Shoppable (“Shoppable,” “we,” “us,” or “our”) welcomes you. We’re really excited that you have decided to access and use the Shoppable website (the “Website”), our Facebook, Twitter, and/or our other social media plugins (the “Social Media Plugins”), and/or our mobile applications (the “Mobile Apps,” and collectively with the Social Media Plugins and the Website, the “Services”).
Shoppable is focused on creating a frictionless commerce experience across many websites and mobile applications.
We believe that you deserve an online shopping experience that delivers what you want through effortless clicks.
Shoppable is working with the best brands and best retailers to allow you to shop them all with a universal checkout. By using Shoppable, you can easily shop products you see featured through Shoppable and our partner websites. Once you’re ready to purchase, you’ll only have to go through one check-out process, even if you’re purchasing from multiple retailers.
We would like to point out, however, that although you are able to find information about and purchase these amazing products through the Services, we are not the merchant of record (the applicable retailers are), nor are we a party to any transaction you make with these retailers. Accordingly, we shall have no liability to any party in connection with such transactions.
We provide Visitors and Registered Users with access to the Services as described in this Agreement.
Visitors. Visitors, as the term implies, are people who don’t register with us, but want to browse our virtual storefront. No login is required for Visitors. Visitors can (a) browse for the best clothes and accessories; (b) view all publicly-accessible content, and (c) e-mail us.
Registered Users. Login is required for all Registered User services. Registered Users can do all the things that Visitors can do, and can: (a) purchase the products and services offered through the Services; (b) shop with our personal shopper tool to customize your shopping experience; (c) participate in our exclusive promotional offers and sweepstakes, (d) sign up for alerts and other notifications, and (e) post comments
We are under no obligation to accept any individual as a Registered User, and may accept or reject any registration in our sole and complete discretion.
Also, when using the Services via our Mobile Apps, Registered Users may elect to consent to the use of their Mobile Device’s Geolocational Information to provide the Services.
Shoppable’s community, like any community, functions best when its people follow a few simple rules. By accessing and/or using the Services, you hereby agree to comply with these community rules and that:
• You will not use the Services for any unlawful purpose;
• Registered Users may not use the Services to engage in any commercial activities, including, without limitation, raising money; advertising or promoting a product, service, or company; or engaging in any pyramid or other multi-tiered marketing scheme, but Registered Users are encouraged to post comments about their shopping and purchasing experiences with participating retailers;
• You will not access or use the Services to collect any market research for a competing business;
• You will not upload, post, e-mail, transmit, or otherwise make available any content that: Infringes any copyright, trademark, right of publicity, or other proprietary rights of any person or entity; or is threatening, tortious, defamatory, libelous, indecent, obscene, pornographic, invasive of another’s privacy, or promotes violence; or discloses any sensitive information about another person, including that person’s e-mail address, postal address, phone number, credit card information, or any similar information;
• You will not “stalk” or otherwise harass another;
• You will not impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity; and
• You will not interfere with or attempt to interrupt the proper operation of the Services through the use of any virus, device, information collection or transmission mechanism, software or routine, or access or attempt to gain access to any data, files, or passwords related to the Services through hacking, password or data mining, or any other means.
We reserve the right, in our sole and absolute discretion, to deny you access to the Services, or any portion of the Services, without notice, and to remove any comments that do not adhere to these guidelines.
The Services are available for individuals aged 13 years or older. If you are 13 or older, but under the age of 18, you should review this Agreement with your parent or guardian to make sure that you and your parent or guardian understand it.
You agree that Shoppable may immediately authorize your credit card (or other approved facility) for payment for all purchases made under your Password (as defined below).
As set forth more fully in Section 5 below, you must keep your Password strictly confidential. You are fully responsible for all activities that occur under your Password, and you agree to be personally liable for all charges incurred under your Password. Your liability for such charges shall continue after termination of this Agreement.
If you have a question about a transaction on your credit card statement, please use the “Contact Us” section of the Website to contact customer service.
During the registration process for Registered Users, we will ask you to create an account, which includes a sign-in name (“Sign-In Name”), a password (“Password”), and perhaps certain additional information that will assist in authenticating your identity when you log-in in the future (“Unique Identifiers”). When creating your account, you must provide true, accurate, current, and complete information. Each Sign-In Name and corresponding Password can be used by only one Registered User. You are solely responsible for the confidentiality and use of your Sign-In Name, Password, and Unique Identifiers, as well as for any use, misuse, or communications entered through the Services using one or more of them. You will promptly inform us of any need to deactivate a Password or Sign- In Name, or change any Unique Identifier. We reserve the right to delete or change your Password, Sign-In Name, or Unique Identifier at any time and for any reason. Shoppable will not be liable for any loss or damage caused by any unauthorized use of your account
The Services contains material, such as software, text, graphics, images, sound recordings, audiovisual works, and other material provided by or on behalf of Shoppable (collectively referred to as the “Content”). The Content may be owned by us or by third parties. The Content is protected under both United States and foreign laws. Unauthorized use of the Content may violate copyright, trademark, and other laws. You have no rights in or to the Content, and you will not use the Content except as permitted under this Agreement. No other use is permitted without prior written consent from us. You must retain all copyright and other proprietary notices contained in the original Content on any copy you make of the Content. You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. The use or posting of the Content on any other website or in a networked computer environment for any purpose is expressly prohibited.
If you violate any part of this Agreement, your permission to access and/or use the Content and the Services automatically terminates, and you must immediately destroy any copies you have made of the Content
The trademarks, service marks, and logos of Shoppable (“Shoppable Trademarks”) used and displayed on the Services are registered and unregistered trademarks or service marks of Shoppable. Other company, product, and service names located on the Services may be trademarks or service marks owned by others (the “Third-Party Trademarks”, and, collectively with Shoppable Trademarks, the “Trademarks”). Nothing on the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of Shoppable Trademarks inures to our benefit
Elements of the Services are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated, in whole or in part, by any means, including but not limited to the use of framing or mirrors. None of the Content may be retransmitted without our express, written consent for each and every instance.
Although we encourage you to e-mail us, we do not want you to, and you should not, e-mail us any content that contains confidential or copyrighted information. With respect to all e-mails you send to us, including but not limited to, feedback, questions, comments, suggestions, and the like, we shall be free to use any ideas, concepts, know-how, or techniques contained in your communications for any purpose whatsoever, including but not limited to, the development, production and marketing of products and services that incorporate such information..
You retain all copyrights and other intellectual property rights in and to anything you post to the Services, including text and photographs. You do, however, grant us an irrevocable, non-exclusive, worldwide, perpetual, royalty-free license to use, modify, copy, distribute, publish, perform, sublicense, and create derivative works from all submissions you provide to us in any media now known or hereafter devised and for any purpose, and the right, but not the obligation, to use any such material, including, without limitation, your name, image, likeness, photograph, and Sign-In Name to advertise and promote the Services and/or Shoppable.
WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE CONTENTS OF THE SERVICES OR THE PRODUCTS AND SERVICES OF THE PARTICIPATING RETAILERS AND PARTNER COMPANIES. YOU MAY FIND THE PRODUCT AND SERVICE WARRANTIES OF OUR PARTICIPATING RETAILERS AND PARTNER COMPANIES ON THEIR RESPECTIVE WEBSITES. FOR INFORMATION ON PROCESSING RETURNS, PLEASE VISIT OUR CUSTOMER CARE & FAQ PAGE ON THE WEBSITE. WE SHALL NOT BE SUBJECT TO LIABILITY FOR ANY DELAYS OR INTERRUPTIONS OF THE SERVICES FROM WHATEVER CAUSE. YOU AGREE THAT YOU USE THE CONTENT AND THE SERVICES AT YOUR OWN RISK.
WE DO NOT WARRANT THAT THE SERVICES WILL OPERATE ERROR-FREE OR THAT THE SERVICES, THEIR SERVERS, OR CONTENT ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE CONTENT OR THE SERVICES RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, WE SHALL NOT BE RESPONSIBLE FOR THOSE COSTS.
THE CONTENT AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. WE DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTY OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE.
IN NO EVENT SHALL WE BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INCIDENTAL AND CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION) RESULTING FROM YOUR PURCHASE OF THE PRODUCTS AND SERVICES OR YOUR USE OR INABILITY TO USE THE CONTENT OR THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH STATES, OUR LIABILITY SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
Shoppable HAS MADE EVERY EFFORT TO DISPLAY THE PRODUCTS, SERVICES, COLORS, AND IMPRINTS AS ACCURATELY AS POSSIBLE ON THE SERVICES. HOWEVER, THE FINAL PRODUCT AND/OR SERVICE DELIVERED MAY VARY FROM THE IMAGES VIEWED ON THE SERVICES DUE TO A NUMBER OF FACTORS THAT ARE NOT WITHIN OUR CONTROL. THESE FACTORS INCLUDE, BUT ARE NOT LIMITED TO, SYSTEM CAPABILITIES AND CONSTRAINTS OF YOUR COMPUTER, MANUFACTURING PROCESS ISSUES, AND THE AVAILABILITY OF PRODUCT AND RAW MATERIALS. ALTHOUGH Shoppable WILL EXERCISE COMMERCIALLY REASONABLE EFFORTS TO HELP ENSURE THAT THE PRODUCTS AND SERVICES CONFORM TO YOUR EXPECTATIONS, VARIATIONS SOMETIMES OCCUR. ALL PRODUCT AND SERVICE PRICING, SPECIFICATIONS, AND OFFERINGS ARE SUBJECT TO CHANGE WITHOUT NOTICE. THE SERVICES MAY CONTAIN INFORMATION ON THE PRODUCTS AND SERVICES OF PARTICIPATING RETAILERS AND PARTNER COMPANIES, NOT ALL OF WHICH ARE AVAILABLE IN EVERY LOCATION. A REFERENCE TO A PRODUCT OR SERVICE ON THE SERVICES DOES NOT IMPLY THAT SUCH PRODUCT OR SERVICE IS OR WILL BE AVAILABLE IN YOUR LOCATION. THE SERVICES MAY CONTAIN TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS OR OMISSIONS. WE ARE NOT RESPONSIBLE FOR ANY SUCH TYPOGRAPHICAL, TECHNICAL, OR PRICING ERRORS LISTED ON THE SERVICES.
The Services may contain links to third-party websites (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access linked External Sites, you do so at your own risk.
You agree to defend, indemnify, and hold us and our officers, directors, employees, successors, licensees, and assigns harmless from and against any claims, actions, or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from your breach of this Agreement or your access to, use, or misuse of the Content or the Services. We shall provide notice to you of any such claim, suit, or proceeding and shall assist you, at your expense, in defending any such claim, suit, or proceeding. We reserve the right to assume the exclusive defense and control of any matter that is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.
The Services are based in the United States. We make no claims concerning whether the Content may be downloaded, viewed, or be appropriate for use outside of the United States. If you access the Services or the Content from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
We reserve the right, in our sole discretion, to restrict, suspend, or terminate this Agreement and your access to all or any part of the Services, at any time and for any reason without prior notice or liability. We reserve the right to change, suspend, or discontinue all or any part of the Services at any time without prior notice or liability.
Shoppable respects the intellectual property rights of others and attempts to comply with all relevant laws. We will review all claims of copyright infringement received and remove any Content or user submissions deemed to have been posted or distributed in violation of any such laws. Shoppable responds quickly to any alleged infringement and terminates repeat infringers.
Our designated agent under the Digital Millennium Copyright Act (the “Act”) for the receipt of any Notification of Claimed Infringement which may be given under that Act is as follows:
Attention: LEGAL: DMCA
82 Nassau Street, Suite 360
New York, NY 10038
If you believe that your work has been copied on the Services in a way that constitutes copyright infringement, please provide our agent with notice in accordance with the requirements of the Act, including (i) a description of the copyrighted work that has been infringed and the specific location on the Services where such work is located; (ii) a description of the location of the original or an authorized copy of the copyrighted work; (iii) your address, telephone number and e-mail address; (iv) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; (v) a statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and (vi) an electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
This Agreement is governed by the internal substantive laws of the State of New York, without respect to its conflict of laws provisions. You expressly agree: (i) to submit to the exclusive personal jurisdiction of the state and federal courts sitting in the State of New York; and (ii) that the Services shall be deemed passive that do not give rise to personal jurisdiction over Shoppable, either specific or general, in jurisdictions other than New York. If any provision of this Agreement is found to be invalid by any court having competent jurisdiction or terminated in accordance with the Termination provision above, the invalidity or termination of such provision shall not affect the validity of the following provisions of this Agreement, which shall remain in full force and effect: “Intellectual Property,” “Communications to Shoppable,” “No Warranties/Limitation of Liability,” “Indemnification,” “Termination of the Agreement,” and “Miscellaneous.”
Our failure to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Except as expressly agreed by us and you in writing, this Agreement constitutes the entire Agreement between you and us with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. The section headings are provided merely for convenience and shall not be given any legal import.
This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees.
Copyright 72Lux Inc d/b/a Shoppable All rights reserved.
When you sign up to become a Registered User, shop through our checkout technology, receive our newsletter, or enter any promotion or sweepstakes, you will be required to provide us with personal information about yourself. Such Personal Information includes your name, address, e-mail address, and phone number (collectively, the “Personal Information”). We do not collect any Personal Information from you when you use the Services unless you provide us with the Personal Information voluntarily.
When you order products and services from our retail partners, or us you will be required to provide certain information in addition to the Personal Information noted above in order to process your order. Such information may include a debit card number, credit card number, and similar information (collectively, the “Billing Information).
In order to provide some of the Services including local grocers and retailers, we may, at your consent, collect geolocational information from your Mobile Device, your wireless carrier, your IP address, or certain third-party service providers (“Geolocational Information”). You may decline to allow us to collect such Geolocational Information, in which case Shoppable will not be able to provide certain Services to you. Because your Geolocational Information is subject to abuse by others, please be sure to manage your Mobile Device and privacy preferences on the Services on an ongoing basis.
In addition to the Personal Information and Geolocational Information that you voluntarily provide to us, we may collect additional information (collectively, the “Other Information”). Such Other Information may include:
a. From Your Activity. Information that we automatically collect when you use the Services, such as the type of Platform you’re using, browser type and language, referring and exit pages and URLs, date and time, amount of time spent on particular pages, what sections of the Website you visit, and similar information concerning your use of the Services.
We use the Personal Information, the Billing Information, the Geolocational Information, and the Other Information to provide you the Services, process your orders, solicit your feedback, inform you about our products and services and those of our third-party marketing partners, to administer our rewards and promotional programs, to provide technical and customer support to you, and to improve our Services to you.
We may share Personal Information, the Billing Information, Geolocational Information, and/or Other Information as described below.
• We share your Personal Information, Billing Information, Geolocational Information, and Other Information with third-party retailers and their agents to provide you with the products and services that you have ordered through our Platforms.
• In order to provide the Services and administer certain promotional programs, we may share your Personal Information and Other Information with our third-party promotional and marketing partners, including, without limitation, businesses participating in our various programs.
• We may enter into agreements with Partner Companies in which we may provide the Partner Companies with a URL, Shoppable powered experience, and a customer checkout page co-branded with, or private labeled by, the Partner Companies, and the Partner Companies may distribute and promote the URL to their customers. A Partner Company may want access to Personal Information that we collect through this process or may need to collect Personal Information in order to provide you with your requested shopping services. As a result, if you register, request information, or purchase products on any of our Platforms through a Partner Company, we may provide your Personal Information to the Partner Company. Because we do not control the privacy practices of our Partner Companies, we encourage you to read and understand their privacy policies.
• We may from time to time share Personal Information and/or Other Information with other companies who may provide you information about the products and services they offer. However, to the extent required by law, you will be given the opportunity to opt-out of such sharing.
• In an ongoing effort to better understand our users and our Services, we may analyze the Other Information and the Geolocational Information in aggregate form in order to operate, maintain, manage, and improve the Services. This aggregate information does not identify you personally. We may share this aggregate data with our affiliates, agents, and business partners. We may also disclose aggregated user statistics in order to describe our products and Services to current and prospective business partners and to other third parties for other lawful purposes.
• We may employ other companies and individuals to perform functions on our behalf. Examples may include providing marketing assistance, information technology support, and customer service. These other companies will have access to the Personal Information, the Billing Information, the Geolocational Information, and the Other Information only as necessary to perform their functions and to the extent permitted by law.
• We may share some or all of your Personal Information, Billing Information, Geolocational Information, and Other Information with any of our parent companies, subsidiaries, joint ventures, or other companies under common control with us.
• If we or all or substantially all of our assets are acquired, we expect that the Personal Information, the Billing Information, the Geolocational Information, and the Other Information would be transferred along with the other business assets.
• To the extent permitted by law, we may also disclose Personal Information, the Billing Information, the Geolocational Information, and the Other Information when required by law, court order, or other government or law enforcement authority or regulatory agency, or whenever we believe that disclosing the such Information is necessary or advisable, for example, to protect the rights, property, or safety of Shoppable or others.
We take commercially reasonable steps to protect the Personal Information, the Billing Information, the Geolocational Information, and the Other Information from loss, misuse, and unauthorized access, disclosure, alteration, or destruction. We use industry-standard SSL (“Secure Socket Layer”) encryption technology, a secure server, and other physical and procedural safeguards to protect the security of such information. Please understand, however, that no security system is impenetrable. We cannot guarantee the security of our databases, nor can we guarantee that the information you supply will not be intercepted while being transmitted to and from us over the Internet. In particular, e-mail sent to or from the Platforms may not be secure, and you should therefore take special care in deciding what information you send to us via e-mail.
The Website and the Services are operated in the United States. If you are located outside of the United States, please be aware that any information you provide to us will be transferred to the United States. By using the Services and/or providing us with any information, you consent to this transfer.
The European Union’s General Data Protection Regulation (Regulation (EU) 2016/679) gives certain rights to European residents in relation to their personal information.
Lawful basis for processing. We will only process your personal information when we have a legal basis to do so. When we do process your personal information, we will do so with your consent or because the processing is necessary: for the performance of a contract with you; to comply with our legal obligations; to pursue our legitimate interests; or to establish or defend a legal claim.
Your rights. Under certain circumstances, you may have the right to: (i) obtain a copy of the personal information we have about you; (ii) update or correct the personal information we have about you; (iii) request that we delete your personal information; (iv) object to how we use your personal information; and (v) withdraw your consent for how we use your personal information. We may not be able to accommodate your request in every situation, but if that is the case, we will let you know why. Contact us at privacy@Shoppable.com if you wish to exercise your rights. We may ask you to verify your identify so that we can comply with your request. All correspondence will be done through email unless you specifically request a different method. We may charge you an administrative fee for subsequent requests.
We may not be able to accommodate your request in every situation, but if that is the case, we will let you know why. Contact us at privacy@Shoppable.com if you wish exercise your rights. We may ask you to verify your identify so that we can comply with your request. All correspondence will be done through email unless you specifically request a different method. We may charge you an administrative fee for subsequent requests.
Complaints. If you are in the European Union and you believe that our processing of your personal information infringes applicable law, you may submit a complaint with a supervisory authority.
California Shine the Light Law. Under California Civil Code Section 1798.83, California residents who have an established business relationship with Shoppable may choose to opt out of our sharing your Personal Information with third parties for direct marketing purposes. If you are a California resident and (1) you wish to opt out; or (2) you wish to request certain information regarding our disclosure of your Personal Information to third parties for the direct marketing purposes, please send an e-mail to privacy@Shoppable.com or write to us at:
82 Nassau Street, Suite 360
New York, NY 10038
Do Not Track Signals. Some web browsers may transmit “do not track” signals to websites with which the web browser communicates. The Website responds to do not track signals. The website does not currently recognize or respond to do not track signals.
82 Nassau Street, Suite 360
New York, NY 10038
THESE TERMS OF SERVICE GOVERN YOUR USE OF SHOPPABLE SERVICES.
IF YOU REGISTER FOR A FREE TRIAL OF OUR SERVICES, THESE TERMS OF SERVICE WILL ALSO GOVERN THAT FREE TRIAL.
1. Shoppable® Commerce Suite Terms of Service
If the person entering into these Terms of Service is acting on behalf of an entity, all references to “Company”, "You" and "Your" shall refer to such entity and such person represents that it has the authority to bind such entity to these Terms of Service. For individuals, the Services are available only to those who are at least eighteen (18) years of age and recognized as being able to form legally binding contracts under applicable law.
By using or accessing Our Services, You are agreeing to these Terms of Service and that any previous agreements between You and Us with respect to the Services are superseded by these Terms of Service, except as set forth in Section 10.9 below. We may change or modify these Terms of Service at any time at Our discretion. Any such changes or modifications shall be effective immediately upon the earlier of (i) Our email notification to You advising You of such changes or modifications, (ii) Your electronic acceptance of the revised Terms of Service after such changes or modifications have been made as indicated by the "Last Revised" date at the top of this page, or (iii) Your continued use of the Services after We post the amended Terms of Service to this website.
Shoppable has developed and owns a platform that permits businesses to integrate e-commerce capabilities into websites, mobile applications, and advertisements; and Company wishes to use Shoppable’s platform to integrate e-commerce capabilities into its websites, mobile applications and/or advertisements, and Shoppable is willing to permit such use, subject to the terms and conditions set forth herein; and Shoppable and Company, in consideration of the foregoing and the mutual promises and covenants contained herein, agree as follows:
1. Definitions. For purposes of these Terms of Service, the following terms shall have the meanings set forth below. Additional terms may be defined throughout these Terms of Service.
“License Location” means either a website owned and operated by a Company affiliate, a Shoppable® Instant Shop, or a Shoppable® Ad Experience page that is identified on an Online Order Form.
“Merchant” means a retailer with whom Shoppable has an agreement that permits Shoppable to include the retailer’s Products in the Product Catalog.
“Online Order Form” means the forms completed by the Company during the registration process and incorporated into these Terms of Service detailing (i) a License Location that is permitted to access and use the Shoppable® Commerce Suite, (ii) a description of product modules and components, and the set-up and/or support services to be provided by Shoppable, if any, (iii) the applicable fees payable by Company to Shoppable, and (iv) the license date and length of term for the applicable license. Additional Online Order Forms may be added and governed under these Terms of Service upon the mutual written agreement of the parties.
“Product” means a Merchant product included in the Product Catalog.
“Product Catalog” means Shoppable’s catalog of Products (and related images, descriptions, pricing and other information as provided by Merchants) that can be made available for sale to Users through the Shoppable® Commerce Suite.
“Shoppable® Commerce Suite” means the web-based technology platform containing customers’ account information, reports, and Shoppable’s ecommerce products and technologies developed and owned by Shoppable.
“Shoppable Marks” means the following trademarks and/or logos owned by Shoppable: 72Lux, Shoppable.
“User” means any person who accesses the Shoppable® Commerce Suite through a License Location.
“User Data” means any and all data and information concerning a User collected by the Shoppable® Commerce Suite, including, without limitation, all identifying information provided by the User (e.g., name, email address, mail address, credit card number and the like) and all information regarding Product(s) purchased by the User.
2. Use of the Shoppable® Commerce Suite
2.2 Restrictions on Use. Company shall not (i) disassemble, decompile, reverse engineer, or otherwise attempt to discover the source code of, the Shoppable® Commerce Suite or its underlying technology, (ii) provide access to the Shoppable® Commerce Suite from any website other than a License Location, (iii) incorporate portions of the Product Catalog on any website other than a License Location, or (iv) use the Shoppable® Commerce Suite or Product Catalog in any manner not expressly authorized by these Terms of Service. Company is aware that Merchants’ requirements are subject to change from time to time and Company agrees it will abide by all Merchant requirements for the Merchants they use on Company’s License Location(s). If Company is unable to or does not want to abide by a Merchant requirement, they shall discontinue the promotion of the applicable Merchant’s products. Shoppable reserves the right to remove or block Merchants or Products from License Location at its sole discretion.
2.3 Branding and Publicity.
(a) Company shall cause each License Location to identify the Shoppable® Commerce Suite on the checkout page with Shoppable’s “Powered by Shoppable” logo. Shoppable hereby grants Company a non-exclusive, non-transferable, revocable license, during the Term, to permit its License Locations to use the Shoppable Marks solely in connection with such identification. The permitted use of the Shoppable Marks hereunder, and all goodwill arising therefrom, shall inure solely to the benefit of Shoppable.
(b) Shoppable may use Company’s name or logo on Shoppable’s website, marketing and sales materials, and in press releases to list them as a current customer during the term of the applicable Online Order Form.
(c). Company agrees it will not bid on pay-per-click or pay-per-impression terms using 'Shoppable' without prior written or email approval from Shoppable.
2.4 Exclusivity. During the Term, Company shall not use any product or service that is substantially similar to the Shoppable® Commerce Suite on any License Location.
3. Fees. Company shall pay Shoppable all fees set forth in the applicable Online Order Forms via credit card payment at the time of sign-up. All fees shall be paid immediately. Shoppable reserves the right to temporarily pause service and access to Shoppable® Commerce Suite if the Company's payment is over seven (7) days past due. Shoppable shall be entitled to all costs of collection (including reasonable attorneys’ fees) incurred in connection with pursuing and collecting amounts owed hereunder. If Company has a balance due, Shoppable may credit Company's balance with any commissions due to Company as necessary to bring the account current.
4. Term and Termination
4.1 Term. Online Order Forms under these Terms of Service shall become effective as of the date set forth in such Online Order Form (the “Effective Date”) and shall continue for the period of time set forth in such Online Order Form (the “Term”).
4.2 Termination. Online Order forms under these Terms of Service may be terminated at any time by either party upon written notice to the other party if the other party is in material breach of an Online Order Form under these Terms of Service and fails to cure such breach within thirty (30) days after it receives written notice thereof from such party. Shoppable may terminate Online Order Forms and these Terms of Service at any time upon written notice to Company if Company challenges the validity or enforceability of the Shoppable Patents or affirmatively or intentionally assists any other party to challenge the validity or enforceability of the Shoppable Patents.
4.3 Effect of Termination. Upon any expiration or termination of an Online Order Form under these Terms of Service for any reason, Company shall require all License Locations to immediately cease using the Shoppable® Commerce Suite and Shoppable Marks and remove all Product references from all portions of the License Locations. The following sections shall survive the expiration or termination of these Terms of Service: Sections 1, 5, 6, 7.4, 8, 9, 10 and this Section 4.3.
5. Intellectual Property
5.1 Shoppable Property. Except for the limited licenses specifically granted in Section 2 above, Shoppable retains all right, title and interest in and to the Shoppable® Commerce Suite, the Product Catalog, the Shoppable Marks, and the Shoppable Patents, together with all intellectual property rights embodied in the foregoing. As between the parties, Company shall own all User Data. Company grants Shoppable a license, for the term of these Terms of Service and the term thereafter until the User Data is deleted in accordance with Shoppable’s data retention policies, to use the User Data as necessary for the fulfillment of Shoppable’s obligations under these Terms of Service, as may be required by applicable law, to comply with its legal obligations or to defend against legal claims.
Company hereby grants Shoppable the limited right to use the User Data to contact platform Users to establish a direct relationship and account with Shoppable. In the event a User creates an account with Shoppable, regardless of what initiated that account creation, Company hereby grants to Shoppable the rights to use and retain the transactional data records for that User associated with Company’s Shoppable transactions. The previous statement is subject to Shoppable seeking User’s consent to use transaction data from the Company’s account, such consent will be explicitly stated in Shoppable’s account creation terms.
Notwithstanding the foregoing, Company authorizes Shoppable to: (i) use identifiable information of the Company’s representatives in connection with (a) the sourcing and management of the contractual relationship between Company and Shoppable, (b) marketing of its products to the Company; (c) as may be required by applicable law, or (d) to defend against legal claims; and (ii) de-identify User Data such that any individual is not identifiable from the information available to Shoppable using reasonable means available as of the effective date of these Terms of Service and use the de-identified information for any purpose it sees fit.
5.2 Company Property. As between the parties, and subject to Shoppable’s rights as set forth in Section 5.1 above, Company retains all right, title and interest in and to its websites and mobile applications, all underlying code and technology, and all content contained therein, together with all intellectual property rights embodied in any of the foregoing.
5.3 Pre‐Existing Intellectual Property. Company will not use any code, technology, or other works that constitute pre-existing intellectual property owned by a third party (“Third Party IP”) unless Company has the right to use it for Shoppable’s benefit. If Company is not the owner of such Third Party IP, Company will obtain from the owner of such Pre-Existing Intellectual Property any rights as are necessary to enable Company to comply with these Terms of Service. Company will not incorporate any materials from a third party into the License Locations and/or User Data unless (i) Company clearly identifies the specific elements that contain third party materials and (ii) Company identifies the corresponding third-party licenses and any restrictions on use thereof. Company represents, warrants and covenants that Company has complied and shall continue to comply with all third-party licenses (including all open source licenses) associated with any components that will be included in the License Locations and/or User Data, or any other materials supplied by Company. Company shall indemnify Shoppable against any losses and liability incurred by Shoppable due to failure of Company to meet any of the requirements with respect to Third-Party IP. Company grants Shoppable a non‐exclusive, royalty‐free, worldwide, perpetual and irrevocable license in Company and third party Pre‐Existing Intellectual Property, to the extent such Pre‐Existing Intellectual Property is incorporated into the License Locations and/or the User Data, with the license including the right to make, have made, sell, use, reproduce, modify, adapt, display, distribute, make other versions of and disclose the property and to sublicense others to do these things.
6. Confidentiality. The parties acknowledge and agree that each party has and shall have access to certain Confidential Information of the other party. “Confidential Information” means all information provided by a party (the “Discloser”) to the other party (the “Recipient”) hereunder that is (i) proprietary and/or non-public information related to the past, present and future business activities of the Discloser, its subsidiaries, and its affiliates; (ii) information relating to the Discloser’s business plans, pricing, financial information, methods, processes, code, data, information technology, network designs, passwords, and sign-on codes; (iii) the terms of these Terms of Service; and (iv) any other information that is designated as confidential by the Discloser or that should be reasonably understood to be confidential. Without limiting the foregoing, Shoppable’s Confidential Information includes the Shoppable® Commerce Suite, the Product Catalog and all portions thereof, and the terms of these Terms of Service. The User Data is considered Confidential Information of both parties. Recipient shall not use the Discloser’s Confidential Information except as permitted under these Terms of Service, and shall not disclose, distribute, or disseminate the Confidential Information to any third party. Confidential Information does not include (a) information that has become publicly known through no breach by Recipient of these confidentiality obligations; (b) information that is independently and lawfully developed or obtained without access to Confidential Information, as evidenced in writing; or (c) information required to be disclosed by law. It is understood and agreed by the parties that money damages alone may not constitute a sufficient remedy for any breach by Recipient of its confidentiality obligations hereunder and that the Discloser shall be entitled to seek specific performance and injunctive relief, without the necessity of posting a bond, cash or otherwise, as remedies for any such breach. Such remedies shall not be deemed to be the exclusive remedies available to Recipient for a breach of this section by the Discloser, but shall be in addition to other remedies available to Discloser at law or in equity.
7. Warranties and Warranty Disclaimers.
7.1 Mutual Warranty. Each party warrants to the other party that it has all authority and rights necessary in order to enter into these Terms of Service and perform its obligations hereunder.
7.2 Shoppable Warranty. Shoppable represents and warrants that the Shoppable® Commerce Suite shall perform in accordance with the service levels set forth in Exhibit A.
7.3 Company Warranty. Company represents and warrants that the operation of the License Locations and use of the User Data as permitted herein shall at all times be compliant with all applicable laws, rules and regulations.
7.4 DISCLAIMERS. EXCEPT FOR THE EXPRESS WARRANTIES STATED IN THIS SECTION 7, EACH PARTY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER IMPLIED BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND ANY REPRESENTATIONS OR WARRANTIES ARISING FROM A COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SHOPPABLE COMMERCE SUITE AND PRODUCT CATALOG ARE PROVIDED TO COMPANY ON AN “AS IS” AND “AS AVAILABLE” BASIS. MERCHANTS AND THE PRODUCT CATALOG, INCLUDING MERCHANT COMMISSIONS, FLUCTUATE AND DETAILS ARE DETERMINED BY THE MERCHANTS IN THEIR SOLE DISCRETION.
COMPANY ACKNOWLEDGES AND AGREES THAT SHOPPABLE MERELY PROVIDES A PLATFORM FOR MERCHANTS AND USERS TO COMPLETE TRANSACTIONS INVOLVING THE PRODUCTS VIA THE LICENSE LOCATIONS, AND THAT SHOPPABLE IS NOT INVOLVED IN THE ACTUAL TRANSACTION BETWEEN THE MERCHANTS AND THE USERS AND IS NOT THE AGENT OF AND HAS NO AUTHORITY FOR EITHER THE MERCHANT OR THE USER FOR ANY PURPOSE WHATSOEVER. SHOPPABLE DOES NOT MAKE ANY WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, AND SHALL NOT ASSUME ANY LIABILITY WITH RESPECT TO, ANY MERCHANT, PRODUCT OR TRANSACTION MADE USING THE SHOPPABLE COMMERCE SUITE.
8.1 Indemnity by Shoppable. Shoppable shall indemnify, defend and hold Company, its affiliates and its and their officers, directors, employees and agents harmless from and against any and all losses, damages and liabilities (including reasonable attorneys’ fees) (collectively, “Losses”) in connection with any third-party claim alleging that the Shoppable® Commerce Suite or any portion of the Product Catalog infringes or misappropriates any third party intellectual property right.
8.2 Indemnity by Company. Company shall indemnify, defend and hold Shoppable, its affiliates and its and their officers, directors, employees and agents harmless from and against any and all Losses in connection with any third party claim arising out of (i) any License Location, or (ii) Company’s or any of its affiliates’ use of the User Data, except to the extent, in either case, such claim is covered by Shoppable’s indemnity obligations as set forth in Section 8.1 above.
8.3 Procedure. The party seeking indemnification under this Section (the “Indemnified Party”) shall promptly notify the other party (the “Indemnifying Party”) in writing of any claim, suit or proceeding for which the Indemnifying Party may have obligations under this Section; provided, however, that any failure of the Indemnified Party to provide such notice shall excuse the Indemnifying Party of its obligations hereunder only to the extent it is materially prejudiced thereby. The Indemnified Party shall reasonably cooperate with Indemnifying Party with regard to the defense of any claim, proceeding, suit or threatened suit. The Indemnifying Party shall have full control of any such claim, proceeding or suit and the authority to settle or otherwise dispose of any suit or threatened suit. In no event, however, may the Indemnifying Party agree to any settlement of any claim, suit or proceeding for which it has agreed to provide indemnification under these Terms of Service if such settlement would impose any liability or obligation upon the Indemnified Party, without the Indemnified Party’s prior, written consent.
9. Limitation of Liability. EXCEPT IN THE EVENT OF A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, ARISING OUT OF OR RELATING TO THESE TERMS OF SERVICE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL SHOPPABLE’S MAXIMUM, AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THESE TERMS OF SERVICE, REGARDLESS OF CAUSE OR THEORY OF RECOVERY, EXCEED THE TOTAL AMOUNT PAID BY COMPANY TO SHOPPABLE UNDER THESE TERMS OF SERVICE DURING THE TWELVE (12) MONTHS PRECEDING THE DATE ON WHICH SUCH CLAIM AROSE.
10.1 Choice of Law; Venue. These Terms of Service shall be governed by and construed in accordance with the laws of the State of New York. Any lawsuit arising out of or related to these Terms of Service must be brought in the state or federal courts located in the State of New York. Each party hereby consents to the exclusive personal jurisdiction of such courts for all purposes.
10.2 Force Majeure. If the performance of these Terms of Service or any obligation hereunder, except the making of payments hereunder, is prevented, restricted or interfered with by reason of fire, flood, earthquake, explosion or other casualty or accident; strikes or labor disputes; inability to procure parts, supplies or power, war or other violence; any order, proclamation, regulation, ordinance, demand or requirement of any governmental agency; or any other act or condition whatsoever beyond the reasonable control of the affected party, the party so affected, upon giving prompt notice to the other party, shall be excused from such performance to the extent of such prevention, restriction or interference; provided, however, that the party so affected shall take all reasonable steps to avoid or remove such causes of nonperformance and shall resume performance hereunder with dispatch whenever such causes are removed.
10.3 Independent Contractors. These Terms of Service do not make either party the employee, agent or legal representative of the other for any purpose whatsoever. Neither party is granted any right or authority to assume or to create any obligation or responsibility, express or implied, on behalf of or in the name of the other party. Each party is acting as an independent contractor.
10.4 Assignment. Company shall not assign or otherwise transfer its rights and obligations under these Terms of Service except with the prior written consent of Shoppable, which shall not be unreasonably withheld. Any prohibited assignment shall be null and void. Notwithstanding the foregoing, either party may assign existing Online Order Forms under these Terms of Service in connection with the sale of all or substantially all of the assigning party’s assets.
10.5 Notice. Notices permitted or required to be given hereunder shall be deemed sufficient if given via email or by registered or certified mail, postage prepaid, return receipt requested, by private courier service, or by email addressed to the respective addresses of the parties set forth above or at such other addresses as the respective parties may designate by like notice from time to time. Notices so given shall be effective upon (a) receipt by the party to which notice is given, or (b) on the fifth (5th) day following mailing, whichever occurs first, provided that if notice is sent via email, it shall be effective on the 1st day following sending.
10.6 Unenforceable Provisions. If any provision of these Terms of Service is found unenforceable under any of the laws or regulations applicable thereto, such provision terms shall be deemed stricken from these Terms of Service, but such invalidity or unenforceability shall not invalidate any of the other provisions of these Terms of Service.
10.7 Headings. The heading and captions used in these Terms of Service are for the sole purpose of convenience and reference and in no way define, limit or prescribe the scope or intent of these Terms of Service or any part thereof.
10.8 Integration. These Terms of Service constitute the complete and exclusive statement of the agreement of the parties with respect to the subject matter hereof and supersedes all proposals and agreements, oral or written, and all negotiations, conversations, discussions heretofore between the parties. These Terms of Service may not be modified, amended, rescinded, canceled or waived, in whole or in part, except by written amendment signed by an authorized representative of each party.
10.9 Enterprise License. These Terms of Service are substituted with the terms contained in Shoppable’s enterprise license agreement or similar agreement for those parties that have executed such an agreement.
Technology Service Levels
1. At the core, Shoppable relies on the SLA of its hosting providers, Amazon Web Services and Google Cloud.
The Amazon Web Services and Google Cloud SLAs can be viewed on their websites.
2. At the application level, Shoppable provides the following assurances:
Except for scheduled maintenance, there should be no more than four (4) hours of downtime monthly. If Shoppable does not resolve an incident causing unavailability of the services within four (4) hours and there is not an outage at Shoppable’s service provider, Shoppable will provide Company with a prorated credit of the monthly license fee for any additional outage time greater than four hours per month.
Software application services operated by Shoppable will have at least 99% uptime, as measured monthly, excluding scheduled maintenance.
In addition, the application service operated by Shoppable will not experience more than two outages (unscheduled maintenance) of more than two hours in any month. Scheduled maintenance will be no greater than four hours bi-weekly and will happen at a regularly scheduled time during off-peak periods. When necessary, scheduled maintenance will occur every two weeks between 2AM and 6AM Eastern Time or 11PM and 3AM Pacific Time.
Shoppable will provide web-based access to the Shoppable® Commerce Suite. Company will select products from the Product Catalog that can be displayed for sale on the Company Website, in accordance with these Terms of Service.
Company may elect to include one or multiple Merchants within the Product Catalog.
Company will design, build and maintain the pages where the products will be located if they are using Shoppable DTC Lite. Shoppable will host the page and template if Company is using Instant Shop or Shoppable® Ad Experience.
Company will integrate as described in the Shoppable® Commerce Suite documentation.
Shoppable will power the multi-retailer checkout component that is served from the Shoppable® Commerce Suite. Checkout via Checkout API must be pre-approved in writing by Shoppable and specified on the Online Order Form and is only available at the Enterprise level. If Company uses the Shoppable Checkout API, Company agrees to be PCI DSS compliant and compliant with all privacy laws and regulations. Company shall furnish attestation of compliance upon request and in advance of launching Shoppable technology on their License Location.
Order fulfillment and customer service will be provided to the User by the Merchant upon receiving the User’s order via the Shoppable® Commerce Suite.
Shoppable will operate, host and monitor the Shoppable® Commerce Suite, in accordance with the terms of Exhibit A.