TERMS AND CONDITIONS

Effective Date: July 2nd, 2024

SHOPMARK LLC TERMS AND CONDITIONS

SHOPMARK LLC (hereinafter “ShopMark”), with its working office at 8600 Freeport Pkwy, Ste 130, Irving TX 75063, has developed and operates an online marketplace platform (the “Platform”)

PLEASE READ THE SECTION TITLED “DISPUTE RESOLUTION” WITH UTMOST ATTENTION. UNLESS YOU OPT OUT AS SPECIFIED BELOW, THESE TERMS MANDATE THAT YOU RESOLVE DISPUTES WITH SHOPMARKTHROUGH BINDING INDIVIDUAL ARBITRATION. BY AGREEING, BOTH YOU AND SHOPMARKWAIVE RIGHTS TO A TRIAL BY JURY AND TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING.

This ShopMark LLC Terms of Service is a binding contract between you (the customer) and ShopMark LLC. It governs your access and use of the ShopMark LLC software, platform, and other ShopMark LLC applications. By checking any acceptance boxes, clicking any acceptance buttons, submitting any text or content, or simply by making any use of the ShopMark LLC software or other applications, you: (a) agree to this Agreement and commit to adhering to each of its terms, and (b) assure and confirm to ShopMark LLC that (i) this Agreement is binding and enforceable against you, (ii) if an individual is accepting this Agreement on behalf of an entity, such individual has the legitimate right and authority to agree to all of the terms set forth herein on behalf of such entity, and (iii) you have thoroughly read and understood ShopMark LLC’s Privacy Policy, the terms of which are included by reference (the “Privacy Policy”), and agree to comply with the Privacy Policy.
Take notice, ShopMark LLC might modify this Agreement over time, with each amendment effective 2 days after posting the updated Agreement on the website https://www.shopmark.io/ or within the application. It is advised to regularly check the Website, the Application, and this Agreement to stay updated on the terms and agreements detailed here.
Merchant Agreement vs. Terms All services provided by ShopMark LLC to merchants, which include but are not limited to, listing and marketing services, will be directed by the terms and services highlighted here. If any inconsistency arises between the terms and conditions provided in a signed Merchant Agreement and the Terms and Conditions in this document, priority should be given first to the Merchant Agreement and then to the Terms and Services provided here.
Specific Limitations You are strictly prohibited from directly or indirectly copying or replicating any part of the Application or the Website. The Application should be used solely for its designated purposes and not for the advantage of any third party except as specifically mentioned in this Agreement. You are barred from using the Application to submit, convey, distribute, or destroy any content that: (a) violates any law, (b) infringes on the intellectual property rights of others, (c) is slanderous, obscene, or damaging, (d) contains harmful software codes, or (e) is deceitful, misleading, or incorrect. You must not infringe upon the security of the Application or attempt to uncover its source code. Moreover, exporting, re-exporting, or permitting any third party to export the Application where such export is illegal without proper licenses is prohibited.
Specific Duties
You are solely accountable for:

(i) all the content you input into the Application;

(ii) ensuring that all posted content is appropriate and accurate;

(iii) abiding by all relevant laws, regulations, and rules;

(iv) securing all passwords and access codes and refraining from sharing them.

6. Information Dissemination:

You may not utilize the ShopMark LLC platform or applications to disseminate, convey, upload, post, or distribute content that:

Is false.
Contains explicit or inappropriate descriptions.
Contains proprietary or confidential information.
You are restricted from sharing.
Violates others’ intellectual property rights.
Is malicious or offensive.

7. Restrictions

(i)Merchants should use ShopMark LLC’s tools and software solely for their business objectives and must avoid any unauthorized use. (ii) ShopMark LLC may use the Merchant’s branding for promotional purposes. (iii) ShopMark LLC grants merchants a limited right to use its branding in relation to the services. (iv) ShopMark LLC retains the right to supervise or modify any ShopMark LLC related communications to users.

8. Business Overview ShopMark LLC operates as an online marketplace website for eCommerce -Shopify. This platform enables eCommerce -Shopify vendors to list their products, facilitating customer purchases.

9. DESCRIPTION OF SERVICES

Our platform integrates various payment services for user convenience. Before utilizing these, we strongly advise you to acquaint yourself with their respective terms. Any third-party delivery option you choose will have its terms, which should be reviewed in detail.

Our integration with Google Maps and its API offers users the ability to view members store locations, fetch directions, and ascertain travel durations. By leveraging our services, you’re inherently agreeing to Google Maps API Terms of Service.

10. ID VERIFICATION AND SAFETY PROTOCOLS

Retailers or their delivery providers are responsible for verifying your age and ID upon delivery. For the safety of all parties involved, strict verification measures are in place. If a delivery cannot be completed due to reasons such as a failed age verification, additional fees might be applicable.

11. RETAILER RIGHTS

Retailers retain the right to refuse, adjust, or cancel orders for various reasons. If adjustments or substitutions are made, users will be notified, and their final charges will be adjusted accordingly.

Retailers also reserve the right to refuse delivery if they deem the transaction to be unsafe or inappropriate. Refused deliveries may result in additional charges.

12. COMMUNITY GUIDELINES

We pride ourselves on fostering a respectful and positive community for all users of our Services. As such, we require users to comply with the following rules:

Our Services must not be used for any unlawful or fraudulent purposes. This includes, but is not limited to, unauthorized access to other user accounts or personal data.

Impersonation of any person or entity, or falsely claiming an affiliation with a person or entity, is strictly prohibited.

Interfering with, disrupting, or trying to exploit any aspect of the Services is not allowed.

Please be aware that violation of these rules may lead to your access to our Services being restricted or terminated at our discretion.

13. AGE AND USAGE RESTRICTIONS

Our services cater to a wide demographic, but users must be a minimum of age limit years to access them. For alcohol-related orders, adherence to local legal drinking age laws is compulsory, with valid ID verification at pickup or delivery.

Individual members store owners, based on their discretion, set the minimum order amount and age limit. Thus, it varies from one establishment to another. ShopMark assumes no liability for these variations.

14. MEMBERSHIP AND FEES

While membership fees vary, they will always adhere to the stipulations in the pricing section. All membership fees, along with any other charges, follow the pricing guidelines. The nature of the tools and services offered determines the pricing, with detailed breakdowns available in relevant sections.

15. THIRD-PARTY SHIPPING AND DELIVERIES

For any third-party delivery, such as DoorDash, their specific terms, conditions, and policies apply. ShopMark is exempt from any responsibilities related to third-party shipping and deliveries.

16. BILLING

Billing alterations can be made on your Billing Page within your ShopMark account. You grant ShopMark the authority to continue charging your Authorized Payment Method for any due fees throughout your Subscription Term and until all outstanding amounts are settled. All payments are non-cancellable, and fees paid are non-refundable, unless explicitly specified in this agreement. All dues are to be settled in advance throughout the Subscription Term.

17. PAYMENT AND REFUND POLICY

Your orders facilitated through our Services will be charged directly from the selected payment method linked to your ShopMark account. By placing an order, you authorize ShopMark to initiate a charge or debit on your designated payment method, including credit cards or other approved facilities, for the total amount of your order, including any applicable fees and taxes.

For orders placed through our integrated Marketplace feature, ShopMark may impose an additional fee, the “Marketplace Diner Fee,” which may vary based on the specific order.

Regarding the membership fees, charges will be as highlighted in the pricing section. All payment obligations are non-cancellable and all amounts paid are non-refundable, except when explicitly mentioned in this Agreement.

It is your responsibility to maintain the confidentiality of your account password. Any activity or charges incurred under your account, as defined by the associated password, will be your responsibility. This liability extends even after the termination of this Agreement.

For any inquiries regarding transactions on your statement, we invite you to reach out to our dedicated customer service team via the “Contact Us” section of our Website.

All refund requests will be handled in accordance with the refund policies of the members store from which you ordered. If you contact ShopMark seeking a refund, we are unable to process any refund without the express approval from the respective members store. We will, however, make reasonable efforts to request and secure refunds when appropriate. In instances where a full refund is approved for an order placed on our Marketplace, the refund will include the Marketplace Diner Fee. However, in cases of partial refunds, the Marketplace Diner Fee will not be included.

At ShopMark , we prioritize the security of our customers’ payment information. We adhere to the strictest standards of data protection and are compliant with the most current version of the Payment Card Industry Data Security Standard (PCI-DSS) and other relevant laws, rules, and regulations.

18. SHOPMARK CUSTOMER MEMBERSHIP PROGRAM

We offer a Customer Membership Program that allows you to enjoy exclusive benefits at participating members store locations. Upon signing up for the program on our Platform and paying an annual fee (the “Customer Membership Fee”), you’ll be entitled to discounts on your ShopMarkorders from participating members store locations.

Please be aware that not all members stores or members store locations choose to participate in our Customer Membership Program. To enjoy discounts from specific members stores, a Customer Membership Fee must be paid on a per-location basis.

19. DELIVERY AND CURBSIDE PICKUP

ShopMark Services collaborates with a diverse range of members stores, some of which may not cater to every location. If our services are not yet available in your area, please let us know. We are continuously broadening our horizons, and we encourage you to create an account to stay updated.

Within the United States, ShopMark collaborates with partner delivery companies to fulfill your orders. If you are not present at the designated delivery address at the time of delivery, the package will be left at your doorstep, or if applicable, with the doorman or at the delivery center, and the corresponding charges will be levied to your account. The person receiving the delivery at the designated address will be conclusively presumed to be authorized to accept it. In situations of inclement weather, your order will be delivered as soon as feasible.

As an alternative to home delivery, some members stores in the ShopMark network offer curbside pickup. If you opt for this service, your order will be brought to your car at the chosen members store location. Please note that curbside pickup services are managed by the individual members stores, not ShopMark or any delivery partner. All terms and conditions pertaining to delivery orders also apply to curbside pickup orders.

If you have chosen Curbside Pickup, you are required to inform the members store of your arrival through the ShopMarkapp. The members store may ask for certain details about your vehicle, such as your license plate number or car model. Please refer to our Privacy Policy for details on how this information is collected and processed.

PLEASE NOTE: SHOPMARK , NOT BEING THE MEMBERS STORE OR THE DELIVERY SERVICE, PROVIDES NO EXPRESS OR IMPLIED WARRANTIES OF ANY KIND IN RELATION TO DELIVERY OR CURBSIDE PICKUP SERVICES AND DISCLAIMS ANY SUCH WARRANTIES THAT MAY OTHERWISE EXIST.

20. ACCOUNT REGISTRATION, SECURITY AND VERIFICATION

During the registration process, you will be required to create an Account, which will include a unique username, password, and potentially additional information we deem reasonably necessary for future verification of your identity. You agree to provide a valid, current, and non-disposable email address during account registration. Temporary email addresses and email services known to provide disposable addresses are not permitted. If you register with a temporary or spam email address, we may terminate your account, deny access to the service, and withhold any refunds for purchases or subscriptions made on the account. You represent and warrant that all information you provide while registering an Account, is accurate, current, and complete. You acknowledge that each username and associated password combination is for individual user access only. You are solely responsible for maintaining the confidentiality and security of your username, password, and any unique identifiers associated with your Account. You agree to promptly notify us in writing of the need to deactivate a password or username, or to change any unique identifiers. We reserve the right, in our sole discretion, to modify or deactivate your password, username, or unique identifiers at any time for any reason, including but not limited to violation of these Terms and Conditions.

21. INTELLECTUAL PROPERTY

The Services contain a variety of materials, such as software, text, graphics, images, sound recordings, audiovisual works, and other materials provided by or on behalf of ShopMark(collectively, the “Content”). This Content may be owned by us or by third parties, and it is protected under both United States and foreign laws. Unauthorized use of the Content may constitute a breach of copyright, trademark, and other laws.

You do not have rights to the Content, and you are only permitted to use the Content as outlined in this Agreement. All copyright and proprietary notices contained in the original Content must be retained on any copies. Unauthorized selling, transferring, assigning, licensing, sub-licensing, modifying, reproducing, displaying, publicly performing, distributing, or using the Content for any public or commercial purpose is strictly prohibited.

Any breach of this Agreement will result in immediate termination of your access to the Content and Services, and you must promptly destroy any copies you have made of the Content.

The trademarks, service marks, and logos of ShopMark (“ShopMark Trademarks”) used and displayed on the Services are registered and unregistered trademarks or service marks of ShopMark, Inc. Other company, product, and service names located on the Services may be trademarks or service marks owned by others (the “Third-Party Trademarks”, and, collectively with ShopMark Trademarks, the “Trademarks”). Nothing on the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks without our prior written permission for each specific use. Unauthorized use of the Trademarks as part of a link to or from any site is strictly prohibited unless previously approved in writing by us. All goodwill generated from the use of ShopMarkTrademarks will benefit us.

All elements of the Services, including the way they are presented and appear and their overall aesthetics, are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part. No Content may be retransmitted without our express, written consent for each instance.

22. COMMUNICATIONS TO SHOPMARKAND USER SUBMISSIONS

While we appreciate your direct communication, please refrain from sending us any content that contains confidential information. With regard to all emails sent to us, including but not limited to feedback, questions, comments, and suggestions, we reserve the right to use any ideas, concepts, know-how, or techniques contained in your communications for any purpose, including the development, production, and marketing of products and services that incorporate such information.

You retain all copyrights and other intellectual property rights in anything you post to the Services. However, you grant us an irrevocable, non-exclusive, worldwide, perpetual, royalty-free license to use, modify, copy, distribute, publish, perform, sublicense, and create derivative works from all submissions you provide to us, in any media now known or hereafter devised, for any purpose.

23. SHOPMARK REWARDS

If you are a resident of the United States, you may be eligible to earn “ShopMark Rewards” through our referral programs and/or various promotional events that we may run from time to time, as detailed on our Website and other platforms. ShopMark Rewards, once accrued, are automatically applied towards your future orders using our Services at participating members stores located within the United States. ShopMark Rewards may never be redeemed or exchanged for real money or used outside of the Services.

ShopMark reserves the right to regulate, modify, and/or eliminate ShopMark Rewards at its sole discretion at any time and without prior notice to you. We will not be held liable in connection with the exercise of this right. If you reside outside the United States, this Section 10 will not apply.

24. NO WARRANTIES/LIMITATION OF LIABILITY

Though we deeply value our customers’ satisfaction, if you encounter any issues with your order, including any delivery services, please contact the members store directly. Your order is between you and the members store from which you order, and ShopMark is not an actual party to any such order.

The Content and the Services are provided on an “AS IS” and “AS AVAILABLE” basis without any warranties of any kind. We disclaim all warranties, including, but not limited to, the warranty of title, merchantability, non-infringement of third parties’ rights, and fitness for a particular purpose and any warranties arising from a course of dealing, course of performance, or usage of trade.

In connection with any warranty, contract, or common law tort claims: (i) we shall not be liable for any incidental or consequential damages, lost profits, or damages resulting from lost data or business interruption resulting from the use or inability to access and use the Services or the Content, even if we have been advised of the possibility of such damages; and (ii) any direct damages not attributable to personal injuries that you may suffer as a result of your use of the Services or the Content shall be limited to the money you have paid us in connection with your use of the Services during the three (3) months immediately preceding the events giving rise to the claim.

Certain jurisdictions, including some states, do not allow the exclusion of certain warranties. Therefore, some of the above limitations on warranties in this section may not apply to you. Nothing in these Terms of Use shall affect any non-waivable statutory rights that apply to you.

The Services and/or the Content may contain technical inaccuracies, typographical errors, or omissions, including with respect to standards. We are not responsible for any such typographical, technical, pricing, or other errors listed on or omitted from the Services and/or the Content. The Services and the Content contain information on our participating members stores’ products, not all of which are available in every location. A reference to a product on the Services or in the Content does not imply that such product is or will be available in your location. We reserve the right to make changes, corrections, and/or improvements to the Services and the Content at any time without notice.

We reserve the right to cancel or modify an order where it appears that a customer has engaged in fraudulent or inappropriate activity or under other circumstances where it appears that the order contains or resulted from a mistake or error. In addition, we reserve the right to report any fraudulent or inappropriate conduct to appropriate authorities at our discretion.

25. TIME CONSTRAINT FOR CLAIMS

YOU ACKNOWLEDGE AND AGREE THAT ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THESE TERMS OF SERVICE OR THE USE OF OUR SERVICES MUST BE FILED WITHIN ONE (1) YEAR AFTER THE CLAIM OR CAUSE OF ACTION ARISES. FAILURE TO FILE WITHIN THIS PERIOD SHALL RESULT IN THE CLAIM OR CAUSE OF ACTION BEING PERMANENTLY BARRED, UNLESS OTHERWISE PROHIBITED BY APPLICABLE LAW.

26. EXTERNAL SITES

The Services may contain links to third-party websites (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access linked External Sites, you do so at your own risk.

27. DIGITAL MILLENNIUM COPYRIGHT ACT

ShopMark respects the intellectual property rights of others and strives to comply with all relevant laws. We will review all claims of copyright infringement received and remove any Content or user submissions found to have been posted or distributed in violation of any such laws.

Our designated agent under the Digital Millennium Copyright Act (the “Act”) for the receipt of any Notification of Claimed Infringement which may be given under that Act is as follows:

ShopMark, LLC

8600 Freeport Pkwy, Ste 130,

Irving TX 75063

sales@shopmark.io

Attention: Legal Counsel

If you believe that your work has been copied on the Services in a way that constitutes copyright infringement, please provide our agent with notice in accordance with the requirements of the Act, including (i) a description of the copyrighted work that has been infringed and the specific location on the Services where such work is located; (ii) a description of the location of the original or an authorized copy of the copyrighted work; (iii) your address, telephone number, and e-mail address; (iv) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; (v) a statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and (vi) an electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.

28. PROHIBITED USES

You may use our Services only for lawful purposes and in compliance with these Terms. You agree not to use our Service:

In any way that contravenes any applicable local, national, or international law or regulation.
With the intention of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to unsuitable content or otherwise.
To transmit, or facilitate the sending of, any unsolicited or unauthorized advertising or promotional material.
To impersonate or attempt to impersonate ShopMark , a ShopMarkemployee, another user, or any other individual or entity.
In any way that infringes upon the rights of others, or in any way is illegal, threatening, fraudulent, or harmful, or in connection with any unlawful, illegal, fraudulent, or harmful purpose or activity.
To engage in any conduct that restricts or inhibits anyone’s use or enjoyment of our Services, or which, as determined by us, may harm ShopMarkor users of our Services or expose them to liability.

Furthermore, you agree not to:

Use the Service in any way that could disable, impair, overburden, damage or interfere with any other party’s use of the Service.
Use any robot, spider, or other automatic devices, process, or means to access the Service for any purpose, including monitoring or copying any of the material on the Service.
Use any manual process to monitor or copy any of the material on the Service or for any other unauthorized purpose without our prior written consent.
Introduce any viruses, Trojan horses, worms, logic bombs, or other material which is malicious or technologically harmful.
Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Service, the server on which the Service is stored, or any server, computer, or database connected to the Service.
Attack the Service via a denial-of-service attack or a distributed denial-of-service attack.
Take any action that may undermine the feedback or ratings systems (such as displaying, importing or exporting feedback information off of the Services or using it for purposes unrelated to the Services).
Attempt to interfere with the proper working of the Service.

29. COMMUNICATION AND PROMOTIONS

By creating an account with ShopMark, you consent to receive newsletters, marketing, promotional materials, and other information we may send. However, you may opt out of receiving any, or all, of these communications from us by following the unsubscribe link in any email we send or by contacting us.

Any competitions, sweepstakes, or other promotions (collectively, “Promotions”) offered through the Services may be governed by rules that are separate from these Terms of Service. If you participate in any Promotions, please review the applicable rules as well as our Privacy Policy. If the rules for a Promotion conflict with these Terms of Service, the Promotion rules will apply.

30. RESERVATION OF RIGHTS

The Services and their original content (excluding Content provided by users), features, and functionality are and will remain the exclusive property of ShopMark and its licensors. The Services are protected by copyright, trademark, and other laws of the United States and foreign countries. Your agreement to these Terms does not grant you any rights, title, or interest in the Services, our content, or any intellectual property rights. You may not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material on our Services, or use our trademarks, service marks, trade names, logos, domain names, or other distinctive brand features, except as expressly permitted in these Terms.

31. USER REVIEWS AND RATINGS

You may have the option on our platform to post reviews or ratings. Your reviews and ratings must be in compliance with these Terms of Service. When posting a review or rating, you affirm that: (1) your review is based on your direct experience with the respective service or business within the 10-day period prior to your review; (2) you have no affiliations with competitors of the reviewed business; and (3) your post abides by these Terms of Service. By posting a review or rating, you grant ShopMarkthe right to use, reproduce, modify, display, distribute, and otherwise disclose your review(s) or rating(s) in relation with the Services, without needing your approval and without providing compensation to you. We reserve the right to remove any review or rating at our discretion, particularly if we deem it to be false or misleading. ShopMark assumes no liability for any review or for any claims, liabilities, or losses resulting from any review.

32. Fair Usage

ShopMark strives to provide the best possible service to all our users. As part of this commitment, certain usage limits or guidelines may apply to our services, even those labeled as “unlimited.” These guidelines are intended to ensure the availability, speed, and quality of our services for all users.

Objective: Recognizing the costs associated with maintaining the ShopMark platform, especially when services are offered under “unlimited” plans, our Fair Usage clause aims to ensure all users benefit equitably.
Unlimited Use: Services or features that are promoted as “unlimited” do not incur additional fees based on increased usage alone. However, ShopMark expects users to behave responsibly and to avoid engaging in excessive or abusive activities. “Unlimited” usage is understood as usage that reflects the average activity of a members store owner within our platform. Activities that place an inordinate strain on our systems or that appear automated or scripted might be restricted or subjected to additional scrutiny.
Limitations: Activities or actions that place a disproportionate burden on the network, such as using ShopMark’s services for non-members store-related marketing, are not permitted. Any suspicious activities, including automated bot activities or tactics aimed at unfairly influencing our marketing or analytics tools, are strictly forbidden.
Monitoring and Enforcement: ShopMark retains the right to monitor user activity for compliance with this clause. Users who exceed what’s deemed as reasonable and fair usage might face temporary suspension, service restrictions, or, in severe cases, permanent account termination.
Modifications: ShopMark reserves the right to modify these guidelines at any time to ensure the fair allocation of network resources to all users. Changes will be effective upon posting on our platform, and continued use of our services indicates acceptance of these terms.

33. TERMS FOR MOBILE APPLICATION USE

Our services are available via our mobile application. We grant you a non-exclusive, revocable, non-transferable license to download, install, and use the mobile application on your personal devices in accordance with these Terms of Service. All rights, title, and interest in the mobile application, including any updates or modifications, belong to ShopMark and any third-party software providers. All rights not expressly granted to you under these Terms are reserved by us. You agree to abide by all applicable laws and regulations when using the mobile application.

You may download and use the mobile application on devices running Apple iOS or Android operating systems. Your usage must comply with the Apple App Store or Google Play Store Terms of Service, as applicable. Neither Apple nor Google is a party to these Terms of Service and is not responsible for the mobile application or its maintenance, support, or any issues arising from its use. You acknowledge and agree that Apple and Google are third-party beneficiaries of this clause in these Terms of Service.

34. DISCLAIMER

SHOPMARKDOES NOT GUARANTEE UNINTERRUPTED OR ERROR-FREE OPERATION OF THE SERVICES. YOU AGREE AND UNDERSTAND THAT THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” SHOPMARK WILL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM THE UNAVAILABILITY OR FAILURE OF THE SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THESE TERMS, SHOPMARK DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. TO THE EXTENT THAT A PARTY MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY SHALL BE THE MINIMUM PERMITTED UNDER SUCH LAW. SHOPMARKMAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE SERVICES’ CONTENT OR THE CONTENT OF ANY EXTERNAL WEBSITES LINKED TO THE SERVICES, AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY DAMAGES ARISING FROM YOUR USE OF THE SERVICES OR EXTERNAL SITES. SHOPMARK DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES.

35. FORCE MAJEURE

ShopMarkwill not be held liable or responsible to you, nor be deemed to have defaulted or breached these Terms, for any failure or delay in our performance under these Terms when and to the extent such failure or delay is caused by or results from acts beyond our reasonable control, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, epidemic, national emergency, revolution, insurrection, lockouts, strikes or other labor disputes, or restraints or delays affecting carriers or an inability or delay in obtaining supplies.

36. ASSIGNMENT

You shall not assign any of your rights or delegate any of your obligations under these Terms without our prior written consent. Any purported assignment or delegation in violation of this clause is null and void. No assignment or delegation relieves you of any of your obligations under these Terms. ShopMarkmay freely assign or delegate all rights and obligations under the Terms, fully or partially without notice to you. We may also substitute, by way of unilateral novation, effective upon notice to you, ShopMarkfor any third party that assumes our rights and obligations under these Terms.

37. TERMINATION

These Terms of Use will remain in effect while you utilize our Services. ShopMarkreserves the right, at its sole discretion, to terminate your access to our Services for any reason, including but not limited to, a breach of these Terms of Use, fraudulent activities, criminal actions, or for no reason at all. We reserve the right to terminate your access without prior notice or any liability. The non-exercise or delayed enforcement of any right or provision of these Terms of Use by ShopMarkshall not constitute a waiver of that right or provision.

38. DISPUTE RESOLUTION

A) Binding Arbitration and Jury Waiver

In case a dispute arises between you and ShopMark relating to your use of the Services, it is agreed that all such disputes will be resolved through binding arbitration, governed by the Federal Arbitration Act (“FAA”). YOU ACKNOWLEDGE THAT BY AGREEING TO ARBITRATION, YOU ARE WAIVING YOUR RIGHT TO LITIGATE YOUR CLAIM(S) IN COURT AND TO HAVE A JURY TRIAL. DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All disputes will be resolved before a neutral arbitrator, whose decision will be final, subject to a limited right of appeal under the FAA. The costs of the arbitration will be shared equally by the parties, unless prohibited by law. Each party will be responsible for their own attorneys’ fees. The arbitration proceeding will take place in a mutually agreed location, failing which, in a location determined by the arbitrator. A court of competent jurisdiction in the location of the arbitration will have the authority to enter judgment on the arbitrator’s decision and award. Either party may litigate in court to compel arbitration, to stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator. Notwithstanding the foregoing, each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction concerning matters related to intellectual property rights. If this provision is found to be illegal or unenforceable, then neither you nor ShopMark will elect to arbitrate any claim, and instead, claims shall be decided by a court of competent jurisdiction in the location of the arbitration, and you agree to submit to the personal jurisdiction of that court.

B) Class Action Waiver

You agree and acknowledge that any claim or dispute in any arbitration or proceeding shall be brought on an individual basis only, not as a class action or collective action, and there is no right or authority for any dispute or claim to be brought in a purported representative capacity on behalf of the general public or any other persons. The interpretation, applicability, or enforceability of the Class Action Waiver can only be determined by a court and not an arbitrator.

39. INDEMNIFICATION

You agree to defend, indemnify, and hold harmless ShopMark, its officers, agents, partners, and employees from and against any loss, damage, liability, claim, or demand, including reasonable attorneys’ fees and expenses, made by any third party due to or arising out of your use of the Services, breach of these Terms of Service, or breach of your representations and warranties pursuant to these Terms of Service. ShopMark reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate, at your expense, with our defense of such claims. ShopMark will use reasonable efforts to notify you of any such claim, action, or proceeding which is subject to this indemnification upon becoming aware of it.

40. INDEMNIFICATION FOR INDIRECT DAMAGES

TO THE EXTENT NOT PROHIBITED BY LAW, YOU AGREE TO HOLD SHOPMARKAND ITSOFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS HARMLESS FROM ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGE, HOWEVER IT ARISES (INCLUDING ATTORNEYS’ FEES AND ALL RELATED COSTS AND EXPENSES OF LITIGATION AND ARBITRATION, OR AT TRIAL OR ON APPEAL, IF ANY, WHETHER OR NOT LITIGATION OR ARBITRATION IS INSTITUTED), WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, OR OTHER TORTIOUS ACTION, OR ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY CLAIM FOR PERSONAL INJURY OR PROPERTY DAMAGE, ARISING FROM THIS AGREEMENT AND ANY VIOLATION BY YOU OF ANY FEDERAL, STATE, OR LOCAL LAWS, STATUTES, RULES, OR REGULATIONS, EVEN IF SHOPMARKHAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. SHOPMARKSHALL NOT BE LIABLE FOR ANY DAMAGES ARISING OUT OF YOUR USE OF THE SERVICES, OR YOUR INABILITY TO USE THE SERVICES, OR ANY BREACH OF SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION THROUGH THE INTERNET, EVEN IF SHOPMARKWAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

41. Confidential Information.

All non-public, confidential, or proprietary information of ShopMark , including but not limited to, technical details, business strategies, client lists, pricing, or special offers, disclosed by ShopMarkto you, either orally or in writing, electronic or any other form, and regardless of whether it’s explicitly identified as “confidential” in connection with the Services, is considered confidential. It is exclusively for the purpose of adhering to these Terms of Use and may not be disclosed or duplicated without prior written approval from ShopMark . Upon ShopMark ’s request, you shall promptly return all documents and other materials received from ShopMark . ShopMarkshall be entitled to seek injunctive relief for any violation of this clause. This clause does not apply to information that is: (a) publicly available; (b) known to you at the time of disclosure; or (c) rightfully obtained by you on a non-confidential basis from a third party, given that such third party is not and was not prohibited from disclosing such confidential information to you by a legal, fiduciary, or contractual obligation to ShopMark .

42. Governing Law and Jurisdiction

These Terms of Use shall be governed by and construed in accordance with the laws of the State of Texas, United States, without regard to its conflict of law provisions.

Any legal suit, action, or proceeding arising out of, or related to, these Terms of Use or the Services shall be instituted exclusively in the federal courts of the United States or the courts of the State of Texas, in each case located in the City of Dallas and County of Dallas. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts..

43. Modification of Services

We reserve the right, at our sole discretion, to amend or withdraw our Services, and any service or material we provide via the Services, without notice. We will not be liable if for any reason all or any part of the Services is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Services, or the entire Services, to users, including registered users.

44. Changes to the Terms

We reserve the right to amend these Terms of Use at any time by posting the revised terms on this site. All changes are effective immediately upon posting.

Your continued use of our Services after the posting of the revised Terms of Use implies your acceptance of and agreement to the changes. It is your responsibility to check this page frequently to stay informed of any changes, as they are binding on you. If you do not agree to the new terms, you are no longer authorized to use the Services.

45. No Waiver

No waiver by ShopMark of any term or condition set out in these Terms of Use shall be considered a further or continuing waiver of such term or condition or a waiver of any other term or condition. Any failure of ShopMark to assert a right or provision under these Terms of Use does not constitute a waiver of such right or provision.

46. MISCELLANEOUS

Relationship: No joint venture, partnership, employment, or agency relationship is created between you and ShopMark as a result of these Terms of Use or use of the Services.
Entire Agreement: These Terms of Use, along with any policies posted on the site, constitute the entire agreement between ShopMark and You regarding your use of the Services, superseding all previous or contemporaneous agreements, whether written or oral.
Right to Update Terms and Agreement: You acknowledge and agree that ShopMark has the right to update and modify these Terms of Use at any time in its sole discretion by posting the updated Terms on the site.
You may not amend the Terms of Use unless such amendment is signed by an authorized representative of ShopMark.
Severability: If any provision of these Terms of Use is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that the Terms of Use shall otherwise remain in full force and effect and enforceable.

47. CONTACT US

If you have any questions, comments, feedback, or complaints regarding the use of our Services, please contact us at: