This is a contract between you and PrestoGifto, Inc., dba PopShops (PopShops). This contract applies to any PopShops software or services, including updates, that you use while this contract is in force. All of the software or services are referred to in this contract as the "service."
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 CONTENT OF YOUR STOREFRONT. These terms are in sections 11, 12, and 13 and we ask you to read them carefully.
You may start using the service as soon as you have finished the sign-up process, provided you have read and agreed to comply with these terms and conditions.
In using the service, you will:
In using the service, you may not:
The PopShops service provided by PopShops involves the creation of a unique storefront for you (the "storefront"). Although the PopShops service provides ready access to content to enable the simple creation of your affiliate storefront, PopShops does not own, supply, manage, host or control the content or operation of the storefront. PopShops has no affiliation with the products, materials or content displayed on the storefront or the parties who supply such products, materials or content. PopShops does not review, filter or manage the content that may be provided to you for display on your storefront. Your rights to display such content will be between you and the vendor with whom you affiliate (the "affiliated vendor") via the PopShops service. YOU ARE ASSUMING ALL OF THE RISK FOR CONTENT THAT IS LOADED ON YOUR STOREFRONT. YOU ARE SOLELY RESPONSIBLE FOR THE CONTENT AND OPERATION OF YOU YOUR STOREFRONT. YOU ARE RESPONSIBLE FOR YOUR COMPLIANCE WITH THE TERMS AND CONDITIONS OF SERVICE BETWEEN YOU AND THE AFFILIATED VENDOR. YOU HAVE AGREED IN THIS CONTRACT TO INDEMNIFY POPSHOPS AND TO HOLD POPSHOPS PARTIES HARMLESS FOR CLAIMS OR DAMAGE RESULTING FROM YOUR STOREFRONT INCLUDING THE CONTENT THEREOF.
PopShops earns compensation from providing the PopShops service to you. Our compensation model is aligned with PopShops's customer focused business value objectives; we charge a Subscription Fee for providing the service and do not take a cut of your commissions.
You may terminate the PopShops service and the compensation subscription program by canceling the service (as described below). Upon cancellation, you must immediately cease use of any materials or content provided to you by PopShops.
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.
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:
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.
All code and copyrightable materials generated by the service are licensed to you only for the term of your subscription and subject to the terms of this Agreement. Upon cancellation of the service, you shall have not right or license to any such materials.
Please see the PopShops Privacy Policy.
You will not disassemble, decompile, or reverse engineer any software included in the service, except and only to the extent that the law expressly permits this activity.
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.
WE PROVIDE THE SERVICE "AS-IS, WITH ALL FAULTS AND AS AVAILABLE." WE DO NOT GUARANTEE THE ACCURACY OR TIMELINESS OF 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 THE TOS. YOU MAY HAVE ADDITIONAL CONSUMER RIGHTS UNDER YOUR LOCAL LAWS THAT THIS CONTRACT CANNOT CHANGE. WE EXCLUDE ANY IMPLIED WARRANTIES INCLUDING THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT AND NON-INFRINGEMENT.
YOU WARRANT THAT YOU HAVE READ AND FULLY UNDERSTAND THE TERMS OF THIS CONTRACT. YOU WARRANT THAT YOU WILL TAKE FULL RESPONSIBILITY FOR THE CONTENT OF YOUR STOREFRONT.
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.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT POPSHOPS AND ITS SUBSIDIARIES, 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 POPSHOPS.
The foregoing limitation includes, but is not limited to, the following:
It also applies even if:
You agree to indemnify and hold PopShops, the PopShops parties, and all subsidiaries, 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, your connection to the service, your violation of this contract, your violation of any rights of another, or any claims that result from your operation of your storefront, including, but not limited to, indecent content, claims you're your suppliers or customers related your storefront, and governmental regulatory claims related to your storefront.
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.
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. 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 occured, 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.
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/or without notice. Upon service cancellation, your right to use the 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. Once the service is cancelled or suspended, any data you have stored on the service may not be retrieved later.
All parts of this contract apply to the maximum extent permitted by law. A court may hold that we cannot enforce a part of this contract as written. If this happens, then you and PopShops will replace that part with terms that most closely match the intent of the part that we cannot enforce. The rest of this contract will not change. This is the entire contract between you and us regarding your use of the service. It supersedes any prior contract or statements regarding your use of the service. If you have confidentiality obligations related to the service, those obligations remain in force (for example, you may have been a beta tester) . The section titles in the contract do not limit the other terms of this contract.
We may assign this contract, in whole or in part, at any time with or without notice to you. You may not assign this contract, 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.
This contract is solely for your and our benefit. It is not for the benefit of any other person, except for permitted successors and assigns under this contract.
This contract is in electronic form. We have the right to send you certain additional information in connection with the service, including updates to this Terms of Service. There may be other information regarding the service that the law requires us to send 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.
We may provide required information to you:
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.
This contract is between you and PopShops. Washington state law governs the interpretation of this contract 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 this contract.
If you are a corporation, partnership or similar entity, then the rights to utilize the services granted under this contract are expressly conditioned upon and you represent and warrant to PopShops that the individual accepting the terms of this contract is authorized to bind such entity to the terms and conditions of this contract. If any provision of this contract is held to be invalid or unenforceable, it will be enforced to the extent permitted under applicable law and the remainder of this contract will remain in full force and effect. 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. You and PopShops are independent parties. This contract, 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 contract may not be varied except through a document agreed to and signed by both parties. 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.
If your shops exceed "fair usage" quotas (100,000 impressions per month) and or if your API server call volume exceed "fair usage" quotas (5000 API 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.
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.
All contents of the service are Copyright © 2006 PopShops All rights reserved.
Copyright and other intellectual property laws and treaties protect any software or content provided as part of the service. We or our suppliers own the title, copyright, and other intellectual property rights in the software or content. PrestoGifto, the PrestoGifto 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. The names of actual companies and products mentioned herein may be the trademarks of their respective owners. The example companies, organizations, products, domain names, e-mail addresses, logos, people, places and events depicted herein are fictitious. No association with any real company, organization, product, domain name, e-mail address, logo, person, places or events is intended or should be inferred. Any rights not expressly granted herein are reserved.
Please respect the rights of artists and creators. Content such as music, photos and video may be protected by copyright. People appearing in content may have a right to control use of their image. You may not share other people's content unless you own the rights or have permission from the owner.