NetStores' Terms of
1.0 ACKNOWLEDGMENT AND ACCEPTANCE OF SERVICE AGREEMENT
The NetStores service ("NetStores" or the "Service"),
owned and operated by Fishbone Communications, Inc. (NetStores or Fishbone
Communications, Inc.) is provided to you ("you" or "Merchant") under
the terms and conditions of this NetStores Merchant Service Agreement
and any amendments thereto and any operating rules or policies (collectively,
the "NMSA" or "Agreement"). NetStores reserves the right, in its sole
discretion, to change, modify, add or remove all or part of the NMSA
at any time. Merchant will receive notice of such changes and/or modifications
pursuant to Section 14 regarding notices.
- 1.1 By accepting the terms and conditions
of the NMSA, Merchant (a) represents and warrants that he or she
is 18 years old or older; (b) agrees to provide true, accurate, current
and complete information about Merchant as prompted by the Account
Registration Form; and (c) agrees to maintain and update this information
to keep it true, accurate, current and complete. If any information
provided by Merchant is untrue, inaccurate, not current or incomplete,
NetStores has the right to terminate Merchants account and refuse
any and all current or future use of the Service.
- 1.2 BY COMPLETING THE ACCOUNT
REGISTRATION PROCESS AND CLICKING THE "I ACCEPT" BUTTON, YOU
AGREE TO BE BOUND BY THE NMSA. Nothing in this agreement
obligates NetStores or the Service to list, link to, accept or
otherwise host any online Storefront anywhere on the NetStores
site. If these terms and conditions or any future changes are
unacceptable to you, you may cancel your account pursuant to
Section 7.1 regarding termination of service.
2.0 DESCRIPTION OF NETSTORES STORE
SERVICE NetStores hosts interactive online stores ("Store or Storefront")
on the World Wide Web and provides merchants with access to its NetStores
Software ("Software") to facilitate the creation and maintenance of
Stores for the sale of goods and services located at www.netstores.com
("Online Storefront Services"). 3.0 MERCHANT'S OBLIGATIONS
- 3.1 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 or in connection
with Merchant's account or password. Certain Stores may be subject
to additional requirements.
3.1.1 Merchant agrees to display
in the Storefront Merchant's contact information, including but not
limited to Merchant's company name, address, telephone number, fax
number and e-mail address. Merchant also agrees to update such information
to keep it true, accurate, current and complete.
3.1.2 Merchant represents and
warrants that it has full power and authority under all relevant
laws and regulations:
3.1.3 Merchant represents and warrants
that it will not engage in any activities:
- that constitute or encourage
a violation of any applicable law or regulation, including
but not limited to the sale of illegal goods or the violation
of export control or obscenity laws;
that defame, impersonate or
invade the privacy of any third party or entity;
that infringe the rights of
any third party, including but not limited to the intellectual
property, business, contractual, or fiduciary rights of others;
- that are in any way connected
with the transmission of "junk mail" "spam" or the unsolicited
mass distribution of e-mail, or with any unethical marketing
- 3.2 NetStores reserves the right
to refuse to host or continue to host any Storefront which it believes,
in its sole discretion: (1) offers for sale goods or services,
or uses or displays materials, that are illegal, obscene, vulgar,
offensive, dangerous, or are otherwise inappropriate; (2) has substantially
changed its Storefront from the time it was accepted; (3) received
a significant number of complaints for failing to be reasonably
accessible to customers or timely fulfill customer orders; (4)
has become the subject of a government complaint or investigation;
or (5) has violated or threatens to violate the letter or spirit
of the NMSA.
4.0 PROPRIETARY RIGHTS
- 4.1 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 and maintaining Stores on such server.
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 written agreement.
Merchant also acknowledges and agrees that the Software is intended
for access and use by means of web browsing software, and that NetStores
does not commit to support any particular browsing platform. NetStores
reserves the right at any time to revise and modify the Software,
release subsequent versions thereof and to alter features, specifications,
capabilities, functions, and other characteristics of the Software,
without notice to Merchant. If any revision or modification to the
Software materially changes Merchants ability to conduct business,
Merchants sole remedy is to terminate the NMSA pursuant to Section
7.1 regarding termination of service.
4.2 NetStores Intellectual Property.
Merchant acknowledges and agrees that content available from NetStores
or the Service, including but not limited to text, software, music,
sound, logos, trademarks, service marks, photographs, graphics, or
video, is protected by copyright, trademark, patent, or other proprietary
rights and laws, and may not be used in any manner other than as
specified in Section 4.1 above. .
4.3 Merchant's Property. Merchant
agrees that by using the Service, Merchant grants NetStores, and
its successors and assigns, a non-exclusive, worldwide, royalty-free,
perpetual, non-revocable license under Merchants copyrights or other
intellectual property rights, if any, in such material to use, distribute,
display, reproduce, and create derivative works from such material
in any and all media, for purposes of promoting NetStores or NetStores
generally or Merchants Storefront in particular. Merchant also grants
NetStores the right to maintain such content on NetStores' servers
during the term of the NMSA and to authorize the downloading and
printing of such material, or any portion thereof, by endusers for
their personal use.
- 4.4 Unauthorized Access. Merchant
shall not attempt to gain unauthorized access to any servers controlled
- 5.1 Merchant shall pay NetStores
a monthly fee as set forth in the NetStores fee schedule available
at http://www.netstores.com/prods.html and
made a part hereof. All such fees are payable in U.S. dollars to
NetStores and shall be charged on the first day of each month to
the credit card number given to NetStores at the time of registration
or to such other credit card number which Merchant shall so designate.
NetStores may also, upon 30 days prior notice to Merchant, alter
its fee schedules and terms of the NMSA.
- 6.1 Term. The term of the NMSA shall
begin on the date Merchant purchases the Service through online payment
method or faxed agreement and continue for 180 days. The term shall
automatically renew for successive 180 day terms at renewal rates
applicable at the time, unless notice of non-renewal is provided
in accordance with Section 6.2, below; provided, however, that to
qualify for each renewal Merchant must at the time of renewal be
in substantial compliance with the material terms and conditions
of the NMSA. NetStores shall have the right, but not the obligation,
to review any Storefront for compliance with the NMSA as part of
the renewal process, or at any time.
- 6.2 Non-Renewal. Either party,
in its sole and absolute discretion, may give notice of nonrenewal
with or without cause and without stating any reason therefor.
Any notice of nonrenewal must be given at least thirty (30) days
prior to the end of the term then in effect and in the manner described
in Section 14 regarding notice.
- 7.1 Termination. Either party
may terminate the NMSA on thirty (30) days notice if the other
party has materially breached or is otherwise not in compliance
with any provision of the NMSA, and such breach or noncompliance
is not cured within such thirty (30) day period. NetStores reserves
the right to immediately suspend any customer access to the Storefront
until such breach or noncompliance is cured.
7.2 Termination for Illegal or Other
Activity. Notwithstanding the foregoing, NetStores may, but has no
duty to, immediately terminate Merchant and remove it from NetStores
servers if NetStores in its sole discretion concludes that Merchant
is engaged in illegal activities or the sale of illegal or harmful
goods or services, or is engaged in activities or sales that may
damage the rights of NetStores or others. Any termination under this
Section 7.2 shall take effect immediately and Merchant expressly
agrees that it shall not have any opportunity to cure.
7.3 Waiver. Merchant expressly
waives any statutory or other legal protection in conflict with the
provisions of this Section 7.
7.4 Deletion of Information. Upon
termination, NetStores reserves the right to delete from its servers
any and all information contained in Merchants account, including
but not limited to order processing information, mailing lists, and
any Web pages generated by the Software.
- 7.5 The provisions of Section
4 (Proprietary Rights), Section 10 (Indemnity), and Section 11
(Disclaimer of Warranties and Liabilities) of this Agreement
shall survive any termination of the Agreement.
8.0 MERCHANT PRIVACY
- 8.1 Merchant Information. NetStores
maintains information about Merchant and the Storefront on NetStores
servers, including but not limited to Merchants account registration
information, Merchant's customer order information, sales information,
and transaction data ("Merchant Information"). Merchant agrees
that NetStores may use Merchant Information in aggregate form for
marketing or other promotional purposes.
8.1.1 Merchant agrees that NetStores
may disclose Merchant Information in the good faith belief that such
action is reasonably necessary: (a) to comply with the law; (b) to
comply with legal process; (c) to enforce the NMSA; (d) to respond
to claims that the Merchant or Storefront is engaged in activities
that violate the rights of third parties; or (e) to protect the rights
or interests of NetStores, NetStores or others; provided, however,
that nothing in this section shall impose a duty on NetStores to
make any such disclosures.
8.1.2 Merchant agrees that NetStores
may delete customer credit card information from NetStores servers
14 days after Merchant retrieves such information, and may delete
all other Merchant Information from NetStores servers at the end
of each calendar year.
8.2 Password. Merchant shall receive
a password from NetStores to provide access to and use of the Software
and Online Storefront 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 been compromised.
- 8.3 Technical Access. Merchant
acknowledges and agrees that technical processing of Merchant
Information is and may be required: (a) for the Service to function;
(b) to conform to the technical requirements of connecting networks;
(c) to conform to the technical requirements of the Service;
or (d) to conform to other, similar technical requirements. Merchant
also acknowledges and agrees that NetStores may access Merchant's
account and its contents as necessary to identify or resolve
technical problems or respond to complaints about the Service.
9.0 MAINTENANCE AND SUPPORT
- 9.1 Merchant can obtain assistance
with any technical difficulty that may arise in connection with
Merchant's utilization of the Software or Online Storefront Services
by requesting assistance by email to email@example.com.
NetStores reserves the right to establish limitations on the extent
of such support, and the hours at which it is available.
- 9.2 Merchant is responsible
for obtaining and maintaining all telephone, computer hardware
and other equipment needed for its access to and use of the Software
and Online Storefront Services and Merchant shall be responsible
for all charges related thereto.
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 Merchants conduct, Merchants
use of the Service, the goods or services offered at Merchants Storefront,
any alleged violation of the NMSA, or any alleged violation of any
rights of another, including but not limited to Merchants use of
any content, trademarks, service marks, trade names, copyrighted
or patented material, 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, but doing so shall
not excuse Merchants indemnity obligations.
11.0 DISCLAIMER OF WARRANTIES
THE SERVICE AND 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 ONLINE STOREFRONT SERVICES WILL BE UNINTERRUPTED,
TIMELY OR ERROR-FREE OR THAT THE SOFTWARE WILL PROVIDE UNINTERRUPTED, TIMELY
OR ERROR FREE SERVICE. THE SECURITY MECHANISM INCORPORATED IN THE 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
AND/OR DATA. 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 ONLINE STOREFRONT SERVICES OR THE SOFTWARE,
OR THAT RESULT FROM ERRORS, DEFECTS, OMISSIONS, DELAYS IN OPERATION
OR TRANSMISSION, OR ANY OTHER FAILURE OF PERFORMANCE OF THE ONLINE
STOREFRONT SERVICES OR THE SOFTWARE. NetStores' LIABILITY TO MERCHANT
SHALL NOT, FOR ANY REASON, EXCEED THE AGGREGATE PAYMENTS ACTUALLY
MADE BY MERCHANT TO NETSTORES OVER THE COURSE OF THE EXISTING TERM.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES
OR LIABILITIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO
12.0 NO RESALE OR ASSIGNMENT OF SERVICE
agrees not to resell or assign or otherwise transfer its rights or
obligations under the NMSA without the express written authorization
13.0 FORCE MAJEURE
Neither party shall be
liable to the other for any delay or failure in performance under
the NMSA resulting directly or indirectly from acts of nature or
causes beyond its reasonable control.
Any notices or communications
under the NMSA shall be by electronic mail or in writing and shall
be deemed delivered upon receipt to the party to whom such communication
is directed, at the addresses specified below. If to NetStores, such
notices shall be addressed to support.netstores.com or
NetStores, c/o Fishbone Communications, Inc, 1462 W. 8th Ave,
Eugene, OR, 97402, USA. If to Merchant, such notices shall
be addressed to the electronic or mailing address specified when
Merchant opens an account with NetStores, or such other address
as either party may give the other by notice as provided above.
15.0 ENTIRE AGREEMENT
The NMSA constitutes
the entire agreement between the parties with respect to the subject
matter hereof and supersedes all previous proposals, both oral and
written, negotiations, representations, writings and all other communications
between the parties.
The NMSA 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 State of Oregon. NetStores' failure to exercise
or enforce any right or provision of the NMSA shall not
constitute a waiver of such right or provision. If any provision
of the NMSA 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 NMSA
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 NMSA
must be filed within one (1) year after such claim or cause of
action arose, or be forever barred. The section titles in the NMSA
are for convenience only and have
no legal or contractual effect.
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