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Terms and Conditions of Use

Last Updated: Aug 12, 2015 03:31PM EDT
Schmoozyshops by Schmoozys, LLC
Terms and Conditions of Use



Background.  Along with our Privacy Policy, this End User License Agreement (this “Agreement”) contains the legally binding terms between Schmoozys, LLC ("Schmoozyshops," “us,” or “we”), and you, that govern your use of www.Schmoozyshops.com (the “Website”).

By clicking the “I AGREE” button, you agree that you have reviewed and understood this Agreement, and to be bound by it.  You must also agree to our Privacy Policy, which describes, and gives you choices concerning, our data collection, transmission and use.  For your records, we will e-mail you copies of this Agreement and the Privacy Policy when you initially accept them, and you may review and request copies of them, as updated, at any time.

YOU ARE ONLY AUTHORIZED TO USE THE WEBSITE IF YOU AGREE TO ABIDE BY ALL APPLICABLE LAWS AND THIS AGREEMENT.  PLEASE READ THIS AGREEMENT CAREFULLY AND SAVE IT.  IF YOU DO NOT AGREE WITH IT, YOU SHOULD NOT BEGIN USING THE WEBSITE OR SHOULD DISCONTINUE USE IMMEDIATELY.

Representations About You.  You represent and warrant that you are:  (i) at least 18 years old; (ii) a United States citizen or a business entity organized in the United States; (iii) not accessing the Website from, or physically present in, a jurisdiction subject to United States trade sanctions; and (iv) providing us only information that is (and will be updated to remain) current, accurate, and complete.  If you are an employee or agent of a business entity entering into transactions on behalf of that entity, you represent and warrant that, as that entity’s designated signatory, you are authorized to bind that entity to this Agreement and all transactions made via our services.

License Grant.  Subject to this Agreement, Schmoozyshops grants you a limited, non-exclusive and non-transferable license to access and use the Website on devices that you personally control.

License Restrictions.  Your usage rights extend only so far as necessary for you to make authorized use of the Website's functionality in compliance with applicable law.  Except as expressly permitted by this Agreement, you may not do any of the following with respect to the Website:

(a)    copy, modify, translate, adapt, or otherwise create derivative works or improvements;

(b)    reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to source code;

(c)    access any content using any robot, spider, scraper, or other automated means or similarly functioning manual process;

(d)    bypass or circumvent measures we may use to prevent or limit access, or to maintain data security;

(e)    send altered, deceptive or false source-identifying information;

(f)    intercept, collect or store personal information about other users;

(g)    engage in excessively high-volume data transfers or bandwidth use, including hosting any server via our equipment;

(h)    spam other users, plant a virus, or employ other malicious techniques or take other actions that may affect operations or enjoyment;

(i)    remove, delete, alter or obscure any notice of copyright, trademark, patent, logo, design, or other intellectual property or proprietary rights;

(j)    sell, sublicense, assign, distribute, publish, transfer, or otherwise make any of our materials available to any third party for any reason, including making them available on a network not associated with us; or

(k)    violate any applicable law, including without limitation those concerning failure to pay, fraudulent payment, and the sale of alcoholic beverages.


Prohibited Sellers and Sale Items.  Schmoozyshops may reject any seller's participation at any time.  None of the following may be sold directly or indirectly via the Website:

•    non-authentic consumer items violative of any trademark or customs restriction;

•    counterfeit currency, coins, stamps, collectibles, etc.;

•    any material that infringes another's copyright;

•    weapons and related items, including but not limited to firearms, non-household-purpose knives, martial arts combat gear, finderscopes, silencers, crossbows, ammunition, ammunition magazines, tear gas, pepper spray, stun guns, Tasers, and life-like toy weapons;

•    fireworks, explosives, and other items designed or likely to detonate or be flammable;

•    inherently dangerous items with potential to injure persons or destroy property;

•    alcohol or tobacco products;

•    food or beverages not prepared and packaged, as applicable, in a commercially licensed facility in the United States that can both immediately and periodically provide evidence that it has passed health and consumer safety inspections;

•    controlled substances, non-FDA-approved drugs, or drug paraphernalia; and any substances or materials likely to be used in creating any of the foregoing;

•    prescription drugs and medical devices, and, without limitation of the preceding, prescription or contact lenses, defibrillators, syringes, hypodermic needles, catheter or diabetes supplies, or hearing aids;

•    humans or pets, or any of their blood, bodily fluids, body parts, or remains;

•    plants or insects, or materials that are derivatives thereof;

•    pesticides, hazardous or volatile substances, or any items containing them;

•    pornography and other adult-themed products, services, or media;

•    materials that promote or glorify hatred, violence, or intolerance, or are associated with organizations espousing such views;

•    materials otherwise deemed obscene or offensive in our sole discretion;

•    protected or regulated cultural or historical art or artifacts;

•    items originally issued by the military or police of any jurisdiction, or any other governmental agency, to its employees, agents, licensees, etc., or replicas thereof;

•    false identification cards, citizenship documents, birth certificates, or any other instruments illicitly used to achieve benefits or regulated access;

•    lists or singular data consisting primarily of individuals' personally identifying, contact or residence, or financial information;

•    gambling machines and items used to facilitate gambling;

•    stolen property, or property with manufacturer identification or serial number removed or altered;

•    items commonly used as burglary or auto theft tools, or other instruments of crime;

•    illegal telecommunications or electronic surveillance equipment;

•    items providing instruction on, or assistance in, the creation of illegal materials or performance of illegal acts;

•    transportation tickets, travel packages, lodging, time-share opportunities, etc.;

•    event tickets;

•    investments, securities, or insurance, or related products or services;

•    credit or debit cards, pre-paid cards, or currency exchange;

•    real estate;

•    franchise or work-at-home opportunities;

•    service contracts;

•    gift cards, gift certificates, manufacturer coupons, discount codes, etc., that:  (a) are not being sold by their original issuer (who must be a registered Schmoozyshops seller); or (b) contain terms or function in a manner illegal in the jurisdiction in which the given Schmoozyshops purchaser resides;

•    sales or fundraising opportunities;

•    lists of industry leads, business contacts, wholesalers, distributors, etc.;

•    import or export opportunities;

•    items prohibited for import or export by United States law, or items originating from countries that are subject to applicable United States trade sanction, embargo, etc.;

•    used bedding, inner garments, or personal care items;

•    products that have been recalled or are the subject of governmental or consumer agency warnings;

•    pre-orders of any product or service not currently deliverable; or

•    items that are otherwise illegal under laws applicable to us (or to a given purchaser or seller), or that we otherwise deem harmful or contrary to our commercial or compliance interests.


Reservation of Rights and Intellectual Property.  Use of the Website is only being licensed to you.  We, and our licensors and service providers, as applicable, reserve all rights, title and interest in the Website not expressly granted to you, and specifically do not grant you any ownership interest.  Without limitation, we retain all copyright, trademark, and other intellectual property rights not expressly granted to you by this Agreement.  All third-party marks, including the names and logos of service providers, card issuers, payment processors, and Merchants are the property of their respective owners.

Third-Party Merchants, Buyers, and Materials.  The Website enables you to make and receive payment for sales, or make and pay for purchases (in either case, “Transact”) for products posted to the Website (the “Products”) by you or another Website user (in either case, a “Market Participant”).  The parties to any transaction on the Website are the purchaser and the other respective Market Participant, and we incur none of your personal obligation for a transaction.  You must contact the applicable seller to resolve any issues concerning its customer service, payment processing, loyalty or rewards programs, honoring of promotions or discounts, etc.  Should you dispute any charge related to your use of the Website to pay for Products of a Market Participant, any charge-back will be the financial responsibility of that Market Participant and we will have no liability for it.  Any Market Participant seller retains the right to:  (a) settle payment if a Market Participant purchaser fails to properly Transact a purchase of Products; and (b) request that a Market Participant purchaser authorize payment via a portal other than the Website, but only in an instance where the Website transaction fails as a result of a confirmable Website payment processing error.

Third-party content, product or service offerings, and links to third-party websites (collectively, “Third-Party Materials”), may be displayed or made available via the Website, and will be governed by terms designated by their respective providers (“Third-Party Terms”).  You must review and accept such provider's Third-Party Terms, which constitute an agreement between you and them, when you elect to view or use their Third-Party Materials.  We do not warrant or endorse, and are not liable or responsible to you or anyone else for, any Third-Party Materials (or any content, products, or services of any third party); nor are we responsible for investigating or evaluating any aspect of any Third-Party Materials, including but not limited to their security, privacy, content, quality, accuracy, validity, completeness, maintenance and update status, copyright or other legal compliance, or potential offensiveness.  Third-Party Materials are made available solely in a good-faith effort to offer them as a convenience to you.

Our Commission in Seller Transactions.  In consideration for providing the Schmoozyshops market and facilitating Market Participant transactions on the Website, we are paid a transaction fee.  There are no listing fees on Schmoozyshops; however, unless otherwise agreed, in each sale the seller pays Schmoozyshops a commission of fifteen percent (15%) of the pre-tax-and-handling purchase price (the "Commission").  The Commission is automatically drawn during the payment transaction prior to the seller's receipt of net proceeds.  We reserve the right to:  change Commission percentages paid from time to time; and negotiate different Commission rates with different sellers based on factors such as, without limitation, volume or aggregate price of transactions consummated, exclusivity arrangements granted, demand for a given Market Participant's products or services, and amount of Schmoozyshops facilitation required in completing the respective Market Participant's sales. 

Payment Vendors.  We are a technology provider, and not a bank, credit union, payment processor or other financial institution.  Transactions are processed via a third-party payment processor (a “Payment Vendor”).  Each Market Participant acting as a seller must open an account with such Payment Vendor as we designate from time to time to be able to accept funds via Schmoozyshops.  Apart from this Agreement, Website transactions may also be subject to the terms and conditions of the applicable Payment Vendor, including service fees and charges.  When you Transact for Products via the Website, you authorize a Payment Vendor to, for example and without limitation, charge your credit card or other authorized payment method for a purchase, or subtract applicable transaction costs and fees from a sale, as applicable.  Please also note that it is the Payment Vendor and not Schmoozyshops that determines the timing of withdrawal from, or receipt of funds in, a Market Participant's bank account, as applicable.

Automatic Payment Termination Protocols.  The Website may follow automatic payment termination protocols under certain circumstances, such as when:

(a)        there has been no activity in a Website session for a given period of time;

(b)    it cannot be confirmed by ordinary means that a Market Participant's account is, in fact, being controlled or operated by that Market Participant; and

(c)        a Market Participant seller deems a certain Product no longer available.

Taxes.  A Market Participant seller may be operating in jurisdictions that require it to collect sales or other taxes when you Transact.  You agree to pay or collect, as applicable, any required taxes as a condition of using the Website to Transact for Products.  Similarly, you must pay any income or other taxes arising from any commissions, referral amounts, etc., paid to you by Schmoozyshops.  We have no responsibility for your tax compliance.

Available Operating Systems.  The Website may be made available on multiple platforms and operating systems, and there may be some variation in how the Website respectively functions on them.  We reserve the right to change the types and brands of systems, mobile devices, and carriers on which the Website may be utilized at any time.  We are not obligated to provide the Website for use via any particular provider or device.  You are prohibited from using our services on a device whose core operating system has been modified in any unauthorized way.

Maintenance.  Scheduled system maintenance will take place from time to time, and the Website, or certain elements of its functionality, may then be unavailable.  Emergency maintenance may be required at other times.  Outage and downtime may occur.  If the Website is down when you attempt to Transact, you may have to make alternative purchase or sale arrangements.

Updates.  We may, but are not required to, develop and provide Website updates from time to time, which may include upgrades, bug fixes, patches and other corrections, or new features (in any case, “Updates”).  Updates may also modify or remove certain features or functionality.  We have no obligation to provide Updates, nor to continue to provide or enable any particular features or functionality.  Based on the settings of your device and its Internet connection, the Website may automatically download and install available Updates, or you may be prompted to do so.  You agree to use the most recent version of the Website, as it exists from time to time.  The Website may not operate properly if you fail to permit Updates.  All Updates are deemed part of the Website, and are subject to the terms of this Agreement.

Communications.  Some of the Website's features may be funded through advertising, and we may need to communicate with you from time to time for various purposes, including to:  administer your use of the Website and keep it secure; provide account statements and receipts; update policies and terms of use; and assist you with pre-existing and new functionality.

You consent to receive communications, including commercial communications from Schmoozyshops and our third-party partners, who may include, without limitation, advertisers and other Market Participants.  Contact information you provide may be used to initiate commercial messages, which may be delivered via physical mail or e-mail, or posted on our Website.  Your consent to electronic communications from us does not mean we must provide all communications electronically.  At our option, we may deliver communications on paper or through other means.  Similarly, we may require that certain communications from you be delivered to us on paper at a specified address.  If you change your mind regarding your consent to our communications, you must contact us at help@schmoozys.com.  You may opt out of receiving messages that are primarily commercial, but to stop receiving all messages from Schmoozyshops (including those related to orders, receipts, and administration of your account), you will need to terminate your account.

Sending or receiving certain message or data transmissions may incur charges from your telecommunications carrier, or count against time- or size-based limits you have elected in your carrier agreement.  Our communications are deemed to be received by you when they, or notice of their availability, are sent, provided, posted or otherwise communicated to you.  If you use a spam filter that blocks or re-routes messages from senders not in your address book, you must make additions to your address book so you can receive communications from us in a timely manner.

Push Notifications.  Schmoozyshops may send you “push notifications” if the device on which you use the Website supports them.  By using the Website, you opt-in to receive such notifications, which may contain commercial messages from Schmoozyshops and our third-party partners.  Should you wish to stop receiving push notifications, you may decline them by adjusting the applicable settings on your device.

User-Generated Content.  You are not entitled to acknowledgment or compensation for our use of content that you post to the Website (including, without limitation, questions, comments, feedback, suggestions and ideas).  All such submissions are voluntary and non-confidential.  Any aggregated feedback or ranking system we provide represents only the opinion of our users of our services or Market Participants, and, unless otherwise expressly provided, may not under any circumstances be interpreted as our opinion, endorsement, representation, or warranty.  Content posted to the Website or our related social media outlets may be moderated, may not appear immediately, and is not guaranteed to be posted in a visible or searchable manner.  We have, however, no obligation to moderate user submissions and may stop doing so at any time.

If you discontinue your Schmoozyshops account, any content you posted or submitted via the Website may remain public and continue to be visible.  When you submit content, you automatically grant (and represent and warrant that you have the right to grant) us an irrevocable, perpetual, non-exclusive, sublicensable, fully paid, royalty-free, worldwide license to use, copy, perform, display, reproduce, adapt, modify and distribute, prepare derivative works of, or incorporate into other works, such information and content.

Restrictions on Submissions.  You are solely responsible for content you communicate to us and others via the Website and social media channels affiliated with us.  Submissions we prohibit in our sole discretion include, but are not limited to, those that are:

(a)    patently offensive, or promote or otherwise have potential to incite racism, bigotry, hatred or physical harm against any group or individual;

(b)    false, misleading, promote illegal activities, or are harassing, inflammatory, abusive, threatening, obscene, indecent, sexually explicit, fraudulent, defamatory, libelous, or otherwise objectionable;

(c)    "spam" or contain direct marketing communications, unsolicited advertising, promotional materials or other forms of solicitation or commercial content not related to the purpose of the Website;

(d)    violative of any person’s or entity’s privacy or publicity rights, copyrights, trademarks, or other intellectual property rights, or contractual or other legal rights;

(e)    confidential in nature, or contain trade secrets or other proprietary information;

(f)    sensitive information about a person (including, but not limited to, medical conditions, social security numbers, credit cards, bank accounts or other financial, residence, or contact information);

(g)    personal information concerning matters including, but not limited to, criminal charges or convictions, religious beliefs, racial or ethnic origin, relationships, sexual orientation, political opinions, or union membership;

(h)    likely to create a security risk to any person; or

(i)    otherwise objectionable or damaging to us or our users.


Limitations on Service Availability.  You must maintain your telecommunications and Internet service provider service accounts in good standing (and supply and maintain a device that meets our and those providers' minimum serviceable technology requirements) to be able to use the Website on a continuing basis.  We are based in the United States, but make no representation that the Website is available or permitted in any particular location.  No use of the Website may occur where prohibited.  You use the Website of your own initiative, and you are responsible for compliance with any applicable laws.  We may also impose limits on use of or access to the Website, as determined from time to time by law, regulation, or our business judgment.

Term and Termination.  This Agreement continues until terminated by you or us.  You may terminate at any time by unsubscribing from, and discontinuing use of, the Website.  At any time and without notice, we may terminate this Agreement, your Website account, or our provision and support of the Website in part or in whole.  This may occur if you fail to comply with any term of this Agreement, or in our sole business discretion.  Upon any termination:  (i) you remain liable for all payment and other obligations you have incurred while subject to this Agreement; (ii) all license and other rights granted to you by this Agreement will cease; and (iii) you must cease all access and use of the Website, and delete or destroy, as applicable, all related access materials and residuals in your possession.  Terms of this Agreement that are reasonably intended to create post-termination obligations shall remain in effect.


DISCLAIMERS AND LIMITATIONS OF LIABILITY

These disclaimers and limitations apply only to the extent permitted by applicable law; however, we would not provide the Website without them being an integral part of this Agreement.  Some jurisdictions do not allow certain disclaimers of implied warranties or limitations of liability, so the following disclaimers and limitations may not fully apply to you.  In particular, nothing in this Agreement shall constitute a waiver of any rights, claims or defenses you may have with respect to a payment transaction under the terms of your credit card issuer agreement, wireless carrier billing account, or applicable state and federal laws such as the Electronic Fund Transfer Act.  You may have additional refund or charge-back rights under these arrangements.

Disclaimer of Warranties.  EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE WEBSITE IS PROVIDED ON AN AS-IS, AS-AVAILABLE, AND WITH-ALL-FAULTS BASIS, WITHOUT WARRANTY OF ANY KIND.  WE DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THOSE FOR UNINTERRUPTED OR ERROR-FREE SERVICE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.

Limitation of Liability.  WE ARE NOT LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATED TO THE WEBSITE, OR TO OCCURRENCES INVOLVING YOUR COMPUTING OR COMMUNICATIONS DEVICE OR PERSONAL DATA, INCLUDING, WITHOUT LIMITATION, ANY FAILURE IN:  (A) AUTHENTICATING DATA FOR SECURITY PURPOSES OR OTHERWISE; (B) VERIFYING YOUR ELIGIBILITY TO COMPLETE A PAYMENT; (C) COMPLETING A TRANSACTION OR MAKING A PAYMENT; OR (D) TRANSMITTING DATA VIA ANY DEVICE, TRANSMISSION SYSTEM, SERVER, OR OTHER INTERNET INFRASTRUCTURE.  THIS LIMITATION APPLIES EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGE, OR CLAIM.  OUR MAXIMUM LIABILITY TO YOU FOR DAMAGES IS THE GREATER OF:  USD $50.00; OR THE AMOUNT YOU PAID TO USE THE WEBSITE, IF ANY, IN THE TWELVE (12) MONTHS PRECEDING THE DATE YOUR ALLEGED CLAIM AROSE.

Disputes Between You and Third Parties.  We are not a party to any sale of goods or services between Market Participants (see “Third-Party Merchants, Buyers and Materials” section).  You are solely responsible for your financial and other interaction with any Market Participant, Website advertiser, payment facilitator, or other third party.  You are responsible for all charge-backs, service fees, and like charges they assert based on your use of our services.  You may look only to such third parties and their cardholder agreements, terms of purchase, etc., for resolution of any return or refund issue, or any claims or disputes arising from a billing or other interaction facilitated via the Website.  YOU SHOULD ALWAYS CHECK YOUR BANKING AND ACCOUNT STATEMENTS.  TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, YOU AGREE TO WAIVE AND RELEASE US FROM, AND HOLD US HARMLESS AGAINST, ANY AND ALL CLAIMS, DAMAGES AND LIABILITIES ARISING FROM YOUR USE OF THE WEBSITE, AND ANY ACT OR OMISSION OF ANY MARKET PARTICIPANT, ADVERTISER, PAYMENT PROCESSOR, OR OTHER THIRD PARTY.

Indemnification.  You agree to indemnify, defend and hold harmless, and waive and release us, and our equity owners, subsidiaries, affiliated companies, joint venturers, business partners, licensors, employees, and agents, and any third parties that contribute to the provision of our services, from and against all third-party claims, losses, expenses, damages, costs and other liabilities (including, but not limited to, direct, incidental, consequential, exemplary and indirect damages, and attorneys' fees), arising out of your misuse of our services, or your violation of this Agreement or applicable law.

Force Majeure.  Without limiting the generality of the preceding limitations, we have no liability for any failure or delay resulting from any condition reasonably beyond our control, including but not limited to power grid failure, Internet service disruption, labor strikes or lock-outs, governmental action, acts of terrorism, war, coup, civil unrest, earthquake, hurricane, tsunami, fire, flood or other acts of God.


GENERAL PROVISIONS

Export and Other Restrictions.  You may not use or otherwise export or re-export any element of the Website or its services, except as authorized by United States law and the laws of the jurisdiction in which the Website was accessed.

Amendments and Assignment.  We may change, amend, or assign this Agreement, with or without notice or consent, by posting the most recent version (which shall supersede any other version) on the Website.  Your continued use of the Website following posting of these changes constitutes acceptance of the terms as they exist at the time of your usage.  You may not transfer or assign any rights or obligations conveyed by this Agreement without our prior written consent.  Subject to this paragraph, this Agreement is binding upon and inures to the benefit of the parties hereto, their successors, and their permitted assignees.

Governing Law.  Federal law and the laws of the State of Georgia (excluding its conflict of laws rules) govern this Agreement and your use of the Website.  The exclusive venue of any action arising out of this Agreement is the state and federal courts seated in Atlanta, Georgia, and you agree to the exclusive and personal jurisdiction of these courts.  The parties specifically reject the application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act to the subject matter of this Agreement.

Entire Agreement.  This Agreement and the Privacy Policy, both as amended from time to time, constitute the entire agreement between you and us regarding their subject matter, and supersede all other agreements, representations and understandings, whether written or oral.

Severability.     If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable under applicable law, then:  (a) it will, rather than be stricken in its entirety, be superseded by a valid and enforceable provision that most closely matches the economic intent of the original provision; and (b) the remainder of the Agreement will continue in full effect as if it had been executed by both parties subsequent to the expungement of the invalid provision.  A judicial finding of invalidity or unenforceability of any provision of this Agreement will not affect the validity of any other term, and any such finding in a given jurisdiction will not invalidate or render such provision unenforceable in any other jurisdiction.  It is expressly understood, however, that the parties hereto intend each and every provision of this Agreement to be valid and enforceable, and hereby knowingly waive all rights to object to any provision of this Agreement.

Contact Us.  Please contact us at help@schmoozys.com if you have any questions regarding this Agreement.
support@schmoozys.com
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