PLEASE READ THIS AGREEMENT CAREFULLY; THIS IS A
BINDING CONTRACT.
Welcome to the ShopSnap, LLC website (the “Site”).
Your access and use of the Site and of features, products and services provided
by ShopSnap (“ShopSnap,” “we,” “us,”
or “our”) through the Site, but excluding any software, products
or services provided by ShopSnap under a separate written agreement, (individually
and collectively, the “Service”) is subject to the terms and conditions
in this Terms of Use (this “ToU”).
You must agree to this ToU in order to use the Site or
the Service. If you use the Site or the Service, or click to accept or agree to
this ToU if presented to you in a user interface for the Service, we will understand
this as your acceptance of this ToU and your agreement to all of its terms and
conditions. By accepting this ToU or using the Site or the Service, you
represent and warrant that you have the legal capacity to enter a contract in
the jurisdiction where you reside. If you do not accept this ToU, then you may
not use the Site or the Service. If you are using the Site or the Service on
behalf of your employer or another entity, you represent and warrant that you
have full legal authority to bind your employer or such other entity to this
ToU. If you do not have such authority, then you may not use the Site or the
Service on behalf of your employer or such other entity and you must
discontinue all use of the Site and the Service immediately.
1.
ToU
Updates
.
ShopSnap may update this ToU at any time, and ShopSnap
will post the updated version of this ToU on the Site. You understand and agree
that you will be deemed to have accepted the updated ToU if you use the Site or
the Service after the updated ToU is posted on the Site.
If at any point you do not agree to any portion of this ToU
then in effect, you must immediately stop using the Site and the Service.
2.
Provision
of the Service
.
You are responsible for any Internet connection
and telecommunications fees and charges that you incur when accessing the Site
and the Service. You acknowledge and agree that ShopSnap may make changes to the
Site or the Service at any time without notifying you in advance.
3.
Termination
of Service
. ShopSnap reserves the right
to deny service to any person or entity at ShopSnap’s sole and absolute
discretion. You acknowledge and agree that ShopSnap may stop providing the Site
or the Service or restrict your use of the Site or the Service at any time,
without notifying you in advance, for any reason or no reason, including,
without limitation, for any violation of this ToU or if ShopSnap suspects that
you have used any aspect of the Service to conduct any fraudulent or illegal
activity. If ShopSnap disables your access to your account, you may be
prevented from accessing the Service, your account details or any materials contained
in your account.
4.
Accounts
and Security
.
4.1.
Account
. To access certain
aspects of the Service, you must have an account. You can create an account by
completing the registration process. You may be required to provide information
about yourself as part of the registration process or your continued use of the
Service. You agree that any registration information that you submit to ShopSnap
will be correct, accurate and up to date.
4.2.
Fees
. You agree to pay all
applicable fees and taxes incurred by you or anyone using your account. Unless
otherwise noted, all currency references are in U.S. dollars. All fees and
charges are payable in accordance with payment terms in effect at the time the
fee or the charge becomes payable. ShopSnap may, from time to time, modify,
amend, or supplement its pricing and billing procedures, and such changes shall
be effective immediately upon posting a link to an update of this ToU or
posting such changes elsewhere on the Site. If there is a dispute regarding
your payment of fees, or the Service, ShopSnap shall have the right to
terminate your account without prior notice. YOU ACKNOWLEDGE AND AGREE THAT ANY
APPLICABLE FEES AND OTHER CHARGES ARE NON-REFUNDABLE IN WHOLE OR IN PART. YOU
ARE FULLY LIABLE FOR ALL CHARGES TO YOUR ACCOUNT, INCLUDING ANY UNAUTHORIZED
CHARGES.
4.3.
Account Security
. Maintaining
account security is very important. You are solely responsible for maintaining
the confidentiality of your account password. You agree to notify ShopSnap
immediately if you become aware of any unauthorized use of your password or of
your account.
4.4.
Account Sharing or Transfers
. Accounts
are registered to you individually and may not be sold, traded, gifted or
otherwise transferred at any time under any circumstances. You may not share
your account with, or disclose your password to, anyone else.
4.5.
Cancellation by You
. You have
the right to cancel your account at any time. You may cancel your account by
clicking the cancel link available on the Site or by contacting us via email at
pupport@shopsnap.io. Once you cancel your
account, your information will no longer be viewable by other users. However,
content previously shared with other users may remain viewable by those users
until they delete such content.
4.6.
Termination by ShopSnap
. ShopSnap
may at any time terminate your account if:
a.
ShopSnap determines that you are (i) in breach of or
otherwise acting inconsistently with this ToU or (ii) engaging in fraudulent or
illegal activities or other conduct that may result in liability to ShopSnap;
b.
ShopSnap determines it is required by law to terminate
your account; or
c.
ShopSnap decides to stop providing the Service or
critical portions of the Service.
4.7.
Effect of Account Termination or Cancellation
. If you voluntarily terminate your account or
allow your account to lapse, you will be able to reactivate that account at any
time by contacting us via email at contact@shopsnap.io. Accounts terminated by ShopSnap
for any type of abuse including, without limitation, a violation of this ToU,
may not be reactivated for any reason.
5.
Restrictions
and Conditions of Use
.
5.1.
Use of the Service
. ShopSnap
permits you to view and use the Site and the Service solely for your limited commercial
use consistent with the intended purpose of the Service. You agree not to
license, create derivative works from, transfer, sell or re-sell any
information, content, materials, data or services obtained from the Site or the
Service.
5.2.
Software License Grant
.
Subject to the terms and conditions of this ToU, ShopSnap hereby grants you a
limited, non-exclusive, personal, non-sublicensable, non-assignable license to
use the Software provided to you by ShopSnap (the “Software”).
The Software may only be used in connection with the Service and in accordance
with this ToU and any rules, restrictions or documentation set forth by
ShopSnap from time to time.
5.3.
Accessing the Service
. You
agree not to access, or attempt to access, the Service by any means other than
through the user interface provided through the Site. You specifically agree
not to access, or attempt to access, the Service through any automated means
(including, without limitation, through the use of scripts, bots, spiders or
web crawlers) and you agree to comply with the instructions contained in any
robots.txt file present on the Site or the Service.
5.4.
SLA and hosting limits
ShopSnap Makes no claims regarding SLA, bandwidth, disk space and database limits. Stores are limited by spesific plans and cloud providers. To find out what are your spesific hosting store limits, contact us at http://support.shopsnap.io.
5.5.
No Violation of Laws
. You
agree that you will not, in connection with your use of the Site or the
Service, violate any applicable law, ordinance, rule, regulation or treaty. Without
limiting the foregoing, you agree that you will not make available through the
Site or the Service any material or information that infringes any copyright,
trademark, patent, trade secret, or other right of any party (including rights
of privacy or publicity).
5.6.
Use Restrictions
. You may not
connect to or use the Site or the Service in any way that is not expressly
permitted by this ToU.
a.
You may not: (i) remove any proprietary notices from the
Site, the Service or the Software; (ii) cause, permit or authorize the
modification, creation of derivative works, translation, reverse engineering,
decompiling, disassembling or hacking of the Site or the Service; (iii) sell,
assign, rent, lease, act as a service bureau, or grant rights in the Service,
including, without limitation, through sublicense, to any other person or entity
without the prior written consent of ShopSnap; or (iv) make any false, misleading
or deceptive statement or representation regarding ShopSnap or the Site or the Service.
b.
Without limiting the foregoing, you agree that you
will not: (i) institute, assist, or become involved in any type of attack
including, without limitation, denial of service attacks, upon the Site or the
Service (or any servers, systems or networks connected to the Site or the
Service) or otherwise attempt to obstruct, disrupt or interfere with the operation
of the Site or the Service or any other person’s or entity’s use of the Site or
the Service (or any servers, systems or networks connected to the Site or the
Service); (ii) attempt to gain unauthorized access to the Site, the Service, accounts
registered to other users, or any servers, systems or networks connected to the
Site or the Service ; (iii) use the Site or the Service for any commercial
purpose unless consistent with this ToU and the intended use of the same, or
for the benefit of any third party, or charge any person or entity, or receive
any compensation for, the use of the Site or the Service, unless you are
specifically authorized to do so in a separate written agreement with ShopSnap;
(iv) use the Site or the Service to develop, generate, transmit or store
information that is defamatory, harmful, abusive, obscene or hateful; (iv) use the
Site or the Service to perform any unsolicited commercial communication not
permitted by applicable law; or (v) use the Site or the Service to engage in
any activity that (A) constitutes harassment or a violation of privacy or
threatens other people or groups of people; (B) is harmful to children in any
manner; (C) constitutes phishing, pharming or impersonates any other person or
entity, or steals or assumes any person’s identity (whether a real identity or
online nickname or alias); or (D) violates any applicable law, ordinance, rule,
regulation or treaty.
c.
Without limiting the foregoing, you agree that you
will not use the Site or the Service for any other unlawful, prohibited,
abnormal or unusual activity as determined by ShopSnap in its sole discretion.
5.7.
No Data Mining or Harmful Code
.
You agree that you will not (a) obtain or attempt to obtain any information
from the Service
including, without limitation, email
addresses or mobile phone numbers of other account holders or other software
data
; (b) intercept, examine or otherwise observe any proprietary
communications protocol used by the Site or the Service, whether through the
use of a network analyzer, packet sniffer or other device; or (c) use any type ofbot, spider, virus, clock, timer,
counter, worm, software lock, drop dead device, Trojan horse routing, trap
door, time bomb or any other codes, instructions or third party software that
is designed to provide a means of
surreptitious or unauthorized access to, or distort, delete, damage or disassemble,
the Site or the Service.
5.8.
Violation of this ToU
. You
acknowledge and agree that you are solely responsible, and ShopSnap has no
responsibility or liability to you or any other person or entity, for any
breach by you of this ToU or for the consequences of any such breach. ShopSnap
may at its option, terminate its relationship with you, or may suspend your
account immediately if it determines you are using the Service contrary to the
restrictions found in this
Section 5
or any other terms of this ToU.
6. Links.
6.1.
Links from the Site.
The Site may contain links to websites operated by
other parties.
ShopSnap
provides these links to other websites as a
convenience and use of these websites is at your own risk. The linked websites
are not under the control of
ShopSnapand
ShopSnap
is not responsible for the content
available on the other websites. Such links do not imply
ShopSnap
’s
endorsement
of information or material on any other website
and
ShopSnap
disclaims all liability with regard to your
access to and use of such linked
websites.
6.2.
Links to the Site
. Unless
otherwise set forth in a written agreement between you and ShopSnap, you must
adhere to ShopSnap’s linking policy as follows: (a) the appearance, position
and other aspects of the link may not be such as to damage or dilute the
goodwill associated with ShopSnap’s or its licensors’ names and trademarks; (b)
the appearance, position and other attributes of the link may not create the
false appearance that your organization or entity is sponsored by, affiliated
with, or associated with ShopSnap; and (c) when selected by a User, the link to
the Site must display the Site on full-screen and not within a “frame” on the
linking Site. ShopSnap reserves the right to revoke its consent to the link at
any time and in its sole discretion.
7.
Intellectual
Property
.
7.1.
Trademarks
. The ShopSnap name
and logo are trademarks and service marks of ShopSnap. Unless permitted in a
separate written agreement with ShopSnap, you do not have the right to use any
of ShopSnap’s trademarks, service marks or logos and your unauthorized use of
any of these may be a violation of federal and state trademark laws.
7.2.
Ownership
. You
acknowledge and agree that ShopSnap, or its licensors, owns all right, title
and interest in and to the Site and the Service
, including all intellectual property, industrial property and
proprietary rights
recognized
anywhere in the world at any time and that the Site and the Service are
protected by U.S. and international copyright laws. Further, you acknowledge
that the Service may contain information that ShopSnap has designated as
confidential and you agree not to disclose such information without ShopSnap’s
prior written consent.
7.3.
Copyright Agent
. ShopSnap respects the intellectual property rights of others, and
requires that people who use the Site and the Service do the same. ShopSnap
maintains a policy of terminating users of the Site or the Service who engage
in repeated infringing conduct. If you believe that your work has been copied
in a way that constitutes copyright infringement, please forward the following
information to the Copyright Agent, designated as such pursuant to the Digital
Millennium Copyright Act, 17 U.S.C. § 512(c)(2), named below:
•
Your address, telephone number, and email address;
• A
description of the copyrighted work that you claim has been infringed;
• A
description of where the alleged infringing material is located;
• A
statement by you that you have a good faith belief that the disputed use is not
authorized by you, the copyright owner, its agent, or the law;
• An
electronic or physical signature of the person authorized to act on behalf of
the owner of the copyright interest; and
• A
statement by you, made under penalty of perjury, that the above information in
your notice is accurate and that you are the copyright owner or authorized to
act on the copyright owner’s behalf.
8. Themes
. You may establish the appearance of your
ShopSnap store with a design template from ShopSnap’s theme store (each, a “Theme”).
All themes must preserve the original ShopSnap logo and link located in the them's footer.
If you download a Theme, you are licensed to use it for a single store only.
You may transfer a Theme to a second store if you cease to operate the first
store, but otherwise are not permitted to transfer or sell a Theme to any other
person or store. Each new use of a Theme requires a new download and payment of
the applicable fees, and ShopSnap makes no guarantee that a particular Theme
will remain available for additional downloads. You may modify the Theme to
best fit your ShopSnap store. ShopSnap may, in ShopSnap’s sole discretion: (a)
add or modify the footer that refers to ShopSnap; (b) modify any other part of
the Theme if it violates
Section 11.1
below; and (c) modify the theme to reflect technical changes and updates. It is
your responsibility, and not ShopSnap’s, to ensure the installation of a new
Theme does not overwrite or damage the current or preexisting theme. For the
avoidance of doubt, ShopSnap retains all right, title and interest in the
Themes, including without limitation all related intellectual property rights,
other than the limited license set forth in this Section.
9.
Privacy Policy
.
By
accepting this ToU or using the Site or the
Service
, you
represent that you have read and consent to our Privacy Policy
in addition to this ToU.
ShopSnap
may revise the Privacy Policy at any time, and a link to the
new versions will be posted on the Site. If at any point you do not agree to
any portion of the Privacy Policy, you must immediately stop using the Site and
the Service.
If you are a merchant
operating a ShopSnap store, you agree to post a privacy policy on your ShopSnap
store that complies with all laws applicable to your business, and to obtain
consent from your customers for the use and access of their Personal
Information by ShopSnap and other third parties.
10. Location
. The Site and the Service are operated by ShopSnap
in the United States. If you choose to access the Site or the Service from a location
outside of the United States, you do so on your own initiative and you are responsible
for compliance with applicable local laws.
11.
Submitted
Content
.
11.1.
Content
of Communications
. ShopSnap is not the
source of, does not verify or endorse and takes no responsibility for the
content of communications made using the Service. By using the Service, you
agree that any content that you submit may be viewable by other users of the
Site or the Service. The content of communications is entirely the
responsibility of the person from whom such content originated. You therefore
may be exposed to content that is offensive, unlawful, harmful to minors,
obscene, indecent or otherwise objectionable. The content of communications may
be protected by intellectual property rights, which are owned by third parties.
You are responsible for the content you choose to communicate and access using
the Service. In particular, you are responsible for ensuring that you do not
submit material that is (a) copyrighted, protected by trade secret or otherwise
subject to third party proprietary rights, including privacy and publicity
rights, unless you are the owner of such rights or have permission from their
rightful owner; (b) a falsehood or misrepresentation; (c) offensive, unlawful,
harmful to minors, obscene, defamatory, libelous, threatening, pornographic,
harassing, hateful, racially or ethnically offensive, or that encourages
conduct that would be considered a criminal offense, gives rise to civil
liability, violates any law, or is otherwise objectionable; or (d)
impersonating another person. ShopSnap may in its sole discretion block,
prevent delivery of or otherwise remove the content of communications as part
of its effort to protect the Service or its customers, or otherwise enforce the
terms of this ToU. Further, ShopSnap may in its sole discretion remove such
content or terminate this ToU and your Account if you use any content that is
in breach of this ToU.
11.2.
ShopSnap does not claim ownership of any
communications or materials you submit or make available through the Site or
the Service (“Submitted Content”) via forums, blogs, email
functions, chat functions, video hosting, sharing or publishing or any other
function on the Site or Service which allows you to post, upload, edit, host,
share or publish content. With respect to such Submitted Content, you grant ShopSnap
a perpetual, irrevocable, non-terminable, transferrable, worldwide,
royalty-free, sublicensable, fully paid-up, non-exclusive and transferable
license to use, reproduce, distribute, prepare derivative works of, display,
modify, copy and perform the Submitted Content or any part of such Submitted
Content in connection with the Service and ShopSnap’s (and its successors’ and
affiliates’) business, including without limitation for promoting and
redistributing part or all of the Service (and derivative works thereof) in any
and all media formats and through any and all media channels. You also hereby
grant each user of the Service a non-exclusive license to access your Submitted
Content through the Service while the Submitted Content is made available through
the Service. You may take down any Submitted Content at any time; however, you
acknowledge and agree, that ShopSnap may still have access to such Submitted
Content and that the above licenses granted by you to ShopSnap will remain in
effect despite your removal of such Submitted Content from the Service. You
hereby represent, warrant and covenant that any Submitted Content you provide
does not include anything (including, but not limited to, text, images, music
or video) to which you do not have the full right to grant the license
specified in this
Section 11.2.
11.3.
You acknowledge and agree that: (a) by using the
Site or Service, you may be exposed to content that you may find offensive or
indecent and you do so at your own risk; (b) you are solely responsible for,
and ShopSnap has no responsibility to you or any third party for any Submitted
Content that you create, submit, post or publish on the Site or Service; (c) ShopSnap
does not guarantee any confidentiality with respect to Submitted Content,
whether or not they are published; and (d) ShopSnap is not responsible for any
Submitted Content that you may have access to through your use of the Site or
Service and all Submitted Content is the responsibility of the person from whom
such Submitted Content originated. You acknowledge and agree that (i) ShopSnap
has no control over and is not responsible for the use of Submitted Content by
a user, including any user that has uploaded such Submitted Content to such
user’s personal device; and (ii) ShopSnap may not be able to remove certain
Submitted Content that is uploaded onto another user’s device. ShopSnap does
not endorse any Submitted Content or any opinion, recommendation, or advice
expressed therein, and expressly disclaims any and all liability in connection
with Submitted Content.
11.4.
You acknowledge that ShopSnap has the right to
pre-screen any Submitted Content, but no obligation to do so. At ShopSnap sole
discretion, any Submitted Content may be included in the Service in whole or in
part in a modified form. In addition, ShopSnap and its designees shall have the
right (but not the obligation) in their sole discretion to refuse or remove any
Submitted Content that is available via the Site or the Service that violates
this TOU or is otherwise objectionable including, but not limited to, being
unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene
or violating any party’s intellectual property.
11.5.
You acknowledge that the Submitted Content is your
sole responsibility. You are entirely responsible for the Submitted Content and
agree, under no circumstances, will W
ShopSnap be liable in any way for
Submitted Content, including, but not limited to, for any errors or omissions
in any Submitted Content, or any loss or damage of any kind incurred as a
result of the use or distribution of any Submitted Content transmitted or
otherwise made available via the Service.
12.
Changes
to Products and Pricing
. ShopSnap may,
at any time, revise or change the pricing, availability, specifications,
content, descriptions or features of the Service or any products sold through
the Site. The inclusion of any products through the Site at a particular time
does not imply or warrant that these products will be available at any other
time. ShopSnap reserves the right to change prices for products displayed on
the Site, or the Service, at any time, and to correct pricing errors that may
inadvertently occur. All such changes shall be effective immediately upon
posting of such new product prices to the Site.
13.
Children
. The
Site and the Service are not directed toward children under 13 years of age,
and ShopSnap does not knowingly collect information from children under 13 or
allow them to create an account or access account features. If you are under
13, please do not submit any personal information about yourself to ShopSnap.
14.
Disclaimer
of WarrantIES
.
14.1.
YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE SITE
AND THE SERVICE IS AT YOUR SOLE RISK AND THAT THE SITE AND THE SERVICE ARE
PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OR
CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED.
14.2.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,
SHOPSNAP EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS INCLUDING, WITHOUT
LIMITATION, WARRANTIES AND CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND THOSE ARISING FROM
COURSE OF DEALING OR USAGE OF TRADE.
14.3.
SHOPSNAP MAKES NO WARRANTY AS TO THE ACCURACY,
COMPLETENESS OR RELIABILITY OF ANY MATERIALS, INFORMATION OR DATA AVAILABLE
THROUGH, OR THE PERFORMANCE OF, THE SITE OR THE SERVICE.
14.4.
SHOPSNAP DOES NOT REPRESENT OR WARRANT
THAT (a) YOU WILL BE ABLE TO ACCESS OR USE THE SITE OR THE SERVICE AT THE
TIMES OR LOCATIONS OF YOUR CHOOSING; (b) THAT OPERATION OF THE SITE OR THE
SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (c) YOUR USE OF THE
SITE OR THE SERVICE WILL MEET YOUR REQUIREMENTS; (d) DEFECTS IN THE OPERATION
OF THE SITE OR THE SERVICE WILL BE CORRECTED; OR (e) THE SITE OR THE SERVICE IS
FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
14.5.
YOU ACKNOWLEDGE AND AGREE THAT ANY MATERIAL
DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE OR THE SERVICE IS
AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR
COMPUTER, MOBILE PHONE OR OTHER DEVICE OR ANY LOSS OF DATA RESULTING FROM
DOWNLOADING OR OBTAINING SUCH MATERIAL.
Because
some states or jurisdictions do not allow the disclaimer of implied warranties,
the foregoing disclaimers may not apply to you.
15.
Limitation
of Liability; SOLE AND EXCLUSIVE REMEDY
.
15.1.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,
SHOPSNAP, AND ITS AFFILIATES, LICENSORS AND BUSINESS PARTNERS (COLLECTIVELY,
THE “RELATED PARTIES”), SHALL NOT BE LIABLE TO YOU, UNDER ANY CONTRACT,
TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE
THEORY, FOR:
a.
ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL,
SPECIAL OR EXEMPLARY DAMAGES, INCLUDING LOSS OF PROFITS, USE, DATA OR GOODWILL,
ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SITE OR THE
SERVICE, EVEN IF SHOPSNAP OR THE RELATED PARTIES HAVE BEEN ADVISED OR SHOULD
HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES OR DAMAGES;
b.
THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES
OR TECHNOLOGY; OR
c.
THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE
ANY MATERIALS, INFORMATION OR DATA MAINTAINED BY OR THROUGH YOUR USE OF THE
SITE OR THE SERVICE.
15.2.
WITHOUT LIMITING THE FOREGOING, IN NO CASE SHALL
THE LIABILITY OF SHOPSNAP OR ANY OF THE RELATED PARTIES EXCEED ONE HUNDRED DOLLARS
($100).
Because
some states or jurisdictions do not allow the exclusion or the limitation of
liability for consequential or incidental damages, in such states or
jurisdictions, the liability of ShopSnap and the Related Parties shall be
limited to the fullest extent permitted by law.
16. Indemnification
. You agree to indemnify, defend, and hold ShopSnap
and the Related Parties harmless from and against any and all claims, demands,
liabilities, damages or other losses including, without limitation, reasonable
attorneys’ fees, resulting from or arising out of (a) your use of the Site or
the Service; or (b) your breach of this ToU or any other policies that ShopSnap
may issue for the Site or the Service from time to time.
17.
Governing Law; Jurisdiction
. This ToU is governed by California law,
without regard to conflict of laws principles. The application of the United
Nations Convention on Contracts for the International Sale of Goods is
expressly excluded. You and
ShopSnapagree that, except as otherwise provided in
Section 18below, the state and federal
courts
located in the County of Los Angeles, California will have
exclusive jurisdiction of all disputes arising out of or related to this ToU or
your use of the Site or the Service and agree to submit to the personal
jurisdiction and venue of these courts. Notwithstanding the foregoing,
ShopSnap
shall be allowed to apply for equitable remedies
(including injunctions) in any jurisdiction.
18.
Binding Arbitration
.
18.1.
Arbitration
Procedures
. You and ShopSnap agree that,
except as provided in
Section 18.4
below, all disputes, controversies and claims related to this ToU (each a “Claim”),
shall be finally and exclusively resolved by binding arbitration, which may be
initiated by either party by sending a written notice requesting arbitration to
the other party. Any election to arbitrate by one party shall be final and
binding on the other. The arbitration will be conducted under the Streamlined
Arbitration Rules and Procedures of JAMS that are in effect at the time the
arbitration is initiated (the “JAMS Rules”) and under the terms
set forth in this ToU. In the event of a conflict between the terms set forth
in this
Section 18
and the JAMS
Rules, the terms in this
Section 18
will
control and prevail.
Except as
otherwise set forth in
Section 18.4
,
you may seek any remedies available to you under federal, state or local laws
in an arbitration action. As part of the arbitration, both you and ShopSnap will
have the opportunity for discovery of non-privileged information that is
relevant to the Claim. The arbitrator will provide a written statement of the
arbitrator’s decision regarding the Claim, the award given and the arbitrator’s
findings and conclusions on which the arbitrator’s decision is based. The
determination of whether a Claim is subject to arbitration shall be governed by
the Federal Arbitration Act and determined by a court rather than an
arbitrator. Except as otherwise provided in this ToU, (a) you and ShopSnap may
litigate in court to compel arbitration, stay proceedings pending arbitration,
or confirm, modify, vacate or enter judgment on the award entered by the
arbitrator; and (b) the arbitrator’s decision shall be final, binding on all
parties and enforceable in any court that has jurisdiction, provided that any
award may be challenged if the arbitrator fails to follow applicable law.
18.2.
Location
. The arbitration will take place in Los Angeles, California,
unless the parties agree to video, phone or internet connection appearances.
18.3.
Limitations.You
and ShopSnap agree that any arbitration shall be
limited to the Claim between ShopSnap and you individually. YOU AND SHOPSNAP AGREE
THAT (a) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A
CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (b) THERE IS NO RIGHT
OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE
CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (c) NO ARBITRATION SHALL BE
JOINED WITH ANY OTHER ARBITRATION.
18.4.
Exceptions to Arbitration
.
You and ShopSnap agree that the following Claims are not subject to the above
provisions concerning negotiations and binding arbitration: (a) any Claim
seeking to enforce or protect, or concerning the validity of, any of ShopSnap’s
intellectual property rights; (b) any Claim related to, or arising from,
allegations of theft, piracy, invasion of privacy or unauthorized use; and (c)
any claim for equitable relief.
In
addition to the foregoing, either party may assert an individual action in
small claims court for Claims that are within the scope of such court’s
jurisdiction in lieu of arbitration.
18.5.
Arbitration
Fees
. If you initiate arbitration for a
Claim, you will need to pay the JAMS arbitration initiation fee. If we are
initiating arbitration for a Claim, we will pay all costs charged by JAMS for
initiating the arbitration. All other fees and costs of the arbitration will be
charged pursuant to the JAMS Rules.
18.6.
Severability
. You and ShopSnap agree that if any portion of
this
Section 18
is found illegal or
unenforceable (except any portion of
Section 18.4
), that portion shall be severed and the remainder of the Section shall
be given full force and effect. If
Section 18.4
is found to be illegal or unenforceable then neither you nor ShopSnap
will elect to arbitrate any Claim falling within that portion of
Section 18.4
found to be
illegal or unenforceable and such Claim shall be exclusively decided by a court
of competent jurisdiction within the County of Los Angeles, California, United
States of America, and you and ShopSnap agree to submit to the personal
jurisdiction of that court.
19.
General
.
19.1.
ToU Revisions. T
his ToU may only be revised
in a writing signed by ShopSnap, or published by ShopSnap on the Site.
19.2.
No
Partnership
. You agree that no joint
venture, partnership, employment, or agency relationship exists between you and
ShopSnap as a result of this ToU or your use of the Site or the Service.
19.3.
Assignment
. ShopSnap may assign its rights under this ToU to
any person or entity without your consent. The rights granted to you under this
ToU may not be assigned without ShopSnap’s prior written consent, and any
attempted unauthorized assignment by you shall be null and void.
19.4.
Severability
. If any part of this ToU is determined to be
invalid or unenforceable, then that portion shall be severed, and the remainder
of the ToU shall be given full force and effect.
19.5.
Attorneys’
Fees
. In the event any litigation or
arbitration is brought by either party in connection with this ToU, except as
otherwise provided in Section 18.5, the prevailing party shall be entitled to
recover from the other party all the reasonable costs, attorneys’ fees and
other expenses incurred by such prevailing party in the litigation.
19.6.
No
Waiver
. Our failure to enforce any provision
of this ToU shall in no way be construed to be a present or future waiver of
such provision, nor in any way affect our right to enforce the same provision at
a later time. An express waiver by ShopSnap of any provision, condition or
requirement of this ToU shall not be understood as a waiver of your obligation
to comply with the same provision, condition or requirement at a later time.
19.7.
Notices
. All notices given by you or required under this
ToU shall be in writing and sent to contact@shopsnap.io.
19.8.
U.S.
Government Rights
. If you are, or are
entering into this ToU on behalf of, any agency or instrumentality of the
United States Government, the Software is “commercial computer software” and
“commercial computer software documentation,” and pursuant to FAR 12.212 or
DFARS 227.7202, and their successors, as applicable, use, reproduction, and
disclosure of the Software are governed by the terms of this ToU.
19.9.
Export
Administration.
You must comply with all export laws and regulations
of the United States or any other country (“Export Controls”) and
you shall not export, direct or transfer any portion of the Software, the Site
or the Service, or any direct product thereof, to any destination, person or
entity restricted or prohibited by the Export Controls.
19.10.
Equitable
Remedies
. You acknowledge and agree that ShopSnap
would be irreparably damaged if the terms of this ToU were not specifically
enforced, and therefore you agree that we shall be entitled, without bond,
other security, or proof of damages, to appropriate equitable remedies with
respect to breaches of this ToU, in addition to such other remedies as we may
otherwise have available to us under applicable laws.
19.11.
Entire
Agreement
. This ToU, including the documents
referenced in this ToU, constitutes the entire agreement between you and ShopSnap
with respect to the Site and the Service and supersedes any and all prior agreements
between you and ShopSnap relating to the Site or the Service.
