SHOPSTAR MERCHANT SERVICES AGREEMENT

IMPORTANT: BY ACCESSING AND/OR USING THE SERVICES (DEFINED BELOW) YOU ACCEPT THE FOLLOWING TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS SET FORTH HEREIN PLEASE DO NOT ACCESS OR USE THE SERVICES.

1.                         ACCEPTANCE OF TERMS

THE FOLLOWING AGREEMENT CONSISTS OF THE TERMS AND CONDITIONS (THE “TERMS”) GOVERNING YOUR (“USER” OR “YOU”) ACCESS AND USE OF THE SHOPSTAR APPLICATION AND PLATFORM (THE “PLATFORM”) AND SERVICES OFFERED THEREIN (AS FURTHER DEFINED BELOW), WHICH ARE OFFERED TO YOU BY VETCH LTD. AND ITS AFFILIATES (“COMPANY”, “SHOPSTAR”, “WE” OR “US”).

THESE TERMS AND CONDITIONS TOGETHER WITH SHOPSTAR’S PRIVACY POLICY (COLLECTIVELY, THE "TERMS") CONSTITUTE A BINDING AGREEMENT BETWEEN YOU AND SHOPSTAR, AND BY CONTINUING TO ACCESS OR USE THE SERVICES IN ANY WAY OR MANNER YOU AGREE TO ABIDE BY, AND THAT YOU ARE BOUND, BY THESE TERMS.

YOUR ACCESS TO AND USE OF THE APPLICATION, PLATFORM AND/OR SERVICES AS A MERCHANT (“MERCHANTS”) OF SHOPSTAR, IS CONDITIONED ON YOUR ACCEPTANCE OF AND COMPLIANCE WITH THESE TERMS.

BY CLICKING “I ACCEPT”, DOWNLOADING THE APPLICATION OR BY ACCESSING OR USING THE SERVICES, MERCHANT AGREES TO BE BOUND BY THIS AGREEMENT.  MERCHANT’S USE OF THE SHOPSTAR PLATFORM AND THE SERVICES MUST AT ALL TIMES BE IN COMPLIANCE WITH THIS AGREEMENT. IF YOU DO NOT UNDERSTAND AND/OR AGREE TO THESE TERMS, YOU SHOULD IMMEDIATELY EXIT THE PLATFORM, UNINSTALL THE APPLICATION AND AVOID MAKING ANY USE OF THE SERVICES.

All capitalized terms not defined inline shall have such meaning as ascribed to them in the Shopstar Influencer Terms of Use. 

1.                   SERVICES

1.1               Shopstar Platform. Shopstar is an integrated online platform and application (the “Shopstar Platform”) which enables Merchants who provide their products and services on e-commerce third-party platforms who are partnering with Shopstar (the “E-Commerce Platform”) with access to the Services. Merchants can engage social media influencers (“Influencer(s)”) to create online content with respect to their products purchased through E-Commerce Platforms and release it in their personal account on participating social media channels (“Channels”), all in consideration of a personalized discount on their Merchant order (collectively, the “Services”). Shopstar will provide Merchant with access to dashboard (the “Shopstar Dashboard”) from which Merchant may access and provide marketing analytics information regarding partnerships with Influencers and obtain reports regarding the Services.

1.2               Discounts. Merchant will have the option of setting a range with minimum and maximum limits to the discount rates setting applied by Shopstar to the transactions with Influencers. The final discount rates will be applied in accordance with a credit score assigned to them by Shopstar which may take into consideration, inter alia, an Influencer’s overall social media presence, transaction history while using the Services, a substantive review of the Influencer’s content, as well as confirmed linking and posting activities (“Influencer’s Credit Score”). The Influencer’s Credit Score is calculated by Shopstar at its sole discretion and Shopstar shall have no liability with respect to such calculation.

1.3               Beta Version. Merchant acknowledges that the Shopstar Platform is still under development and is provided in a “beta version”. As such, the Shopstar Platform and Services may contain defects, deficiencies, bugs, errors or other problems. Merchant shall be responsible for establishing backup, log, batch, review and other procedures and controls appropriate to maintain the integrity and continuity of its operations and data and Shopstar shall not be liable for any loss of data. Shopstar may and is likely to alter the Services’ specifications, capabilities, functions, features and/or configurations. Shopstar may also choose to discontinue the Services altogether. NOTWITHSTANDING ANYTHING TO THE CONTRARY, THE BETA VERSION IS PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTY OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, SHOPSTAR HEREBY EXCLUDES ANY IMPLIED WARRANTIES IN CONNECTION WITH THE BETA VERSION OF THE SHOPSTAR PLATFORM AND SERVICES WHICH SHALL BE GOVERNED BY THE DISCLAIMER AND EXCLUSIONS UNDER SECTIONS ‎10‎ AND 11. SHOPSTAR’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THE BETA VERSION SHALL NOT EXCEED US$1,000.

1.4               Account. In order to use the Services, you have to create an account (“Account”). You agree to (i) provide accurate and complete Account and login information; (ii) keep, and ensure that your employees, authorized consultants and subcontractors whose duties require such access to the Services (excluding any competitors of Shopstar) (“Authorized Users”) keep, all Account login details and passwords secure at all times; (iii) remain solely responsible for the activity that occurs in your Account including with respect of your Authorized Users; and (iv) promptly notify Shopstar of any unauthorized access or use of the Account or the Service.  Shopstar will not be liable for any loss that you may incur as a result of unauthorized use of the Account. You will not allow the use and access to the Services by third parties or anyone other than the Authorized Users.

2.                   RIGHT TO USE THE SERVICES

2.1               Free/Trial Services. Subject to the terms herein, Shopstar may opt to extend a ‘Freemium’ or free trial version of the Services for no consideration, which may exclude or limit any support services offered by Shopstar or other features, add-ons and tools and modules available in connection with paid subscriptions, all as detailed in the Shopstar Platform from time to time (collectively, the “Free Services”). In such case, you may access the Free Services under a limited, revocable, personal, non-transferable, non-assignable, non-exclusive, non-sublicensable license. Use of Free Services may be made available to you subject to any license metrics prescribed by Shopstar from time to time which can be viewed through the Shopstar Dashboard or website. Use of additional features and tools or access to increase license metrics beyond what is included in the Free Services will require upgrading of your subscription through the setting available in the Dashboard. You hereby acknowledge and agree that access to Free Services may be terminated at any time in Shopstar’s sole discretion and that Shopstar may terminate your access to the Free Services without prior notice and without liability to Shopstar. NOTWITHSTANDING ANYTHING TO THE CONTRARY, THE FREE SERVICES ARE PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTY OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, SHOPSTAR HEREBY EXCLUDES ANY IMPLIED WARRANTIES IN CONNECTION WITH THE FREE SERVICES WHICH SHALL BE GOVERNED BY THE DISCLAIMER AND EXCLUSIONS UNDER SECTIONS ‎10‎ AND 11. SHOPSTAR’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THE FREE SERVICE SHALL NOT EXCEED US$1,000.

2.2               Subscriptions. Access to the Services may be completed by registering to the paid subscription of the Services (“Purchased Services”). Purchased Services shall exclude the Free Services. Subject to the terms and conditions of this Agreement (including payment in full of applicable fees) and for the applicable subscription term, Shopstar hereby grants you a limited, revocable, personal, non-transferable, non-assignable, non-exclusive, non-sublicensable license to access and use the Purchased Services, solely for internal business purposes, all in accordance with the applicable license metrics, modules or features which are included in your subscription package as detailed in the Shopstar website. 

2.3               Restrictions of Use. Except as expressly permitted herein, Merchant shall not, directly or indirectly: (i) sell, license (or sub-license), lease, assign, transfer, pledge, or share the Services with or to any third party; (ii) use or permit the Services to be used in order to perform services for third parties, whether on a service bureau or time sharing basis or otherwise; (iii) disclose, publish or otherwise make publicly available the results of any benchmarking of the Services; (iv) use the Services for purposes of competitive analysis or the development of a competing software product or service; (v) use the Services in any manner that is prohibited by law, including without limitation, to sell, distribute, download or export the Services: (a) into (or to a resident of or corporation incorporated in) Cuba, Iran, Libya, North Korea, Sudan or Syria, (b) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals, (c) to any country to which such export or re-export is restricted or prohibited, or as to which the U.S. government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval, or (d) otherwise in violation of any export or import restrictions, laws or regulations of the U.S. or any foreign agency or authority. Merchant agrees to the foregoing and warrant that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list; (vi) exceed any use limitations or other restrictions that are specified in the subscription package you registered to through the Shopstar Platform; (vii) contest Shopstar’s Intellectual Property Rights (as defined below) to the Shopstar IPR (as defined below); (viii) use the Services for any purpose other than as permitted by this Agreement or attempt to access any part of the Services or its servers without authorization or by unauthorized means; (ix) circumvent, disable or otherwise interfere with security-related or technical features or protocols of the Services, such as features that restrict or monitor use of the Services; or (x) cause or permit any third party to do any of the foregoing. Merchant is solely responsible for acquiring and maintaining all of the hardware and software necessary to access and make use of the Services.

2.4               Modifications. Shopstar may modify the Services and Shopstar Platform from time to time at Shopstar’s sole discretion for any purpose deemed appropriate by Shopstar, and Shopstar will notify Merchant of any modifications that Shopstar deems adverse and material.

3.                   MERCHANT RESPONSIBILITIES

4.                   Warranties. Merchant represents and warrants that: (i) it has the full power and authority to execute and fully perform the Agreement in accordance with its terms; and (ii) its execution and performance of its obligations under the Agreement will not violate any agreement to which it is a party.

4.1               Compliance. Merchant is responsible to comply with any applicable law, and not use any portion of the Services for any illegal or illicit transaction or activity, including under the laws and regulations and other applicable terms of engagement which may have effect between Merchant and the E-Commerce Platform, or otherwise use the Services for any fraudulent, unlawful, deceptive, or abusive purposes, or in any manner harmful to, or intended to harm, Shopstar or any third party.

4.2               Transacting with Influencers. Shopstar is not responsible for any products or services that Merchant provides to Influencers through the E-Commerce Platform. Merchant is solely responsible for any aspects relating to the transaction between it and the Influencers, including without limitation, the terms and conditions of sale, delivery policy and returns, cancellation and refund policies and Merchant’s dispute and complaints policy and procedure, customer service and all aspects relating to privacy and collection of personal data.

4.3               User Content. Shopstar does not edit, or control User Content released or distributed on Channels as a result or in connection with the Services and will not be in any way responsible or liable for such content, nor will it be considered to condone or endorse such content. Shopstar does not assume any responsibility for the accuracy, quality, timing, legality, failure to provide or reliability of User Content or any information exchanged between Influencers and any Merchant. Influencers are independent third parties over whom Shopstar has no control and for whom Shopstar takes no responsibility.

4.4               License to Merchant Trademarks. During the Term and subject to the terms and conditions of this Agreement, Merchant hereby grants Shopstar and Influencer a limited, revocable, nonexclusive, non-transferable license and right to use, reproduce, display, distribute and transmit Merchant’s name, logo and any other trademarks, trade names, service marks, photographs, graphics, artwork, text and other content provided or specified by Merchant in any and all media formats, whether registered or unregistered, (collectively the “Marks”). With respect to Shopstar, such use will be restricted only to the extent reasonably necessary for the purposes of this Agreement. With respect to Influencers, such use shall be restricted to the purpose of generating User Content in accordance with the Content Guidelines.

5.                   INFLUENCERS

5.1               Influencer Access to Shopstar Platform. Each Influencer, before proceeding with a transaction via the Shopstar Platform, must first agree to the applicable Shopstar Influencer Terms of Use. Shopstar may suspend or terminate the ability of an Influencer to access or utilize the Services or Shopstar Platform, or any related features, functionality or services, at any time in its sole discretion, until Shopstar is satisfied that it has received sufficient information about the Influencer. In addition, Merchant will have an option to disengage from certain Influencers from using the Services through the Dashboard, solely as applicable to the products and services of Merchant.

5.2               Influencer Score. Shopstar does not employ any acceptance criteria with respect to Influencers who have registered accounts on the Shopstar Platform. However, Shopstar deploys certain screening and analysis technology to assess the status of each Influencer’s social media affluence and discount worthiness. Such processes yields each Influencer a credit score for the purpose of calculating the discount rate which will be applied to each Merchant-Influencer transaction. The credit score may be influenced by such factors as an Influencer’s overall social media presence, Shopstar transaction history, review of the Influencer’s content, as well as confirmed linking and posting activities (“Influencer’s Credit Score”).  

5.3               Right to User Content. Merchants will have a right to use User Content which is produced and released by Influencers in accordance with the license terms available under Section 3 of the Influencer Terms of Use.  Merchant shall use User Content strictly in accordance with the scope of the aforementioned license. All rights not expressly granted to Merchant with respect to User Content shall be reserved by Influencers.

5.4               Influencer Misconduct.  If an Influencer fails to post User Content following provision of a discount, or otherwise posts User Content which is not inline with the Content Guidelines (as such terms is defined under the Shopstar Influencer Terms of Use), Merchant can disengage from such Influencer through the Dashboard. Failure to post User Content also affects an Influencer’s Credit Score in accordance with Section ‎5.2. Shopstar will not assume the risk of Influencer’s failure to generate User Content in connection with a transaction. In addition, to the extent that Merchant is aware or later becomes aware of an Influencer being engaged in any fraudulent, unlawful, deceptive or abusive activity, or otherwise be infringing of any Content Guidelines, Merchant may notify Shopstar and Shopstar will use commercially reasonable efforts to determine whether to terminate or suspend any such Influencer’s account access to the Services.

6.                   FEES; PAYMENT TERMS

6.1               Fees. The Purchased Services (except under the beta version or any Free Services) may be offered subject to payment of applicable fees, as published through the Services from time to time. As may be applicable, Merchant shall pay Company the service fees for the applicable subscription package as set forth in Shopstar’s then in-effect price list (the “Fee”). All subscriptions shall be subject to the applicable usage limits and shall be include those modules or features offered under the applicable subscription package, as specified in the Shopstar’s website, online interface or Dashboard, as applicable. If a merchant wishes to upgrade its subscription package, it may contact Shopstar through the Dashboard and such upgrade shall become effective as of Merchant’s notice to Shopstar. Any decrease in the usage limits shall become effective on the subsequent month of Shopstar’s validation of Merchant’s notice as provided to Shopstar through the Dashboard.

6.2               Payment Terms. Merchant shall pay Shopstar the Fees within 30 days of Shopstar issuance of an invoice. The Fees are non-refundable and non-cancelable (including with respect to any cancelled transactions between Merchants and Influencers). All payments not made when due shall bear interest at the rate of 1.5% per month, or at the highest interest rate allowed by law, whichever is less, from the due date until paid. In addition, and without derogating from any other right Shopstar has under law or contract, failure of Merchant to make any payment when due shall constitute sufficient cause for Shopstar to immediately suspend its performance and grant of rights under this Agreement, stop providing the Services and prevent Merchant access to or use of the Services. Your billing information may be processed and handled through relevant third-party payment processors and therefore subject to the terms and conditions of these third parties (including with respect to any payments made through the E-Commerce Platform) pursuant to your contractual relations with them.

6.3               Taxes. As between Shopstar and Merchant, Merchant is solely responsible for determining and calculating any and all taxes and duties, including sales, use, transfer, value added, withholding, income, and other taxes and/or duties (“Taxes”) assessed, incurred, or required to be collected, paid, or withheld in connection with amounts received in connection with the transactions with Influencers, and for collecting, withholding, reporting, and remitting correct Taxes to the appropriate tax authority in connection therewith. The Fees include all Taxes relating to the Services, except for Shopstar’s net income, which shall be borne by Merchant. 

7.                   INFORMATION AND DATA

7.1               Confidentiality. Each party (“Receiving Party”) may have access to certain non-public or proprietary information or materials of the other party (“Disclosing Party”) whether in tangible or intangible form ("Confidential Information"). Without derogating from the foregoing, the Services and terms of the Agreement shall be deemed as Confidential Information. Receiving Party may use the Confidential Information solely for the purpose of exercising its rights under this Agreement. Receiving Party shall not disclose or make available the Confidential Information to any third party, except to its employees and consultants that have a need-to-know such information and that are bound by obligations at least as protective as provided herein. Receiving Party shall protect the Confidential Information using measures at least as protective as those taken to protect its own confidential information of like nature (but in no event less than a reasonable level of care). Receiving Party will promptly notify Disclosing Party in writing in the event of any actual or suspected unauthorized use or disclosure of any Confidential Information. Confidential Information shall not include: (i) information that was in the public domain at the time of disclosure or becomes in the public domain after disclosure not due to breach of this Agreement by Receiving Party; (ii) information that was already in the possession of the Receiving Party before disclosure herein; and (iii) information disclosed to Receiving Party by any third party who is not subject to confidentiality restrictions. Notwithstanding the foregoing, Receiving Party may disclose Confidential Information that it is required to disclose pursuant to applicable laws or an order of any competent authority or court, provided that Receiving Party shall, if permitted by law, notify Disclosing Party in advance of such disclosure in order to enable Disclosing Party to seek confidential treatment or a protective order.

7.2               Aggregated Data. Shopstar may aggregate and use data derived from your use of the Services to operate, improve, analyze and support the Services, for distribution in general benchmarking data and industry reports, and for other lawful business purposes, provided that the data (i) does not directly or indirectly identify User or any identifiable individual, and (iii) does not include any Merchant or User confidential information (“Aggregated Data”). Shopstar will implement technical safeguards and business processes that prohibit reidentification of the Aggregated Data and prevent inadvertent release of the Aggregated Data.

7.3               Privacy and Data Processing. Shopstar’s privacy policy is available at: https://getshopstar.com/privacy-policy/. Please note that Shopstar does not transfer any personal data of Influencers to Merchant. To the extent Merchant is processing any personal data of Influences independently from Shopstar it shall be responsible for establishing a separate data processing and privacy policy and obtain all proper consents of its users and any data subjects as required under applicable law.

8.                   INTELLECTUAL PROPERTY RIGHTS

8.1               Ownership. The Shopstar Platform and Services, including without limitation any underlying data, software, platforms, algorithms, technology, design, UI, any information, services and features, Feedback (defined below) and any modifications, enhancements and derivatives thereof and all Intellectual Property Rights related thereto ("Shopstar IPR") are the exclusive property of Shopstar or its licensors who retain all right, title and interest in connection therewith. No transfer or grant of any rights by Shopstar is made or is to be implied by any provision of these Terms or by any other provision contained in the Services with respect to the Shopstar IPR or otherwise, except for the limited license set forth in Section ‎‎2 above. Merchant will retain all rights, title, and interests in and to any Intellectual Property Rights that are conceived, developed, reduced to practice, created, or by it prior to the start of the Term or independently of this Agreement.

For the purpose of this Agreement, “Intellectual Property Rights” means all past, present, and future rights, title and interests of the following types, which may exist or be created under the laws of any jurisdiction in the world: (a) rights associated with works of authorship, including exclusive exploitation rights, copyrights, moral rights, publicity and privacy rights, and mask works; (b) trademarks, and trade name rights and similar rights, service marks, domain names, trade dress, logos, and other distinctive brand features, whether or not registered; (c) trade secret rights; (d) patents and industrial property rights; (e) publicity and privacy rights in marketing, advertising, or other public facing materials (including rights to use the name, likeness, image of persons); and (f) rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the rights referred to in clauses (a) through (d) above.

8.2               Feedback. Please be advised that if you send us ideas, suggestions, inventions, or materials regarding the Platform, Services or Content ("Feedback"), Shopstar shall: (i) own all right, title and interest in and to the Feedback without any restriction; (ii) not be subject to any obligation of confidentiality; and (iii) be entitled to unrestricted use of the Feedback for any purpose whatsoever, without compensation or credit to you or any other person.

8.3               Publicity. Notwithstanding anything to the contrary, Merchant grants Shopstar the right to disclose the name of Merchant and the existence of the relationship between Merchant and Shopstar for purposes of marketing and advertising the Shopstar’s Services.

8.4               Third Party Components. The Services include third party software components that are subject to open-source licenses or pass-through commercial licenses (“Third Party Components”, and “Third Party Terms”, respectively). Some of the Third-Party Software Terms may be made available to you through the Services, its documentation or via a supplementary list provided by Shopstar. Any covenants, representations, warranties, indemnities and other commitments with respect to the Services in this Agreement are made by Shopstar and not by any authors or suppliers of, or contributors to such Third-Party Components. Any use of Third-Party Components is subject solely to the rights and obligations under the applicable Third-Party Terms. If there is a conflict between any Third-Party Terms and the terms of this Agreement, then the Third-Party Terms shall prevail but solely in connection with the related Third Party Components. Notwithstanding anything in this Agreement to the contrary, Shopstar does not make any representation, warranty, guarantee, or condition, and does not undertake any liability or obligation, with respect to any Third-Party Components.

9.                   DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED HEREIN, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY OTHER WARRANTY. SHOPSTAR EXPRESSLY DISCLAIMS ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, MERCHANTABILITY, NON-INTERFERENCE, SECURITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. THE ENTIRE RISK ARISING OUT OF THE USE OF THE SERVICES REMAINS WITH YOU. SHOPSTAR DOES NOT WARRANT THAT THE ACCESS TO AND USE OF SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ERRORS ARE REPRODUCIBLE OR THAT ERRORS ARE REPAIRABLE AND DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES INCLUDING WITHOUT LIMITATION IN TERMS OF THEIR CORRECTNESS, USEFULNESS, ACCURACY, RELIABILITY, OR OTHERWISE. SHOPSTAR WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET, ELECTRONIC COMMUNICATIONS OR FOR ISSUES RELATED TO PUBLIC NETWORKS, HOSTING PROVIDERS OR OTHER THIRD-PARTY INFRASTRUCTURE PROVIDERS.

10.               LIMITATION OF LIABILITY. IN NO EVENT WILL SHOPSTAR, ITS AFFILIATES OR THEIR RESPECTIVE REPRESENTATIVES BE LIABLE TO MERCHANT FOR ANY (A) INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE THE SHOPSTAR PLATFORM OR THE SERVICES AND (B) LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE TOTAL LIABILITY OF SHOPSTAR TO MERCHANT, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED THE FEES PAID OR PAYABLE TO SHOPSTAR IN CONNECTION WITH THIS AGREEMENT IN THE TWELVE-MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

11.               INDEMNIFICATION. You agree to defend, indemnify and hold harmless Shopstar, its officers, directors, employees, Affiliates and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs, debts, and expenses (including but not limited to attorney’s fees) arising from the unauthorized use of the Services and/or for any third-party claims relating to your services and products.

12.               TERM AND TERMINATION.

12.1           Term. The term of this Agreement is for an initial period of the applicable subscription period to which you registered as indicated in the Dashboard (the “Initial Term”), and will automatically be extended for successive equivalent periods each (each a “Renewal Term” and together with the Initial Term, the “Term”) unless a Party notifies the other Party of its intent not to renew at least thirty (30) days prior to the end of the Initial Term or a Renewal Term, in each case unless terminated earlier.

12.2           Termination; Suspension. A party may terminate this Agreement: (i) upon the other party’s material breach that is not cured within thirty (30) days after receiving written notice of such breach, except for breach of Sections ‎2.3, ‎3, ‎6, ‎8‎ and 12 which shall be deemed incurable; or (ii) upon providing written notice in the event that one or more of the following events occur(s): (a) appointment of a trustee or receiver for all or any part of the assets of the other party; (b) insolvency or bankruptcy of the other party; (c) a general assignment by the other party for the benefit of creditor(s); or (d) dissolution or liquidation of the other party. In addition, Shopstar reserves the right at any time, in its sole discretion, to change, limit or suspend your access to your Account without prior notice, as may be necessary due to any breach of this Agreement, a change to Shopstar’s business (i.e., eliminating the Services), any perceived risk to the security, integrity or availability of the Services or other users of the Services, or other lawful reason.  In such an event Shopstar will provide Merchant with a written notice upon suspension or as soon as reasonably practicable, and such suspension will remain in place until the cause of the suspension is remedied to Shopstar’s satisfaction. If the cause is not remedied within the time period determined by Shopstar, Shopstar may terminate this Agreement by providing written notice to Merchant.

12.3           Effects of Termination. Upon termination of this Agreement, (i) all licenses granted under this Agreement shall expire, and Merchant will cease providing the Services; (ii) each party shall return any copies of Confidential Information to the Disclosing Party; and (iii) any outstanding Fees shall become immediately due and payable on the date of termination of the Agreement. The Parties’ rights to terminate this Agreement will be in addition to, and not in lieu of, any other remedies they may have by virtue of (a) a breach or default with respect to this Agreement, or (b) any other event which permits a termination. The termination or expiration of this Agreement will not relieve a Party of its respective obligations due at or before the time of such termination or expiration or prejudice any claim of either Party. Those provisions of this Agreement which by their nature should survive the expiration or termination of this Agreement shall so survive its expiration or termination, including without limitation, Sections ‎2.3‎, 4.3, ‎5.2, ‎6-‎10, ‎11.3 and ‎12.

13.               MISCELLANEOUS.

13.1           Notices. Except as otherwise expressly provided, all notices to be given to a Party are effective only when made in writing and actually delivered to such Party’s physical or email address for notices. For Shopstar, the physical notice address is stated herein below, and email notices may be sent to support@getshopstar.com. For Merchant, the notice addresses are as provided during the enrollment process to the Services. A Party may modify its notice address by providing notice of this change to the other Party.

13.2           Amendments. Shopstar may amend this Agreement from time to time, in its sole discretion and for any reason. Amendments will be indicated by a changed Last Updated date through the Dashboard, and Merchant is responsible for monitoring this web page for amendments, although Shopstar will notify Merchant of any amendments that Shopstar deems material. Merchant’s subsequent access and use of the Shopstar Platform or use of the Services constitutes Merchant’s consent and agreement to such amendments.

13.3           Assignment. Shopstar may freely assign any and all of its rights under this Agreement. Merchant may not assign this Agreement to any third party without the prior written consent of Shopstar, except that Merchant may freely assign this Agreement to an affiliate or an acquirer of all or substantially all of its assets upon the occurrence of an M&A transaction, all provided the purported assignee is not a competitor of Shopstar. Any purported assignment contrary to this section shall be void.

13.4           Entire Agreement. Each Party agrees that this Agreement and all referenced documents constitute the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications and other understandings, relating to the subject matter of this Agreement. Each Party acknowledges that it is not relying on any information, conditions, covenants, warranties or representations provided to it or to any of its Affiliates or Representatives at any time except as expressly stated in this Agreement.

13.5           Survival, Severability and Waiver. All provisions of this Agreement which by their nature are meant to extend beyond the expiration or termination of this Agreement will survive such expiration or termination. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the remaining provisions of this Agreement will otherwise remain in full force and effect and enforceable. The failure by either Party to insist upon strict performance of any of the provisions contained in this Agreement will in no way constitute a waiver of its rights as set forth in this Agreement, at law or in equity, or a waiver of any other provisions or subsequent default by the other Party in the performance of or compliance with any of the terms and conditions set forth in this Agreement.

13.6           Force Majeure. Shopstar is not responsible for any breach or delay in the performance of its obligations pursuant to this Agreement for reason of fire, flood, riot, act of terrorism, strike, labor conflict, freight embargo, delay in shipping, act of a public enemy, of war, of civil disorder, of interruption, of a failure or an interruption of the Internet or phone service, or for any other cause reasonably beyond the control of Shopstar.

13.7           Relationship of Parties. Each Party agrees that, except as with respect to Shopstar acting as the authorized agent of Merchant, they are independent contractors to each other in performing their respective obligations under this Agreement. Nothing in this Agreement or in the working relationship being established between the Parties will be deemed or is intended to be deemed, nor will it cause,any of the Parties to be treated as partners, joint ventures, or otherwise as joint associates for profit. Merchant does not have any authority of any kind to bind Shopstar.

13.8           No Third-Party Beneficiaries. Except as stated in this Agreement, this Agreement does not create any right or cause of action in or on behalf of any person or entity other than the Parties.

13.9           Dispute Resolution. This Agreement will be governed by, construed and enforced in accordance with the laws of the State of Israel, without regard to that state’s conflict of laws principles. Jurisdiction and venue for the formal resolution of any disputes relating to this Agreement will lie exclusively in the Federal and State Courts located in Tel Aviv, Israel. Notwithstanding the foregoing, in the event of breach or threatened breach by of any provision of the Terms by you, you acknowledge that Shopstar may suffer significant and irreparable harm that could not be satisfactorily compensated in monetary terms, and that the remedies at law available to Shopstar may otherwise be inadequate. Therefore, Shopstar shall be entitled, in addition to any other remedies to which it may be entitled to under law or in equity, to the immediate ex parte issuance, without bond, of an equitable relief, including without limitation an injunctive relief, in any jurisdiction worldwide.

YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO USE OF THE SERVICES OR THE TERMS MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED.

13.10       Construction. The headings contained in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement. The singular includes the plural, and the plural includes the singular. The terms “include” and “including” are not limiting. Reference to any agreement or other contract includes any permitted modifications, supplements, amendments, and replacements. Any reference to a URL or to terms incorporated by reference will be deemed to mean that URL and those terms as may be updated from time to time.

13.11       Counterparts. This Agreement may be executed in one or more counterparts, each of which will be an original but all of which taken together will constitute one and the same Agreement.

 

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