Last Updated: December 16, 2020
PLEASE READ THESE TERMS OF SERVICES (“TERMS”) CAREFULLY. Shop Sidewalk, Inc., a Delaware corporation (together with our affiliates, “Sidewalk”, “Company”, “we”, “us”, or “our”) offers a marketplace (the “Marketplace”) that users to search and buy products and services from stores in your neighborhood (each a “Merchant”). The Marketplace is offered via the website located at: https://www.shopsidewalk.com (the “Site”). The Marketplace and the services offered via the Site and Marketplace will be referred to as the “Services.”
THESE TERMS SET FORTH THE LEGALLY BINDING TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE SERVICES. BY CLICKING ON THE “I ACCEPT” BUTTON, CREATING AN ACCOUNT, PLACING AN ORDER, AND/OR ACCESSING OR USING THE SITE OR SERVICES, YOU (“USER” OR “YOU”) ARE ACCEPTING THESE TERMS (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT), AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THESE TERMS (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT). IF YOU DO NOT AGREE WITH ALL OF THESE TERMS DO NOT ACCESS AND/OR USE THE SITE OR SERVICES. “USER” INCLUDES MERCHANTS AS WELL AS ALL OTHER USERS OF THE SERVICES.
PLEASE BE AWARE THAT SECTION 11.1 OF THESE TERMS, BELOW, CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THESE TERMS. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE 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 (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR ACCESS AND/OR USE OF THE SITE OR SERVICES WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF COLORADO CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THESE TERMS.
Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in these Terms or will be presented to you for your acceptance when you sign up to use the supplemental Services. If these Terms are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Services. The Supplemental Terms are incorporated by reference into these Terms.
PLEASE NOTE THAT THE TERMS ARE SUBJECT TO CHANGE BY COMPANY IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, Company will make a new copy of the Terms available at: www.shopsidewalk.com/terms. We will also update the “Last Updated” date at the top of the Terms. If we make any material changes, and you have registered with us to create an Account (defined in Section 1.2 below) we will also send an e-mail to you at the last e-mail address you provided to us pursuant to the Terms. Any changes to the Terms will be effective immediately for new users of the Services and Site visitors and will be effective thirty (30) days after posting notice of such changes on the Site for existing users, provided that any material changes shall be effective for users who have an Account with us upon the earlier of thirty (30) days after posting notice of such changes on the Site or thirty (30) days after dispatch of an e-mail notice of such changes to existing users. Company may require you to provide consent to the updated Terms in a specified manner before further use of the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Site and/or the Services. Otherwise, your continued use of the Site and/or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE SITE TO VIEW THE THEN-CURRENT TERMS.
1. Services and Accounts
1.1 Marketplace. Company provides a marketplace that allows users to offer, sell, and buy products and services. As a marketplace, we do not own or sell the items listed on the Site, so the actual contract for sale is directly between the Merchants and users. While Company may provide pricing and guidance in our Services, such information is solely informational. While Company facilitates the interactions between Merchants and users, we do not take part in any interaction between Merchants and users. We do not have control over the quality, timing, legality, failure to provide, or any aspect whatsoever of any ratings, feedback, or Reviews (defined in Section 2.7 below) provided by users, items sold by Merchants, or of the integrity, responsibility, or any actions of any users. When interacting with other 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 do not know. COMPANY IS NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SERVICES.
1.2 Account Creation. To use certain aspects of the Services, including as a Merchant or to purchase items, you must register for an account (“Account”) on the Site and provide certain information about yourself as prompted by the account registration process. In creating an Account, we ask that you provide complete and accurate information about yourself, and, if you are a Merchant, your store, your products and services, and your inventory. You represent and warrant that: (a) all required registration information you submit is truthful and accurate and (b) you will maintain the accuracy of such information. You may delete your Account at any time, for any reason, by emailing email@example.com. Company may suspend or terminate your Account in accordance with Section 10.
1.3 Account Responsibilities. Company prohibits the creation of, and you agree that you will not, create an Account for anyone other than yourself or for your own personal or, in the case of Merchants, business purposes. You may not impersonate someone else or provide an email address other than your own. You are responsible for all activities that occur under your Account. You agree to immediately notify Company of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. Company will not be liable for any loss or damage arising from your failure to comply with the above requirements.
1.4 Age Requirements. You must be at least 13 years old to use the Services. If you are under 18, you represent that you have your parent or guardian’s permission to use the Services. Please have them read these Terms with you. If you are a parent or legal guardian of a user under the age of 18, by allowing your child to use the Services, you are subject to these Terms and responsible for your child’s activity on the Services.
2. Access to the Services
2.1 Grant of Rights. Subject to these Terms, Company grants you a non-transferable, non-sublicensable, non-exclusive, revocable, limited right to access the Site and to use the features and functionality of the Services, (a) with respect to users, to browse or purchase items displayed on the Site or Services solely for your own personal, non-commercial use or (b) with respect to Merchants, to promote your business and sell items via the Services.
2.2 Certain Restrictions. The rights granted to you in these Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Site or Services, whether in whole or in part, or any content displayed on the Site or Services by other users or Company; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Site or Services; (c) you shall not access the Site or Services in order to build a similar or competitive website, product, or service; and (d) except as expressly stated herein, no part of the Site or Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Unless otherwise indicated, any future release, update, or other addition to functionality of the Site or Services shall be subject to these Terms. All copyright and other proprietary notices on the Site or Services (or on any content displayed on the Site or Service) must be retained on all copies thereof.
2.3 Changes to the Services. Company is constantly changing and improving the Services. We may also need to alter or discontinue the Services, or any part of it, in order to make performance or security improvements, change functionality and features, make changes to comply with law, or prevent illegal activities on or abuse of our systems. These changes may affect all users, some users or even an individual user. Whenever reasonably possible, we will provide notice when we discontinue or make material changes to our Services that will have an adverse impact on the use of our Services. However, you understand and agree that there will be times when we make such changes without notice, such as where we feel we need to take action to improve the security and operability of our Services, prevent abuse, or comply with legal requirements.
2.4 Ownership. Excluding your User Content (defined in Section 4.1 below), you acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Services and its content are owned by Company or Company’s suppliers. Neither these Terms (nor your access to and/or use of the Site or Services) transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in Section 2.1. Company and its suppliers reserve all rights not granted in these Terms. There are no implied licenses granted under these Terms. Using the Services does not give you ownership of or rights to any aspect of the Services, including usernames or any content displayed on the Site or Services by other users or Company.
2.5 Open-Source. Some software used in our Services may be offered under an open source license that we make available to you. There may be provisions in an open source license that expressly override some of these terms, so please be sure to read those licenses.
2.6 Feedback. You hereby grant to Company a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback you provide relating to the Services (“Feedback”). Company will treat any Feedback you provide to Company as non-confidential and non-proprietary. You agree that you will not submit to Company any information or ideas that you consider to be confidential or proprietary.
2.7 Reviews. Additionally, if you provide reviews or quotes about any products or service, any Merchant, or any part of our Services to us (“Reviews”), you hereby grant to Company a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use, reproduce, perform, display, distribute, adapt, modify, re-format, and create derivative works of all Reviews and to include your first name in connection with our use of the any such Review. Such Reviews are opinions of users and are not the opinion of Company, have not been verified by Company, and each user should undertake his or her own research to be satisfied concerning any specific product, service, or Merchant, before placing any order.
2.8 Merchant Conditions. By selling products and services via the Services, you agree that you will: (a) provide accurate information in your store profile (including store hours, address, contact information, and your Merchant policies); (b) honor your Merchant policies; (c) accurately represent your items in listings and listing photos; (d) provide accurate information of the listing and the good or service offered (including pricing and available inventory); (e) comply with any contractual or other restrictions you or such products and services are subject to, such as exclusivity regarding online sales; (f) not create duplicate stores or take any other action (such as manipulating clicks, carts, or sales) for the purpose of manipulating search or circumventing our policies; and (g) not coordinate pricing with other sellers. When listing a product or service, you agree to comply with any rules for listing we make available on the Site and that your listing may not be immediately searchable by keyword or category and we strive to create a marketplace where users can find what they are looking for; as a result, the appearance or placement of listing in search and browse results will depend on a variety of factors, including, but not limited to: (i) user’s location, search query, browsing sites, and history; (ii) item’s location, listing format, price and shipping cost, terms of service, end time, history, and relevance to the user’s query; (iii) Merchant’s history, Merchant rating and feedback, and Reviews; and (iv) the number of listings matching the user’s query. If you are a Merchant, you represent and warrant that you have a physical commercial storefront out of which you sell the same products and services made available by you via the Services and that you are not a restricted business as described here: https://squareup.com/us/en/legal/general/payment
2.9 Buyer Conditions. When buying an item, you agree to comply with any rules for purchases we make available on the Site and that: (a) you are responsible for reading the full item listing (as well as the Merchant policies) before placing an order; (b) you enter into a legally binding contract with the Merchant to purchase an item when you place an order; and (c) Company does not transfer legal ownership of items from the Merchant to you.
2.10 Customer Service. As a Merchant, we expect you to provide a high level of customer service that is at or above the standard of customer service you provide to customers of your physical commercial storefront and to maintain trust with your buyers. By selling products and services via the Services, you agree to: (a) honor your shipping and processing times, and to ship items, if applicable, in a prompt manner; (b) provide an easy and efficient curbside pick-up process that users can use for items purchased via the Services; (c) respond to messages in a timely manner; (d) honor your Merchant policies; (e) resolve disagreements or disputes directly with the buyer; and (f) if you are unable to complete an order, you must notify the buyer and cancel the order.
- What information we may collect about you;
- What we use that information for; and
- With whom we share that information.
4.1 User Content
a) Generally. “User Content” means any and all information and content that a user makes available in connection with their use of the Services, including, but not limited to, (i) with respect to Merchants, listings, inventory lists, product descriptions, your Merchant policies, videos, audio, graphics, photos, text (such as comments), messages, branding (including trade names, trademarks, service marks, or logos), and other materials, and (ii) with respect to all users, text (such as comments), messages, and Reviews and any videos, audio, graphics, photos, text, and other materials made available in connection therewith. You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including by other users. Company is under no obligation to host or serve your User Content. If you see any User Content you believe does not comply with these Terms, including by violating the Acceptable Use Policy (as defined in Section 4.4), you can report it to Company by firstname.lastname@example.org. You represent and warrant that your User Content does not violate our Acceptable Use Policy.
b) Uploading Content. If you are a Merchant, you may upload User Content to the Services. If you choose to upload User Content, you must not upload any User Content that does not comply with these Terms (including the Acceptable User Policy). For example, the User Content you upload must not include third-party intellectual property (such as copyrighted material) unless you have permission from that party or are otherwise legally entitled to do so. Company may use automated systems that analyze your User Content to help detect infringement and abuse, such as spam, malware, and illegal content.
c) Removing Content. You must remove your User Content if you no longer have the rights required by these Terms. If we reasonably believe that any of User Content is in breach of these Terms or may cause harm to Company, our users, or third parties, we may remove or take down that User Content in our discretion. We will use reasonable efforts to notify you with the reason for any such removal or take down unless we reasonably believe that to do so: (i) would violate the law or the direction of a legal enforcement authority or would otherwise risk legal liability for Company; (ii) would compromise an investigation or the integrity or operation of the Services; or (iii) would cause harm to any user, other third party, or Company.
4.2 License. You retain ownership rights in your User Content. However, we do require you to grant certain rights to Company and other users of the Services, as described below. By making available User Content in connection with your use of the Services, you grant to Company a worldwide, non-exclusive, royalty-free, sublicensable, and transferable license to use your User Content (including to reproduce, distribute, prepare derivative works, display and perform it) for the purposes of promoting, operating, providing, and improving the Services to and for you and our other users. You also grant each other user of the Services a worldwide, non-exclusive, royalty-free license to access your User Content through the Services and to use you User Content in connection with such user’s use of the Services. The licenses granted by you continue for a commercially reasonable period of time after you remove or delete your User Content from the Services. You understand and agree, however, that Company may retain, but not display, distribute, or perform, server copies of your User Content that have been removed or deleted.
4.3 Copyright Infringement Claims. It is Company’s policy to terminate membership privileges of any user who repeatedly infringes copyright upon prompt notification to Company by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Services in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on the Services of the material that you claim is infringing; (d) your address, telephone number and e-mail address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Company’s Copyright Agent for notice of claims of copyright infringement is as follows: Elizabeth Lee, 1770 Chestnut Place #10712, Denver CO 80202.
4.4 Acceptable Use Policy. The following terms constitute our “Acceptable Use Policy”:
a) You agree not to use the Services in any manner, to make available any User Content (including videos, comments, and links), or process any data you receive in connection with your use of the Services in any manner that (i) violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable; (iii) is harmful to minors in any way; or (iv) is in violation of any law, regulation, or obligations or restrictions imposed by any third party.
b) You agree not to: (i) upload, transmit, or distribute to or through the Services any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) use the Services to harvest, collect, gather or assemble information or data regarding other users, including email addresses, without their consent; (iii) interfere with, disrupt, or create an undue burden on servers or networks connected to the Services, or violate the regulations, policies or procedures of such networks; (iv) attempt to gain unauthorized access to the Services (or to other computer systems or networks connected to or used together with the Services), whether through password mining or any other means; (v) harass or interfere with any other user’s use and enjoyment of the Services; (vi) use software or automated agents or scripts to produce multiple accounts on the Services, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Services (provided, however, that we conditionally grant to 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, subject to the parameters set forth in our robots.txt file); (vii) misuse any reporting, flagging, complaint, dispute, or appeals process made available via the Services, including by making groundless, vexatious, or frivolous submissions; (viii) use the Services to distribute unsolicited promotional or commercial content or other unwanted or mass solicitations; (ix) run contests on or through the Services; or (x) use the Services to sell any advertising, sponsorships, or promotions.
c) While using the Services, you agree that you will not, under any circumstances: (i) fail to pay for products and services purchased by you, unless in accordance with the applicable Merchant’s policies; (ii) fail to deliver items sold by you, unless in accordance with your Merchant policies; or (iii) take any action that may undermine our feedback or ratings systems, such as by paying people to provide positive Reviews. While using the Services, you agree to treat all other users with respect.
d) Merchants are responsible for complying with (and if you are a Merchant, you will comply with) all applicable laws, rules, and regulations regarding their use of the Services, including their offering and sale of products and services via the Services. Without limiting the foregoing, Merchants will obtain all permits and licenses required for Merchant to use the Services and fulfill Merchant’s obligations hereunder.
5. Fees and Payments
a) Orders. Users are responsible for the payment of all applicable fees for any orders placed via the Services via our Payment Processors (defined in Section 5.4 below) in accordance with the fees, charges, and billing terms in effect at the time an order is placed. You must provide the applicable Payment Processor with a valid credit card (e.g., Visa or MasterCard) or other accepted payment method (e.g., Apple Pay) (each provider of such a payment method, a “Payment Provider”). Your Payment Provider agreement governs your use of the designated payment method, and you must refer to that agreement and not these Terms to determine your rights and liabilities. By providing the applicable Payment Processor with your payment method and associated payment information, you agree that such Payment Processor is authorized to charge your payment method for all orders placed via the Service. Users of the Services contract directly with Merchants. Company will not be a party to any contracts between users and Merchants. Company facilitates these contracts by supplying a medium for the exchange of money. Payment will be processed at the end of a completed sale transaction. All payments must be made through the Services.
b) Order Terms. Merchants are solely responsible for setting the fees for products and services and their other policies. Fees, the available products and services, and the Merchant policies are subject to change with or without notice. You should review each Merchant’s return and other policies prior to placing an order with that Merchant. You should contact Merchants through the Services before placing an order if you do not understand the fees or policies or if you have any questions about the products or services. Once an order is placed, the fulfillment of that order is solely between the Merchant and the user. While we may facilitate the collection of fees for Merchants, once remitted to Merchants, we are not responsible for any refunds or returns for the products or services, where applicable.
5. 2 Merchant Fees. For all sales of a Merchant’s products or services via the Services, a marketplace fee of two percent (3%) (plus a credit card processing fee of 2.9% plus 30 cents per transaction, charged by Square) is retained by Company (the “Marketplace Fee”). The remaining portion of the sales proceeds are deposited directly into the Merchant’s linked Paypal account. We may change our Marketplace Fee from time to time by posting the changes on the Site fourteen (14) days in advance, but with no advance notice required for temporary promotions or any changes that result in the reduction of the Marketplace Fee.
5.3 Taxes. You are solely responsible for payment of all applicable taxes, levies, penalties, and other costs imposed by any taxing authority or government agency related to receipt or payment of amounts hereunder including any sales tax, indirect taxes such as valued added tax (VAT) or goods and services tax (GST), use tax, duties, and other taxes, fees, or charges imposed by municipalities, states, or governments through regulation, ordinance, law, or judicial or regulatory interpretation (collectively “Taxes”) and any related penalties or interest to the relevant tax authority and you will indemnify Company for any liability or expense we may incur in connection with such Taxes. Unless otherwise stated or unless Company determines it has a legal obligation to remit such Taxes, Merchants will be solely responsible for collecting and remitting all Taxes in connection with orders placed via the Services. If Company determines it has a legal obligation to collect and/or remit such Taxes , Company shall collect such Taxes in addition to the payments required under this Agreement and remit them to the appropriate taxing authority. Otherwise, Company will not calculate, track, or pay Taxes or submit reports regarding Taxes on any behalf of any users (including Merchants). If any taxing authority demands that we pay such Taxes on your behalf, you are immediately liable to us for such Taxes and will reimburse or pay Company for such Taxes upon demand. Upon our request, you will provide us with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all Taxes. You agree to make all payments of fees and charges hereunder free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of fees or charges hereunder will be your sole responsibility, and you will provide Company with official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such taxes have been paid.
5.4 Payment Processing. Company currently uses and reserves the right to continue using third party payment providers (“Payment Processors”). Your making or receipt of any electronic payment through any Payment Processor is also governed by the applicable Payment Processor’s terms of service. Currently, Company uses Square, Inc. (“Square”) and Paypal, Inc. (“Paypal”) as its Payment Processor for payment services (e.g., receipt and payment or amounts hereunder). As a condition to using such payment services, (a) you agree to be bound by and comply with the Paypal User Agreement located at: https://www.paypal.com/us/webapps/mpp/ua/useragreement-full, as well as the Square User Agreement located at: https://squareup.com/us/en/legal/general/ua as may be modified by Paypal or Square from time to time (the “Payment Processors Agreements”) and (b) you must provide accurate and complete payment information and you authorize us to share this information with the applicable Payment Processors and authorize Company and the Payment Processors to share any information and payment instructions you provide to the extent required to complete the payment services. All payment information is sent directly to and stored with the applicable Payment Processor using their security protocols. Company does not store your payment information on its systems and shall not have any responsibility for the safety or security of that information. If the Payment Processor Agreements if your use of Square or Paypal’s services is terminated by Square or Paypal, you may not be able to use certain portions of the Services. We may change or add other Payment Processors at any time with or without notice to you, and your use of payment services via such Payment Processors may be subject to additional terms or conditions.
5.5 Disputes Between Users. You agree to first attempt to resolve any disputes, disagreements, or claims you have with other users in good faith through the Services. If you are unable to resolve any such dispute relating to the payment of fees, you agree to submit your dispute to Square, our payment processor, thorough the process described at https://squareup.com/help/us/en/article/3882-payment-disputes-walkthrough. Company may, at its sole discretion, assist with the resolution of any other dispute, but Company is not liable or responsible for any such dispute.
6. Indemnification. To the extent permitted by applicable law, you agree to indemnify and hold Company (and its officers, directors, employees, and agents) harmless, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from (a) your use of or access to the Site and/or Services, (b) your User Content, (c) your violation of these Terms; or (d) your violation of applicable laws, rules or regulations. Company reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Company. Company will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
7. Third-Party Links; Other Users; No Solicitation; and Release
7.2 Other Users. You are solely responsible for your communications and interactions with other users and any other parties with whom you interact; provided, however, that Company reserves the right, but has no obligation, to intercede in such disputes. You acknowledge and agree that Company will not be responsible for any liability incurred as the result of such interactions. The Services can be used to facilitate the purchase and sale of services or merchandise through the Services from Merchants. Merchants are not affiliated with Company. All matters concerning the merchandise and services desired from a Merchant, including but not limited to purchase terms, payment terms, warranties, guarantees, return policy, maintenance, and delivery, are solely between you and the Merchant. Company makes no warranties or representations whatsoever with regard to any goods or services provided by Merchants. You acknowledge and agree that Company does not make any attempt to verify the information provided by Merchants via the Service. You will not consider Company, nor will Company be construed as, a party to such transactions, whether or not Company may have received some form of revenue or other remuneration in connection with the transaction or be liable for any costs or damages arising out of, either directly or indirectly, you or any other person involved or related to the transaction. 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 Merchant’s User Content or listings, the ability of Merchants to sell products or services, the ability of users to pay for products or services, or that a Merchant and user will actually complete a transaction or return a product or service. You will not hold Company responsible for other users’ User Content, actions or inactions, or products or services they list.
7.3 No Solicitation. The Services may not be used to solicit for any other business, website, or services. You may not solicit, advertise for, or contact in any form users for employment, contracting, or any other purpose not related to the Services. You may not use the Services to collect usernames and/or email addresses of users by electronic or other means without the express prior written consent of Company.
7.4 Release. If you have a dispute with one or more users, you release us (and our affiliates and subsidiaries, and our and their respective officers, directors, employees and agents) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. In entering into this release you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.
OTHER THAN AS EXPRESSLY STATED IN THESE TERMS OR AS REQUIRED BY LAW, THE SITE AND SERVICES ARE PROVIDED “AS IS” AND COMPANY AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY REPRESENTATIONS, WARRANTIES, OR GUARANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. COMPANY AND OUR SUPPLIERS MAKE NO WARRANTIES ABOUT: (A) THE CONTENT PROVIDED THROUGH THE SERVICES; (B) THE SPECIFIC FEATURES OF THE SITE OR SERVICES, OR THEIR ACCURACY, RELIABILITY, AVAILABILITY, OR ABILITY TO MEET YOUR NEEDS; OR (C) THAT ANY USER CONTENT YOU SUBMIT WILL BE ACCESSIBLE ON THE SERVICES.
COMPANY MAKES NO WARRANTY THAT THE PRODUCTS OR SERVICES PROVIDED BY MERCHANTS WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. COMPANY MAKES NO WARRANTY REGARDING THE QUALITY, SAFETY, OR LEGALITY OF ANY SUCH PRODUCTS OR SERVICES, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY INFORMATION REGARDING SUCH PRODUCTS OR SERVICES.
9. Limitation on Liability
YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL THE COMPANY (OR ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS) BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE, BUSINESS OPPORTUNITIES, GOODWILL, OR ANTICIPATED SAVINGS, LOSS OR CORRUPTION OF DATA, OR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SITE AND/OR SERVICES OR THESE TERMS, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ON ANY THEORY OF LIABILITY, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY.
COMPANY’S TOTAL LIABILITY TO YOU FOR ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SITE AND/OR SERVICES OR THESE TERMS (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) THE AMOUNT OF REVENUE THAT COMPANY HAS PAID TO YOU FROM YOUR USE OF THE SERVICES IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT FIRST GIVING RISE TO THE CLAIM, (B) FIFTY US DOLLARS (U.S. $50), AND (C) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THE SITE AND/OR SERVICES OR THESE TERMS.
THE FOREGOING LIMITATIONS ON LIABILITY SHALL NOT APPLY TO LIABILITY OF COMPANY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY ITS FRAUD OR FRAUDULENT MISREPRESENTATION.
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND YOU.
10. Account Suspension and Termination
10.1 Termination by You. You may stop using the Services at any time. You may delete your Account at any time, for any reason, by emailing email@example.com, which may involve the removal of all data in your Account and, with respect to Merchants, the deletion of your store profile from the Site and/or Services and the removal of any User Content you uploaded to the Services.
10.2 Termination and Suspension by Company. Company may suspend or terminate your access, your Account, or your Account’s access to all or part of the Site and/or Services if (a) you materially or repeatedly breach these Terms; (b) we are required to do so to comply with a legal requirement or a court order; (c) we believe there has been conduct that creates (or could create) liability or harm to any user, other third party, or Company; or (d) Company believes, in its sole discretion, that provision of the Services to you is no longer commercially viable.
10.3 Notice for Termination or Suspension. We will notify you with the reason for termination or suspension by Company unless we reasonably believe that to do so: (a) would violate the law or the direction of a legal enforcement authority, or would otherwise risk legal liability for Company; (b) would compromise an investigation or the integrity or operation of the Service; or (c) would cause harm to any user, other third party, or Company.
10.4 Effect of Termination or Suspension. If your Account is terminated or your Account’s access to the Services is restricted, you may continue using certain aspects of the Services (such as viewing only) without an Account, and these Terms will continue to apply to such use. If you believe your Account has been terminated in error, you can contact us at firstname.lastname@example.org. You understand that any termination of your Account may involve deletion of your User Content associated with your Account from our live databases. Even after your rights under these Terms are terminated, the following provisions of these Terms will remain in effect: Sections 2.2, 2.4, 2.6, 2.7, and 4 –11.
11.1 Dispute Resolution. PLEASE READ THE FOLLOWING ARBITRATION AGREEMENT IN THIS SECTION (“ARBITRATION AGREEMENT”) CAREFULLY. It requires you to arbitrate disputes with Company and limits the manner in which you can seek relief from us.
a) Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Site and/or Services or to any aspect of your relationship with Company, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, and (2) you or Company 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). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of these Terms or any prior version of these Terms.
b) Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent, The Corporation Trust Company, Attn: Shop Sidewalk, Inc., 1209 Orange Street, Wilmington, DE 19801. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims 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 claims 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/. 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. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Company will pay them for you. In addition, Company will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
c) Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Company. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and these Terms (including the Arbitration Agreement). 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 arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
d) Waiver of Jury Trial. YOU AND COMPANY 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 Company are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 11.1(a) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow these Terms as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
e) Waiver of Class or Other Non-Individualized Relief. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, than then claim must be severed from the arbitration and brought into the state or federal courts located in the State of Colorado. All other claims shall be arbitrated.
f) 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 email@example.com within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Company username (if any), the email address you used to set up your Company 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 these Terms 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.
g) Severability. Except as provided in subsection 11.1(e), 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.
h) Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Company.
Modification. Notwithstanding any provision in these Terms to the contrary, we agree that if Company makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Company at firstname.lastname@example.org.
11.2 International Users. The Site and/or Services can be accessed from countries around the world and may contain references to Services that is not available in your country. These references do not imply that Company intends to announce such Services in your country. The Site and Services are controlled and offered by Company from its facilities in the United States of America. Company makes no representations that the Site and/or Services are appropriate or available for use in other locations. Those who access or use the Site and/or Services from other countries do so at their own volition and are responsible for compliance with local law.
11.3 Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Company 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 the State of Colorado.
11.4 Governing Law. The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of Colorado, 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 these Terms.
11.5 Export. The Site and/or Services may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Company, or any products utilizing such data, in violation of the United States export laws or regulations.
11.6 Electronic Communications. The communications between you and Company use electronic means, whether you use the Site and/or Services or send us emails, or whether Company posts notices on the Site and/or Services or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Company in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to you electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect your non-waivable rights.
11.7 Notice. Where Company requires that you provide an e-mail address, you are responsible for providing Company with your most current e-mail address. In the event that the last e-mail address you provided to Company is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, Company’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. Except as otherwise noted, you may give notice to Company at the following address: Shop Sidewalk, Inc., Attn: Legal – Terms of Service, 1770 Chestnut Place, #10712, Denver, CO 80202, or email address: email@example.com. Such notice shall be deemed given when received by Company by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address or, with respect to emails, upon confirmation that the email was received.
11.8 Force Majeure. Company 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, pandemic, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
11.9 Entire Agreement. These Terms constitute the entire agreement between you and us regarding the access to or use of the Site and/or Services. Our failure to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation”. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to Company is that of an independent contractor, and neither party is an agent or partner of the other. These Terms, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Company may freely assign these Terms. The terms and conditions set forth in these Terms shall be binding upon assignees.
11.10 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Site or Services, please contact us at firstname.lastname@example.org. 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.
11.11 Copyright/Trademark Information. All trademarks, logos, and service marks (“Marks”) displayed on the Site or within the Services are our property or the property of other third parties, such as Merchants. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.
11.12 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 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
11.13 Contact Information:
Shop Sidewalk, Inc.
Attn: Legal – Terms of Service
1770 Chestnut Place
Denver, CO 80202