Last updated: May 29th, 2020
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), applications, software services and professional services, as well as any media, information, or content made available therein, therefrom or otherwise related to or connectioned therewith (collectively, the “Services”). You agree that by accessing the Services, you have read, understood, and agree to be bound by all of these Terms of Service (the “Agreement”). IF YOU DO NOT AGREE WITH ALL OF THESE TERMS OF SERVICE, THEN YOU ARE EXPRESSLY PROHIBITED FROM USING THE SERVICES 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 may make changes to this Agreement from time to time, and we will give you not less than thirty (30) days advance notice of any such changes and an opportunity to opt-out by sending an email to email@example.com. We will further alert you about any changes by updating the “Last updated” date of this Agreement. If you continue to use the Services following such thirty (30) days notice, you will have agreed to such changes and will be bound by them. If you opt-out of such changes, our legal agreement will continue to be bound by the last version of these Terms of Service that you accepted, subject to our mutual rights to discontinue our contractual relationship.
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.
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 contract (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 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 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 all Company websites 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 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.
3. Registration; Rules For User Conduct And Use Of The Service
You must register for and maintain an account with us to access the Services. When registering, 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 Service and conduct other activities with us. 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 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.
By agreeing to this Agreement, you represent and warrant to us that: (a) you are at least the age of majority in the jurisdiction in which you live; (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 End Users working for your affiliates to use the Services under your subscription to the Services, as long as the total number of users between you and all of your affiliates does not exceed the number of users that you are paying for under your subscription and as long as used in the operation of a single business. If you allow your End Users to use your account, 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 majority voting stock ownership or the ability to otherwise direct or cause the direction of the management and policies. 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 licenses purchased by you are used only by you and your affiliates and in the operation of a single business. If you are using multiple End User accounts in connection with the operation of more than one business, you must disclose this fact to us at time of registration and renewal for the Services, as separate businesses require separate agreements with us. Failure to do so will constitute a breach of your obligations
4. 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”). Shopmonkey offers the following Subscription Periods (which may be updated from time to time), but your term and agreement may vary:
Monthly Subscriptions. If you elect to purchase a Monthly Subscription, the Subscription Period shall commence upon the successful processing of your payment 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. No refunds will be given for partial months.
Annual Subscriptions. If you elect to purchase an Annual Subscription, the Subscription Period shall commence upon the successful processing of your payment and automatically 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. No refunds will be given on Annual Subscriptions.
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.
Support. If you are current with payment of Service fees, and subject to any other agreement you may for support for the Service, Shopmonkey will provide you with its standard technical support services relating to the Services, subject to any published support policies.
(a) General Payment Terms. Certain features of the Services may require you to pay fees, including all applicable taxes. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. Unless otherwise agreed, all fees are in U.S. Dollars and are non-refundable. 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. All fees paid hereunder are non-refundable and non-recoupable. 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 website up to date. We encourage you to check our website 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. 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) Subscription Service. The Services include automatically recurring payments for periodic charges (“Subscription Service”). 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. The “Subscription Billing Date” is the date when you purchase your first subscription to the Service. Your account will be charged automatically on the Subscription Billing Date all applicable fees and taxes for the next subscription period. 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 Fee to your account. You may cancel the Subscription Service at a termination point determined by your agreement and by contacting us at: firstname.lastname@example.org
(d) Delinquent Accounts. Shopmonkey may suspend or terminate access to the Services, including 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. 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.
6. Term and Termination.
(a) Term. The term of this Agreement commences upon your registration for a Service subscription and remains in effect for the term of your subscription. Subscriptions will automatically renew for additional successive yearly 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 in the case of annual subscriptions. Notice via email to Shopmonkey at email@example.com or submission of a cancel request through the Services will be deemed sufficient. Upon termination, your access to the Service and any information stored by the Service will also terminate. 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: (a) you breach any provision of this Agreement; (b) you seek to hack the security mechanisms of the Services or we otherwise determine that your use of the Services poses a security risk to us or to another user of the Service; (c) you introduce a malicious program into the network or a virtual machine instance; (d) you cause network interference that affects Services performance for other customers; (e) 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 (e) 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.
(c) Early Termination: If you want to terminate this Agreement before the term is over, you will owe a termination fee equal to all the remaining payments. The only exception is that you may terminate with thirty (30) days' written notice if Shopmonkey materially breaches 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) you will pay to Shopmonkey any fees or other amounts that have accrued prior to the effective date of the termination; (ii) any and all liabilities accrued prior to the effective date of the termination will survive; and (iii) the following sections will survive: Sections 6, 7, 12, 10 through 31. In addition, if you terminate this Agreement before the term is over, you will owe an additional termination fee equal to all the remaining payments. The only exception is that you may terminate with thirty (30) days' written notice if Shopmonkey materially breaches this Agreement and does not cure the breach within thirty (30) days' of receiving your written notice. Following termination and upon your request and subject to any specific restrictions applicable to you or your data, Shopmonkey will make reasonable efforts to export and provide to you in electronic format the information you have uploaded to the Service (service fees may apply), but Shopmonkey is not obligated to retain that information following any termination and makes no representation to the integrity, completeness or timeliness of any data so exported.
Shopmonkey retains all right, title, and interest in and to the Services, including without limitation all source code, databases, functionality, software, website designs, audio, video, text, photographs, and graphics on or integrated with the Services and the trademarks, service marks, and logos contained therein. All such properties 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. This Agreement does not grant you any intellectual property rights in the Services or any components thereof. Except as expressly provided in this Agreement, no part of the 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.
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 application 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 single business, in each case solely for use by a number of End Users that does not exceed the number of paid subscriptions in your account, with no substitution of such users except as expressly permitted. By way of example only, if you have 10 employees 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 individuals 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 that Ancillary Software solely in connection with your use of the Services. You may not, and you must ensure that your Managed Technicians do not, share accounts with each other or any other individuals. You are responsible and liable for ensuring that your Managed Technicians (or anyone else using your accounts or the accounts of your Managed Technicians) comply with the terms of this Agreement.
9. 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” 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.
10. User Data
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. Confidential Information of Customer includes Customer Data; Confidential Information of Shopmonkey includes the Services and Content, 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.
Disclosure of Confidential Information. Subject to Shopmonkey’s rights under Sections 10, 13 and 14, Shopmonkey will not disclose to any third party, without your consent, the information or material 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 information or material 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. 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 with whom we have a commercial relationship, we may disclose information about your account to that referral partner or industry group in connection with that commercial relationship. 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 order to provide 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.
(c) Protection of Confidential Information. Recipient shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of Discloser. Without limiting the foregoing, Recipient 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 Discloser have signed a nonuse and nondisclosure agreement in content at least as protective of Discloser’s Confidential Information as the provisions of this Agreement, prior to any disclosure of Confidential Information to such Recipients. The Recipient shall reproduce Discloser’s proprietary rights notices on any copies made by the Recipient in the same manner in which such notices were set forth in or on the original Confidential Information. The Recipient shall promptly notify Discloser of any unauthorized use or disclosure, or suspected unauthorized use or disclosure, of Discloser’s Confidential Information of which Recipient becomes aware.
If you provide feedback to us regarding the Service or Shopmonkey’s website (“ 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.
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.
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.
15. Warranties; Disclaimer
Shopmonkey warrants that the Services will, during the term of your subscription, materially conform to any description of the Service published by Shopmonkey. As Shopmonkey’s sole and exclusive liability for breach of this limited warranty, and your sole and exclusive remedy, Shopmonkey will make reasonable efforts to correct the non-conformity.
You represent and warrant that: (a) you will not upload or request that Shopmonkey import any information (including personal information) or 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 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.
16. 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 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 13 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
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; (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 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.
18. 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.
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.
5671 Santa Teresa Blvd.
San Jose, CA 95123
20. 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 20(b), (c) and (g), you and Shopmonkey agree that every dispute arising in connection with this Agreement 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 20(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 a
(c) Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 20 within 30 days after the date that you agree to this Agreement by sending a letter to Shopmonkey, Inc., 5671 Santa Teresa Blvd., Suite 212, San Jose, CA 95123 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 20 will be void and any action arising out of this Agreement will be resolved as set forth in Section 21. 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 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., 5671 Santa Teresa Blvd., Suite 212, San Jose, CA 95123. 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. 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.
(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, 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 billing address. If the arbitrator finds that either the substance of your 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. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
(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 20(g) or the entirety of this Section 20 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 20 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 21 will govern any action arising out of or related to this Agreement.
21. Governing Law
This Agreement is governed by the laws of the State of California without regard to conflict of law principles. Subject to Section 20, 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 Service in the United States. We make no representation that the Service is appropriate or available for use in other locations.
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.
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 Service under this Agreement is found to be illegal, unenforceable, or invalid, your right to use the Service will immediately terminate.
24. Consent to Electronic Communications
(b) By entering into this Agreement, you agree to receive calls and text 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 Service.
(c) We and our affiliates and third party service providers may also communicate with you by email and push notifications in our mobile application.
(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 PROMOTIONAL TEXTS, REPLY “STOP” TO A PROMOTIONAL TEXT OR SEND AN EMAIL TO firstname.lastname@example.org WITH THE PHONE NUMBER AND YOUR REQUEST. TO OPT OUT OF PROMOTIONAL CALLS, PLEASE MAKE A DO NOT CALL REQUEST DURING ANY CALL YOU RECEIVE.
25. 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.
26. International Use
The Service is intended for visitors located 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.
27. Google Maps.
Google Maps presented to you through the Service 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.
29. Notice Regarding Apple
This Section 29 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.
You must comply with all applicable laws, including privacy laws, when using the Services; for the avoidance of doubt, you will be responsible for that all sms/text messages sent through the Services are sent with the recipients’ valid consent and include prescribed information and an effective unsubscribe mechanism, 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, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
d. use the Service 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. 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;
g. 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;
h. 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;
i. sell or otherwise transfer the access granted under this Agreement or any right or ability to view, access, or use the Service; or
j. 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, 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. 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 Subscriber 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.
In order to resolve a complaint regarding the Site or to receive further information regarding use of the Site, please contact us at: email@example.com
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:
I. Definitions. For the purposes of this section related to Shopmonkey Payments, the following definitions shall apply:
II. 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 these Terms of Service or continuing to use the Services, 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.
III. 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 customer pursuant to the Shop Agreement.
IV. 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.
V. 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 anytime and without notice suspect 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 terminated 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.
Shop will pay Shopmonkey 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.
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 (“Emails”) through Shopmonkey Marketing: