Seller Terms of Services
Thank you for choosing iShopShops, Inc. for your business (“you” or the “Seller”). iShopShops, Inc. (“ShopShops,” “we” “us,” or “our”) makes available an interactive streaming e-commerce platform (“Platform”) that facilitates the sales of goods and merchandise and connects merchants, hosts, and other sellers like you with consumers.
These Seller Terms of Services (“TOS”) apply to merchants, hosts, and others offering or selling goods and merchandise using the Platform and set out the general terms and conditions on which ShopShops offers you access to and use of our websites, Platform, applications, and services, including core and non-core services (collectively, the “Services”). You the Seller may be a “Merchant” or “Host” as applicable to your business and use of our Services, as and if applicable to you and further defined in the Agreement. Use of our mobile application will also be subject to a separate mobile application end user license agreement (the “Mobile Application Agreement”) and some Services will be subject to Supplemental Terms (as defined below). If you and ShopShops have entered into a Merchant Seller Onboarding Form (the “MSOF”) or a Host Seller Agreement (the “HSA”) then the provisions of such MSOF or HSA will also apply to you. The “Agreement” means these TOS, the Mobile Application Agreement, the Supplemental Terms, and the MSOF or HSA, in each case as and if applicable to you and your use of the Services. Access and use of the Services are also subject to your compliance with ShopShops’ Documentation on our website or otherwise provided to you. By executing a MSOF or HSA or clicking the button “I Confirm” or a similar button, or registering for, or accessing or using the Services, Seller enters into a legally binding agreement with ShopShops and agrees to accept and be bound to the Agreement.
Any individual purporting to represent a Seller entity, represents and warrants that it is authorized to enter into the Agreement on behalf of the Seller entity it identifies, and form a legally binding agreement pursuant to the Agreement. THE AGREEMENT IS BINDING ON Seller AND SHOPSHOPS, AND THESE TOS INCLUDE AN ARBITRATION CLAUSE UNDER WHICH CERTAIN CLAIMS MAY NOT BE BROUGHT INTO COURT OR DECIDED BY A JURY. PLEASE READ THESE TOS CAREFULLY.
Nature of the Services.
Overview. The Services are designed to facilitate Seller and its authorized employees, agents, contractors and representatives (collectively, “Agents”) in marketing, promoting, selling and distributing goods and merchandise (the “Goods”) to end consumers, subject to the Agreement and our policies, guides, and manuals as updated and amended from time to time (“Documentation”). The Services also are designed to facilitate the hosting of livestreaming show(s) (“Live Shows”) created by a Seller that is a Host using the Services where consumers can view, order, and pay for Goods (e.g., sold by Hosts that are the Seller instead of directly by the Merchant). The Services may also permit Sellers to post, create, upload, store, broadcast and/or transmit certain information or other content (which may include user credentials for Agents, logos, trademarks, data, texts, messages, voice recordings, photos, video or other materials or content) (“Seller Materials”). In connection with the Services, ShopShops may use third-party payment processing companies to collect payment from consumers.
Core and Non-core Services. All Sellers may access and use the core Services made available by us as described on the Platform, subject to the terms of the Agreement. Seller may elect to receive certain non-core Services offered by ShopShops, subject to additional terms (“Supplemental Terms”) and fees as specified on the Platform or the Agreement. Seller’s use, or registering to use, such non-core Services constitutes your agreement to be bound to the Supplemental Terms and pay any fees relating to such non-core Services. If these TOS are inconsistent with such Supplemental Terms, the Supplemental Terms shall control with respect to such non-core Services. Non-core services may include Services selected by you on a MSOF or in other written documentation with ShopShops. We may add new non-core Services or discontinue offering any non-core Services, in whole or in part, in our discretion, at any time unless expressly agreed otherwise in the Agreement.
Shipment and Delivery. Unless we expressly agree in writing to ship Goods for Seller or sponsor shipping costs or provide shipping services, Seller will ship Goods through transportation and shipping carriers of its choice. We are not responsible for the acts or omissions of any carriers, including any loss or damage to Goods. As between the Parties, Seller is responsible for all risk of loss or damage relating to the Goods. Re-processing and re-fulfilling orders will be at the discretion of the Seller. In the event of loss or damage to Goods, prior to and during transportation, caused by Seller or Seller’s selected shipping carrier, ShopShops, in its sole discretion, may refund consumers and Chargeback the Seller. In the event of processing, fulfillment, shipment, and in-transit/transportation delays caused by Seller or Seller’s selected shipping carriers, including, but not limited to: 1) delayed fulfillment of order 2) severe delay at carrier fulfillment centers 2) customs and import related delay 4) transportation delay while en-route, ShopShops, in its sole discretion, may refund Consumers and Chargeback the Seller. Seller will bear the responsibility of issuing claims with its selected shipping carriers. Except as otherwise agreed in writing by the parties, Seller must ship out ordered items within three (3) business days of order confirmation and delivery must not exceed ten (10) calendar days for domestic order in-transit time or twenty-one (21) calendar days for international order in-transit time including clearing customs. Business days are defined as Monday through Friday and exclude weekends and holidays. If Seller fails to deliver Goods within the time frame(s) in this Section, ShopShops, in its sole discretion, may process a refund for the consumer and initiate a Chargeback to the Seller for original order value plus inspection, testing, shipping, handling, and transportation fees or expenses incurred by ShopShops.
Services and Returns. Unless we expressly agree in writing to take responsibility for cancellations, returns and refunds, Seller will be responsible for canceling any purchases of Goods or the return of Goods from a consumer in exchange for a full or partial refund or exchange, as determined by Seller. Seller must complete all cancellations and refunds through the Seller APP. ShopShops, in its sole discretion, may issue or deny a refund to a consumer in the event of a dispute in which a consumer claims that the Goods were not presented properly, including, but not limited to: (a) quality issues; (b) misrepresentation of the Goods; or (c) fraudulent or counterfeit Goods when presented with credible evidence. As provided for in the Agreement, on behalf of the Seller, we may retrieve and temporarily withhold the applicable Goods, and we will Chargeback Seller for storage, testing, shipping, handling, and transportation fees or expenses incurred by us. In the case that U.S. Customs or any U.S. or non-U.S. authority requests information, documents and/or other evidence regarding any exportation or importation of any Goods or other compliance matters or such information is required for legal reasons or to address, mitigate, or determine taxes or duties on returns or other transactions, the parties will work in good faith, in a timely manner, to provide said evidence to said agencies. Any refunded duties and taxes in relation to a return which were paid at the time of purchase by the consumer will be refunded to such consumer by ShopShops on behalf of the Seller using the means of payment utilized for the initial collection of such duties and taxes.
Prohibited Goods. Seller will ensure that it does not promote, market, offer, sell, or ship any Goods (i) not legally allowed to be sold, including alcohol, tobacco, non-medical or pharmaceutical drugs, firearms, weapons, explosives, high-risk items, or Goods subject to import/export control licenses or restrictions; (ii) made from any type of live animal or endangered species that is in the list of species protected by the Convention on International Trade in Endangered Species; (iii) that fall into one or more of the nine United Nations hazard classes; (iv) that are classiﬁed as ﬁsh or wildlife as determined by the U.S. Fish & Wildlife department or other legal authority; (v) that are perishable according to any U.S. federal, U.S. State, or other applicable transportation authority; (vi) incorrectly labelled or packaged or subject to false or illegal claims; (vii) that infringe or misappropriate the rights of a third party or are subject to an injunction or court order prohibiting the sale or shipment thereof; (viii) pornographic or violent materials, including such materials relating to minors which will result in an automatic termination of the Agreement; or (ix) counterfeit products that infringe on another entity’s copyright, trademark, brand name, or brand logo (collectively, “Prohibited Goods”). ShopShops will have the right to refuse any Services with respect to any Prohibited Goods, and Seller will indemnify and hold harmless ShopShops for any damages, losses and liabilities that ShopShops may suffer arising from or in connection with such Prohibited Goods.
Social Media. From time-to-time, we may offer functionality on the Services permitting Seller to connect the Services to Seller’s Facebook, Twitter, Instagram or other social media accounts (“Social Media Accounts”). If Seller chooses to connect Seller’s ShopShops account with any Social Media Accounts, Seller will be able to take advantage of various social features ShopShops may already have or will be creating, as part of the Services, as well as features available on such Social Media Accounts. These features will generally be designed to share information with others. For example, Seller’s friends and others who have access to view information about Seller on Facebook may be able to see (on Facebook and on the Services) that Seller are a user of the Services, and other information about Seller’s use of the Services. Seller may also be able to see similar information about Seller’s Facebook friends who are users of the Services. Please pay careful attention to Seller’s relevant Social Media Account settings in Seller’s Services account as well as Sellers privacy settings in Seller’s Social Media Accounts which will impact this feature, when available, and may give Seller some control over the information that is shared and with whom it is shared. BY CONNECTING SELLER’S SERVICES ACCOUNT TO ANY SOCIAL MEDIA ACCOUNT, SELLER ACKNOWLEDGES AND AGREE THAT SELLER IS CONSENTING TO THE CONTINUOUS RELEASE OF INFORMATION ABOUT SELLER TO OTHERS, INCLUDING TO THE RELEVANT SOCIAL MEDIA ACCOUNT (IN ACCORDANCE WITH SELLER’S PRIVACY SETTINGS ON SUCH SOCIAL MEDIA ACCOUNT AND SELLER’S SETTINGS ON THE SERVICES). IF SELLER DOES NOT WANT INFORMATION ABOUT SELLER TO BE SHARED IN THIS MANNER, PLEASE NOTIFY SHOPSHOPS VIA THE “DELETE ACCOUNT” BUTTON UNDER THE SETTINGS MENU WITHIN THE SERVICES. ShopShops and social media sites are continually making changes and improvements to this feature, and therefore the available features and information that are shared may change from time to time. These changes may take place without notice to Seller and may not be described in the Agreement.
Seller’s use of the Services.
Seller Responsibilities. As between the parties, Seller (not ShopShops) is solely responsible for (a) Seller Materials, including the accuracy and completeness thereof, (b) the Goods, including any loss, damage, injury, or death caused by the Goods, and the returns, repairs, replacements, warranty obligations or recalls of such Goods; (c) obtaining and documenting consents from consumers, influencers, and other third parties required for ShopShops (and its third-party contractors or processors) to perform its obligations and receive, process, transmit, and display information and data as contemplated under the Agreement; and (d) its business practices and use of the Services and ShopShops’ Property as contemplated under the Agreement. Seller will use commercially reasonable efforts to prevent fraudulent, unauthorized or illegal access to or use of, and loss or damage to, the Services and ShopShops’ Property. Seller will use the Services and ShopShops’ Property in accordance with the Agreement, Documentation, and applicable laws and regulations for its business. Seller will immediately notify ShopShops of any known or suspected violation thereof.
Restrictions. Seller and its Agents must not: (a) create, upload or transmit any Seller Materials if it does not have the right, or license, to do so and/or would violate any law or the rights of any third-party, including intellectual property rights; (b) create, upload, or transmit Seller Materials that are libelous, vulgar, defamatory, threatening, abusive, obscene, or pornographic or unlawful; (c) create, upload, or transmit Seller Materials that contain viruses, malware, spyware, or any other code, file, program that would interrupt, destroy, or harm ShopShops’ Property, in any manner; (d) impersonate any person or entity, or forge or manipulate headers to disguise the origin of any of Seller Materials; (e) except as permitted in the Agreement, harvest or otherwise collect information about others from the Services; (f) take any action that imposes or may impose an unreasonable or disproportionately large load on the Services or its infrastructure, or bypass any measures we may use to prevent or restrict access to any portion of the Services (or other accounts, networks or services connected thereto); (g) use manual or automated software, devices, or other processes to “crawl,” “scrape” or “spider” the Services or otherwise to copy, obtain, propagate, distribute or misappropriate any information or other content from the Services, including any of ShopShops’ Property; (h) except as permitted in the Agreement, copy, make derivative works, transmit, post, link, frame, redistribute, sell, de-compile, modify, reverse engineer, translate, or disassemble any of ShopShops’ Property or make available any information or other content obtained through the Services to any third party; (i) otherwise interfere in any manner with the use or operation of the Services; (j) abuse the Services’ chat, comments, ratings or review features or sections; (k) circumvent the Services or transact directly with an influencer or consumer outside of the Services in order to avoid ShopShops’ fees; or (l) use ShopShops’ Property in the development, directly or indirectly, of any product, software or service that offers any functionality substantially similar to, or competitive with, the Services. Seller and its Agents must comply with any Documentation about use of the Services that we publish from time to time. Seller shall be responsible for its Agents’ acts or omissions. Subject to the terms and conditions herein, Seller is permitted to use the Services solely for marketing, promoting, selling, distributing Seller’s Goods (the “Specified Purpose”).
Registration. In order to use certain Services, Seller may be required to provide us with its and its authorized Agents’ contact and other information including full legal name, email address, mailing address, phone number, social media handles, or other information and create a password and register with us. We may also request additional information. Seller represents and warrants that it will provide us with accurate, current and complete registration information. Seller is responsible for keeping all such credentials and passwords issued to its Agents confidential and secure.
Fees and Economic Terms.
Services Fee. In consideration of the Services, ShopShops’ shall be entitled to commissions, fees, and other amounts as identified on a MSOF OR HSA, which are subject to change from time to time in the sole discretion of ShopShops, and any applicable MSOF or HSA between you and ShopShops (collectively “ShopShops Total Fees”), including: (i) the commissions on Goods sold (the “Commission”), (ii) any ancillary fees, costs, or expenses ShopShops incurs in connection with the transactions relating to the Agreement, including shipping and handling, taxes, duties, import/export, payment processing, currency fluctuations or exchanges, or other similar fees, costs, or expenses (“Other Costs”), unless directly paid by the consumer, and (iii) costs or losses associated with chargebacks (unless ShopShops has expressly agreed to be responsible for such chargebacks) (“Chargebacks”). A MSOF or HSA executed by you and ShopShops may include discounts or further details specific to your Services as provided in such MSOF or HSA.
Deduction from Amounts Collected for the Goods. Amounts collected from consumers for Goods will be reduced by ShopShops Total Fees, including Commissions, Other Costs, and Chargebacks, before Seller is paid the balance owed to Seller in connection with any such Goods. However, if Other Costs or Chargebacks are subsequently incurred by ShopShops, ShopShops may deduct or set-off such amounts from future amounts due to Seller (or Seller will pay such amount directly to ShopShops, as and if requested). Seller acknowledges and agrees that Chargebacks may not be known for several months after Goods are shipped, and the parties will collaborate to mitigate Chargebacks.
Seller Payment Information. Seller will provide ShopShops payment information for payment to be completed as specified in the MSOF or HSA or selected by Seller in the Services. The Seller payment information will be utilized by ShopShops to remit amounts due to Seller, less ShopShops Total Fees, including Commissions, Other Costs, and Chargebacks. Seller is responsible for any third party payment service or transaction fees.
Taxes. If any Services, or payments for any Goods or Services, under this Agreement, are subject to Sales Tax in any jurisdiction, ShopShops may charge, collect, and remit such Sales Taxes. For purposes of this Agreement, “Sales Tax” includes any sales or use, value added, or similar tax or amount, and any other tax or amount measured by sales proceeds or assessed by a governmental or taxing authority in any jurisdiction. ShopShops may automatically charge and withhold such taxes or other amounts as deemed necessary by ShopShops. In no event is ShopShops responsible for taxes owned by any consumers or Seller or any tax related interest or penalty, other than taxes on ShopShops’ income or for amounts which ShopShops collects but fails to remit. Seller will indemnify ShopShops for any claims, interest, or penalties relating to taxes which ShopShops is not expressly responsible under this Section.
Transaction Processing Fees. A per transaction processing fee (“Transaction Processing Fees”) occurs each time an electronic payment for a customer transaction takes place. All Transaction Processing Fees shall be deducted from Gross Revenue before ShopShops takes its fee.
ShopShops’ Property. All right, title, and interest in and to ShopShops’ Property (including all related patent, copyright, trademark, trade secret, intellectual property and other ownership rights) are and will remain the sole and exclusive property of ShopShops (or its licensors). Any derivative works, modifications, enhancements, or customizations relating to the ShopShops’ Property (whether created alone by either party or jointly by or on behalf of both parties or their representatives or otherwise) will be solely and exclusively owned by ShopShops. Seller hereby assigns to ShopShops any rights, title and interest, including all intellectual property rights in any feedback, suggestions, ideas, derivative works, modifications, enhancements, or improvements related to ShopShops’ Property that Seller or any of its users or representatives provide, propose, create, conceive, author or develop relating their use of the Services. Seller will execute and deliver (or cause its representatives to execute and deliver) any additional documents deemed reasonably necessary or appropriate to perfect, maintain, protect, or enforce Seller’s rights and the intent of the Agreement. Seller acknowledges that ShopShops’ Property has been created, compiled, developed and maintained by us at great expense of time and money such that misappropriation or unauthorized disclosure or use of ShopShops’ Property by others for commercial gain would unfairly and irreparably harm us in a manner for which damages would not be an adequate remedy, and Seller consents to our obtaining injunctive relief to restrain any breach or threatened breach of the Agreement, without any requirement to post bond. Seller or its Agents may be subject to criminal or civil penalties for violation of this paragraph. As used herein, “ShopShops’ Property” means collectively, the Services and Documentation, the visual expressions, screen formats, report formats and other design features of the Services, all ideas, methods, algorithms, formulae and concepts used in developing and/or incorporated into the Services, or documentation, all future modifications, revisions, updates, refinements, improvements and enhancements of the Services or documentation, all derivative works (as such term is used in U.S. copyright laws) based upon any of the foregoing, deliverables and work product arising from the Services, and all copies of the foregoing. However, ShopShops’ Property does not include Seller Materials.
License to use ShopShops’ Property. Subject to the Agreement and Documentation, we grant Seller the non-exclusive, limited, revocable right to access and use ShopShops’ Property solely to the extent necessary for Seller to use the Services the Specified Purpose. We reserve all other rights.
ShopShops’ Trademarks. The marks SHOPSHOPS, ISHOPSHOPS, SHOP GLOBAL LIKE A LOCAL and any associated logos (“Marks”), are registered or unregistered trademarks or service marks of iShopShops, Inc. or its licensors. Seller shall use the Marks only in the manner and for purposes authorized by ShopShops and shall ensure that all uses include appropriate copyright and trademark notices. Seller may not use them, or any of our other marks or logos, in any manner, including any use that is likely to cause confusion or that disparages or discredits us, without our consent. The Services may also feature the trademarks, service marks, and logos of third parties, and each owner retains all rights in such marks. Any use of such marks, or any others displayed on the Services, will inure solely to the benefit of their respective owners. In addition to the license granted in this Section 4, ShopShops hereby grants to Seller the non-exclusive, limited right and revocable license to use Marks to promote the Services subject to Seller’s compliance of the Agreement and Documentation. Seller warrants that its use of any Mark shall conform to ShopShops’ then current trademark and logo guidelines, and other ShopShops’ requirements governing the use of Marks as amended from time to time.
Other Propriety Rights.
Live Shows. Live Shows are to be filmed by Seller and broadcast via the Platform through the Services, unless otherwise specified. Seller shall obtain all necessary consents, waivers, releases, permits, and other authorizations from all necessary persons and entities, including but limited to: (i) all persons who may appear or whose image, likeness or trademarks may appear in the Live Shows, including influencers or any other third parties selected from the Platform, (ii) all locations where Live Shows are filmed, and (iii) all Sellers or other entities whose images or trademarks may appear in the Live Shows, in each case, to the extent necessary or required by applicable law or regulation for ShopShops to perform the Services and broadcast the Live Shows as contemplated hereunder and for Seller to provide ShopShops the rights below. As between the parties, ShopShops is and will be the sole and exclusive owner of all rights, title, and interest in and to the Live Shows (including all film, photographs, and other recordings, including outtakes and behind-the-scenes footage), including all copyrights and other intellectual property rights therein or thereto. Seller hereby irrevocably assigns to ShopShops all right, title and interest in and to the Live Shows, including all rights in and to any intellectual property rights embodied in Live Shows or developed in the course of the creation of the Live Shows and will cause all applicable individuals and entities to grant or waive any moral or other rights they may have in or to the Live Shows for ShopShops to have and exercise the rights contemplated in this Section. Subject to Seller’s compliance with the Agreement, ShopShops hereby grants Seller a non-exclusive, limited and revocable license to download, use, perform and display Live Shows (i) in connection with its Specified Purpose on the Platform, or (ii) on third-party websites or mobile applications, on the condition that Seller keeps any trademark, copyright notices, legends or watermarks intact.
Publicity. ShopShops shall have the right to use Seller’s name and logo on Seller lists published on the Platform and in marketing materials. ShopShops may announce the relationship hereunder in a press release provided that ShopShops obtains Seller’s prior approval of the wording of the release (not unreasonably withheld).
Termination. The term of the Agreement commences on the date Seller accepts the Agreement, or uses the Services, and remain in full force and effect for the entirety of Seller’s use of the Services. We reserve the right in our sole discretion to suspend or terminate Seller’s account or terminate the Agreement if we reasonably suspect that: (a) Seller or any of its Agents breached or defaulted under any term of the Agreement; (b) Seller’s use of the Services or ShopShops’ Property poses significant risks to ShopShops’ reputation or systems or other users of the Services; or (c) Seller or any of its Agents’ use of ShopShops’ Property violates applicable laws or Documentation. We may also terminate Seller’s account or the Agreement, in whole or in part, at our convenience.
Effect of Termination. Following any termination or expiration, Seller must: (a) immediately discontinue all access and use of all ShopShops’ Property; (b) promptly return to ShopShops (or delete) any copies of ShopShops’ Property then in Seller’s possession or control; (c) cease identifying ShopShops as its e-commerce provider; and (d) give written notice to ShopShops certifying the foregoing. Seller will remain liable for all payments due to ShopShops with respect to the period ending on the date of termination or expiration. Upon any termination or expiration, the balance of all remaining ShopShops Total Fees will be due and payable immediately plus any other amounts owed. The provisions of the Agreement that are required or intended to survive (including payment, indemnity, limitation of liability, intellectual property, confidentiality etc.) to give each party the rights and benefits reasonably contemplated will survive any termination or expiration.
Representations and Warranties. Seller represents and warrants that: (a) it is in good standing, has all licenses, regulatory approvals, permits, and powers legally required to conduct its business, and has the power, authority and legal right to execute and perform its obligations under the Agreement; (b) the execution or consummation of the Agreement will not breach any of Seller’s obligations under any contract to which Seller is a party or violate applicable law; (c) it has the right to sell and distribute the Goods as contemplated under the Agreement, and all Goods are and will be free from any defects in workmanship, material, and design, conform to applicable specifications and other requirements communicated to ShopShops or consumers, be fit for their intended purpose and operate as intended, be Merchantable, be conveyed with good title, free and clear of all liens, security interests, or other encumbrances, and be original, legitimate and genuine quality products, which are procured from legitimate channels in accordance with all legal requirements; (d) the Goods and any related packaging, conform fully to any applicable laws, rules and regulations (including intellectual property laws and applicable consumer goods certifications in the country or other jurisdiction to which such Goods are shipped); (e) it owns all proprietary rights in Seller Materials or, with respect to any of Seller Materials it does not own, that it has the full authority and right to create, upload, store and/or transmit Seller Materials, and to grant the licenses and rights it granted in the Agreement; and (f) the creation, uploading, storage and/or transmission of Seller Materials, and the exercise by ShopShops and consumers of the licenses and rights granted by Seller herein, shall not infringe any third party intellectual property or proprietary rights, nor violate any rights of privacy or publicity, nor be defamatory, libelous, vulgar, profane or obscene, nor violate any law or other right, privilege or interest of any third party. Seller will honor and pass-through to ShopShops, if necessary, all warranties relating to the Goods so ShopShops may provide the same to consumers.
General. THE SERVICES AND SHOPSHOPS’ PROPERTY ARE PROVIDED “AS IS”, WITH ALL FAULTS. WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING: (i) ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, AND ANY AND ALL WARRANTIES ARISING FROM THE COURSE OF DEALING OR USAGE OF TRADE; (ii) THAT THE SERVICES OR SHOPSHOPS’ PROPERTY WILL MEET SELLER’S REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR; (iii) AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED FROM THE SERVICES OR SHOPSHOPS’ PROPERTY; (iv) AS TO THE CONDUCT OF CONSUMERS, INFLUENCERS, AND OTHER USERS OF THE SERVICES; (v) AS TO THE AUTHENTICITY, VALIDITY, OR RELIABILITY OF ANY THIRD-PARTIES USE OF THE SERVICES OR MATERIALS DISPLAYED IN CONNECTION WITH THE SERVICES; (vi) THAT THE SERVICES, INCLUDING THE PLATFORM, THIRD-PARTY MATERIALS, OR FILES DOWNLOADED FROM THE SERVICES WILL BE FREE OF VIRUSES, WORMS, TROJAN HORSES, OR OTHER CODE THAT INCLUDES DESTRUCTIVE CHARACTERISTICS. SHOPSHOPS MAY PAUSE OR INTERRUPT THE SERVICES AT ANY TIME, AND YOU SHOULD EXPECT PERIODIC DOWNTIME FOR UPDATES TO THE SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE SERVICES WILL CREATE ANY OTHER WARRANTY.
Third-Party Activities. By using the Services, Seller agrees that the sole remedy for any damage or harm inflicted by a third-party using the Services (including consumers and influencers) will be limited to claims against such third party, and that Seller will not seek monetary damages or any other remedy from us in connection with such events. Seller agrees that we are not responsible for any use or disclosure of Seller Materials by other users of the Services or any third-party who gains access to it through the Services (which may include unintended activities by third-parties, such as by hackers). SHOPSHOPS HEREBY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY USERS OF THE SERVICES OR THIRD-PARTIES.
Limitations of Liability. UNDER NO CIRCUMSTANCES WILL SELLER BE ENTITLED TO RECOVER FROM US ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF REVENUE, LOSS OF DATA, OR LOSS OF USE), WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE ARISING FROM OR RELATING TO THE AGREEMENT, THE SERVICES, OR SHOPSHOPS’ PROPERTY, EVEN IF WE HAVE BEEN INFORMED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, SHOPSHOPS’ MAXIMUM AGGREGATE LIABILITY TO SELLER FOR ANY DAMAGES ARISING FROM OR RELATING TO THE AGREEMENT, THE SERVICES, OR SHOPSHOPS’ PROPERTY, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL BE LIMITED TO SHOPSHOPS TOTAL FEES FOR THE THREE (3) MONTH PRIOR TO THE LAST CLAIM (OR, IF SELLER IS A NON-FEE PAYING USER, TEN DOLLARS ($10)). SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF WARRANTIES OR OF LIABILITY FOR CERTAIN TYPES OF DAMAGES, SO SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO SELLER.
Indemnity. Seller will indemnify us, and our licensors, affiliates, providers and agents, against any and all claims, actions, proceedings, suits, liabilities, losses, damages, costs, expenses and attorneys’ fees arising out of or related to (a) the Goods, including product liability; (b) ShopShops’, consumers’, influencers’ or other person’s or entity’s purchase, use, or possession of the Goods, including any loss, damage to, or destruction of property and/or death or injury to persons; (c) any claim that the Seller Materials, Live Shows, or any sale, purchase, use or possession of the Goods, infringes or misappropriates the intellectual property rights of any third-party or violates applicable laws or regulations; (d) Seller’s negligence, fraudulent or willful misconduct; (e) Seller’s breach of the Agreement; or (f) Seller’s use of the Services or ShopShops’ Property. We reserve the right to assume the sole control of the defense and settlement of any claim, action, suit or proceeding for which Seller is obliged to indemnify us. Seller will cooperate with us with respect to such defense and settlement. Without limitation of the foregoing, if we receive a subpoena or similar requirement to disclose Seller Materials issued by any court or governmental authority, and we are not a party to the proceeding in question, Seller will reimburse us for our reasonable costs and expenses of complying with such subpoena, including time spent by our personnel and our attorneys at time and materials rates.
Digital Millennium Copyright Act. We comply with the provisions of the Digital Millennium Copyright Act applicable to internet service providers (17 U.S.C. §512, as amended). If Seller has any complaints or objections to material hosted by the Services, Seller may contact our Designated Agent at the following address:
One International Place Suite 3900
Boston, Massachusetts 02110
Any notice alleging that materials hosted by or distributed through the Services infringe intellectual property rights must include the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed; (b) a description of the copyrighted work or other intellectual property that Seller claim has been infringed; (c) a description of the material that Seller claim is infringing and where it is located on the Services; (d) Sellers address, telephone number, and email address; (e) a statement by Seller that Seller has a good faith belief that the use of the materials on the Services of which Seller are complaining is not authorized by the copyright owner, its agent, or the law; and (f) a statement by Seller that the above information in Seller’s notice is accurate and that, under penalty of perjury, Seller is the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
If material that Seller has posted to the Services has been removed or disabled, you may file a counter notice pursuant to 17 U.S.C. §512 (g). To be effective, the counter notice must be a written communication sent to the designated agent address listed above that includes the following: (i) a physical or electronic signature of the subscriber; (ii) identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled; (iii) a statement under penalty of perjury that Seller have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and (iv) your name, address, and telephone number, and a statement that Seller consent to the jurisdiction of Federal District Court for the judicial district in which the address is located or, if Seller’s address is outside of the United States, for any judicial district in which ShopShops may be found, and that Seller will accept Services of process from the person who provided notification under subsection 17 U.S.C. §512 (c)(1)(C) or an agent of such person.
It is our policy to terminate in appropriate circumstances the accounts of Users that are repeat infringers or repeatedly violate this Agreement.
Modification of Services and Agreement. We reserve the right to modify the Services at any time, without notice to Seller. We may also from time to time amend or restate the Agreement and Documentation prospectively. If such amendment or restatement is material or if required by law, we will endeavor to notify Seller or its Agents by email or by posting the change on the Services. Seller agrees that Seller’s continued use of the Services constitutes Seller’s agreement to the amended or restated Agreement. If Seller does not agree to any amended or restated Agreement, Seller must immediately cease using the Services and ShopShops’ Property. Except as set forth above, the Agreement may be amended or modified only by an express writing signed by an authorized representative of ShopShops.
Governing Law. Seller and we each agree that all disputes or other matters arising from or relating to the Agreement or the use or operation of the Services or ShopShops’ Property, will be governed by the substantive laws of the State of New York, U.S.A., without regard to its or any other jurisdiction’s conflicts of laws principles that would apply another law. Any action or proceeding by Seller relating to any claim arising from or relating to the Agreement or the use or operation of the Services or ShopShops’ Property must commence within the shorter of the applicable statute of limitations or one year after the cause of action has accrued. The United Nations Convention for the International Sale of Goods is hereby disclaimed.
Arbitration. We may attempt to resolve disputes informally with Sellers. If, however, a matter arises that cannot be resolved promptly, Seller agrees that any disputes arising out of or relating to the Services or the Agreement (including the validity and scope of the agreement to arbitrate) shall be resolved exclusively by final and binding arbitration administered by the American Arbitration Association (“AAA”) under the Federal Arbitration Act, and shall be conducted before a single arbitrator pursuant to the applicable Rules and Procedures established by the AAA (for information on the AAA and its rules, see adr.org). Seller agrees that the arbitration shall be held in New York, New York, unless the AAA or the arbitrator shall determine that venue in such city is unreasonably burdensome, in which case the AAA or the arbitrator shall select a venue that is not unreasonably burdensome to both Seller and us. Seller agrees that, if the AAA shall be unavailable or decline to administer the arbitration, and the parties do not agree on a substitute, a substitute administrator or arbitrator shall be appointed by the court. The arbitrator may render early or summary disposition of some or all issues, after the parties have had a reasonable opportunity to make submissions on these issues. At ShopShops’ option, this provision shall not apply to claims of patent, trademark, or copyright infringement or misappropriation of trade secrets (collectively, “IP Claims”). In addition, Seller or we may elect to bring an individual claim in a small claims court, but we do not hereby agree to any personal jurisdiction that is otherwise lacking. Seller agrees that any arbitration shall not permit claims on a class, mass, representative, or private attorney general basis. Seller further agrees that no claims of other parties may be consolidated with Seller or our claims in the arbitration without both Seller and our consent. Seller IS WAIVING ITS RIGHTS TO HAVE ITS CASE DECIDED BY A JURY AND TO PARTICIPATE IN A CLASS, MASS, REPRESENTATIVE, PRIVATE ATTORNEY GENERAL, OR CONSOLIDATED ACTION AGAINST US. If any part of this Arbitration clause is later deemed invalid as a matter of law, then it shall be severed and the remaining portions of this section shall remain in effect, with the exception that if the preceding paragraph is deemed invalid, then this entire section shall be deemed invalid and the arbitration clause shall be void.
Jurisdiction. With respect to any IP Claims (as defined above) that are not subject to arbitration under the above provision, Seller hereby consents to non-exclusive jurisdiction and venue in any federal or state court located within the State of New York, U.S.A., with respect to any suit, claim or cause of action arising from or relating to the Agreement or the use or operation of the Services or ShopShops’ Property, and Seller shall not bring any such suit, claim or cause of action except in a court located within the State of New York, U.S.A.
Force Majeure. In no event will we be liable for any failure to comply with the Agreement to the extent that such failure arises from factors outside our reasonable control. Without limitation of the foregoing, in the absence of our gross negligence or willful misconduct we will not be liable for any damages arising from the acts of hackers or similar bad actors interfering with the Services, ShopShops’ Property, or using or disclosing any of Seller Materials.
Compliance with Laws. Seller will comply with all laws and regulations applicable to Seller’s Goods and activities under or in connection with the Agreement, including without limitation the United States and other export and import control laws, regulations and executive orders.
Geography and Language. We are based in the United States. We make no claims that ShopShops’ Property or any of its content is accessible or appropriate outside of the United States. Access to ShopShops’ Property may not be legal by certain persons or in certain countries. If Seller or its Agents access ShopShops’ Property from outside the United States, Seller does so on its own initiative and are responsible for compliance with local laws. The Agreement has been prepared in English. In the event of any inconsistency between the original English version and any translation, the English version shall govern.
Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in the Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise or employment relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
Miscellaneous Provisions. No delay or omission by us in exercising any of our rights occurring upon any noncompliance or default by Seller with respect to any of the terms and conditions of the Agreement will impair any such right or be construed to be a waiver thereof, and a waiver by us of any of the covenants, conditions or agreements to be performed by Seller will not be construed to be a waiver of any succeeding breach thereof or of any other covenant, condition or agreement herein. No waiver will be binding on us unless made in an express writing signed by us. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, then the Agreement will remain in full force and effect and will be reformed to be valid and enforceable while reflecting the intent of the parties to the greatest extent permitted by law. Except as otherwise expressly provided herein, the Agreement sets forth the entire agreement between us regarding its subject matter, and supersedes all prior promises, agreements or representations, whether written or oral, regarding such subject matter. If there is a direct conflict or inconsistency between these TOS and any MSOF or HSA, the MSOF or HSA takes precedence with respect to the subject matter of such MSOF or HSA. The Agreement and Seller’s rights and obligations hereunder are not assignable, or otherwise transferable or delegable, by Seller to any third party without our prior written consent in our sole discretion. Any purported assignment, transfer or delegation without such consent will be null and void. We may assign or otherwise transfer or delegate the Agreement (including any rights or obligations hereunder), including to any purchaser of our business, from time-to-time in our sole discretion. The Agreement will be binding upon and inure to the benefit of the parties’ successors and permitted assigns. The Agreement may be executed electronically, and Seller’s electronic assent or use of the Services shall constitute execution of the Agreement. Seller agrees that the electronic text of the Agreement constitutes a writing and its assent to the terms and conditions hereof constitutes a “signing” for all purposes. As used herein and unless the intent is expressly otherwise in a specific instance, the terms “include,” “includes” or “including” shall not be limiting and “or” shall not be exclusive. Any section headings herein are for convenience only and do not form a part of, and will not be used in the interpretation of, the substantive provisions of this Agreement. Seller agrees that email to Seller’s email address on record will constitute formal notice under the Agreement. There shall be no third party beneficiaries to the Agreement.
Supplemental Terms – Generally
iShopShops, Inc. (“ShopShops”) may offer optional, supplemental services as described in the Documentation. If Seller elects to use the supplemental Service(s), the applicable Supplemental Terms below shall apply and govern with respect to such supplemental service, excluding any terms related to Chargebacks in which the TOS shall apply. Capitalized terms not defined in theSupplemental Terms below have the meaning given elsewhere in the Agreement.
Supplemental Terms – Fulfillment and Support
ShopShops may offer fulfillment and support services (itself or through a third-party logistics provider), in accordance with the Documentation, for the amounts described on the Platform. The following fulfillment and support terms shall apply:
Shipment, Delivery Requirements and Risk of Loss. Seller shall deliver the Goods to the shipping location(s) specified in writing by ShopShops. Seller shall timely provide shipment tracking information to ShopShops for all shipped Goods in accordance with Documentation. Seller must ship out ordered items to the shipping location(s) within three (3) business days of order confirmation, provided that, if Seller fails to ship ordered items within the three (3) day period, ShopShops, in its sole discretion, may process a refund for the consumer and initiate a Chargeback to the Seller for original order value plus inspection, testing, shipping, handling, and transportation fees or expenses incurred by ShopShops. Seller bears all risk of loss or damage to the Goods until ShopShops takes possession of such Goods at the shipping location, and is solely responsible for procuring insurance relating to such Goods and hereby waives (and will cause its insurers to waive) any right of subrogation or to seek recourse against ShopShops or its affiliates, warehousers, contractors or insurers in connection therewith.
Acceptance of Goods. If ShopShops determines, in its sole discretion, that Goods delivered under the Agreement are damaged, defective, or non-conforming, or were delivered to ShopShops as a result of Seller’s, its’ agent, or its’ shipping carrier’s error, ShopShops, in its sole discretion, may process a refund for the consumer and initiate a Chargeback to the Seller for original order value plus inspection, testing, shipping, handling, and transportation fees or expenses incurred by ShopShops.
Changes to Orders. ShopShops may, in its sole discretion, cancel or modify the details of an order (including without limitation the types and quantities of Goods specified therein) at any time prior to shipment by Seller of such Goods.
Refunded Goods. ShopShops, in its sole discretion, may collect or store any refunded Goods on behalf of Seller for no more than sixty (60) calendar days, at which time, ShopShops may return such refunded Goods to Seller, process a refund for the consumer, and initiate a Chargeback to the Seller for original order value plus inspection, testing, shipping, handling, and transportation fees or expenses incurred by ShopShops, provided that, ShopShops has the right to sell and liquidate such refunded Goods and use the proceeds to offset any amounts owed by Seller to ShopShops.
Supplemental Terms – Live Shows Hosted by Host Sellers
ShopShops may offer Merchants that are Sellers the ability to identify and engage a Host Seller selected from the Services to host Live Shows. The following terms apply solely with respect to the Live Shows:
Collaboration. Merchant Seller will be responsible for preparing the Merchant Seller’s store and Goods for the filming in cooperation with the Host Seller, except as otherwise agreed in writing.
Consents for Live Shows. The Seller(s) shall obtain all necessary consents, waivers, releases, and other authorizations for the Live Shows.
ShopShops disclaimer. ShopShops will have no responsibility or liability for any personal injury, death, or property damage arising at Seller’s store or designated filming location for any Live Shows or for claims or damages between any Merchant and Host.
Supplemental Terms – Shipping Labels and Support
ShopShops may offer Seller use of ShopShops negotiated small parcel carrier rates and label use as a service in accordance with the Agreement and Documentation. The following terms for shipping labels and support shall apply:
Shipment, Delivery Requirements and Risk of Loss or Damage. After first scan by small parcel carriers as documented in carrier’s records, ShopShops is responsible for the acts or omissions of any small parcel carriers when labels provided by ShopShops under ShopShops’ negotiated rates are used, including any loss or damage to Goods. As between the parties, Seller is responsible for all risk of loss or damage relating to the Goods prior to first scan by small parcel carriers as shown in carrier’s records. Re-processing and re-fulfilling orders will be at the discretion of the Seller. In the event of loss or damage to goods prior to and during transportation caused solely by shipping carriers, ShopShops will refund consumers. In the event of processing, fulfillment, shipment, and in-transit/transportation delays caused by shipping carriers, such as but not limited to: 1) delayed fulfillment of order, 2) severe delay at carrier fulfillment centers, 3) customs and import related delay, or 4) transportation delay while en-route, ShopShops, in its sole discretion, may refund the consumers. ShopShops will bear the responsibility of issuing claims with the shipping carriers. Except as otherwise agreed in writing by the parties and/or consumer, Seller must ship out ordered items within three (3) business days of order confirmation and delivery must not exceed ten (10) calendar days for domestic order in-transit time or twenty-one (21) calendar days for international order in-transit time including clearing customs. Business days are defined as Monday through Friday and exclude weekends and holidays. If Seller fails to deliver Goods within the time frame(s) in this Section, ShopShops, in its sole discretion, may process a refund for the consumer and initiate a Chargeback to the Seller for original order value plus inspection, testing, shipping, handling, and transportation fees or expenses incurred by ShopShops.
Shipping Information and Return to Shipper. Seller must accurately enter all shipping related information, including but not limited to: 1) shipping address, 2) name of consumer, and 3) the consumer’s contact information. If delivery cannot be completed due to incorrect shipping information that was provided by the Seller, and package is returned to the Seller, Seller will bare additional costs required to re-ship to the consumer. If package is returned to ShopShops, ShopShops will re-ship to the consumer on Seller’s behalf and Chargeback Seller for additional shipping and handling costs incurred.
Changes to Orders. ShopShops may, in its sole discretion, cancel or modify the details of an order (including without limitation the types and quantities of Goods specified therein) at any time prior to shipment by Seller of such Goods.
Supplemental Terms – Bank and Credit Card Disputes and Chargebacks
ShopShops may receive bank and credit card disputes issued by providers on behalf of Consumers in connection with the Services. The disputes are submitted to ShopShops’ elected payment gateway and will be reviewed by ShopShops. In the event that a dispute is raised, then the following apply:
Dispute Reasons. Dispute reasons and types are determined and provided by ShopShops’ elected payment gateway and may include but are not limited to: 1) General, 2) Fraudulent, 3) Product Unacceptable, 4) Duplicate Payment, 5) Product Not Received, or 6) Credit Not Processed.
Review and Judgement. ShopShops will act in good faith to review and contact the Consumer that raised the dispute to determine if the dispute is legitimate and should be accepted, rejected, or countered. In the event that ShopShops determines the dispute is justified, ShopShops will accept the dispute and seek to resolve it. ShopShops has the sole discretion to determine if an accepted dispute was due to Seller’s (or an agent’s acting on behalf of Seller) error or negligence or a defect in the Goods, in which case the accepted value of the dispute plus any additional fees or costs will be Seller’s sole responsibility and charged back to (and/or paid by) the Seller. If applicable, ShopShops will coordinate the return of Goods to the Seller, with shipping and handling charges related to the return of items charged back to, and paid by, the Seller. In the event that ShopShops determines neither ShopShops, Sellers, or any agents acting on behalf of ShopShops or Sellers were negligent or in the wrong, ShopShops will attempt to counter the dispute, and provide any relevant information to win a counter. If the disputing bank or credit card facility rules in favor of the Consumer, thereby resulting in a loss to ShopShops and charge back by the bank or credit card facility against ShopShops for the disputed amount, ShopShops will bear the disputed loss amount only up to value of its Commission for the applicable transaction and the remainder will be Seller’s responsibility and charged back to (or paid by) the Seller, unless otherwise agreed in writing by ShopShops in a MSOF or HSA.
Effective Date: January 1, 2023