Terms of Service

Last Updated: February 23, 2021

Thank you for signing up with Shelfbot Co. dba Shelf Engine (“Shelf Engine,” “we,” “us,” “our”). By placing an Order, submitting an Order Form, clicking accept to this Agreement, or using or accessing Shelf Engine through its website located at shelfenginestg.wpengine.com (the “Site”), its mobile applications, and related services (collectively, such services, including any new features and applications, and the Site, the “Shelf Platform”), you agree to all the terms and conditions of this Terms of Service (“Terms,” “Terms of Service,”) and related Order Form (collectively, the “Agreement”). We reserve the right, at our sole discretion, to change or modify portions of these Terms at any time. If we do this, we will post the changes on this page and will indicate at the top of this page the date these Terms were last revised. We will also notify you, either through the Shelf Platform user interface, in an email notification, or through other reasonable means, in a reasonable time after they are posted. Any such changes will become effective immediately and your continued use of the Shelf Platform after the date any such changes become effective constitutes your acceptance of the new Terms.

This Agreement includes any Order Forms and any additional terms applicable to such Shelf Engine service that may be posted on the Shelf Platform from time to time, including, without limitation, the Privacy Policy located at https://www.shelfengine.com/privacy-policy/, or any additional terms entered into between the parties related to the Shelf Platform. All such terms are hereby incorporated by reference into these Terms. In the event of conflict between an Order Form and these Terms, an Order Form will govern, but only with respect to the subject matter of such Order Form.
If you are entering into this Agreement as a retailer utilizing the Shelf Platform to access Vendors and their Products and any other services provided by Shelf Engine, the term “Retailer” applies to you, and you represent that you have the authority to bind such entity to these Terms. If you are entering into this Agreement as a vendor utilizing the Shelf Platform to provide Products to Retailers and any other services provided by Shelf Engine, the term “Vendor” applies to you, and you represent that you have the authority to bind such entity to these Terms (Retailers and Vendors collectively, the “Users”). If you do not have authority or do not agree to these Terms, including the mandatory arbitration provision and class action waiver in Section 11, do not access or use our Service.

PLEASE READ THESE TERMS OF SERVICE CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST SHELF ENGINE ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) YOU MAY NOT BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST US RESOLVED BY A JURY OR IN A COURT OF LAW.

If you have questions about these Terms, the Agreement, the Shelf Platform, or our services and products, please contact talk@www.shelfengine.com.

1. Access and Use of the Shelf Platform

a. Shelf Platform
The Shelf Platform is designed to provide Retailers (and any Retailer authorized individuals) and Vendors or Commissaries a web-based order prediction engine for the management of goods and services (“Products”). In addition, Retailers and Vendors can access various other features and services on the Shelf Platform that may be added by Shelf Engine from time to time.

b. Member Account, Password and Security
As part of the registration process, you may need to identify administrative username(s) and password(s) for your Shelf Engine User account(s). Users shall be responsible for all use of the Shelf Platform under User account(s). You are responsible for maintaining the confidentiality of your password and account, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to (a) immediately notify Shelf Engine of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Shelf Platform. Shelf Engine will not be liable for any loss or damage arising from your failure to comply with this Section.

c. Fees and Payment
You are subject to all payment terms, Fees, and Pricing set forth on an applicable Order Form and/or Order. You agree to pay Shelf Engine the amount that is specified in an Order or Order Form or on Shelf Platform, in accordance with the terms of such Order, Order Form, and these Terms. If you do not initially register for a version of the Service that requires the payment of a fee, you will nonetheless be permitted to use all of the features of the Service for a period of thirty (30) days (“Free Trial Period”). NOTWITHSTANDING ANYTHING CONTAINED HEREIN, ANY SERVICE PROVIDED DURING THE FREE TRIAL PERIOD IS PROVIDED “AS-IS” WITHOUT ANY REPRESENTATIONS, WARRANTIES OR INDEMNITIES. Upon the expiration of the Free Trial Period, you will only be able to access and use those features of the Service the use of which does not require the payment of a Fee, unless you subsequently upgrade to a paid version of the Service.

d. Payment Information
In order to participate on the Shelf Platform, you will be required to provide Shelf Engine a valid payment method and you Authorize Shelf Engine to automatically charge such payment method for all amounts due under these Terms, including any applicable fees, purchases, and late fees. Any other non-electronic payment method not on our Service must be pre-approved via application and written communication with us at time of account creation. If the payment method we have on file for you at any time expires or otherwise becomes invalid, you agree to promptly provide to us with a substitute payment method. You represent and warrant to Shelf Engine that such information is true and that you are authorized to use the payment instrument.

e. Modifications to Shelf Platform
Shelf Engine reserves the right to modify or discontinue, temporarily or permanently, the Shelf Platform (or any part thereof) with or without notice. You agree that Shelf Engine will not be liable to you or to any third party for any modification, suspension or discontinuance of the Shelf Platform.

f. General Practices Regarding Use and Storage
You acknowledge that Shelf Engine may establish general practices and limits concerning use of the Shelf Platform, including without limitation the maximum period of time that data or other content will be retained by the Shelf Platform and the maximum storage space that will be allotted on Shelf Engine’ servers on your behalf. You agree that Shelf Engine has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Shelf Platform. You acknowledge that Shelf Engine reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that Shelf Engine reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.

g. Mobile Services
The Shelf Platform includes certain services that are available via a mobile device, including (i) the ability to upload content to the Shelf Platform via a mobile device, (ii) the ability to browse the Shelf Platform from a mobile device and (iii) the ability to access certain features through an application downloaded and installed on a mobile device (collectively, the “Mobile Services”). To the extent you access the Shelf Platform through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. By using the Mobile Services, you agree that we may communicate with you regarding Shelf Engine and other entities by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of the Mobile Services may be communicated to us. In the event you change or deactivate your mobile telephone number, you agree to promptly update your Shelf Engine account information to ensure that your messages are not sent to the person that acquires your old number.

h. Relationship with Shelf Engine
If you are a Retailer or a Vendor, your relationship with Shelf Engine is limited to being an independent, third-party contractor, and not an employee, agent, joint venture or partner of Shelf Engine for any reason, and you act exclusively on your own behalf and for your own benefit, and not on behalf, or for the benefit of Shelf Engine. Shelf Engine does not, and shall not be deemed to, direct or control you generally or in your performance under these Terms. You acknowledge and agree that you have complete discretion whether to list goods or services or otherwise engage in other business activities.

2. Intellectual Property Rights

a. License Grant; Usage Restrictions
Subject to the terms of this Agreement, Shelf Engine will provide you a limited, non-exclusive, non-transferable, non-sublicensable access to the Shelf Platform for internal business purposes only. The technology and software underlying the Shelf Platform or distributed in connection therewith are the property of Shelf Engine, our affiliates and our partners. You will not, directly or indirectly: sell, assign, sublicense, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Shelf Platform or any software, documentation or data related to the Shelf Platform (“Software”); modify, translate, or create derivative works based on the Shelf Platform or any Software (except to the extent expressly permitted by Shelf Engine or authorized within the Shelf Platform); use the Shelf Platform or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; remove any proprietary notices or labels; or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by Shelf Engine.

b. Service Content and Trademarks
You acknowledge and agree that the Shelf Platform may contain content or features (“Platform Content”) that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by Shelf Engine, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Shelf Platform or the Platform Content, in whole or in part, except that the foregoing does not apply to your own User Content (as defined below) that you legally upload to the Shelf Platform. In connection with your use of the Shelf Platform you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. If you are blocked by Shelf Engine from accessing the Shelf Platform (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). Any use of the Shelf Platform or the Platform Content other than as specifically authorized herein is strictly prohibited.

The Shelf Engine name and logos are trademarks and service marks of Shelf Engine (collectively the “Shelf Engine Trademarks”). You may not use any metatags or other “hidden text” utilizing “Shelf Engine” or any other name, trademark, or product and service name of Shelf Engine without our prior written permission. In addition, the look and feel of our Service, including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of Shelf Engine and may not be copied, imitated or used, in whole or in part, without our prior written permission. Other Vendor, Retailer, company, product, and service names and logos used and displayed via the Shelf Platform may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Shelf Engine. Nothing in these Terms or the Shelf Platform should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Shelf Engine Trademarks displayed on the Shelf Platform, without our prior written permission in each instance. All goodwill generated from the use of Shelf Engine Trademarks will inure to our exclusive benefit. Reference to any products, services, processes or other information, by trademark, manufacturer, supplier, third-party vendor or otherwise does not constitute or imply our endorsement, sponsorship or recommendation.

c. Third Party Material
Under no circumstances will Shelf Engine be liable in any way for any content or materials of any third parties (including Users), including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. You acknowledge that Shelf Engine does not pre-screen content, but that Shelf Engine and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Shelf Platform. Without limiting the foregoing, Shelf Engine and its designees will have the right to remove any content that violates these Terms or is deemed by Shelf Engine, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.

d. User Content Transmitted Through the Shelf Platform
With respect to the content, you upload or transmit through the Shelf Platform or share with other Users or recipients, which may include, but is not limited to data, images, media, product descriptions, or other materials, (collectively, “User Content”), you represent and warrant that you own all right, title and interest in and to such User Content, including, without limitation, all copyrights and rights of publicity contained therein. For clarity, User Content does not include your Confidential Information. By uploading any User Content, you hereby grant and will grant Shelf Engine and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use your User Content in connection with the operation of the Shelf Platform or the promotion, advertising or marketing thereof, in any form, medium or technology now known or later developed. Notwithstanding anything to the contrary, you agree that Shelf Engine is hereby granted the right to use (during and after the term hereof) all User Content submitted hereunder to train its algorithms internally through machine learning techniques for such purpose.

You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Shelf Platform (“Submissions”), provided by you to Shelf Engine are non-confidential, and Shelf Engine will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.

You acknowledge and agree that Shelf Engine may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Shelf Engine, its users and the public. You understand that the technical processing and transmission of the Shelf Platform, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.

e. Copyright Complaints
Shelf Engine respects the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify Shelf Engine of your infringement claim in accordance with the procedure set forth below.
Shelf Engine will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to Shelf Engine’ Copyright Agent at talk@www.shelfengine.com (Subject line: “DMCA Takedown Request”). You may also contact us by mail or facsimile at:

Attn: Shelf Engine
1218 Third Ave, Suite 1010
Seattle, WA 98101

To be effective, the notification must be in writing and contain the following information:

• an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
• a description of the copyrighted work or other intellectual property that you claim has been infringed;
• a description of where the material that you claim is infringing is located on the Shelf Platform, with enough detail that we may find it on the Shelf Platform;
• your address, telephone number, and email address;
• a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law; and
• a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.

Counter-Notice: If you believe that your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to upload and use the content in your User Content, you may send a written counter-notice containing the following information to the Copyright Agent:

• your physical or electronic signature;
• identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
• a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
• your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court located within King County and a statement that you will accept service of process from the person who provided notification of the alleged infringement.

If a counter-notice is received by the Copyright Agent, Shelf Engine will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.

Repeat Infringer Policy: In accordance with the DMCA and other applicable law, Shelf Engine has adopted a policy of terminating, in appropriate circumstances and at Shelf Engine’ sole discretion, users who are deemed to be repeat infringers. Shelf Engine may also at its sole discretion limit access to the Shelf Platform and/or terminate the memberships of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.

3. User Disputes

You agree that you are solely responsible for your interactions with any other user in connection with the Shelf Platform and Shelf Engine will have no liability or responsibility with respect thereto. While we may help facilitate the resolution of disputes, Shelf Engine has no control over and does not guarantee (i) the existence, quality, safety, suitability, or legality of any Product listings, (ii) the truth or accuracy of any Product listing descriptions or other User Content, or (iii) the performance or conduct of any user or third party. Shelf Engine does not endorse any user, Product, Vendor, or Retailer. Shelf Engine reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Shelf Platform.

4. Conditions of Use

a. User Content
You are solely responsible for all code, video, images, information, data, text, software, music, sound, photographs, graphics, messages or other materials (“content”) that you upload, post, publish or display (hereinafter, “upload”) or email or otherwise use via the Shelf Platform, and represent that you have all necessary rights to such content. The following are examples of the kind of content and/or use that is illegal or prohibited by Shelf Engine. Shelf Engine reserves the right to investigate and take appropriate legal action against anyone who, in Shelf Engine’ sole discretion, violates this provision, including without limitation, removing the offending content from the Shelf Platform, suspending or terminating the account of such violators and reporting you to the law enforcement authorities. You agree to not use the Shelf Platform to:

i. email or otherwise upload any content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “contests,” “sweepstakes,” or any other form of solicitation; (vi) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful racially, ethnically or otherwise objectionable; or (vii) in the sole judgment of Shelf Engine, is objectionable or which restricts or inhibits any other person from using or enjoying the Shelf Platform, or which may expose Shelf Engine or its users to any harm or liability of any type;
ii. interfere with or disrupt the Shelf Platform or servers or networks connected to the Shelf Platform, or disobey any requirements, procedures, policies or regulations of networks connected to the Shelf Platform;
iii. violate any applicable local, state, national or international law, or any regulations having the force of law;
iv. impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
v. solicit personal information from anyone under the age of 18;
vi. harvest or collect email addresses or other contact information of other users from the Shelf Platform by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
vii. advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized;
viii. further or promote any criminal activity or enterprise or provide instructional information about illegal activities; or
ix. obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Shelf Platform.

b. Special Notice for International Use; Export Controls
Software (defined above) available in connection with the Shelf Platform and the transmission of applicable data, if any, is subject to United States export controls. No Software may be downloaded from the Shelf Platform or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Shelf Platform, including as it concerns online conduct and acceptable content.

c. Commercial Use
Unless otherwise expressly authorized herein or in the Shelf Platform, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or upload for any commercial purposes, any portion of the Shelf Platform, use of the Shelf Platform, or access to the Shelf Platform.

5. Third Party Distribution Channels

Shelf Engine offers Software applications that may be made available through the Apple App Store, Android Marketplace or other distribution channels (“Distribution Channels”). If you obtain such Software through a Distribution Channel, you may be subject to additional terms of the Distribution Channel. These Terms are between you and us only, and not with the Distribution Channel. To the extent that you utilize any other third-party products and services in connection with your use of the Shelf Platform, you agree to comply with all applicable terms of any agreement for such third-party products and services.
With respect to Software that is made available for your use in connection with an Apple-branded product (such Software, “Apple-Enabled Software”), in addition to the other terms and conditions set forth in these Terms, the following terms and conditions apply:

• Shelf Engine and you acknowledge that these Terms are concluded between Shelf Engine and you only, and not with Apple Inc. (“Apple”), and that as between Shelf Engine and Apple, Shelf Engine, not Apple, is solely responsible for the Apple-Enabled Software and the content thereof.
• You may not use the Apple-Enabled Software in any manner that is in violation of or inconsistent with the Usage Rules set forth for Apple-Enabled Software in, or otherwise be in conflict with, the App Store Terms of Service.
• Your license to use the Apple-Enabled Software is limited to a non-transferable license to use the Apple-Enabled Software on an iOS Product that you own or control, as permitted by the Usage Rules set forth in the App Store Terms of Service.
• Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Apple-Enabled Software.
• Apple is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Apple-Enabled Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software to you, if any; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Enabled Software, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, which will be Shelf Engine’ sole responsibility, to the extent it cannot be disclaimed under applicable law.
• Shelf Engine and you acknowledge that Shelf Engine, not Apple, is responsible for addressing any claims of you or any third party relating to the Apple-Enabled Software or your possession and/or use of that Apple-Enabled Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Enabled Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
• In the event of any third-party claim that the Apple-Enabled Software or the end-user’s possession and use of that Apple-Enabled Software infringes that third party’s intellectual property rights, as between Shelf Engine and Apple, Shelf Engine, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
• You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
• If you have any questions, complaints or claims with respect to the Apple-Enabled Software, they should be directed to Shelf Engine as follows at talk@www.shelfengine.com or by mail at:

Attn: Shelf Engine
1218 Third Ave, Suite 1010
Seattle, WA 98101

Shelf Engine and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms with respect to the Apple-Enabled Software, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you with respect to the Apple-Enabled Software as a third party beneficiary thereof.

6. Non-Disclosure and Confidentiality

Shelf Engine and you acknowledge and agree that, as a result of their dealings with each other, each party will have access to and will be making use of each other’s Confidential Information, and that this Confidential Information is of special, proprietary and unique economic value to each party. For purposes of this Agreement, the term “Confidential Information” shall include, without limitation, any and all data, documents and information that reveals or pertains to a party’s Products, processes, technology, concepts, techniques, designs, computer programs, software, scientific or technical know-how, trade secrets, inventions, copyrights, methods, and any business plans, customer lists, financial, marketing, sales, cost, statistical and other business data or information pertaining to a party’s businesses and operations by which a party’s existing and/or future products, services, applications and methods of operation are developed, manufactured, conducted and operated, as well as the means and methods of marketing such products, services, applications and methods of operations, and financial data and information relating to such products, services, applications and methods of operation (collectively and as to individual components thereof, the “Confidential Information”).

Shelf Engine and you agree to take reasonable precaution to protect each other’s Confidential Information, keep it confidential, and not disclose or use the other party’s Confidential Information or to disclose it to third parties except in accordance with the terms and conditions set forth in this Agreement. Each party agrees that during the Term of this Agreement and for a period of five (5) calendar years after the expiration or termination of this Agreement, each party will not, without the written consent of the other party, or its successors, shareholders or permitted assigns, disclose any such Confidential Information to any person, firm, third party, corporation, or other entity for any purpose whatsoever, or use such Confidential Information for any purpose not required or permitted by this Agreement.

The term “Confidential Information” does not include information which (i) is already or becomes generally available to the general public other than as a result of a breach or impermissible disclosure by the receiving party or its representatives; (ii) was available to the receiving party on a non-confidential basis prior to its disclosure by the disclosing party or its representatives; (iii) becomes available to the receiving party on a non-confidential basis from a source other than the disclosing party or its representatives, provided that such disclosing source is not bound by any confidentiality covenants, restrictions or related agreements with the disclosing party or its representatives or otherwise prohibited from transmitting the information to the receiving party by a contractual, legal or fiduciary obligation; or (iv) the receiving party is required to disclose pursuant to a valid order or subpoena issued by a governmental body of competent jurisdiction; provided, however, if the receiving party is called upon at any time to disclose any Confidential Information (“Process”), the receiving party shall provide the other party prompt written notice of such Process so that the other party may seek an appropriate protective order or take whatever steps it deems necessary.

7. Third Party Websites

The Shelf Platform may provide, or third parties may provide, links or other access to other sites and resources on the Internet. Shelf Engine has no control over such sites and resources and Shelf Engine is not responsible for and does not endorse such sites and resources. You further acknowledge and agree that Shelf Engine will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or resource. Any dealings you have with third parties found while using the Shelf Platform are between you and the third party, and you agree that Shelf Engine is not liable for any loss or claim that you may have against any such third party.

8. Indemnity

Users shall indemnify and shall hold harmless Shelf Engine (including any parent, affiliate, and subsidiary companies), upon its first demand, from and against any and all claims, demands, actions, suits, causes of action, damages, and expenses (including, but not limited to, expenses of investigation, settlement, litigation, and attorneys’ fees incurred in connection therewith) (“Losses”) that any third party (including any customer) makes, sustains, or brings against Shelf Engine (including any parent, affiliate, and subsidiary companies) or any of its customers to the extent resulting from or in connection with (1) User’s breach of this Agreement, (2) your conduct in using the Shelf Platform, including User’s interaction with others regardless of whether such interaction is related to use of the Shelf Platform, (3) act or omission by User or anyone on its behalf in connection with this Agreement or the Products (including, without limitation, those resulting from the growing, production, manufacture, packing, storage, use or consumption of the Products and/or related to defective Products); and/or (4) any claim for infringement, misappropriation or misuse of any intellectual property rights and/or industrial rights of any person with respect to the Products.

Shelf Engine shall indemnify and hold harmless Users (including any parent, affiliate, and subsidiary companies) from and against any and all Losses that any third party makes, sustains, or brings against Supplier (including any parent, affiliate, and subsidiary companies) to the extent resulting from or in connection a claim for infringement of intellectual property rights of any person with respect to the Shelf Platform or Software.

9. Disclaimer of Warranties

YOUR USE OF THE SHELF PLATFORM IS AT YOUR SOLE RISK. THE SHELF PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. SHELF ENGINE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

SHELF ENGINE MAKES NO WARRANTY THAT (I) THE SHELF PLATFORM WILL MEET YOUR REQUIREMENTS, (II) THE SHELF PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SHELF PLATFORM WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SHELF PLATFORM WILL MEET YOUR EXPECTATIONS.

10. Limitations of Liability

EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS, OR A BREACH OF CONFIDENTIALITY OR THE LICENSE RESTRICTIONS, UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL ANY PARTY BE LIABLE TO THE OTHER FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST CONTENT OR DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF A REPRESENTATIVE OF SUCH PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) EXCLUDING RETAILER PAYMENT OBLIGATIONS, ANY DIRECT DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY VENDOR OR RETAILER DURING THE TWELVE (12) MONTHS PRECEDING THE INCIDENT OR CLAIM.

11. Publicity

Shelf Engine may reasonably request that User give consent to participate in certain marketing activities from time to time, such consent not to be unreasonably withheld. User agrees that Shelf Engine may refer to User’s name and trademarks in Shelf Engine’s marketing materials and website; however, Shelf Engine will not use User’s name or trademarks in any other publicity (e.g., press releases, customer references and case studies) without User’s prior written consent (which may be by email).

12. Dispute Resolution by Binding Arbitration

a. Agreement to Arbitrate
This Dispute Resolution by Binding Arbitration section is referred to in this Terms of Service as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and Shelf Engine, whether arising out of or relating to this Terms of Service (including any alleged breach thereof), the Shelf Platform, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this Terms of Service, you and Shelf Engine are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.

b. Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND SHELF ENGINE AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND SHELF ENGINE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.

c. Pre-Arbitration Dispute Resolution
Shelf Engine is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at talk@ShelfEngine.com. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Shelf Engine should be sent to 1218 Third Ave, Suite 1010, Seattle, WA 98101 (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Shelf Engine and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Shelf Engine may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Shelf Engine or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Shelf Engine is entitled.

d. Arbitration Procedures
Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Consumer Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, http://www.adr.org/consumer_arbitration. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms of Service as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms of Service and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.

Unless Shelf Engine and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, Shelf Engine agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.

e. Costs of Arbitration
Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, Shelf Engine will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Shelf Engine will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Shelf Engine will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.

f. Confidentiality
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.

g. Severability
If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of the Terms of Service will continue to apply.

h. Future Changes to Arbitration Agreement
Notwithstanding any provision in this Terms of Service to the contrary, Shelf Engine agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Shelf Platform, you may reject any such change by sending Shelf Engine written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service).

13. Termination

You agree that Shelf Engine, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Shelf Platform and remove and discard any content within the Shelf Platform, for any reason, including, without limitation, for lack of use or if Shelf Engine believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Shelf Platform, may be referred to appropriate law enforcement authorities. Shelf Engine may also in its sole discretion and at any time discontinue providing the Shelf Platform, or any part thereof, with or without notice. You agree that any termination of your access to the Shelf Platform under any provision of this Terms of Service may be affected without prior notice and acknowledge and agree that Shelf Engine may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Shelf Platform. Further, you agree that Shelf Engine will not be liable to you or any third party for any termination of your access to the Shelf Platform.

In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

14. General

These Terms of Service constitute the entire agreement between you and Shelf Engine and govern your use of the Shelf Platform, superseding any prior agreements between you and Shelf Engine with respect to the Shelf Platform. You also may be subject to additional terms and conditions that may apply when you use affiliate or third-party services, third party content or third-party software. These Terms of Service will be governed by the laws of the State of Washington without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and Shelf Engine agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within King County. The failure of Shelf Engine to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Shelf Platform or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign this Terms of Service without the prior written consent of Shelf Engine, but Shelf Engine may assign or transfer this Terms of Service, in whole or in part, without restriction. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Shelf Platform may also provide notices to you of changes to these Terms of Service or other matters by displaying notices or links to notices generally on the Shelf Platform.

15. Your Privacy

At Shelf Engine, we respect the privacy of our users. For details, please see our Privacy Policy. By using the Shelf Platform, you consent to our collection and use of personal data as outlined therein. In addition, there may be instances in which Retailers or Vendors may want to share certain of their information related to Products or otherwise with other Retailers or Vendors, as applicable, to facilitate the Services. Shelf Engine will ask for your permission to share such data when applicable.

Notice for California Users
Under California Civil Code Section 1789.3, users of the Shelf Platform from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact us at:

Attn: Shelf Engine
1218 Third Ave, Suite 1010
Seattle, WA 98101