believe that any fees have been incorrectly debited, please CONTACT US at the address provided below.
In addition to the above, the following shall apply to all Shopmonkey Payments:
Taxes. End User shall pay any and all 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, which may be invoiced as part of the Shop Agreement to be made by End User.
Specific Release and Indemnity of Shopmonkey. The Shop and End User, each, agrees and acknowledges that it is using the Shopmnokey Payments and Site to facilitate the payments made under the Shop Agreement and, at that party's own risk, that Shopmonkey is not an agent for either party, that the Shopmonkey Payments Services and Site are provided on an "AS IS" and "AS AVAILABLE" basis, and to the extent permitted by applicable law, Shopmonkey excludes all express or implied warranties, terms and conditions including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement. With respect to any dispute either the Shop or End User has with one another, the Shop and End User, each, releases Shopmonkey (and its affiliates and subsidiaries, and their respective shareholders, officers, directors, employees and agents) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. In entering into this release, the Shop and End User, each, expressly waives any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which that party may know or suspect to exist in its favor at the time of agreeing to this release. The Shop and End User, each, further agrees to indemnify and defend Shopmonkey and its affiliates and their respective shareholders, directors, officers, employees, attorneys and agents (the "Shopmonkey Indemnified Parties"), and hold each of them harmless from and against any and all losses, damages, claims, demands, expenses, fines, penalties, suits and liabilities, including without limitation, reasonable attorneys' fees ("Losses") that the Shopmonkey Indemnified Parties shall incur or suffer arising out of, relating to, or resulting from (a) the Shop Agreement, (b) the gross negligence, willful misconduct, fraud, or misrepresentation of such party or of persons acting for or on behalf of such party pursuant to these Terms of Service and/or the Shop Agreement, including without limitation, officers, directors, employees, agents and contractors of such party, (c) such party's improper use of Shopmonkey’s Services or the Site, or (d) such party's breach of any law or the rights of a third party.
Shopmonkey Marketing – The Shop will pay us the fees for the Shopmonkey Marketing Services, if and when purchased by the Shop. We may provide marketing services that are competitive with, or similar to, the Shopmonkey Marketing Services for any third party and/or develop for ourself or any third party anything, whether in tangible or non-tangible form, that is competitive with or similar to any Shopmonkey Marketing Services provided to you.
By using the Site, you represent and warrant that: (1) all registration information you submit will be true, accurate, current, and complete; (2) you will maintain the accuracy of such information and promptly update such registration information as necessary; (3) you have the legal capacity and you agree to comply with these Terms of Service; (4) you are not a minor in the jurisdiction in which you reside; (5) you will not access the Site through automated or non-human means, whether through a bot, script or otherwise; (6) you will not use the Site for any illegal or unauthorized purpose; (7) your use of the Site will not violate any applicable law or regulation; and (8) you hold accurate, valid and up to date licenses and certifications purported to be held by you on the Site (if applicable). If you provide any information that is untrue, inaccurate, not current, or incomplete, we have the right to suspend or terminate your account and refuse any and all current or future use of the Site (or any portion thereof).
Without limiting the foregoing, if you are (or represent, or purport to represent) an entity, by using the Site and/or Services you represent and warrant that the execution, deliver, and performance under these Terms of Service, and the consummation of the transactions provided hereunder, have been duly authorized by all necessary action of the respective entity and that the person(s) using the Site and/or Services on its behalf has the full capacity to bind that entity.
Your permission to use the Services is conditioned upon the following “Use Restrictions and Conduct Restrictions”: You agree that you will not under any circumstances:
- send any information that is abusive, threatening, obscene, defamatory, libelous, or racially, sexually, religiously, or otherwise objectionable and offensive;
- use the Services for any unlawful purpose or for the promotion of illegal activities;
- attempt to, or harass, abuse or harm another person or group;
- use another user’s account without permission;
- provide false or inaccurate information when registering an account;
- interfere or attempt to interfere with the proper functioning of the Service;
- 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;
- bypass 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
- publish or link to malicious content intended to damage or disrupt another user’s browser or computer.
ONLINE CONTENT DISCLAIMER
Opinions, quotes, advice, estimates, statements, offers, or other information or content made available through the Service, but not directly by Shopmonkey (“User Content”), are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content. Shopmonkey does not guarantee the accuracy, completeness, or usefulness of any information on the Site and neither does Shopmonkey adopt nor endorse, nor is Shopmonkey responsible for, the accuracy or reliability of any User Content. Shopmonkey takes no responsibility and assumes no liability for any User Content that you or any other user or third party posts or sends over the Service. Under no circumstances will Shopmonkey be responsible for any loss or damage resulting from anyone’s reliance on information or other content posted on the Site, or transmitted to users.
Though Shopmonkey strives to enforce these Terms of Service, you may be exposed to User Content that is inaccurate or objectionable. Shopmonkey reserves the right, but has no obligation, to monitor the materials posted in the public areas of the service or to limit or deny a user’s access to the Site or take other appropriate action if a user violates these Terms of Service or engages in any activity that violates the rights of any person or entity or which we deem unlawful, offensive, abusive, harmful or malicious. Direct messages or emails sent between you and other members of the community that are not readily accessible to the general public or the greater Shopmonkey community will be treated by us as private to the extent required by applicable law. Shopmonkey shall have the right to remove any such material that in its sole opinion violates, or is alleged to violate, the law or this agreement or which might be offensive, or that might violate the rights, harm, or threaten the safety of users or others. Unauthorized use may result in criminal and/or civil prosecution under Federal, State and local law. If you become aware of misuse of our Services and/or Site, please CONTACT US at the address provided below.
LINKS TO OTHER SITES AND/OR MATERIALS
As part of the Service, Shopmonkey may provide you with convenient links to third party website(s) (“Third Party Sites”) as well as content or items belonging to or originating from third parties (the “Third Party Applications, Software or Content”). Shopmonkey has no control over Third Party Sites and Third Party Applications, Software or Content or the promotions, materials, information, goods or services available on these Third Party Sites or Third Party Applications, Software or Content.
Such Third Party Sites and Third Party Applications, Software or Content are not investigated, monitored or checked for accuracy, appropriateness, or completeness by Shopmonkey, and Shopmonkey is not responsible for any Third Party Sites accessed through the Site or any Third Party Applications, Software or Content posted on, available through or installed from the Site, including the content, accuracy, offensiveness, opinions, reliability, privacy practices or other policies of or contained in the Third Party Sites or the Third Party Applications, Software or Content. Inclusion of, linking to or permitting the use or installation of any Third Party Site or any Third Party Applications, Software or Content does not imply approval or endorsement thereof by Shopmonkey. If you decide to leave the Site and access the Third Party Sites or to use or install any Third Party Applications, Software or Content, you do so at your own risk and you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Site or relating to any applications you use or install from the site.
COPYRIGHT COMPLAINTS AND COPYRIGHT AGENT
(a) Termination of Repeat Infringer Accounts. Shopmonkey respects the intellectual property rights of others and requests that the users do the same. Pursuant to 17 U.S.C. 512(i) of the United States Copyright Act (as amended), Shopmonkey has adopted and implemented a policy that provides for the termination in appropriate circumstances of users of the Site and/or Services who are repeat infringers. Shopmonkey may terminate access for participants or users who are found repeatedly to provide or post protected third party content without necessary rights and permissions.
(b) DMCA Take-Down Notices. If you are a copyright owner or an agent thereof and believe, in good faith, that any materials provided on the Site infringe upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (as amended, see 17 U.S.C 512) (“DMCA”) by sending the following information in writing to Shopmonkey’s designated copyright agent at: 463 Safari Drive, San Jose, CA 95123:
1. The date of your notification;
2. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
3. A description of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
4. A description of the material that is claimed to be infringing or to be the subject of infringing activity and information sufficient to enable us to locate such work;
5. Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and/or email address;
6. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and,
7. A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
(c) Counter-Notices. If you believe that your User Content that has been removed from the Site is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the content in your User Content, you may send a counter-notice containing the following information to our copyright agent using the contact information set forth above:
1. Your physical or electronic signature;
2. A description of the content that has been removed and the location at which the content appeared before it was removed;
3. A statement that you have a good faith belief that the content was removed as a result of mistake or a misidentification of the content; and
4. Your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court in New York and a statement that you will accept service of process from the person who provided notification of the alleged infringement. If a counter-notice is received by Shopmonkey copyright agent, Shopmonkey may send a copy of the counter-notice to the original complaining party informing such person that it may reinstate the removed content in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may (in Shopmonkey’s discretion) be reinstated on the Site in 10 to 14 business days or more after receipt of the counter-notice.
By posting any User Content via the Service, you expressly grant, and you represent and warrant that you have a right to grant, to Shopmonkey a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, publicly perform, publicly display, and make derivative works of all such User Content and your name, voice, and/or likeness as contained in your User Content, if applicable, in whole or in part, including any and all anonymized and aggregated data derived from User Content, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Service.
Unless otherwise indicated, the Site and Services are our proprietary property and all source code, databases, functionality, software, website designs, audio, video, text, photographs, and graphics on the Site (collectively, the “Content”) and the trademarks, service marks, and logos contained therein (the “Marks”) 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. The Content and the Marks are provided on the Site and Services “AS IS” for your information and personal use only. Except as expressly provided in these Terms of Service, no part of the Site and/or Services and no Content or Marks 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. We do not warrant that the Content will operate uninterrupted or error-free or that all errors will be corrected. In addition, we do not warrant that the Content or any equipment, system or network on which the Content is used will be free of vulnerability to intrusion or attack.
Provided that you are eligible to use the Site and Services, you are granted a limited license to access and use the Site and Services and to download or print a single copy of any portion of the Content to which you have properly gained access solely for your personal, non-commercial use. We reserve all rights not expressly granted to you in and to the Site, the Services, the Content and the Marks. We will at all times retain ownership of the Content as originally downloaded or used by you and all subsequent downloads of use of the Content by you. The Content (and the copyright, and other intellectual property rights of whatever nature in the Content, including any modifications made thereto) are and shall remain the property of us. We reserve the right to grant licenses to use the Content to third parties.By using this Site and Services, you hereby authorize Shopmonkey to use, reuse, and to grant others the right to use and reuse, without any further compensation to you, the trademarks, tradenames and logos of you in any media now known or developed in the future. Such uses will be in a customary and commercially reasonable manner for marketing, promotional and other purposes reasonably related to the Site and/or Services, and our business, in the good faith judgment of us as to each such use.
SUBSCRIPTION PAYMENT TERMS
You may be required to purchase or pay a fee to access our Content. You agree to provide current, complete, and accurate purchase and account information for all purchases made via the Site. You further agree to promptly update account and payment information, including email address, payment method, and payment card expiration date, so that we can complete your transactions and contact you as needed. We may bill you through an online billing account for purchases made via the Site. Sales tax will be added to the price of purchases as deemed required by us. We may change prices at any time. All payments will be in U.S. dollars via (i) a valid credit card acceptable to Shopmonkey, or (ii) any other payment option acceptable to Shopmonkey.
You agree to pay all charges or fees at the prices then in effect for your purchases, and you authorize us to charge your chosen payment provider for any such amounts upon making your purchase. If your purchase is subject to recurring charges, then you consent to our charging your payment method on a recurring basis without requiring your prior approval for each recurring charge, until you notify us of your cancellation. Further, you understand and agree that we are only providing billing and collection for the Content you purchase from us on the Site, and that we are not a party to any agreement between you and any other user on the Site nor are we responsible for any obligations you may owe to any other user.We reserve the right to correct any errors or mistakes in pricing, even if we have already requested or received payment. We also reserve the right to refuse any order placed through the Site.
CANCELLATION, DISPUTES AND CHARGEBACKS
All purchases are non-refundable unless Shopmonkey elects to provide a refund, to be determined by Shopmonkey in its sole discretion on a case-by-case basis. You are not entitled to any chargebacks or refunds for the purchases made on the Site or through the Services. You can cancel your subscription at any time by contacting us using the CONTACT US address provided below. You agree to us commercially reasonable efforts to work with us regarding any disputes in connection with purchases made on the Site. Your cancellation will take effect at the end of the current paid term.
EMAIL MAY NOT BE USED TO PROVIDE NOTICE
Communications made through the Service’s e-mail and messaging system, will not constitute legal notice to Shopmonkey or any of its officers, employees, agents or representatives in any situation where notice to Shopmonkey is required by contract or any law or regulation.
USER CONSENT TO RECEIVE COMMUNICATIONS IN ELECTRONIC FORM
For contractual purposes, you (a) consent to receive communications from Shopmonkey in an electronic form via the email address you have submitted; and (b) agree that all Terms of Service, agreements, notices, disclosures, and other communications that Shopmonkey provides to you electronically satisfy any legal requirement that such communications would satisfy if it were in writing. The foregoing does not affect your non-waivable rights. We may also use your email address, to send you other messages, including information about Shopmonkey and special offers. You may opt out of such email by changing your account settings by contacting customer support at email@example.com.
Opting out may prevent you from receiving messages regarding Shopmonkey or special offers.
THE SITE AND SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, SHOPMONKEY EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SERVICE INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, SECURITY, ACCURACY AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, SHOPMONKEY MAKES NO WARRANTY OR REPRESENTATION THAT ACCESS TO OR OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM YOUR DOWNLOADING AND/OR USE OF FILES, INFORMATION, CONTENT OR OTHER MATERIAL OBTAINED FROM THE SERVICE. SOME JURISDICTIONS LIMIT OR DO NOT PERMIT DISCLAIMERS OF WARRANTY, SO THIS PROVISION MAY NOT APPLY TO YOU.
LIMITATION OF DAMAGES; RELEASE TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SHOPMONKEY, ITS AFFILIATES, DIRECTORS, OR EMPLOYEES, OR ITS LICENSORS OR PARTNERS, BE LIABLE TO YOU FOR ANY LOSS OF PROFITS, USE, OR DATA, OR FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, HOWEVER ARISING, THAT RESULT FROM (A) THE USE, DISCLOSURE, OR DISPLAY OF YOUR USER CONTENT; (B) YOUR USE OR INABILITY TO USE THE SERVICE; (C) THE SERVICE GENERALLY OR THE SOFTWARE OR SYSTEMS THAT MAKE THE SERVICE AVAILABLE; OR (D) ANY OTHER INTERACTIONS WITH SHOPMONKEY OR ANY OTHER USER OF THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SHOPMONKEY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS LIMIT OR DO NOT PERMIT DISCLAIMERS OF LIABILITY, SO THIS PROVISION MAY NOT APPLY TO YOU.
If you have a dispute with one or more users you release us (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
MODIFICATION OF TERMS OF SERVICE
We can amend these Terms of Service at any time and will update these Terms of Service in the event of any such amendments. It is your sole responsibility to check the Site from time to time to view any such changes in the Agreement. If you continue to use the Site, you signify your agreement to our revisions to these Terms of Service. However, we will notify you of material chances to the terms by posting a notice on our homepage and/or sending an email to the email address you provided to us upon registration. For this additional reason, you should keep your contact and profile information current. Any changes to these Terms (other than as set forth in this paragraph) or waiver of Shopmonkey’s rights hereunder shall not be valid or effective except in a written agreement bearing the physical signature of an officer of Shopmonkey. No purported waiver or modification of this Agreement by Shopmonkey via telephonic or email communications shall be valid.
Shopmonkey reserves the right, but not the obligation, to: (1) monitor the Site for violations of these Terms of Service; (2) take appropriate legal action against anyone who, in our sole discretion, violates the law or these Terms of Service, including without limitation, reporting such user to law enforcement authorities; (3) in our sole discretion and without limitation, refuse, restrict access to, limit the availability of, or disable (to the extent technologically feasible) any of your Contributions or any portion thereof; (4) in our sole discretion and without limitation, notice, or liability, to remove from the Site or otherwise disable all files and content that are excessive in size or are in any way burdensome to our systems; and (5) otherwise manage the Site in a manner designed to protect our rights and property and to facilitate the proper functioning of the Site.
TERM AND TERMINATION
These Terms of Service shall remain in full force and effect while you use the Site, and shall continue until the earlier of (i) you indicate to us in writing that you wish to terminate, (ii) you fail to comply with any terms and conditions of these Terms of Service, or (iii) we terminate or suspend your account. WITHOUT LIMITING ANY OTHER PROVISION OF THESE TERMS OF SERVICE, WE RESERVE THE RIGHT TO, IN OUR SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF THE SITE (INCLUDING BLOCKING CERTAIN IP ADDRESSES), TO ANY PERSON FOR ANY REASON OR FOR NO REASON, INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY REPRESENTATION, WARRANTY, OR COVENANT CONTAINED IN THESE TERMS OF SERVICE OR OF ANY APPLICABLE LAW OR REGULATION. WE MAY TERMINATE YOUR USE OR PARTICIPATION IN THE SITE OR DELETE YOUR ACCOUNT AND ANY CONTENT OR INFORMATION THAT YOU POSTED AT ANY TIME, WITHOUT WARNING, IN OUR SOLE DISCRETION. If we terminate or suspend your account for any reason, the licenses granted to you by these Terms of Service will immediately terminate and you agree to stop all access and use of the Site and/or Services. You are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your account, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.
MODIFICATIONS AND INTERRUPTIONS
We reserve the right to change, modify, or remove the contents of the Site at any time or for any reason at our sole discretion without notice. However, we have no obligation to update any information on our Site. We also reserve the right to modify or discontinue all or part of the Site without notice at any time. We will not be liable to you or any third party for any modification, price change, suspension, or discontinuance of the Site. We cannot guarantee the Site will be available at all times. We may experience hardware, software, or other problems or need to perform maintenance related to the Site, resulting in interruptions, delays, or errors. We reserve the right to change, revise, update, suspend, discontinue, or otherwise modify the Site at any time or for any reason without notice to you. You agree that we have no liability whatsoever for any loss, damage, or inconvenience caused by your inability to access or use the Site during any downtime or discontinuance of the Site. Nothing in these Terms of Service will be construed to obligate us to maintain and support the Site or to supply any corrections, updates, or releases in connection therewith.
There may be information on the Site that contains typographical errors, inaccuracies, or omissions, including descriptions, pricing, availability, and various other information. We reserve the right to correct any errors, inaccuracies, or omissions and to change or update the information on the Site and/or Services at any time, without prior notice.
LIMITATIONS OF LIABILITY IN NO EVENT WILL WE OR OUR DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY, REGARDLESS OF THE THEORY OF LIABILITY, FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT, LOST REVENUE, LOSS OF DATA, OR OTHER DAMAGES ARISING FROM YOUR USE OF THE SITE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER (INCLUDING TORT) AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO US DURING THE SIX (6) MONTH PERIOD PRIOR TO ANY CAUSE OF ACTION ARISING HEREUNDER. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. INDEMNIFICATION You agree to defend, indemnify, and hold us harmless, including our subsidiaries, affiliates, and all of our respective officers, agents, partners, and employees, from and against any loss, damage, liability, claim, or demand, including reasonable attorneys’ fees and expenses, made by any third party due to or arising out of: (1) your User Content; (2) use of the Site and/or Services; (3) breach of these Terms of Service; (4) any breach of your representations and warranties set forth in these Terms of Service; (5) your violation of the rights of a third party, including but not limited to intellectual property rights; or (6) any overt harmful act toward any other user of the Site with whom you connected via the Site. Notwithstanding the foregoing, we reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate, at your expense, with our defense of such claims. We will use reasonable efforts to notify you of any such claim, action, or proceeding which is subject to this indemnification upon becoming aware of it. You agree to reimburse us on demand for any defense costs incurred by us and any payments made or loss suffered by us, whether in a court judgment or settlement.
If you are prohibited by law from entering into the indemnification obligation above, then you assume, to the extent permitted by law, all liability for all claims, demands, actions, losses, liabilities, and expenses (including attorneys’ fees, costs and expert witnesses’ fees) that are the stated subject matter of the indemnification obligation above.
We will maintain certain data that you transmit to the Site for the purpose of managing the performance of the Site, as well as data relating to your use of the Site. Although we perform regular routine backups of data, you are solely responsible for all data that you transmit or that relates to any activity you have undertaken using the Site. You agree that we shall have no liability to you for any loss or corruption of any such data, and you hereby waive any right of action against us arising from any such loss or corruption of such data.
TELEPHONE / SMS MESSAGING
Your use of the Site may involve Services that facilitate communication between you and other Shops or End Users via SMS/MMS text messaging, e-mail, and other electronic methods of communication. The frequency and number of text messages that you will receive will vary depending on which Services you use and the extent of your interaction with other Shopmonkey customers.
Message and data rates may apply to each text message sent or received, as provided in your mobile telephone service rate plan, in addition to any applicable roaming charges. Please contact your mobile telephone carrier for pricing plans and information. Unless otherwise set forth under a subscription or professional services agreement executed by us, we do not and will not charge a separate fee for sending text messages.
You represent that you are the account holder for the telephone number(s) that you provide. You may notify Shopmonkey of a number change by contacting Shopmonkey at the CONTACT US address provided below.
If, at any point, you wish to stop receiving text messages, Shopmonkey will provide you with a code to text STOP from which you no longer wish to receive messages. You will then receive confirmation of your opt-out of receiving text messages. You may also contact Shopmonkey at our CONTACT US address provided below from which you will no longer receive messages.
You agree to indemnify Shopmonkey in full for all claims, expenses, and damages arising from or relating to your failure to notify Shopmonkey if you change your telephone number, including, but not limited to, all claims, expenses, and damages related to or arising under the Telephone Consumer Protection Act (as amended).
No user on this Site or of the Services is authorized to make any contract, agreement, warranty or representation on behalf of us or to create any obligation, express or implied, on behalf of us. You will not act or represent yourself as an agent, partner, or joint venturer of us.
CALIFORNIA USERS AND RESIDENTS If any complaint with us is not satisfactorily resolved, you can contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at Department of Consumer Affairs, Consumer Information Division, 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834 or by telephone at (800) 952-5210. GENERAL TERMS
If any part of this Agreement is held invalid or unenforceable, that portion of the Agreement will be construed consistent with applicable law. The remaining portions will remain in full force and effect. Any failure on the part of Shopmonkey to enforce any provision of this Agreement will not be considered a waiver of our right to enforce such provision. Our rights under this Agreement will survive any termination of this Agreement.
You agree that any cause of action related to or arising out of your relationship with Shopmonkey must commence within ONE year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
These Terms of Service and your use of the Site are governed by the federal laws of the United States of America and the laws of the State of California, without regard to conflict of law provisions.
COSTS AND ATTORNEY’S FEES
If we engage the services of an attorney to collect any monies due or to bring any action for any relief against you, declaratory or otherwise, arising out of or related to these Terms of Service, and are successful in obtaining a judgment or resolution in our favor, you agree to pay and promptly reimburse use for any and all attorneys’ fees in such action, whether in mediation or arbitration, at trail, or on appeal.
CONTACT US In order to resolve a complaint regarding the Site or to receive further information regarding use of the Site, please contact us at: firstname.lastname@example.org