Shopgate terms and conditions of service
The following terms apply only to merchants and retailers with a legal seat outside the European Union. For all merchants and retailers located in Germany or another European country, the German terms and conditions apply.
SHOPGATE IS ONLY WILLING TO PROVIDE THE SERVICES TO YOU UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS AGREEMENT. PLEASE READ THIS AGREEMENT CAREFULLY AS IT AFFECTS YOUR LEGAL RIGHTS AND REMEDIES.
Shopgate service (“Shopgate“ or the “Service”), owned and operated Shopgate Inc., 2225 E. Bayshore Road, Suite 200 Palo Alto, CA 94303, United States of America is provided to you under the terms and conditions of this Shopgate Merchant Agreement, and any amendments thereto and any operating rules or policies (collectively, the “SMA” or “Agreement”). Shopgate Inc. reserves the right, in its sole discretion, to change, modify, add or remove all or part of the SMA at any time. Merchant will receive notice of such changes and/or modifications pursuant to Section 14 regarding notices.
1.1 By accepting the terms and conditions of the SMA, Merchant (a) represents and warrants that he or she is 18 years old or older; (b) agrees to provide true, accurate, current and complete information about Merchant as prompted by the Account Registration Form; and (c) agrees to maintain and update this information to keep it true, accurate, current and complete. If any information provided by Merchant is untrue, inaccurate, not current or incomplete, Shopgate has the right to terminate Merchant’s account and refuse any and all current or future use of the Service.
1.2 BY COMPLETING THE ACCOUNT REGISTRATION PROCESS ON WWW.SHOPGATE.COM, YOU AGREE TO BE BOUND BY TO THIS SMA ONLY. If these terms and conditions or any future changes are unacceptable to you, you may cancel your account pursuant to Section 6.2 regarding non-renewal of service.
Shopgate hosts interactive online stores for Mobile Devices (Smartphones and Tablets) on the World Wide Web, a software to create and maintain native Apps for iOS, Android and potential further relevant mobile operating systems (“Store”) and may provide the Merchant with, among other things, access to its Shopgate Software (“Software”) as described on www.shopgate.com to facilitate the creation and maintenance of Stores for the sale of goods and services; and (ii) the listing of such Stores in the further Shopgate sales channels located at www.shopgate.com (“Online Store Services”).
The Shopgate Services are limited to the features, services and offers as listed and described on www.shopgate.com. Any further features or requirements must be agreed separately and are not part of this SMA.
To the extent that Your Store is in possession of cardholder data, Shopgate acknowledges that it is responsible for the security of that data and is compliant with the Payment Card Industry Data Security Standard (“PCI DSS”). For the most recent assessment of Shopgate completed by a PCI-approved Qualified Security Assessor (“QSA”), please contact us.
3.1 Merchant acknowledges and agrees that it shall be responsible for all goods and services offered at Merchant’s Store, all materials used or displayed at the Store, and all acts or omissions that occur at the Store or in connection with Merchant’s account or password. You agree that your use of the Service and your Store will be in compliance with the Shopgate Site Guidelines and any applicable laws and regulations at all times.
3.1.1 Merchant agrees to display in the Store Merchant’s contact information, including but not limited to Merchant’s company name, address, telephone number, fax number, and email address. Merchant also agrees to update such information to keep it true, accurate, current and complete.
3.1.2 Merchant agrees that any and all press releases and other public announcements related to this Agreement and subsequent transactions between Shopgate and Merchant, including the method and timing of such announcements, must be approved in advance by Shopgate in writing. Shopgate reserves the right to withhold approval of any public announcement in its sole discretion. Without limitation, any breach of Merchant’s obligation regarding public announcements shall be a material breach of the SMA.
3.1.3 Merchant represents and warrants that it has full power and authority under all relevant laws and regulations:
3.1.4 Merchant represents and warrants that it will not engage in any activities:
3.2 You agree to comply with the export, re-export, and import laws and regulations of the United States and other applicable countries where you operate or do business, including but not limited to the United States Export Administration Regulations, the antiboycott rules, and the Office of Foreign Assets Control regulations. Specifically, but without limitation, you represent and warrant that you:
You agree to comply with all applicable U.S. and non-U.S. laws, rules, regulations, and orders, including, but not limited to, tax and intellectual property, including copyright, content, sales, mail-order, commerce, and ecommerce laws and regulations. You shall be responsible for determining which laws or regulations are applicable to Your use of the Services. You shall, upon the request of Shopgate, provide Shopgate assurance of Your compliance with those laws. You acknowledge that Shopgate exercises no control whatsoever over the content of the information passing through Your site(s) and that it is Your sole responsibility to ensure that the information You and Your users transmit and receive complies with all applicable laws and regulations and the Shopgate Policies.
3.3 Shopgate reserves the right to refuse to host or continue to host any Store which it believes, in its sole discretion: (1) offers for sale goods or services, or uses or displays materials, that are illegal, obscene, vulgar, offensive, dangerous, or are otherwise inappropriate; (2) has substantially changed its Store from the time it was accepted; (3) has received a significant number of complaints for failing to be reasonably accessible to customers or timely fulfill customer orders; (4) has become the subject of a government complaint or investigation; or (5) has violated or threatens to violate the letter or spirit of the SMA.
4.1 Software License
Shopgate hereby grants Merchant a non-exclusive, non-transferable license to use the software in object code form only on a server controlled by Shopgate for the sole purpose of creating and maintaining stores on such a server. Merchant is not being granted any right to copy the software or to use it on computers other than a server controlled by Shopgate. Merchant may not use web pages or parts of web pages generated by means of the software, other than content that originates from and is proprietary to Merchant, on any server other than the servers controlled by Shopgate without Shopgate’s express written agreement. Merchant also acknowledges and agrees that the Software is intended for access and use by means of web browsing software, and that Shopgate does not commit to support any particular browsing platform. Shopgate reserves the right at any time to revise and modify the software, release subsequent versions thereof and to alter features, specifications, capabilities, functions, and other characteristics of the software, without notice to merchant. If any revision or modification to the software materially changes the merchant’s ability to conduct business, merchant’s sole remedy is to terminate the SMA pursuant to Section 6.2 regarding non-renewal of service.
4.2 Shopgate Intellectual Property
Merchant acknowledges and agrees that content available from Shopgate or the service, including but not limited to text, software, music, sound, logos, trademarks, service marks, photographs, graphics, or video, is protected by copyright, trademark, patent, or other proprietary rights and laws, and may not be used in any manner other than as specified in Section 4.1 above.
4.3 Merchant’s Property
The Merchant agrees that by using the service, the Merchant grants Shopgate, and its successors and assigns, a non-exclusive, worldwide, royalty-free, perpetual, non-revocable license under Merchant’s copyrights and other intellectual property rights, if any, in all material and content displayed in the Merchant’s store to use, distribute, display, reproduce, and create derivative works from such material in any and all media and display in any manner and on any Shopgate property the results of search queries and comparisons conducted on Shopgate, including, without limitation, searches conducted on or within Shopgate shops and the Service. Merchant also grants Shopgate the right to maintain such content on Shopgate’s servers during the term of the SMA and to authorize the downloading and printing of such material, or any portion thereof, by end users for their personal use.
4.4 Abusive User Behavior
Shopgate uses certain confidential internal and third-party tools and techniques to protect users from abusive and other harmful behavior on the internet and on the Shopgate servers. Shopgate reserves the right to take any action it deems necessary at its sole discretion, including, without limitation, account termination or suspension, to protect against such abusive or harmful behavior. Shopgate updates these tools, techniques, and practices from time to time as the abusive practices and industry standards change. You agree that Shopgate shall not be responsible or liable for any loss or damage of any sort incurred by you, or any third party, as the result of Shopgate taking or not taking any actions in response to any actual or perceived abusive user behavior.
(a) You may not spam our system and/or impose an unreasonably or disproportionately large load on our system. You may not put any material on a Shopgate site that contains any viruses, trojan horses, worms, time bombs, cancelbots, or other computer programming routines that may damage, interfere with, surreptitiously intercept, or expropriate any system, data, or personal information.
(b) upload, post, email, transmit, or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation, except in those areas (such as shopping rooms) that are designated for such purpose.
4.6 Unauthorized Access
Merchant shall not attempt to gain unauthorized access to any servers controlled by Shopgate.
4.7 Shopgate Account Function
You acknowledge that the web hosting service is offered as a platform to host and serve web pages and web sites and is not offered for other purposes, such as remote disk space storage. Accordingly, You understand and agree to use the web hosting service and access to native apps solely for the purpose of hosting and serving web pages as viewed through a web browser and the Hypertext Markup Language (HTML) protocol or other equivalent technology. The Shopgate Account is designed to serve the web hosting needs of independently owned and operated businesses in the United States and other countries as listed on www.shopgate.com.
Additionally, the purpose of Shopgate web hosting is to host web sites, not store data. Using an account primarily as an online storage space for archiving electronic files is prohibited. You further agree that if, at Shopgate’s sole discretion, you are deemed to have violated this section, or if Shopgate, at its sole discretion, deems it necessary due to excessive burden or potential adverse impact on Shopgate’s systems, potential adverse impact on other users, server processing power, server memory, abuse controls, or other reasons, Shopgate may suspend or terminate your account without notice to you and with no liability to Shopgate.
In consideration of the Services, Customer will pay to Shopgate all fees due according to the prices and terms listed on the website http://www.shopgate.com/us/pricing. All sales are final and Shopgate offers no partial or full refunds of any kind on any purchase unless otherwise expressly noted, even if your Services are suspended, terminated or transferred before the end of the Services. Shopgate expressly reserves the right to change or modify its prices and fees at any time, and such changes or modifications shall be posted online at this Site and effective immediately without need for further notice to you. If you have purchased Services for a period of months or years, changes or modifications in prices and fees shall be effective when the Services in question come up for renewal.
All payments are due upon signup, the Services will not begin until payment is received. All recurring charges will be due on the monthly anniversary date of your initial signup. It is Customer’s obligation to review all monthly charges for accuracy. Failure to dispute a charge within six (6) months following such charge shall constitute Customer’s agreement that all charges are valid and Customer agrees to waive any claims it may have had regarding such charge. If a payment is returned or rejected by Shopgate’s bank, or incurs additional costs for Shopgate (e.g., bank fees) for any reason, then Customer may be charged a service fee of $40 and be required reimburse all such fees and costs incurred by Shopgate, and Customer shall be immediately deemed to be in default of this Agreement. Accounts and all amounts in default are subject to a late payment charge of 1.5% per month, or the maximum amount permitted by law, whichever is greater, until fully paid. If Customer defaults, Customer agrees to pay Shopgate its reasonable expenses, including attorney, in house legal expenses and collection agency fees, incurred in enforcing its rights.
5.3. Billing Policies and Cycles
For Customers outside Germany we offer billing via PayPal or credit card. All initial fees must be paid prior to service setup. These fees may include service setup fees and yearly or monthly service charge. Our billing cycle begins on the day we setup your account, and is due on that day each year thereafter. Shopgate attempts to automatically charge the credit card on file for any past due invoice for current, suspended and cancelled accounts. Accounts suspended and reactivated must pay all past due and current amounts. Accounts past due over 30 days cannot be reactivated. You must sign up for new service and pay the full setup fees associated with the plan you choose. To cancel your account, you must follow the procedure in Section 18 ???. To ensure that you are not billed for another month of service, you must cancel your account before your billing cycle due date.
Note: All billing correspondence (invoices, notifications, etc.) is done via email. It is crucial that you maintain a current email address with us.
All fees stated on the http://www.shopgate.com/us/pricing for the Services are exclusive of all taxes, VAT and similar fees now in force or enacted in the future imposed on the transaction and/or the delivery of Services, all of which Customer will be responsible for and will pay in full, except for taxes based on Shopgate’s net income. If Shopgate is required to pay directly any such taxes, Customer will, upon receipt of Shopgate’s invoice, promptly reimburse Shopgate for any such taxes paid by Shopgate.
The term of the SMA shall be 1 year commencing on the date that Merchant opens an account for Merchant’s Store (the ‘Start Date’).
The term shall automatically renew for successive years at renewal rates applicable at the time, unless notice of non-renewal is provided in accordance with Section 6.2, below; provided, however, that to qualify for each renewal, the Merchant must at the time of renewal be in substantial compliance with the material terms and conditions of the SMA. Shopgate shall have the right, but not the obligation, to review any Store for compliance with the SMA as part of the renewal process, or at any time.
Either party, in its sole and absolute discretion, may give notice of non-renewal with or without cause and without stating any reason therefore. Any notice of non-renewal must be given at least ninety (90) days prior to the end of the current monthly period in order for the SMA to expire on the last day of that monthly period; otherwise, the SMA will expire on the last day of the following monthly period (i.e., if the start date were September 10, and Merchant were to provide Shopgate with notice of non-renewal on May 10 of the following year, then the SMA would expire on September 10th of the following year). All notices under this Section 6.2 must be given in the manner described in Section 14 regarding notice.
Either party may terminate the SMA on ten (10) days notice in case of a monthly contract period (according to our our pricing terms here) or ninety (90) days notice in case of a yearly or bi-yearly contract period, if the other party has materially breached or is otherwise not in compliance with any provision of the SMA, and such breach or noncompliance is not cured within a twenty (20) day period. Shopgate reserves the right to immediately suspend any customer access to the store until such breach or noncompliance is cured.
7.2 Termination for Illegal or Other Activity
Notwithstanding the foregoing, Shopgate may, but has no duty to, immediately terminate Merchant and remove it from Shopgate servers if Shopgate in its sole discretion concludes that Merchant is engaged in illegal activities or the sale of illegal or harmful goods or services, or is engaged in activities or sales that may damage the rights of Shopgate or others. Any termination under this Section 7.2 shall take effect immediately and Merchant expressly agrees that it shall not have any opportunity to cure.
Merchant expressly waives any statutory or other legal protection in conflict with the provisions of this Section 7.
7.4 Deletion of Information
Upon termination, Shopgate reserves the right to delete from its servers any and all information contained in Merchant’s account, including but not limited to order processing information, mailing lists, and any web pages generated by the software.
The provisions of Section 4 (Proprietary Rights), Section 8.1 (Merchant Information), Section 10 (Indemnity), and Section 11 (Disclaimer of Warranties and Liabilities) of this Agreement shall survive any termination of the Agreement.
8.1 Merchant Information
Shopgate maintains information about the Merchant and the Store on its Shopgate servers, including but not limited to Merchant’s account registration information, Merchant’s customer order information, sales information, and clickstream data (“Merchant Information”). Merchant grants to Shopgate a non-exclusive, worldwide, royalty-free, perpetual license to use Merchant Information in aggregate form (i.e., in a form that is not individually attributable to the Merchant) for research, marketing and other promotional purposes.
8.1.1 Merchant agrees that Shopgate may disclose Merchant Information in the good faith belief that such action is reasonably necessary: (a) to comply with the law; (b) to comply with legal process; (c) to enforce the SMA; (d) to respond to claims that the Merchant or Store is engaged in activities that violate the rights of third parties; or (e) to protect the rights or interests of Shopgate, Shopgate or others; provided, however, that nothing in this section shall impose a duty on Shopgate to make any such disclosures.
8.1.2 Merchant agrees that Shopgate may delete customer credit card information from Shopgate servers 14 days after Merchant retrieves such information, and may delete all other Merchant information from Shopgate servers at the end of each calendar year.
Merchant shall receive a password from Shopgate to provide access to and use of the Software and Online Store Services. Merchant is entirely responsible for any and all activities which occur under Merchant’s account and password. Merchant agrees to keep its password confidential, to allow no other person or company to use its account, and to notify Shopgate promptly if Merchant has any reason to believe that the security of its account has been compromised.
8.3 Technical Access
Merchant acknowledges and agrees that technical processing of Merchant information is and may be required: (a) for the service to function; (b) to conform to the technical requirements of connecting networks; (c) to conform to the technical requirements of the service; or (d) to conform to other, similar technical requirements. Merchant also acknowledges and agrees that Shopgate may access Merchant’s account and its contents as necessary to identify or resolve technical problems or respond to complaints about the Service.
9.1 Merchant can obtain assistance with any technical difficulty that may arise in connection with Merchant’s utilization of the Software or Online Store Services by contacting customer care. Shopgate reserves the right to establish limitations on the extent of such support, and the hours at which it is available.
9.2 Merchant is responsible for obtaining and maintaining all telephone, computer hardware and other equipment needed for its access to and use of the software and online store services and Merchant shall be responsible for all charges related thereto.
Merchant agrees to indemnify and hold harmless Shopgate, and its parents, subsidiaries, affiliates, officers, directors, shareholders, employees and agents, from any claim or demand, including reasonable attorneys fees, made by any third party due to or arising out of the Merchant’s conduct, Merchant’s use of the Service, the goods or services offered at Merchant’s Store, any alleged violation of the SMA, or any alleged violation of any rights of another, including but not limited to the Merchant’s use of any content, trademarks, service marks, trade names, copyrighted or patented material, or other intellectual property used in connection with Merchant’s Store. Shopgate reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Merchant, but doing so shall not excuse Merchant’s indemnity obligations.
THE SERVICE AND SOFTWARE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. NEITHER THIS AGREEMENT OR ANY DOCUMENTATION FURNISHED UNDER IT IS INTENDED TO EXPRESS OR IMPLY ANY WARRANTY THAT THE ONLINE STORE SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE OR THAT THE SOFTWARE WILL PROVIDE UNINTERRUPTED, TIMELY OR ERROR FREE SERVICE. THE SECURITY MECHANISM INCORPORATED IN THE SOFTWARE HAS INHERENT LIMITATIONS AND MERCHANT MUST DETERMINE THAT THE SOFTWARE ADEQUATELY MEETS ITS REQUIREMENTS. MERCHANT ACKNOWLEDGES AND AGREES THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT ITS OWN DISCRETION AND RISK AND THAT MERCHANT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO ITS COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. SHOPGATE, AND ITS PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS, SHALL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES OR LEGAL THEORIES WHATSOEVER, FOR ANY LOSS OF BUSINESS, PROFITS OR GOODWILL, LOSS OF USE OR DATA, INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER, EVEN IF SHOPGATE IS AWARE OF THE RISK OF SUCH DAMAGES, THAT RESULT IN ANY WAY FROM MERCHANT’S USE OR INABILITY TO USE THE ONLINE STORE SERVICES OR THE SOFTWARE, OR THAT RESULT FROM ERRORS, DEFECTS, OMISSIONS, DELAYS IN OPERATION OR TRANSMISSION, OR ANY OTHER FAILURE OF PERFORMANCE OF THE ONLINE STORE SERVICES OR THE SOFTWARE. SHOPGATE’S LIABILITY TO MERCHANT SHALL NOT, FOR ANY REASON, EXCEED THE AGGREGATE PAYMENTS ACTUALLY MADE BY MERCHANT TO SHOPGATE OVER THE COURSE OF THE EXISTING TERM. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR LIABILITIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
Merchant agrees not to resell or assign or otherwise transfer its rights or obligations under the SMA without the express written authorization of Shopgate.
Neither party shall be liable to the other for any delay or failure in performance under the SMA resulting directly or indirectly from acts of nature or causes beyond its reasonable control.
Any notices or communications under the SMA shall be by electronic mail or in writing and shall be deemed delivered upon receipt to the party to whom such communication is directed, at the addresses specified below. If to Shopgate, such notices shall be addressed to Shopgate Inc. 2225 E. Bayshore Road, Suite 200, Palo Alto, CA 94303, USA. If to Merchant, such notices shall be addressed to the electronic or mailing address specified when Merchant opens an account with Shopgate, or such other address as either party may give the other by notice as provided above.
The SMA constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all previous proposals, both oral and written, negotiations, representations, writings and all other communications between the parties.
The SMA and the relationship between Merchant and Shopgate shall be governed by the laws of the state of California without regard to its conflict of law provisions. Merchant and Shopgate agree to submit to the personal and exclusive jurisdiction of the Superior Court of the State of California for the County of Santa Clara or the United States District Court for the Northern District of California. Shopgate’s failure to exercise or enforce any right or provision of the SMA shall not constitute a waiver of such right or provision. If any provision of the SMA is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties intentions as reflected in the provision, and agree that the other provisions of the SMA remain in full force and effect. Merchant agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the SMA must be filed within one (1) year after such claim or cause of action arose, or be forever barred. The section titles in the SMA are for convenience only and have no legal or contractual effect.
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