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This Terms of Service Agreement ("Agreement") is entered into as of the date on which the Customer first uses the MyCommerce Services (as defined below) ("Effective Date") by and between MyCommerce ("MyCommerce") and Customer ("Customer").
ARTICLE 1 — GENERAL
1.1 Overview of Agreement. This Agreement represents the terms and conditions under which MyCommerce shall provide Customer access to and use of the MyCommerce Services package or packages subscribed to ("MyCommerce Services Package"), which may be amended from time to time to reflect additional or amended MyCommerce Services ordered by Customer. MyCommerce Services shall be provided to the Customer via the Internet. Additional services and/or deliverables may be procured consistent with the terms of this Agreement. Any attempt to alter or amend the terms and conditions contained in this Agreement through conflicting or inconsistent terms in any other document shall be void and of no force and effect.
ARTICLE 2 — MyCommerce SERVICES
2.1 Equipment. Customer will be responsible for procuring, at Customer's sole expense, all equipment or other software ( including licenses necessary to use currently-supported versions thereof) , if any, required to use MyCommerce Services. For such third party hardware or software, Customer shall only receive the manufacturer's warranty, if any, and shall receive no warranties from Licensor for any such third party hardware or software.
2.2 Access Rights. During the term of this Agreement, Customer will have a limited, revocable, non-transferable and non-exclusive license for Customer's employees ("Authorized Users") to use the MyCommerce Services Package and related documentation solely for Customer's business purposes consistent with the terms and conditions of this Agreement. MyCommerce will issue to one Authorized User ("MyCommerce Administrator") an individual logon identifier and password ("Administrator's Logon") for purposes of administering the MyCommerce Services Package. Customer acknowledges and agrees that only its MyCommerce Administrator shall be authorized to bind Customer in connection with any service provided to the Customer under this Agreement. Using Administrator's Logon, the MyCommerce Administrator shall assign each remaining Authorized User a unique logon identifier and password and assign and manage the business rules that control each such Authorized User's access to the MyCommerce Services Package. Customer shall use its reasonable efforts to see that each Authorized User will: (a) be responsible for the security and/or use of his or her logon identifier; (b) not disclose such logon identifier to any person or entity; (c) not permit any other person or entity to use his or her logon identifier; (d) use the MyCommerce Services Package consistent with the assigned business rules; and (e) use the MyCommerce Services Package in accordance with the terms and conditions of this Agreement. Customer will be responsible for: (f) advising each Authorized User of his or her obligations under this Agreement and of the license restrictions set forth in this Agreement; and (g) any and all costs and expenses incurred through the authorized use of Customer's Logon. MyCommerce reserves the right to deny, suspend or revoke access to the MyCommerce Services, in whole or in part, if MyCommerce believes Customer and/or its Authorized Users are in breach of this Agreement or are otherwise using or accessing the MyCommerce Services inconsistent with the terms and conditions of this Agreement.
2.3 Restrictions. The customer is expected to be familiar with and to practice good Internet etiquette ("Netiquette"). The customer will comply with the rules appropriate to any network to which MyCommerce may provide access. The customer should not post, transmit, or permit Internet access to information the customer desires to keep confidential. The customer is not permitted to post any material that is illegal, libelous, tortuous, indecently depicts children or is likely to result in retaliation against MyCommerce by offended users. MyCommerce reserves the right to refuse or terminate service at any time for violation of this section. This includes advertising services or sites via IRC or USENET in clear violation of the policies of the IRC channel or USENET group.
Customer agrees that Customer and its Authorized Users will not: (a) sell, lease, license or sublicense the MyCommerce Services; (b) modify, change, alter, translate, create derivative works from, reverse engineer, disassemble or decompile the MyCommerce Services in any way for any reason; (c) provide, disclose, divulge or make available to, or permit use of the MyCommerce Services by, any third party; (d) copy or reproduce all or any part of the MyCommerce Services (except as expressly provided for herein); (e) interfere, or attempt to interfere, with the MyCommerce Services in any way; (f) engage in spamming, mail bombing, spoofing or any other fraudulent, illegal or unauthorized use of the MyCommerce Services; (g) knowingly introduce into or transmit through the MyCommerce Services any virus, worm, trap door, back door, timer, clock, counter or other limiting routine, instruction or design; (h) remove, obscure or alter any copyright notice, trademarks or other proprietary rights notices affixed to or contained within the MyCommerce Services; or (i) engage in or allow any action involving the MyCommerce Services that is inconsistent with the terms and conditions of this Agreement.
2.4 Audit Rights. If a customer has PURCHASED the MyCommerce software or has obtained FTP access to the MyCommerce software, MyCommerce shall have the right, during the term of this Agreement and for a period of six (6) months thereafter, upon reasonable notice and at reasonable times, to access Customer's location and files to inspect Customer's use of the MyCommerce Services Package, as well as computers and equipment used in connection therewith. Customer shall cooperate fully with any such audit or inspection. In the event that any audit shows any misuse, violation or breach of the MyCommerce Services or this Agreement, MyCommerce shall be entitled to pursue any remedies available to it under this Agreement or otherwise at law or in equity.
2.5 Non-Exclusivity. The parties acknowledge and agree that MyCommerce is providing access to and use of the MyCommerce Services to multiple customers and that such services are non-exclusive.
2.6 Availability. MyCommerce shall use commercially reasonable efforts to keep the MyCommerce Services Package available for purchase on it's own website (http://mycommerce.tv) on a 24 hour a day, 7 day a week basis. MyCommerce is installed on a webserver of the Customer's choice over which MyCommerce has no control. MyCommerce shall not be liable to the Customer for failure of accessibility to the MyCommerce Services Package that is hosted on 3rd party web servers.
2.7 Monthly Support, Marketing and Maintenance Fee. This is a service provided by MyCommerce to Customer for a monthly charge of $85 and is payable every month Customer is using MyCommerce as its online business provider. The fee covers technical support as and when required by Customer for technical issues with their MyCommerce store and also covers marketing and promotional help and advice, software upgrades, database maintenance and security patches which will be applied as deemed neccessary to Customer's MyCommerce store by the MyCommerce Programming Team. Customer will be notified by e-mail of any upgrades or maintenance before work begins. Items not covered under technical support are:
* additional features and functionality
* breakages to the store caused by unauthorized editing of the core code or store database
Customer's electing not to sign up for the monthly fee (or choosing to withdraw from the monthly fee) will be billed and invoiced separately, on an individual case basis, for any technical support or marketing advice they require.
2.8 Images and Copy. Customer is responsible for supplying all product images, product descriptions and copy. MyCommerce will create the store categories and upload the first three products. The remaining stock is the responsibility of the Customer to upload.
2.9 Web/branding design integration. Customer's company branding, logos and colors or existing website design will be integrated into the MyCommerce default installation (http://mycommerce.tv/demo). Customer accepts that whilst cosmetic changes to page elements are permitted, the layout and structure of a MyCommerce store is set and that no changes to the layout or structure are allowed.
2.10 Additional features. Additional features or functionality not already included in the default MyCommerce installation can be built into the store by the MyCommerce Programming Team at the request of the Customer. Work on these features is charged at a rate of $45 per hour and will be estimated for separately at the time of request.
2.11 Customer agrees to the placement of a MyCommerce site credit and link on their store. Customers wishing to remove this can purchase the right to remove this line of code. Please contact us for more details.
ARTICLE 3 — FEES; PAYMENT TERMS
3.1 Monthly Support and Maintenance Fee. MyCommerce will collect the fee on the first business day of each month by direct debit following the store launch. Fee amounts are subject to change at any time, at MyCommerce's sole discretion. Customer shall pay all amounts due under any invoice to MyCommerce within thirty (30) calendar days of due date.
3.2 Late Payments. If Customer fails to pay any fees by the applicable due date, MyCommerce will have the right to: (a) assess late charges in an amount equal to the greater of five percent (5%) per month or the maximum allowable under applicable law; and/or (b) suspend access to any or all of the MyCommerce Product and Services and/or performance of the services provided by MyCommerce hereunder and/or terminate this Agreement. Any such suspension or termination will not relieve Customer from paying any outstanding fees plus interest and late charges. Customer will be responsible for any costs associated with collecting such fees including, without limitation, legal costs, attorneys' fees, court costs and collection agency fees.
ARTICLE 4 — LIMITED WARRANTIES
4.1 Customer Warranty. Customer represents and warrants to MyCommerce that: (a) Customer has the authority to enter into this Agreement and perform its obligations under this Agreement; (b) Customer and its Authorized Users will only use the MyCommerce Services for lawful purposes and will not violate any law of any country or the intellectual property rights of any third party; and (c) Customer warrants that it is not located in a country where export or re-export of the contents of information received via the Internet is prohibited. Should Customer receive notice of any claim regarding the MyCommerce Services, Customer shall promptly provide MyCommerce with a written notice of such claim.
4.2 MyCommerce Warranty. MyCommerce warrants that: (a) MyCommerce has the authority to enter into this Agreement and perform its obligations under this Agreement; and (b) MyCommerce will perform the services required under this Agreement in a professional and workmanlike manner.
4.3 Disclaimer. EXCEPT AS OTHERWISE SET FORTH HEREIN, MYCOMMERCE MAKES NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY REGARDING OR RELATING TO ANY OF THE SERVICES AND/OR ACCESS TO OR USE OF THE MyCommerce SERVICES PROVIDED to the Customer UNDER THIS AGREEMENT. MYCOMMERCE SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
ARTICLE 5 — LIMITATION OF LIABILITY
MYCOMMERCE'S LIABILITY UNDER THIS AGREEMENT FOR ANY DIRECT DAMAGES OF ANY KIND WILL NOT EXCEED AN AMOUNT EQUAL TO THE AMOUNT PAID BY CUSTOMER TO MYCOMMERCE THROUGH THE DATE MyCommerce'S LIABILITY to the Customer ACCRUES. IN NO EVENT SHALL MYCOMMERCE BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS.
ARTICLE 6 — INDEMNIFICATION
Customer agrees to indemnify, defend (at MyCommerce's sole option and at Customer's sole expense) and hold harmless MyCommerce, its managers, directors, officers, employees, independent contractors and agents, and defend any action brought against same with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys' fees, to the extent that such action is based upon a claim arising out of or relating to the Customer's use of and/or access to the MyCommerce Services or services provided hereunder, including but not limited to any claims arising out of the sale or offer for sale of any illegal, infringing, counterfeit products or services or any other misuse of the MyCommerce Services by Customer or its customers. Customer specifically acknowledges that MyCommerce shall not be liable to the Customer for losses, if any, incurred as a result of fraudulent or unauthorized misuse of MyCommerce Services.
ARTICLE 7 — CONFIDENTIAL INFORMATION
"Confidential Information" will include the terms of this Agreement, any software provided by MyCommerce under this Agreement, the logon identifiers and/or passwords provided to the Customer and each Authorized User, the prices and fees charged under this Agreement, any other materials marked confidential by Customer or MyCommerce and any other information conveyed under this Agreement that is identified in writing as confidential at the time of its conveyance. Each party acknowledges and agrees that: (a) the Confidential Information constitutes valuable trade secrets of the party owning such Confidential Information; (b) it will use Confidential Information solely in accordance with the provisions of this Agreement; and (c) it will not disclose, or permit to be disclosed, the Confidential Information of the other party to any third party without the disclosing party's prior written consent. Each party will take all reasonable precautions necessary to safeguard the confidentiality of the other party's Confidential Information including, at a minimum, those precautions taken by a party to protect its own Confidential Information, which will in no event be less than a reasonable degree of care. Confidential Information will not include information that is: (d) publicly available; (e) already in the other party's possession and not subject to a confidentiality obligation; (f) obtained by the other party from any source without any obligation of confidentiality; (g) independently developed by the other party without reference to the disclosing party's Confidential Information; or (h) required to be disclosed by order of a court or other governmental entity; provided no less than ten (10) days written notice is given to the party owning such Confidential Information so that such party may obtain a protective order or other equitable relief.
ARTICLE 8 — PROPRIETARY RIGHTS
No right (except for the license granted in Section 2.2), title or interest of intellectual property or other proprietary rights in and to the MyCommerce Services and/or other products or services made available under this Agreement is transferred to the Customer hereunder. MyCommerce and its Third Party Licensors retain all right, title and interests, including, without limitation, all copyright, trade secret, intellectual property and other proprietary rights in and to the MyCommerce Services and/or other products or services provided under this Agreement. Customer will retain all right, title and interest to the documents created by Customer using the MyCommerce Services, subject to any rights of MyCommerce in underlying works from which such documents were derived.
ARTICLE 9 — TERM AND TERMINATION
9.1 Cancellation Procedure. Customer is responsible for all MyCommerce Service charges up to and including the day client cancels MyCommerce Services.
Cancellation of store front software does not release client from any long term contracts that client might have signed with MyCommerce.
9.2 Term. This Agreement will commence as of the Effective Date and shall continue thereafter on a month to month basis unless terminated pursuant to Section 2.7.2, 9.2 or 9.3, OR UPON TELEPHONE NOTICE TO THE MYCOMMERCE BILLING DEPARTMENT. ANY EMAIL NOTICE WILL BE DISREGARDED. WRITTEN NOTICE MAY BE MAILED DIRECTLY TO MYCOMMERCE AT:
520 N Kings Road, #104
West Hollywood
CA, 90048
9.3 Termination by MyCommerce. MyCommerce shall have the right, upon written notice to the Customer, to terminate this Agreement if: (a) Customer fails to timely pay MyCommerce any amount due to MyCommerce under this Agreement; (b) Customer materially breaches any term or condition this Agreement, provided such breach is not cured by Customer within thirty (30) calendar days following MyCommerce's notice to the Customer of such breach; or (c) Customer (i) terminates or suspends its business activities; (ii) becomes insolvent, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority; or (iii) becomes subject to any bankruptcy or insolvency proceeding under federal or state statutes.
9.4 Termination by Customer. Customer will have the right, upon written notice to MyCommerce, to terminate this Agreement if MyCommerce is in material breach of this Agreement and MyCommerce fails to remedy such material breach within thirty (30) calendar days of its receipt of such written notice.
9.5 Obligations upon Termination or Expiration and Non-Renewal. Upon the expiration and non-renewal or termination of this Agreement for any reason: (a) Customer's access to, and use of, the MyCommerce Services will terminate; (b) Customer will return to MyCommerce any and all MyCommerce Services, equipment, software, documentation or other deliverables provided to the Customer by MyCommerce including any copies thereof held by Customer; (c) MyCommerce will deliver to the Customer all Customer documents and other materials (which may be obtained using MyCommerce's create export file function) stored by Customer on the MyCommerce Network; and (d) each party shall return any and all Confidential Information in its possession to the party that disclosed such Confidential Information and provide written verification of same.
9.6 Survival. Any provisions of this Agreement that by their nature should survive termination of this Agreement will survive termination of this Agreement, including but not limited to Section 2.4, and Articles 6, 7, and 8.
ARTICLE 10 — MISCELLANEOUS
10.1 Notices. Any written notice required or permitted to be delivered pursuant to this Agreement will be in writing and will be deemed delivered: (a) upon delivery if delivered in person; (b) three (3) business days after deposit in the United States mail, registered or certified mail, return receipt requested, postage prepaid; (c) upon transmission if sent via telecopier, with a confirmation copy sent via overnight mail; (d) one (1) business day after deposit with a national overnight courier, in each case addressed, in the case of Customer, the address listed in MyCommerce's records, or in the case of MyCommerce, to 1 Bronze Point, Suite 1C,, Belleville, Illinois 62226 (or to such other address as may be specified upon notice).
10.2 Assignment. Customer will not assign or otherwise transfer this Agreement, in whole or in part, nor delegate or subcontract any of its rights or obligations hereunder, without MyCommerce's prior written consent, which consent may be withheld, delayed or conditioned in MyCommerce's discretion. MyCommerce will have the right to assign this Agreement, in whole or in part, to a third party at any time upon written notice to the Customer.
10.3 Force Majeure. Neither party shall have any liability to the other or to third parties for any failure or delay in performing any obligation under this Agreement due to circumstances beyond its reasonable control including, without limitation, acts of God or nature, actions of the government, fires, floods, strikes, civil disturbances or terrorism, or power, communications, satellite or network failures.
10.4 Waiver. Any waiver or modification of this Agreement will not be effective unless executed in writing and signed by an authorized representative of MyCommerce and Customer. The parties expressly disclaim the right to claim the enforceability or effectiveness of: (a) any amendments to this Agreement that are not executed by an authorized representative of MyCommerce and Customer; (b) any oral modifications to this Agreement; and (c) any other amendments that are based on course of dealing, waiver, reliance, estoppel or similar legal theory. The parties expressly disclaim the right to enforce any rule of law that is contrary to the terms of this Section. The failure of either party to enforce, or the delay by either party in enforcing, any of its rights under this Agreement will not be deemed to be a waiver or modification by such party of any of its rights under this Agreement.
10.5 Severability. If any provision of this Agreement is held to be unenforceable, in whole or in part, such holding will not affect the validity of the other provisions of this Agreement, unless MyCommerce in good faith deems the unenforceable provision to be essential, in which case MyCommerce will have the right to terminate this Agreement in accordance with Section 10.2.
10.6 Public Announcements. Customer grants MyCommerce the right to use Customer's name in press releases, product brochures and financial reports indicating that Customer is a customer of MyCommerce. Customer grants the placement of a link to the MyCommerce website on its MyCommerce online store.
10.9 Governing Law; Jurisdiction; Dispute Resolution with Third Party Licensors. This Agreement will be interpreted and construed in accordance with the laws of the State of California , without regard to conflict of law principles. All disputes arising out of this Agreement shall be brought only in the district and federal courts located in or for Los Angeles, California. EACH PARTY CONSENTS TO THE EXCLUSIVE PERSONAL JURISDICTION AND VENUE OF THE COURTS, STATE AND FEDERAL, LOCATED IN OR FOR LOS ANGELES COUNTY, CALIFORNIA.
10.10 Non-solicitation. Customer acknowledges and agrees that the employees and consultants of MyCommerce are a valuable asset to MyCommerce and difficult to replace. Accordingly, Customer agrees that, during the term of this Agreement and for a period of twelve (12) months after the expiration and non-renewal or termination of this Agreement, Customer will not solicit or attempt to solicit any employee or consultant of MyCommerce.
10.12 System And Network Security. Violations of system or network security are prohibited, and may result in criminal and civil liability. MyCommerce may investigate incidents involving such violations and may involve and will cooperate with law enforcement if a criminal violation is suspected.
10.13 Copyright Infringement - Software Piracy Policy. The MyCommerce service may only be used for lawful purposes. Transmission, distribution, or storage of any information, data or material in violation of United States or state regulation or law, or by the common law, is prohibited. This includes, but is not limited to, material protected by copyright, trademark, trade secret, or other intellectual property rights.
10.14 Network Responsibility. Customers have a responsibility to use the MyCommerce service responsibly. This includes respecting the other customers of MyCommerce. MyCommerce reserves the right to suspend and or cancel service with any Customer who uses the MyCommerce service in such a way that adversely affects other MyCommerce customers. This includes but is not limited to:
* Attacking or attempting to gain unauthorized access to servers and services that belong to MyCommerce or its customers (i.e. computer hacking), and/or
* Participating in behavior, which result in reprisals that adversely effect the MyCommerce service or other customers' access to the MyCommerce service.
MyCommerce will react strongly to any use or attempted use of an Internet account or computer without the owner's authorization. Such attempts include, but are not limited to, "Internet Scanning" (tricking other people into releasing their passwords), password robbery, security hole scanning, port scanning, etc. Any unauthorized use of accounts or computers by a MyCommerce customer, whether or not the attacked account or computer belongs to MyCommerce, will result in severe action taken against the attacker. Possible actions include warnings, account suspension or cancellation, and civil or criminal legal action, depending on the seriousness of the attack. Any attempt to undermine or cause harm to a server, or customer, of MyCommerce is strictly prohibited.
10.15 Lawful Purpose. All services may be used for lawful purposes only. Transmission, storage, or presentation of any information, data or material in violation of any applicable law, regulation, or AUP is prohibited. This includes, but is not limited to: copyrighted material or material protected by trade secret and other statute or dissemination of harmful or fraudulent content.
Using any MyCommerce service or product for the purpose of participating in any activity dealing with subject matters that are prohibited under applicable law is prohibited.
Any conduct that constitutes harassment, fraud, stalking, abuse, or a violation of federal export restriction in connection with use of MyCommerce services or products is prohibited. Using the MyCommerce network to solicit the performance of any illegal activity is also prohibited, even if the activity itself is not performed. In addition, knowingly receiving or downloading a file that cannot be legally distributed, even without the act of distribution, is prohibited.
10.16 Headings . The headings used herein are for reference and convenience only and shall not enter into the interpretation hereof.
10.17 Entire Agreement. This Agreement contains the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter.
Trademark and Copyright Legal Notices
MyCommerce and the MyCommerce logo are registered trademarks MyCommerce.
Other brands or product names are trademarks or service marks of their respective owners, should be treated as such, and may be registered in various jurisdictions.
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