Terms of Service
- The Company reserves the right, in its sole discretion, to change, modify, add, or remove all or part of this Agreement, including any applicable fee, Policy, or guideline, at any time without notice or acceptance by You. Regardless of whether the Company has provided You individual notice, Your continued use of the Service following the Company's notice or posting of changed terms will constitute Your acceptance of such changes. It is Your responsibility to check regularly for changes to the Agreement. IF YOU DO NOT ACCEPT AND AGREE TO THIS AGREEMENT, INCLUDING ANY POLICY, DO NOT USE THE SERVICES.
- Certain Services that You purchase or receive from the Company may be provided by one or more third-party vendors, contractors, or affiliates ("Third Party Vendor") selected by the Company or by You, and You are subject to additional terms between You and such Third Party Vendor for Your use of their services. It is Your responsibility to regularly review the terms between You and such Third Party Vendor and Your breach of such terms will be deemed a breach of this Agreement. You agree that the Company makes such services available "as is" and the Company has no liability arising from or relating to Your use of services provided by a Third Party Vendor. The Company does not endorse, authorize, or sponsor any Third Party Vendor, such Third Party Vendor’s website, content, information, products or services.
- By signing up for or using the Services You: (i) agree to be bound by this Agreement; (ii) represent and warrant that, if You are an individual, You are of the age of majority in Your province or territory of residence or, if You are signing up for Services on behalf of an entity, that You have the legal authority to bind that entity and that such entity is a corporation, partnership, or other legal entity duly formed (and incorporated if applicable) in good standing where required to do business with all legal authority and power to accept this Agreement; (iii) agree to provide accurate, current, and complete information in the registration form, including billing and payment-related information and other account information (all together, the "Account Information"), and agree to maintain and update all Account Information to keep it true, accurate, current, and complete; (iv) agree that if You are signing up for Services on behalf of Your employer, Your employer will be the Account Owner; and (v) represent and warrant that You have the power and authority to enter into and perform under this Agreement. If You are a third party accessing an account(s) on behalf of an Account Owner (e.g., as an administrator, consultant, analyst, etc.), You agree that these Terms apply to Your activities on behalf of such Account Owner. Notwithstanding the foregoing, You are fully responsible for all activities under Your account, whether authorized by You or not. You hereby waive any applicable rights to require an original, non-electronic, signature or delivery or retention of non-electronic records, to the extent not prohibited under applicable law.
- The Company reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. You agree that the Company shall not be liable to You or to any third party for any modification, suspension, or discontinuance of any Service.
- Except for the rights expressly granted herein, this Agreement does not transfer from the Company to You any technology developed, licensed, or owned by the Company, and all rights, title, and interest in and to such technology will remain solely with the Company. The Company and You each agree that neither we nor You will, directly or indirectly, reverse engineer, decompile, disassemble, or otherwise attempt to derive source code or other trade secrets from the other party.
- Notwithstanding anything to the contrary in this Agreement, You will not attempt to prohibit or enjoin the Company at any time from utilizing any skills or knowledge of a general nature acquired during the course of providing the Services, including from information publicly known or available or that could reasonably be acquired in similar work performed for another customer of the Company.
- You will not use the Company's name, trademarks, brand names, or any language, pictures, or symbols that could, in our sole discretion, imply the Company's identity in any (i) written or oral advertising or presentation, or (ii) brochure, newsletter, or other written material, without the Company's prior written consent. You agree that all press releases and other public announcements related to this Agreement and the Services, including the method and timing of such announcements, must be approved in advance by us in writing. Any violation of this Section 2 will be a material breach of this Agreement.
OWNERSHIP AND SECURITY
You are required to create a password to access and use the Services, and You agree to keep Your password confidential. You are entirely responsible for maintaining the security of Your account, and You are fully responsible for all activities that occur under Your account and password, and any other actions taken in connection with any Service You use, access or allow others to use or access. You agree to immediately notify the Company of any unauthorized use of the Service or any other breach of security. The Company cannot and will not be liable for any loss or damage from Your failure to comply with this security obligation. You agree that under no circumstances will the Company be liable, in any way, for any acts or omissions by You or any user of Your Service to whom You gave access, including any damages of any kind incurred as a result of such acts or omissions.
- You will pay all fees due according to the prices and terms applicable to Your Services, including all optional or additional features that You select. All setup fees and non-recurring charges, along with the recurring charges for the Initial Term, are due and payable upon initiation of the Service. Thereafter, recurring fees will be charged in advance to Your selected payment method. If Your selected payment method is invalid or You are otherwise past due in Your payments for any reason, the Service and other Services in the same order may be terminated without notice. Reactivation of the Service, if possible, after termination or cancellation for any reason will require the payment of additional fees. If You fail to pay fees when due, the Company may assign unpaid late balances to a collection agency for appropriate action without notice to You. If legal action is necessary to collect on fees due, You agree to reimburse the Company for all expenses to recover fees due, including legal fees and other legal expenses and all current charges for the Services as well as taxes and fees assessed against You or the Company on the charges and all late payments, interest, or other fees stated on Your bill. The Company may modify its billing practices or late payment charges by providing You with prior written notice (email sufficient) of the modification. The Company, in its discretion, may offer discounts or special offers from time to time.
- The Company will calculate all fees. See the Company’s website(s) to find current pricing for each Service. If You are an existing customer, log in to Your account to see Your fees and payment schedule. The Company may, upon notice required by applicable laws, at any time change the amount of, or basis for, determining any fee or charge or institute new fees or charges with respect to the Services. Upon renewal of the Term of the Services, the prices charged may be changed without notice to the then prevailing price for the Services.
- You will be charged the applicable fees for the Service(s) You select. If You are a Merchant Solutions or Stores customer, You will be charged, as applicable, (i) a one-time setup fee, (ii) a subscription fee, and (iii) transaction fees equal to a percentage of the Total Revenue, with payments due the next month after the calendar month to which the transaction fee applies. "Total Revenue" means the total dollar amount, excluding shipping and handling charges and any applicable taxes, of all transactions conducted through Your Store. You may be entitled to exclude from Total Revenue those transactions conducted through Your Store that are canceled or for which no products are shipped to the purchaser ("Excluded Transactions"), except that You must identify a transaction as an Excluded Transaction within 90 days from the date on which the transaction was originally conducted in order for it to be eligible for exclusion. The Company is entitled to audit Your records relating to Total Revenue, including Excluded Transactions, including by contacting the purchaser to confirm that a transaction is an Excluded Transaction.
- You can upgrade or downgrade between Services at any time. Upgrades and downgrades will take effect immediately. You will be automatically charged, via the payment method You provided, all fees based upon Your upgrade or downgrade. If You are due a refund, the amounts will be credited and refunded to You. If You change from one Service with a non- annual term to another with a non-annual term, Your payment method will be charged a pro-rata amount for the upgraded Service and credited a pro-rata amount for the unused previous Service. If You change from a Service with a non-annual term to a Service with an annual or multi-year term, Your payment method will be charged for the entire new term and credited a pro-rata amount for the unused non-annual Service. Both the refund and charge will be based on the number of days remaining in Your Term. The Term and anniversary date may change if You change from a non-annual Service to an annual or multi-year Service, or from an annual or multi-year Service to a non-annual Service. You may also be charged, as applicable, an upgrade or downgrade fee. Fees may not be credited towards other Services.
- To modify the frequency for recurring payment for any Service (e.g., convert from annual to monthly recurring fee), sign in to Your account, go to the "My Services" tab, and click on "Change Plan."
- You shall pay or be responsible for all federal, provincial, or local sales, use, excise, value added, gross receipts, municipal fees, transfer, transaction, property, or similar taxes, fees, or surcharges ("Tax") imposed on, or with respect to, the Services under this Agreement. In addition, You are responsible for charging and collecting from Your end-user customers all applicable taxes. You and not the Company are liable for any uncollected tax and any interest and penalty assessed thereon.
- Term. The initial term of Your Services starts on the first date that You register with the Company or use any Service, including by visiting any of our websites, and will remain in effect for the period of time corresponding to the plan You selected ("Initial Term"). At the end of the Initial Term, Your Service will automatically renew on a recurring basis for the same period of time as the Initial Term (a "Renewal Term") unless You cancel in accordance with Section 5(b). The "Term" means the Initial Term and all Renewal Terms, if any. If You do not cancel prior to the start of a Renewal Term, You agree to renew Your subscription for the Renewal Term, and Your Service will be renewed at the then- current rates and fees. Except as set forth in this Agreement, neither party will be liable to the other for any termination or expiration of any Service or this Agreement in accordance with its terms.
- Cancellation/Termination by You. You may cancel Your Service and terminate this Agreement at any time. To cancel any Service, You must either sign in to Your account, go to the My Services tab, and follow the instructions, or contact us and speak to a live representative. If You are using a Commerce Central Service, (a) You may terminate Your use of any "app" by going to Your Dashboard or the "app" settings, and (b) to terminate Your account You must contact us and speak to a live representative. Mail, voicemail, email, or other notification will NOT be accepted for cancellation. An early termination fee may apply. Any cancellation will be effective at the end of the then-current Term, and You remain responsible for all fees accrued on Your account until such time. No refund will be provided for any payments You have made for any Service. After cancellation is effective, You will no longer have access to Your Services and all information and Content contained therein may be deleted by the Company.
- Termination by the Company. We may terminate this Agreement or any of the Services at any time, for any reason, upon notice to You. The Company may, but has no duty to, immediately suspend or terminate Your Service, terminate Your access and password, remove Your Service from the Company's servers, or remove any information or data within the Service, if the Company concludes, in its sole discretion, that You (a) have breached this Agreement, or any applicable law or regulation; (b) have provided false information as part of Your registration; (c) have failed to keep Your account information complete, true, and accurate; (d) are engaged in fraudulent or illegal activities or the sale of illegal or harmful goods or services; (e) are engaged in activities or sales that may damage the rights or reputation of the Company or others; (f) have caused a significant number of complaints for failing to be reasonably accessible to customers or timely fulfill customer orders; or (g) have become the subject of a government complaint or investigation (each "Termination for Cause"). Any Termination for Cause by the Company will take effect immediately, and You expressly agree that You will not have any opportunity to cure. If the Yahoo ID associated with Your Business Mail Services is terminated by Yahoo for any reason, this Agreement and Your access to the other Services may also be terminated. If You registered a new domain name in conjunction with Your Service, and the Company terminates Your Service due to a Termination for Cause, then the Company reserves the right to request the domain name provider to remove the domain name from the domain name registry and/or transfer the domain name from You to the Company. You acknowledge that if the Company transfers such domain name to the Company, the Company will hold all rights of the registered domain name holder in respect of that domain name, including the right to sell the domain name to a third party.
- Termination: Legal Event. If a ruling, regulation, or order issued by a judicial, legislative, or regulatory body causes the Company to believe that this Agreement and/or any Service may be in conflict with such rules, regulations, and/or orders, the Company may suspend or terminate the Service or this Agreement without liability.
- Effect of Termination of Services. Upon any cancellation or termination of a Service, including for past due payments, the Company reserves the right to permanently delete from its servers all information and Content contained in Your account or Service, including order processing information, mailing lists, files, email, and any websites generated by You or the Service. The Company accepts no liability for such deleted information or Content. Upon termination of the Service, You are solely responsible for all domain name renewals, ongoing fees, and removing the Company as the billing, technical contact, and name server in connection with Your domain name, unless the Company notifies You otherwise. If You do not redelegate or transfer Your domain after any cancellation or termination of Your Service, Your domain registration will expire and the Company may, at our discretion, assume the domain registration for our own account, delete it, or sell it to a third party. You agree that Your right and interest in a domain name ceases upon its expiration, and that any expired domain name may be made available for registration by a third party. All sections of the Agreement which by their nature should survive termination will survive termination, including warranty disclaimers and limitations of liability.
- Responsibility for Fees. If the Company suspends a portion of Your Services due to a violation by You of this Agreement or any law, regulation, or Policy, You will remain liable for all fees applicable to the Service as a whole. If the Company terminates Your Services, You are liable for the payment of all fees applicable to the Services up to the date of termination, in addition to any early termination fees.
- Waiver. You expressly waive any statutory or other legal protection in conflict with the provisions of this Section 5.
Representations and Warranties. You represent and warrant that:
- You have full power and authority under all relevant laws and regulations: (a) to offer and sell the goods, products and services You offer or make available via the Services, including holding all necessary licenses from all applicable jurisdictions to engage in the advertising and sale of such goods, products, and services; (b) to copy and display the Content You use or display on, in or through the Services; and (c) to provide for credit card payment and delivery of such goods, products, or services;
- You are solely responsible for all goods, products, and services offered at and sold through or in connection with Your use of the Services and all Content used or displayed by You in or through the Services, and all acts or omissions that occur at, on or in connection with Your use of the Services, including all customer service, order fulfillment, and returns;
- in connection with the Services You use, You will display, and update as necessary, Your contact information, including Your company name, address, telephone number, fax number, and email address;
- You will comply with all applicable laws, rules, regulations, and orders;
- You will comply with the export, re-export, and import laws and regulations of Canada, the United States and other applicable countries where You operate or do business, including the United States Export Administration Regulations, the antiboycott rules, and the Office of Foreign Assets Control regulations;
- You will not use the Service to directly or indirectly conduct, promote, or facilitate business in countries and/or with nationals or members of governments that are subject to Canadian or U.S. embargoes or trade sanctions and You are responsible for complying with any updates and revisions that the governments of Canada or the United States make to their lists of prohibited export destinations;
- You are not a party identified on any government export exclusion lists nor using the Service to conduct business with a party identified on such lists, including but not limited to the U.S. Denied Persons, Entity, and Specially Designated Nationals Lists; and
- You will not use the Service to export items, Content, or materials to or for prohibited parties, countries, end users, or end uses, including to military, nuclear, missile, chemical, biological weaponry, and other prohibited activities, as identified in U.S. and other applicable export and import laws and regulations.
Prohibited Uses. You agree that You will not use the Services to, and shall not upload, post, transmit, email, store, sell, or otherwise make available any Content, information, or data on or through any of the Services which, in the sole judgment of the Company:
- is in violation of any local, provincial, federal, or foreign law or regulation;
- violates any copyright, trade secret, patent, or other intellectual property right of any person or entity;
- is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically, or otherwise objectionable;
- harms or depicts, describes or encourages harm to minors in any way;
- impersonates any person or entity, or host, or falsely states or otherwise misrepresents Your affiliation with a person or entity;
- forges headers or otherwise manipulates identifiers in order to disguise the origin of any content transmitted through the Service;
- You do not have a right to make available under any contractual or fiduciary relationship;
- any unsolicited or unauthorized advertising, promotional materials, "junk mail," "chain letters," "pyramid schemes," or any other unauthorized form of solicitation;
- email, transmit, or otherwise make available any commercial electronic messages, or install or cause to be installed any application, software or other computer program, in any manner inconsistent with applicable anti-spam laws and regulations;
- contains software viruses or any other code, files, or programs designed to interrupt, destroy, or limit the functionality of any software or hardware;
- interferes with or disrupts the Service or servers or networks connected to the Service, or disobeys any requirements, procedures, policies, or regulations of networks connected to the Service;
- intentionally or unintentionally violates, attempts to violate, or avoids any applicable ICANN regulation or policy;
- provides material support or resources (or conceals or disguises the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States or Canadian government as a foreign terrorist organization;
- "stalks" or otherwise harasses a person or entity;
- collects, transmits, or stores personal or financial data about any person or entity, other than in accordance with this Agreement herein;
- promotes or provides instructional information about illegal activities, promotes physical harm or injury against any group or individual, or promotes any act of cruelty to animals;
- creates a home page (or directory) as storage for remote loading or as a door or signpost to another home page; or
- collects, transmits, or stores any type of adult, mature, or sexually explicit content.
- The Company reserves the right to investigate You, Your business, and/or Your owners, officers, directors, managers, and other principals, Your websites, and the materials comprising such websites at any time to ensure Your compliance with this Agreement.
- Abusive User Behavior. The Company uses certain confidential internal and third- party tools and techniques to protect users from abusive and other harmful behavior on the Internet and on the Company's servers. The Company reserves the right to take any action it deems necessary in its sole discretion, including terminating or suspending the Services and Your account, to protect against such abusive or harmful behavior. The Company updates these tools, techniques, and practices from time to time as the abusive practices and industry standards change. The Company is not responsible or liable for any loss or damage of any sort incurred by You, or any third party, as the result of the Company taking or not taking any actions in response to any actual or perceived abusive user behavior.
Content and Licenses to the Company.
- You understand that all information, data, text, software, music, sound, photographs, graphics, video, messages, goods, products, services, links to other websites or resources, and other materials including Your name, trade names, trademarks, and Service marks ("Content"), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated. This means that You, and not the Company, are entirely responsible for all Content that You upload, post, transmit, or otherwise make available via the Service. The Content must comply with this Agreement, including the Policies, and all applicable laws and regulations.
- The Company does not claim ownership of the Content You place on, or submit to or through, the Services. By displaying Content on or submitting Content to the Company for inclusion on the Services, You grant the Company, its affiliates, Third Party Vendors, contractors and each of their successors and assignees, a worldwide, royalty-free, paid-up, transferable, perpetual, irrevocable and nonexclusive right and license to use, distribute, display, reproduce, publish, perform, syndicate, sublicense, and create derivative works from such Content in connection with Your use of the Services and in any and all media and display in any manner, including for promoting and redistributing all or part of the Company's websites and Services. In addition, by displaying Content on or submitting Content to the Company for inclusion on the Services, You hereby waive in favor of the Company, its affiliates, Third Party Vendors, contractors and each of their successors and assignees, any moral rights in the Content which may have accrued to You. You acknowledge that the Company does not prescreen Content, but that the Company and its affiliates, Third Party Vendors and each of their designees shall have the right (but not the obligation) in their sole discretion to display, publish, distribute, syndicate or remove any Content that is available via the Service. Without limiting the foregoing, the Company and its affiliates, Third Party Vendors, and each of their designees shall have the right to remove any Content that violates this Agreement, including any applicable Policy or Third Party Vendor’s terms or agreement, is illegal, or is otherwise objectionable as determined in, as applicable, the Company's or its affiliates or Third Party Vendor’s sole discretion. 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.
- The Company maintains information about You and the Services You use and access on the Company’s servers, including Your Account Information, Your customer order information, sales information, and clickstream data ("Merchant Information"). You grant to the Company an irrevocable, non-exclusive, worldwide, royalty-free, transferable, perpetual license to use Merchant Information in aggregate form (i.e., in a form that is not individually attributable to You) (1) for research, marketing, and other promotional purposes; (2) for the Service to function; and (3) to conform to the technical requirements of connecting networks, the Services or other, similar requirements. You agree that the Company may disclose Merchant Information in the good faith belief that such action is reasonably necessary: (a) to comply with the law, legal process or inquiries; (b) to enforce this Agreement; or (c) to protect the rights or interests of the Company or others. You agree that the Company may delete customer credit card information from the Company's servers 14 days after You retrieve such information, and may delete all other Merchant Information from the Company servers at the end of each calendar year. You also agree that the Company may access Your account and its contents as necessary to identify or resolve technical problems or respond to complaints about the Service.
- The Services may display, or contain links to, third-party products, services, and websites. Any opinions, advice, statements, services, offers, or other information that constitutes part of the content expressed, authored, or made available by third parties on, or accessible through, the Services (collectively, "Third Party Content") are those of the such third party and not the Company. The Company does not control Third Party Content and does not guarantee the accuracy, integrity, or quality of such Third Party Content. It is Your responsibility to evaluate the information, opinion, advice, or other content available in and through such Third Party Content.
Consent to Receive Calls and Text Messages.
- By providing your telephone number(s) including your mobile phone number, to the Company, You expressly consent to receive marketing and non-marketing calls and text messages from the Company and others calling or texting on its behalf, including calls and text messages made with an autodialer or prerecorded voice, at the telephone number(s) that You provide. Such calls and text messages may include, for example, marketing messages, password reminders, authentication messages, account- or service-related alerts and reminders, customer service communications, satisfaction surveys, and other types of calls and text messages. You may opt-out of these communications, except for communications regarding Your account, Services, and the security of Your account, at any time by signing in to Your account and going to Your "Profile."
- You agree to notify the Company promptly of any changes to the telephone number(s) that You provide. You also agree to indemnify Company and its vendors, service providers, and parties calling or texting on its behalf in full for all claims, expenses, and damages related to or caused in whole or in part by your failure to notify Company if you change your telephone number, including but not limited to all claims, expenses, and damages related to or arising under the Telephone Consumer Protection Act or other applicable law.
Provisions for Use and Security of Cardholder Data
- For purposes of this Section, the term "Cardholder Data" refers to the information stored on the magnetic stripe or chip of a credit or debit card, including the number assigned by the card issuer that identifies the cardholder's account or other cardholder personal information.
- This Section applies to any Merchant that either itself, or through a processor or other agent, stores, processes, handles, or transmits Cardholder Data in any manner. Merchant shall at all times comply with the Payment Card Industry Data Security Standard ("PCI DSS") requirements for Cardholder Data that are prescribed by the PCI Security Standards Council, as they may be amended from time to time (collectively, the "PCI DSS"). Copies of the most current PCI DSS and related documentation are available on the PCI Security Standards Council website. Merchant agrees that Cardholder Data may be used only for completing a card transaction, for fraud control services, for loyalty programs, or as specifically agreed to by the applicable payment card association rules, the PCI DSS, or as required by applicable law. In the event of a breach or unauthorized access to Cardholder Data stored at or for Merchant, Merchant shall fully comply with all applicable federal and provincial laws immediately notify the card issuer in the manner required in the PCI DSS, and provide the payment card associations and the acquiring financial institution and their respective designee access to Merchant's facilities and all pertinent records to conduct a review of Merchant's compliance with the PCI DSS. Merchant shall fully cooperate with any such review. Merchant shall maintain appropriate business continuity procedures and systems to ensure security of Cardholder Data in the event of a disruption, disaster, or failure of Merchant's primary data systems. If Merchant or its successors and assigns continue to store Cardholder Data after the termination of this Agreement, it shall comply with the PCI DSS after termination of this Agreement.
- The ecommerce Services are compliant with the PCI DSS and are listed as a VISA CISP-compliant service provider. The Company will conduct periodic audits as required to maintain compliance with the PCI DSS as a service provider.
- You agree that the Services and any necessary software used in connection with the Service contains proprietary and confidential information that is protected by applicable intellectual property and other laws. You further agree that Content available from the Company for the Services, contained in advertisements, or information presented to You through the Services, is protected by copyrights, trademarks, service marks, patents, or other proprietary rights and laws and You will not remove, alter, or obscure any proprietary notices (including copyright and trademark notices) on any portion of the Services or Content. Except as expressly authorized by the Company, You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on such Content or the Services, in whole or in part.
- The Company grants to You a limited, personal, nontransferable, and nonexclusive license to use the Services; provided that You do not and do not attempt to (and do not allow any third party to or to attempt to) reproduce, duplicate, copy, modify, create a derivative work of, reverse engineer, reverse assemble, attempt to discover any source code, sell, resell, distribute, assign, sublicense, grant a security interest in, or otherwise transfer any right in or exploit the Services. You agree not to modify the Services in any manner or form, or to use modified versions of the Services. You agree not to access the Service by any means other than through the interface that is provided or authorized by the Company.
- You may not use websites or any page thereof generated by means of the Services, other than Content that originates from and is proprietary to You, on any server other than the servers controlled by the Company without the Company's express written agreement. You also agree that the Services are intended for access and use by means of web browsing software, and that the Company does not commit to support any particular browsing platform or version thereof. The Company reserves the right at any time to revise and modify the Services, release subsequent versions thereof and to alter features, specifications, capabilities, functions, and other characteristics of the Services, without notice to You. If any revision or modification to the Services materially changes Your ability to conduct business, Your sole remedy is to cancel Your Service.
- Limitations. The Services are a multi-tenant, shared service, which means a number of customers' Services are hosted from the same server. To ensure that the Company is reliable and available for the greatest number of users, Your usage cannot adversely affect the performance of other customers’ Services. Using an account as an online storage space for archiving electronic files is prohibited. You agree that if, in the Company's sole discretion, You are deemed to have violated this section, or if the Company, in its sole discretion, deems it necessary due to excessive burden or potential adverse impact on the Company's systems, potential adverse impact on other users, server processing power, server memory, abuse controls, or other reasons, the Company may suspend or terminate Your account without notice to You and with no liability to the Company.
- Representations and Warranties. You represent and warrant that:
BUSINESS MAIL SERVICES
- If You use Business Mail (not Custom Mailbox) You may create email sub-accounts for certain users ("Sub-Account Users") so that they may send and receive email with selected email addresses. You expressly agree that any violation of this Agreement, any Policy or any applicable Third Party Vendor agreement may result in termination of any and all email accounts, as determined in the Company's sole discretion.
- If You are a Sub-Account User, You agree that Your use of Your Business Mail sub-account is subject to the Business Mail Terms and the Business Mail Sub-Account User Terms of Service, and that Your violation of any of the foregoing, or any applicable Third Party Vendor terms of service may result in termination of Your sub-account, or the Account Owner’s Services, as determined in the Company's sole discretion. All information and data, including all emails, contact information, calendar entries, and all notepad data, residing in a Sub-Account User's sub-account may be accessed and controlled by the Account Owner.
COMMERCE CENTRAL SERVICES
Marketing Services. If You use any of the Commerce Central marketing Services Your use of such Services is subject to the terms below:
- Subject to the terms and conditions of this Agreement, You hereby appoint the Company, and the Company hereby agrees to provide marketing and promotional services to You, in connection with the development and execution of advertising and promotional programs for You or Your products or services ("Customer Products"), using methods and forms of media as chosen by us in our sole discretion, in order to promote and advertise Customer Products.
- The Company will use commercially reasonable efforts to select and implement advertising and promotional methods that it believes will be effective. The Company makes no guarantees regarding the success of the Services, or of any particular method or campaign. The Company will not be liable to You for the failure of any third party, including any media or suppliers, to fulfill its commitments to the Company or You. You acknowledge that some advertising and promotional methods may require the approval of third parties, which have sole discretion regarding such approval. The Company makes no guarantee that any particular advertising or promotional method will be used.
- Linking to the Services. You may not link to the Services, without the Company's approval and only as contemplated by the nature of the particular Service. Any deep linking to internal parts of our Services, framing of the Services within or as part of any third-party services, or any other manner of incorporating parts of the Services as part of another website or service, is not permitted without our prior written consent.
- Marketing Services. If You use any of the Commerce Central marketing Services Your use of such Services is subject to the terms below:
New Domains. If You register a new domain name in conjunction with any Service, the following terms apply:
- Tucows Inc. (via its OpenSRS registrar) ("Tucows"), an ICANN accredited registrar provides domain name registration services for the Company. You authorize the Company to acquire Your selected domain name from Tucows. You acknowledge that the Company cannot guarantee the availability of the domain name You select until the Company receives confirmation of its order from Tucows, which may take several business days. In order to receive a domain name, You must agree to Tucows's terms and conditions, as may be amended (currently available here). The Company is the "Reseller" under Tucow's terms and conditions. By using the domain name Services, and agreeing to Tucow's terms and conditions, You explicitly authorize Tucows to act as Your Designated Agent, as stipulated by the ICANN Transfer Policy, to approve a Change of Registrant on Your behalf. You understand that You are creating a separate contractual relationship between You and Tucows, and that You, and not the Company, are responsible for all fees, liability, and obligations in connection with that relationship. Until the Service is canceled or otherwise terminated, the Company will pay on Your behalf the domain registration/renewal fees as part of the Service.
- You agree that Your obligations to indemnify under "Indemnity" in this Agreement includes any claim or demand associated with Your domain name, any domain name pre- registration services provided through the Service, or the Tucows terms and conditions.
- You will be listed in the Whois directory as the registrant and administrative contact in connection with Your domain name, unless You choose another registrant and administrative contact. If You choose a registrant and administrative contact other than Yourself, such person(s) must enter into an agreement directly with Tucows and will also be bound by this Agreement. Domain expiration notices will be sent by email to the registrant and administrative contact prior to the domain name's expiry date.
- You authorize the Company to list the Company as the billing contact, technical contact, and name server in connection with Your domain name and to take any actions the Company deems appropriate in those capacities and to immediately cease acting in those capacities upon termination of Your Services. The Company reserves the right to transfer Your account to Tucows for collection of past-due amounts. In the event of such transfer, You authorize Tucows to serve as the billing contact, technical contact, and name server in connection with Your domain name, and to take any action Tucows deems appropriate in those capacities.
- For more information about domains and ICANN's policies see ICANN's Registrant Education Materials at http://www.icann.org/en/registrars/registrant-rights-responsibilities-en.htm, ICANN's Registrant Rights and Benefits page at http://www.icann.org/en/resources/registrars/registrant-rights/benefits, and ICANN's Transfer Policy at https://www.icann.org/resources/pages/transfer-policy-2016-06-01-en.
- Existing Domains. If You have previously registered a domain name with another provider and want to use it with the Service, You must request that the existing registrar change the nameservers for the domain name as designated by the Company. THE EXISTING REGISTRAR WILL CONTINUE TO BE THE REGISTRAR FOR THAT DOMAIN, AND YOU WILL CONTINUE TO BE RESPONSIBLE FOR ALL ONGOING FEES FOR THAT DOMAIN NAME WITH THE EXISTING REGISTRAR, INCLUDING RENEWAL FEES. THE FEES PAYABLE TO THE COMPANY FOR THE SERVICE DO NOT INCLUDE REGISTRATION OR RENEWAL FEES OWED BY YOU TO YOUR EXISTING REGISTRAR.
Registrar. Tucows is the Company's current registrar of
record, and You agree to and are subject to their respective terms and conditions. By agreeing to Tucow's terms and conditions, You explicitly authorize Tucows to act as Your Designated Agent, as stipulated by the ICANN Transfer Policy, to approve a Change of Registrant on Your behalf. The Company may change registrars or become a registrar at any time. If the Company does so, the Company may request in writing that You transfer the domain name registered for
the Service to the new registrar of record. If You do not agree to this request within 30 days,
You agree that the Company will continue to provide the Service to You, but, in its sole
discretion, may either:
- require You to pay an additional fee to the Company for the Service in order to renew and maintain Your domain name with the prior registrar of record; or
- require You to be responsible for all fees, including any renewal fees, directly with the prior registrar of record, in which case You authorize the Company to cease to pay for the domain name fees as part of the Service, and change the billing contact details for the domain name from the Company to You by providing Your applicable Account Information to the prior registrar of record.
- Verifying Your Domain Name Information. In compliance with ICANN regulations and the Tucows terms and conditions, and in order to minimize the risk of fraud, the Company may at any time request You to verify any information required to be supplied by a registrant ("Required Information"). If You fail to respond to any such request or fail to verify any Required Information to the Company's reasonable satisfaction, within 15 days of any such request from the Company, the Company may, in its sole discretion, immediately terminate Your Service and remove any of Your Content, including Your domain name, from the Company’s servers.
Private Domain Registration. If You choose to register a domain name using the
Private Domain Registration feature of the Service, which will substitute certain information
relating to the registration of the Domain Name, such as the name, postal address, email
address, telephone number, and fax number of the administrative contact, technical contact,
and billing contact, and where applicable, the postal address, telephone number, and fax
number of the registrant contact ("Contact Details"), but not the organization name, the following
terms also apply:
- The Company has chosen Tucows, to provide the Private Domain Registration features of the Service. With respect to all matters concerning the Private Domain Registration feature of the Service, You agree with all of the terms and conditions of the Registration Agreement between You and Tucows, which is located at the following link: https://opensrs.com/wp-content/uploads/Tucows_ExhibitA.html.
- You agree to keep all information provided to the Company and Tucows complete, true, and accurate at all times.
- You understand that Your billing and contact information must be complete, true, and accurate at all times.
- You will not use or attempt to use the Private Domain Registration feature to avoid legal obligations, including any requirement to register Yourself or any entity with the appropriate governmental organizations, or to avoid, resist, or make more difficult the service of legal process on You, or any legal entity.
- You will respond in a timely manner to all communications from the Company, Tucows and all communications from a third party forwarded to You by Tucows.
- YOU EXPRESSLY AGREE THAT ANY CANCELLATION, FAILURE TO RENEW, TERMINATION, OR DESELECTION OF PRIVATE DOMAIN REGISTRATION FEATURES BY EITHER YOU OR THE COMPANY WILL RESULT IN THE REGISTRATION INFORMATION OF THE ASSOCIATED DOMAIN(S) BEING MADE PUBLICLY AVAILABLE AND BEING PUBLISHED IN THE PUBLIC WHOIS DATABASE.
- YOU EXPRESSLY AGREE THAT THE COMPANY AND/OR TUCOWS MAY DISCLOSE THE CONTACT DETAILS REGARDING THE RELEVANT DOMAIN NAME WITHOUT ANY LIABILITY TO YOU, IF THE COMPANY OR TUCOWS CONSIDERS, IN THEIR SOLE DISCRETION, THAT DISCLOSURE IS NECESSARY OR DESIRABLE TO COMPLY WITH THE REQUIREMENTS OR DIRECTIONS OF ANY GOVERNMENT AGENCY OR REGISTRY, ANY APPLICABLE LAW, REGULATION OR RULE, SUBPOENA, COURT ORDER, OR ENFORCEMENT AGENCY REQUEST; OR IF ANY THIRD PARTY INSTITUTES OR THREATENS TO INSTITUTE PROCEEDINGS AGAINST THE COMPANY OR TUCOWS, DIRECTLY OR INDIRECTLY, WITH RESPECT TO THE RELEVANT DOMAIN NAME.
- Dormant Domains. The Company runs advertisements and promotions on Dormant Domains. A "Dormant Domain" is any domain name that uses the Company's name servers and is not being used by You to display Your content. A domain may become dormant if (i) You do not set up the starter website offered as part of the Services, (ii) You do not modify the default "Under Construction" webpage of the Services, or (iii) Your Service is canceled or expires and You do not redelegate or transfer the domain to another provider. By allowing Your domain to become a Dormant Domain, You agree that the Company has the right to run advertisements and promotions on such domains. If You would like the Company to cease running advertisements and promotions on Your Dormant Domain You must contact us. Your interaction with, or participation in promotions of, advertisers found on or through a Dormant Domain are solely between You and such advertiser. The Company is not responsible or liable for any loss or damage incurred as the result of such dealings or as the result of the presence of such advertisers on a Dormant Domain.
- New Domains. If You register a new domain name in conjunction with any Service, the following terms apply:
DISPUTES REGARDING ACCOUNT OR DOMAIN OWNERSHIP
- The "Account Owner" of an account created for use of the Services or a Domain is deemed to be the party that is financially responsible for such Services or Domain. Any changes to or questions relating to any Service or account will only be addressed with the Account Owner. Should the Account Owner desire to designate a representative to act on his/her/its behalf, he/she/it must do so in writing to the Company. If a dispute arises regarding ownership of any account or Domain, the Company is not obligated to, and will not resolve any such dispute.
- If multiple individuals contact the Company claiming ownership of an account or Domain, the Company will reasonably attempt to notify all involved parties. In order for the Company to take any action, a court order from a court of competent jurisdiction or joint directive executed by all concerned parties including the seal of a licensed notary must be received. The joint directive or court order must contain explicit directive and clear instruction to the Company on rightful ownership. The joint directive or court order must also contain an explicit directive to the Company requiring the Company to facilitate the transfer within a specified timeframe.
- Send all documents noted above to Aabaco Small Business, LLC at 701 First Avenue, Sunnyvale, CA 94089. Please allow ten to fifteen business days from receipt for review and processing of documents received in relation to any dispute.
- Please note that the Company may suspend all access to the disputed account, Domain or other Services during any dispute process. The account and/or Services may remain suspended until such time as the dispute has been successfully resolved. The Company will not be responsible for any loss of data, files or Content during the dispute process. All fees that are due and owing will be charged accordingly during any suspension and if such fees are unable to be collected during suspension, then payment of all outstanding fees become due immediately upon reactivation of the Service or account.
You agree to indemnify and hold harmless the Company, and its parents, subsidiaries, affiliates, co-branders, Third Party Vendors, officers, directors, shareholders, employees, contractors and agents (the "Indemnified Parties"), from any claim, demand, or investigation, including reasonable legal fees, made by any third party, including any tax authority, due to or arising out of Your Content, Your use of the Services, the goods, products or services offered or sold by You through the Services, any actual or alleged violation of this Agreement, including any applicable Policies, law, or regulation, or any alleged violation of any rights of another, including due to Your use of any content, trademarks, service marks, trade names, copyrighted or patented material, or other intellectual property in connection with the Services. The Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, but doing so shall not excuse or reduce Your obligations.
DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
- THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. THE COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT;
- YOUR USE OF THE SERVICES, AND ANY CONTENT AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES, IS AT YOUR OWN RISK, AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH CONTENT AND/OR DATA;
- THE SECURITY MECHANISMS IN THE SERVICES HAVE INHERENT LIMITATIONS, AND YOU MUST DETERMINE WHETHER THEY ADEQUATELY ADDRESS YOUR NEEDS AND ARE SOLELY RESPONSIBLE IF THEY DO NOT;
- THE COMPANY DOES NOT WARRANT THAT (i) THE SERVICES WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (ii) THE QUALITY OF THE SERVICES WILL MEET YOUR EXPECTATIONS, AND (iv) ANY ERROR IN THE SERVICES WILL BE CORRECTED;
- NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS;
- THE COMPANY ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MISDELIVERY, OR FAILURE TO STORE ANY USER COMMUNICATIONS OR PERSONALIZATION SETTINGS OR FOR THE ACCURACY, TIMELINESS, OR MISDELIVERY OF ANY THIRD-PARTY DATA;
- IF YOU UTILIZE ANY THIRD PARTY TOOLS (SUCH AS WORDPRESS) IN CONNECTION WITH THE SERVICES, AND THE COMPANY DEEMS IT NECESSARY TO UPGRADE THE VERSION OF SUCH THIRD PARTY TOOL YOU ARE THEN USING, UNDER NO CIRCUMSTANCES WILL THE COMPANY HAVE ANY LIABILITY WHATSOEVER IN CONNECTION WITH ANY SUCH UPGRADE, INCLUDING LIABILITY WITH RESPECT TO DATA LOSS, DATABASE CORRUPTION, PLUG-INS, CACHING, OR CUSTOM DESIGN.
LIMITATION OF LIABILITY
- TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE COMPANY AND ITS PARENTS, SUBSIDIARIES, AFFILIATES, CO-BRANDERS, THIRD PARTY VENDORS, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS AND AGENTS, SHALL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES OR LEGAL THEORIES WHATSOEVER, FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS, PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES).
- THE COMPANY'S LIABILITY TO YOU SHALL NOT, FOR ANY REASON, EXCEED THE AGGREGATE PAYMENTS ACTUALLY MADE BY YOU TO THE COMPANY OVER THE COURSE OF THE THEN CURRENT TERM. YOU ACKNOWLEDGE THAT THE COMPANY HAS SET ITS PRICES IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES SET FORTH HEREIN, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. YOU AGREE THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THESE TERMS WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT OR INTELLECTUAL PROPERTY INFRINGEMENT
The Company respects the intellectual property of others, and we expect that You do the
same. The Company may, in appropriate circumstances and at its discretion, disable and/or
terminate the accounts of users who may be repeat infringers. If You believe that your work has
been copied in a way that constitutes copyright infringement, or Your intellectual property rights
have been otherwise violated, please provide the Company with the following information in
- a 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 site;
- 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 owner, its agent, or the law; and
- a statement by you 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.
You can send claims of copyright or other intellectual property infringement to:
Aabaco Small Business, LLC
701 First Avenue
Sunnyvale, CA 94089
- If You knowingly make a material misrepresentation that material or activity is infringing a copyright or was removed or disabled by mistake or misidentification, You may be held liable for damages.
- The Company respects the intellectual property of others, and we expect that You do the same. The Company may, in appropriate circumstances and at its discretion, disable and/or terminate the accounts of users who may be repeat infringers. If You believe that your work has been copied in a way that constitutes copyright infringement, or Your intellectual property rights have been otherwise violated, please provide the Company with the following information in writing:
Notices under this Agreement 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 the Company, such notices shall be sent to Aabaco Small Business, LLC, 701 First Avenue, Sunnyvale, CA 94089, USA. If to You, such notices shall be addressed to the electronic or mailing address specified when You opened Your account, or such other address as either party may give the other by notice as provided above. The Company may also provide notices of changes to this Agreement or other matters by displaying notices or links to notices to You generally on the Service.
CHOICE OF LAW AND FORUM (LOCATION OF LAWSUIT)
The Agreement and the relationship between You and the Company shall be governed by the laws of the State of California without regard to its conflict of law provisions, and specifically excluding from application to this Agreement that law known as the United Nations Convention on the International Sale of Goods. You and the Company agree to submit to the personal jurisdiction of the courts located within the county of Santa Clara, California. The failure of the Company to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
The Company will not be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including, but not limited to, acts of war, acts of terrorists, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act, or failure of the Internet.
- You may not assign Your rights or delegate Your duties under this Agreement either in whole or in part without the prior written consent of the Company, and any attempted assignment or delegation without such consent will be void. The Company may assign this Agreement, and all rights granted to it hereunder, in whole or part. The Company also may delegate the performance of Services to third parties, including affiliates and Third Party Vendors. This Agreement will bind and inure to the benefit of each party's successors and permitted assigns.
- Notwithstanding the foregoing, You are permitted to sell Your Store to a third party, provided that all of the following occur: (a) You assign all rights and obligations under this Agreement to such third party receiving the Store, (b) You give prior written notice to the Company, (c) You provide the Company evidence, in the form and manner requested by the Company, that such third party has agreed to and has accepted all obligations under this Agreement, and (d) such third-party assignee has provided the Company with all information requested by the Company, and such information is complete and accurate. Should You attempt to sell a Store or assign this Agreement in violation of this Agreement, such attempt will be null and void, and You will remain responsible for all obligations and liabilities under this Agreement, Your Store, and the Services.
RELATIONSHIP OF PARTIES; NO THIRD-PARTY BENEFICIARIES
This Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the Company and You. Neither the Company nor You will have the power to bind the other or incur obligations on the other's behalf without the other's prior written consent, except as otherwise expressly provided herein. Except as otherwise expressly provided in this Agreement, there shall be no third-party beneficiaries to this Agreement.
INTEGRATION; SEVERABILITY; TIMELINESS OF CLAIMS; TITLES AND HEADINGS
This Agreement constitutes the entire agreement between You and the Company and governs Your use of the Services. If any provision of this Agreement or incorporated documents is found by a court of competent jurisdiction to be invalid, the other provisions of this Agreement remain in full force and effect to the maximum extent permitted by applicable law. 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 Service or this Agreement must be filed within one year after such claim or cause of action arose or be forever barred. The section titles and headings in the Agreement are for convenience only and have no legal or contractual effect.
Effective date: June 13, 2017