Welcome to Shopflick. Shopflick, Inc. and its subsidiaries (collectively, “Shopflick”) provide their services and offerings and any features, content or applications offered by Shopflick in connection therewith (the "Shopflick Service," as further described below) to you subject to the following User Agreement. In addition, when using the Shopflick Service, you shall be subject to any guidelines, policies and operating rules applicable to such service, which may be posted on the Shopflick website from time to time. All such guidelines and rules are incorporated by reference into this User Agreement.
Acceptance of Terms
PLEASE READ This Agreement CAREFULLY. By accessing or using the Shopflick Service, you, either an individual or a single entity ("you" or "your" as applicable), agree to be bound by the notices, terms and conditions in this User Agreement If you register on behalf of a business, you represent to Shopflick that you have the authority to bind that business and your acceptance of this Agreement will be treated as acceptance by that business. In that event, "you" and "your" will refer to that business in this Agreement. If you do not agree to any of these terms and conditions, you may not use the Shopflick Service.
The Shopflick Service is only available to users who are over the age of 18, emancipated minors, or possess legal parental or guardian consent, and are fully able and competent to enter into and abide by the terms, conditions, obligations, representations and warranties set forth in this Agreement. If you are under 13 years of age, you may not register for or use the Shopflick Service.
The Shopflick Service
The Shopflick Service is comprised of:
- the Shopflick website, currently located at www.Shopflick.com (and/or any successor or additional website(s) owned or operated by or for Shopflick);
- the Shopflick syndication network (which includes third party websites);
- the servers operated by or on behalf of Shopflick; and/or
- any other technology and/or services that Shopflick provides its users.
The Shopflick Service enables you to make content available to other users of the Shopflick Service and to access content made available by other users of the Shopflick Service. All comments and other communications posted or published by you or other users on the Shopflick Service, including in any bulletin board, chat, discussion group, feedback area, news group or email, are referred to as "User Material." "Video Material," for purposes of this Agreement, is the video you upload to the Shopflick Service. "Publisher Material," for purposes of this Agreement, is any other material you provide and includes without limitation music, animation, text, software, scripts, graphics, images, audio, information and interactive features (collectively with the User Material and the Video Material, the "Material"). You are solely responsible for any Material that you upload and publish to the Shopflick Service, including ensuring that any such Material complies with this Agreement. The terms and conditions regarding the uploading of Video Material and Publisher Material are covered in the Publisher Terms.
You retain all of your rights in your Material. You shall be solely responsible for your own Material and the consequences of posting or publishing it on the Shopflick Service. In connection, with respect to Material that you make available on the Shopflick Service, you expressly represent and warrant that you own or have the necessary licenses, rights, consents, and permissions to use and authorize Shopflick to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all Material to enable inclusion and use of the Material as part of the Shopflick Service and in the manner contemplated by this Agreement. By submitting, posting, uploading, emailing or otherwise providing Material to the Shopflick Service, you hereby grant (or warrant that the owner of such rights has expressly granted) Shopflick a worldwide, non-exclusive, royalty-free, perpetual, irrevocable, sublicensable and transferable license to (i) use, reproduce, stream, modify, distribute, prepare derivative works of, display, publish, perform and transmit the Material in connection with the Shopflick Service and Shopflick’s (and its successors’) business, including without limitation for promoting and redistributing part or all of the Shopflick Service (and derivative works thereof) in any media formats and through any media channels, and (ii) use, reproduce and display, and to permit others to use, reproduce and display any trademarks, service marks, slogans, logos or similar proprietary rights contained or embodied in the Material, in connection with the Shopflick Services. You warrant that all moral rights to the Material you submit have been waived. You also hereby grant each user of the Shopflick Service a non-exclusive license to access your Material through the Shopflick Service, and to use, reproduce, distribute, prepare derivative works of, display and perform such Material as permitted through the functionality of the Shopflick Service and under this Agreement.
Shopfick is a managed marketplace for which Shopflick reserves the right at its sole discretion to approve, edit or remove accounts that are inconsistent with Shopflick's brand and merchandising policies, which are determined solely by Shopflick and which may change from time to time. Accordingly, Shopflick does not guarantee that any Material will be made available on the Shopflick Service, whether continuously or at all. Shopflick shall have no obligation to monitor any Material. However, Shopflick and its agents reserve the right to monitor any Material from time to time for any lawful purpose. Shopflick may, without notice to you and for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Material or if Shopflick is concerned that you may have violated the Agreement) or for no reason at all, remove or block any Material or other content from the Shopflick Service, including disabling access to any such Material that you have downloaded through the Shopflick Service. The purpose of Shopflick videos and copy is to encourage users to purchase products using the Shopflick platform; accordingly, users may not refer to non-Shopflick websites (including URLs), phone numbers or addresses in their video and copy; Shopflick reserves the right to remove or edit material that violates this policy. Shopflick requires sellers to upload a store video within 30 days of inception; users whose stores do not comply with this requirement may be removed.
Registration is not required to view most Material or content provided as part of the Shopflick Service. However, you are required to register if you wish to post Material or view certain Material from other users. If you wish to upload Video Material or Publisher Material you will be subject to our Publisher Terms.
To register, you will have to create an account. As a condition to using such components of the Shopflick Service, you will be asked to register with Shopflick and select a password and screen name ("Shopflick Username"). You shall provide Shopflick with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of this Agreement, which may result in immediate termination of your Shopflick account. You may not:
- select or use as a Shopflick Username a name of another person with the intent to impersonate that person;
- use as a Shopflick Username a name subject to any rights of a person other than you without appropriate authorization; or
- use as a Shopflick Username a name that is otherwise offensive, vulgar or obscene.
Fees and Services
Joining and setting up a shop on the Shopflick Service is free. Shopflick charges fees for listing items for sale through Shopflick. When you list an item you have an opportunity to review and accept the fees that you will be charged. Shopflick's Fees and Credits Policy is available at http://www.shopflick.com/learningcenter/sellingFAQ and is incorporated into this Agreement by reference. Shopflick's Fees and Credits Policy and the fees for Shopflick's services are subject to change. Changes to the Fees and Credits Policy and the fees for our services are effective after Shopflick provides you with fourteen (14) days' notice of the changes by posting the changes on the Shopflick Service. However, Shopflick may choose to temporarily change Shopflick's Fees and Credits Policy and the fees for Shopflick's services for promotional events (for example, free listing days) and such changes are effective when Shopflick posts the temporary promotional event on the Shopflick Service, and for the time period specified in the posting. Shopflick may, at Shopflick's sole discretion, change some or all of Shopflick's services at any time. In the event Shopflick introduces a new service, the fees for that service are effective at the launch of the service. Unless otherwise stated, all fees are quoted in U.S. Dollars (USD). You are responsible for paying all fees associated with using the Shopflick Service and all applicable taxes.
Shopflick is not a retailer. Although Shopflick is commonly referred to as an online marketplace, it is important for you to realize that Shopflick is not a traditional "retailer." Instead, Shopflick acts as a venue to allow individuals to offer, sell, and buy certain goods, in compliance with the policies of Shopflick ("Goods"), within a fixed price format. Shopflick is not involved in the actual transaction between buyers and sellers. As a result, Shopflick has no control over the quality, safety or legality of the items advertised, the truth or accuracy of the listings, the ability of sellers to sell items or the ability of buyers to pay for items. Shopflick cannot guarantee that a buyer or seller will actually complete a transaction. Consequently, Shopflick does not transfer legal ownership of items from the seller to the buyer and both the title and the risk of loss for any Goods pass directly from the seller to the buyer.
Shopflick uses many techniques to verify the accuracy of the information Shopflick's users provide to Shopflick when they register on the Shopflick Service. However, because user verification on the Internet is difficult, Shopflick cannot and does not confirm each user's purported identity. Thus, Shopflick has established a user-initiated feedback system to help you evaluate other users with whom you are dealing. Shopflick also encourages you to communicate directly with potential transaction partners through the tools available on the Shopflick Service. You may also wish to consider using a third party escrow service or services that provide additional user verification.
Because Shopflick is a venue, in the event that you have a dispute with one or more users, you release Shopflick (and Shopflick's officers, directors, agents, subsidiaries, joint ventures and employees) from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
Shopflick does not control the information provided by other users that is made available through our system. You may find other users' information to be offensive, harmful, inaccurate, or deceptive. Please use caution, common sense, and practice safe trading when using Shopflick. Please note that there are also risks of dealing with underage persons or people acting under false pretense. Additionally, there may also be risks dealing with international trade and foreign nationals. By using the Shopflick Service, you agree to accept such risks and that Shopflick (and our officers, directors, agents, subsidiaries, joint ventures and employees) is not responsible for any and all acts or omissions of users on Shopflick.
A buyer is obligated to complete the purchase of an item on Shopflick in any shop within three (3) days of making a commitment to purchase. A buyer is obligated to immediately pay in full if using PayPal by clicking the "Buy Now" button during checkout. A buyer must submit payment in full within three (3) days of the commitment to purchase if paying by personal check, money order or "other" payment method. A buyer who pays by mail with a money order or personal check must send the seller an email or (insert Shopflick proprietary messaging tool) to notify the seller that the payment is in the mail within three (3) days of the transaction.
A seller must abide by all of Shopflick's policies and the seller's own individual shop policies and sell and ship only the item as described. Likewise, a seller must abide by the seller's Individual Policies (as defined below), to the extent that they are applicable.
Shopflick will bill you via credit card. At the end of each month, we will email an invoice detailing all Seller Fees accrued for that month. Your invoice will also be available through your My Account Dashboard at any time. At the 15th day of the following month, Shopflick will charge your credit card the invoice amount. To insure that the amount charged is accurate, Shopflick will email an invoice to you on the last day of each month listing all of your transactions and the corresponding charges. If there are any items on the invoice which you consider to be inaccurate, please send us an email within fifteen (15) days of the date the invoice was sent to billing@Shopflick.com, so that we can resolve the issue. If you are unable to respond before any disputed charge has been posted to your credit card, please do not challenge the amount with the credit card company, but instead notify Shopflick and we will work with you to resolve the issue as quickly as possible.
Listing and Selling
You, as a seller, must own or otherwise be legally able to sell and transfer ownership of any item(s) you list for sale on the Shopflick Service. You must describe your item(s) and all terms of sale on the listing page of the Shopflick Service. Your listings may only include text descriptions, graphics, pictures and other content relevant to the sale of that item. All listed items must be listed in an appropriate category. Each listing must accurately and completely describe the item/items for sale in that listing. If the "in stock" quantity is more than one, all items in that listing must be identical. Each unique item must have its own listing.
All sellers are urged to outline individual shop policies (in their Shop Announcement or Profile) for their Shopflick shop(s) ("Individual Policies"). These Individual Policies include, for example shipping, return, payment and selling policies. Sellers must create these Individual Policies in good faith and must abide by such policies. Shopflick reserves the right to request that a seller modify an Individual Policy.
All sales are binding. If you, as a seller, receive a purchase request (order) and payment you are obligated to complete the transaction with the buyer in a prompt manner, unless there is an exceptional circumstance, such as: (a) the buyer fails to meet the terms of your listing (such as payment method), or (b) you cannot authenticate the buyer's identity.
Without limiting any other remedies, Shopflick, without notice, may suspend or terminate your account if Shopflick suspects, in its sole discretion, that you have violated any of Shopflick's applicable policies, including those set out in this Agreement or any community guidelines posted on the Shopflick Service, or you have engaged in an improper or fraudulent activity in connection with Shopflick.
The price stated in each Shopflick item description must be an accurate representation of the sale. "Manipulation" refers to activities whereby the price no longer accurately represents the monetary value of the transaction. For example, manipulative activities include, but are not limited to, intentionally stating one price in the item description but charging a higher price to the buyer, altering the item's price prior to a sale for the purpose of avoiding Shopflick transaction fees, and hacking into another user’s account and altering prices. Neither buyer nor seller may manipulate the price of any item for any reason. Further, neither buyer nor seller may interfere with any other member's listings or transactions.
Representations and Warranties
You represent and warrant, (and you can and will demonstrate to Shopflick’s full satisfaction upon its request) that:
- You own or have the necessary licenses, rights, consents and permissions to use and authorize Shopflick to use each and every image and sound contained or embodied in the Material and to enable use of the Material in the manner contemplated by this Agreement, and (ii) you have the written consent, release, and/or permission to use the name or likeness of each and every identifiable individual person and to include and use such individual’s name or likeness in the Material in the manner contemplated by this Agreement. You represent and warrant that the use, sale or other exploitation of the Material on or through the Shopflick website or otherwise does not violate the privacy rights, publicity rights, intellectual property rights, contract rights, or any other rights of any person or entity. You have full authority to act on behalf of any and all owners of any right, title or interest in and to any Material.
- You have full authority to enter into, and own or control all rights necessary, including without limitation any third-party consents, licenses and permissions, to fully perform your obligations under this Agreement. You will perform your obligations hereunder in compliance with any applicable laws, rules and regulations of any governmental authority having jurisdiction over such performance. You will not post or upload any Material or offer any Goods for sale if such transaction could cause Shopflick to (i) violate any applicable law, rule or regulation or (ii) violate or infringe the rights of any third party.
Prohibited, Questionable and Infringing Items
Any Material posted (or any items listed) on the Shopflick Service shall not:
- be deceptive, false, inaccurate or misleading;
- be fraudulent or involve the sale of illegal, counterfeit, stolen items or items which violate the policies of Shopflick;
- infringe upon any third party's copyright, patent, trademark, trade secret or other proprietary or intellectual property rights or rights of publicity or privacy;
- violate any law, statute, ordinance or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising). Shopflick also does not permit the listing of items that have been identified by the U.S. Consumer Products Safety Commission (CPSC) as hazardous to consumers and therefore subject to a recall;
- be abusive, defamatory, libelous, threatening, harassing, invasive of another’s privacy, tortious, offensive or profane;
- be obscene or contain child pornography, and all such Material shall also be subject to the Mature Content rules as outlined in the policies of Shopflick, available at www.shopflick.com/privacy-policy/community;
- contain any viruses, Trojan horses, worms, time bombs, cancelbots, easter eggs or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information;
- create liability for us or cause us to lose (in whole or in part) the services of our ISPs or other suppliers; or
- link directly or indirectly to or include descriptions of goods or services that:
- are prohibited under this Agreement, any other policies or any community guidelines posted on the Shopflick Service;
- are identical to other items you have for sale but are priced lower;
- are concurrently listed for sale on a web site other than those affiliated with the Shopflick Service (this does not prevent linking to or advertising an Shopflick item from another web site); or
- you do not have a right to link to or include.
Furthermore, you may not list any item on the Shopflick Service (or consummate any transaction that was initiated using our service) that violates this Agreement or would, upon any degree of involvement by Shopflick including but not limited to you paying to us the listing fee or any other fee, could cause us to violate any applicable law.
You may not take any actions that may undermine the integrity of the feedback system. Shopflick may, without prior notice and at its sole discretion, limit the number of purchases and listings which you may place on the Shopflick Service based upon the level of your feedback. If you earn a low percentage feedback rating, your account will automatically be flagged for staff review, at which time your membership may be fully or partially suspended, and you may be unable to list or buy.
You acknowledge that your feedback consists of comments left by other users and a composite feedback number compiled by Shopflick. Further, you acknowledge that the composite number, without the feedback comments, does not convey your full user reputation. Because feedback ratings are not designed for any purpose other than for facilitating transactions between Shopflick users, you agree that you shall not use, market or export your Shopflick feedback rating in any venue other than those affiliated with the Shopflick Service.
Shopflick does not provide you with the technical ability to import feedback from other (non-Shopflick operated) websites to the Shopflick Service because a composite number, without the corresponding feedback does not reflect your true online reputation within our community.
Content on Shopflick
Content on the Shopflick Service is meant for all audiences. You understand that you will be exposed to Material from a variety of publishers and that Shopflick is not responsible for the accuracy, usefulness, safety, or compliance with the intellectual property rights of owners of such Material. You further understand and acknowledge that you may be exposed to Material that is inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Shopflick with respect thereto.
Shopflick grants you permission to use the Shopflick Service subject to all of the terms and conditions set forth in this Agreement.
As a condition of use, you agree not to use the Shopflick Service for any purpose that is unlawful. You agree to abide by all applicable local, state, national and international laws and regulations, including, without limitation, all intellectual property laws (such as U.S. copyright laws). Any unauthorized use of the Shopflick Service is expressly prohibited.
By way of example, and not as a limitation, you agree not to take any action or upload, download, post, submit or otherwise distribute or facilitate distribution of any Material using any communications service or other service available on or through the Shopflick Service that:
- infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity;
- is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of anothers privacy, tortious, offensive, profane, pornographic or obscene, or promotes hate or incites violence; or
- misrepresents the source or identity of any content;
- constitutes unauthorized or unsolicited advertising, junk or bulk e-mail ("spamming") or a chain letter, a pyramid scheme or any other similar solicitation;
- contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data or other information of Shopflick or any third party;
- impersonates, or falsely indicates an affiliation with, any person or entity, including, without limitation, any employee or representative of Shopflick; or
- constitutes an offer, for sale or otherwise, of any firearms, explosives, weapons, tobacco products, controlled substances, pharmaceuticals, counterfeit or stolen articles, registered or unregistered securities or any items that would cause Shopflick to violate any applicable law or regulation.
In addition to this Agreement, your use of the Video Material may be subject to separate license terms as set forth by third parties.
Additionally, you agree that you will not:
- take any action that imposes, or may impose, in Shopflick's sole discretion, an unreasonable or disproportionately large load on Shopflick's infrastructure;
- interfere or attempt to interfere with the proper working of the Shopflick Service or any activities conducted on the Shopflick Service;
- bypass any measures Shopflick may use to prevent or restrict access to the Shopflick Service, other accounts, or computer systems or networks connected to the Shopflick Service;
- run Maillist, Listserv, any form of auto-responder or "spam" on the Shopflick Service; or
- interfere with any other users enjoyment of the Shopflick Service, including, without limitation, accessing an account of a Shopflick user that is not yours.
You may not (and may not permit others to), directly or indirectly, modify, translate, decompile, disassemble, or reverse engineer any part of the Shopflick Service or any content available through the Shopflick website (except to the limited extent applicable laws specifically prohibit such restriction), or copy, rent, lease, distribute, or otherwise transfer any or the rights that you receive hereunder. In addition, you may not remove any proprietary notices or labels.
You shall not launch or otherwise use any robot, spider, scraper or other automated means to access the Shopflick Service in a manner which sends more request messages to the Shopflick server in any given period of time than a typical human would normally produce in the same period by using a conventional on-line web browser to read, view and submit materials. Notwithstanding the foregoing, we grant the operators of search engines permission to use robots to copy materials from the site for the sole purpose of creating publicly-available searchable indexes of the materials, but not caches or archives of the materials, provided that we reserve the right to revoke these exceptions either generally or in specific cases.
You shall not harvest or collect information from the Shopflick Service, including, without limitation, information about other users of the Shopflick Service. The use of any information learned through the Shopflick Service or while on the Shopflick website is limited to the express purposes set forth in this Agreement; all other uses are strictly prohibited.
Unless expressly authorized, you shall not frame or otherwise display any portion of the Shopflick.com website or any of its contents. No hyperlinks to any password protected web pages on the Shopflick.com website are allowed. Hyperlinks to non-restricted pages are allowed, subject to review and termination by Shopflick in our sole discretion.
The content accessible through the Shopflick Service, except for the Material, including without limitation, the text, software, scripts, graphics, photos, sounds, music, videos, interactive features and the like (collectively, the "Shopflick Content") and the trademarks, service marks and logos contained therein (the "Marks"), are owned by or licensed to Shopflick, and subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. Except as set forth in this Agreement, the Shopflick Content, Marks, and Material are provided to you AS IS for your information and personal use only and may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any purpose whatsoever except as set forth in this Agreement or with the prior written consent of the respective owners. Shopflick reserves all rights not expressly granted in and to the Shopflick Service and the Shopflick Content. You may, to the extent you are expressly authorized to do so, download, print or copy the Material or any Shopflick Content for personal use only, provided you retain all copyright and other proprietary notices contained in or on such Material or Shopflick Content. You shall not store any significant portion of any Material or Shopflick Content in any form. Copying or storing of any Material or Shopflick Content for other than personal use is expressly prohibited without prior written permission from Shopflick, or from the copyright holder identified in such content's copyright notice. You agree not to circumvent, disable or otherwise interfere with security related features of the Shopflick Service or features that prevent or restrict use or copying of any Shopflick Content or Material.
You shall abide by all copyright notices, information, and restrictions contained in any Material or Shopflick Content accessed through the Shopflick Service. You shall not sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit, create derivative works from, or otherwise exploit any Material or Shopflick Content (i) without the consent of the respective owners or other valid right, and (ii) in any way that violates any third party right.
Digital Millennium Copyright Act
If you are a copyright owner or an agent thereof and believe that any Material, or any other content found on the Shopflick Service infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing including information regarding the location of the content that the copyright owner seeks to have removed, with sufficient detail to permit the service provider to locate the material and verify its existence;
- Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail address;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Shopflick's designated Copyright Agent to receive notifications of claimed infringement is: Shea Bahr, 10500 W. Pico Blvd, Los Angeles, CA 90064, phone (310 841-5966), fax (310) 841-5969, email@example.com. For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to Shopflick customer service through (insert link to customer service page TBD). You acknowledge that if you fail to comply with all of the requirements of this Section 5(D), your DMCA notice may not be valid.
If you believe that your User Submission that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the content in your User Submission, you may send a counter-notice containing the following information to the Copyright Agent:
- Your physical or electronic signature;
- Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
- A statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
- Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in San Francisco, California, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, Shopflick may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at Shopflick's sole discretion.
Shopflick may terminate your access to all or any part of the Shopflick Service at any time, with or without cause, with or without notice, effective immediately, which may result in the forfeiture and destruction of all information associated with your membership. You may terminate your use of the Shopflick Service at any time by following the instructions on the website, provided that all provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability. Any fees paid hereunder are non-refundable.
Shopflick has no special relationship with or fiduciary duty to you. You acknowledge that Shopflick has no control over, and no duty to take any action regarding: which users gains access to the website; what Shopflick Content or Material you access via the website; what effects the Shopflick Content or Material may have on you; how you may interpret or use the Shopflick Content or Material; or what actions you may take as a result of having been exposed to the Shopflick Content or Material. You release Shopflick from all liability for you having acquired or not acquired Shopflick Content or Material through the Sites. The website may contain, or direct you to websites containing, information that some people may find offensive or inappropriate. Shopflick makes no representations concerning any Shopflick Content or Material contained in or accessed through the website, and Shopflick will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the website.
THE SHOPFLICK SERVICE, SHOPFLICK CONTENT AND MARKS ARE PROVIDED BY SHOPFLICK "AS IS" AND "AS AVAILABLE". SHOPFLICK MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ABOUT THE SHOPFLICK SERVICE OR ITS CONTENT OR MARKS, AND TO THE FULLEST EXTENT PERMITTED BY LAW, SHOPFLICK DISCLAIMS ALL WARRANTIES REGARDING THE SHOPFLICK SERVICE AND ITS CONTENTS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OR COMPLETENESS OF CONTENT, NON-INFRINGEMENT, OR THE AVAILABILITY OR QUALITY OF ANY PRODUCTS OR SERVICES AVAILABLE VIA THE SHOPFLICK SERVICE (EXCEPT AS MAY BE SET FORTH IN ANY LICENSE OR OTHER AGREEMENT RELATED TO THOSE PRODUCTS OR SERVICES YOU AGREE THAT USE OF THE SHOPFLICK SERVICE SHALL BE AT YOUR SOLE RISK. FURTHER, SHOPFLICK DOES NOT ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY ANY THIRD PARTY THROUGH THE SHOPFLICK SERVICE OR ANY HYPERLINKED WEBSITE OR INCLUDED IN ANY BANNER OR OTHER ADVERTISING, AND SHOPFLICK WILL NOT BE A PARTY TO OR IN ANY WAY RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY THIRD PARTY WITH RESPECT THERETO. SHOPFLICK, AND ITS DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, PARTNERS AND CONTENT PROVIDERS DO NOT WARRANT THAT: (A) THE SHOPFLICK SERVICE WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (B) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (C) ANY SHOPFLICK CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE SHOPFLICK SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (D) THE RESULTS OF USING THE SHOPFLICK SERVICE WILL MEET YOUR REQUIREMENTS. YOUR USE OF THE SERVICE IS SOLELY AT YOUR OWN RISK.
SOME STATES AND JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability
IN NO EVENT SHALL SHOPFLICK OR ITS AFFILIATES, SUBSIDIARIES, PARTNERS OR LICENSORS OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND/OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS OR REVENUE, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA ON YOUR INFORMATION HANDLING SYSTEM OR OTHERWISE) ARISING DIRECTLY OR INDIRECTLY FROM YOUR USE OF THE SHOPFLICK SERVICE, OR ANY CONTENT, PRODUCTS OR SERVICES DISTRIBUTED ON OR PROVIDED THROUGH THE SHOPFLICK SERVICE (INCLUDING BUT NOT LIMITED TO, SHOPFLICK CONTENT, SHOPFLICK MARKS or MATERIAL), WHETHER AS A RESULT OF ERRORS, OMISSIONS, LOSS OF DATA, DEFECTS, VIRUSES, INTERRUPTIONS OR DELAYS IN OPERATION OR TRANSMISSION, OR ANY OTHER CAUSE, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF SHOPFLICK OR ITS SUPPLIERS HAVE BEEN EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SHOPFLICK ASSUMES NO LIABILITY FOR: ANY ERRORS, MISTAKES OR INACCURACIES IN OR OF ANY CONTENT, INCLUDING ANY MATERIAL; PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SHOPFLICK SERVICES; ANY UNAUTHORIZED ACCESS TO OR USE OF THE SHOPFLICK SERVERS AND/OR ANY PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN; ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SHOPFLICK WEBSITE; ANY VIRUSES, BUGS, TROJAN HORSES, WORMS OR OTHER MALICIOUS CODE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SHOPFLICK WEBSITE BY ANY THIRD PARTY; AND/OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF THE SHOPFLICK SERVICE OR ANY CONTENT, INCLUDING ANY MATERIAL POSTED, EMAILED OR OTHERWISE MADE AVAILABLE THROUGH THE SHOPFLICK SERVICE. SHOPFLICK'S LIABILITY for any direct damages UNDER THIS AGREEMENT SHALL NOT EXCEED ONE-hundred U.S. Dollars ($100.00).
SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU. IF ANY PART OF THE LIMITATION OF LIABILITY SET FORTH ABOVE IS UNENFORCEABLE UNDER APPLICABLE LAW, SHOPFLICK'S AND ITS SUPPLIERS' AGGREGATE LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
You agree to defend, indemnify and hold harmless Shopflick and its parent corporation, affiliates, subsidiaries, licensors and distribution partners and their respective officers, directors, employees and/or agents (collectively, "Shopflick Indemnitees") from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorneys fees) arising from:
- your use of and access to the Shopflick Service;
- your violation of any term of this Agreement;
- your violation or infringement, or any violation or infringement by any third party using your Shopflick account, of any third party right, including without limitation any copyright, other intellectual property right, or privacy right;
- any claim that any of Material you upload and publish on the Shopflick Service caused damage to a third party;
- your breach of any representation or warranty under this Agreement; or
- your gross negligence or willful malfeasance (collectively, "Claims").
You are solely responsible for defending any such Claims, and for payment of losses, costs, damages or expenses resulting from the foregoing to both a third party and to the Shopflick Indemnitees. Shopflick shall have the right, in its sole discretion, to select its own legal counsel to defend the Shopflick Indemnitees from any Claims (but by doing so shall not waive your indemnity obligations), and you shall be solely responsible for the payment of all reasonable attorneys fees incurred by the Shopflick Indemnitees in connection therewith. You shall not, without the prior express written approval of Shopflick, settle, dispose or enter into any proposed settlement or resolution of any Claim (whether having been finally adjudicated or otherwise) brought against you, if such settlement or resolution results in any obligation or liability for any Shopflick Indemnitee. This defense and indemnification obligation will survive this Agreement and your use of the Shopflick Service.
If you do not accept all of the terms and conditions set forth in the Agreement, you may not access or use the Shopflick Service.
Shopflick shall have the right to modify this Agreement or change, suspend, or discontinue the Shopflick Service (including, without limitation, the availability of any feature or content) at any time at its sole discretion by posting a notice of any such change on the Shopflick website. It is your responsibility to check the Shopflick website regularly for any such changes. Your use of the Shopflick Service following such posting shall be deemed to constitute your acceptance of such modification. This Agreement may not otherwise be changed or modified, except in a writing signed by an authorized representative of Shopflick.
If any provision of this Agreement is found illegal or unenforceable, it will be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions of this Agreement will not be affected. No delay or failure by Shopflick to exercise or enforce any of its rights under this Agreement will act as a waiver of such rights.
Shopflick shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Shopflick’s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation.
The Agreement is personal to you, and is not assignable, transferable or sublicensable by you except with Shopflick’s prior written consent. Shopflick may assign, transfer or delegate any of its rights and obligations hereunder without your consent.
No agency, partnership, joint venture, or employment relationship is created as a result of the Agreement and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover costs and attorneys' fees.
All notices under the Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service.
As a convenience for its users, Shopflick may provide links on this website to other websites owned by third parties. Unless otherwise stated, Shopflick does not endorse or control these third parties and takes no responsibility for them or their websites.
The Shopflick Service is controlled and offered by Shopflick from its facilities in the United States of America. Shopflick makes no representations that the Shopflick Service is appropriate or available for use in other locations. Those who access or use the Shopflick Service from other jurisdictions do so at their own volition and are responsible for compliance with local law.
This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to or application of choice of law rules or principles. You expressly consent to the personal and exclusive jurisdiction and venue of the state and federal courts located in Los Angeles County of the State of California for any claim or action arising out of or relating to this Agreement or your use of the Shopflick Service. Any dispute arising from or relating to the subject matter of this Agreement that cannot be resolved thereby within a period of sixty (60) days after notice of a dispute has been given by one party hereunder to the other (the last day of such sixty (60) day period being herein referred to as the "Arbitration Date"), shall be finally settled by arbitration in Los Angeles, California, using the English language in accordance with the Arbitration Rules and Procedures of JAMS then in effect, by one or more commercial arbitrator(s) with substantial experience in resolving complex commercial contract disputes, who may or may not be selected from the appropriate list of JAMS arbitrators. If the parties cannot agree upon the number and identity of the arbitrators within fifteen (15) days following the Arbitration Date, then a single arbitrator shall be selected on an expedited basis in accordance with the Arbitration Rules and Procedures of JAMS. Any arbitrator so selected shall have substantial experience in the online retail industry. The arbitrator(s) shall have the authority to grant specific performance and to allocate between the parties the costs of arbitration (including service fees, arbitrator fees and all other fees related to the arbitration) in such equitable manner as the arbitrator(s) may determine. The prevailing party in the arbitration shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys' fees, expert witness fees and all other expenses) incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for preliminary injunctive relief pending a final decision by the arbitrator(s), provided that a permanent injunction and damages shall only be awarded by the arbitrator(s).
You agree that:
- the Shopflick Service shall be deemed to be solely based in the State of California;
- the Shopflick website shall be deemed a passive website that does not give rise to personal jurisdiction over Shopflick, either specific or general, in jurisdictions other than the State of California; and
- ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE Shopflick SERVICE MUST COMMENCE WITHIN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUES.
The prevailing party in any litigation will be entitled, in addition to any other relief granted to it, to recover reasonable attorneys fees, expenses and costs incurred in connection with the litigation.
You may contact Shopflick at the following address: 10500 W. Pico Blvd, Los Angeles, CA 90064.
Effective Date: February 25, 2008