Terms of Service

Effective Date: 11/19/13

These Terms of Service ("TOS") are between you and Rakuten PopShops, Inc., ("PopShops"). These TOS shall govern your use of any PopShops Software or Service, including updates, that you use while this contract is in force. PLEASE NOTE THAT WE DO NOT PROVIDE WARRANTIES FOR THE SERVICE. THE CONTRACT ALSO LIMITS OUR LIABILITY AND REQUIRES YOUR FULL ASSUMPTION OF RISK AND RESPONSIBILITY FOR THE USE AND DISPLAY OF ANY CONTENT OF YOUR STOREFRONT. These terms are in Sections 12, 13, and 14 and we ask you to read them carefully.

Section 1. Definitions

For purposes of these TOS, the following terms have the following meanings:

"Affiliated Vendor" means a company who operates an online store that supplies goods and/or services to customers that you have entered into an agreement to use and displayed such company’s Content on your Storefront.

"Content" means information, data, text, documents, software, music, sound, photographs, graphics advertisements and video supplied by Merchants or Affiliated Vendor that PopShops makes available for use by you on your Storefront.

A "corporate affiliate" of PopShops is an entity that, directly or indirectly, controls PopShops, is controlled by such entity, or is under common control with such entity, with PopShops.

'Merchant' (or Advertiser or Retailer) means an online company that supplies goods and/or services to customers and that PopShop has entered into an agreement to provide payments for referrals of customers via qualifying links who make purchases on the Merchant’s website.

A "qualifying link" means any type or format of link that is provided or authorized by PopShop or a Merchant to be displayed, distributed or placed on or by a Storefront and which, through addition and/or use of any technology and/or methodology, can be tracked so that such the Merchant can monitor the impressions, click-throughs and/or other tracked activities achieved by the display, distribution and/or placement of such link. The term "qualifying link" shall also refer to any equivalent link, mechanism or technology that, upon being activated, causes the same result as clicking on a qualifying link.

'Service' means the PopShops Service (e.g. PopShops Basic, Pro, Professional, Enterprise, DataPack and Express) and Software.

'Software' means the PopShops Software and Service that facilitate your use of the Service and account, including any code from PopShops, and (facilitation of online referral of a customer by you to a Merchant).

‘Storefront(s)’ means your webpage, your website, and your application (mobile, web, social, etc.) for which you use the PopShops Service and Software.

Section 2. PopShops Service

The Service provided by PopShops involves using Content from a Merchant or Affiliated Vendor , as applicable, on your Storefront. Although the Service provides ready access to Content to enable the simple creation of your Storefront, PopShops does not own, supply, manage, host or control the Content or operation of the Storefront. PopShops has no affiliation with the Affiliated Vendors, Merchants (or its suppliers) or with the Affiliated Vendor’s, Merchant’s products, materials or Content or other content displayed on your Storefront. PopShops does not review, filter or manage any Content that may be provided to you for display on your Storefront.

If you subscribe to PopShops Basic, Pro, Professional, Enterprise or Data Pack Services, your rights to display such Content will be between you and the Affiliated Vendor via the Service. If you subscribe to PopShops Express, your rights to display such Content will be as between you and PopShops.

YOU HEREBY AGREE TO ASSUME ALL OF THE RISK FOR CONTENT THAT IS LOADED ON YOUR STOREFRONT. YOU ARE SOLELY RESPONSIBLE FOR YOUR USE AND DISPLAY OF THE CONTENT AS WELL AS THE OPERATION OF YOU YOUR STOREFRONT. YOU ARE RESPONSIBLE FOR YOUR COMPLIANCE WITH THESE TOS, THE APPLICABLE TERMS AND CONDITIONS OF SERVICE BETWEEN YOU AND POPSHOPS, OR THE TERMS AND CONDITIONS AS BETWEEN YOU THE AFFILIATED VENDOR. YOU AGREE TO INDEMNIFY POPSHOPS AND TO HOLD POPSHOPS PARTIES HARMLESS FOR CLAIMS OR DAMAGE RESULTING FROM YOUR STOREFRONT INCLUDING THE CONTENT CONTAINED THEREON.

PopShops does not guarantee the participation of any specific Merchant(s) or any Affiliated Vendor(s) associated with your use of the Service.

You may terminate your subscription at any time to any Service and the compensation subscription program. Upon cancellation, you must immediately cease use the Service, your service account and of any Content provided to you by PopShops.

PopShops Basic, Pro, Professional, Enterprise, and DataPack Accounts

A detailed description of these Services are found on our Service Plan Page. These Service models require you to use your own affiliate tracking IDs and PopShops charges Subscription Fees (as defined below) in connection with the Service(s) that you subscribe to from time to time. Our compensation model is aligned with PopShops' customer focused business value objectives; we charge a subscription fee for providing the Service and do not take a cut of your revenue.

PopShops Express Accounts

PopShops Express is a Service that involves your participation in certain affiliate marketing programs offered by Merchants ("Merchant Program") in various affiliate marketing networks ("Network") that PopShops may participate from time to time. In the Express Service model, affiliate tracking IDs are supplied by the applicable Network, You may or may not qualify to receive commissions from PopShops Express accounts depending on our review and approval of your Website, Storefronts, promotional methods, and your intended use of PopShops Service. In the event that you are qualified to participate in the PopShops Express Service and to receive Commissions from PopShops in connection with your Popshop Express account, our compensation is aligned with PopShops' customer focused business value objectives and we earn compensation when a sale or activity results from an online referral of customers from you to the Merchant via qualifying links. In such cases, PopShops shall retain a portion of the compensation earned and will pay you a Commission (as hereinafter defined). Your participation in the PopShops Express Service may also require You to agree to certain additional Merchant terms and conditions, which PopShops may advise you in writing from time to time. Those additional terms will supplement the terms of this Agreement. Participation in the PopShops Express Service is not an endorsement by PopShops of any Merchant. PopShops is not responsible or liable for the acts, omissions, agreements or promises of or by any Merchants.

Section 3. Licenses

PopShops hereby grants to you the right to use the Service and Software and to use the PopShop’s account interface during the term of your subscription to any Service.

PopShops hereby grants to you during the term of your subscription to the PopShop Express Service, if applicable, a limited, nonexclusive, royalty-free worldwide right and licence to use (but not sublicence) Merchant's Content to the extent reasonably necessary to provide online referrals of customers from your Storefront to Merchant’s website and to promote such Content, in the form of advertisements, on your Storefront.

Each party and its suppliers owns its or their respective intellectual property, and, except as expressly granted herein, nothing herein will grant to either party any rights or licences in or to the other party's intellectual property. Neither party shall encumber, assert a claim to or ownership of, any interest in any intellectual property of the other party or any goodwill associated therewith, except for any licences or rights expressly granted hereunder or under any Order Form during its term.

PopShops shall have the right to refer to you by your name in connection with any Service that you have subscribed, including in communications sent to actual or prospective Merchants of the Service(s) in which you participate. Nothing in thee TOS shall prevent PopShops from making any public or private statements about your business relationship with PopShops and/or your participation in any Service.

Section 4. When You May Use the Service

You may start using the service as soon as you have finished the registration process; provided you have read and agreed to comply with these TOS. PopShops reserves the right, from time to time in its sole discretion, to review and evaluate your Service account, your use of Service and Software, and your Storefront for suitability to receive access to the PopShops Software. PopShops, in it’s sole discretion, may or may inform you of change or termination in access to some or all features, use, commissions, or access to any PopShops Service.

Section 5. How You May Use the Service

In using the Service, you will at all times:

  • Comply with any and all applicable laws, rules and regulations;
  • obey any codes of conduct or other notices we ( or an Merchant) provide from time to time;
  • keep your service account password secret;
  • carefully manage the Content of your Storefront;
  • comply with the terms and conditions of this Agreement and any additional Merchant terms and conditions that PopShops may advise you from time to time
  • promptly notify us if you learn of a security breach related to the Service.
  • You will ensure that your Storefront will feature an easy to understand privacy policy that complies with all applicable laws and is linked, at minimum conspicuously from such Site’s home page, with a link that contains the word "Privacy," "Legal," "Terms," or similar equivalent and lawfully sufficient language. Your privacy policy should properly disclose Your Site’s information collection and use practices, including how information collected on your Sites is shared with third parties and whether You use cookies or third party tracking technology to collect information on your Site related to consumers.

Section 6. How You May Not Use the Service, Prohibited Uses

In using the Service, you may not:

  • use the Service in a way that harms us or our customers (including the Merchants), affiliates, contractors, officers, directors, resellers, distributors, and/or vendors (collectively, the "PopShops Parties"), or any customer of a PopShops Party;
  • use any portion of the service as a destination linked from any unsolicited bulk messages or unsolicited commercial messages ("spam");
  • use any automated process or service to access and/or use a service such as a BOT, a spider, periodic caching of information stored by PopShops, or "meta-searching";
  • use any unauthorized means to modify or reroute, or attempt to modify or reroute, the Service, including altering affiliate IDs included in hyperlinks created by the Storefront;
  • damage, disable, overburden, or impair the service (or the network(s) connected to the service) or interfere with anyone's use and enjoyment of the service; or
  • resell or redistribute the Service, or any portion of the Service.
  • use Content or Service on third party websites and applications where you do not have the authority to remove such Content or Service.
  • promote any keywords, trademarks, service marks, branded terms, URL, etc, in any promotional method including purchase of advertising on search engines and/or other promotional methods that infringe on any Merchant or third party's proprietary rights;
  • conduct promotional advertising for URL’s provided by PopShops or URL’s landing directly on a Merchant’s website or PopShops website.
  • modify, resize, reformat, edit or otherwise alter any Content provided by PopShops;
  • engage in and/or facilitate spamming and/or indiscriminate advertising.
  • make copies or modify any icons, buttons, banners, graphics files or content contained in the Content, including but not limited to removing or altering any copyright or trademark notices.
  • promote Content on third party newsgroups, message boards, blogs, unsolicited email and other types of spam, link farms, counters, chat-rooms, or guest-books.
  • promote PopShops Content on software downloads including browser toolbars or browser plug-in
  • promote URLs provided by PopShops in Emails
  • promote Content in any Sweepstakes or Contests.
  • use misleading techniques, devices or offers to incentivize end users into clicking links from the Content and/or cause any fraudulent sales to be made through the use of the any devicea program, robot, iframes, hidden frames, etc.
  • state or imply an endorsement from PopShops or any Merchants, Merchant product or service or offer any incentive rewards (cash-back, miles, points, donations, etc.).
  • require sign-in and password for end-user to be able to click on the s Content.
  • append qualifying links such that you provide any personally identifiable information (e.g. email, user name, password, etc) of end users to PopShops, Network or Merchants.
  • embody Content on the same Webpage with the following content :
    • Foul, vulgar or obscene language, content that features nudity or excessive violence including blood, guts, and guns,
    • Pornography, escort services, products claiming to enhance sex, and other "adult" sexual content.
    • Gambling or gambling paraphernalia, including online gambling, poker.
    • Illegal activities, including false document services, counterfeit designer goods, cable descramblers, fireworks, websites that promote hacking or evading law enforcement.
    • Weapons, including guns, gun parts, kits, mace, blank powder and ammunition.
    • Content that is defamatory, libelous, invasive of another's privacy.
    • Hate speech – inciting or advocating violence or racial intolerance.
    • Content that is threatening, abusive, harassing, or advocate against a protected group, whether based on race, color, national origin, religion, disability, sex, sexual orientation, age or any similar or other category.
    • Content that promotes any illegal or dangerous activity.
    • Deceptive, false or misleading content.
    • Content or technology that infringes, encourages, or enables the infringement of, the intellectual property or personal rights of others.

Section 7. You Are Responsible For Your Service Account

Only you may use your Service account. You are responsible for all activity that takes place with your Service account, your Storefront, or an associated account. You may not authorize any third party to access and/or use the Service on your behalf. You agree that you will only create one account.

Section 8. Commissions, Reporting and Payment

PopShops Basic, Pro, Professional, Enterprise, and Datapack Service Accounts

Registration. You may register for any of the Services described on our Service Plan Page. By registering for the applicable Service, you authorize PopShops to charge applicable recurring subscription fees (the "Subscription Fees") via our payment gateway to your designated billing payment method.

Thirty Day Trial Period. The plan page may describe a free Thirty (30) day trial period for the subscription services. This trial period shall begin upon your activation of the applicable Service and shall expire thirty (30) calendar days thereafter (the "Free Trial Period"). YOU MUST CANCEL THE SERVICE BEFORE EXPIRATION OF THE TRIAL PERIOD TO AVOID ANY CHARGES FOR THE SERVICE. If you have not cancelled the service prior to expiration of the Free Trial Period, your paid service period shall begin. Subscriptions Fees shall be billed monthly on a 30-day cycle, which shall begin at the end of the Free Trial Period and end thirty (30) days thereafter, renewing automatically until cancelled by either party (the first such monthly period and each automatically renewed period is a "Subscription Month"). You are allowed one (1) Free Trial Period across all PopShops Services combined.

Billing Authorizations for Trial Period. You are required to provide billing payment method at the time of registration for subscription services, including any free Trial Period. You agree that PopShops may obtain a pre-authorization for the applicable Subscription Fee amount that you will be charged if you do not cancel the service prior to expiration of the Trial Period. It is possible that some financial institutions may perceive these requested amounts as actual pending charges. These are not actual charges, however, and PopShops will not be responsible for any results, such as an overdraft fee, that may occur to your account because of them. If you cancel the Service prior to expiration of the Trial Period, the subscription pre-authorization requests will be removed. PopShops is not responsible for the length of time required by your financial institution or any delay on the financial institution's part to remove such pre-authorization amounts from your account. PopShops will not be responsible for any results, such as an overdraft fee, that may occur to your account because of them.

Subscription Fees. The Subscription Fees are described on our Service plan page. All Subscription Fees are subject to change on a prospective basis upon notice from PopShops to the email address of record and your continued use of Service shall indicate your consent to pay any such revised Subscription Fees for any Subscription Month during which you receive Services, subject to the cancellation provisions set forth below. If you upgrade your Service plan at any time to a more expensive Service, your Subscription Fees will immediately increase to the higher applicable Subscription Fee on a pro-rated basis for the then current Subscription Month. If you downgrade your membership to a lower cost Service, such Service plan change shall become effective during the Subscription Month immediately following the then current Subscription Month. There are no refunds for downgrading your account. You will not receive any Commissions (as defined below) from PopShops when you subscribe to PopShops Basic, Pro, Professional, Enterprise, and DataPack Service accounts.

Payment. You are responsible for keeping your billing up to date within your account during the term of Service. If PopShops is unable to charge your chosen billing payment method during any Subscription Month, PopShops may: (i) immediately suspend or terminate your PopShops account including all active shops and/or (ii) seek collection of the outstanding Subscription Fees owed.

PopShops Express Accounts

Through various Networks, PopShops is a party to certain agreements with Merchants to promote Merchant Programs through the use of qualifying links to such Merchants’ online store. If you have been approved as a PopShops Express Service, you will be authorized to display Content on your Storefronts in connection with the Services. PopShops will be the 'publisher of record' in connection with the Merchant Programs and will collect a payment of Click Through Revenue and/or Pay Per Order Revenue generated by end users referred from your Storefront via qualifying links who make purchases on the Merchant’s online store (the "Link Revenue").

  • "Click Through Revenue" means Link Revenue paid to PopShops by Merchants as a result of valid click-throughs where end users of your Storefront click on Content on your Storefront via qualifying links.
  • "Pay Per Revenue" means Link Revenue paid to PopShops by Merchants who have determined that end user’s actual purchases of products have originated from qualifying links referred by your Storefront.

The Percentage of Link Revenue that is payable to you pursuant to the foregoing is referred to herein as the "Commission". PopShops will pay you a Commission equal to a percentage of Link Revenue minus any cancellations, taxes, shipping, chargebacks, reversals or deductions as defined by a Merchant with respect to customer referrals from your Storefront. The percentage of Link Revenue shared with you may be changed by PopShops from time to time in its sole discretion. Payment will be issued to you via our third party payment processor PayPal ("Payment Processor"). Payment will be issued to you based on your PopShops Express Service account information. Payment will issued each week for all Commissions earned by you that correspond to Link Revenue that PopShops has received from the applicable Merchant up to that point. Payments made to you will be reflected in your PopShops Service Account area for the Commission earned. There must be a minimum current balance of $25 in your service account for PopShops to make a payment to you.

Any instance, resulting from any circumstances whatsoever, that causes a Merchant not to pay PopShops for Link Revenue, shall relieve PopShops from its obligation to make the applicable Commission payment (until such Link Revenue payment has been received by PopShops.com, if ever). It shall be at PopShops’s sole discretion to determine whether or not to enter into Link Revenue generating agreements with Merchants and what the terms of such agreement will be. YOU AGREE AND ACKNOWLEDGES THAT POPSHOPS SHALL NOT BE RESPONSIBLE AND SHALL HAVE NO LIABILITY TO YOU FOR ANY DELAYS OR FAILURES BY ANY MERCHANT TO MAKE ANY LINK REVENUE PAYMENTS TO POPSHOPS AND ANY COMMISSION PAYMENTS FROM POPSHOPS TO YOU.

You acknowledge and agree that PopShops shall receive reports and statements from the applicable online marketing network provider ("Network") with respect to each Merchant whose Program you participate in. Such reports may identify you and may include data about you and qualifying links with Merchants. If PopShops is notified by a Network or Merchant that it believes that there is an error, omission or other required adjustment, PopShops reserves the right to make adjustments to your payments (and PopShops may deduct from any Commission payments to you from future earnings) up to the full amounts of such adjustments. PopShops also reserve the right to withhold, return such funds to the Merchant, or suspend your participation in PopShops until such dispute is resolved and PopShops is notified, in writing, by all parties, that payments should resume. You agree to provide prompt and reasonable cooperation to PopShops in responding to any requests, complaints, disputes, claims or other issues raised by any Merchants regarding your participation in the Merchant Program including where and how such Content or qualifying links are distributed and/or used, including ceasing further distribution of such qualifying links (and associated materials), as appropriate.

PopShops will collect relevant details for tax purposes as necessary and specified by the tax code. You will be solely responsible for reporting or paying any taxes and fees that you owe on to any Local, State, and Federal tax authorities.

Section 9. Materials

You agree that any suggestions, improvements, ideas or other content that you submit to PopShops related to our Services (the "Feature Requests") shall be owned by PopShops and shall deemed to have been assigned to PopShops by you upon such submission. To the extent that you provide any materials in conjunction with utilizing our services, provided those are not Feature Requests or materials that we license to you, we do not claim ownership of such materials you post or otherwise provide to us related to the service (called a "Submission"). However, by posting or otherwise providing your Submission, you are granting to the public free permission to:

  • use, copy, distribute, display, publish, modify and create derivative works of your Submission, each in connection with the service;
  • publish your name in connection with your submission; and
  • grant these permissions to other persons.

This section only applies to legally permissible content and only to the extent that use and publishing of the legally permissible content does not breach the law. We will not pay you for your submission or Feature Requests. We may refuse to publish, and may remove your Submission from the service at any time. For every Submission and Feature Request that you make, you must have all rights necessary for you to assign or grant the permissions in this section. In addition, the foregoing provision does not modify or any agreement that you may have with an Affiliate Vendor.

Section 10. Privacy

By agreeing to this Agreement, you agree to the PopShops Privacy policy found at PopShops Privacy Policy - http://www.popshops.com/support/privacy-policy.

Section 11. Reverse Engineering

You agree that (a) you will not directly or indirectly through a third party make unauthorized modifications, reverse engineer, disassemble, decompile, attempt to derive source code of, or hack any Software; or (b) hack, abuse, adversely interfere with, infect with viruses, worms or other malicious or destructive code any PopShop servers, computer equipment, Software or other technological resources.The Software is subject to United States export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the Software. These laws include restrictions on destinations, end users and end use.

Section 12. Warranty

WARRANTY DISCLAIMER

WE PROVIDE THE SERVICE "AS-IS, WITH ALL FAULTS AND AS AVAILABLE." WE DO NOT GUARANTEE THE ACCURACY, SECURITY OR TIMELINESS OF THE SERVICE, CONTENT OR INFORMATION AVAILABLE FROM THE SERVICE. THE POPSHOPS PARTIES GIVE NO EXPRESS WARRANTIES, GUARANTEES OR CONDITIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM POPSHOPS OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT . YOU MAY HAVE ADDITIONAL CONSUMER RIGHTS UNDER YOUR LOCAL LAWS THAT THIS CONTRACT CANNOT CHANGE. WE EXCLUDE ANY IMPLIED WARRANTIES INCLUDING THOSE OF MERCHANTABILITY, TITLE OR FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT AND NON-INFRINGEMENT.

YOUR WARRANTY TO POPSHOPS

You represent, warrant and covenant as follows:

  • You have read these TOS, fully understand the terms and conditions hereof and will take full responsibility for the Content on your Storefront;
  • You have the legal right to conduct any business conducted by you including in respect of Storefront and use of the Service;
  • Any and all information you provided as part of the registration process or otherwise shall be truthful, accurate and complete, irrespective of any independent verification or other determination made by PopShops; and
  • These TOS have been duly and validly authorized, accepted, executed and delivered by you (or your authorized representative) and constitutes your legal, valid, and binding obligation, enforceable against You in accordance with its terms. If you are an individual, you represent that you are at least 18 years of age on the effective date of these TOS; and
  • The performance by you of these TOS and the participation by you in any Service does not and shall not conflict with or violate (i) any law, rule, regulation, order, judgment, decree, code, agreement or instrument applicable to you or (ii) if you are an entity, any provision of your certificate of incorporation or other organizational documents.

Section 13. Liability Limitation

TOTAL LIABILITY.

NOTWITHSTANDING ANYTHING ELSE HEREIN, ALL LIABILITY OF POPSHOPS AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS UNDER THIS AGREEMENT WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE SHALL BE LIMITED TO (A) THE SUBSCRIPTION FEES RECEIVED BY POPSHOPS, RELATED SPECIFICALLY TO YOUR STOREFRONT, IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEEDING THE CLAIM, OR (B) ONE HUNDRED DOLLARS, WHICHEVER IS GREATER. THE MAXIMUM LIABILITY OF POPSHOPS AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS DESCRIBED UNDER THIS SECTION SHALL BE CUMULATIVE AND NOT PER INCIDENT.

DAMAGES.

YOU EXPRESSLY UNDERSTAND AND AGREE THAT POPSHOPS AND ITS SUBSIDIARIES, CORPORATE AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF POPSHOPS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE.

SOME JURISDICTIONS PROHIBIT THE EXCLUSION OF CERTAIN KINDS OF DAMAGES AND LIMITATIONS ON LIABILITY AS SET FORTH ABOVE. TO THE EXTENT YOU ARE LOCATED IN ANY SUCH JURISDICTION AND SUCH PROHIBITION IS NOT CURED BY VIRTUE OF THIS AGREEMENT BEING GOVERNED BY THE LAWS OF THE STATE OF WASHINGTON, THE FOREGOING EXCLUSIONS AND LIMITATIONS SHALL ONLY APPLY TO THE MAXIMUM EXTENT PERMITTED UNDER THE LAWS OF SUCH JURISDICTION.

IN NO EVENT SHALL THE FOREGOING EXCLUSIONS AND LIMITATIONS ON DAMAGES BE DEEMED TO APPLY TO ANY LIABILITY BASED ON FRAUD OR WILLFUL MISCONDUCT BY YOU.

The foregoing limitation includes, but is not limited to, the following:

  • your use of the Service in violation of these TOS,
  • viruses or other disabling features caused by you (or your systems) that affect your access to or use of the Service,
  • incompatibility between the Service and other services, software and hardware,
  • delays or failures you may have in initiating, conducting or completing any transmissions or transactions in connection with the Service in an accurate or timely manner, and
  • delay or lack of Commission payments to you caused by a Merchant
  • third party claims for breach of contract, breach of warranty, guarantee or condition, strict liability, negligence, or other tort.
It also applies even if:
  • this remedy does not fully compensate you for any losses, or fails of its essential purpose; or
  • PopShops knew or should have known about the possibility of the damages.

Section 14. Indemnity

You agree to indemnify and hold PopShops, the PopShops parties, and all subsidiaries, corporate affiliates, officers, agents, employees, partners and licensors harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of content you submit, post, transmit or otherwise make available through the service, your use of the Service, any conduct, or activity, error or omission by you, including in relation to your participation in any Service, your violation of these TOS, your violation of any rights of a third party, or any claims that result from your operation of your Storefront.

You further agree to defend, indemnify and hold harmless hold PopShops, the PopShops parties, and all subsidiaries, corporate affiliates, officers, agents, employees, partners and licensors for and against any and all claims, actions, demands, liabilities, losses, damages, penalties, interest, judgments, settlements, costs and expenses (including reasonable attorneys' fees) that directly or indirectly arise out of or are based on any misrepresentation or breach of any representation, warranty, or covenant made by You in this Agreement or any violation by you of any law, regulation or rule, and/or

PopShops, in its sole discretion, may assume the exclusive defense and control of any matter otherwise subject to indemnification by you or may participate in the defense of all claims as to which it does not assume defense and control, and you shall not settle any such claim without PopShop's prior written consent.

Section 15. Non-Disclosure

"Confidential Information" refers to such party's confidential trade secret and/or proprietary information or ideas including such party's confidential or proprietary intellectual property assets and commercially sensitive pricing information. The term "confidential information" also includes any confidential information of any third party that the disclosing party is only permitted to provide to the receiving party subject to confidentiality obligations. The term "confidential information" will not include information that (i) is in or enters the public domain without breach of this Agreement, (ii) the receiving party obtains from a source other than the disclosing party, provided that the disclosure to the receiving party by such source is not known to the receiving party to be a violation of a confidentiality obligation of such source to the disclosing party, and (iii) the receiving party knew prior to receiving such information from the disclosing party or the receiving party develops independently without use of the disclosing party’s trade secrets or confidential information, as shown by contemporaneous records. Except as expressly provided in these TOU, neither party shall not disclose or use such other party's confidential information except solely to the extent reasonably necessary to perform its obligations or exercise its rights under this Agreement. Further, each party may disclose the other party's confidential information only to those of its employees, officers, directors, consultants, and advisers, and in the case of PopShops, employees and officers of its corporate affiliates, who need to know such information in order to perform their respective duties.

You further acknowledge that in connection with your participation in the Express Service, you will be provided with confidential and proprietary data and information from time to time through reports as well as other confidential information to you through your Account Area or otherwise. Such confidential and proprietary data and information may be owned variously by Merchants and/or its or their suppliers or contractors. You will retain ownership of any data and information that you independently collect through the Storefront without the use of Services, provided that any data and information that may be provided by you to PopShops shall be deemed to be covered by the licences granted to PopShops under this Agreement. You will keep all reports, data and other confidential information provided to You in your Express Service account area or otherwise strictly confidential. Without PopShop’s or the applicable Merchant’s prior written consent, you will not disclose any such confidential information to any third party or use any such confidential information other than solely as and to the extent required for you to use the Services and Your Service account. You may disclose any such confidential information only to your employees, officers and directors who need to know such information in order to perform their respective duties; provided that each such person has a legal or contractual obligation to maintain the confidentiality of such information. If you receive any document request, interrogatory, subpoena or other legal process ("Request") that would, by its terms, require the disclosure of any confidential information protected by these TOS, then promptly upon receipt thereof, and prior to making any response thereto, you will notify PopShops in writing of your receipt of such Request, and shall provide a copy thereof. Upon receipt of such notice, PopShops or the Merchant may seek to intervene in the matter in which the Request was issued to seek protection of the confidentiality provided for by this Section. Absent written agreement signed by PopShops or the applicable Merchant, you may not make such disclosure absent an order or directive from the tribunal from which a Request was issued. PopShops or the Merchant will be entitled to seek and obtain injunctive relief preventing any breach of your obligations under this Section, without the need to show irreparable harm, and without the need to post a bond or undertaking.

Section 16. No Resale Of Service

You agree not to reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, any portion of the Service (including your PopShops ID), use of the Service, or access to the Service.

Section 17. Changes to the Service; If We Cancel the Service

You may cancel the Service at any time by logging into your account and choosing "Close my account". PopShops will reasonably attempt to return a cancellation confirmation to your registered email address. You should retain such confirmation as a record of your cancellation. You hereby acknowledge and agree that once the Service is cancelled or suspended, any data you have stored on the Service may not be retrieved later.

PopShops Basic, Pro, Professional, Enterprise, DataPack Service Accounts

Any cancellation by you will not be effective until the expiration of the then current Subscription Month. Upon expiration of the then current Subscription Month during which such cancellation or termination has occurred, your access to the Service shall cease and you shall no longer have any rights to access or use the Content generated by the Service and any license granted to you in connection with the applicable Service(s) herein shall be terminated.

We may change the Service or delete features at any time and for any reason. We may cancel or suspend your Service at any time. Our cancellation or suspension may be without cause and may be with or without notice. Upon Service cancellation, your right to use the applicable Service stops right away. If we cancel the Service without cause, we will refund any prepaid Subscription Fees, prorated for the Subscription Month during which such cancellation occurred.

PopShops Express Service Accounts

Any cancellation by you forfeits any unpaid Commission payment balance in your PopShops Express Service account and any Commissions not processed until that time or in the future. You are responsible for ensuring that the Commission balance in excess of $25 from PopShops has been received by you prior to cancelling your account. Upon cancellation your access to the service shall cease and you shall no longer have any rights to access or use the Content and any license you in connection with the PopShops Express Service granted to you herein shall be terminated.

When you change your PopShops Express account to a PopShops Basic, Pro, Professional, DataPack account you are responsible for ensuring that the Commission balance in excess of $25 from PopShops has been received by you prior to changing your account. Upon changing your Express account you shall no longer have any rights to Commission payment balance in less than $25 or access or use the Content generated by the PopShops Express account and Service.

We may change the PopShops Express Service or delete features at any time and for any reason. We may cancel or suspend your Service at any time. This includes removing access to Merchants and/or Content in your PopShops Express account with PopShops. Our cancellation or suspension may be without cause and/or without notice. Upon PopShops Express Service cancellation, your right to use the Content and the PopShops Express Service stops right away. If we cancel the service without cause, we will pay any Commission balances in excess of $25 in your account unless those Commissions were disputed by PopShops or the Merchant.

Section 18. Interpreting the Contract

All parts of these TOS apply to the maximum extent permitted by law. A court may hold that we cannot enforce a part of these TOS, as written. If any portion of this Agreement is held by a court with jurisdiction to be invalid or unenforceable, the remaining portions hereof, shall remain in full force and effect.

Section 19. Assignment

We may assign these TOS, in whole or in part, at any time with or without notice to you. You may not assign these TOS, or any part of it, to any other person. Any attempt by you to do so is void. You may not transfer to anyone else, either temporarily or permanently, any rights to use the Service or any part of the Service.

Section 20. No Third Party Beneficiaries

This contract is solely for your and our benefit. There are no third party beneficiaries of this Agreement. It is not for the benefit of any other person, except for permitted successors and assigns under this contract.

Section 21. Notices We Send You; Consent Regarding Electronic Information

These TOS are in an electronic form. We have the right to send you certain additional terms and condition in connection with the Service, including updates to this TOS; provided that we shall provide you with written notice ("Notice Period") in your PopShops Service account. However your continued use of PopShops.com Content and Service will also be considered your acceptance of these TOS. There may be other information regarding the Service that the law requires us to send you which will be effective immediately upon our notice to you. We may send you this information in electronic form. You have the right to withdraw this consent, but if you do, we may cancel your Service; provided that your continued use of any Service(s) following the Notice Period shall be deemed your consent to any amendments or revised terms and conditions of these TOS.

We may provide required information to you:

  • by e-mail at the e-mail address you specified when you signed up for your service;
  • by access to a PopShops web site that will be designated in an e-mail notice sent to you at the time the information is available; or
  • by notice in your Service account area

Notices provided to you via e-mail will be deemed given and received on the transmission date of the e-mail. As long as you can access and use the service, you have the necessary software and hardware to receive these notices. If you do not consent to receive any notices electronically, you must stop using the service.

If you provide notice to PopShops, such notice shall be sent, postage prepaid by U.S. registered or certified mail or by international or domestic overnight courier, to: Rakuten PopShops, Inc. 2017 Elliott Avenue, Suite 208, Seattle, WA 98121, Attn: General Counsel with a copy to President, Rakuten PopShops, Inc. c/o LinkShare Corporation, 215 Park Avenue South, 8th Floor, New York, NY 10003.

Section 21. Contracting Party, Choice of Law and Location for Resolving Disputes

These TOS are between you and PopShops. Washington state law governs the interpretation of these TOS and applies to claims for breach of it, regardless of conflict of laws principles thereof and the parties expressly exclude the application of the United Nations Convention on Contracts for the International Sales of Goods to this Agreement. Suits or enforcement actions must be brought within two (2) years after the event giving rise to such cause of action arose, or of which a party should have known, and each party irrevocably submits to the exclusive jurisdiction of the state and federal courts located in King County, Washington, USA for all disputes arising out of or relating to these TOS. EACH PARTY WAIVES RIGHTS TO TRIAL BY JURY IN RESPECT OF ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF THIS AGREEMENT.

Section 22. Miscellaneous

The parties are independent contractors and not partners, joint venturers. These TOS, including any specifically referenced portions of the website, shall constitute the entire agreement between the parties regarding the subject matter hereof and supersede all proposals and prior discussions and writings between the parties with respect thereto. This is the entire agreement between you and PopShops regarding your use of the Service. It supersedes any prior contract (including any prior version of these TOS or click-wrap agreements) or statements regarding your use of the Service. If you have confidentiality obligations related to the Service, those obligations shall remain in force (for example, you may have been a beta tester) . The express waiver by either party of any provision, condition or requirement of this contract does not constitute a waiver of any future obligation to comply with such provision, condition or requirement. The Section titles in these TOS do not limit the other terms of these TOS. The headings of paragraphs and sections are for reference purposes only, have no substantive effect, and shall not enter into the interpretation hereof. Any rights not expressly granted herein are reserved.

Section 23. Force Majeure

PopShops shall not be liable to you by reason of any failure or delay in the performance of its obligations hereunder on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, interruptions in telecommunications services or internet facilities, or any other cause which is beyond the reasonable control of PopShops, whether or not similar to the foregoing.

Section 24. Fair usage

If your storefronts exceed "fair usage" quotas (10,000 impressions or server calls per month), you may be contacted to upgrade your account to handle your high volume of traffic. If your site(s) have extremely high traffic volume, please contact corporate@popshops.com to discuss custom solutions.

Section 25. Maintenance windows and up time

PopShops can make no guarantee of 100% uptime. PopShops represents that it shall make every good faith effort to ensure that its services are available as widely as possible and with as little service interruption as possible. Please be advised that there is a daily maintenance window of 12 AM Eastern until 4 AM Eastern.

Section 26. Language.

The English language versions of this Agreement and Privacy Policies are the controlling versions thereof. All support and other inquiries regarding Your use of the Service must be submitted to PopShops in English, and PopShops will communicate in English only.

NOTICES

Copyright and Trademark Notices

All contents of the service are Copyright © 2013 Rakuten PopShops, Inc. All rights reserved.

Copyright and other intellectual property laws and treaties protect any software or content provided as part of the service. Rakuten PopShops, Inc. owns the title, copyright, and other intellectual property rights in the software or PopShops content. Rakuten PopShops, the Rakuten PopShops logo, PopShops, the PopShops logo, PopShops, the PopShops design/logo and/or other PopShops products and services referenced herein may also be either trademarks or registered trademarks of PopShops in the United States and/or other countries. Merchant Content and The names of Merchants and their products mentioned herein may be the trademarks of their respective owners. Any rights not expressly granted herein are reserved.


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