Created April 1, 2017
This Merchant User License Agreement (the "Agreement") dated as of the date of acceptance by means of a click-through, is made by and among Shoptiques, Inc. a Delaware Corporation ("Shoptiques") and the entity designated by the registration data provided herewith ("Licensee") and applies to Licensee's use of Point of Sale software from Shoptiques and Licensee's use of Point of Sale services provided by Shoptiques ("Shoptiques Services").
READ THIS LICENSE CAREFULLY BEFORE LOADING ANY SOFTWARE FROM SHOPTIQUES OR USING THE SHOPTIQUES SOFTWARE OR SHOPTIQUES SERVICES. BY LOADING THE SHOPTIQUES SOFTWARE OR USING THE SHOPTIQUES SERVICES, LICENSEE ACCEPTS AND AGREES TO BECOME BOUND BY THE TERMS OF THIS LICENSE.
SHOPTIQUES RESERVES THE RIGHT TO MODIFY THE TERMS OF THIS AGREEMENT BY PROVIDING NOTICE OF CHANGES ON THE SHOPTIQUES WEBSITE. LICENSEE AGREES TO PERIODICALLY INSPECT THE SHOPTIQUES WEBSITE TO STAY INFORMED ABOUT SUCH CHANGES. LICENSEE AGREES THAT LICENSEE'S CONTINUED USE OF THE SHOPTIQUES SERVICE AFTER SUCH CHANGES ARE ANNOUNCED CONSTITUTES ACCEPTANCE OF SUCH CHANGES.
Shoptiques shall retain the ownership of the provided copy of Shoptiques software and the documentation provided therewith (referred to as a single entity, or as components, as "the Licensed Software") which is licensed on a non-exclusive basis for use under the following conditions.
Subject to the terms hereunder, Shoptiques hereby grants to Licensee a limited, non-exclusive, non-transferrable, revocable license, without the right to sub-license, to install and operate the Licensed Software and to operate an account on the Shoptiques website and related applications solely for the benefit of Licensee and not for any third party, until the termination of this Agreement. Any rights not expressly granted hereunder are reserved. There are no implied rights of any kind. To the extent that the Licensed Software includes intellectual property rights of any third party ("Third Party Rights"), the license granted is to the extent that Shoptiques is able to license such Third Party Rights.
Licensee shall not (a) make copies of or further distribute the Licensed Software, including copying onto any other medium, (b) distribute, rent, sublicense, lease, resell, or assign the Licensed Software, (c) alter, modify or adapt the Licensed Software or the Shoptiques Services, including but not limited to, translating, decompiling, disassembling, reverse engineering, or creating derivative works, (d) export the Licensed Software without the appropriate foreign government licenses and without Shoptiques's prior written approval, (e) resell, rent or otherwise provide access to the Shoptiques services to a third party or (f) take any action in an attempt to obtain any other Shoptiques user's data, cause malfunction, crash, tamper with or otherwise impair the Shoptiques website and related applications, and their services. Any rights not expressly granted hereunder are reserved by Shoptiques.
No rights in the Licensed Software or Shoptiques Services are granted, whether expressly or by implication, including, without limitation, any rights in any patents, copyrights, trademarks or trade secrets embodied therein, except in connection with the permitted uses expressly described herein.
NOTHING IN THIS AGREEMENT EXCLUDES OR LIMITS ANY LIABILITY TO THE EXTENT THAT THE SAME MAY NOT BE EXCLUDED OR LIMITED UNDER GOVERNING LAW.
LICENSEE AGREES THAT THE LICENSED SOFTWARE AND SHOPTIQUES SERVICES ARE PROVIDED "AS IS." WITHOUT ANY WARRANTY EXPRESS OR IMPLIED AND WHETHER AS TO MERCHANTABILITY, FITNESS FOR PURPOSE OR INFRINGEMENT. NO WARRANTY OR REPRESENTATION IS GIVEN, AND/OR ANY LIABILITY IS ACCEPTED, BY SHOPTIQUES IN RELATION TO THIRD PARTY RIGHTS. ANY USE OF THE LICENSED SOFTWARE AND SHOPTIQUES SERVICES IS AT LICENSEE'S SOLE AND ABSOLUTE RISK. IN NO EVENT, WILL SHOPTIQUES OR ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS OR CONSULTANTS ("SHOPTIQUES PARTIES") BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE LICENSED SOFTWARE OR THE SHOPTIQUES SERVICES, ERRORS IN OR LOSS OF ANY DATA. SPECIFICALLY, SHOPTIQUES IS NOT RESPONSIBLE FOR ANY COSTS INCLUDING, BUT NOT LIMITED TO, THOSE INCURRED AS A RESULT OF LOST PROFITS OR REVENUE, LOSS OF USE OF THE LICENSED SOFTWARE OR SHOPTIQUES SERVICES, LOSS OF DATA, THE COSTS OF RECOVERING DATA, ANY LOSSES INCURRED ARISING IN ANY WAY FROM USE OF THE OFFLINE CREDIT PAYMENTS FEATURE, ANY CLAIMS BY THIRD PARTIES, OR FOR ANY OTHER SIMILAR COSTS, LOSSES, OR DAMAGES YOU MIGHT INCUR. SHOPTIQUES MAKES NO WARRANTY OF ANY KIND AS TO THE SUITABILITY OR ADEQUACY OF THE LICENSED SOFTWARE OR SHOPTIQUES SERVICES FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. GIVEN THAT LICENSEE IS IN A BETTER POSITION THAN SHOPTIQUES TO FORESEE AND EVALUATE ANY POTENTIAL DAMAGE OR LOSS WHICH LICENSEE MAY SUFFER IN CONNECTION WITH THE USE OF THE LICENSED SOFTWARE AND/OR THE SHOPTIQUES SERVICES AND THAT SHOPTIQUES CANNOT ADEQUATELY INSURE ITS POTENTIAL LIABILITY TO LICENSEE, LICENSEE ACKNOWLEDGES AND AGREES THAT THE EXCLUSIONS AND LIMITATIONS CONTAINED HEREIN ARE REASONABLE. TO THE EXTENT THAT THE FOREGOING LIMITATION OF LIABILITY IS DETERMINED BY A COURT WITH JURISDICTION TO BE UNREASONABLE, SHOPTIQUES'S AGGREGATE LIABILITY SHALL NOT EXCEED $100. LICENSEE SHALL ACT AT ALL TIMES TO MITIGATE ANY LIABILITY.
LICENSEE ACKNOWLEDGES AND AGREES THAT SHARING OF ITS ACCOUNT INFORMATION, LOGIN INFORMATION OR PASSWORDS SHALL BE AT ITS SOLE AND ABSOLUTE RISK AND THAT SHOPTIQUES SHALL NOT BE LIABLE FOR ANY DAMAGE ARISING AS A RESULT OF SUCH SHARING.
Some countries do not allow the exclusion or limitation of implied warranties or limitation of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you
Licensee may terminate this license at any time by providing a 30 days' prior written notice. All fees paid are non-refundable. Shoptiques, in its sole discretion, has the right to suspend or terminate this license and your account and refuse any and all current or future use of the Shoptiques Services for any reason at any time. Licensee's duties to (i) pay amounts due and payable, (ii) refrain from any kind of reverse engineering or other act in violation of this agreement or (iii) indemnify Shoptiques and the Shoptiques Parties shall survive termination of this Agreement. Upon termination Licensee will destroy all copies of the Licensed Software and documentation onto which the Licensed Software or documentation has been installed. Upon termination Shoptiques shall terminate the Licensee's access to their Shoptiques account, the account itself and the data residing therein. LICENSEE MUST EXPORT THEIR ACCOUNT DATA PRIOR TO TERMINATION OF THE SHOPTIQUES SERVICE. SHOPTIQUES SHALL NOT BE RESPONSIBLE FOR LICENSEE ACCOUNT DATA AFTER TERMINATION. In addition, Shoptiques reserves the right and Licensee acknowledges such right for Shoptiques to terminate service of Licensee's account on 30 days' notice if Shoptiques determines in its sole discretion that it is not capable of fully meeting the apparent requirements of Licensee.
Licensee agrees that the Licensed Software and the operation of the Shoptiques Services and its processes are the confidential information of Shoptiques and agrees not to disclose such software or such operation and processes to any third party. Licensee agrees that breach of this duty of confidentiality shall cause irreparable harm for which monetary damages would be difficult to quantify or insufficient and therefore Shoptiques shall be entitled to immediate injunctive relief in the event of breach without an obligation of posting bond.
Shoptiques offers a 1-year warranty on all new non-Apple hardware products ordered on your behalf by Shoptiques staff prior to Installation Appointment. This warranty applies when products fail to function under normal use within 1 year of the original Installation Appointment. There may be additional warranties available provided by the manufacturer — contact product manufacturers for more details.
Shoptiques offers a 14-day limited warranty on all Apple products. This warranty applies when products fail to function under normal use within 14 days of the original purchase date. After 14 days contact Apple support for repairs and replacements under their standard warranty.
Shoptiques agrees to send a prepaid return shipping label to return the defective product back to Shoptiques. Shoptiques will return the product back to the manufacturer, so Shoptiques must receive the defective product back, shipped with the provided return label, within 10 business days or Shoptiques will have to charge Licensee for the replacement.
Licensee understands Shoptiques is not a member of the Payment Card Networks and does not provide payment card processing services. Licensee understands that in order to obtain Credit Card Processing Services, Licensee will need to enter into a separate merchant services agreement with such credit card processing provider. Licensee understands and agrees that Shoptiques will in no way be responsible for, have an ownership interest in, or be a party to the merchant contract between Licensee and such credit card processing provider.
Licensee shall be responsible for the operation and connection of their point of sale equipment with the payment gateway and credit card processing provider(s)'s systems and services.
Licensee agrees that Shoptiques shall not be liable for any improperly processed transactions, illicit access to Licensee's account with its payment gateway provider(s) or any of Licensee's transaction data or unauthorized disclosure and use of passwords or its payment gateway provider(s)'s account access information.
YOU HEREBY INDEMNIFY AND AGREE TO HOLD SHOPTIQUES HARMLESS FROM ANY CLAIM, (INCLUDING ANY ASSOCIATED DAMAGES, COSTS AND REASONABLE ATTORNEYS FEES INCURRED BY SHOPTIQUES OR ITS AFFILIATES) BROUGHT AGAINST SHOPTIQUES OR ITS AFFILIATES BY ANY THIRD PARTY ARISING FROM OR IN CONNECTION WITH ANY LOSS OR DAMAGE WHOLLY OR PARTIALLY CAUSED BY YOUR USE OF THE OFFLINE CREDIT PAYMENTS FEATURE IN ORDER TO ACCEPT CREDIT CARD TRANSACTIONS WITHOUT AUTHORIZATION WHERE SUCH TRANSACTIONS ARE SUBSEQUENTLY DENIED BY THE TRANSACTION PROCESSOR FOR ANY REASON.
LICENSEE AGREES THAT USE OF THE PAYMENT GATEWAY PROVIDER(S)'S SYSTEMS OR SERVICES IS AT LICENSEE'S SOLE AND ABSOLUTE RISK AND THAT NEITHER SHOPTIQUES, NOR ANY SHOPTIQUES PARTY SHALL BE LIABLE IN ANY WAY OR UNDER ANY THEORY IN THE EVENT OF ANY CLAIM, DAMAGE OR EXPENSE INCURRED BY LICENSEE ARISING FROM USE OF THE PAYMENT GATEWAY PROVIDER(S)'S SYSTEMS OR SERVICES. LICENSEE ACKNOWLEDGES THAT SHOPTIQUES IS NOT RESPONSIBLE FOR ITS PAYMENT GATEWAY AND CREDIT CARD PROCESSING PROVIDER(S)'S SYSTEMS AND THAT NO WARRANTY FOR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, EXPRESS OR IMPLIED, ARISES ON THE PART OF SHOPTIQUES. LICENSEE AGREES THAT LICENSEE'S SOLE RECOURSE IN THE EVENT OF ANY CLAIM IS AGAINST ITS PAYMENT GATEWAY AND CREDIT CARD PROCESSING PROVIDER(S) AND LICENSEE HEREBY IRREVOCABLY RELEASES AND WAIVES ANY CLAIM IT HAS OR MAY HAVE, WHETHER OR NOT INCHOATE, AGAINST SHOPTIQUES AND THE SHOPTIQUES PARTIES ARISING FROM USE OF ITS PAYMENT GATEWAY AND CREDIT CARD PROCESSING PROVIDER(S)'S SYSTEMS.
The Licensee represents and warrants that it has the due right and power to enter into this Agreement, entering into this Agreement will not cause the breach of any agreement Licensee has with a third party and that all of the registration information provided to Shoptiques is accurate in all respects. The Licensee also represents and warrants that it will continue to comply with Shoptiques, Inc. Terms & Conditions signed with Shoptiques, Inc. upon joining Shoptiques platform.
This Agreement shall be construed under the laws of the State of New York, U.S.A. as applied to contracts performed entirely within the state. Any dispute arising under this Agreement shall be exclusively heard in the state or federal courts residing in New York County, New York, U.S.A. Each party hereto consents to the jurisdiction of such courts with regard to matters arising in connection with this Agreement and waives any claim it has that such a forum is inconvenient.