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 written agreement.
Merchant shall not attempt to gain unauthorized access to any servers controlled by NetStores.
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 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 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 TO YOU.
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
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