Host Terms of Services
Thank you for choosing to be a host on ShopShops Platform (“you” or the “Host”).
IShopShops, Inc. (“ShopShops,” “we” or “us”) makes available an interactive streaming e-commerce platform (the “ShopShops Platform” or “Platform”) that facilitates the sale of fashion and other goods and merchandise offered by retailers and brands (“Merchants”), and connects Hosts like you with Merchants and consumers.
This Host Terms of Services (“TOS”) sets out the general terms and conditions on which ShopShops offers you access to and use of our websites, platforms, applications, and services, including core and supplemental services (collectively, the “Services”). Use of our mobile application will also be subject to the Mobile Application EULA and some Services will be subject to Supplemental Terms (as defined below) as published on our website or made known to you. The “Agreement” means these TOS, the Supplemental Terms applicable to your use of applicable Services, and the Mobile Application EULA with respect to such mobile application. Access and use of our Services are also subject to your compliance with Shopshops’ policies and procedures on our website or otherwise provided to you. By clicking the button “I Confirm” or a similar button, or registering for, or accessing or using any Services, Host enters into a legally binding agreement with ShopShops and agrees to accept and be bound to the Agreement. THIS AGREEMENT CREATES A BINDING LEGAL AGREEMENT BETWEEN HOST AND SHOPSHOPS, AND INCLUDES AN ARBITRATION CLAUSE UNDER WHICH CERTAIN CLAIMS MAY NOT BE BROUGHT INTO COURT OR DECIDED BY A JURY. PLEASE READ THIS AGREEMENT CAREFULLY.
Nature of the Services
Overview. The Services are designed to facilitate marketing, promoting, selling and distributing goods and merchandise offered by Merchants (the “Goods”) to end consumers (“Consumers”) and to assist Merchants in identifying potential Hosts, such as you, subject to the other provisions of this TOS. The Services also are designed to facilitate the hosting of livestreaming show(s) (“Live Shows”) where Consumers can view, order, and pay for Goods. The Services may also permit Host to post, create, upload, store, broadcast and/or transmit via the ShopShops Platform certain information or other content (which may include user credentials, logos, trademarks, data, texts, messages, voice recordings, photos, video or other materials or content) (“Host Materials”). In connection with the Services, ShopShops may use third party payment processing companies to collect or process payments.
Core Services. All Hosts may access and use the core Services made available by us as described on ShopShops Platform and related documentation, subject to the provisions of this TOS.
Ancillary and Supplemental Non-Core Services. Host may also elect to receive certain non-core Services offered by ShopShops, which may be subject to additional terms and fees (“Supplemental Terms”). Such Supplemental Terms will either be listed in this Agreement or will be presented to Host when Host signs up to use such Services. Using, or registering to use, such non-core Services constitute your agreement to be bound to the Supplemental Terms and pay any addition fees relating to such Services. If these TOS are inconsistent with such Supplemental Terms, the Supplemental Terms shall control with respect to such supplemental Services. Supplemental Services may include Services relating to: (i) the sale of the goods, merchandise and other personal belongings, if you choose to use such feature; or (ii) other Services identified as such by us. We may add new supplemental Services or discontinue offering any supplemental Services, in whole or in part, at any time unless expressly agreed otherwise in the Agreement.
Social Media. From time-to-time, we may offer functionality on the Services permitting Host to connect the Services to Host’s Facebook, Twitter, Instagram or other social media accounts (“Social Media Accounts”). If Host chooses to connect Host’s ShopShops account with any Social Media Accounts, Host 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, Host’s friends and others who have access to view information about Host on Facebook may be able to see (on Facebook and on the Services) that Host is a user of the Services, and other information about Host’s use of the Services. You may also be able to see similar information about your Facebook friends who are users of the Services. Please pay careful attention to your relevant Social Media Account settings in your Services account as well as your privacy settings in your Social Media Accounts which will impact this feature, when available, and may give you some control over the information that is shared and with whom it is shared.
BY CONNECTING YOUR SERVICES ACCOUNT TO ANY SOCIAL MEDIA ACCOUNT, YOU ACKNOWLEDGE AND AGREE THAT YOUR ARE CONSENTING TO THE CONTINUOUS RELEASE OF INFORMATION ABOUT HOST TO OTHERS, INCLUDING TO THE RELEVANT SOCIAL MEDIA ACCOUNT (IN ACCORDANCE WITH YOUR PRIVACY SETTINGS ON SUCH SOCIAL MEDIA ACCOUNT AND YOUR SETTINGS ON THE SERVICES). IF YOU DO NOT WANT INFORMATION ABOUT YOU TO BE SHARED IN THIS MANNER, PLEASE CHANGE YOUR SETTINGS APPROPRIATELY. 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 you and may not be described in this Agreement.
Use of ShopShops’ Platform
Hosts’ Responsibilities. As between the parties, Host (not ShopShops) is solely responsible for: (a) Host Materials, including the accuracy and completeness thereof; (b) Host’s decision to work with or for any Merchant, including Host’s relationship with such Merchant; (c) Host’s acts, omissions or statements relating to the Goods, Live Shows, Social Media Accounts, a Merchant, or a Consumer; and (d) your business practices and use of our Platform as contemplated under the Agreement. Host will use commercially reasonable efforts to prevent fraudulent, unauthorized or illegal access to or use of, and loss or damage to, the ShopShops Platform to the extent within Host’s control, and notify ShopShops promptly of any such event or circumstance. Host will also use the ShopShops Platform only in accordance with this Agreement and applicable laws and regulations for its business, and notify ShopShops promptly of any known or suspected use in violation thereof.
Registration. In order to use certain Services, you may be required to provide us with your 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. Host represents and warrants that it will provide us with accurate, current and complete registration information. Host is responsible for keeping all such credentials and passwords issued to you confidential and secure.
Acceptable User Conduct.
Host must comply with any rules and policies about use of the Services that we publish from time to time. Subject to the terms and conditions herein, Host is permitted to use the Services solely for marketing, promoting, selling, distributing Goods for Merchants or as otherwise expressly provided (the “Specified Purpose”).
Host must not: (a) use manual or automated software, devices, or other processes to “crawl,” “scrape” or “spider” any of the Services or otherwise to copy, obtain, propagate, distribute or misappropriate any information or other content from the Services, including any of ShopShops’ Property (as defined below); (b) create, upload or transmit any Host Materials if it does not have the right to do so; (c) create, upload or transmit Host Materials or use the Services in any way that would violate any law or the rights of any person; (d) impersonate any person or entity, or forge or manipulate headers to disguise the origin of any of Host Materials; (e) except as otherwise expressly permitted by this 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) distribute or otherwise make available any information or other content obtained through the Services to any third party, except as expressly permitted herein; (h) otherwise interfere in any manner with the use or operation of the Services; (i) abuse the Services’ chat, comments, ratings or review features or sections or to disparage ShopShops or any Merchant; (j) circumvent the Platform or transact directly with a Merchant in order to avoid ShopShops’ fees; or (k) use the Services in the development, directly or indirectly, of any product, software or Services that offer any functionality substantially similar to, or competitive with, the Services.
Host Materials must not: (i) be libelous, vulgar, defamatory, threatening, abusive, scandalous, obscene, pornographic or unlawful or encourage a criminal offense; (ii) contain material from other copyrighted works without the written consent of the owner of such copyrighted material; (iii) infringe any copyright or violate any property rights, rights of privacy or publicity, or any other rights of any third party; or (iv) contain any software viruses, malware, spyware or any other code, file or program that is designed to interrupt, destroy or limit the functionality of any computer software, hardware or telecommunications equipment.
Fees and Economic Terms.
General. As further described on the Platform, in consideration for access to and use of the Services, ShopShops’ shall be entitled to a portion of the amounts collected from users of the ShopShops Platform. ShopShops charges Merchants for their use of the Platform and Services, Goods sold in connection with the Services, and their use of Host’s services enabled through the Platform. ShopShops will pay to Host the amounts specified on the Platform for the promotion or sale of Goods facilitated by Host for Merchants (“Host Fees”), subject to the other provisions of this Agreement. All such amounts, including Host Fees, are subject to change from time to time in the sole discretion of ShopShops.
Deductions and Setoffs. ShopShops may deduct or set-off from amounts due to Host if ShopShops or a Merchant has a good faith concern regarding Host’s acts or omissions or liabilities.
Host Payment Information. As and if requested, Host will provide ShopShops bank account information for ShopShops to pay Host.
Taxes. Host is solely responsible for all taxes relating to Host Fees, income and performance, and ShopShops may deduct and withhold such amounts. ShopShops is not responsible for payment of such taxes and any related penalties or interest, and Host will indemnify ShopShops for any liability or expense ShopShops may incur in connection therewith.
ShopShops’ Property. The Services, including all aspects of ShopShops’ Platform (including ShopShops’ Property, as defined below), is the property of, and owned by, ShopShops or its licensors. All the software, algorithms, functionality, inventions, concepts, text, images, sound, music, videos, marks, logos, compilations, content and technology used to deliver the Services or otherwise embodied in, displayed through, or provided directly or indirectly (e.g., emails or other communications from us to you) via the Services are “ShopShops’ Property”. For clarity, any formats, templates, methodologies, rules, algorithms and software used to create Host Materials are ShopShops’ Property. Except as otherwise expressly permitted by this Agreement, any use, copying, making derivative works, transmitting, posting, linking, deep linking, framing, redistribution, sale, de-compilation, modification, reverse engineering, translation or disassembly of ShopShops’ Property is prohibited. Host 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 Host consents to our obtaining injunctive relief to restrain any breach or threatened breach of this Agreement, without any requirement to post bond. Host or its Agents may be subject to criminal or civil penalties for violation of this paragraph.
ShopShops’ Trademarks. The marks SHOPSHOPS, ISHOPSHOPS, SHOP GLOBAL LIKE A LOCAL and any associated logos (“ShopShops Marks”), are registered or unregistered trademarks or service marks of iShopShops, Inc. or its licensors. Host 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. Host 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 Section 4.3 below, ShopShops hereby grants Host the non-exclusive, limited right and revocable license to use ShopShops Marks for promoting Services provided by ShopShops subject to Host’s compliance of this Agreement. Host 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 notified to Hosts from time to time.
License to use ShopShops’ Property. Subject to the terms and conditions herein, we grant Host the non-exclusive, limited, revocable right to access and use ShopShops’ Property solely to the extent necessary for Host to use the Services for Specified Purpose (as defined above), as permitted by this Agreement. We reserve all other rights. For clarity and without limiting other obligations herein, Host shall not distribute or otherwise commercialize ShopShops’ Property without permission.
Other Propriety Rights
Live Shows. Live Shows are to be filmed by Hosts and/or Merchants and broadcast via the Platform through the Services, unless otherwise specified. Unless otherwise provided by Merchant, Host shall provide and hereby provides any necessary consents, waivers, releases, permits, and other authorizations from 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 Host 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. Host hereby irrevocably assigns to ShopShops all rights, 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 Host’s compliance to this Agreement and unless expressly told otherwise by ShopShops, ShopShops hereby grants Host a non-exclusive, limited and revocable license to download, use, perform and display Live Shows: (i) in connection with Services on ShopShops Platform, or (ii) on third party websites or mobile applications, on the condition that Host keeps any trademark, copyright notices, legends or watermarks intact.
Feedback. If Host provides (directly or indirectly, and by any means) any comments, feedback, suggestions, ideas, or other submissions related to the Services (collectively “Feedback”), the Feedback will be the sole property of ShopShops. We will be entitled to use, reproduce, disclose, publish, distribute, and otherwise exploit in any manner, all Feedback, without restriction and free of charge. We shall have no obligation to maintain any Feedback in confidence, or to respond to any Feedback.
Publicity. ShopShops and its applicable Merchants shall have the right to use Host’s name, image, likeness, picture, trademark and logo on Host lists published on ShopShops’ Platform and in marketing materials. ShopShops or Merchants may announce the relationship hereunder in a press release provided that ShopShops or Merchant, as applicable obtains Host’s prior approval of the wording of the release (not unreasonably withheld).
Term; Termination; Account Suspension
This Agreement commences on the date when you accept them (as described in the preamble above) and remain in full force and effect while Host uses or has a right to use our Services, unless terminated earlier in accordance with this Section. We reserves the right in our sole discretion to suspend your account or terminate the Agreement if we reasonably suspect that: (a) Host has breached or defaulted under any term of this Agreement; (b) Host’s use of our Services may pose significant risks to ShopShops’ or any Merchants’ reputation or systems or other users of our Platform; or (c) Host’s use of our Services violates applicable laws or regulations. We may also terminate, in whole or in part, at our convenience, and will endeavor to provide thirty (30) days’ notice for any such termination.
Following any termination or expiration, Host 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 Host’s possession or control; (c) cease identifying yourself as a host or an Host on ShopShops’ Platform, or otherwise related to ShopShops; and (d) give written notice to ShopShops certifying the foregoing. 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
. Host represents and warrants that:
- You have the power, authority and legal right to execute and perform this Agreement.
- The execution or consummation of this Agreement will not breach any of your obligations under any contract to which you are a party or violate any applicable laws.
- You own all proprietary rights in Host Materials or, with respect to any of Host Materials it does not own, that it has the full authority and right to create, upload, store and/or transmit Host Materials, and to grant the licenses and rights it granted in this Agreement, and that Host’s creation, uploading, storage and/or transmission of Host Materials, and the exercise by us and Consumers of the licenses and rights granted by Host 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.
General. THE SERVICES ARE PROVIDED “AS IS”, WITH ALL FAULTS. WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING: (i) ALL WARRANTIES INCLUDING 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 HOST’S REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR; AND (iii) AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED FROM THE SERVICES OR SHOPSHOPS’ PROPERTY.
Third Party Activities. SHOPSHOPS MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF CONSUMERS, MERCHANTS AND OTHER USERS OF OUR SERVICES. HOST AGREES TO USE ITS OWN BUSINESS JUDGEMENT IN ALL INTERACTIONS OR TRANSACTIONS WITH MERCHANTS, CONSUMERS OR ANY OTHER USERS OF THE SERVICE. We make no representation, warranty or endorsement regarding any third parties on our Platform, or the authenticity or validity of any materials displayed in connection with the Services. By using the Services, Host agrees that the sole remedy for any damage or harm inflicted by a third party using the Platform (including Consumers and Merchants) will be limited to claims against such third party, and that Host will not seek monetary damages or any other remedy from us in connection with such events. Host agrees that we are not responsible for any use or disclosure of Host Materials by other users of the Platform 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 CONSUMERS, MERCHANTS, OR OTHER USERS OF THE SERVICES OR THIRD PARTIES.
System Unavailability & Errors. There may be times when the ShopShopsPlatform is unavailable due to technical errors or network outages or for maintenance and support activities. Our Platform may contain typographical mistakes, inaccuracies, or omissions and some information may not be complete or current. We expressly reserve the right to correct any errors, inaccuracies, or omissions and to change or update information at any time without prior notice. We do not make any representation or warranty concerning errors, omissions, delays, or defects in our Services or any information supplied to Host via the ShopShops Platform, or that files available through the ShopShops Platform are free of viruses, worms, trojan horses, or other code that includes or manifests contaminating or destructive characteristics.
Limitations of Liability.
UNDER NO CIRCUMSTANCES WILL HOST BE ENTITLED TO RECOVER 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 THIS AGREEMENT, THE SERVICES, SHOPSHOPS PLATFORM 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 HOST FOR ANY DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT, THE SERVICES OR SHOPSHOPS’ PROPERTY, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL BE LIMITED TO THE HOST FEES FOR THE THREE (3) MONTH PRIOR TO THE LAST CLAIM (OR, TEN DOLLARS ($10) IF GREATER). 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 HOST.
Host 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) your relationship, acts, omissions, or statements regarding any Merchant, Live Show, or the Goods, including any loss, damage to, or destruction of property and/or death or injury to persons; (b) any claim that the Host Materials or Live Shows infringe or misappropriate the intellectual property rights of any third party, or applicable laws or regulations; (c) Host’s negligence, fraudulent or willful misconduct; (d) Host’s breach of this Agreement; or (e) Host’s use of the Services. We reserve the right to assume the sole control of the defense and settlement of any claim, action, suit or proceeding for which Host is obliged to indemnify us. Host 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 Host Materials issued by any court or governmental authority, and we are not a party to the proceeding in question, Host 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 Host have any complaints or objections to material hosted by the Services Host 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 you claim has been infringed; (c) a description of the material that you claim is infringing and where it is located on the Services; (d) your address, telephone number, and email address; (e) a statement by you that you have a good faith belief that the use of the materials on the Services of which you are complaining is not authorized by the copyright owner, its agent, or the law; and (f) a statement by you that the above information in your notice is accurate and that, under penalty of perjury, Host is the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
If material that you have 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 you 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 you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located or, if your address is outside of the United States, for any judicial district in which ShopShops may be found, and that you 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 any 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 you. We may also, from time to time, amend or restate this Agreement prospectively. If such amendment or restatement is material or if required by law, we will endeavor to notify Host by email or by posting the change on the Service platform and/or applicable mobile application. Host agrees that your continued use of the Services constitutes your agreement to the amended or restated Agreement. If you do not agree to any amended or restated Agreement, you must terminate your account and cease using the Services. Except as set forth above, this Agreement may be amended or modified only by an express writing signed by an authorized representative of ShopShops.
Host and ShopShops each agree that all disputes or other matters arising from or relating to this Agreement, or the use or operation of the Services, 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 Host relating to any claim arising from or relating to the Services or this Agreement 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.
We may attempt to resolve disputes informally with Hosts. If, however, a matter arises that cannot be resolved promptly, Host agrees that any disputes arising out of or relating to the Services of this 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). Host agrees that the arbitration shall be held in New York, New York, unless the AAA or the arbitrator 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 Host and us. Host 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, Host 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. Host agrees that any arbitration shall not permit claims on a class, mass, representative, or private attorney general basis. Host further agrees that no claims of other parties may be consolidated with Host or our claims in the arbitration without both your and our consent. HOST 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.
With respect to any IP Claims (as defined above) that are not subject to arbitration under the above provision, Host 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 Services or this Agreement, and Host 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.
In no event will we be liable for any failure to comply with this 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 or using or disclosing any of Host Materials.
Compliance with Laws.
Host will comply with all laws and regulations applicable to Goods and activities under or in connection with this Agreement, including without limitation the United States and other export and import control laws, regulations and executive orders.
Geography & Language.
We are based in the United States. We make no claims that the Services or any of its content is accessible or appropriate outside of the United States. Access to the Services may not be legal by certain persons or in certain countries. If you access the Services from outside the United States, you do so on its own initiative and are responsible for compliance with local laws. This 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; with Merchants.
The relationship between the parties is that of independent contractors. Nothing contained in this 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.
Host’s relationship with each Merchant is separate and independent of this Agreement, and Host agrees that in no event is ShopShops responsible or liable for any Merchants’ acts or omissions or any injury arising at or in connection with a Merchant’s facility, store, filming location or Goods. If an issue or dispute arises between Host and any Merchant, ShopShops may use reasonable efforts to facilitate resolution between Host and such Merchant, and may (but is not obligated) to withhold payment or transfer of funds to Host or Merchant pending resolution of such issue or dispute or deposit such funds in an escrow account with a reputable bank, subject to Host’s and Merchant’s settlement agreement relating thereto or court order.
No delay or omission by us in exercising any of our rights occurring upon any noncompliance or default by Host with respect to any of the terms and conditions of this 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 Host 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 this Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, then this 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, this 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. This Agreement and Host’s rights and obligations hereunder are not assignable, or otherwise transferable or delegable, by Host 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 this Agreement (including any rights or obligations hereunder), including to any purchaser of our business, from time-to-time in our sole discretion. This Agreement will be binding upon and inure to the benefit of the parties’ successors and permitted assigns. This Agreement may be executed electronically, and Host’s electronic assent or use of the Services shall constitute execution of this Agreement. Host agrees that the electronic text of this 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. Host agrees that email to Host’s email address on record will constitute formal notice under this Agreement. There shall be no third party beneficiaries to this Agreement.
Supplemental Terms – Hosts’ Studio
ShopShops may offer Studios as an optional supplement Service as described in our then current documentation for such supplemental services for the amounts described in the then current ShopShops’ price list. If Host elects to use this supplemental Service as and if offered by ShopShops, then the following Supplemental Terms apply solely with respect to such supplemental Services:
Goods. Any goods, products, merchandise or personal belongings that you choose to sell or market on our Platform are considered Goods as defined in the TOS.
Shipment and Delivery. Unless we expressly agree to ship Goods for you through supplemental Services, Goods will be shipped by Host through transportation and shipping carriers of your choice. In no event is ShopShops responsible for the acts or omissions of any carriers, including any loss or damage to Goods. As between the parties, Host is responsible for all risk of loss or damage relating to the Goods and will re-process and re-fulfill orders and process and accept returns or exchanges, as applicable.
Services and Returns. Host will be responsible for authorizing the return of Goods from a Consumer in exchange for a full or partial refund or exchange, as determined by Host. 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 Consumers using the means of payment utilized for the initial collection of such duties and taxes.
Prohibited Goods. Host will ensure that it does not promote, market, offer, sell, or ship any Goods: (i) not legally allowed to be sold, including regulated or prohibited drugs, weapons, or other Goods subject to import/export control licenses or restrictions; (ii) made from any type of endangered wild plant or animal 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; or (vi) incorrectly labelled or packaged or subject to false or illegal claims, or (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 (collectively, “Prohibited Goods”). ShopShops will have the right to refuse any Services with respect to any Prohibited Goods, and Host 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.
Live Shows Consent. Live Shows are to be filmed by Host and broadcast via the Platform through the Services. Host 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 other Hosts or any third parties selected from the Platform; (ii) all locations where Live Shows are filmed; and (iii) all Merchants 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 Host to provide ShopShops the rights as contemplated in Section 5.2 of the TOS.
Fees and Economic Terms.
ShopShops shall be entitled to (i) a portion of the amounts collected from users of the ShopShops Platform, and (ii) any ancillary costs or expenses ShopShops incurs in connection with the transactions relating to this Agreement, including shipping, handling, taxes, duties, import/export, payment processing, chargeback, currency exchange or other similar costs or expenses; in each case, as more thoroughly described in the Platform, as applicable and as then in effect, and subject to change from time to time in the sole discretion of ShopShops (collectively “ShopShops Studio Fees”).
ShopShops may deduct or set-off such ShopShops Studio Fees from any amounts collected by ShopShops from Consumers or for amounts due to Host (including Host Fees). As requested by ShopShops, Host shall pay the ShopShops Studio Fees directly to ShopShops if net amounts collected by ShopShops from Consumers is less than the ShopShops Studio Fees in any period.
As and if requested, Host will provide ShopShops payment information, including credit card or bank account information for ShopShops to charge monthly subscription fees or other ShopShops Studio Fees.
ShopShops Studio Fees are net of any applicable Sales Tax. If any Services, or payments for any goods or Services, under this Agreement, are subject to Sales Tax in any jurisdiction, Host (or the Consumer) will be responsible for payment of such Sales Tax, and any related penalties or interest and Host will indemnify ShopShops for any liability or expense ShopShops may incur in connection with such Sales Taxes. For purposes of this Agreement, “Sales Tax” shall mean 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.
Host 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 Studio Fees will be due and payable immediately plus any other amounts owed.
Additional Representations and Warranties. You hereby represent that you have the right to sell and distribute the Goods as contemplated under these TOS, and all Goods are and will: (a) be free from any defects in workmanship, material, and design; (b) conform to applicable specifications and other requirements communicated to ShopShops or Consumers; (c) be fit for their intended purpose and operate as intended; (d) be merchantable; (e) be conveyed with good title, free and clear of all liens, security interests, or other encumbrances; and (f) be original, legitimate and genuine quality products, which are procured from legitimate channels in accordance with all legal requirements. 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). Host will honor and pass-through to ShopShops, if necessary, all warranties relating to the Goods so ShopShops may provide the same to Consumers.
Additional Disclaimers. Between ShopShops and Host, Host is solely responsible for the Goods, including the returns, repair, replacement, warranty obligations or recalls.
Additional Indemnity. Host 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 any sale, purchase, use or possession of the Goods, infringes or misappropriates the intellectual property rights of any third party, or violates manufacturing instructions or applicable laws or regulations.