Last Updated: June 5, 2026
These Terms of Service constitute a legally binding agreement made between you, whether personally or on behalf of an entity (“Customer”, “you”, or “Shop”) and Shopmonkey, Inc., including its affiliates ("Shopmonkey", “we”, “us”, or “our”), concerning your access to and use of our websites (including shopmonkey.io and our mobile websites, referred to as the “Sites”), applications and mobile applications (“Mobile App”), software services and professional services, as well as any media, information, or content made available therein, therefrom or otherwise related to or connected therewith (collectively, the “Services”).
SHOPMONKEY PROVIDES THE SERVICES (AS DEFINED BELOW) SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS SHOPMONKEY TERMS OF SERVICE (THE “AGREEMENT”) AND ON THE CONDITION THAT CUSTOMER ACCEPTS AND COMPLIES WITH THEM. PLEASE READ THESE TERMS CAREFULLY. BY CLICKING “I ACCEPT”, BY EXECUTING OR SUBMITTING ANY SHOP SERVICES AGREEMENT (AS DEFINED BELOW), OR BY ACCESSING OR USING THE SHOPMONKEY SERVICES(S) IN ANY MANNER, CUSTOMER (AS DEFINED BELOW): (A) ACKNOWLEDGES THAT CUSTOMER HAS READ, UNDERSTANDS, AND AGREES TO BE BOUND BY THESE TERMS; (B) AFFIRMS THAT CUSTOMER IS AT LEAST 18 YEARS OF AGE (OR HAS REACHED THE AGE OF MAJORITY IN THE JURISDICTION WHERE CUSTOMER RESIDES); AND (C) IF CUSTOMER IS ACCEPTING THESE TERMS ON BEHALF OF A COMPANY OR OTHER ORGANIZATION, REPRESENTS AND WARRANTS THAT CUSTOMER HAS THE ORGANIZATIONAL AND LEGAL AUTHORITY TO ACCEPT THESE TERMS ON SUCH COMPANY’S OR OTHER ORGANIZATION’S BEHALF AND TO BIND SUCH COMPANY OR ORGANIZATION. IF CUSTOMER DOES NOT AGREE WITH THE AGREEMENT, THEN CUSTOMER IS EXPRESSLY PROHIBITED FROM USING THE SERVICES AND CUSTOMER MUST DISCONTINUE USE IMMEDIATELY.
Supplemental terms and conditions or documents that may be posted on the Sites from time to time are hereby expressly incorporated herein by reference. We may make changes to the Agreement from time to time. Please check the Agreement periodically for changes. Revisions will be effective immediately except that, for existing users, material revisions will be effective 30 days after posting or notice to you of the revisions (unless otherwise stated). We may also require that you accept modified Terms in order to continue to use the Services. We will further alert you about any changes by updating the “Last updated” date of the Agreement. If you do not agree to the modified Agreement, then you should remove your Customer Data and discontinue your use of the Services. Please note that if Customer has certain negotiated terms with Shopmonkey that do not permit Shopmonkey to make unilateral changes, those negotiated terms will remain the same and not be affected by the updated terms.
By creating an account or using the Services, Customer agrees to the Agreement and the documents linked below, each of which is part of the Agreement and incorporated by reference:
The current version at each posted URL controls.
1.1 Scope. The Agreement shall apply to the licensing of the Services, as ordered by Customer in the applicable Shop Services Agreement. Shopmonkey provides shop management SaaS, inclusive of functionality for job estimating, tire sales, invoicing, payments, customer relationship management, inventory, reporting and other functionality as may be added from time to time.
1.2 Definitions. Capitalized terms not otherwise defined shall have the meaning set forth in this section.
1.2.1 “Affiliate” means any individual, corporation, partnership, or business entity that controls, is controlled by, or is under common control by an entity with an ownership of more than 50% of the voting shares.
1.2.2 “Agreement” means, collectively, this Shopmonkey Terms of Service, the Shop Services Agreement, and/or any SOWs executed by the parties.
1.2.3 “Shopmonkey Properties” means the Services and Documentation, including all copies, portions, extracts, selections, arrangements, compilations, adaptations, modifications and improvements thereof, and all derivative works of any of the foregoing.
1.2.4 “Customer” means the company defined in the Shop Services Agreement, which orders the Services and whose Users access and use the Services.
1.2.5 “Customer Data” means any pages, data, information, or other content, including but not limited to text, photographs, videos, other audiovisual or informational content, and any other works of authorship or other works that is made available, by or on behalf of Customer or any User, for input, upload to or access, analysis, or processing by the Services and all Output from the Services.
1.2.6 “Customer System” means any on-premise, private cloud, or other system, or application owned, operated, licensed or managed by Customer or its Affiliate which the applicable Services is connected with.
1.2.7 “Documentation” means Shopmonkey’s published user documentation that describes the design, functions, operation, or use of the Services ordinarily made available to all its customers.
1.2.8 “Fees“ means any fees which Customer is required to pay in accordance with the Agreement and the Shop Services Agreement.
1.2.9 “Input" means Customer Data submitted by or on behalf of Customer to the AI Services for processing.
1.2.10 “Intellectual Property Rights” means all intellectual property rights, including copyrights, trademarks, service marks, trade secrets, patents, patent applications, moral rights, and all other proprietary rights, whether registered or unregistered.
1.2.11 "Output" means content generated by the AI Services in response to an Input.
1.2.12 "Product Specific Services" means additional services or features offered by Shopmonkey from time to time that are subject to additional terms and conditions as set forth in the Product Specific Terms.
1.2.13 “Shop Services Agreement” means the Shop Services Agreement for Services, or any other document as agreed by the parties, specifying the options chosen by Customer for the Services as well as Fees and additional conditions.
1.2.14 “Services” means the services made available by Shopmonkey to Customer as SaaS under the Shop Services Agreement.
1.2.15 “Support” means support services in connection with the Services under the respective support plan indicated in the Shop Services Agreement.
1.2.16 “Term” means the duration of the license subscription for the Services and the Support as set forth in the applicable Shop Services Agreement.
1.2.17 “Third-Party Service” means third-party services, technology, or applications which are not provided by Shopmonkey, including Customer’s own hardware or systems and third-party applications which host Customer Data.
1.2.18 “User” means a Customer employee or contractor who is authorized by Customer and licensed to use the Services on behalf of Customer.
2.1 Services Usage Rights. Subject to the terms and conditions of the Agreement, including payment by Customer of the Fees, Shopmonkey hereby grants to Customer, during the Term of the applicable Shop Services Agreement, a limited, non-exclusive, non-transferable, non-sublicensable, worldwide license for its Users to (a) access and use the Services, solely for Customer’s internal business purposes up to the permitted metrics listed in the Shop Services Agreement and (b) install and use one object code copy of any Mobile App associated with the Services obtained from a legitimate marketplace (whether installed by Customer or pre-installed on Customer's mobile device by the device manufacturer) on a mobile device that Customer owns or controls. By way of example only, if Customer has 10 employees and a sole shop location in Customer's company, and if Customer has only paid for 3 User subscriptions, Customer is granted a limited non-exclusive license to have up to 3 employees only access the Services, without substitution. Any license overages will be charged in accordance with Section 3.4. Shopmonkey shall make available the Services over the Internet as SaaS. Access credentials for the Services may not be shared with third parties. Customer shall be responsible for all use of the Services by Users. Further, if Shopmonkey provides Customer with any API or software outside the Services (“Ancillary Software”), Shopmonkey hereby grants Customer a limited, non-exclusive, non-transferable right to use one object code copy of that Ancillary Software solely in connection with Customer's use of the Services. Customer hereby grants Shopmonkey a nonexclusive, worldwide, transferable and sublicensable (solely to third party subprocessors required to provide the Services), revocable, royalty-free, fully paid-up license to extract, process, display, copy, store, transmit, modify, and otherwise access and use the Customer Data for purposes of providing Services and making Services available to Customer and its Users during the Term.
2.2 Registration; Rules For User Conduct And Use Of The Services. SHOPMONKEY WILL NOT BE RESPONSIBLE FOR ANY LOSSES OR DAMAGES ARISING OUT OF OR RELATED TO THE UNAUTHORIZED USE OF Customer's ACCOUNT NAME, PASSWORD AND/OR ACCOUNT. Customer may not, and Customer must ensure that Customer's Users do not share accounts with each other or any other individuals. Customer is responsible and liable for ensuring that Customer's Users (or anyone else using Customer's accounts or the accounts of your Users) comply with the terms of the Agreement. Customer must register for and maintain an account with Shopmonkey to access the Services. When registering, Customer may be required to provide Shopmonkey with some information about Customer, such as your name, email address, or other contact information. Customer must provide accurate and complete information and promptly update this information. If Customer provides any information that is inaccurate or incomplete, or Shopmonkey has reason to believe that the information is inaccurate or incomplete, Shopmonkey may suspend or terminate Customer's account and Customer's use of the Services. Only authorized users may use Customer's account to use the Services and conduct other activities with Shopmonkey. When Customer registers, Customer will be asked to create a password. Customer agrees to keep Customer's password confidential and will be responsible for all use of Customer's account and password. Customer will not allow use of Customer's credentials to access the Services through automated or non-human means, whether through a bot, script or otherwise. Shopmonkey reserves the right to remove, reclaim, or change a username or any end-customer facing names, slogans, or other content Customer selects, if Shopmonkey determines, in our sole discretion, that is inappropriate, obscene, or otherwise objectionable. Customer agrees to immediately notify Shopmonkey at support@shopmonkey.io for: (x) any unauthorized use of Customer's password and/or account and/or (y) if Customer believes that Customer's account is no longer secure. Customer agrees to access and use Services solely for Customer’s internal business purposes, in accordance with the Documentation, and in accordance with all applicable laws. Customer shall not (and shall ensure that Customer’s Users do not) nor permit any third parties to: (i) copy, reproduce, frame, mirror, modify, decompile, disassemble, create derivative works based on, scrape or reverse engineer Services or any associated software or materials (except to the extent that applicable law prohibits or restricts reverse engineering restrictions); (ii) provide any third parties with access to any of Services, or use any part of Services for time sharing or similar purposes for the benefit of any third party; (iii) sell, resell, rent or lease Services; (iv) remove any copyright or proprietary notices contained in Services or any Output thereof; (v) breach, disable or tamper with, or develop or use (or attempt) any workaround for, any security measure provided or used by Services; (vi) access or use (or permit a third party to access or use) Services for any unlawful purpose or for purposes of monitoring the availability, performance or functionality of Services or for any other public benchmarking or competitive purposes; (vii) attempt to gain unauthorized access to Services or any related systems, software or networks; (viii) access Services in order to build competitive services, or copy any features, functions or graphics of Services; (ix) use Services to transmit viruses or malicious code; or (x) make any use of, or take any other action with respect to, Services or any component thereof in a manner that violates applicable law or any provision of the Agreement. Shopmonkey may immediately, at its sole discretion, and without any liability to Customer arising from such termination, without notice, suspend or terminate Customer's access to the Services and terminate the Agreement for any of the following reasons: (a) Customer’s breach any provision of the Agreement; (b) Shopmonkey determines that Customer's use of the Services poses a security risk to us or to another user of the Service; (c) Customer introduces a malicious program into the network or a virtual machine instance; (d) Customer causes network interference that affects Services performance for other customers; (e) Customer uses the Services in a way that Shopmonkey determines, in our sole discretion, is abusive or disrupts or threatens the performance or availability of the Service; or (f) Shopmonkey receives notice or Shopmonkey otherwise determines, in our sole discretion, that Customer may be using the Services for an illegal purpose or in a way that violates the law or violates, infringes, or misappropriates the rights of any third party. Customer shall be liable to Shopmonkey for any violation of the terms and conditions of the Agreement by Customer or by any User.
2.3 Services Support. If applicable, Shopmonkey shall provide Customer with Support in respect for Services as listed in the Shop Services Agreement.
2.4 Technical Requirements. Access to and use of Services by Customer and any Users is dependent upon access to telecommunications and Internet services. Customer acknowledges that Customer, and not Shopmonkey, is responsible for acquiring and maintaining any telecommunications or Internet services or other hardware or software that Customer or its Users may need to access and use Services, and for all costs, fees, expenses, and taxes of any kind related to the foregoing.
2.5 Ownership of Intellectual Property. Shopmonkey retains all rights, title, and interest, including all Intellectual Property Rights, in and to the Shopmonkey Properties. Customer retains all rights, title, and interest in and to the Customer Data. Customer may not remove, alter, or obscure any proprietary rights notices contained in or affixed to the Shopmonkey Properties.
2.6 No Rights by Implication. Except for the rights expressly granted in the Agreement, no license or right is granted to Customer by Shopmonkey by implication or otherwise.
2.7 Feedback. To the extent Customer or any User provides Shopmonkey with any suggestions, feature requests, evaluation results, feedback, or other input in relation to any aspect of the Services or other Shopmonkey Properties (collectively, “Feedback”), Customer hereby assigns and agrees to assign to Shopmonkey all right, title and interest in and to such Feedback, including any Intellectual Property Rights therein, and acknowledges and agrees that Shopmonkey is free to use such Feedback in any manner, including by implementing such Feedback in Shopmonkey’s Services and services, without compensation or other obligation to Customer or any User, and without any attribution to Customer or any User.
2.8 Open Source Component(s). Customer acknowledges that certain software components of the Services may be covered by open source licenses as promulgated by the Open Source Initiative or as promulgated by the Free Software Foundation (“Open Source Component”). To the extent required by such open source license for respective Open Source Component, the terms of such license will apply to such Open Source Component in lieu of the relevant provisions of the Agreement. If such open source license prohibits any of the restrictions in the Agreement, such restrictions will not apply to such Open Source Component. Shopmonkey shall provide Customer with a list of Open Source Components upon Customer’s request.
2.9 AI Services.
2.9.1 The Services incorporate artificial intelligence and machine learning features, including third-party AI-powered tools, automated agents, and large language models (collectively "AI Services"). Customer's administrators may enable or disable AI Services through the Services settings. Customer's use of the AI Services involves sharing Customer Data with third-party AI Services providers to generate Outputs and trigger actions. Customer authorizes Shopmonkey to share Customer Data with these providers. Shopmonkey's agreements with AI Services providers require them to maintain the confidentiality of Customer Data and delete Customer Data promptly after the applicable Output or process is complete (except where retention is required by applicable law or necessary to detect and prevent violations of the providers’ applicable policies). Shopmonkey is not liable for any unavailability, errors, or degraded performance of the AI Services caused by third-party AI Services providers.
2.9.2 Service Improvement. Unless Customer opts out, Shopmonkey may use the Inputs and Outputs generated through Customer's use of the AI Services to develop, improve, and evaluate the Services (including the AI Services). This does not grant Shopmonkey access to other Customer Data beyond those specific Inputs and Outputs. Shopmonkey will not disclose Customer Data to other customers. Upon opt-out, Shopmonkey will cease such use within a commercially reasonable period. Opt-out applies prospectively only and does not require Shopmonkey to reverse any prior use. Opting out may limit certain features or the optimization of the Service.
2.9.3 Customer Responsibilities. (a) Customer is responsible for reviewing all Outputs for accuracy and appropriateness before use; Shopmonkey does not guarantee that Outputs will be accurate, complete, or suitable for any purpose. (b) Where Customer uses automated agent functionality within the AI Services, Customer is responsible for configuring permissions, authorizing actions, and reviewing results, and is responsible for all actions taken by automated agents as if taken by the authorizing User. (c) All interactions with the Service initiated by automated systems, agents, or programmatic workflows on Customer's behalf constitute Customer's use of the Service and count toward applicable usage limits; Customer assumes all risk associated with third-party systems, integrations, or agent frameworks that Customer authorizes to access the Service, and Shopmonkey is not liable for any loss or damage arising from such access. (d) The AI Services are not a substitute for professional judgment; Customer may not use the AI Services where use or failure could lead to death, personal injury, or environmental damage, or to make or materially support consequential decisions about individuals without appropriate human oversight as required by applicable law. (e) Customer is solely responsible for ensuring that its use of agents through the Service complies with the terms, policies, and technical requirements of any Third-Party Service, website or platform accessed by or on behalf of Customer. Customer acknowledges that any third-party service, website or platform may at any time restrict, suspend, or prohibit the use of agents, and that such restrictions may result in loss of functionality and/or interruption of workflows of the Service and Shopmonkey shall have no obligation to modify the Service to accommodate such changes.
2.10 Third-Party Services. The Service may integrate with Third-Party Services. Customer is responsible for enabling and configuring each integration. Shopmonkey may share or receive Customer Data through these integrations to provide the Service. Third-Party Services are not under Shopmonkey's control, and Customer's use of them is governed by Customer's agreement with the applicable provider.
3.1 Payment Terms. Except as otherwise agreed to by the parties in writing, Fees will be due and payable in advance at the outset of the Services. Customer shall provide Shopmonkey with accurate billing and contact information and notify Shopmonkey of any changes to such information.
3.2 Fees. Certain features and other current or future Services may involve usage-based fees or costs, including applicable taxes and governmental fees; such costs and fees will be published or otherwise disclosed to Customer when Customer signs up for or activates the use of such Services. Some such Fees may be billed to Customer in arrears. Customer is responsible for usage and other fees and taxes incurred by Customer's usage of the Services. All Fees are non-refundable and non-cancellable except as otherwise set forth herein.
3.3 Renewal Term Fees. Shopmonkey reserves the right to increase the Fees payable by Customer for any Shop Services Agreement renewal upon at least thirty (30) days’ written notice to Customer prior to expiration of the applicable Shop Services Agreement’s then-current Term.
3.4 Subscriptions and True up. Except as otherwise provided in the applicable Shop Services Agreement: (i) Services licenses are purchased for the Term stated therein; (ii) additional license metric quantities (for example additional Users or payment card readers), tier upgrades, and/or Services features may be added during a Term at the pricing as stated in the Shop Services Agreement and shall be co-terminated and prorated for the remainder of the applicable Term. License quantities cannot be decreased during the Term. If Customer’s actual license usage exceeds the license usage quantity (determined monthly) set forth in the Shop Services Agreement, Shopmonkey will notify Customer (email sufficing) of such overage and will invoice Customer the Fees for the excess license usage, prorated for the remainder of the then-current Term.
3.5 Self Serve Subscription Services. The Services may include certain subscription-based plans with automatically recurring payments for periodic charges (“Subscription Service”). The “Subscription Billing Date” is the date when you purchase your first subscription to the Services. The Subscription Service will begin on the Subscription Billing Date and continue for the subscription period selected (such period, the “Initial Subscription Period”), and will automatically renew for successive periods of the same duration as the Initial Subscription Period (the Initial Subscription Period and each such renewal period, each a “Subscription Period”) unless you cancel the Subscription Service or we terminate it. If you activate a Subscription Service, then you authorize Shopmonkey or its third-party payment processors to periodically charge, on a going-forward basis and until cancellation of the Subscription Service, all accrued sums on or before the payment due date. For information on the “Subscription Fee”, please see our Pricing Page. Your account will be charged automatically on the Subscription Billing Date and thereafter on the renewal date of your Subscription Service for all applicable fees and taxes for the next Subscription Period. Shopmonkey or its third-party payment processor will bill the periodic Subscription Fee to the payment method associated with Customer’s account or that Customer otherwise provides to Shopmonkey. You may cancel the Subscription Service by contacting your Shopmonkey service rep. YOUR CANCELLATION MUST BE RECEIVED BEFORE THE RENEWAL DATE IN ORDER TO AVOID CHARGE FOR THE NEXT SUBSCRIPTION PERIOD.
3.6 Interest, Suspension and Termination for Unpaid Fees. If any Fees payable under the Agreement are not paid when due then, without prejudice to Shopmonkey’s other rights under the Agreement, that sum will bear interest from the due date until the date when payment is received by Shopmonkey, both before and after any judgment, at the rate of one and a half percent (1.5%) per month, or if lower the maximum rate allowed by applicable law. In the event Customer in good faith disputes any Fees due under any invoice issued by Shopmonkey, Customer shall pay the undisputed amount, and the parties shall use diligent efforts to resolve any such dispute. After providing written notice to Customer with a grace period of seven (7) days, which notice may be made via the Services, Shopmonkey may suspend or terminate access to the Services, including usage and fee-based portions of the Services, for any account for which any amount is due but unpaid, including, but not limited to amounts due for Subscription Fees or usage fees, taxes or charges. In addition to the amount due for the Services, a delinquent account will be charged with fees, charges or expenses (including attorneys’ fees) that are incidental to any chargeback or collection of any unpaid amount, including collection fees. If Customer's payment method is no longer valid at the time a renewal Subscription Services fee is due, Shopmonkey will attempt to contact you to reestablish payment within seven (7) days, but, if a payment method is not re-established in such period, Shopmonkey reserves the right to delete Customer's account without any liability to Customer.
3.7 Payment Processors. Certain Services may be paid for via a third party that processes Customer's payments (each a "Payment Processor"). Customer's obligation for payment to, and relationship with, such Payment Processor is between Customer and such Payment Processor and is governed by the Customer’s agreement with such Payment Processor. If Customer elects to use a Payment Processor in connection with the Services, Customer acknowledges and agrees that information about Customer, the Agreement and any Shop Services Agreements may be disclosed to such Payment Processor.
3.8 Taxes. All payments, Fees, and any other charges payable by Customer to Shopmonkey under the Agreement are exclusive of all local, state, federal and foreign taxes, levies and duties of any nature, including sales, goods and services, value added, property, excise, withholding and use taxes (collectively, “Taxes”). Customer shall bear, and is responsible for paying, all Taxes imposed on Customer or Shopmonkey arising out of the Agreement, excluding any tax based on Shopmonkey’s net income. Estimated taxes are not included in the Shop Services Agreement. Customer's invoice will reflect the final taxes in effect at the time of invoicing based on the address for the business(es). Customer must claim any exemption for all applicable taxes at the time of purchase and provide any/all exemption certifications and email documentation to finance@shopmonkey.io.
3.9 Professional Services. Shopmonkey may offer certain data migration or related professional services (“Professional Services”) as stated in a statement of work (“SOW”) mutually signed by the parties.
3.10 Free Trials and Early Access. Customer’s subscription to the Services may be preceded by a trial (a “Trial”). If Customer receives a Trial, Customer may only use those portions of the Services included in the Trial and only for the duration of that Trial, in each case as communicated by Shopmonkey to Customer in writing, and only for the purpose of evaluating the desirability of purchasing a subscription to the Services. Upon the expiration of any Trial, Customer’s access to the Services will cease, except to the extent Customer has purchased and/or registered for a subscription license under a Shop Services Agreement in accordance with the terms hereof. If Customer obtains a subscription to a new feature or any add-on to the Services designated by us as “Preview”, “Beta”, “Early Access” or “Evaluation Services” which we may provide for free or not (an “Early Access Service”), notwithstanding any other terms to the contrary, Customer may use such Early Access Service only for Customer's internal demonstration, test, or evaluation purposes. NOTWITHSTANDING ANY TERMS TO THE CONTRARY IN THE AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL REPRESENTATIONS, WARRANTIES, CONDITIONS, GUARANTEES AND OTHER KINDS OF PROMISES, EXPRESS OR IMPLIED, FOR EARLY ACCESS SERVICE AND THEY ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EARLY ACCESS SERVICE HAVE A LIMITED SUBSCRIPTION TERM AND WE MAY “TIME OUT” AND DISABLE THE EARLY ACCESS SERVICES OR OTHERWISE DISCONTINUE Customer's ACCESS AND USE OF THE EARLY ACCESS SERVICE AT ANY TIME WITHOUT PRIOR NOTICE. Customer will not attempt to defeat or circumvent any duration mechanism for the Early Access Service and will not use any Early Access Service beyond the prescribed term of early access. Customer's use of an Early Access Service may be subject to additional terms and conditions that Customer must agree to when accessing the Early Access Service.
4.1 Limited Warranty. Shopmonkey warrants to Customer that the Services will conform in all material respects to the Documentation in effect during the Term. Notwithstanding any provision of the Agreement to the contrary, Shopmonkey shall not have any obligation under this section to the extent a nonconformity of the Services is the result of (a) the Services having been modified, repaired, or reworked by any party other than Shopmonkey or a third party on behalf of Shopmonkey, (b) any use of the Services in conjunction with another Services or service not recommended in the Documentation, (c) any damage to the Services beyond Shopmonkey’s reasonable control, or (d) any use of or access to the Services not in conformance with the Documentation. The limited warranty set forth in this section does not apply, and is fully excluded, in cases of Trial use of the Services. If the Services does not conform to the warranty, Shopmonkey will, as its sole and exclusive obligation and as Customer’s sole and exclusive remedy for breach of this warranty, at Shopmonkey’s election (i) use commercially reasonable efforts to correct such nonconformity provided the non-conformance can be recreated by Shopmonkey or (ii) replace the nonconforming Services or (iii) if Shopmonkey is unable to accomplish either of the foregoing in a commercially reasonable amount of time, Shopmonkey may terminate the Shop Services Agreement for the affected Services and Customer shall be entitled to a pro-rata refund of the Fees paid corresponding to the period of discontinuation of the affected Services. Customer shall notify Shopmonkey in writing, specifically describing the non-conformity of the Services and Shopmonkey shall verify the existence of such non-conformity before proceeding as set forth in this Section 4.1.
4.2 Representation. Each party represents that it has validly entered into the Agreement and has the legal power to do so.
4.3 DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 4.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SHOPMONKEY PROPERTIES AND AI SERVICES ARE PROVIDED BY SHOPMONKEY “AS IS” AND ON AN “AS-AVAILABLE” BASIS, AND NEITHER SHOPMONKEY NOR ITS THIRD-PARTY LICENSORS MAKE ANY OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, BY STATUTE, USAGE, TRADE CUSTOM, OR OTHERWISE WITH RESPECT TO THE SHOPMONKEY PROPERTIES, AND SHOPMONKEY DISCLAIMS ANY AND ALL WARRANTIES, REPRESENTATIONS, OR CONDITIONS RELATING THERETO INCLUDING, WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR ANY INTENDED OR PARTICULAR PURPOSE. SHOPMONKEY DOES NOT GUARANTEE THAT ANY OF THE SHOPMONKEY PROPERTIES, OUTPUT, OR AI SERVICES WILL BE FREE OF DEFECTS, RUN ERROR-FREE OR UNINTERRUPTED OR MEET CUSTOMER’S REQUIREMENTS. AS BETWEEN CUSTOMER AND SHOPMONKEY, CUSTOMER ASSUMES ALL RISK IN CONNECTION WITH ITS USE OF, INTERPRETATION OF, AND RELIANCE ON THE SHOPMONKEY PROPERTIES, OUTPUT AND AI SERVICES AND ALL CONTENT, RESULTS, AND OUTPUTS GENERATED THEREBY, AND ALL DATA AND INFORMATION MADE AVAILABLE, ACCESSIBLE, OR EXPORTABLE VIA THE SERVICES. CUSTOMER EXPRESSLY AGREES AND ACKNOWLEDGES THAT PERFORMANCE OF THE SERVICES AND THE DEVELOPMENT, DELIVERY AND AVAILABILITY OF ANY OUTPUTS THEREOF IS DEPENDENT UPON AND SUBJECT TO THE AVAILABILITY OF CUSTOMER DATA. SHOPMONKEY SHALL HAVE NO RESPONSIBILITY OR LIABILITY WHATSOEVER FOR ANY CUSTOMER DATA, OR FOR ANY LOSS, DAMAGE, OR OTHER ISSUE CAUSED BY THE UNAVAILABILITY, INCOMPLETENESS, OR INACCURACY OF THE SAME, WHETHER CAUSED BY CUSTOMER OR ANY THIRD PARTY.
4.4 LIABILITY.
4.4.1 EXCEPT FOR ANY UNDISPUTED FEES DUE FROM CUSTOMER, CUSTOMER’S BREACH OF ANY SERVICES RESTRICTIONS UNDER SECTION 2.2, A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 5 (INDEMNITY), OR IN THE EVENT OF DAMAGE CAUSED INTENTIONALLY OR BY GROSS NEGLIGENCE OR OF DEATH, BODILY INJURY OR DAMAGE TO HEALTH, NOTWITHSTANDING ANY PROVISION OF the Agreement TO THE CONTRARY, REGARDLESS OF THE FORM OR CAUSE OF ACTION, WHETHER IN CONTRACT OR TORT, OR THE NUMBER OF CLAIMS AND TO THE EXTENT PERMITTED BY APPLICABLE LAW (i) NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY, FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL OR INDIRECT DAMAGES, ANY LOSS OF REVENUES OR PROFITS, LOSS OF DATA OR ANY COST OF COVER ARISING OUT OF the Agreement, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (ii) EACH PARTY’S LIABILITY FOR ANY CLAIM ARISING OUT OF the Agreement WILL BE LIMITED TO THE GREATER OF 1) FEES ACTUALLY PAID OR PAYABLE BY CUSTOMER FOR THE PERFORMANCE THAT IS THE SUBJECT OF SUCH CLAIM WITHIN TWELVE (12) MONTHS PRECEDING THE INITIAL INCIDENT GIVING RISE TO THE LIABILITY OR 2) US $100. THE PARTIES AGREE THAT THIS SECTION REFLECTS A REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES IN LIGHT OF THE TERMS OF the Agreement. THIS LIMITATION OF LIABILITY WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREUNDER.
5.1 Indemnity of Customer
5.1.1 Subject to the limitations below, Shopmonkey shall defend, or at Shopmonkey’s option, settle, any claim, demand, suit, or proceeding made or brought against Customer, its directors, employees, and agents by a third party alleging that the use of the Services received by Customer pursuant to a Shop Services Agreement infringes such third party’s Intellectual Property Rights enforceable in the USA (“Claim Against Customer”), and shall indemnify Customer from any and all costs, damages, liabilities, losses, and expenses (including reasonable attorneys’ fees) finally awarded against Customer as a result of, or for amounts paid by Customer under a court-approved settlement of a Claim Against Customer, provided that Customer (i) promptly gives Shopmonkey written notice of the Claim Against Customer, (ii) gives Shopmonkey sole control of the defense and settlement of the Claim Against Customer, and (iii) gives Shopmonkey all reasonable assistance. Customer may, at its expense, participate in any such action, suit, or claim with counsel of their choice.
5.1.2 The above obligations do not apply to the extent (i) the total aggregate fees received by Shopmonkey from Customer with respect to the Agreement in the 12 months immediately preceding the claim do not exceed US$20,000; (ii) if Customer settles or make any admissions with respect to the applicable claim without Shopmonkey’s prior written consent; or (iii) a Claim Against Customer arises from: (a) Customer Data, (b) Customer’s material breach of the Agreement which gave rise to the Claim Against Customer, (c) use of the Services in combination with any software, hardware, network, technology or system not provided by Shopmonkey, (d) compliance with any Customer requirements or specifications outside the Documentation, or (e) any matter covered by Customer’s indemnification obligations.
5.1.3 If any Claim Against Customer which Shopmonkey is obligated to defend has occurred, or in Shopmonkey’s determination, is likely to occur, Shopmonkey may in its discretion and at no cost to Customer (i) modify the Services so that it no longer infringes, without breaching the warranty set forth in Section 4.1, (ii) obtain a license for Customer’s continued use of the Services in accordance with the Agreement, or if such remedies are not reasonably available, (iii) terminate the Agreement upon thirty (30) days’ written notice and refund Customer the prepaid but unused Services subscription fee that corresponds to the period of license discontinuation upon certified destruction and deinstallation of the Services and/or discontinued access and use of the Services.
5.2 Indemnity of Shopmonkey. Customer shall defend Shopmonkey, its directors, employees and agents, or at Customer’s option, with Shopmonkey’s written consent, settle, any claim, demand, suit, or proceeding arising out of (i) Customer’s or any of its Users’ violation of the Agreement or applicable law; (ii) any claim that the Customer Data infringes, misappropriates, or otherwise violates the Intellectual Property Rights or rights of publicity or privacy of any third party; (iii) or breach of Customer’s warranty regarding any Customer System; or (iv) any dispute or issue between Customer and any third party (including, but not limited to any disputes with Customer's end customers or any financial institution with respect to services provided by Customer) (each a “Claim Against Shopmonkey”), and shall indemnify Shopmonkey from any and all costs, damages, liabilities, losses, and expenses (including reasonable attorneys’ fees) incurred by or awarded against Shopmonkey as a result of, or for amounts paid by Shopmonkey under a court-approved settlement of a Claim Against Shopmonkey, provided that Shopmonkey (a) promptly gives Customer written notice of the Claim Against Shopmonkey, (b) gives Customer control of the defense and settlement of the Claim Against Shopmonkey, and (c) gives Customer all reasonable assistance. Shopmonkey may, at its expense, participate in any such action, suit, or claim with counsel of its choice. Shopmonkey reserves the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Customer (without limiting Customer's indemnification obligations with respect to that matter), and in that case, Customer agrees to cooperate with our defense of those claims. For the avoidance of doubt, Shopmonkey's election to assume the defense shall supersede Customer's right to control such defense as set forth above.
5.3 Exclusive Remedy. This section states Shopmonkey’s sole liability to, and Customer’s exclusive remedy against Shopmonkey for any relevant party’s Intellectual Property Rights infringement claims as described in this section.
6.1 Confidential Information. “Confidential Information” is any information furnished to one party (“Recipient”) by the other party (“Discloser”) that (i) is marked at the time of disclosure as being “Confidential” or words of similar import or (ii) is identified orally as being confidential or proprietary, or (iii) is of such a nature or the circumstances of the disclosure are such that a reasonable person would understand that the information should be treated as confidential. The Shopmonkey Properties are deemed Shopmonkey’s Confidential Information regardless of whether so marked. All Customer Data shall be deemed to be Customer’s Confidential Information. Confidential Information will not include information that Recipient can demonstrate by contemporaneous records (a) was rightfully known by Recipient prior to the date it was disclosed by Discloser, (b) is lawfully disclosed to Recipient without obligation of confidentiality by a third party, (c) becomes generally known to the public through no act or omission on the part of Recipient, or (d) is independently developed by Recipient without reference to or reliance upon any Confidential Information of Discloser.
6.2 Use Restriction and Disclosure. The Recipient shall (i) not use Confidential Information of the Discloser for any purposes other than for performing its obligations or exercising its rights under the Agreement and (ii) hold such Confidential Information in strict confidence and protect such Confidential Information with the same degree of care (but no less than a reasonable degree of care) the Recipient uses to protect its own Confidential Information. Notwithstanding the foregoing, the Recipient may disclose Confidential Information of the Discloser (a) to the Recipient’s directors, officers, employees or legal or business advisors to the extent reasonably necessary to carry out its obligations or exercise its rights under the Agreement, provided that such directors, officers, employees, or agents are legally bound to maintain such information as confidential as required by this section, or (b) if required to be disclosed by the Recipient pursuant to a judicial or governmental statute, rule, or order, and the Recipient shall disclose only such Confidential Information as is required to be disclosed.
6.3 Data Protection. Each party warrants that it shall use, collect, store and/or process personal data as defined under and in accordance with any applicable data privacy laws (“Personal Data”).
6.4 Access to Customer Data. Customer understands and acknowledges that the ability of Customer and its Users to operate and utilize the Services is dependent upon Customer providing or making available for access by the Services all required Customer Data via Customer System(s). Customer warrants that it has all necessary licenses, consents, authorizations, permissions, notices, and access from Customer System(s), as may be necessary to facilitate the Services’ access to the Customer Data. Customer acknowledges and agrees that Shopmonkey shall not be liable to Customer or to any third party for any failure, delay, or deficiency in the performance of the Services arising from (i) any failure by Customer to authorize connection to its Customer System(s), (ii) any system failure or technical deficiency on the part of Customer or its service providers that prevents or limits access by the Services to Customer Data or other necessary Customer content, materials, data or information, or (iii) any error or deficiency in the Customer Data. As between Customer and Shopmonkey, Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data, and for ensuring that Customer Data does not: (a) infringe, misappropriate or violate the Intellectual Property Rights, rights of privacy or publicity, or other proprietary rights of any third party, (b) violate any applicable law, or (c) contain any malware, viruses, Trojan horses, spyware, worms, or other malicious or harmful code. Customer is solely responsible for the installation, maintenance, repair, use, and upgrade of any Customer System(s) the Services is used with. Customer agrees and acknowledges that Shopmonkey is not a provider of data back-up, archiving, or data retention services for data in the Customer System(s). As between Customer and Shopmonkey, Customer is solely and exclusively responsible for the backing up, archiving, and retaining of all Customer Data and any other of Customer’s information, data, or materials in the Customer System(s). Shopmonkey disclaims all warranties of any kind with respect to any Customer System(s).
7.1 Term. the Agreement will remain in effect during the Term of any unexpired Shop Services Agreement, unless terminated earlier in writing pursuant to the terms of this section. For the avoidance of doubt, upon the renewal of a Shop Services Agreement, the term of the Agreement shall be extended accordingly. Shop Services Agreements may not be terminated for Customer’s convenience during the Term.
7.2 Auto-Renewal. Customer's account will be charged automatically on the Subscription Billing Date for all applicable fees and taxes for the next Subscription Period and for usage-based fees and taxes payable with respect to prior periods in arrears. The subscription will continue unless and until Customer cancels its subscription or Shopmonkey terminates it. Customer must cancel its subscription before it renews in order to avoid charging of the next periodic Subscription Service fee to Customer’s account. Customer may cancel the Subscription Service at a termination point determined by your Shop Services Agreement and by contacting Shopmonkey at: support@shopmonkey.io. Termination will not affect amounts due and payable at the time of termination, including amounts owed in arrears. The Term of each Shop Services Agreement shall automatically renew for successive periods equal to one (1) year or the preceding term, whichever is shorter, at the prior quantity of licenses (including any overages or add-ons), unless either party cancels such renewal by notifying the other party in writing at least thirty (30) days prior to the expiration of the then-current applicable Term, unless otherwise agreed in the Shop Services Agreement.
7.3 Termination for Breach. Either party may terminate the Agreement and any Shop Services Agreement immediately upon written notice to the other party, if the other party is in material breach of the Agreement and fails to correct the breach thirty (30) days following written notice from the other party specifying the breach. Notwithstanding anything to the contrary, Shopmonkey may, alternatively suspend the Services, if Customer violates any Services Restrictions or if any undisputed sum payable under the Agreement is past due for longer than thirty (30) days. If Customer’s account has been terminated for a breach of these Terms, then Customer is prohibited from creating a new account on the Services using a different name, email address, or other forms of account verification.
7.4 Termination for Insolvency. Either party may terminate the Agreement and any Shop Services Agreement immediately upon written notice to the other party if the other party has a receiver appointed, or an assignee for the benefit of creditors or in the event of any insolvency or inability to pay debts as they become due by the other party, except as may be prohibited by applicable bankruptcy laws.
7.5 Effect of Termination. Expiration or termination of the Agreement will not relieve any party of its obligations to pay any undisputed amounts accrued or otherwise owed under the Agreement and any Shop Services Agreement. Upon termination or expiration of the Agreement and any Shop Services Agreement, all licenses or rights granted to Customer hereunder shall terminate and Customer shall not use the Services, and Shopmonkey shall have no further obligation to provide the Services or Support. Customer shall promptly delete all Shopmonkey Confidential Information. In addition, no later than ninety (90) calendar days after termination or expiration, Shopmonkey may delete Customer’s Services account and all contents therein. Any provision that is intended to continue after termination shall not be affected by the termination of the Agreement.
7.6 Survival. The provisions of the following Sections of the Agreement will survive any expiration or earlier termination of the Agreement: Section(s) 1 (Scope and Definitions), 2.2 (Service Restrictions), 2.5 (Ownership of Intellectual Property), 3.1-3.6 (Fees), 4.3 (Warranty Disclaimer), 4.4 (Limitation of Liability), 5 (Indemnity), 6 (Confidential Information and Customer Data), 7.5 (Effect of Termination), 7.6 (Survival), 8 (with exception of 8.2) (Miscellaneous).
8.1 Notices. All notices and communications between the Parties under, or in connection with, the Agreement ("Notices") shall be in writing, by hand delivery, by nationally recognized courier service or by prepaid certified mail. Notwithstanding the foregoing, Shopmonkey may send Notices to Customer through the management module of the Services. Customer shall send all Notices to Shopmonkey at Shopmonkey, Inc. 155 E Main Ave, STE 150, Morgan Hill, CA 95037, Attn: Legal Department; with cc: to legal@shopmonkey.io.
8.2 Third-Party Services and Websites.
8.2.1 Third-Party Services. The Services may provide integrations, links or other access to services, sites, technology, and resources that are provided or otherwise made available by Third-Party Services. Customer's access and use of the Third-Party Services may also be subject to additional terms and conditions, privacy policies, or other agreements with such third party, which may be updated from time to time by such Third-Party Services provider without notice, and Customer may be required to authenticate to or create separate accounts to use Third-Party Services on the websites or via the technology platforms of their respective providers. Some Third-Party Services will provide us with access to certain information that Customer has provided to third parties, including through such Third-Party Services, and we will use, store and disclose such information in accordance with our Privacy Policy. For more information about the implications of activating Third-Party Services and our use, storage, and disclosure of information related to Customer and your use of such Third-Party Services within the Services, please see our Privacy Policy. Shopmonkey has no control over and is not responsible for such Third-Party Services, including for the accuracy, availability, reliability, or completeness of information shared by or available through Third-Party Services, or on the privacy practices of Third-Party Services. Shopmonkey encourages Customer to review the terms of use and privacy policies of the third parties providing Third-Party Services prior to using such services. Customer, and not Shopmonkey, will be responsible for any and all costs and charges associated with your use of any Third-Party Services. We enable these Third-Party Services merely as a convenience and the integration or inclusion of such Third-Party Services does not imply an endorsement or recommendation. Any dealings Customer has with third parties while using the Service are between Customer and the third party. Shopmonkey will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any Third-Party Services.
8.2.2 Google Maps. Google Maps presented to Customer through the Services are powered by Google. Customer's use of Google Maps is subject to the Google Maps Terms of Service and Google Maps Privacy Policy, and by using the Services, Customer is agreeing to be bound by such terms.
8.2.3 Chat Functionality. By communicating with us through our Sites or application chat functionality (one of our Third-Party Services), Customer agrees that our third-party service provider will receive and process Customer's communications on our behalf and may be performed by a chatbot.
8.3 Third-Party Distribution Channels of Mobile App. This Section only applies to the extent Customer is using our Mobile App on a mobile device. Shopmonkey makes available its Mobile App through the Apple App Store, the Google Play Store, or other distribution channels (“Distribution Channels”). If Customer obtains our Mobile App through a Distribution Channel, Customer may be subject to additional terms of the Distribution Channel. the Agreement is between Customer and us only, and not with the Distribution Channel. To the extent that Customer utilizes any other third-party products and services in connection with Customer's use of the Service, Customer agrees to comply with all applicable terms of any agreement for such third-party products and services.
8.3.1 Notice Regarding Apple. This Section only applies to the extent Customer is using our mobile application on an iOS device. Customer acknowledges that the Agreement is between Customer and Shopmonkey only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Services or the content thereof. Apple has no obligation to furnish any maintenance and support services with respect to the Services. If the Services fails to conform to any applicable warranty, Apple has no other warranty obligation with respect to the Services. Apple is not responsible for addressing any claims by Customer or any third party relating to the Services or Customer's possession and/or use of the Services, including: (a) product liability claims; (b) any claim that the Services fails to conform to any applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third-party claim that the Services and/or Customer's possession and use of the Services infringe a third party’s intellectual property rights. Customer agrees to comply with any applicable third-party terms when using the Services. Apple and Apple’s subsidiaries are third-party beneficiaries of the Agreement, and upon Customer's acceptance of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement against Customer as a third-party beneficiary of the Agreement. Customer hereby represents and warrants that: (i) Customer is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) Customer is not listed on any U.S. Government list of prohibited or restricted parties.
8.3.2 Google-Sourced Software. The following applies to any Mobile App Customer downloads from the Google Play Store (“Google-Sourced Software”): (i) Customer acknowledges that the Agreement is between Customer and Shopmonkey only, and not with Google, Inc. (“Google”); (ii) Customer's use of Google-Sourced Software must comply with Google’s then-current Google Play Terms of Service; (iii) Google is only a provider of Google Play where Customer obtained Shopmonkey’s Google-Sourced Software; (iv) Shopmonkey, and not Google, is solely responsible for the Google-Sourced Software; (v) Google has no obligation or liability to Customer with respect to Google-Sourced Software or the Agreement; and (vi) Customer acknowledges and agrees that Google is a third-party beneficiary to the Agreement as it relates to Shopmonkey’s Google-Sourced Software.
8.4 Consent to Electronic Communications.
8.4.1 By using the Services, Customer consents to receive certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. Customer agrees that any notices, agreements, disclosures, or other communications that Shopmonkey sends to Customer electronically will satisfy any legal communication requirements, including that those communications be in writing.
8.4.2 By entering into the Agreement, Customer agrees to receive calls and text (SMS) messages from Shopmonkey and persons acting on Shopmonkey’s behalf to the telephone number you provided to us. Customer understands and agrees that these calls and text messages may be made using an autodialer, artificial or prerecorded voice, or other automated technology. These communications may include operational communications concerning Customer's account, communications regarding the Service, and marketing communications. Standard text messaging rates will apply. Customer's agreement to receive promotional calls and texts is not a condition of any purchase or use of the Services.
8.4.3 When Customer installs the Shopmonkey app on its mobile device, Customer agrees to receive push notifications, which are messages an app sends Customer on its mobile device when Customer is not in the app. Customer can turn off notifications by visiting your mobile device’s “settings” page. Shopmonkey may also send Customer emails concerning our products and services, as well as those of third parties.
8.4.4 IF CUSTOMER WISHES TO OPT OUT OF COMMERCIAL EMAILS FROM SHOPMONKEY, CUSTOMER CAN UNSUBSCRIBE BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE EMAIL ITSELF. IF CUSTOMER WISHES TO OPT OUT OF MARKETING CALLS AND TEXT MESSAGES FROM SHOPMONKEY, CUSTOMER CAN EMAIL SUPPORT@SHOPMONKEY.IO OR TEXT THE WORD “STOP” TO THE NUMBER FROM WHICH CUSTOMER IS RECEIVING THE MESSAGES. IF CUSTOMER WISH TO OPT OUT OF ALL CALLS AND TEXT MESSAGES FROM SHOPMONKEY, CUSTOMER CAN EMAIL SUPPORT@SHOPMONKEY.IO OR TEXT THE WORD “STOPALL” TO THE NUMBER FROM WHICH CUSTOMER IS RECEIVING THE MESSAGES, HOWEVER, CUSTOMER ACKNOWLEDGES THAT OPTING OUT OF RECEIVING ALL MESSAGES MAY IMPACT YOUR USE OF THE SERVICE. Customer may continue to receive calls and text messages for a short period while we process your request, including a message confirming the receipt of your opt-out request.
8.5 Publicity. For sole marketing and promotional purposes, Customer agrees that Shopmonkey may identify Customer as a Shopmonkey customer in Shopmonkey’s promotional, marketing, or other materials and refer to Customer by name, trade name and trademark as applicable. Customer hereby grants Shopmonkey a license to use Customer’s name and applicable trademarks in accordance with this section. Customer may opt out anytime by emailing to support@shopmonkey.io.
8.6 Injunctive Relief. Each party acknowledges and agrees that any breach of its obligations with respect to Confidential Information and Intellectual Property Rights may cause substantial harm to the other party that could not be remedied by payment of damages alone. Accordingly, the other party will be entitled, in addition to any other rights or remedies, to seek injunctive relief in any jurisdiction where damage may occur.
8.7 International Use and Exports. Customer shall comply with all applicable export control laws, rules, and regulations with respect to its use of the Services, including the Export Administration Regulations promulgated by the U.S. Department of Commerce. Without limiting the foregoing, Customer shall not export or re-export all or any part of the Services without Shopmonkey’s prior written consent. The Service is intended for use within the United States and Canada. We make no representation that the Service is appropriate or available for use outside of the United States and Canada. Customer certifies that Customer is not on any of the relevant U.S. government lists of prohibited persons, including the Treasury Department’s List of Specially Designated Nationals and the Commerce Department’s List of Denied Persons or Entity List.
8.8 No Waiver. Neither party’s failure or delay in exercising any of its rights will constitute a waiver of such rights unless expressly waived in writing.
8.9 Relationship. The relationship between the parties is that of independent contractors, and nothing contained in the Agreement will be construed to constitute as agents, partners, joint ventures, or otherwise as participants in a joint undertaking.
8.10 Force Majeure. Shopmonkey will not be liable for any delay or failure in the performance of its obligations under the Agreement if the delay or failure is due to any cause outside of Shopmonkey’s reasonable control (“Force Majeure”). If Force Majeure continues for more than sixty (60) days preventing Shopmonkey from performing, Customer may terminate the Agreement upon written notice to Shopmonkey.
8.11 Assignment. Neither the Agreement nor any rights granted hereunder may be assigned or otherwise transferred (whether by operation of law or otherwise), in whole or in part, by either party, without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed. However, no such consent will be required in the event of an assignment to a Shopmonkey Affiliate, or a merger, reorganization, consolidation or a sale of substantially all of Shopmonkey’s assets or stock; provided that Shopmonkey provides notice as soon as reasonably practicable. Any attempted assignment will be void and of no effect unless permitted by the foregoing. the Agreement shall inure to the benefit of the parties’ permitted successors and assigns. Shopmonkey may utilize one or more subcontractors or other third parties to perform its duties under the Agreement so long as Shopmonkey remains responsible for all of its obligations under the Agreement.
8.12 Severability. If any provision of the Agreement is held to be invalid or unenforceable, such provision will be interpreted in a manner that best reflects the parties’ intentions, and the remaining provisions of the Agreement will remain in full force and effect.
8.13 Entire Agreement. The Agreement constitutes the entire agreement between Shopmonkey and Customer regarding the subject matter hereof and supersedes all prior oral and written communications and may be unilaterally updated by Shopmonkey from time to time. All amendments or modifications to the Shop Services Agreement must be in writing and signed by authorized representatives of both parties. The terms on any purchase order, confirmation, or similar document submitted by Customer to Shopmonkey will have no effect and are hereby rejected. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be (1) the Shop Services Agreement, (2) this Agreement, and (3) the Documentation.
8.14 Governing Law and Jurisdiction. the Agreement and any dispute or claim arising out of or related to the Agreement, its subject matter or formation (in each case, including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the State of California, USA other than such laws and case law that would result in the application of the laws of a jurisdiction other than the State of California and, subject to Section 8.16 (Dispute Resolution and Arbitration), the parties agree to the personal and exclusive jurisdiction of the state courts and federal courts located within Santa Clara County, California for resolution of any lawsuit or court proceeding permitted in Section 8.16.2. The United Nations Convention on Contracts for the International Sale of Goods shall have no applicability. Customer agrees to waive any and all objections to the exercise of jurisdiction over Customer by such courts and to venue in such courts. ANY CAUSE OF ACTION OR CLAIM CUSTOMER MAY HAVE ARISING OUT OF OR RELATING TO THE AGREEMENT MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION OR CLAIM ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
8.15 Waiver of Jury Trial and Class Action Waiver. EACH PARTY HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, CLAIM, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THE AGREEMENT. CUSTOMER AND SHOPMONKEY EACH AGREE THAT ANY SUIT, PROCEEDING, OR OTHER ACTION ARISING OUT OF OR RELATED TO THE AGREEMENT WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION.
8.16 Dispute Resolution and Arbitration. ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THE AGREEMENT, OR THE BREACH THEREOF, SHALL BE SETTLED BY ARBITRATION AND JUDGMENT ON THE AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF. IF THERE IS A DISPUTE ABOUT WHETHER THIS ARBITRATION AGREEMENT CAN BE ENFORCED OR APPLIES TO OUR DISPUTE, CUSTOMER AND SHOPMONKEY AGREE THAT THE ARBITRATOR WILL DECIDE THAT ISSUE.
8.16.1 Pre-Arbitration Dispute Resolution and Notification. Prior to initiating an arbitration, Customer and Shopmonkey each agree to notify the other party of the dispute and attempt to negotiate an informal resolution to it first. Shopmonkey will contact Customer at the email address Customer has provided to Shopmonkey; Customer can contact Shopmonkey by email to legal@shopmonkey.io. If after a good faith effort to negotiate, one party feels the dispute has not and cannot be resolved informally, the party intending to pursue arbitration agrees to notify the other party via email prior to initiating the arbitration.
8.16.2 Exceptions to Arbitration Agreement. Customer and Shopmonkey each agree that the following claims are exceptions to Arbitration and will be brought in a judicial proceeding in a court of competent jurisdiction: (i) Any claim related to actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; or (ii) Any claim seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack).
8.16.3 Arbitration Rules. If Customer is domiciled in the U.S. - Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. If Customer is domiciled internationally outside the U.S. - Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be determined by arbitration administered by the International Centre for Dispute Resolution in accordance with its International Arbitration Rules.
8.16.4 Modification to AAA Rules - Arbitration Hearing/Location. Customer agrees that any required arbitration hearing will be conducted in the English language by one (1) mutually agreed upon arbitrator, (a) in Santa Clara County, USA or appearances may be made via phone or video conference; and (b) for any claim or counterclaim under $25,000, by solely the submission of documents to the arbitrator.
8.17 Notice to California Residents. If Customer is a California resident, under California Civil Code Section 1789.3, Customer may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Services.
8.18 Aggregated Statistics Use Rights. Notwithstanding anything else to the contrary, Customer acknowledges and agrees that, Shopmonkey may, in accordance with applicable data privacy laws, monitor Customer’s and its Users’ use of the Services and may track and compile information related to such use of the Services, as long as such data is aggregated and anonymized, including, without limitation, statistical and performance information related to the provision and operation of the Services (“Aggregated Statistics”). As between Shopmonkey and Customer, the Aggregated Statistics shall remain the exclusive property of Shopmonkey. Shopmonkey may, without limitation, (a) make such Aggregated Statistics publicly available, (b) use the Aggregated Statistics to the extent and in the manner required by applicable law or regulation, and (c) use the Aggregated Statistics to maintain, optimize and improve the Services, to develop, improve, or offer other Services, or to otherwise operate Shopmonkey’s business, provided that such Aggregated Statistics does not identify Customer or its Users or contain any Customer Data.
9. Product Specific Terms. Shopmonkey may offer, and Customer may elect, from time to time, to utilize certain Product Specific Services offered on the Sites. Additional terms and conditions with respect to the Product Specific Services apply and are incorporated by reference (“Product Specific Terms”).