Merchant Agreement

Last updated on: September 16, 2024
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This “Merchant Agreement” (the “Agreement”) is between you, the brand (“Merchant”), and NOWwith Ventures, Inc. doing business as “VideoShops”, 154 Grand Street, 3rd Floor New York, NY 10013 (“VideoShops”) and is effective as of the date Merchant accepts this Agreement as provided below.
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This Agreement sets forth the terms and conditions of Merchant’s sales of products on VideoShops’ platform (“VideoShops’ Platform”).
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How Does VideoShops’ Platform Work?
‍Any individual, creator or influencer who desires to sell products on Videoshops (collectively “Sellers”) can build, maintain and manage their own VideoShops storefront.  Sellers have access to VideoShops “Marketplace” to shop, share, sell and get paid commissions on the same day from participating merchants . “Sellers can curate products from VideoShops Marketplace to promote in their own Storefront with their audiences.  Sellers create and share content (“Seller Content”) that includes information about Merchant’s products (“Merchant SKUs”) that is all “shoppable” by third party users (“Customers”) who may purchase through such Seller’s “VideoShop” (a “Seller’s VideoShop”). Shoppers have a seamless, single cart, multi-brand checkout.
Merchants, Sellers and VideoShops each have the right to (i) promote any Seller Content solely in accordance with this Agreement, and (ii) to remove any particular Seller Content in accordance with this Agreement.
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Merchant agrees not to use any Seller Content in any manner other than as provided in this Agreement.  Merchant acknowledges that Merchant must obtain any clearances or licenses from third party owners for the use of Seller Content not expressly permitted in this Agreement and Program Policies.  
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How Does a Merchant Manage their Account on VideoShops’ Platform?
‍Each Merchant’s manages their own account through their “Brand Manager Tool”.  As used herein, the term “Merchant Content” means the account information that Merchant uploads, including Merchant’s trademarks, trade names and other intellectual property associated with Merchant and the Merchant SKUs.
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The Brand Manager Tool enables a Merchant the ability to customize their storefront details and manage their Merchant SKUs within their Merchant’s dashboard (the “Merchant Dashboard.”)  The Merchant Dashboard provides “real-time” data and insights with respect to the performance of Merchant SKUs on the Platform. The Dashboard also includes Merchant’s specific sales reports and sufficient data to verify Merchant’s sales and payments (subject to the Program Policies).
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Merchant can add other individuals who are authorized to manage Merchant’s account (each a “Merchant Authorized User”).  Merchant is solely responsible for managing its access credentials to its storefront and Brand Manager Tool and is further solely responsible for any use of such credentials.  Merchant is responsible for advising VideoShops immediately if any Merchant Authorized User is no longer authorized by the Merchant to access the Brand Manager Tool and needs to be disabled.
Merchant agrees that any Merchant Content furnished by or on behalf of the Merchant for use under this Agreement, including to market and promote the Merchant and the Merchant Content through and in connection with VideoShops’ Platform, shall at all times adhere to Program Policies.  Merchant shall cooperate and/or facilitate, as needed, in providing required product information and coordinating API or other automated data feed to ingest the Merchant Content in accordance with the Program Policies.
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Same-Day Pay: VideoShops is the first platform in the retail industry to offer “Same Day Pay”, an exclusive  feature that enables Sellers the ability to receive commission for their sales on the same day that an order is successfully placed.  In the standard payout cycle, Merchant’s proceeds are escrowed by the payment service provider utilized by VideoShops and amounts are reconciled 30 days after the successful placement of the respective order. Merchants waive any claims for the return of VideoShops’ Fee and the Seller Commission related to cancellations, returns and refunds. In exchange for a shorter cash conversion cycle (which is more favorable to Sellers and merchants than current market standards), Merchant assumes the risk of paying out the Seller Commissions and VideoShops’ Fee in the event of returns and refunds.

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What are VideoShops’ Fees?
‍As part of the Merchant onboarding to Videoshops Platform as a featured online storefront in VideoShops Marketplace, the Merchant selects  the seller commission rate which can be set between 10% to 50% (in increments of 10%) of the price of the Merchant SKUs  “Gross Sales” generated by each Seller (“Seller Commission”).
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When a Customer purchases a Merchant SKU, VideoShops:
(i) deducts and pays the Seller Commission to the Seller, upon completion of the transaction(ii) charges five percent (5%) of the price of the Merchant SKU sold that is retained by VideoShops as its fee (“VideoShops’ Fee”), and(iii) charges 2.9% plus a $0.30 per transaction (“Payment Fees”) that is also deducted
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The Seller Commission, VideoShops’ Fees and the Payment Fees are sometimes collectively referred to as the “Deductions”.  Merchant agrees that the sales prices of the Merchant SKUs available to Customers on the Platform cannot be higher than the sale prices offered by Merchant on Merchant’s own website.
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VideoShops does not guarantee that any Merchant SKUs will be selected by Sellers for inclusion in Seller Content, nor is VideoShops required to make any particular Merchant SKUs available for sale and may remove any Merchant SKU from the Platform (in VideoShops’ sole discretion).

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Who collects the money and how is the product shipped?
‍VideoShops allows Merchants to list and sell their products through VideoShops Marketplace, all featured inventory may be sold by VideoShops Sellers. Customer’s place their orders through Seller’s checkout which utilizes VideoShops’ payment service provider “Stripe". VideoShops’ payment service provider processes the payment for the benefit of the Merchant. VideoShops’ payment service provider automatically deducts the Deductions and credits the balance to Merchant’s registered bank account: it is that simple. VideoShops only facilitates the transactions conducted on VideoShops’ Platform and does not act as the merchant of record or as the seller of record. Accordingly, the contract formed by the completion of a sale for the Merchant SKU is a contract between the Merchant and the Customer. VideoShops is not a party to that contract nor does VideoShops accept any liability, responsibility or obligation for the terms therein (and VideoShops is not the Seller’s agent). The Merchant is solely responsible for the sale of the Merchant SKUs and is solely responsible for customer service issues in connection therewith.

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Fulfillment of Customer Orders
‍Merchants must ship Merchant SKUs sold directly to the Customers in accordance with the terms of this Agreement.  VideoShops does not maintain any product inventory to fulfill Customer orders.  All necessary information related to each order placed on the Platform, including order number, product and variant details, pricing, necessary shipping information and any other Customer data necessary for the Merchant to fulfill shipping the Merchant SKU(s) purchased by a Customer shall be available in the Merchant Dashboard.
Merchant must provide VideoShops with valid bank account information for a bank account acceptable by VideoShops. The Merchant authorizes VideoShops to verify the Merchant’s information from time to time.  The Merchant shall provide VideoShops (or its authorized designees) with any other information that may be required to account to the Merchant for such payments in compliance with applicable laws.  In the event the Merchant does not provide banking information as required hereunder, VideoShops shall accrue sums payable to the Merchant until the Merchant provides VideoShops with such required information, but in no event shall VideoShops be required to accrue any sums for the Merchant’s benefit for longer than 12 months (after which time VideoShops shall have no responsibility or liability for the same).
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Payments made to the Merchant, as reduced by all deductions or withholdings described in the Agreement, will constitute full payment and settlement to the Merchant of amounts payable under the Agreement.

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What are the returns policies?
‍Merchant is responsible for all returns. The return policy is directly synced from the Merchant site and displayed on each product page. VideoShops will release the Seller Commission and VideoShops’ Fee upon the completion of the purchase and immediately send the balance to the merchant account.
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In the event that a Customer initiates a return on an order during the 30 day period,  Merchant is responsible to return the entire amount back to the customer once the product is returned.
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Customer Support
‍Merchant will be responsible for first level customer support with respect to any Merchant SKUs and orders. The Merchant is responsible for maintaining accurate customer service contact details and a link to their terms of service within Videoshops' Platform.
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What rights does Merchant grant to VideoShops?
‍Merchant grants to VideoShops, licensees, designees, successors and assigns (including Sellers, as applicable), the following rights throughout the world:
             (i)        the right to share, sell, feature, promote Merchant in VideoShops’ public relations and promotional materials including all media now known or hereafter devised.      
(ii)      the right to use the Merchant SKUs and/or all or any portion of Merchant Content in connection with the following:   (iii)       the dissemination of information about Merchant and/or any Merchant SKUs in connection with the marketing and/or sale of Merchant SKUs to Customers.
(iv)       the creation and use of marketing and promotional materials, in any format or media now known or hereafter devised, that promote the Merchant, the Merchant Content and/or any Merchant SKUs, the distribution of Seller Content and VideoShops; (v)        permission for VideoShops, and for any Seller, to (A) “whitelist”, “boost” and/or otherwise support via paid media any posts of Merchant Content (including Seller Content), and (B) tag Merchant’s handles in social media posts that includes Merchants’ shoppable products. (vi)       Edit, adapt and otherwise modify Merchant Content to ensure quality control, to make the content interactive and shoppable.  The foregoing rights do not include any right to edit or modify any of the Merchant’s trademarks (other than for proportionately resizing).  The Merchant acknowledges that the Merchant does not have any right to control or take down any Seller Content or any Merchant SKUs included in Seller Content or otherwise on any of the Platform’s editorial or video player pages, other than on the VideoShops’ Platform or as permitted in accordance with the Program Policies.

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Merchant’s responsibilities:
‍The Merchant agrees to comply with, VideoShops’ Terms of Use, Privacy Policy and other policies made available on the Platform (collectively, the “Program Policies
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Third Party Rights and Obligations
‍In the event the Merchant includes name, license or other materials owned by third parties in Merchant Content, the Merchant shall be solely responsible for obtaining and/or paying for all licenses, waivers, clearances and other approvals or payment obligations required (“Third Party Obligations”) so that the Merchant Content may be used in all manners contemplated in this Agreement without restriction in accordance with the Program Policies.  In such connection, the Merchant represents and warrants that the Merchant has secured (and paid for, if applicable) all consents, permissions and releases required to allow the Merchant Content featuring any third party and/or third party content (such as music) to be used by or on behalf of the Merchant and VideoShops (and its permitted licensees and designees) shall have no obligations, financial or otherwise, in connection therewith.
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“VideoShops’ Property” shall mean VideoShops’ name as well as the brands MYVIDEOSHOP(S), NOWWITH, NOW//WITH, SHOPPERTAINMENT and all related names, trademarks, trade names, product names, service names, service marks, trade dress, designs and design marks, copyrights, slogans, logos or other intellectual property and/or other identifiers of VideoShops, including any discoveries, inventions, innovations, improvements, data, technology, know-how, trade secrets, copyrights and other intellectual property that is owned and/or controlled by VideoShops.  During the Term of this Agreement, VideoShops grants the Merchant the limited, non-exclusive, revocable, royalty-free right to use, display, publish and/or reference VideoShops’ company name, the word mark VIDEOSHOPS, MYVIDEOSHOPS, MY VIDEOSHOP, NOWWITH, NOW//WITH and VideoShops’ official logo marks for each (the “Licensed VideoShops’ Property”) solely as embodied and/or referenced in Merchant Content produced and used by the Merchant as permitted in accordance with the terms of this Agreement including the Program Policies exclusively on the Platform, provided that the Merchant shall not (i) use VideoShops’ Property other than the Licensed VideoShops’ Property as expressly permitted hereunder, (ii) use Licensed VideoShops’ Property in any manner to suggest any sponsorship, affiliation, endorsement or other connection between the Merchant and VideoShops (or any third party) other than in connection with  the Merchant’s participation in the Merchant Platform (unless otherwise agreed by the Merchant and VideoShops in writing, if applicable) and/or (iii) use and/or reference VideoShops’ Property in any manner, and/or otherwise take any action, that may harm or otherwise adversely affect the VideoShops’ Property and/or the goodwill associated with the VideoShops’ Property.
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The Merchant acknowledges and agrees that VideoShops has exclusive ownership rights in and to the VideoShops’ Property.  The Merchant agrees not to authorize or assist any third party to, (x) take any action that might in any way impair the right, title and interest of VideoShops in and to the VideoShops’ Property and/or (y) challenge or otherwise contest the validity, ownership or enforceability of any VideoShops’ Property or bring any action for non-infringement.  All uses of VideoShops’ Property shall inure to the benefit of VideoShops, and the Merchant shall not acquire, directly or by implication, any rights or license in the VideoShops’ Property except as expressly provided in this Agreement.  The Merchant’s right to use the Licensed VideoShops’ Property will terminate immediately if the Merchant violates any of the terms of this Agreement and shall automatically cease upon the termination of this Agreement for any reason whatsoever. VideoShops shall not acquire any right, title or interest in and to the Merchant’s trademarks, trade names, trade dress or other intellectual property; any goodwill generated in the Merchant’s intellectual property will inure solely to the Merchant.  
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Merchant agrees to the following:  Merchant shall not modify any graphic image or text contained on the VideoShops Site in any way, and Merchant shall not utilize any content of the VideoShops Site or any materials that are proprietary to VideoShops, without VideoShops’ prior written permission. Merchant will not frame any page on the VideoShops Site. VideoShops reserves all rights in all graphic images and text contained on VideoShops Site and all other VideoShops Property.
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To protect the security of VideoShops’ platform, VideoShops may, but is not required to, impose transaction limits on some or all sales or other transactions through the Platform relating to the value of any transaction or disbursement, the cumulative value of all transactions or disbursements during a period of time, or the number of transactions per day or other period of time and VideoShops shall not be liable to the Merchant in connection therewith.Any payments (if applicable) to Sellers related to Merchant SKUs or any other authorized Seller Commission payments via the Brand Manager Tool shall be made directly by VideoShops to each such Seller. The Merchant agrees that any payments or transactions related to the Merchant and/or Merchant SKUs within Seller Content distributed via the Platform shall solely take place via tools provided by the VideoShops service and any violations of this shall be cause for immediate termination from the Platform (however, nothing herein shall prevent exclusive endorsement deals between Merchants and Sellers made on a broader basis for content outside of the Platform). Termination shall be in addition to, and not in lieu of, other remedies available to VideoShops at law and/or in equity, including without limitation an action to recover the funds due to VideoShops for a violation of the foregoing.
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Tax Matters
‍Merchant will be solely responsible for the collection, reporting, and payment of any and all of the Merchant’s sales taxes. All Deductions from the sales price of each order under this Agreement are exclusive of any applicable taxes, deductions or withholding (including but not limited to cross-border withholding taxes), and the Merchant will be responsible for paying VideoShops any of the Merchant’s taxes imposed on such fees and any deduction or withholding required on any payment.  It is expressly understood that VideoShops may deduct or withhold any taxes that VideoShops may be legally obligated to deduct or withhold from any amounts payable to the Merchant under the Merchant Platform.  The Merchant shall provide VideoShops with any tax information that VideoShops may request from the Merchant from time to time to comply with VideoShops’ obligations.  If the Merchant does not provide the tax information requested by VideoShops, VideoShops reserves the right (in addition to other rights and remedies available to VideoShops) to withhold the Merchant Revenue Share otherwise payable to the Merchant until the Merchant provide this information or the Merchant provide information that satisfies VideoShops (in VideoShops’ discretion).
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It is expressly understood and agreed that any request by the Merchant to make Third Party Payments hereunder, if accommodated by VideoShops in its sole discretion (with no obligation to do so), shall be subject to the terms and conditions of this Agreement including this Tax Matters section.  Without limitation of the foregoing, in no event shall VideoShops make any Third Party Payments unless and until the applicable third party has delivered to VideoShops (or its authorized vendor) all necessary bank information (as described in the Payment to Merchant section above) and other tax information that may be requested from time to time to comply with any tax reporting obligations in connection with such payments (and to keep such information updated as needed, including promptly advising VideoShops of any change to such third party’s address and/or other information provided).  VideoShops’ compliance with this authorization will constitute accommodation to the Merchant alone, and nothing herein shall constitute the applicable third party to whom the Merchant directs a Merchant Third Party Payment a beneficiary of this Agreement.  VideoShops shall have no responsibility or liability to the Merchant or such third party for erroneous payments made as a result of information provided that is incorrect, incomplete or not properly updated as required hereunder, or failure to comply with the request to make Third Party Payments in its discretion.  The Merchant shall indemnify VideoShops for any claims asserted against VideoShops and any damages, losses or expenses incurred by VideoShops by reason of any such Third Party Payments or requests therefor.
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Confidentiality and Personal Data
‍During the course of the Merchant’s use of VideoShops’ Platform, the Merchant may receive Confidential Information. “Confidential Information” means information relating to VideoShops (and its officers, directors, stockholders, employees or other representatives), the Platform or VideoShops Customers and/or users that is not known to the general public including, but not limited to, any information identifying or unique to specific Customers; reports, insights and other information about the Platform and/or Customers; data derived from the Platform except for data (other than Customer personal data) arising from the sale of the Merchant’s products comprising of products sold, prices, sales, volumes and time of the transaction; and technical or operational specifications relating to the Platform. For the purposes of this Agreement, Customer personal data constitutes Confidential Information at all times which, as between the Merchant and VideoShops, shall be considered VideoShops’ exclusive property and cannot be used or processed by the Merchant in any way inconsistent with applicable law.  The Merchant shall only use Customer personal data for the purpose of fulfilling Customer orders under this Agreement unless otherwise expressly agreed by VideoShops in writing (in VideoShops’ sole discretion) or by the applicable Customer through the tools (if any) VideoShops provide to Customer on the Platform.  Except to the extent required to fulfill Customer orders, the Merchant shall not resell, transfer, export or otherwise use, exploit or process any such Customer personal data other than as required by law or as expressly agreed by VideoShops in advance in writing, and in all events the Merchant will only use Customer Personal Data with, and in accordance with, a Customer’s express, duly documented consent.  The Merchant agree that for the Term of the Agreement and 5 years after termination or such longer period herein prescribed: (a) all Confidential Information will remain VideoShops’ exclusive property (which ownership shall continue in perpetuity after the Term); (b) the Merchant will use Confidential Information only as is reasonably necessary for the Merchant’s participation in the Platform and will not resell or repurpose such information in any manner without obtaining VideoShops’ prior written consent (as well as the consent of the applicable Customer); (c) the Merchant will not otherwise disclose Confidential Information to any other person or entity except as required to comply with applicable law and/or to the extent reasonably necessary to perform under this Agreement, and the Merchant shall ensure that all authorized persons or entities who have access to Confidential Information in connection with the Merchant’s account will be made aware of, and required to comply with, the confidentiality obligations herein (provided the Merchant shall remain liable for any breach by such representatives of this paragraph); (d) the Merchant will take all reasonable measures to protect the Confidential Information against any use or disclosure that is not expressly permitted in this Agreement; and (e) the Merchant will retain Confidential Information only for so long as its use is necessary for participation on the Platform or to fulfill the Merchant’s statutory obligations (e.g. tax) and in all cases will delete such information upon termination or as soon as no longer required for the fulfillment of statutory obligations.  Notwithstanding the foregoing, the Merchant are not prohibited from sharing Confidential Information as may be required by applicable law to any governmental entity that has jurisdiction over the Merchant, provided that the Merchant limit the disclosure to the minimum necessary and explicitly indicate the confidential nature of the shared information to the governmental entity. The Merchant may not issue any press release or make any public statement related to the Platform, or use VideoShops’ name, trademarks, or logo, in any way (including in promotional material) without VideoShops’ advance written permission or as otherwise expressly permitted in this Agreement or misrepresent or embellish the relationship between VideoShops in any way.  The Merchant will take no action that would cause VideoShops or the Platform to be in violation of applicable laws, including without limitation any privacy laws, data retention and/or destruction laws, data transfer laws, or otherwise, nor will use any Customer data in a manner contrary to VideoShops’ Program Policies.
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Required Disclosures / FTC Guidelines
‍The Merchant agrees to comply with applicable laws, including FTC guidelines, with respect to the marketing and sale of Merchant SKUs, including as set forth in the Program Policies.  The Merchant understands it is a legal requirement that Customers and other end users clearly understand that Sellers may be entitled to compensation as a result of purchases of products through their Seller Content.  The Merchant agree that VideoShops may clearly disclose this financial relationship between the Merchant and the Seller on VideoShops’ Platform and any other location where VideoShops may authorize the Merchant’s display of Seller Content, such as:  “Sellers are paid from qualifying purchases of products through the VideoShops Marketplace”.  In addition, the Merchant will also need to disclose any endorsement or similar relationship between the Merchant and a Seller to the extent that a separate endorsement or similar relationship exists unrelated to VideoShops.  Except as required by applicable law, the Merchant will not make public statements about this Agreement or the details of the Merchant’s participation in the Merchant Platform without VideoShops’ advance written permission.  The Merchant will not misrepresent the extent of VideoShops’ relationship with the Merchant (for example, VideoShops is not required to sponsor or endorse the Merchant or the Merchant’s participation on the VideoShops Platform) or otherwise suggest there is any legal or other affiliation between the Merchant and VideoShops or any other person or entity (including any Seller, except to the extent the Merchant do have a separate endorsement, sponsorship or similar relationship that exists outside of the Merchant’s use of the VideoShops Site with a Seller and such statements are permitted by such Seller), except as expressly permitted in the Agreement.
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Representations and Warranties
‍The Merchant represents and warrants to VideoShops that (a) the Merchant is duly organized, validly existing and in good standing under the laws of the applicable jurisdiction in which the Merchant’s business is registered, and the Merchant has the right, power and authority to enter into this Agreement and grant all of the rights granted herein, (b) the Merchant shall comply with the terms of this Agreement (including the Program Policies) and all applicable laws in the Merchant’s performance of this Agreement, in the creation, production, manufacture, labelling, packaging, distribution, advertising marketing and sale of the Merchant’s merchandise (including without limitation, labor standards, consumer product and safety laws, disclosure of information to consumers and truth in advertising laws and regulations, etc.), and in the processing of any Customer personal data, (c) the merchandise shipped under any purchase order meets its product specifications at the time of shipment and is fit and safe for the use for which it was manufactured, (d) such merchandise (including packaging, labeling and inserts) does not, and the resale thereof by VideoShops will not, violate any applicable law, regulation or ordinance or infringe on any intellectual property or other right of any third party and (e) the Merchant and the Merchant’s affiliates are not subject to any sanctions or prohibitions by any governmental authority.
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Indemnification
‍The Merchant agrees to indemnify, defend, and hold harmless VideoShops and its subsidiary and affiliated companies and related entities, program partners and licensees, and their respective directors, officers, employees, contractors, stockholders, agents, representatives and designees (including Sellers), from and against any and all losses, damages, liabilities, penalties, credit monitoring service costs, data breach notification costs, costs of settlement and expenses (including, without limitation, reasonable attorneys’ fees and expenses) arising from any third party claims, suits, proceedings, demands or causes of action (including, without limitation, governmental actions) (collectively,  “Losses”) arising out of, resulting from, or relating to (a) the design, creation, manufacture, distribution and/or use of the Merchant SKUs, Merchant Content and any information provided by or on behalf of the Merchant in connection therewith, including  any death, bodily injury or property damage occurring or alleged to have occurred as a result of products provided by the Merchant, statements, instructions for use or warnings on the label(s), boxes, inserts or other packaging for the Merchant’s products or directions for use or application provided or approved by the Merchant, (b) the negligence or willful misconduct of the Merchant, or the Merchant Authorized Users, employees, contractors, agents or representatives, in the furnishing of merchandise or in the performance of work under any purchase order, (c) any actual or alleged infringement by the Merchant, products provided by the Merchant, or the Merchant’s intellectual property or any third party intellectual property right, (d) any actual or alleged violation of or noncompliance by the Merchant, the Merchant’s products and/or the Merchant’s use of the Platform with any applicable law, regulation or ordinance, (e) any allegation that any product provided by the Merchant was defective or harmful or violated a warranty of the Merchant in any way, (f) any actual or alleged breach by the Merchant of this Agreement, (g) any unauthorized use of the Merchant’s access credentials for the Brand Manager Tool, whether by the Merchant, the Merchant’s Merchant Authorized Users, or any third party, (h) any claims related to the Merchant’s processing (or failure to process) a purchase order as contemplated and required in this Agreement, or (i) the Merchant’s taxes and duties or the collection, payment or failure to collect or pay the Merchant’s taxes or duties, or the failure to meet tax registration obligations or duties.  All indemnification obligations of the Merchant under this Agreement will survive termination of this Agreement or any purchase order. Upon the making or filing of any such claim, action or demand, VideoShops shall be entitled to withhold from any amounts payable to the Merchant under this Agreement such amounts as are reasonably related to the potential liability in issue; provided, however, VideoShops shall release any such amounts withheld if no litigation is commenced within twelve (12) months following the assertion of such claim, action or demand unless VideoShops believe, in VideoShops’ reasonable judgment, that such a proceeding may be instituted notwithstanding the passage of time.  Notwithstanding the foregoing, VideoShops shall not withhold any monies pursuant to the immediately preceding sentence if the Merchant make bonding arrangements satisfactory to VideoShops in VideoShops’ sole discretion, to assure VideoShops of reimbursement for all damages, liabilities, costs and expenses (including reasonable actual and documented legal expenses and reasonable outside counsel fees) which VideoShops may incur as a result of such claim.  The Merchant shall be notified of any such claim, action or demand and shall have the right, at the Merchant’s own expense, to participate in the defense thereof with counsel of the Merchant’s own choosing; provided, however, that VideoShops’ decision in connection with the defense of any such claim, action or demand shall be final.
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Term; TerminationThis Agreement will commence upon the Merchant’s registration to create an account and shall terminate as provided in the next two sentences (the “Term”).  Either party may terminate this Agreement (a) at any time upon 30 days’ written notice; or (b) upon the other party's material breach of this Agreement, provided that the non-breaching party provides 7 days’ written notice to the breaching party and the breach is not cured within such 7-day period.  The Merchant can provide termination notice by logging into the Merchant’s account on VideoShops’ Platform and selecting the option to close the Merchant’s account in “Account Settings”.  VideoShops may provide written notice to the Merchant of termination through the Merchant’s account on VideoShops’ Platform as well as by sending notice by email to the Merchant’s then-current email address noted in VideoShops’ Platform account.  Termination of this Agreement shall not relieve the parties of obligations accrued through the date of termination (including fulfillment of and customer service for any orders placed by Customers prior to the end of the Term and any subsequent shipping, handling, returns, etc. related to such sales that may occur after the end of the Term). All provisions in this Agreement that should by their nature survive termination shall so survive. Notwithstanding anything to the contrary contained in this Agreement and for the avoidance of doubt, VideoShops has the right to immediately suspend public access to VideoShops’ Platform in its sole business discretion for any violations of this Agreement (including the Program Policies).
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Termination of this Agreement shall not affect the rights granted to VideoShops or its designees pursuant to this Agreement during the Term.  Accordingly, any rights granted and exercised during the Term, including the distribution of any Merchant Content, the creation of any post on Socials, the creation of any permitted promotional content or the like, shall survive the expiration or termination of this Agreement (e.g., it shall not be a breach of this Agreement if a post on a Social that was properly made prior to the end of the Term continues to be included in a feed after the Term).
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Disclaimer of LiabilityNeither VideoShops nor any parent or any of VideoShops’ respective affiliates, licensors, partners, officers, directors, stockholders, members, managers, employees or other representatives shall be liable (i) for any matter directly or indirectly relating to the creation, maintenance or operation of VideoShops’ Platform or the Merchant’s violation of this Agreement and/or (ii) for indirect, incidental, special, punitive, consequential, exemplary damages, or any loss of revenue, profits, goodwill, loss of use or loss of data arising in connection with the Platform, even if VideoShops have been advised of the possibility of those damages.  Further, VideoShops’ aggregate liability arising in connection with the Agreement will not exceed the total amounts paid to the Merchant under this Agreement in the 12 months immediately preceding the date on which the event giving rise to the most recent claim of liability occurred.  The Merchant hereby waives any right or remedy in equity, including the right to seek specific performance, injunctive or other equitable relief, in connection with this Agreement.  This paragraph shall be enforced to the maximum extent permitted by applicable law, and nothing in this paragraph will operate to limit liabilities that cannot be limited under applicable law.It is expressly agreed that the Platform, and all content and elements thereof and any information provided for the same, are provided “as-is”, and the Merchant agrees that the Merchant is using the Platform at the Merchant’s own risk.  To the maximum extent permissible under applicable law and except as agreed in the “Representations and Warranties” section above, VideoShops expressly disclaim any and all representations or warranties related to the Platform, the activities contemplated by this Agreement, including any warranties of merchantability or use, fitness for a particular purpose, title, quiet enjoyment, and non-infringement, as well as any other implied warranties, such as warranties regarding data loss, availability, accuracy, functionality and lack of malware, or damages as the result of the illegal activities of third parties.  VideoShops do not provide any guarantee or warranty that the Platform will meet any specific standard or be available for use at any time or time to time, that the Platform will be free of errors, interruptions, harmful components or failures or that transactions may not be impacted by any such failures.  
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Force Majeure
‍VideoShops will not be liable for any delay or failure to perform any of VideoShops’ obligations under this Agreement by reasons, events or other matters beyond VideoShops’ reasonable control, including without limitation telecommunication failures, utility failures, or equipment failures; labor disputes, riots, war, or terrorist attacks; nonperformance of VideoShops’ vendors or suppliers, fires or acts of God; or any other event over which VideoShops have no reasonable control. For the avoidance of doubt, nothing in this Agreement will excuse the Merchant’s payment obligations to VideoShops.
Successors; Assignment; WaiverThis Agreement shall be binding upon and inure to the benefit of the parties and their respective successors in interest and permitted assigns.  The Merchant may not assign this Agreement, in whole or in part, without VideoShops’ prior written consent.  No failure by VideoShops to enforce any provision of this Agreement (including the Program Policies) shall constitute a waiver of VideoShops’ right to subsequently enforce such provision or any other provision of the Agreement.

Independent ContractorsThe Merchant and VideoShops are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the Merchant and VideoShops or VideoShops’ respective affiliates. The Merchant will have no authority to make or accept any offers or representations on behalf of VideoShops or its affiliates.
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Governing Law and Jurisdiction; SeverabilityThis Agreement and the rights and obligations of the parties shall be governed by and construed according to the laws of the state of New York, without regard to its choice of law provisions.
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To the fullest extent permitted by applicable law, neither the Merchant nor VideoShops will seek to have a dispute heard as a class action or private attorney general action or in any other proceeding in which either party acts or proposes to act in a consolidated or representative capacity, regardless of the forum or venue. No arbitration or proceeding can be combined with another without the prior written consent of all parties to the arbitrations or proceedings.
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The Merchant and VideoShops agree to arbitrate, as provided below, all disputes between the parties hereto, that are not resolved informally, except with respect to any claim for a preliminary injunction or similar equitable relief related to the ownership or enforcement of intellectual property rights and/or any misuse of such intellectual property rights (“Excluded Claims”).  This obligation and agreement to arbitrate applies regardless of whether the underlying action arises in contract, warranty, tort, or otherwise, and relates to claim related to or arising under this Agreement, its enforceability, and any claim regarding the agreement to arbitrate and waive the right to participate in any class action type claims or otherwise.
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If the parties hereto cannot amicably resolve a dispute, the same will be resolved by binding arbitration before a neutral arbitrator(s).  The arbitration will be conducted by the American Arbitration Association (AAA) under its commercial rules.  The parties will cooperate with AAA and with one another in selecting a mutually approved arbitrator from the AAA panel of neutrals with at least 10 years of experience in the applicable area(s) of the disputes.  If the parties cannot agree on one arbitrator within 15 days of the commencement of the arbitration, the parties shall each select an arbitrator with the qualifications specified in this paragraph within 15 days, and those two arbitrators shall mutually select a third arbitrator, who shall serve as Chair of the arbitration tribunal, within 15 days of their appointment.  Notwithstanding the foregoing, in the event that the claims involve over $1,000,000 in dispute, either party may require the appointment of three arbitrators in accordance with the procedure in the preceding sentence.  The determination and award of the arbitrator(s) shall be based upon application of New York law.  Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules.  The decision of such arbitrator(s) will be final except for a limited right of appeal under the U.S. Federal Arbitration Act.  BOTH PARTIES HERETO ARE GIVING UP AND WAIVING THE RIGHT TO LITIGATE A DISPUTE BEFORE A JURY OR A JUDGE IN COURT OTHER THAN WITH RESPECT TO EXCLUDED CLAIMS. Arbitration will be conducted either electronically (by telephone or other means of video conference as permitted by the American Arbitration Association) or in the borough of Manhattan, New York, New York. The Merchant and VideoShops hereby agree to submit to the exclusive jurisdiction of the federal courts for the Southern District of New York and the state courts city in New York, New York, where necessary (e.g.) to compel arbitration, to stay any filed proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on any award by the arbitrator.  
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To the extent litigation or other proceeding is permitted in local or federal courts hereunder, each party irrevocably submits to the exclusive jurisdiction of the federal courts for the Southern District of New York and state court of the State of New York located in New York, NY, United States, and the Merchant expressly waive any objection to the personal jurisdiction and venue of such courts, including, without limitation, on grounds of forum non conveniens.  Notwithstanding anything to the contrary contained in this Agreement, VideoShops may seek injunctive or other relief in any state, federal or national court of competent jurisdiction for any infringement of VideoShops’ or any other person or entity’s intellectual property or proprietary rights.
For service of process and notices of claims, the then-current contact person/entity noted in the Merchant’s account shall be authorized to receive and accept service of process on the Merchant’s behalf.
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In the event any provision of this Agreement is determined to be invalid or unenforceable for any reason, such provision shall be amended solely to the extent necessary to make such provision enforceable to the maximum extent possible and such provision shall be so enforced to give effect to the intent of the same.  Any such invalid or modified provision shall in no way affect the validity or enforceability of any other provisions of the Agreement.
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Entire Agreement; InterpretationThis Agreement (including the Program Policies) constitutes the entire agreement between the Merchant and VideoShops with respect to the subject matter thereof and supersede all prior agreements.  Except as expressly specified herein, no amendment, waiver, or discharge of any provision of this Agreement will be effective unless made in writing signed by VideoShops and the Merchant (except where changes to the Platform may be binding upon the Merchant as provided herein).  In the event of a conflict between this Agreement and any purchase order or other pre-printed terms on forms submitted by the Merchant, this Agreement shall control, and no pre-printed terms on any documents the Merchant submits to VideoShops will serve to supplement this Agreement and its terms.  If an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the parties to this Agreement, and no presumption or burden of proof will arise favoring or disfavoring any party to this Agreement by virtue of the authorship of any of the provisions of this Agreement.
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Acceptance of the Agreement
‍By clicking “Accept” at the bottom of this Agreement to acknowledge acceptance of this Agreement, the account owner represents and warrants that: (i) the individual reviewing and accepting this Agreement on behalf of the registered owner of this account (that is, the Merchant) is at least 18 years of age and has the full legal capacity and authority to enter into this Agreement on the Merchant’s behalf and bind the Merchant to the terms and conditions of this Agreement, (ii) the individual, on behalf of the Merchant, has reviewed and understands this Agreement, and (iii) the Merchant shall be bound by all of the terms of this Agreement and any other agreements referenced in this Agreement.
VideoShops has the right to modify the terms and conditions of this Agreement from time to time in VideoShops’ sole discretion by posting a revised Agreement (including any revised Program Policies) on the Platform.  The Merchant understands and agrees that the Merchant’s continued use of the Platform after the effective date of any change to this Agreement will be deemed to constitute the Merchant’s acceptance of such change.  If any change is unacceptable to the Merchant, the Merchant acknowledges and agrees that the Merchant’s only recourse is to discontinue the use of the Platform and to end the Agreement as provided below.