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SHOPCANAL TERMS AND CONDITIONS

Effective Date: April 21, 2022

ShopCanal, Inc. (“ShopCanal” or “we”) provides its Services (as defined below) to you, subject to this Terms of Service agreement (“Agreement”).  By accepting this Agreement or by accessing or using the Service or Site, you acknowledge that you have read, understood, and agree to be bound by this Agreement.  If you are entering into this Agreement on behalf of a company, business or other legal entity, you represent that you have the authority to bind such entity and its affiliates to this Agreement, in which case the terms “you”, “your” or “Customer” shall refer to such entity and its affiliates. If you do not have such authority, or if you do not agree with this Agreement, you must not accept this Agreement and may not use the Service.

1. Overview.  

  1. ShopCanal is headquartered in the State of California in the United States and operates a variety of websites (“Websites”) and online marketing services and applications, including Canal and Canal for Suppliers (each an “Application,” and together with the Websites and other services, the “Services”).  We also provide other related services, such as real-time data analytics.  Find out more about our Services at www.shopcanal.com.


  2. As a Customer of our Applications or Services, the collection, use and sharing of your personal data is subject to our Privacy Policy (which includes any documents referenced in the Privacy Policy) and any updates thereto.


  3. This Agreement defines the terms and conditions under which you’re allowed to use the Applications, Services and any applicable additional features, and how we’ll treat your Account while you’re a Customer.  We may update the terms of this Agreement from time to time in our sole discretion.  If we do make any such changes, we’ll let you know by posting the updated Agreement, as applicable, to the Websites, to the Applications and/or may also send other communications. It’s important that you review the Agreement, as applicable, whenever we update them or you use the Applications or Services.  If you continue to use the Applications or Services after we have posted the updated Agreement, it means that you accept and agree to the changes.  If you don’t agree to this Agreement, you must immediately discontinue your use of the Services and any applicable additional features.  Because our Applications and Services are evolving over time we may change or discontinue all or any part of the Applications, Services and additional features, at any time and without notice, at our sole discretion.


2. Eligibility.

  1. By accessing or using the Applications or Services in any way, clicking on a button or taking similar action to signify your affirmative acceptance of this Agreement, you hereby represent that:

  • You have read, understand, and agree to be bound by this Agreement and any future amendments and additions to this Agreement as published from time to time at this link or through the Services; and


  • You are eighteen (18) years old or older; and


  • You have the authority to enter into the Agreement personally.  Except as otherwise provided herein, if you do not agree to be bound by the Agreement, you may not access or use the Applications or Services. In addition, if you have been previously prohibited from accessing the Applications or Services, you are not permitted to access our Websites or the Applications or Services.

3. Account Access.

  1. Account.  In order to enjoy the full scope of the Applications or Services, you are required to register and open an Account by (i) providing us with certain details; or (ii) using an existing Shopify account.  You must provide us with accurate, current and complete information when opening an Account and keep it updated at all times. If you do not provide us with this information, we have discretion to suspend or terminate your Account.


  2. Access.  By entering into this Agreement, you will be granted a non-exclusive, non-sublicensable, non-transferable, limited, revocable license to access the ShopCanal’s applications’ dashboards or other Services.  Your access privileges, however, are conditioned on your adherence to the terms of this Agreement.  We reserve the right to temporarily deny you access to the Services or permanently terminate your access privileges at any time if, in our sole discretion, you have failed to abide by the terms of this Agreement or appear to us likely to do so.  By agreeing to grant you access, we do not obligate ourselves to do so or to maintain the Applications or Services, or to maintain it in its present form, and we expressly reserve the right to modify, suspend or terminate your access privileges.


  3. Privileges Nontransferable.  Your access privileges may not be transferred by you to any third parties.  You further agree not to disclose to anyone your confidential log-in information (including username and password).


  4. Security.  You further agree not to disclose to anyone your confidential log-in information (including your username and password details).  The Account is yours and you shall not allow anyone else to use it without our prior written approval.  You must immediately notify us of any unauthorized use of your Account or breach of its security.  We will not be responsible for any damage which is caused to you or others if you do not act in accordance with this Agreement.


  5. Authorized Users.  You will not allow any third party other than expressly authorized employees or contractors (“Authorized Users”) to access or use the Services.  You may permit Authorized Users to use the Services, provided that: (a) each Authorized User serves one of the roles enumerated by you to ShopCanal prior to using the Services; (b) you ensure that the list of roles served by the Authorized Users is accurate, complete and current, and you will promptly notify ShopCanal of any changes to the list or to an Authorized User’s role; (c) such Authorized Users provide accurate, complete and current contact information and keep such information up to date; and (d) you ensure each Authorized User complies with all of our Terms and you remain responsible for any act or omission by Authorized Users in connection with their use of the Services.  You will, and will require all Authorized Users to, use all reasonable means to secure usernames and passwords, hardware and software used to access the Services in accordance with customary security protocols, and will promptly notify us if you know or reasonably suspect that any username and/or password has been compromised.  Each Account for the Services may only be accessed and used by the specific Authorized User for whom such Account is created.


  6. User Obligations.  By using the Services, you agree that:


  • You will comply with all applicable laws, including those of the country, state and city in which you are present while using the Services.

  • You will only use the Services for lawful purposes, and not for deceptive or fraudulent purposes; you will not impersonate or misrepresent your affiliation with any person or entity; you will not send or store any unlawful material.

  • You will not use the Services to cause nuisance, annoyance or inconvenience, including by sending any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation.

  • You will not copy or distribute any content displayed through the Services, nor use, display, mirror or frame the Services or any individual element within the Services, ShopCanal’s name, any ShopCanal trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without ShopCanal’s express written consent.  You will not attempt to reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain improper access to any software component of the Services (such as the source code), in whole or in part, or use access to the Services to develop any competing offering.  You will not use any such materials for any purpose other than the permitted use of the Services.

  • You will not in any way use, or use any means to gain access to, the Services or any Confidential Information (as defined in Section 4(c)) for benchmarking or competitive analysis with respect to competitive or related products or services, or to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Services.

  • You will not create or compile, directly or indirectly, any collection, compilation, or other directory from any content displayed through the Services except for your own personal use consistent with the permitted use of the Services.  This includes, without limitation, any listing of Brands, Products, or other users of the Applications or Services that may be available.

  • You will not collect or store any personally identifiable information from the Applications or Services from other users without their express permission, and you will timely inform us of any such permission received.

  • The information you provide to us or otherwise communicate with us is complete and accurate.

  • You will not use the Applications or Services in any way that could damage, disable, overburden or impair any of our servers, or the networks connected to any of our servers, or interfere with, or disrupt the integrity or performance of, the Applications or Services, or any data or content contained therein or transmitted thereby.

  • You will not attempt to gain unauthorized access to any part of the Applications or Services (including non-public areas) and/or to any service, account, resource, computer system, technical delivery systems and/or network connected to any of our servers, including by avoiding, bypassing, removing, deactivating, impairing, descrambling or otherwise circumventing any technological measure implemented by us or any of our providers or any other third party (including another user) to protect the Applications or Services.

  • You will not deep-link to the Applications or Services or access or search the Applications or Services, or download, scrape, copy, monitor, or record any portion of the Applications or Services or any data or content contained within or transmitted by the Applications or Services, manually or with any engine, automated program, software, tool, agent, device, mechanism (including robots, spiders, web crawlers, extraction software, data mining tools, automated process and/or other devices), or any other method of screen scraping, unless we have provided tools expressly for such purposes.

  • You will report any errors, bugs, unauthorized access methodologies or any breach of our intellectual property rights that you uncover in your use of the Applications or Services.

  • You will not use the Applications or Services, or any portion thereof, for the benefit of any third party or products competitive with ShopCanal or otherwise in any manner not permitted by this Agreement. For the avoidance of doubt, you will not use any portion of data or content contained within or transmitted by the Services, for any commercial use apart from the use of the Services for the purposes intended in our offering of them.

  • You will not encourage or enable any other third party to take any action prohibited by this Agreement.

4. Relationship between Storefronts and Suppliers

  1. Overview.  Through ShopCanal’s Applications and Services, ShopCanal will connect potential Suppliers with Storefronts for the marketing and sale of the Supplier’s Products.  As used herein, “Supplier” shall mean brands that supply products and services for sale on websites operated by Storefronts; “Storefronts” shall mean operators of online storefronts; “Brands” shall mean both Suppliers and Storefronts; “Products” shall mean those products and services made available by Suppliers for resale by Storefronts; and “Customers” shall mean the individual consumers that purchase Products from Storefronts.  For the avoidance of doubt, Customers will be able to view and purchase Supplier’s Products being offered (in addition to Storefront’s own products and services) directly on Storefront’s website.  Upon purchasing any of Supplier’s Products through a Storefront’s website, a Customer will become a customer of both the Supplier and the Storefront. Further, “partnership” in this Agreement is used in the colloquial sense to refer to an arrangement where the products or services of two parties are sold, branded, or otherwise marketed together, or the products of a party are somehow promoted to consumers of another party’s products, and shall not refer to a formal legal partnership.


  2. Role of ShopCanal.  ShopCanal and the Services act only as an intermediary to facilitate – and not to direct or control – any partnerships, communications, and transactions among the Customers, Brands, Suppliers, and Storefronts. ShopCanal is not a party to any relationship or separate agreement entered into between or among the Customers, Brands, Suppliers, and Storefronts and ShopCanal disclaims any and all liability relating to any such agreement. Any purchase by a Customer of a Brand or Supplier’s Products is a direct relationship between such Customer and Brand or Supplier, as applicable, and is subject to the terms agreed upon by them.


  3. Supplier Responsibilities and Warranties. If you are a Supplier, you will: (i) regularly maintain sufficient levels of inventory to be able to fulfill any and all completed and potential or imminently likely orders; regularly, and well in advance of any such orders, communicate and work with any third party vendors to ensure the resolution of any issues that would cause material delays in fulfilling any such orders; (ii) provide shipping, returns, and customer service in connection with all orders, in accordance with customary high standards for the relevant and/or similar products and requirements under applicable law; promptly respond to and resolve any Customer demands and concerns (including concerns relating to lack of inventory or defective products or services); (iii) not enter into mutual partnership arrangements with a Storefront through any means outside of the Applications and Services, to the extent that you learned of, began communications with, or began formulating plans to culminate in a partnership arrangement with such Storefront while using the Applications; and (iv) be responsible for understanding and complying with all applicable laws, rules, and regulations and determining whether our Services are suitable for you in light of applicable laws, rules, and regulations.


  4. Storefront Responsibilities and Warranties.  If you are a Storefront, you will not market, list for sale or sell any Supplier’s Products on third-party exchanges or marketplaces, including without limitation, marketplaces owned or operated by Alibaba, Amazon, Craigslist, eBay, Etsy, Google, Houzz, Newegg, OfferUp, Overstock, Rakuten, or Walmart.


  5. Your Content.  You are responsible for all content and materials, including any photos, images, videos, graphics, written content, audio files, marketing materials, code, information, or data that you have uploaded or transmitted to ShopCanal in connection with the Services and/or Applications (collectively, “Brand Content”).  As between ShopCanal and you, you shall retain ownership of your Brand Content, subject to any nonexclusive licenses granted to ShopCanal herein.


  6. Age-Restricted Products.


  1. You agree that you will not sell or distribute any alcohol, tobacco, or other age-restricted products to people who are under the minimum legal age required by the applicable jurisdiction. You are responsible for understanding and complying with all applicable laws, rules, and regulations and determining whether our Services are suitable for you in light of such applicable laws, rules, and regulations.


  2. If you choose to sell or offer any alcohol, tobacco, or other age-restricted products through our Services, you represent and warrant that, as required by applicable law: (a) you have implemented and continued to carry out appropriate and necessary measures and requirements to verify the age of your Contacts prior to transferring their personal information to our Services; (b) you have requested valid proof of age (i.e. valid government ID) at the point of delivery, indicating that such Contacts are of legal age to consume alcohol, tobacco, or other age-restricted products being sold or offered, in order to receive their shipment; (c) your landing page or website adequately discloses all of your age verification requirements; and (d) you have accurately and conspicuously marked any age-restricted products offered through our Services and provided thorough, accurate, and helpful information (including applicable restrictions and instructions on usage) regarding such products to your Contacts, and you will promptly correct any errors in such product markings or information provided to Contacts, whether by changing the information on the Services or by informing Contacts of the error and giving them an opportunity to cancel their order.  These, and the other requirements with respect to your use of the Services, apply to you and any third parties (e.g., retailers) who distribute your products


  3. You agree that we reserve the right to require that all Brands using our Services implement and effect additional measures with respect to age verification and product marking, as necessary, and otherwise reserve the right to suspend or cancel any shipments if we believe that a recipient is not of legal age or that doing so is otherwise inappropriate under the circumstances.


5. Fees; Payment.

  1. Fees Between Suppliers and Storefronts.  If a Supplier and Storefront participate in ShopCanal’s Applications or Services, the Supplier and Storefront will agree upon a fee (the “Partnership Fee”) payable by the Storefront, which will be calculated as a percentage of the product purchase price set by the Supplier (“Purchase Price”) for the Supplier’s Products.  The Supplier will set the Partnership Fee on ShopCanal’s Applications or Services, and the Storefront must agree to the terms prior to selling Supplier’s Products.  Supplier and Storefront will log the Partnership Fee and any other prompted information for ShopCanal approval and confirmation.  Because a Storefront agrees upon a given Partnership Fee based on the initial Purchase Price established by Supplier, Supplier may not change the Purchase Price of a Supplier’s Product or otherwise make changes to its policies that affect the Partnership Fee without the consent of ShopCanal or Storefront, not to be unreasonably withheld.


  2. Fees Due to ShopCanal.  If a Customer purchases a Supplier’s Product, Storefront will pay to Supplier the net proceeds from the purchase, less the Partnership Fee and any applicable taxes. In addition, ShopCanal will be entitled to (i) collect a transaction fee from the Storefront for the sale (the “ShopCanal Storefront Fee”) equal to a percentage of the Purchase Price that is set and calculated based on ShopCanal’s then-current policy; and (ii) a deduct a fee prior to disbursing the collected amounts to the Supplier (the “ShopCanal Supplier Fee”) equal to a percentage of the Purchase Price that is set and calculated based on ShopCanal’s then-current policy.  If a Customer returns or refunds a Supplier’s Product subject to the return policies of the Supplier, the ShopCanal Supplier Fee and ShopCanal Storefront Fee will not be refunded.


  3. Changes to Fees.  ShopCanal may establish further guidelines for the calculation of the Partnership Fee, ShopCanal Supplier Fee and ShopCanal Storefront Fee (e.g., inclusion or exclusion of shipping costs, taxes, and other amounts, as well as the effect of discounts and promotions), as communicated through the Applications or Services or otherwise.


  4. Payments.  Payments due to ShopCanal will be made through the applications (or other online marketing website or application through which the Brand accesses and uses the Services, as applicable) and in U.S. dollars by credit card, wire transfer of immediately available funds, or ACH to an account designated by ShopCanal, or such other payment method mutually agreed by the parties. ShopCanal will collect fees from Brand by way of the Shopify API or Stripe. If ShopCanal cannot do so for any reason, Brand remains responsible for any uncollected amounts, and ShopCanal reserves the right to invoice Brand, which invoices are due upon receipt. In accordance with local law, ShopCanal may update information regarding Brand’s selected payment method if provided such information by Brand’s financial institution. If the Shopify API involves paying with Stripe, Brand agrees to comply with Stripe usage terms and conditions and Stripe’s prohibitions on restricted businesses, available at https://stripe.com/restricted-businesses. If the Shopify API involves paying with ACH, Brand acknowledges that the Services integrate ACH authorization services provided by a third party service provider. By setting up a bank account on the Services and inputting online banking credentials for instant verification, Brand is granting such third party service provider the right, power and authority to access and transmit Brand’s information (such as from third party banks) as reasonably necessary to provide the ACH authorization services. Please review the relevant third party service provider’s terms of service and privacy policy for more information. Brand will reimburse ShopCanal for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting any late payments or interest. ShopCanal reserves the right to suspend Brand’s use of the Services in the event of payment delinquency or failure to abide by the third party service provider’s terms of service.


  5. Taxes.  Brand is responsible for all sales, use, ad valorem and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, multinational or local governmental regulatory authority on any amount payable by Brand to ShopCanal hereunder, other than any taxes imposed on ShopCanal’s income.  Without limiting the foregoing, in the event that Brand is required to deduct or withhold any taxes from the amounts payable to ShopCanal hereunder, Brand will pay an additional amount, so that ShopCanal receives the amounts due to it hereunder in full, as if there were no withholding or deduction.


6. Proprietary Rights.

  1. Intellectual Property Rights.  We (and our licensors, where applicable) shall own all right, title and interest, including all related intellectual property rights, in and to the Applications or Services.  This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Services, or any intellectual property rights owned by us.  Our name, logo, and the product names associated with the Applications or Services are our trademarks or belong to third parties, and no right or license is granted to use them.  You agree that you will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Applications or Services.


  2. Confidentiality. In your use of the Applications or Services, you may have (or have been given) access to information that is designated as confidential or that reasonably should be considered to be confidential given the nature of the information and/or the circumstances of disclosure (collectively, “Confidential Information”).  Confidential Information includes items such as Customer/Brand lists or directories, messages transmitted through the Applications or Services, and the non-public aspects of the Applications or Services. Confidential Information does not include information that: (i) is in the public domain at the date of disclosure (and did not fall into the public domain as a result of your breach of this policy or any other confidentiality agreement); (ii) was rightfully in your possession before you gained access to it through the Services (and you can prove this fact by admissible, written evidence); or (iii) was rightfully received from a third party (who was in lawful possession of it) without any confidentiality or non-use restrictions.  You will not use the Confidential Information other than for purposes of your authorized use of the Applications or Services.  Further, you will maintain it as confidential and not disclose any Confidential Information.  Nothing shall prevent you from disclosing information obtained through the Applications or Services if compelled to do so by a court of law or government agency, on the condition that you provide advance notice to us and allow us a reasonable opportunity to intervene in the proceeding to protect the confidentiality of the Confidential Information.


  3. DMCA.  ShopCanal respects the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify ShopCanal of your infringement claim in accordance with the procedure set forth below.


ShopCanal will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to Company’s Copyright Agent at support@shopcanal.com (Subject line: “DMCA Takedown Request”). You may also contact the Copyright Agent by mail at: c/o ShopCanal, Inc. 615 Sacramento St, San Francisco, CA 94111

To be effective, the notification must be in writing and contain the following information:

  • a physical or electronic signature of a person authorized to act on behalf of the owner of the copyright or other intellectual property interest that is allegedly infringed;

  • identification of the copyrighted work or other intellectual property that you claim has been infringed, or, if multiple copyrighted works or other intellectual property are covered by a single notification, a representative list of such works or other intellectual property;

  • identification of the content that is claimed to be infringing or to be the subject of infringing activity, and where the content that you claim is infringing is located on the Service, with enough detail that we may find it on the Service;

  • your address, telephone number, and email address;

  • a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law; and

  • a statement by you that the information in your notice is accurate and, under penalty of perjury, that you are the copyright or intellectual property owner or are authorized to act on the behalf of the owner of the copyright or intellectual property that is allegedly infringed.

Counter-Notice: If you believe that your content was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to upload and use the removed content, you may send a written counter-notice containing the following information to the Copyright Agent:

  • your physical or electronic signature;

  • identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;

  • a statement by you, made under penalty of perjury, that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content to be removed or disabled; and

  • your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court located within the Northern District of California and a statement that you will accept service of process from the person who provided notification of the alleged infringement.

If a counter-notice is received by the Copyright Agent, Company will send a copy of the counter-notice to the original complaining party informing them that Company may replace the removed content or cease disabling it within ten (10) business days. Unless the owner of the applicable copyrighted work or other intellectual property files an action seeking a court order against Company or the user, the removed content may be replaced, or access to it restored, within ten (10) to fourteen (14) business days or more after receipt of the counter-notice, at our sole discretion.

        Repeat Infringer Policy: In accordance with the DMCA and other applicable law, Company has adopted a policy of terminating, in appropriate circumstances and at Company’s sole discretion, the accounts of users who are deemed to be repeat infringers. Company may also at its sole discretion limit access to the Service and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.

7. Termination.  

  1. Termination by You.  You have the right to terminate your Account at any time upon thirty (30) days prior notice by sending a cancellation request to support@shopcanal.com.


  2. Termination by ShopCanal.  At our sole discretion, we may (i) modify or discontinue the Applications or Services, or (ii) may modify, suspend or terminate your access to the Applications or Services, upon thirty (30) days prior notice to you and without liability to you or any third party.  In particular, we may suspend or terminate your Account in the event of a dispute between you and another Brand, or between you and a Storefront or Supplier, as applicable.  


  3. Effect of Termination.  Upon termination, by you or us: (a) you will cease any further use of the Applications or Services and any information that was made available to you prior to the termination; (b) all rights granted to you under this Agreement will automatically terminate; and (c) certain data (e.g. content, submissions, etc.) may be deleted and you will have no right or claim in this respect.  All provisions which by their nature should survive to give effect to those provisions shall survive the termination of this Agreement, including Sections 6-13.


  4. Effect of Termination.  Even after your right to access and use ShopCanal’s Applications or Services is terminated, these Terms will remain enforceable against you.  Upon termination: (a) you will cease any further use of ShopCanal’s Applications and Services and any information that was made available to you prior to the termination; (b) all rights granted to you under these Terms will automatically terminate; and (c) certain data (e.g. content, submissions, etc.) may be deleted and you will have no right or claim in this respect.  All provisions which by their nature should survive to give effect to those provisions shall survive the termination of these Terms.


  5. Pending Transactions.   If you have any pending transactions between a Customer, Supplier, or Storefront relating to a Supplier’s Product, you shall not cancel your Account until all pending transactions have completed. In the event of termination, all fees due to ShopCanal, including without limitation, any ShopCanal Fees or Payments up to the end of the then-current billing cycle at time of cancellation shall remain payable to ShopCanal. No refunds for any fees will be provided for partial billing periods.


8. Third-Party Interactions.

  1. The Services (including the Applications) may contain links to third-party websites and advertisements (collectively, “Third-Party Websites & Advertisements”).  When you click on a link to a Third-Party Website or Advertisement, we will not warn you that you have left our Websites and Applications and will not warn you that you are subject to the terms and conditions (including privacy policies) of another website or destination.  Such Third-Party Websites & Advertisements are not under our control.  We provide access only as a convenience and are not responsible for any Third-Party Websites or any Third-Party Advertisements.  We do not review, approve, monitor, endorse, warrant, or make any representations with respect to such Third-Party Websites & Advertisements, or their content, products or services.  You use all links in Third-Party Websites & Advertisements at your own risk.  You should review applicable terms and policies, including privacy and data gathering practices of any Third-Party Websites, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.


9. Indemnification.

  1. Indemnification Obligations.  You agree to indemnify and hold harmless ShopCanal and its officers, directors, employees, agents, affiliates, customers, creators, and talent-led brands (each, an “Indemnified Party”) from and against any losses, claims, actions, disputes, demands, costs, damages, penalties, fines and expenses, including attorneys’ fees and expenses, that may be incurred by an Indemnified Party arising out of, relating to or resulting from: (a) your Brand Content; (b) your misuse of the Services; (c) your violation of this Agreement; (d) your violation of any applicable laws, rules or regulations through or related to the use of the Applications or Services; and/or (e) any disputes that originated between you and a Customer and another Brand, or between any two or more Customers or Brands, including but not limited to: (i) untimely, improper or otherwise incomplete fulfillment of any orders; (ii) defective or incorrectly delivered products; (iii) a Brand or Supplier’s customary internal standards regarding fulfillment; or (iv) your access to or use of the Services violating, infringing or misappropriating the complaining party’s intellectual property, privacy or other rights, or otherwise violating applicable law.  This provision does not require you to indemnify any Indemnified Party for any unconscionable commercial practice by such party, or for such party’s negligence, fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Services.  You agree that the provisions in this Section will survive any termination of your Account, this Agreement, or your access to the Applications or Services.


  2. Notice Requirements.  ShopCanal will: (1) promptly give you written notice of the Claim; (2) give you sole control of the defense and settlement of the Claim (except that you may not settle any Claim unless it unconditionally releases ShopCanal of all liability); and (3) give you all reasonable assistance in connection with such Claim.


10. Disclaimer of Warranties.

  1. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE FULLEST EXTENT OF LAW, YOUR USE OF THE SERVICES IS ENTIRELY AT YOUR OWN RISK.  CHANGES ARE PERIODICALLY MADE TO THE SERVICES AND MAY BE MADE AT ANY TIME WITHOUT NOTICE TO YOU.  YOU ACKNOWLEDGE THAT THE SERVICES (INCLUDING ANY SERVERS OR OTHER HARDWARE, SOFTWARE AND ANY OTHER ITEMS USED OR PROVIDED BY US IN CONNECTION WITH THE SERVICES) ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE.  WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE QUALITY, ACCURACY, RELIABILITY, TRUTHFULNESS, COMPLETENESS OR TIMELINESS OF THE CONTENT MADE AVAILABLE THROUGH OUR SERVICES, OR THE SERVICES, TEXT, GRAPHICS, OR LINKS.


  2. WE DO NOT WARRANT THAT THE SERVICES WILL OPERATE ON AN UNINTERRUPTED, SECURE, BUG-FREE, OR ERROR-FREE BASIS OR THAT THE SERVICES ARE FREE OF ANY FAULTS OR DEFECTS OR COMPUTER VIRUSES AND OTHER HARMFUL MALWARE.  IF YOUR USE OF THE SERVICES RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, WE SHALL NOT BE RESPONSIBLE FOR THOSE ECONOMIC COSTS.


11. Limitation of Liability.

  1. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHER LEGAL THEORY) SHALL SHOPCANAL BE LIABLE TO YOU OR ANY THIRD PARTY FOR: (I) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA OR DATA BREACH, LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER OR NOT SHOPCANAL HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE; OR (II) FOR ANY DIRECT DAMAGES, COSTS, LOSSES OR LIABILITIES (INCLUDING ATTORNEYS’ FEES) IN EXCESS OF THE FEES ACTUALLY PAID BY YOU IN THE TWO (2) MONTHS PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM OR, IF NO FEES APPLY, ONE HUNDRED ($100) U.S. DOLLARS.  THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.  SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHICH MEANS THAT SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.  IN THESE STATES, OUR LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.


  2. THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN CLIENT AND YOU.


12. Notice to U.S. Government End Users.

  1. The software, Applications, Website and Services, including all documentation, are “Commercial Items”, as that term is defined at 48 C.F.R. § 2.101, and consist of “Commercial Computer Software” and “Commercial Computer Software Documentation”.  The Commercial Computer Software and Commercial Computer Software Documentation are licensed to U.S. government end users: (i) only as Commercial Items; (ii) with the same rights as all other end users; and (iii) according to this Agreement.


  2. Published and unpublished rights are reserved under the copyright laws of the United States.  The copyright holder is ShopCanal, Inc., 615 Sacramento St, San Francisco, CA 94111.


13. General.

  1. Publicity.   Each party will have the right to publicly announce the existence of the business relationship between the parties. During the term of your use of our Applications or Services, and except with respect to Talent (for which corresponding rights are set forth below), we have a non-exclusive, non-sublicensable (except to our service providers), worldwide, royalty-free right to use your name, trademarks, image, likeness, logos and branding (collectively, “Brand Marks”) in connection with our Services and marketing materials, in perpetuity, including in connection with our social media accounts and online and print sales, marketing and advertising activities. For the avoidance of doubt, none of these usage rights shall extend to brands (Storefront or Supplier) using ShopCanal's Service or Site unless separately authorized by you. Furthermore, all parties acknowledge that any use of Talent's name, image, likeness, etc. by anyone other than Talent and ShopCanal shall require Talent's approval, with terms to be negotiated in good faith. “Talent” shall mean a beneficial owner of a Storefront who is a celebrity, publicly known or otherwise high profile individual.


  2. No Joint Venture or Partnership.  No joint venture, partnership, employment, or agency relationship exists between you, ShopCanal or any third-party provider as a result of this Agreement or use of the Applications or Services.


  3. No Third-Party Beneficiaries.  Nothing contained in this Agreement will be deemed to create any third-party beneficiary right upon any third party whatsoever.


  4. Governing Law.  This Agreement, and all matters arising from, related to, or connected with it, is governed by the laws of the State of California consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of any other jurisdiction.  Unless otherwise elected by ShopCanal in a particular instance, you hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts of the State of California for the purpose of resolving any dispute relating to your access to or use of the Service.


  5. Severability.  Except as otherwise provided herein, if any provision of this Agreement is found to be invalid, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.


  6. Electronic Communications.  For contractual purposes, you: (i) consent to receive communications from us in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if they were in writing.  This subparagraph does not affect your statutory rights.  For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted.


  7. Entire Agreement.  This Agreement is the final, complete and exclusive understanding and agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior proposals, understandings, discussions, or other communications between the parties, oral or written, with respect to such subject matter.


  8. Assignment.  You may not assign or transfer this Agreement or any rights granted hereunder, by operation of law or otherwise, without ShopCanal’s prior written consent, and any attempt by you to do so, without such consent, will be void. ShopCanal may freely assign this Agreement. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their successors and permitted assigns.


  9. Waiver of Rights.  Failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. The waiver of any such right or provision will be effective only if in writing and signed by ShopCanal’s duly authorized representative. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.


  10. Interpretation.  The headings to Sections of this Agreement are for convenience or reference only and do not form a part of this Agreement and will not in any way affect their interpretation. For purposes of this Agreement, the words and phrases “include”, “includes”, “including”, and “such as” are deemed to be followed by the words “without limitation”.


  11. Force Majeure.  Neither party will be liable in damages or have the right to terminate this Agreement for any delay or default in performing hereunder (except for failure to timely pay) if such delay or default is caused by conditions beyond its reasonable control including acts of God, government restrictions (including the denial or cancellation of any export or other necessary license), acts of terrorism, wars, disease, or insurrections.


14. Contact Information.

Please contact us at the following to report any violations of this Agreement or to pose any questions regarding this Agreement or the Service.


Attn: Legal Department

ShopCanal, Inc.

615 Sacramento St, San Francisco, CA 94111



Appendix A: Standard Terms and Conditions for Talent/Creator Storefronts

Usage: ShopCanal shall have the right to use Talent's name, image, likeness, logos and branding, in connection with our Services, in perpetuity, including in connection with our social media accounts and online and print sales, marketing and advertising activities (both business-facing and consumer-facing), in perpetuity.

For the avoidance of doubt, none of these usage rights shall extend to any Brand (Storefront or Supplier) using ShopCanal's Service or Site. All parties acknowledge that any use of Talent's name, image, likeness, etc. by anyone other than Talent and ShopCanal shall require Talent's approval, with terms to be negotiated in good faith.

Term: Talent/Creator Storefronts shall remain live in perpetuity or until otherwise terminated at Talent or ShopCanal's discretion.

Promotional Services: Talent agrees to make good faith reasonable efforts to promote the storefront on Talent's social media platforms. Exact number of posts, on which platforms, to be approved by Talent. Content for all posts to be approved by Talent.

Indemnification: For the avoidance of doubt, Talent shall be covered under Section 9 above.

Exclusivity: None

Canal
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