NetStores Test Drive Agreement
The NetStores Service ("NetStores" or the "Service"), owned
and operated by Fishbone Communications, Inc. ("NetStores") is
provided to you ("you" or "Merchant") under the terms and conditions
of this NetStores "Test Drive" Agreement and any operating rules
or policies (collectively, the "NTDA").
NetStores hosts interactive online stores on the World Wide
Web. The NetStores "Test Drive" Service ("Test Service") allows
Merchants to use the Test Service and "Test Drive" Software ("Test
Software") for thirty (30) calendar days for the sole purpose
of creating an online store ("Store or Storefront") and evaluating
NetStores Storefront online store services. Merchant shall not
sell any goods or services on or through the Test Service. Permission
to use the Test Service and Test Software shall expire at the
end of that thirty (30) day period.
BY COMPLETING THE TEST DRIVE REGISTRATION PROCESS AND CLICKING
THE "I ACCEPT" BUTTON, YOU AGREE TO BE BOUND BY THE NTDA. Nothing
in this agreement obligates NetStores or the Service to list,
link to, accept or otherwise host any online store anywhere on
the NetStores site.
Merchant acknowledges and agrees that it shall be responsible
for all goods and services offered at Merchants Storefront, all
materials used or displayed at the Storefront, and all acts or
omissions that occur at the Storefront. For a full description
of Merchants obligations, see NetStores' Terms of Service.
NetStores reserves the right to refuse to host or continue
to host any Storefront that offers goods or services or uses
or displays materials that are illegal, obscene, vulgar, offensive,
dangerous or are otherwise inappropriate as determined by NetStores
in its sole discretion.
Software License. NetStores hereby grants Merchant a non-exclusive,
non-transferable license to use the Software in object code form
only on a server controlled by NetStores for the sole purpose
of creating a "test drive" Storefront on such server. This license
expires thirty (30) days after the date of this agreement. Merchant
is not being granted any right to copy the Software or to use
it on computers other than a server controlled by NetStores.
Merchant may not use Web pages or parts of Web pages generated
by means of the Software, other than content that originates
from and is proprietary to Merchant, on any server other than
the servers controlled by NetStores without NetStores' express
Merchant shall not attempt to gain unauthorized access to any
servers controlled by NetStores.
Merchant shall receive a password from NetStores to provide
access to and use of the Test Software and Test Services. Merchant
is entirely responsible for any and all activities which occur
under Merchants account and password. Merchant agrees to keep
its password confidential, to allow no other person or company
to use its account, and to notify NetStores promptly if Merchant
has any reason to believe that the security of its account has
Merchant agrees to indemnify and hold harmless NetStores, and
its parents, subsidiaries, affiliates, officers, directors, shareholders,
employees and agents, from any claim or demand, including reasonable
attorneys fees, made by any third party due to or arising out
of Merchant's conduct, Merchants use of the Service, the goods
or services offered at Merchants Storefront, any alleged violation
of this agreement, or any alleged violation of any rights of
another, including but not limited to Merchants use of any content,
trademarks, service marks, trade names or other intellectual
property used in connection with Merchants Storefront. NetStores
reserves the right, at its own expense, to assume the exclusive
defense and control of any matter otherwise subject to indemnification
by Merchant, which shall not excuse Merchant's indemnity obligations.
DISCLAIMER OF WARRANTIES AND LIABILITIES
THE TEST SERVICE AND TEST SOFTWARE ARE PROVIDED ON AN "AS IS" AND "AS
AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS
OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. NEITHER
THIS AGREEMENT OR ANY DOCUMENTATION FURNISHED UNDER IT IS INTENDED
TO EXPRESS OR IMPLY ANY WARRANTY THAT THE TEST SERVICE WILL BE
UNINTERRUPTED, TIMELY OR ERROR-FREE OR THAT THE TEST SOFTWARE
WILL PROVIDE UNINTERRUPTED, TIMELY OR ERROR FREE SERVICE. THE
SECURITY MECHANISM INCORPORATED IN THE TEST SOFTWARE HAS INHERENT
LIMITATIONS AND MERCHANT MUST DETERMINE THAT THE SOFTWARE ADEQUATELY
MEETS ITS REQUIREMENTS.
MERCHANT ACKNOWLEDGES AND AGREES THAT ANY MATERIAL AND/OR DATA
DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE
IS DONE AT ITS OWN DISCRETION AND RISK AND THAT MERCHANT WILL
BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO ITS COMPUTER SYSTEM
OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL
NETSTORES, AND ITS PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS,
DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS, SHALL NOT BE LIABLE,
UNDER ANY CIRCUMSTANCES OR LEGAL THEORIES WHATSOEVER, FOR ANY
LOSS OF BUSINESS, PROFITS OR GOODWILL, LOSS OF USE OR DATA, INTERRUPTION
OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL
DAMAGES OF ANY CHARACTER, EVEN IF NETSTORES IS AWARE OF THE RISK
OF SUCH DAMAGES, THAT RESULT IN ANY WAY FROM MERCHANTS USE OR
INABILITY TO USE THE TEST SERVICE OR THE TEST SOFTWARE, OR THAT
RESULT FROM ERRORS, DEFECTS, OMISSIONS, DELAYS IN OPERATION OR
TRANSMISSION, OR ANY OTHER FAILURE OF PERFORMANCE OF TEST SERVICE
OR THE TEST SOFTWARE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES
OR LIABILITIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY
The NTDA and the relationship between Merchant and NetStores
shall be governed by the laws of the state of Oregon without
regard to its conflict of law provisions. Merchant and NetStores
agree to submit to the personal and exclusive jurisdiction of
the Superior Court of the State of Oregon for the County of Lane
or the United States District Court for the District of Oregon.
NetStores' failure to exercise or enforce any right or provision
of the NTDA shall not constitute a waiver of such right or provision.
If any provision of the NTDA 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 agree that the other provisions
of the NTDA remain in full force and effect. Merchant agrees
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 Service
or the NTDA must be filed within one (1) year after such claim
or cause of action arose or be forever barred.
The section titles in the NTDA are for convenience only and
have no legal or contractual effect.
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