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Terms of Service Agreement
CAREFULLY READ THE FOLLOWING DOCUMENT. THE MODULAR MERCHANT END USER LICENSE AND TERMS OF SERVICE AGREEMENT ("AGREEMENT"), IS A LEGAL AGREEMENT BETWEEN STEPPING STONE MEDIA INC, DBA, MODULAR MERCHANT ("MODULAR MERCHANT") AND YOU OR THE COMPANY YOU REPRESENT IN THIS TRANSACTION (COLLECTIVELY "YOU" OR "CLIENT").
BY CLICKING THE "I ACCEPT" BUTTON BELOW, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH ALL OF THE TERMS OF THIS AGREEMENT, MODULAR MERCHANT WILL NOT PROVIDE YOU WITH THE SOFTWARE AND SERVICES DESCRIBED HEREIN AND YOU MUST SELECT THE "I DO NOT ACCEPT" BUTTON, BELOW.
RECITALS
A. Modular Merchant is the developer and owner of certain proprietary shopping cart software, Modular Merchant ("Software"), and related services, including, but not limited to, Client accounts, managed hosting, and add-on modules (collectively "Services"), which allow Client's customers to purchase Client's products online.
B. Modular Merchant is also in the business of hosting and offering access to the Software and Services via the Internet.
C. Client desires access to and the use of the Software and Services under the terms and conditions set forth in this Agreement.
AGREEMENT
Now therefore, in consideration of the foregoing Recitals, which by this reference are incorporated herein as if set forth in full, and in consideration of the mutual covenants and agreements hereinafter set forth, and for other good and valuable consideration, the receipt of which is hereby acknowledged, Client and Modular Merchant agree as follows:
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ARTICLE 1 - LICENSE; LIMITATIONS OF USE; OWNERSHIP; INTELLECTUAL PROPERTY NOTICES
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1.1 LICENSE. Subject to the terms of this Agreement, Modular Merchant grants Client a limited, revocable, non-transferable, and non-exclusive license to use the Software and Services solely for client's business purposes. One license is required for each Account, as that term is defined below. This license ends on the termination of this Agreement. On termination of this Agreement, Client shall discontinue use of the Software and Services and destroy or return any copies of the Software to Modular Merchant.
1.2 LIMITATIONS OF USE. Client agrees that Client shall make no attempt to, and shall not permit its authorized users or any third parties to do any of the following with respect to the Software or Services: (a) sell, lease, distribute license or sublicense it; (b) modify, change, alter, revise, translate, create derivative works from, reverse engineer, disassemble or decompile it in any way for any reason; (c) provide, disclose, divulge, make available to, or permit its use by any third party; (d) copy or reproduce all or any part of it; (e) interfere, or attempt to interfere, with it; (f) remove or alter any copyright or other proprietary rights notices included in or affixed to it; or (f) use or allow the use of it after the termination or expiration of this Agreement (except pursuant to another valid license).
1.3 OWNERSHIP. The Software and Services are solely owned by Modular Merchant and its licensors. The Software and Services are licensed, not sold. All right, title, and interest in the Software and Services, including any updates or revisions thereto, is and shall remain the sole and exclusive property of Modular Merchant, its licensors, and their successors and assigns. Other than the limited license explicitly set for in this Agreement, no interest in or rights or licenses to the Software or Services shall inure in or accrue to Client, whether by implication, estoppel, or otherwise. All rights of any kind in the Software or Services that are not expressly granted in this Agreement are entirely and exclusively reserved to and by Modular Merchant, its licensors, and their successors and assigns.
1.4 INTELLECTUAL PROPERTY NOTICES. The Software, Services, and related documentation are protected by U.S. and international copyright laws and treaties, as well as other intellectual property laws and treaties. The Software, Services, and related documentation are also subject to the Modular Merchant Legal Statement, which can be found on the Modular Merchant website at http://www.modularmerchant.com/legal.php. To the extent the Legal Statement contradicts this Agreement the terms of this Agreement govern.
1.5 GENERAL DATA PROTECTION REGULATION. Client is responsible for processing and protecting any personal information they receive from another user or another individual. Client will pay for any damages suffered if they violate applicable privacy laws.
While using the Modular Merchant service, client may may receive or collect personal information as the software is used and operated. Client must protect this personal information with the utmost care and abide by privacy practices as set forth below in this Terms Of Service and Modular Merchant's Privacy Policy. Client may not use or disclose personal information for any purpose other than as allowed by the individual or by applicable law. Client consents to the collection, processing, and transfer of all their information and customer information by Modular Merchant and our partners as set forth in our Privacy Policy. Modular Merchant may process that personal information as needed to facilitate business operations or whichever activity it was given to us for. As per Article 7 on indemnification, Client agrees to defend, indemnify and hold Modular Merchant harmless if Client violates any applicable privacy laws. For purposes of the EU's General Data Protection Regulation ("GDPR"), Client is the data controller for any personal information received or collected through the website and service provided by Modular Merchant, and Modular Merchant and our partners are data processors. This means that Client is responsible under the GDPR for what happens to that personal information as it is processed by the Client, Modular Merchant and our partners, and any third parties you allow to process it.
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ARTICLE 2 - ACCESS TO AND USE OF THE SOFTWARE & SERVICES
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2.1 NECESSARY EQUIPMENT.
Client will be solely responsible, at Client's own expense, for acquiring, installing, maintaining, and updating all connectivity equipment, hardware, software, and other equipment that may be necessary for its use of the Services.
2.2 ACCOUNT ACTIVATION
Client is required to register for an Account through which all Services will be provided. Notwithstanding anything to the contrary herein, Client acknowledges and agrees that Client shall have no ownership or other property interest in the Account, including, but not limited to, Client's customer's contact or credit card information captured by Modular Merchant as part of the Services provided, and further acknowledges and agrees that all rights in and to the Account are and shall forever be owned by and inure to the benefit of Modular Merchant.
During the registration process, Client is required to select a username and a password that are unique to Client's Account (collectively "Login Information"). Client is responsible for maintaining the confidentiality of the Login Information and will be responsible for all uses of the Login Information, whether or not authorized by Client. In the event that Client becomes aware of or reasonably suspects any breach of security, including without limitation any loss, theft, or unauthorized disclosure of the Login Information, Client must immediately notify Modular Merchant by emailing abuse@modularmerchant.com or via phone. Phone numbers and other Modular Merchant contact information can be found on the Modular Merchant website at: http://www.modularmerchant.com/contact.php.
All information provided to Modular Merchant during Account Activation or at any time otherwise is subject to the Modular Merchant Privacy Policy, which can be found on the Modular Merchant website at http://www.modularmerchant.com/privacy.php. To the extent the Privacy Policy contradicts this Agreement the terms of this Agreement govern.
2.3 AUTHORIZED USERS
Client acknowledges and agrees that anyone using Client's Login Information is authorized to bind Client in connection with any Services provided to Client under this agreement. Additionally, Client may assign additional authorized users of Client's Account a unique logon identifier and password and assign and manage the business rules that control each such authorized user's access to the Services. Client is responsible for (a) all liabilities incurred as a result of any use of the Services by an authorized user, including, but not limited to, all costs and expenses incurred; (b) the security and/or use of the authorized user's logon identifier and password; (c) the authorized user's use of the Services consistent with the assigned business rules; and (d) the authorized user's use of the Services in accordance with the terms and conditions of this agreement. Client will be responsible for advising each authorized user of his or her obligations under this agreement and of the license restrictions set forth in this agreement.
2.4 TRIAL PERIOD
2.4.1 LIMITATIONS OF SERVICES DURING TRIAL PERIOD
Modular Merchant may provide a trial period for any of its Services. If a trial period is provided, Modular Merchant may, at its sole discretion, offer this trial at any price and for any length of time. Services offered on a trial basis may have limited functionality, including, but not limited to, the inability to authorize transaction funds or capture transaction funds.
2.4.2 TERMINATION OF TRIAL SERVICES
Modular Merchant may, at its sole discretion, terminate a Client's trial period at any time during the trial period. Reasons for termination of trial period include, but are not limited to
A) Violating the terms of this Agreement,
B) Creating an Account with invalid contact information, such as name, email address or phone number, or
C) Creating an Account that is inactive (not logged into) for thirty (30) days.
2.5 ACCOUNT ACCESS RIGHTS
Modular Merchant reserves the right to deny, suspend or revoke access to Services, in whole or in part, if Modular Merchant suspects client and/or its authorized users are in breach of this agreement or are otherwise using or accessing Services inconsistent with the terms and conditions of this agreement.
Modular Merchant reserves, and Client grants to Modular Merchant, the right to have any Modular Merchant employee log in to any Account administration area at any time, for Tech Support, system maintenance, Software update or any other purpose determined by Modular Merchant at its sole discretion.
2.6 NON-EXCLUSIVITY.
Client acknowledges and agrees that Modular Merchant is providing non-exclusive access to and use of the Modular Merchant Software and Services. Any customizations, alterations, or revisions done to the Software or Services at the suggestion or request of Client are the sole and exclusive property of Modular Merchant and are subject to the terms of Article 1, above. Customizations, alterations, or revision done at the suggestion or request of one client may be, but are not required to be, made available to other clients.
2.7 THIRD PARTY PROVIDERS.
Client acknowledges that some functions of the Services (e.g., shipping, hosting, email) may be provided by third parties ("Third Party Provider"). For all functions of the Services provided by Third Party Providers, Client must abide by that Third Party Provider's terms and conditions, if any, for the functions provided by that Third Party Provider. Copies of Third Party Providers' terms and conditions are available upon request
2.8 CHANGES TO THIRD PARTY PROVIDERS; CHANGES TO SERVICES; AVAILABILITY.
2.8.1 Changes to Third Party Providers. Modular Merchant may, at its sole discretion, change any Third Party Providers. In the event that Modular Merchant changes Third Party Providers, Modular Merchant may provide Client with notification via its web site.
2.8.2 Changes to Services. Modular Merchant may, at its sole discretion, add, delete or change any functionality of the Services. In the event that Modular Merchant changes functionality of the Services, Modular Merchant may provide Client with notification via Modular Merchant's web site.
2.8.3 Modular Merchant shall use commercially reasonable efforts to keep the Software and Services available on a 24 hour a day, 7 day a week basis, subject to scheduled downtime for maintenance purposes, unscheduled maintenance and systems outages. Modular Merchant makes no guarantees that any particular Client will be able to access the Services at any given time, and Modular Merchant shall not be liable to Client for failure of accessibility to the Services.
2.9 UNPERMITTED USES; ACCEPTABLE CONTENT
Client and its authorized users will not use Modular Merchant Software or Services to sell or otherwise distribute content that: (a) constitutes spamming, mail bombing, spoofing or any other types of unsolicited e-mail of any kind, regardless of the content or nature of the message; (b) knowingly introduces into or transmits any virus, worm, trap door, back door, timer, clock, counter or other limiting routine, instruction or design; or (c) alters, steals, corrupts, disables, destroys, trespasses, or violates any security or encryption of any computer file, database, or network; (d) incites violence, threatens violence, or contains harassing content or hate speech; (e) is unfair or deceptive under the consumer protection laws of any jurisdiction, including chain letters and pyramid schemes; (f) is defamatory or violates a person's privacy; (g) creates a risk to a person's safety or health, creates a risk to public safety or health, compromises national security, or interferes with a investigation by law enforcement; (h) contains warez or other black market software, cracks, or materials that infringe on an existing copyright; (i) improperly exposes trade secrets or other confidential or proprietary information of another person; (j) is intended to assist others in defeating technical copyright protections; (k) clearly infringes on another person's trade or service mark, patent, or other property right; (l) promotes illegal drugs, violates export control laws, relates to illegal gambling, or illegal arms trafficking; (m) provides online gambling; (n) contain firearms or ammunition; (o) contains adult-related media (as defined below); (p) is otherwise illegal or solicits conduct that is illegal under laws applicable to you or to Modular Merchant; (q) or is otherwise malicious, fraudulent, or may result in retaliation against Modular Merchant by offended viewers, all as determined by Modular Merchant at its sole discretion.
Modular Merchant defines "adult-related media" as any of the following: (a) photos or videos containing sexually explicit material; (b) print media containing sexually explicit material; (c) audio clips or text containing sexually explicit material; (d) links to other sites containing such material. Modular Merchant reserves the right to determine what is considered "sexually explicit" at its sole discretion.
Modular Merchant reserves the right to determine what use of the Software or Services violates the above provision at its sole discretion.
If Client or its authorized users, or a third party through the Client, violates any of the foregoing prohibitions, Modular Merchant may immediately suspend the Services and/or terminate this Agreement without further liability or obligation to the Client.
2.10 HTML CONTENT
Modular Merchant reserves the right, at its discretion, to append content to any webpage using the Services, including, but not limited to, a text and/or image hyperlink stating "Powered by Modular Merchant Shopping Cart", linking to a website managed by Modular Merchant. Client may replace this automated link with one of their own link by adding the following HTML code in a conspicuous location on the webpage:
<a href="http://www.modularmerchant.com" target="_blank">Powered by Modular Merchant Shopping Cart Software</a>
If the hyperlink is not found, Modular Merchant reserves the right to place the hyperlink on the webpage without notice.
2.11 EMAIL POLICIES
Using Modular Merchant software and/or servers to send "spam" email, also known as Unsolicited Commercial Email (UCE), is strictly prohibited.
Use of any third-party email delivery systems in conjunction with Modular Merchant's SMTP servers is strictly prohibited.
All email sent via Modular Merchant servers must meet the following criteria:
A) The recipient of the email must have either made a purchase, requested information, responded to a questionnaire or a survey, opted in to the mailing list by completing a sign up form hosted on the domain, or had offline contact with Client.
B) Marketing and/or newsletter emails must include a working link for the recipient to unsubscribe from the mailing list.
C) All requests to unsubscribe must be processed within 10 (ten) days.
D) The "from" email address must contain the domain name associated with the Client's Modular Merchant account.
E) The "subject" of the email must not contain misleading information.
Modular Merchant routinely monitors our mail servers for abuse. Any Client found to be in violation of Modular Merchant's EMAIL POLICIES will have their account closed.
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ARTICLE 3 - FEES; PAYMENT TERMS
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3.1 ACCOUNT FEES.
Client shall pay all Account-related fees, including, but not limited to, set-up fees, user fees, service fees, hosting fees, and any applicable taxes according to Modular Merchant's fee schedule located on the Modular Merchant website at http://www.modularmerchant.com/fees/.
Client is also responsible for the payment of any fees associated with work requested by Client or Client's authorized users and performed by Modular Merchant, including, but not limited to web development, programming, technical support, or consultation.
These fees may change from time-to-time at Modular Merchant's discretion. Any changes to recurring Account fees will be applicable to Client's account at the start of Client's next billing cycle after the changes are made and will be reflected on the invoice for the next billing cycle. Any changes to fees for work performed as-needed, e.g., programming or consultation, will be applied to work performed after any applicable rate change.
3.2 TAXES.
Client shall be solely responsible for the payment of all taxes related to the sales of Client's products using the Modular Merchant software and services, including all sales, use, or other taxes and duties, however designated, whether international, national, state or local, applicable to the transactions contemplated by this Agreement; excluding, however, income taxes or gross receipts taxes which may be levied against Modular Merchant. Such taxes may be reflected on client invoices.
3.3 METHODS OF PAYMENT.
Modular Merchant accepts payments by credit card (American Express, MasterCard, Visa) and echeck only. Client is required to retain a valid credit card on file for the payment of all Account fees, taxes, and fees for any other work performed by by Modular Merchant on Client's behalf.
3.4 BILLING.
Client's 30-day billing cycle begins on the date Client's Account is activated (this includes new Accounts created or those moved from trial mode to active status). Client is invoiced every 30 days thereafter for the following 30 days. Payments are due upon receipt of invoice. Modular Merchant will automatically charge Client's credit card on file for any past due invoice for current, suspended or cancelled accounts. No refunds will be given for Accounts terminated in the middle of a billing cycle.
3.5 LATE PAYMENTS/NON-PAYMENT OF FEES OR TAXES.
If Client fails to pay any fees or taxes within seven (7) days of the applicable due date, Modular Merchant will have the right to: (a) assess interest in an amount equal to the greater of 1.5 percent (1.5%) per month or the maximum allowable under applicable law; (b) assess a late fee equal to the interest in subsection (a), with a minimum charge of $5.00; (c) suspend Client's Account ; (d) and/or terminate this Agreement without notice. Suspended accounts will not be accessible by the Client.
3.7 COLLECTION COSTS AND ATTORNEY FEES
Client will be responsible for any costs associated with collecting any unpaid amounts owing under this Agreement including, without limitation, legal costs, attorneys' fees, court costs and collection agency fees, regardless of whether legal action is commenced.
In the event either party defaults or breaches this Agreement, such party shall reimburse all reasonable costs and attorney fees incurred by the other in connection with the default or breach, regardless of whether litigation is commenced. In the event of any litigation or other proceeding, including any action or participating in connection with a case or proceeding under any chapter of the Bankruptcy Code or any successor statute, between the parties to declare or enforce any provision of this Agreement, the prevailing party or parties shall be entitled to recover from the other party or parties, in addition to any other recovery and cost, reasonable attorney fees incurred in such litigation or other proceeding, in both the trial and in all appellate courts and reasonable post-judgment collection costs, including attorney fees.
3.6 PAYMENT HISTORY.
Client may access their payment history and a list of scheduled invoices at any time by visiting https://www.modularmerchant.com/customers/. The email address and password associated with Client's Account is required in order to access this website.
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ARTICLE 4 - TERM AND TERMINATION
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4.1 ACCOUNT TERM
Client's Account begins upon activation pursuant the terms of Section 2.2, above, and continues thereafter on a month-to-month basis unless otherwise terminated as provided for under this Agreement.
4.2 ACCOUNT TERMINATION BY CLIENT.
Client will have the right to terminate this Agreement and close its Account at any time. All requests for Account termination must be submitted using the "Close Account" form in the Client's account administration area on the Modular Merchant website or by submitting a written request pursuant to Section 8.1. Account cancellations are performed upon receipt of an authorized request. No refunds will be given for Accounts terminated in the middle of a billing cycle.
4.2.1 TERM AND TERMINATION OF DEDICATED SERVER ACCOUNT
For Clients who subscribe to a Dedicated Server product, "Dedicated Server Commencement Date" means the date on which Modular Merchant provides the access information that enables the Client to send and receive information from their Dedicated Server.
The initial term of the subscription to the Dedicated Server product begins on the Service Commencement Date and continues for the period of one year. Upon expiration of the initial term, the Client's subscription to the Dedicated Server product renews for successive extended terms of 30 days each.
Prior to the completion of the initial term, if the Client terminates their subscription to the Dedicated Server product for convenience, or Modular Merchant terminates this Agreement for Client's breach, in addition to other amounts the Client may owe, they must pay an early termination fee equal to the total monthly recurring fees for the remaining portion of the then-current term. The Client will not be charged an early termination fee under this Section in the event that they terminate this Agreement as part of an agreement to establish a replacement Dedicated Server product within the Modular Merchant service segment, even if the overall fees for the replacement Dedicated Server are less than those for the current one, provided that the replacement Dedicated Server is the functional equivalent of the current one.
After the initial term, Client may terminate their subscription to the Dedicated Server product for convenience at any time on thirty (30) days advance written notice by using the "Close Account" form in the Client's account administration area to provide at least thirty (30) days advance notice of non-renewal.
4.3 ACCOUNT TERMINATION BY MODULAR MERCHANT.
Modular Merchant shall have the right to terminate this agreement at any time upon written notice to Client or as otherwise provided in this Agreement. Cancellations under this section are effective immediately.
4.4 OBLIGATIONS UPON ACCOUNT TERMINATION OR NON-RENEWAL
Upon the termination or non-renewal of this agreement for any reason (a) Client's access to, and use of, the Software and Services will terminate; (b) any amounts owed to Modular Merchant under this Agreement before the termination, including Account fees, as defined in Section 3.1, late fees, and/or interest, will be immediately due and payable; (c) all rights and obligations of the parties under this Agreement shall immediately terminate except as otherwise set forth below; and (d) Client agrees to return to Modular Merchant any and all Software, documentation or other deliverables provided to Client by Modular Merchant including any copies thereof held by Client.
4.5 SURVIVAL
Except as otherwise stated in this Agreement, any provisions in this Agreement that by their sense and context are intended to survive the termination of this Agreement shall survive such termination. Notwithstanding the foregoing, any cause of action that Modular Merchant may have against Client for breach of this Agreement before the date of termination shall survive such termination.
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ARTICLE 5 - AFFILIATE PROGRAM
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5.1 AFFILIATE PROGRAM PROVISIONS
The following provisions apply to Clients who have opted to participate in the Modular Merchant affiliate marketing program, or has otherwise been accepted by Modular Merchant to participate in the affiliate marketing program:
A) Modular Merchant will pay a commission (the "Commission") equal to ten percent (10%) of amounts billed on eligible products and received by Modular Merchant from new customers who purchase services from Modular Merchant within six (6) months after clicking on an approved Modular Merchant affiliate link on a website owned or controlled by Client.
B) All tracking of referrals and clicks are as determined by Modular Merchant's systems. Modular Merchant will not pay Commissions on sales that are subsequently rescinded or charged back and any Commissions paid on such sales must be repaid or debited from future Commissions due.
C) Modular Merchant will aggregate Commissions due and issue checks only when the check amount is equal to or greater than $100.00 (USD).
D) In order to be eligible to earn Commissions, Client must maintain accurate and up-to-date account information within their Affiliate Account control panel, accessible at: https://www.modularmerchant.com/clients/modmerch/affiliates/ Failure to do so will result in forfeiture by the Client of past or future earned Commissions.
E) Modular Merchant may, at its sole discretion, change the commission rate and other terms and conditions of this affiliate marketing program at any time, with such changes to be effective when posted to the Modular Merchant website.
F) Modular Merchant may, at its sole discretion, change the products eligible for the earning of affiliate commissions at any time, with such changes to be effective when posted to the Modular Merchant website.
G) Client may not use or display on the affiliate link any material that is defamatory, misleading, libelous, obscene or otherwise potentially damaging to the reputation of Modular Merchant.
H) Modular Merchant may offset against any Commissions earned any due and unpaid amounts in respect of Services.
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ARTICLE 6 - DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
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EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, MODULAR MERCHANT MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ABOUT THE SOFTWARE, SERVICES OR ACCESS TO OR USE OF THE SOFTWARE OR SERVICES PROVIDED TO CLIENT UNDER THIS AGREEMENT.
THE SOFTWARE AND SERVICES ARE PROVEDED "AS IS." TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, MODULAR MERCHANT DISCLAIMS ALL WARRANTIES OF ANY KIND INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
IN NO EVENT WILL MODULAR MERCHANT AND/OR ITS SUPPLIERS BE LIABLE TO YOU OR ANY THIRD PARTY CLAIMANT FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL OR INCIDENTAL DAMAGES OR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST OR DAMAGED DATA OR BUSINESS INTERRUPTION, ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE OR SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF MODULAR MERCHANT HAS BEEN ADVISED OF SUCH DAMAGES. IF CLIENT'S USE OF THE SOFTWARE OR SERVICES RESULTS IN THE NEED FOR SERVICING, REPAIR OR CORRECTION OF EQUIPMENT OR DATA, CLIENT ASSUMES ALL COSTS THEREOF.
MODULAR MERCHANT'S LIABILITY UNDER THIS AGREEMENT FOR ANY DIRECT DAMAGES OF ANY KIND WILL NOT EXCEED AN AMOUNT EQUAL TO THE AMOUNT PAID BY CLIENT TO MODULAR MERCHANT THROUGH THE DATE MODULAR MERCHANT'S LIABILITY TO CLIENT ACCRUES.
APPLICABLE LAW MAY NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES; THEREFORE, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. WARRANTIES GIVE YOU SPECIFIC LEGAL RIGHTS AND YOU MAY HAVE OTHER RIGHTS, WHICH VARY FROM STATE-TO-STATE.
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ARTICLE 7 - INDEMNIFICATION
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7.1 CLIENT'S OBLIGATIONS.
Client agrees to indemnify, defend and hold harmless Modular Merchant, its managers, directors, officers, employees, independent contractors and agents against any action brought against same that arise out of or relate to Client's use of and/or access to the Software and Services provided hereunder, including, but not limited to, those provided under Article 2.
7.2 MODULAR MERCHANT'S OBLIGATIONS.
Modular Merchant agrees to indemnify, defend and hold harmless Client, its directors, officers, employees and agents against any third-party claims that use of the Software or Services by Client infringes or misappropriates any Intellectual Property Rights of a third party. Modular Merchant's obligation shall not extend to a claim based on any alleged infringement arising from any (a) additions, changes, or modifications to the Software or Services, or any component of same not made by Modular Merchant, (b) incorporation of the Software or Services, or any component of same, into any other product or process, or (c) use of the Software or Services other than as permitted by this Agreement. If the Software or Services, or any part thereof, become or, in Modular Merchant's opinion, are likely to become the subject of any such suit or action for infringement, Modular Merchant may, at its option and expense, procure for Client the right to continue using the Software or Services, or any part thereof, or to replace or modify the Software or Services (as applicable), so that the Software or Services become noninfringing. If in Modular Merchant's sole judgment, such procurement, replacement, or modification is not commercially feasible, Modular Merchant may cancel this Agreement without further liability or obligation to Client.
7.3 PROCEDURE.
The indemnifying party's indemnification obligations under Sections 7.1 and 7.2 are conditioned on the indemnified party's (a) giving prompt notice of the claim to the indemnifying party, (b) granting sole control of the defense or settlement of the claim or action to the indemnifying party, except that the indemnified party's prior written approval will be required for any settlement that reasonably can be expected to require a material affirmative obligation of, or result in any ongoing material liability to, the indemnified party, and (c) providing reasonable cooperation to the indemnifying party and, at the indemnifying party's request and expense, assistance in the defense or settlement of the claim.
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ARTICLE 8 - MISCELLANEOUS
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8.1 NOTICES.
Except as otherwise specifically outlined in this Agreement, 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 facsimile (fax), with a confirmation copy sent via overnight mail; (d) one (1) business day after deposit with a national overnight courier; or (e) upon transmission if sent via email with a copy sent the same day via first class mail.
Unless another address is specified: All notices to Modular Merchant shall be sent to the mailing address, email, or fax number specified on the Modular Merchant website Contact page at http://www.modularmerchant.com/contact.php. All notices to Client shall be sent to the mailing address, email or fax number listed in Modular Merchant's records.
8.2 ASSIGNMENT.
Client 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 Modular Merchant's prior written consent, which consent may be withheld, delayed or conditioned at Modular Merchant's discretion. Modular Merchant will have the right to assign this agreement, in whole or in part, to a third party at any time upon written notice to client.
8.3 FORCE MAJEURE.
Neither party shall have any liability to the other for any failure or delay in performing any obligation under this Agreement due to circumstances beyond its reasonable control including, but not limited to, acts of God or nature, actions of the government, fires, floods, strikes, civil disturbances or terrorism, or power, communications, satellite or network failures.
8.4 WAIVERS.
All waivers of the terms of this Agreement must be in writing and signed by the parties. 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 of those rights or any other rights under this agreement.
8.5 SEVERABILITY.
If any of the provisions of this Agreement shall be deemed invalid, void or unenforceable, that provision shall be deemed severable and shall not affect the validity and enforceability of any remaining provisions.
8.6 PUBLIC ANNOUNCEMENTS. Client grants Modular Merchant the right to use Client's name in press releases, product brochures and financial reports indicating that Client is a client of Modular Merchant.
8.7 HEADINGS.
The headings used herein are for reference and convenience only and shall not enter into the interpretation hereof.
8.8 MODIFICATION.
Modular Merchant reserves the right, at its sole discretion, to modify the terms and conditions of this Agreement from time to time. Client consents and agrees that its only notification of any change in terms will be by a conspicuous posting of the notice on Client's Account log in screen.
8.9 APPLICABLE LAW AND VENUE.
This Agreement will be governed by and construed in accordance with the laws of the State of Oregon, without giving effect to any principles of conflicts of laws. Any dispute arising between Modular Merchant and Client related to this Agreement shall be adjudicated in any state or federal court in Lane County, Oregon. Both parties hereby submit to the jurisdiction of such courts over each of them in connection with such dispute, and waive any objection to venue in such courts and any claim that such forum is an inconvenient forum.
8.10 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. |
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