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+SHOP +SHOPKEEPER PROGRAM AGREEMENT
Last updated: August 23, 2023
By using +Shops Services, you are consenting to the practices described in this +Shop +Shopkeeper Program Agreement.
Table of Contents:
- Participation Requirements
- Commission Income Statement
- IP License
- Trademark Guidelines
- Influencer Program Policy
Welcome to your +Shop (the "+Shopkeepers Site") powered by MarketNation, also known as MarketNation Inc. (collectively "+Shops") where you can manage your affiliate marketing relationship with MarketNation as set forth in Schedule 1 (“MarketNation” or "us" or similar terms).
1. Description of the Shopkeepers Program
The +Shopkeepers Program permits you to monetize your website, and/or social media user-generated content, (referred to here as your "Site"), by placing on your Site (i) links to the Shopkeepers Site in Schedule 1.
When our customers click through to purchase an item sold or services offered on your +Shopkeepers Site or take other actions, you can receive commission income for qualifying purchases, as further described in (and subject to the limitations in) the +Shopkeepers Program Commission Income Statement. In order to facilitate your advertisement of these items or services, we may make available to you data, images, text, link formats, widgets, links, marketing content, and other linking tools, application program interfaces, and other information in connection with the +Shopkeepers Program ("Program Content"). Program Content specifically excludes any data, images, text, or other information or content relating to product offerings on any site other than the +Shopkeepers Site.
2. +Shop Customers
As between you and us, all pricing, terms of sale, rules, policies, and operating procedures concerning customer orders, customer service, and product sales set forth on the Shopkeepers Site will apply to those customers and may be changed at any time. If contacted by any customer for a matter relating to interaction with a +Shop Site, you will not directly handle or address any contacts with any customer and you will state that those customers must follow contact directions on your +Shopkeepers Site to address customer service issues. We own all customer data and are responsible for communication with the customer.
3. Self-disclosure as a +Shop +Shopkeeper
You must clearly and prominently state the following, or any substantially similar statement previously allowed under this Agreement, on your +Shopkeepers Site or any other location where MarketNation may authorize your display or other use of Program Content: "As a +Shop +Shopkeeper I earn from qualifying purchases." Except for this disclosure, and other than as required by applicable law, you will not make any public communication with respect to this Agreement or your participation in the Shopkeepers Program without our advance written permission. You will not misrepresent our relationship with you or express or imply any affiliation between us and you or any other person or entity except as expressly permitted by this Agreement.
4. Term and Termination
The term of this Agreement will begin upon your registration for or use of your +Shopkeepers Site. Either you or we may terminate this Agreement at any time, with or without cause (automatically and without recourse to the courts, if permitted under applicable law), by giving the other party written notice of termination provided that the effective date of such termination will be 7 calendar days from the date notice is provided. You can provide termination notice by logging into your account on the +Shopkeepers Site and selecting the option to close your account in "Account Settings". In addition, we may terminate this Agreement or suspend your account immediately upon written notice to you for any of the following: (a) you are in material breach of this Agreement, (b) you otherwise fail to cure within 7 days of our notice to you regarding any other breach of this Agreement (including any Program Policy); (c) we believe that we may face potential claims or liability in connection with your participation in the +Shopkeepers Program; (d) we believe that our brand or reputation may be tarnished by you or in connection with your participation in the Shopkeepers Program; (e) your participation in the +Shopkeepers Program has been used for deceptive, fraudulent or illegal activity; (f) we believe that we are or may become subject to tax collection requirements in connection with this Agreement or the activities performed by either party under this Agreement; (g) we have previously terminated this Agreement (or suspended your account) with respect to you or other persons that we determine are affiliated with you or acting in concert with you for any reason, or (h) we have terminated the +Shopkeepers Program as we generally make it available to participants. For the avoidance of doubt and without limitation for purposes of the foregoing subsection (a) any violation of Section 4 and as specified in the Program Policies will be deemed a material breach of this Agreement.
We may hold accrued unpaid commission income for a reasonable period of time following termination to ensure that the correct amount is paid (for example, to account for any cancellations or returns).
Upon any termination of this Agreement, all rights and obligations of the parties will be extinguished, including any and all licenses granted in connection with this Agreement, except that the rights and obligations of the parties under Sections 2, 3, 4, 5, 6, 7, 9, and 10 of this Agreement and as specified in the Program Policies, together with any payable but unpaid payment obligations under this Agreement, will survive the termination of this Agreement. No termination of this Agreement will relieve either party for any liability for any breach of, or liability accruing under, this Agreement prior to termination.
You represent, warrant, and covenant that (a) you will participate in the +Shopkeepers Program and create, maintain, and operate your Site in accordance with this Agreement, (b) neither your participation in the +Shopkeepers Program nor your creation, maintenance, or operation of your Site will violate any applicable laws, ordinances, rules, regulations, orders, licenses, permits, guidelines, codes of practice, industry standards, self-regulatory rules, judgments, decisions, or other requirements of any governmental authority that has jurisdiction over you (including all such rules governing communications, data protection, advertising, and marketing), (c) you are lawfully able to enter into contracts (e.g. you are not a minor or otherwise legally prevented from contracting), (d) you have independently evaluated the desirability of participating in the +Shopkeepers Program and are not relying on any representation, guarantee, or statement other than as expressly set forth in this Agreement, (e) you will not participate in the +Shopkeepers Program or use any other Service Offerings if you are the subject of U.S. sanctions or of sanctions consistent with U.S. law imposed by the governments of the country where you are using any Service Offering; (f) you will comply with all U.S. export and re-export restrictions, and applicable non-US export and re-export restrictions consistent with U.S. law, that may apply to goods, software, technology and services, and (g) the information you provide in connection with the Shopkeepers Program is accurate and complete at all times.
We do not make any representation, warranty, or covenant regarding the amount of traffic or commission income you can expect at any time in connection with the +Shopkeepers Program, and we will not be liable for any actions you undertake based on your expectations.
THE +SHOPKEEPERS PROGRAM, THE +SHOP SITE, THE +SHOPKEEPER SITE, ANY PRODUCTS AND SERVICES OFFERED ON THE +SHOP SITE, ANY LINKS, LINK FORMATS, CONTENT, DATA FEED, PRODUCT ADVERTISING CONTENT, OUR AND OUR AFFILIATES' DOMAIN NAMES, TRADEMARKS AND LOGOS (INCLUDING THE +SHOP AND MARKETNATION MARKS), AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, MATERIALS, DATA, IMAGES, TEXT, AND OTHER INTELLECTUAL PROPERTY RIGHTS, INFORMATION AND CONTENT PROVIDED OR USED BY OR ON BEHALF OF US OR OUR AFFILIATES OR LICENSORS IN CONNECTION WITH THE +SHOPKEEPERS PROGRAM (COLLECTIVELY THE "SERVICE OFFERINGS") ARE PROVIDED "AS IS" AND "AS AVAILABLE". NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICE OFFERINGS. WE AND OUR AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SERVICE OFFERINGS, INCLUDING ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF ANY LAW, CUSTOM, COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. WE MAY DISCONTINUE ANY SERVICE OFFERING, OR MAY CHANGE THE NATURE, FEATURES, FUNCTIONS, SCOPE, OR OPERATION OF ANY SERVICE OFFERING, AT ANY TIME AND FROM TIME TO TIME. NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WARRANT THAT THE SERVICE OFFERINGS WILL CONTINUE TO BE PROVIDED, WILL FUNCTION AS DESCRIBED, CONSISTENTLY OR IN ANY PARTICULAR MANNER, OR WILL BE UNINTERRUPTED, ACCURATE, ERROR FREE, OR FREE OF HARMFUL COMPONENTS. NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR (A) ANY ERRORS, INACCURACIES, VIRUSES, MALICIOUS SOFTWARE, OR SERVICE INTERRUPTIONS, INCLUDING POWER OUTAGES OR SYSTEM FAILURES OR (B) ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF, OR DELETION, DESTRUCTION, DAMAGE, OR LOSS OF, YOUR SITE OR ANY DATA, IMAGES, TEXT, OR OTHER INFORMATION OR CONTENT. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM US OR FROM ANY OTHER PERSON OR ENTITY OR THROUGH THE SERVICE OFFERINGS WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. FURTHER, NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH (X) ANY LOSS OF PROSPECTIVE PROFITS OR REVENUE, ANTICIPATED SALES, GOODWILL, OR OTHER BENEFITS, (Y) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH YOUR PARTICIPATION IN THE SHOPKEEPERS PROGRAM, OR (Z) ANY TERMINATION OR SUSPENSION OF YOUR PARTICIPATION IN THE +SHOPKEEPERS PROGRAM. NOTHING IN THIS SECTION 6 WILL OPERATE TO EXCLUDE OR LIMIT WARRANTIES, LIABILITIES, OR REPRESENTATIONS THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
7. Limitations on Liability
NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR ANY LOSS OF REVENUE, PROFITS, GOODWILL, USE, OR DATA ARISING IN CONNECTION WITH THE SERVICE OFFERINGS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING IN CONNECTION WITH THE SERVICE OFFERINGS WILL NOT EXCEED THE TOTAL COMMISSION INCOME PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE MOST RECENT CLAIM OF LIABILITY OCCURRED. YOU HEREBY WAIVE ANY RIGHT OR REMEDY IN EQUITY, INCLUDING THE RIGHT TO SEEK SPECIFIC PERFORMANCE, INJUNCTIVE OR OTHER EQUITABLE RELIEF IN CONNECTION WITH THIS AGREEMENT. NOTHING IN THIS PARAGRAPH WILL OPERATE TO LIMIT LIABILITIES THAT CANNOT BE LIMITED UNDER APPLICABLE LAW.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE WILL HAVE NO LIABILITY FOR ANY MATTER DIRECTLY OR INDIRECTLY RELATING TO THE CREATION, MAINTENANCE, OR OPERATION OF YOUR SITE (INCLUDING YOUR USE OF ANY SERVICE OFFERING) OR YOUR VIOLATION OF THIS AGREEMENT, AND YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD US, OUR AFFILIATES AND LICENSORS, AND OUR AND THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, AND REPRESENTATIVES, HARMLESS FROM AND AGAINST ALL CLAIMS, DAMAGES, LOSSES, LIABILITIES, COSTS, AND EXPENSES (INCLUDING ATTORNEYS' FEES) RELATING TO (A) YOUR SITE OR ANY MATERIALS THAT APPEAR ON YOUR SITE, INCLUDING THE COMBINATION OF YOUR SITE OR THOSE MATERIALS WITH OTHER APPLICATIONS, CONTENT, OR PROCESSES, (B) THE USE, DEVELOPMENT, DESIGN, MANUFACTURE, PRODUCTION, ADVERTISING, PROMOTION, OR MARKETING OF YOUR SITE OR ANY MATERIALS THAT APPEAR ON OR WITHIN YOUR SITE, (C) YOUR USE OF ANY SERVICE OFFERING, WHETHER OR NOT SUCH USE IS AUTHORIZED BY OR VIOLATES THIS AGREEMENT OR APPLICABLE LAW, (D) YOUR VIOLATION OF ANY TERM OR CONDITION OF THIS AGREEMENT (INCLUDING ANY PROGRAM POLICY), (E) YOUR TAXES AND DUTIES OR THE COLLECTION, PAYMENT, OR FAILURE TO COLLECT OR PAY YOUR TAXES OR DUTIES, OR THE FAILURE TO MEET TAX REGISTRATION OBLIGATIONS OR DUTIES, OR (F) YOUR OR YOUR EMPLOYEES' OR CONTRACTORS' NEGLIGENCE OR WILLFUL MISCONDUCT. WE OR OUR NOMINEE MAY TAKE LEGAL ACTION AND PERFORM ANY PROCEDURAL ACT ON BEHALF OF ANY +SHOP PARTY, INCLUDING THROUGH SPECIAL MANDATE, TO EXERCISE OR DEFEND A LEGAL CLAIM OR FOR THE PROTECTION OF RIGHTS, INCLUDING FOR THE PURPOSE OF ENFORCING THIS SECTION.
Any taxes and related obligations relating in any way to the +Shopkeepers Program or this Agreement (including any actual or alleged breach hereof), any transactions or activities under this Agreement, or your relationship with us or any of our affiliates will be subject to the tax provision for the applicable +Shopkeepers Site set forth on Schedule 3.
10. Governing Law and Disputes
Any dispute relating in any way to the +Shopkeepers Program or this Agreement (including any actual or alleged breach hereof), any transactions or activities under this Agreement, or your relationship with us or any of our affiliates will be subject to the governing law and disputes provision for the applicable +Shopkeeper Site set forth on Schedule 2.
11. Additional Provisions
We may send you emails relating to the +Shopkeepers Program from time to time.
You acknowledge and agree that (a) we may at any time (directly or indirectly) solicit traffic on terms that may differ from those contained in this Agreement, (b) we may at any time (directly or indirectly) operate sites or applications that are similar to or compete with your Site, (c) our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement, and (d) any determinations or updates that may be made by us, any actions that may be taken by us, and any approvals that may be given by us under this Agreement can be made, taken, or given in our sole discretion and are only effective if provided in writing by our authorized representative.
You may not assign this Agreement, by operation of law or otherwise, without our express prior written approval. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns.You may not assign this Agreement, by operation of law or otherwise, without our express prior written approval. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns.
This Agreement incorporates, and you agree to comply with, the most up-to-date version of all policies, appendices, specifications, guidelines, schedules, and other rules referenced in this Agreement and any other policies that apply to tools, subprograms, and features made available to you under the Shopkeepers Program ("Program Policies"), including any updates of the Program Policies from time to time. In the event of any conflict between this Agreement and any Program Policy, this Agreement will control. In the event of a conflict between this Agreement and your agreement with another Shopkeeper under a separate marketing program that agreement will control with respect to such separate programs. This Agreement (including the Program Policies) is the entire agreement between you and us regarding the Shopkeepers Program and supersedes all prior agreements and discussions.
Any information relating to +Shop or any of its affiliates that we provide or make accessible to you in connection with the +Shopkeepers Program that is not known to the general public or that reasonably should be considered to be confidential is MarketNation ``Confidential Information" and will remain MarketNation’s exclusive property. You will use Confidential Information only to the extent reasonably necessary for your performance under this Agreement and ensure that all persons or entities who have access to Confidential Information in connection with your account will be made aware of and will comply with the obligations in this provision. You will not disclose Confidential Information to any third party (other than your affiliates bound by confidentiality obligations) and you will take all reasonable measures to protect the Confidential Information against any use or disclosure that is not expressly permitted in this Agreement. This restriction will be in addition to the terms of any confidentiality or non-disclosure agreement between the parties and will apply for the term of the Agreement and 5 years after termination. You and we are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and us or our respective affiliates. You will have no authority to make or accept any offers or representations on our or our affiliates' behalf. If you authorize, assist, encourage, or facilitate another person or entity to take any action related to the subject matter of this Agreement, you will be deemed to have taken the action yourself.
Any +Shopkeeper who is also acting as a social media presence facilitating customer purchases will comply with the applicable provisions of this Agreement, in addition to the specific provisions of the +Shop Influencer Program Policy.
Notwithstanding anything to the contrary herein, nothing in this Agreement will, or will be interpreted or construed to, induce or require any party hereto to act in any manner (including taking or failing to take any actions in connection with a transaction) which is inconsistent with or penalized under any U.S. laws, regulations, rules or requirements that apply to any party to this Agreement.
We reserve the right to modify any of the terms and conditions contained in this Agreement at any time and in our sole discretion by posting a change notice, revised Agreement, or revised Program Policy on the Shopkeepers Site or by sending notice of such modification to you by email to the primary email address then currently affiliated with your Shopkeepers account. The effective date of such change will be the date specified, which other than increased Standard Commission Income will be no less than two business days from the date the notice is provided. YOUR CONTINUED PARTICIPATION IN THE SHOPKEEPERS PROGRAM FOLLOWING THE EFFECTIVE DATE OF SUCH CHANGE WILL CONSTITUTE YOUR ACCEPTANCE OF THE MODIFICATIONS. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT IN ACCORDANCE WITH SECTION 5.
Schedule 1: +Shop Entity and Shopkeeper Site
Schedule 2: Governing Law and Disputes
Schedule 3: Tax Provision
SCHEDULE 1: +SHOP ENTITY AND +SHOPKEEPERS SITE
Location: United States
+Shop Entity: MarketNation Inc.
Shopkeepers Site: https://plus.shop/[NAME]
SCHEDULE 2: GOVERNING LAW AND DISPUTES
Any dispute relating in any way to the +Shopkeepers Program or this Agreement will be resolved by binding arbitration, rather than in court, except that either party may elect to proceed in small claims court if the claims qualify under applicable law. The Federal Arbitration Act and federal arbitration law and the laws of the state of California, without regard to principles of conflict of laws, will govern this Agreement and any dispute of any sort that might arise between you and us.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would.
Before you may begin an arbitration proceeding, you must send a letter notifying us of your intent to pursue arbitration and describing your claim. The arbitration will be conducted by the American Arbitration Association ("AAA") under its Commercial Arbitration Rules. The AAA's rules are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA's Commercial Fee Schedule. You and we each agree that the underlying award in arbitration may be appealed pursuant to the AAA's Optional Appellate Arbitration Rules. You and we each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated, or representative action. If for any reason a claim proceeds in court rather than in arbitration, you and we each waive any right to a jury trial and agree that any such claim may proceed only in state or federal court in Santa Clara County, California.
Notwithstanding anything to the contrary in this Agreement, you and we each agree that either party may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of our or any other person or entity's notwithstanding anything to the contrary in this Agreement, you and we each agree that either party may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of our or any other person or entity's intellectual property. You further acknowledge and agree that our rights in the Program Content are of a special, unique, extraordinary character, giving them peculiar value, the loss of which cannot be readily estimated or adequately compensated for in monetary damages.
SCHEDULE 3: TAX PROVISION
We may deduct or withhold any taxes that we may be legally obligated to deduct or withhold from any amounts payable to you under the +Shopkeepers Program. From time to time, we may request tax information from you. If we request tax information from you and you do not provide it to us, we reserve the right (in addition to any other rights or remedies available to us) to hold your commission income until you provide this information or otherwise satisfy us that you are not a person from whom we are required to obtain tax information.
The tax authorities will recognize the commissions earned by a +Shopkeeper for sales in their +Shop as taxable income and should be recorded as such by the +Shopkeeper. According to the IRS, a +Shopkeeper who is recognized as tax exempt, may still may be liable for tax on its unrelated business income, if regularly carried on, and not substantially related to the charitable, educational, or other purpose that is the basis of the organization's exemption. As a consequence, the commissions earned by a +Shopkeeper for some sales in their +Shop may be liable for tax on unrelated business income.