This Service Agreement ("Software Service Agreement") is a legal agreement between Customer (either an individual or a single entity) (referred to herein as "Customer") and carttrial.com ("Company "). By using the Shopping Cart Software, Customer agrees to be bound by the terms of this Agreement. If Customer does not agree to the terms of this Agreement, do not purchase the Shopping Cart Software.
This Agreement constitutes the entire agreement between Customer and Company, and supersedes all prior or contemporaneous agreements, representations, warranties and understandings with respect to the web site, the content, or services provided by or through the web site, and the subject matter of this Agreement. Company may amend this Agreement at any time, without specific notice to Customer. The latest Agreement will be posted on the Site, and Customer should review this Agreement prior to using the Software.
BY COMPANY INSTALLING THIS SOFTWARE, CUSTOMER AGREES TO THE FOLLOWING LICENSE:
COMPANY'S PROGRAM IS COPYRIGHTED AND LOGO IS TRADEMARKED.
Company hereby grants to Customer, and Customer accepts, a nonexclusive license to use Shopping Cart Software Service, object code form only (collectively referred to as the "Software" and "Program"), and any accompanying User Documentation, only as authorized in this License Agreement. The Software may be used on any one website owned by Customer, or if Customer is a company or corporation, any one website owned by Customer company or corporation.
Customer agrees that Company has no proprietary or other interested in Customer's content. By offering hosting of Customer's content, Company does not publish or otherwise provide Customer's content to end users. Customer is solely responsible for all text, graphics, data and any aspect of Customer's website content. Customer warrants that it owns or has the right to use and offer the content on its website.
Company warrants to Customer benefit alone, that the Software conforms in all material respects to the specifications for the current version of the Software. This warranty is expressly conditioned on Customer's observance of the operating, security, and data-control procedures set forth in the Owners Manual.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, CUSTOMER DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS, AND WARRANTIES WITH RESPECT TO THE LICENSED PROGRAM, INCLUDING ITS CONDITION, ITS CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, THE EXISTENCE OF ANY LATENT OR PATENT DEFECTS, ANY NEGLIGENCE, AND ITS MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE.
Company shall have sole and exclusive ownership of all right, title, and interest in and to the Licensed Program and all modifications and enhancements thereof (including ownership of all trade secrets and copyrights pertaining thereto), subject only to the rights and privileges expressly granted to Customer herein by Company . This Agreement does not provide Customer with title or ownership of the Software, but only a right of limited use. Customer must keep the Licensed Program free and clear of all claims, liens, and encumbrances.
Customer may not use, copy, modify, or distribute the Software (electronically or otherwise), or any copy, adaptation, transcription, or merged portion thereof, except as expressly authorized by Company. Customer rights may not be transferred, leased, assigned, or sub-licensed except for a transfer of the Licensed Program in its entirety to (1) a successor in interest of Customer's entire business who assumes the obligations of this Agreement or (2) any other party who is reasonably acceptable to Company, enters into a substitute version of this Agreement, and pays a $99.00 administrative fee intended to cover attendant costs. No service bureau work, multiple-user license, or time-sharing arrangement is permitted, except as expressly authorized by Company.
Customer acknowledges that, in the event of Customer breach of any of the foregoing provisions, Company will not have an adequate remedy in money or damages. Company shall therefore be entitled to obtain an injunction against such breach from any court of competent jurisdiction immediately upon request. Company's right to obtain injunctive relief shall not limit its right to seek further remedies.
Copyright laws and international copyright treaties, as well as other intellectual property laws and treaties protect this Software Service Agreement. This Agreement does not transfer any right, title or interest in the Shopping Cart Software to Customer except as specifically set forth herein.
All title and copyrights in and to the Shopping Cart Software (including but not limited to any scripts, images, photographs, and copy into the Shopping Cart Software), the accompanying printed materials, are owned by Company, and copyright laws and international treaty provisions protect Shopping Cart Software. Therefore, Customer must treat the Shopping Cart Software like any other copyrighted material.
Customer has optional access to user Company servers to send and receive emails. Customer agrees to comply with the CAN Spam Act of 2003 located here: http://www.ftc.gov/bcp/conline/pubs/buspubs/canspam.shtm. Any violation to the CAN Spam Act of 2003 will result in the immediate shut down and access to the website. Company will charge Customer $500.00 (five hundred dollars) for the violation and any additional fees and time associated with the violation. Company's time will be billed at $70 per hour.
Company has a zero tolerance policy for spam and does not permit spam to be sent through Company mail servers.
All email sent via Company mail servers must meet the following criteria:
In addition, any account that uses more email accounts than allowed on their hosting package, will be moved up to the appropriate level and billed accordingly.
Company may terminate this Software Service Agreement if Customer fails to comply with the terms and conditions of this Software Service Agreement. Company also reserves the right to take additional legal action for violations of this Software Service Agreement.
If Customer is located in the United States of America; this Software Service Agreement is governed by the laws of the State of Arizona, United States, excluding any conflict of law principles, and specifically excludes the United Nations Convention on Contracts. The U.S. federal and state courts of the State of Arizona shall have sole and exclusive jurisdiction and venue to adjudicate over any actions relating to the subject matter of this Software Service Agreement. Regardless of the physical location of Customer, the parties hereto consent to the exclusive jurisdiction of the courts specified above, and expressly waive any objection to the jurisdiction or convenience of such courts.
Customer agrees to indemnify, defend, and hold Company and its successors, officers, directors, agents and employees harmless from any and all actions, causes of action, claims, demands, cost, liabilities, expenses and damages (including attorneys' fees) arising out of, or in connection with, this Software Service Agreement. Company agrees to indemnify, defend, and hold the Customer and its successors, officers, directors, agents and employees harmless from any and all actions, causes of action, claims, demands, costs, liabilities, expenses and damages (including attorneys' fees) arising out of any breach of this Agreement by the Company.
Company, its Affiliates, and Service Providers entire liability and Customer's exclusive remedy shall be, at Company's option from time to time exercised subject to applicable law, return of the price paid for the Service. Customer will receive the remedy elected by Company without charge, except that Customer is responsible for any service expenses Customer may incur in returning monies.
Customer may use Company's trademarks, service marks, trade names, logos, or other commercial or product designations (collectively, "Marks") for promotional purposes with prior written consent of Company. Notwithstanding the foregoing, Customer grants to Company a non-exclusive, nontransferable, royalty-free, worldwide license to use Customer's Marks (a) for the purposes of marketing, promotion, and content directories or indexes and (b) in electronic or printed advertising, publicity, press releases, newsletters and mailings about the Customer and the Customer/Company relationship.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, COMPANY PROVIDES THAT ALL SERVICES PERFORMED HEREUNDER ARE "AS IS". THE COMPANY HEREBY EXPRESSLY DISCLAIMS ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES, REGARDING COMPANY'S SOFTWARE SERVICE OR ANY PORTION THEREOF, INCLUDING BUT NOT LIMITED TO FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, TRADE PRACTICE, OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COMPANY SPECIFICALLY DISCLAIMS (A) ANY WARRANTY REGARDING: THE NUMBER OF PERSONS WHO WILL ACCESS THE CONTENT; (B) THAT THE SERVICES WILL MEET THE CUSTOMER'S NEEDS OR EXPECATIONS, (C) THAT ALL NON-CONFORMITIES CAN OR WILL BE CORRECTED; OR (D) THE OPERATION OR APPEARANCE OF THE SOFTWARE. COMPANY DOES NOT GUARANTEE OR WARRANT THAT ACCESS TO OR USE OF THE DATABASE SHALL BE CONTINUOUS, UNINTERRUPTED, SECURE BEYOND COMPANY'S FIREWALL OR ERROR-FREE. IN THE EVENT OF INTERRUPTION OF THE SERVICE, COMPANY'S SOLE OBLIGATION SHALL BE TO RESTORE SERVICE AS SOON AS REASONABLY POSSIBLE
NOTWITHSTANDING ANY DAMAGES THAT CUSTOMER MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED ABOVE AND ALL DIRECT OR GENERAL DAMAGES), THE ENTIRE LIABILITY OF COMPANY AND ANY OF ITS SUPPLIERS UNDER ANY PROVISION OF THIS AGREEMENT AND CUSTOMER'S EXCLUSIVE REMEDY FOR ALL OF THE FOREGOING (EXCEPT FOR ANY REMEDY OF REPAIR ELECTED BY COMPANY WITH RESPECT TO ANY BREACH OF THE LIMITED WARRANTY) SHALL BE LIMITED TO THE GREATER OF THE AMOUNT ACTUALLY PAID BY CUSTOMER FOR THE FIRST THREE MONTHS OF SERVICE. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS (INCLUDING SECTIONS ABOVE) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
Company shall have the right to transfer and assign this Software Service Agreement, in whole or in part, to any person or entity who acquires all or substantially all of the business or assets of the Company or that portion of the business or assets to which this Software Service Agreement relates.