ShopThing Seller Terms of Service Agreement

Version 1

Effective Date: March 21, 2024

Last Updated Date: January 9, 2025

PLEASE NOTE THIS TERMS OF SERVICE AGREEMENT ONLY APPLIES TO SELLERS. BUYERS ARE SUBJECT TO A SEPARATE TERMS OF SERVICE AVAILABLE AT https://www.shopthing.com/terms-and-conditions and https://www.shopthing.com/terms-and-conditions-for-purchasing.

PLEASE READ THIS SELLER TERMS OF SERVICE AGREEMENT (THE “TERMS OF SERVICE”) CAREFULLY.  THIS TERMS OF SERVICE, APPLIES TO (A) THE WEBSITE MADE AVAILABLE BY SHOPTHING  (“SHOPTHING,” “WE,” OR “US”) AVAILABLE AT WWW.SHOPTHING.COM (THE “WEBSITE”), (B) SHOPTHING’S MOBILE APPLICATION(S) (EACH, AN “APPLICATION” AND COLLECTIVELY, WITH THE WEBSITE, THE “PLATFORM”), AND (C) THE PRODUCTS, SERVICES, FEATURES, TECHNOLOGIES, AND/OR FUNCTIONALITIES PROVIDED BY SHOPTHING VIA THE PLATFORM (COLLECTIVELY, WITH THE PLATFORM, THE “SERVICES”). 

BY ACCESSING OR USING OUR SERVICES IN ANY WAY, BY CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS, MAKING INVENTORY AVAILABLE ON THE SERVICES AND/OR BROWSING THE WEBSITE OR DOWNLOADING OUR APPLICATION YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF SERVICE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH SHOPTHING, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF SERVICE PERSONALLY OR ON BEHALF OF ENTITY YOU HAVE NAMED AS THE SELLER IN THE SELLER ACCOUNT, AND TO BIND THAT ENTITY TO THE TERMS OF SERVICE.  THE TERM “YOU” REFERS TO YOU AS AN INDIVIDUAL AND ANY LEGAL ENTITY THAT YOU HAVE NAMED AS A SELLER AT THE TIME OF REGISTRATION FOR THE SERVICES.  IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS OF SERVICE YOU MAY NOT ACCESS OR USE ANY OF THE SERVICES.

THE TERMS OF SERVICE INCLUDE (1) YOUR AGREEMENT THAT SHOPTHING HAS NO LIABILITY REGARDING THE SERVICES (SECTION 2 (SHOPTHING ONLY PROVIDES A VENUE)); (2) YOUR AGREEMENT THAT THE SERVICES ARE PROVIDED “AS IS” AND WITHOUT WARRANTY (SECTION 15 (DISCLAIMER OF WARRANTIES)); (3) YOUR CONSENT TO RELEASE SHOPTHING FROM LIABILITY (SECTION 13 (RELEASE)); AND (4) YOUR AGREEMENT TO INDEMNIFY SHOPTHING FOR YOUR USE OF, OR INABILITY TO USE, THE SERVICES (SECTION 14 (INDEMNIFICATION)).

PLEASE BE AWARE THAT SECTION 19 (ARBITRATION AGREEMENT) CONTAINS PROVISIONS GOVERNING HOW TO RESOLVE DISPUTES BETWEEN YOU AND SHOPTHING. AMONG OTHER THINGS, SECTION 19 (ARBITRATION AGREEMENT) INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND US SHALL BE RESOLVED BY BINDING AND FINAL ARBITRATION. IT ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER. PLEASE READ THIS AGREEMENT CAREFULLY.

UNLESS YOU OPT OUT OF THE AGREEMENT TO ARBITRATE WITHIN 30 DAYS IN ACCORDANCE WITH SECTION 19.8: (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.

As a Seller on our Platform, you are subject to certain policies, procedures, and rules, that we may provide or make available to you in writing (“Policies”) either through your Account or on our Website. Further, your use of, and participation in, certain Services may be subject to additional terms (“ Terms”) and such Supplemental Terms will either be listed in the Terms of Service or will be presented to you for your acceptance when you sign up to use the supplemental Service. If the Terms of Service are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service. The Terms of Service, our Policies, and any applicable Supplemental Terms are referred to herein as the “Agreement.”

You acknowledge that ShopThing may process your personal data in accordance with the ShopThing Privacy Policy. 

PLEASE NOTE THAT THE AGREEMENT IS SUBJECT TO CHANGE BY SHOPTHING IN ITS SOLE DISCRETION AT ANY TIME AS SET FORTH IN SECTION 22.12 (AGREEMENT UPDATES)PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.

1. OUR SERVICES CONNECT BUYERS AND SELLERS.  ShopThing provides a marketplace that allows users of our Services that have an account with ShopThing to offer, sell and buy goods, including luxury and designer items, such as clothing, handbags, accessories, jewelry, beauty, and home goods.  As a marketplace, we do not own or sell the items listed on the Services, so the actual contract for sale is directly between the individual or entity seeking to sell items (the “Seller(s)”) and individual or entity seeking to buy items (“Buyers”).  While we may, in our discretion, help facilitate the resolution of disputes through various programs, ShopThing has no control over and does not guarantee the existence, quality, safety or legality of items offered on the Services; the truth or accuracy of Registered Users’ content or listings; the ability of Sellers to sell items; the ability of Buyers to pay for items; or that a Buyer and Seller will actually complete a transaction or return an item.

2. SHOPTHING ONLY PROVIDES A VENUE.  While ShopThing may provide pricing and guidance on our Platform regarding Seller’s items, such features are solely informational.  We do not take part in the interaction between Registered Users.  We do not have control over the quality, timing, legality, failure to provide, or any aspect whatsoever of any ratings provided by Registered Users, items sold by Sellers, or of the integrity, responsibility, or any actions of any Registered Users.  ShopThing makes no representations about the suitability, reliability, timeliness or accuracy in public, private or offline interactions.  

   When interacting with other Registered Users you should exercise caution and common sense to protect your personal safety and property, just as you would when interacting with other persons whom you don’t know.  NEITHER SHOPTHING NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SERVICES.  SHOPTHING AND ITS AFFILIATES AND LICENSORS WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH YOUR USE OF THE SERVICES.

3. USE OF THE SERVICES.  The Services, and the information and content available on the Services are protected by copyright and other intellectual property rights laws throughout the world.  Unless otherwise specified by ShopThing in a separate license, your right to use any and all of the Services is subject to the Agreement. 

   3.1 Application License.  Subject to your compliance with the Agreement, ShopThing grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Application on a single mobile device or computer that you own or control and to run such copy of the Application solely for your own personal or internal business purposes. 

   3.2 Updates.  You understand that the Services are evolving.  As a result, ShopThing may require you to install updates to the Software or Applications that you have installed on the devices through which you access or use the Service (“Device”).  You acknowledge and agree that ShopThing may update the Service with or without notifying you.  You may need to update third-party software from time to time in order to continue to use the Service.  Any future release, update or other addition to the Service shall be subject to this Agreement.

   3.3 Communications. By entering into this Agreement or accessing or using the Services, and providing us with your contact information, you agree to receive communications from us, including via e-mail, text message (including SMS messaging) (collectively, “texts”), and/or calls. You agree that texts, calls or prerecorded messages may be generated by automatic telephone dialing systems. Communications from us and our affiliated companies may include, but are not limited to, operational communications concerning your Account or the use of the Services and updates concerning new and existing features on the Services. Standard text messaging charges applied by your cell phone carrier will apply to text messages that we send. If you wish to opt out of promotional emails, you can unsubscribe from our promotional email list by following the unsubscribe options in the promotional email itself. You acknowledge that you are not required to consent to receive promotional texts or calls as a condition of using the Services. If you wish to opt out of texts or calls from us (including operational or transactional texts or calls), you can reply STOP, END, CANCEL, UNSUBSCRIBE, OR QUIT to any text received from ShopThing or notifying ShopThing at sellers@shopthing.com. However, you acknowledge that opting out of receiving all texts or calls may impact your use of the Service.  Your participation in any marketing text messaging services is subject to Section 3.4 below.

   3.4 Text Message Services. ShopThing may offer one or more marketing or promotional related mobile message programs (collectively, the “Message Service”) that allows users to receive marketing (i.e., non-administrative) SMS/MMS mobile messages by opting-in such as through online or application-based enrollment forms. Regardless of the opt-in method you use to enroll, you agree that your use of the Message Service is governed by this Agreement. We do not charge for the Message Service, but you are responsible for all charges and fees associated with mobile messaging imposed by your wireless carrier and you acknowledge that your carrier may charge you or deduct usage credit from your account when you text us or we send messages to you. Message and data rates may apply. By enrolling a telephone number in the Message Service, you authorize us to send recurring SMS and MMS mobile messages to the number you specify, and you represent that you are authorized to receive mobile messages at such number. You agree that these messages may be transmitted using an automatic telephone dialing system (“ATDS”), other automated systems for the selection or dialing of telephone numbers, or different technology. Your consent to receive mobile messages via an ATDS or other automated system for the selection or dialing of numbers is not required (directly or indirectly) as a condition of purchasing any property, goods or services. While you consent to receive messages sent using an ATDS, the foregoing shall not be interpreted to suggest or imply that any or all of our messages are sent using such a system. Message frequency varies. If you do not wish to continue participating in a Message Service program we offer, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message you receive from that program to opt out. You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You acknowledge that our text message platform may not recognize and respond to unsubscribe requests that alter, change, or modify the STOP, END, CANCEL, UNSUBSCRIBE or QUIT keyword commands, such as the use of different spellings or the addition of other words or phrases to the command, and agree that that we and our service providers will have no liability for failing to honor such requests. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those keyword commands set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out. To the extent you subscribe to more than one Message Service program that we operate, you must unsubscribe from each program separately. For Message Service support or assistance, text the HELP keyword in response to any message you receive through the Message Service or email us at sellers@shopthing.com. Please note that the use of this email address is not an acceptable method of opting out of Message Service. Opt outs must be submitted in accordance with the procedures set forth above. We may change any short code or telephone number we use to operate the Message Service at any time with notice to you. You acknowledge that any messages, including any STOP or HELP requests, you send to a short code or telephone number we have changed may not be received and we are not responsible for honoring requests made in such messages. The Message Service may not be available in all areas or supported by all carriers or all devices. Check with your carrier for details. Delivery of mobile messages is subject to effective transmission from your wireless carrier/network operator and is outside of our control. We and the wireless carriers supported by the Message Service are not liable for any failed, delayed or undelivered messages. If you decide to change your mobile phone number, you agree to first opt out of each Message Service program in which your number is enrolled. For clarity, you acknowledge and agree that any disputes between you and us related to the Message Service will be governed by Section 19 (Arbitration Agreement).

   3.5 Aggregated Statistics.  Notwithstanding anything to the contrary in these Terms of Service, ShopThing may monitor Users’ use of the Services and collect and compile data and information related to users’ use of the Services. ShopThing may use such data and information in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services (“Aggregated Statistics”). As between ShopThing and you, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by ShopThing. You acknowledge that ShopThing may compile Aggregated Statistics based on users’ use of the Services. You agree that ShopThing may use Aggregated Statistics to the extent and in the manner permitted under applicable law, including, but not limited to, for maintenance and improvement of the Services, provided that such Aggregated Statistics do not identify such you or any other personally-identifiable information regarding the User.

4. REGISTRATION.

   4.1 Registering Your Account.  In order to access certain features of the Services you may be required to become a Registered User.  For purposes of the Agreement, a “Registered User” is a user who has signed up or created an account as a Seller on the Website or Application (“Account”).

   4.2 Registration Data.  In registering an account, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete.  You represent that you are (i) at least eighteen (18) years old; (ii) of legal age to form a binding contract; and (iii) not a person barred from using the Services under the laws of the United States or Canada, your place of residence or any other applicable jurisdiction.  You are responsible for all activities that occur under your Account.  You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Services by minors.  You may not share your Account or password with anyone, and you agree to (y) notify ShopThing immediately of any unauthorized use of your password or any other breach of security; and (z) exit from your Account at the end of each session.  If you provide any information that is untrue, inaccurate, not current or incomplete, or ShopThing has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, ShopThing has the right to suspend or terminate your Account and refuse any and all current or future use of the Services (or any portion thereof).  You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself.  ShopThing reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights.  You agree not to create an Account or use the Services if you have been previously removed by ShopThing, or if you have been previously banned from any of the Services.

   4.3 Necessary Equipment and Software.  You must provide all equipment and software necessary to connect to the Services, including but not limited to, a mobile device that is suitable to connect with and use the Services, in cases where the Services offer a mobile component.  You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Services.  

5. RESPONSIBILITY FOR CONTENT.

   5.1 Types of Content.  You acknowledge that all information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials (collectively, “Content”) accessible through the Services, including the Services, is the sole responsibility of the party from whom such Content originated.  This means that you, and not ShopThing, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through the Services (“Your Content”), and that you and other Registered Users of the Services, and not ShopThing, are similarly responsible for all Content that you and they Make Available through the Services (“User Content”).

   5.2 Storage.  Unless expressly agreed to by ShopThing in writing elsewhere, ShopThing has no obligation to store any of Your Content that you Make Available on the Services.  ShopThing has no responsibility or liability for the timeliness, deletion, mis-delivery or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Services.  Certain Services may enable you to specify the level at which such Services restrict access to Your Content.  You are solely responsible for applying the appropriate level of access to Your Content.  If you do not choose, the system may default to its most permissive setting.  You agree that ShopThing retains the right to create reasonable limits on ShopThing’s use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described on the Website and as otherwise determined by ShopThing in its sole discretion. 

6. OWNERSHIP.

   6.1 Ownership of the Services.  Except with respect to Your Content and User Content, you agree that ShopThing and its suppliers own all rights, title and interest in the Services (including but not limited to, any computer code, themes, objects, characters, character names, stories, dialogue, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, documentation, and ShopThing software).  You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any the Services.

   6.2 Trademarks. The ShopThing logo (See Appendix A) and all related graphics, logos, service marks and trade names used on or in connection with the Services or in connection with the Services are the trademarks of ShopThing and may not be used without permission in connection with your, or any third-party, products or services.  Other trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners.

   6.3 Your Content.  ShopThing does not claim ownership of Your Content.  However, when you as a Registered User post or publish Your Content on or in the Services, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.  

   6.4 License to Your Content.  Subject to any applicable account settings that you select, you grant ShopThing a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display Your Content (in whole or in part) for the purposes of operating and providing the Services to you and to our other Registered Users.  Please remember that other Registered Users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of the Services.  You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above.  You agree that you, not ShopThing, are responsible for all of Your Content that you Make Available on or in the Services.  

   6.5 User Identification.  Notwithstanding anything contained herein to the contrary, by submitting Your Content to any comments, or any other area on the Services, you hereby expressly permit ShopThing to identify you by your username (which may be a pseudonym) or by your first name and last initial as the contributor of Your Content in any publication in any form, media or technology now known or later developed in connection with Your Content.

   6.6 Feedback.  You agree that submission of any ideas, suggestions, documents, and/or proposals to ShopThing (“Feedback”) is at your own risk and that ShopThing has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback.  You represent and warrant that you have all rights necessary to submit the Feedback.  You hereby grant to ShopThing a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Services and/or ShopThing’s business.

7. USER CONDUCT AND CERTAIN RESTRICTIONS.  As a condition of use, you agree not to use the Services for any purpose that is prohibited by this Agreement or by applicable law.  You shall not (and shall not permit any third party) to: (a) license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Services or any portion of the Services;  (b) frame or utilize framing techniques to enclose any trademark, logo, or other Services (including images, text, page layout or form) of ShopThing;  (c) use any metatags or other “hidden text” using ShopThing’s name or trademarks;  (d) modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law;  (e) use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Services (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Services for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) remove or destroy any copyright notices or other proprietary markings contained on or in the Services.  Further, you shall not (and shall not permit any third party) to either (a) take any action or (b) Make Available any Content on or through the Services that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, misleading, false, defamatory, libelous, pornographic, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, profane or racially, ethnically, or otherwise discriminatory; (iii) contains nudity, violence, sexually explicit, or offensive subject matter as determined by ShopThing in its sole discretion;  (iv) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (v) involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes without ShopThing’s prior written consent; (vi) impersonates any person or entity, including any employee or representative of ShopThing; (vii) interferes with or attempt to interfere with the proper functioning of the Services or uses the Services in any way not expressly permitted by this Agreement; (viii) manipulates the price of any listed item or interferes with a user profile or Seller listings; (ix) transfers your account and username to another party without our consent; (x) bypasses our robot exclusion hardware, interferes with the working of the Platform, or imposes an unreasonable or disproportionately large load on our infrastructure; (xi) uses the Platform to collect, harvest, transmit, distribute or submit any information concerning any other person or entity, including without limitation photographs of others, personal contact information or credit card, debit or calling card or account numbers without their permission; (xii) takes any action that may undermine our feedback or ratings systems; (xiii) breaches or circumvents any laws, third party rights or our systems, policies, or determinations of your account status; or (xiv) attempts to engage in or engages in, any potentially harmful acts that are directed against the Services, including but not limited to violating or attempting to violate any security features of the Services, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in the Services, introducing viruses, worms, or similar harmful code into the Services, or interfering or attempting to interfere with use of the Services by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Services.

8. NO SOLICITATION; USE OF BUYER INFORMATION.  The Platform may not be used to solicit for any other business, website or services.  You may not solicit, advertise for, or contact in any form Registered Users for employment, contracting, or any other purpose not related to the Services facilitated through the Services.  You may not use the Platform to collect usernames and/or email addresses of Registered Users by electronic or other means without the express prior written consent of ShopThing. You may use any data or information to which you have access in connection with the Services that concern a Buyer or any transaction with a Buyer (“Buyer Information”) only (i) to communicate with Buyers who inquire about items or goods which you list for sale through the Platform, and (ii) to facilitate the sale of any such items or goods to the Buyer through the Platform. You may not use Buyer Information for any other purpose, unless otherwise agreed in writing between you and the respective Buyer. For example, you may not, directly or indirectly: (a) disclose any Buyer Information to any third party, except as necessary for you to perform your obligations under this Agreement and only if you ensure that every recipient uses the information only for that purpose and complies with any restrictions applicable to you; (b) use any Buyer Information for any marketing or promotional purposes whatsoever; (c) use any Buyer Information in any way inconsistent with applicable privacy policies or law; (d) contact a Buyer to influence them to make an alternative purchase; (e) disparage us, our affiliates or any of their or our respective products and services; or (f) target communications of any kind based on the intended recipient being a Buyer. 

9. INVESTIGATIONS, MONITORING, & NO OBLIGATION TO PRE-SCREEN CONTENT.  

   9.1 Monitoring; Content.  ShopThing may, but is not obligated to, investigate, monitor, pre-screen, remove, refuse, or review the Services and/or Content, including Your Content and User Content, at any time.  By entering into the Agreement, you hereby provide your irrevocable consent to such monitoring.  You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications.  In the event that ShopThing pre-screens, refuses or removes any Content, you acknowledge that ShopThing will do so for ShopThing’s benefit, not yours.  Without limiting the foregoing, ShopThing reserves the right to: (a) remove or refuse to post any of your Content for any or no reason in our sole discretion; (b) take any action with respect to any of Your Content that we deem necessary or appropriate in our sole discretion, including if we believe that such Content violates this Agreement, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Services or the public, or could create liability for ShopThing; (c) disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy; (d) take appropriate legal action, including without limitation, referral to and cooperation with law enforcement and/or other applicable legal authorities, for any illegal or unauthorized use of the Services or if ShopThing otherwise believes that criminal activity has occurred; and/or (e) terminate or suspend your access to all or part of the Services for any or no reason, including without limitation, any violation of this Agreement.  Upon determination of any possible violations by you of any provision of the Agreement, ShopThing, may, at its sole discretion immediately terminate your license to use the Services, or change, alter or remove Your Content, in whole or in part, without prior notice to you.

   9.2 Criminal Activity.  If ShopThing believes that criminal activity has occurred, ShopThing reserves the right to, except to the extent prohibited by applicable law, disclose any information or materials on or in the Services, including Your Content, in ShopThing’s possession in connection with your use of the Services, to (i) comply with applicable laws, legal process or governmental request, (ii) enforce the Agreement, (iii) respond to any claims that Your Content violates the rights of third parties, (iv) respond to your requests for customer service, or (v) protect the rights, property or personal safety of ShopThing, its Registered Users or the public, and all enforcement or other government officials, as ShopThing in its sole discretion believes to be necessary or appropriate.

10. LISTING CONDITIONS. When listing an item, you agree to the following:

    10.1 You are responsible for the accuracy, legality and content of the listing and item offered. You may not engage in deceptive practices when listing your items, including photoshopping or altering photos of the items or providing inaccurate or incomplete descriptions of the items. Without limiting the generality of the foregoing, you are responsible for ensuring you have the rights necessary to sell any items listed through the Services.

    10.2 Your listing may not be immediately searchable by keyword or category for several hours (or up to 24 hours in some circumstances).

    10.3 You are solely responsible for ensuring that the items you list are authentic, and that items bearing a company’s brand name or logo are lawfully made by that company. We do not allow counterfeit items to be listed and sold on ShopThing, including fakes, copies, knockoffs, bootlegs, or replicas of brand name items, or items that may violate the trademark or copyrights of third parties, including items that have been “upcycled” or “reworked”, the foregoing of which will be considered a Prohibited Item (as defined below). You acknowledge and agree that if an item in question is deemed counterfeit, including through our authentication process for Buyers or a Buyer’s own authentication process or diligence, we may ensure disposal of the item in any manner, at our discretion, and you will not be entitled to any Fees for the sale of such item. In addition, you will be charged a Processing Fee.

    10.4 We strive to create a marketplace where Buyers can find what they are looking for.  Therefore, the appearance or placement of listing in search and browse results will depend on a variety of factors, including, but not limited to:

    a. Buyer’s location, search query, browsing sites, and history;

    b. A listing’s location, listing format, price and shipping cost, terms of service, end time, history, and relevance to the user query.

    c. Seller’s history, Seller rating and feedback; and

    d. Number of listings matching the Buyer’s query. To drive a positive experience, a listing may not appear in some search and browse results regardless of the sort order chosen by the Buyer.

    10.5 You may not list or sell the following “Prohibited Items” through the Services. If you sell or attempt to sell a Prohibited Item through the Services (as determined by ShopThing), we have the right, in our sole discretion, to withhold Fees related to such sales, suspend your Account, and/or terminate this Agreement, in each case, without liability to you.

    a. Restricted Items: Certain items are prohibited or restricted from being sent via mail, in accordance with government regulations or certain shipping carriers. Check with your shipping carrier (such as UPS, FedEx, or DHL) and applicable government resources (such as USPS or Canada Post) to learn what restrictions may apply to you. 

    b. Perishable Items: You may not sell items that are perishable, including live plants (including seeds), food, alcoholic and non-alcoholic beverages, baby formula, and vitamins or other nutritional supplements.

    c. Drugs and Medical Devices: You may not sell illegal drugs, or even legal drugs, such as over-the-counter drugs, prescription drugs, alcohol, tobacco, and drug-related paraphernalia that is designed or intended for making, using, or concealing drugs. Further, you may not list or sell classified medical devices.

    d. Hazardous Materials: You may not list or sell explosives, explosive precursors, fuels, and combustibles; aerosols; ozone-depleting substances; carcinogens, poisons, and pesticides; radioactive materials; toxic plant materials; and other substances that are or may pose a risk to health, safety, property or the environment.

    e. Animals and Human Parts. You may not list or sell live animals, items manufactured or created using endangered or threatened animal species, ivory or bones from animals that produce ivory, or human body parts, waste, or remains.

    f. Weapons: You may not list or sell weapons of any kind or any other object used to deter, threaten, inflict physical damage, harm, or kill, including knives, swords, artillery, biological weaponry, chemical weaponry, combat weapons, explosives, explosive substances, missiles, rockets, firearms (manual, semi-automatic, or automatic), nuclear weapons, or siege weapons.

    g. Stolen, Illegal, or Misrepresented Items. You may not list or sell stolen goods or any goods that violate applicable laws, rules, or regulations. You may not list or sell goods that have been recalled by governments or manufacturers. You may not misrepresent the origin or source of any good or falsely suggest an association with any such origin or source. Without limiting the generality of the foregoing, you may not list or sell any good that misrepresents an association with Native American, American Indian, or Alaska Native tribes or organizations in violation of the Indian Arts and Crafts Act of the United States.

    h. Items that Promote Violence or Hate. You may not list or sell any items or goods (i) with language or content that promotes violent, including language or content that is violent, threatening, abusive, harassing, or degrading towards others, based on race, ethnicity, national origin, religion, gender, disability, sexual orientation, immigration status, or caste, or (ii) that support any hate groups or any other groups, individuals, or organizations that support language or content described in (i).

    i. Items that Otherwise Violate this Agreement. You may not list or sell any items or goods that violate Section 4 or any other provision of this Agreement.

    10.6 Once a Buyer accepts your offer for an item you have listed, or you accept a Buyer’s offer, you must fulfill the sale. You will be required to confirm all sold orders through the ShopThing Seller App within 24 hours of the order being placed. Orders must be confirmed prior to being shipped. If an order is cancelled after being confirmed, you will be charged a Processing Fee and will not receive a payment. If an order is shipped without being confirmed, you will not receive a payment and ShopThing cannot guarantee the item to be returned back to you. Unless you have your own corporate shipping carrier account or as may otherwise be agreed to by you and ShopThing, you must use the shipping labels ShopThing provides to you when fulfilling orders. As between ShopThing and you, you will be responsible for any loss or damage to an item you have sold during transit; provided, however, in the event you are shipping through ShopThing’s carrier account, ShopThing will reasonably assist you in preparing and submitting a claim for such damage or loss. You acknowledge and agree that additional shipping costs may apply, including where ShopThing authenticates an item you have sold to a Buyer or where a Buyer returns an item to you for a  refund, and ShopThing will have the right to charge your Credit Card for such shipping costs or deduct any such shipping costs from your Connected Account.

11. INTERACTIONS WITH OTHER USERS.

    11.1 User Responsibility.  You are solely responsible for your interactions with other Registered Users and any other parties with whom you interact; provided, however, that ShopThing reserves the right, but has no obligation, to intercede in such disputes.  You agree that ShopThing will not be responsible for any liability incurred as the result of such interactions.

    11.2 Content Provided by Other Registered Users.  The Services may contain User Content provided by other Registered Users.  ShopThing is not responsible for and does not control User Content.  ShopThing does not approve, endorse or make any representations or warranties with respect to, User Content.  You use all User Content and interact with other Registered Users at your own risk.

    11.3 Subverting the Platform.  It is a material breach of this Agreement to arrange for the sale of listed items from, or the payment of fees to, Sellers outside the context of the Platform (including with a Buyer whom Seller was introduced through the Platform) for the purposes of circumventing the obligation to pay the ShopThing’s fee for items purchased through the Platform. Without the limiting the generality of the foregoing, Sellers are specifically prohibited from listing, making available, or selling any items posted through the Platform, in any manner outside the Platform (including on other marketplace websites or applications) so long as such item is made available for sale through the Platform.

12. MARKETPLACE PAYMENTS SERVICES.

    12.1 Additional Onboarding Information. ShopThing reserves the right, but has no obligation, to request additional information from Sellers to verify your identity in order to comply with laws and regulations governing payments, safeguard the integrity of the Platform, and reduce the risk of fraud, money laundering, terrorist financing, and the violation of trade sanctions.  Information that ShopThing may request, or seek to confirm, may include your full legal name, mailing address, phone number, date of birth, taxpayer identification number (e.g. Social Security Number), bank account information, and a form of government-issued identification.    

    12.2 Seller Fees. ShopThing charges Sellers the following fees for using the Platform: (i) transaction fee in an amount equal to ten percent (10%) of the sales price charged to Buyer for the purchase of your item(s) in each transaction (“Transaction Fee”); (ii) the tax charged on each Transaction Fee (“Transaction Fee Tax”), (iii) processing fee in an amount equal to three and one-half percent (3.5%) of the final order price charged to a Buyer for the purchase of your item(s) in each transaction (“Processing Fee”), (iv) the tax charged on each Processing Fee (“Processing Fee Tax” and together with the Transaction Fee, Transaction Fee Tax, and Processing Fee the “Fee(s)”).  We may change any of the Fees from time to time.  Any new Fee(s) will apply to purchases on the Platform after the changes are posted. Any Fees assessed on Seller by ShopThing may offset from funds due to Seller in accordance with this Agreement.

    12.3 Payment. To receive payments for transactions you complete through the Platform, you are required to create an account to connect with our Payment Processor (“Connected Account”).   Payment processing services for Sellers are currently provided by Stripe and are subject to the Stripe Connected Account Agreement which includes the Stripe Terms of Services available at https://stripe.com/us/terms and Privacy Policy available at https://stripe.com/us/privacy (collectively, the “Stripe Services Agreement”). By agreeing to this Agreement, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of ShopThing enabling payment processing services through Stripe, you agree to provide ShopThing with accurate and complete information about you and your business, and you authorize ShopThing to share it and transaction information related to your use of the payment processing services provided by Stripe. You must keep your Stripe account information current in order to receive payments from us. When you complete a transaction in accordance with this Agreement, payment to you will be routed to the bank account or other similar account associated with your Stripe account in an amount equal to your Fees. You may have the opportunity to elect when you receive payment under your Connected Account, however, you will be responsible for any fees or other amounts payable to the Payment Processor for expedited payments.

    12.4 Currency. All pricing for items will be displayed on the Platform in the appropriate country- or region-specific currency as indicated thereupon. Depending on that currency, the Payment Processor, applicable bank, or Credit Card, may apply a conversion rate and additional fees that are outside of ShopThing’s control, and for which you are solely responsible. ShopThing may deduct such amounts from Fees paid to you or otherwise collect such amounts in accordance with its collection rights under Section 12.10. Furthermore, if for any reason pursuant to this Agreement you become entitled to a refund, that refund may be converted at a different rate meaning that it may be lesser than, or greater than, the actual amount charged by you to the Buyer.

    12.5 Appointment of ShopThing as Limited Payments Agent. To the extent applicable, Seller hereby appoints ShopThing as its limited payments agent for the sole purpose of receiving, holding, and settling payments to Seller for purchases made through the Platform.  ShopThing, through its third-party payment processor(s) (“Payment Processor”), will settle payments that are actually or constructively received by ShopThing to Seller, less any amounts owed to ShopThing, including fees and other obligations, as set forth in this Agreement.  Seller agrees that a payment actually or constructively received by ShopThing, on behalf of Seller, satisfies the Buyer’s obligation to make payment to Seller for Buyer’s purchase through the Platform, regardless of whether ShopThing [or the Payment Processor] actually settles such payment to Seller.  If ShopThing does not settle any such payments as described in this Agreement to Seller, Seller will have recourse only against ShopThing [(or the Payment Processor, as applicable)] and not the Buyer, as payment is deemed made by Buyer to Seller upon constructive or actual receipt of funds by ShopThing. In accepting this appointment as the limited payments agent of Seller, Seller agrees that ShopThing assumes no liability for any acts or omissions of Seller, and Seller understands that the obligation of ShopThing or its Payment Processor to settle funds to Seller is subject to and conditional upon the Buyer’s actual payment and the terms of this Agreement. 

    12.6 Disbursement to Seller. ShopThing will disburse funds through the Payment Processor to Seller to the account associated with the payout information designated by the Seller. If payment is made to Seller in error, or if Seller receives funds that Seller is not otherwise entitled to receive at the time of disbursement, ShopThing has the right to recoup such amounts from the Seller, including without limitation by initiating a debit or charge to any account provided by Seller in connection with the Services. ShopThing may also offset against funds pending settlement to Seller any sums due, or reasonably likely to become due, to ShopThing pursuant to this Agreement or as ShopThing reasonably determines in the settlement of a dispute by Buyer relating to a Seller item.

    For convenience, Platform provides Sellers with information regarding the proceeds of sales pending settlement. This information merely reflects the amount of sales proceeds processed on your behalf and does not constitute a deposit or other obligation of Platform or any Payment Processor to you.  It is provided for reporting and informational purposes only.] Funds pending settlement to Seller will be held in an account with Payment Processor pending disbursement to Seller. Seller agrees that it is not entitled to any interest or other compensation associated with such funds pending settlement to Seller, that Seller has no right to direct any such account holding such funds, and that Seller may not assign any interest in the accounts held with or through Payment Processor.  

    12.7 Delayed Settlements. In some cases, settlement of the payment processing proceeds could be temporarily delayed by an issue at ShopThing, the Payment Processor, or Buyer’s or Seller’s designated financial institution. ShopThing is not obligated to refund any Fees or reimburse any expenses due to delayed settlements. In addition, Seller’s designated financial institution’s settlement and account crediting procedures may at times cause delays in the crediting of funds to Seller’s linked bank account and ShopThing does not have control over these delays.

    12.8 Refunds.  ShopThing has no obligation to provide refunds or credits, but may grant them in extenuating circumstances, as a result of specific refund guarantee promotions, or to correct any errors made by ShopThing or a Seller, in each case in ShopThing’s sole discretion. ShopThing reserves the right to recoup the amount refunded by offsetting it against any amount pending settlement to Seller. 

    12.9 Chargebacks and Holds. In the event that a Buyer submits a chargeback request to its bank or financial institution in connection with a purchase from Seller, ShopThing will inform Seller of the chargeback request.  Seller agrees to provide evidence that the items involved in the request were shipped and delivered (e.g., tracking information of the shipping carrier), and that such item(s) were as described in the original listing, as well as any additional information ShopThing may request, within five (5) days of being informed by ShopThing of the chargeback. If a chargeback request is submitted by a Buyer before amounts are settled to Seller as described in this Section, Seller agrees that ShopThing may hold the settlement until the chargeback dispute is determined by the Buyer’s card issuer or other payment processor, and if the chargeback dispute is warranted, ShopThing will not settle any such funds for the transaction at issue to the Seller or if the applicable Fees have already been paid, ShopThing may collect such Fees in accordance with its rights in Section 12.10 below. Seller also agrees that ShopThing reserves the right to manage the risks associated with providing the Platform by placing restrictions on the settlement of funds to Seller when ShopThing deems it is necessary at its sole discretion, including as necessary to comply with law or mitigate fraud or abuse of the Services.  For example, a hold may be placed if ShopThing has reason to believe there is an increased risk associated with a certain Platform transaction, such as if a Buyer files a dispute or requests a return, or if you are a new Seller or there have been prior complaints or disputes relating to the Seller’s transactions. 

    Further, ShopThing may temporarily withhold a portion of funds pending settlement to Seller if ShopThing, in its sole discretion, determines such action is necessary to secure payment for, performance of, and/or assurances regarding any liabilities, obligations, or indebtedness Seller may have incurred with ShopThing or any Buyer. 

    12.10 Collection Rights. You must provide ShopThing with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) (“Credit Card”), as a condition to listing any items through the Platform.  Your Credit Card agreement governs your use of the designated credit card, and you must refer to that agreement and not this Agreement to determine your rights and liabilities. You agree to immediately notify ShopThing of any change in your billing address or the credit card used for payment hereunder.  You authorize ShopThing to receive payments for any amounts owed to ShopThing pursuant to this Agreement, including but not limited to shipping charges and any amounts under a Buyer-initiated dispute (even after Fees has been paid) as described herein, by (i) initiating a debit to your Connected Account; or (ii) otherwise offsetting the amount payable against Fees pending settlement to you. If there are insufficient funds in your Connected Account to cover your liability, we will have the right to withdraw the funds from your bank account on file. If this fails, we will have the right to charge your Credit Card on file for such amounts or issue an invoice to cover your liability. We will have the right to take any other legal actions to collect the amount due, to the extent allowable by law. By agreeing to these terms, you agree to not dispute any such bank debits or Credit Card charges. 

    12.11 Taxes.  The amounts paid under this Agreement do not include any Sales Tax that may be due in connection with any Services provided under this Agreement.  If ShopThing determines it has a legal obligation to collect Sales Tax from a user in connection with this Agreement, ShopThing shall collect such Sales Tax in addition to the amounts required under this Agreement.  If any Services, or payments for any Services, under the Agreement are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to ShopThing, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify ShopThing for any liability or expense ShopThing may incur in connection with such Sales Taxes.  Upon ShopThing’s request, you will provide it with official receipts issued by the appropriate taxing authority, or such other evidence that you have paid all applicable taxes.  For purposes of this section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax. 

    12.12 Seller Protection Fees. ShopThing provides Seller Protection to Sellers utilizing ShopThing’s carrier accounts to generate a shipping label. Seller Protection covers a seller’s package that is deemed lost in transit by the carrier. ShopThing charges Sellers the following protection fees on all shipping labels generated for a transaction: (i) seller protection fee in an amount of $2.00 for orders with a sales price up to $1,000.00 and an additional $2.00 will be charged for every $1,000.00 increment (“Seller Protection Fee”), (ii) the tax charged on each Seller Protection Fee (“Seller Protection Fee Tax” and together with the Seller Protection Fee the “Protection Fees”). We may change the Protection Fees from time to time. The Protection Fees will be charged in the currency of the order placed and is non-refundable.

13. RELEASE.  ShopThing expressly disclaims any liability that may arise between Registered Users of its Platform.  The Platform is only a venue for connecting Buyers with Sellers.  Unless otherwise specified herein, because ShopThing is not a party to the actual contracts between Buyers and Sellers, in the event that you have a dispute with one or more Registered Users, you release ShopThing, its parents, subsidiaries, affiliates, officers, employees, investors, agents, payment processors, partners and licensors, but excluding any Registered Users (each a “ShopThing Party” and collectively, the “ShopThing Parties”) from any and all claims, demands, or damages (actual or consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. 

    If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”  The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a ShopThing Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Platform provided hereunder.

14. INDEMNIFICATION.  You agree to indemnify and hold the ShopThing Parties harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Your Content; (b) your inability to use any Service; (c) your violation of the Agreement; (d) your violation of any rights of another party, including any Registered Users; (e) disputes with other users of the Services; or (f) your violation of any applicable laws, rules or regulations.  ShopThing reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with ShopThing in asserting any available defenses.  This provision does not require you to indemnify any of the ShopThing Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with any Services provided hereunder.  You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to the Services.

15. DISCLAIMER OF WARRANTIES AND CONDITIONS.

    15.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THAT THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS.  SHOPTHING PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE WEBSITE.  This Section 15 (Disclaimer of Warranties and Conditions) does not affect in any way our return policy or limited warranty for goods purchased on the Website.  

    a. SHOPTHING PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (i) THE SERVICES WILL MEET YOUR REQUIREMENTS; (ii) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (iii) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE.  WE CANNOT GUARANTEE CONTINUOUS OR SECURE ACCESS TO THE PLATFORM, AND OPERATION OF THE PLATFORM MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF OUR CONTROL.

    b. ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.

    c. THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS.  SHOPTHING MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.

    d. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM SHOPTHING OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

    15.2 No Liability for Conduct of Other Registered Users or Third Parties.  YOU ACKNOWLEDGE AND AGREE THAT SHOPTHING PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD SHOPTHING PARTIES LIABLE, FOR THE CONDUCT OF OTHER USERS INCLUDING THIRD PARTIES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.

    a. We are not involved in the actual transaction between Buyers and Sellers.  While we may help facilitate the resolution of disputes through various programs, we have no control over and do not guarantee the quality, safety or legality of items advertised, the truth or accuracy of Registered Users’ content or listings, the ability of Sellers to sell items, the ability of Buyers to pay for item, or that Buyer or Seller will actually complete a transaction or return all items.

    b. We do not transfer legal ownership of items from the Seller to the Buyer.  810 Illinois Compiled Statutes 5/2-401 and Uniform Commercial Code § 2-401(2) apply to the transfer of ownership between the Buyer and the Seller, unless the Buyer and the Seller agree otherwise.  Further, we cannot guarantee continuous or secure access to the Services and operation of the Services may be interfered with by numerous factors outside of our control.  Accordingly, to the extent legally permitted, we exclude all implied warranties, terms and conditions.

    c. As a part of the Services, you may have access to materials that are hosted by another party.  You agree that it is impossible for ShopThing to monitor such materials and that you access these materials at your own risk.

16. LIMITATION OF LIABILITY.

    16.1 Disclaimer of Certain Damages.  YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL SHOPTHING PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT SHOPTHING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SERVICES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (a) THE USE OR INABILITY TO USE THE SERVICES; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED; OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE SERVICES; (c) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (d) STATEMENTS OR CONDUCT OF ANY THIRD-PARTY ON THE SERVICES; OR (e) ANY OTHER MATTER RELATED TO THE SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.  THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY OF A SHOPTHING PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A SHOPTHING PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A SHOPTHING PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.  

    16.2 Cap on Liability.  TO THE FULLEST EXTENT PROVIDED BY LAW, SHOPTHING PARTIES WILL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (a) THE TOTAL FEES AND OTHER AMOUNTS PAID TO SHOPTHING BY YOU DURING THE SIX-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY; OR (b) $100.  THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A SHOPTHING PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A SHOPTHING PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A SHOPTHING PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.

    16.3 Exclusion of Damages.  CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES.  IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

    16.4 Basis of the Bargain.  THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SHOPTHING AND YOU.

17. PROCEDURE FOR MAKING CLAIMS OF INTELLECTUAL PROPERTY RIGHT INFRINGEMENT.  It is ShopThing’s policy to terminate the Account, or other access or use of the Services, for any user who repeatedly infringes copyright, trademark, or other intellectual property rights upon prompt notification to ShopThing by the respective intellectual property owner or their legal agent.  Without limiting the foregoing, if you believe that your work has been copied and posted on the Service in a way that constitutes intellectual property rights infringement, please provide our designated intellectual property agent with the following information: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright, trademark, or other intellectual property right; (ii) a description of the copyrighted work, trademark, or other intellectual property right that you claim has been infringed; (iii) a description of the location on the Service of the material that you claim is infringing; (iv) your address, telephone number, and email address; (v) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright, trademark, or other intellectual property right owner, its agent or the law; and (vi) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright, trademark, or other intellectual property right owner or authorized to act on the copyright, trademark, or other intellectual property right owner’s behalf.  Contact information for ShopThing’s designated agent for notice of claims of infringement is as follows: Tara May, 501-1835 Yonge Street, Toronto, Ontario, M4S 1X8.

18. TERM AND TERMINATION.  

    18.1 Term.  The Agreement commences on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the Services, unless terminated earlier in accordance with the Agreement.

    18.2 Prior Use.  Notwithstanding the foregoing, you hereby acknowledge and agree that the Agreement commenced on the earlier to occur of (a) the date you first used the Services or (b) the date you accepted the Agreement, and that the Agreement will remain in full force and effect while you use any the Services, unless earlier terminated in accordance with the Agreement.

    18.3 No Subsequent Registration.  If your registration(s) with, or ability to access, the Services or any other ShopThing community, is discontinued by ShopThing due to your violation of any portion of the Agreement or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access the Services or any ShopThing community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those the Services to which your access has been terminated.  In the event that you violate the immediately preceding sentence, ShopThing reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.

19. ARBITRATION AGREEMENT.  Please read the following arbitration agreement in this section (“Arbitration Agreement”) carefully. It may significantly affect your legal rights, including your right to file a lawsuit in court.  

    19.1 Applicability of Arbitration Agreement.  Subject to the terms of this Arbitration Agreement, you and ShopThing agree that any dispute, claim, disagreement arising out of or relating in any way to your access to or use of the Services or the Agreement and prior versions of the Agreement, including claims and disputes that arose between us before the effective date of this Agreement (each a “Dispute”), will be resolved by binding arbitration, rather than in court, except that (i) you and ShopThing may assert claims or seek relief in a small claims court if such claims qualify and remain in small claims court; and (ii) you and ShopThing may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents).

    19.2 Waiver of Jury Trial. YOU AND SHOPTHING HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and ShopThing are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in the paragraph entitled “Applicability of Arbitration Agreement” above. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review. Discovery may be limited in arbitration, and procedures are more streamlined than in court.

    19.3 Class Action Waiver. YOU AND SHOPTHING AGREE THAT, EXCEPT AS SPECIFIED IN THE PARAGRAPH ENTITLED “BATCH ARBITRATION” BELOW, EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party's individual claim. To the extent permissible by law, there shall be no right or authority for any dispute to be arbitrated as a representative action or as a private attorney general action, including but not limited to claims brought pursuant to the Private Attorney General Act of 2004, Cal. Lab. Code § 2698, et seq. This means that you may not seek relief on behalf of any other parties in arbitration. Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this paragraph, “Class Action Waiver” are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and ShopThing agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and shall be pursued in the courts indicated in Section 20 below. All other Disputes shall be arbitrated or litigated in small claims court. This paragraph does not prevent you or ShopThing from participating in a class-wide settlement of claims.

    19.4 Informal Dispute Resolution. You and ShopThing agree to try to resolve any Dispute informally before resorting to arbitration. You and ShopThing therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference. The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within 45 days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to ShopThing that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to sellers@shopthing.com or regular mail to our offices located at 501-1835 Yonge Street, Toronto, Ontario, M4S 1X8. Notice to you will be sent to the address or email address associated with your account or to your publicly available address or email address if you do not have an account with us. The Notice must include: (1) your name, telephone number, mailing address, e‐mail address associated with your account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of your Dispute. The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.

    19.5 Arbitration Procedures.  You and ShopThing agree that this Arbitration Agreement affects interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq., applies. If the Informal Dispute Resolution Process described above does not resolve satisfactorily within sixty (60) days after receipt of your Notice, you and ShopThing agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be conducted by JAMS. Disputes involving claims, counterclaims, or requests for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other Disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. Any arbitration of a Dispute relating to your access to or use of the Website, the Apps, or Services, any products sold or distributed through the Website or the Apps primarily for personal, family or household purposes shall also be subject to the allocation of arbitration costs and other requirements of the JAMS’ policy regarding Consumer Arbitrations Pursuant to Pre-Dispute Clauses Minimum Standards of Procedural Fairness available at https://www.jamsadr.com/consumer-minimum-standards/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any JAMS fees and costs will be solely as set forth in the applicable JAMS Arbitration Rules. If there is a conflict between the JAMS rules and this Arbitration Agreement, this Arbitration Agreement shall control.   

    A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration. To initiate arbitration, you must send the Request to Tara May: 501-1835 Yonge Street, Toronto, Ontario, M4S 1X8. If we initiate arbitration, we will send the Request to the address or email address associated with your account or to your publicly available address or email address if you do not have an account with us. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). Unless you and ShopThing otherwise agree, or the Batch Arbitration process discussed below is triggered, the arbitration will be conducted in the county where you reside.  

    19.6 Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and ShopThing agree that in the event that there are one hundred (100) or more individual Requests of a substantially similar nature filed against ShopThing by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), JAMS shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”). All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise JAMS, and JAMS shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by ShopThing. You and ShopThing agree to cooperate in good faith with JAMS to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings.

    19.7 Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to the paragraph entitled “Class Action Waiver,” including any claim that that same paragraph is unenforceable, illegal, void or voidable, or that it has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in the paragraph entitled “Batch Arbitration,” all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.

    19.8 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to us at sellers@shopthing.com and 501-1835 Yonge Street, Toronto, Ontario, M4S 1X8 within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used to set up your account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us. If the Dispute is not covered by any arbitration agreement between you and us, it shall proceed before the courts indicated in Section 19.11 below.

    19.9 Invalidity, Expiration. Except as provided in the paragraph entitled “Class Action Waiver”, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with ShopThing as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.

    19.10 Modification. Notwithstanding any provision in these Terms to the contrary, we agree that if ShopThing makes any future material change to this Arbitration Agreement, it will notify you. Unless you reject the change within thirty (30) days of such change become effective by writing to ShopThing at 501-1835 Yonge Street, Toronto, Ontario, M4S 1X8, your continued use of the Website, the Apps and/or Services, including the acceptance of products and services offered on the Website or Apps following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of these Terms and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Services or of the Website or the Apps, or these Terms, the provisions of this Arbitration Agreement as of the date you first accepted the Terms (or accepted any subsequent changes to these Terms) remain in full force and effect. ShopThing will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of these Terms.

    19.11 Governing Courts. To the extent that the Dispute is not covered by any arbitration agreement between you and us, it shall proceed before the state or federal courts located in [Toronto, Ontario, Canada] (except for small claims court actions which may be brought in the county where you reside). 

20. THIRD-PARTY SERVICES.

    20.1 Third-Party Websites, Applications and Ads. The Services may contain links to third-party websites (“Third-Party Websites”), applications (“Third-Party Applications”) and advertisements for third parties (“Third-Party Ads”).  When you click on a link to a Third-Party Website, Third-Party Application or Third-Party Ad, we will not warn you that you have left the Services and are subject to the terms and conditions (including privacy policies) of another website or destination.  Such Third-Party Websites, Third-Party Applications and Third-Party Ads are not under the control of ShopThing.  ShopThing is not responsible for any Third-Party Websites, Third-Party Applications or Third-Party Ads.  ShopThing provides these Third-Party Websites, Third-Party Applications or Third-Party Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, Third-Party Applications or Third-Party Ads, or any product or service provided in connection therewith.  You use all links in Third-Party Websites, Third-Party Applications or Third-Party Ads at your own risk.  When you leave our Website, this Agreement and our policies no longer govern.  You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites, Third-Party Applications or Third-Party Ads, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party. 

    20.2 Third-Party Application Access.  With respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you shall only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple Media Terms of Service, except that such App Store Sourced Application may be accessed, acquired, and used by other accounts associated with the purchaser via Apple’s Family Sharing function, volume purchasing, or Legacy Contacts function.  Notwithstanding the first sentence in this section, with respect to any Application accessed through or downloaded from the Google Play store (a “Google Play Sourced Application”), you may have additional license rights with respect to use of the Application on a shared basis within your designated family group.

    20.3 Accessing and Downloading the Application from the Apple App Store.  The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store: 

    d. You acknowledge and agree that (i) this Agreement is concluded between you and ShopThing only, and not Apple, and (ii) ShopThing, not Apple, is solely responsible for the App Store Sourced Application and content thereof.  Your use of the App Store Sourced Application must comply with the App Store Terms of Service.

    e. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.

    f. In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application.  As between ShopThing and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of ShopThing.

    g. You and ShopThing acknowledge that, as between ShopThing and Apple, Apple is not responsible for addressing any claims you have or of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.

    h. You and ShopThing acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between ShopThing and Apple, ShopThing, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement.

    i. You and ShopThing acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof. 

    j. Without limiting any other terms of this Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.

21. GENERAL PROVISIONS.

    21.1 Electronic Communications.  The communications between you and ShopThing may take place via electronic means, whether you visit the Services or send ShopThing e-mails, or whether ShopThing posts notices on the Services or communicates with you via e-mail.  For contractual purposes, you (a) consent to receive communications from ShopThing in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that ShopThing provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing.  The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).

    21.2 Assignment.  The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without ShopThing’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. ShopThing may, without your consent, freely assign and transfer this Agreement, including any of its rights, obligations, or licenses granted under this Agreement.  

    21.3 Force Majeure.  ShopThing shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials. 

    21.4 Questions, Complaints, Claims.  If you have any questions, complaints or claims with respect to the Services, please contact us at: sellers@shopthing.com.  We will do our best to address your concerns.  If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.

    21.5 Exclusive Venue.  To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and ShopThing agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in [Toronto, Ontario, Canada].

    21.6 Governing Law.  THE TERMS AND ANY ACTION ARISING OUT OF, IN CONNECTION WITH, OR RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF [THE PROVINCE OF ONTARIO, CANADA], AND THE FEDERAL LAWS OF CANADA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION.  THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE AGREEMENT.  

    21.7 Choice of Language.  It is the express wish of the parties that the Agreement and all related documents have been drawn up in English. C’est law volone expresse des parties que la presente convention ainsi que les documents qui s’y rattacent soient rediges en anglais.

    21.8 Notice.  Where ShopThing requires that you provide an e-mail address, you are responsible for providing ShopThing with your most current e-mail address.  In the event that the last e-mail address you provided to ShopThing is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, ShopThing’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice.  You may give notice to ShopThing at the following address: 501-1835 Yonge Street, Toronto, Ontario, M4S 1X8.  Such notice shall be deemed given when received by ShopThing by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.

    21.9 Waiver.  Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

    21.10 Severability.  If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.

    21.11 Export Control.  You may not use, export, import, or transfer the Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws.  In particular, but without limitation, the Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Services, you represent and warrant that (y) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (z) you are not listed on any U.S. Government list of prohibited or restricted parties.  You also will not use the Services for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons.  You acknowledge and agree that products, services or technology provided by ShopThing are subject to the export control laws and regulations of the United States.  You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer ShopThing products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.

    21.12 Agreement Updates.  When changes are made, ShopThing will make a new copy of this Terms of Service and/or Supplemental Terms, as applicable, available on the Services, and we will also update the “Last Updated” date at the top of this Agreement.  If we make any material changes and you have registered an Account with us, we will also send an email with an updated copy of this Agreement to you at the email address associated with your Account.  Unless otherwise stated in such update, any changes to this Agreement will be effective immediately for users without an Account and [thirty (30) days after posting] for users with an Account.  ShopThing may require you to provide consent to the updated Agreement in a specified manner before further use of the Service is permitted.  IF YOU DO NOT AGREE TO ANY CHANGE(S) AFTER RECEIVING A NOTICE OF SUCH CHANGE(S), YOU SHALL STOP USING THE SERVICE.

    21.13 Consumer Complaints.  In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.

    21.14 Entire Agreement.  The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.

Appendix A

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