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NetStores' Terms of Service

1.0 ACKNOWLEDGMENT AND ACCEPTANCE OF SERVICE AGREEMENT

The NetStores service ("NetStores" or the "Service"), owned and operated by Fishbone Communications, Inc. (NetStores or Fishbone Communications, Inc.) is provided to you ("you" or "Merchant") under the terms and conditions of this NetStores Merchant Service Agreement and any amendments thereto and any operating rules or policies (collectively, the "NMSA" or "Agreement"). NetStores reserves the right, in its sole discretion, to change, modify, add or remove all or part of the NMSA at any time. Merchant will receive notice of such changes and/or modifications pursuant to Section 14 regarding notices.

1.1 By accepting the terms and conditions of the NMSA, Merchant (a) represents and warrants that he or she is 18 years old or older; (b) agrees to provide true, accurate, current and complete information about Merchant as prompted by the Account Registration Form; and (c) agrees to maintain and update this information to keep it true, accurate, current and complete. If any information provided by Merchant is untrue, inaccurate, not current or incomplete, NetStores has the right to terminate Merchants account and refuse any and all current or future use of the Service.

1.2 BY COMPLETING THE ACCOUNT REGISTRATION PROCESS AND CLICKING THE "I ACCEPT" BUTTON, YOU AGREE TO BE BOUND BY THE NMSA. Nothing in this agreement obligates NetStores or the Service to list, link to, accept or otherwise host any online Storefront anywhere on the NetStores site. If these terms and conditions or any future changes are unacceptable to you, you may cancel your account pursuant to Section 7.1 regarding termination of service.

2.0 DESCRIPTION OF NETSTORES STORE SERVICE NetStores hosts interactive online stores ("Store or Storefront") on the World Wide Web and provides merchants with access to its NetStores Software ("Software") to facilitate the creation and maintenance of Stores for the sale of goods and services located at www.netstores.com ("Online Storefront Services"). 3.0 MERCHANT'S OBLIGATIONS

3.1 Merchant acknowledges and agrees that it shall be responsible for all goods and services offered at Merchants Storefront, all materials used or displayed at the Storefront, and all acts or omissions that occur at the Storefront or in connection with Merchant's account or password. Certain Stores may be subject to additional requirements.

3.1.1 Merchant agrees to display in the Storefront Merchant's contact information, including but not limited to Merchant's company name, address, telephone number, fax number and e-mail address. Merchant also agrees to update such information to keep it true, accurate, current and complete.

3.1.2 Merchant represents and warrants that it has full power and authority under all relevant laws and regulations:

  • to offer and sell the goods and services offered at the Storefront, including but not limited to holding all necessary licenses from all necessary jurisdictions to engage in the advertising and sale of the goods or services offered at the Storefront;

    to copy and display the materials used or displayed at the Storefront; and,

  • to provide for credit card payment and delivery of goods or services as specified at the Storefront.

3.1.3 Merchant represents and warrants that it will not engage in any activities:

  • that constitute or encourage a violation of any applicable law or regulation, including but not limited to the sale of illegal goods or the violation of export control or obscenity laws;

    that defame, impersonate or invade the privacy of any third party or entity;

    that infringe the rights of any third party, including but not limited to the intellectual property, business, contractual, or fiduciary rights of others; and,

  • that are in any way connected with the transmission of "junk mail" "spam" or the unsolicited mass distribution of e-mail, or with any unethical marketing practices.

3.2 NetStores reserves the right to refuse to host or continue to host any Storefront which it believes, in its sole discretion: (1) offers for sale goods or services, or uses or displays materials, that are illegal, obscene, vulgar, offensive, dangerous, or are otherwise inappropriate; (2) has substantially changed its Storefront from the time it was accepted; (3) received a significant number of complaints for failing to be reasonably accessible to customers or timely fulfill customer orders; (4) has become the subject of a government complaint or investigation; or (5) has violated or threatens to violate the letter or spirit of the NMSA.

4.0 PROPRIETARY RIGHTS

4.1 Software License. NetStores hereby grants Merchant a non-exclusive, non-transferable license to use the Software in object code form only on a server controlled by NetStores for the sole purpose of creating and maintaining Stores on such server. Merchant is not being granted any right to copy the Software or to use it on computers other than a server controlled by NetStores. Merchant may not use Web pages or parts of Web pages generated by means of the Software, other than content that originates from and is proprietary to Merchant, on any server other than the servers controlled by NetStores without NetStores' express written agreement. Merchant also acknowledges and agrees that the Software is intended for access and use by means of web browsing software, and that NetStores does not commit to support any particular browsing platform. NetStores reserves the right at any time to revise and modify the Software, release subsequent versions thereof and to alter features, specifications, capabilities, functions, and other characteristics of the Software, without notice to Merchant. If any revision or modification to the Software materially changes Merchants ability to conduct business, Merchants sole remedy is to terminate the NMSA pursuant to Section 7.1 regarding termination of service.

4.2 NetStores Intellectual Property. Merchant acknowledges and agrees that content available from NetStores or the Service, including but not limited to text, software, music, sound, logos, trademarks, service marks, photographs, graphics, or video, is protected by copyright, trademark, patent, or other proprietary rights and laws, and may not be used in any manner other than as specified in Section 4.1 above. .

4.3 Merchant's Property. Merchant agrees that by using the Service, Merchant grants NetStores, and its successors and assigns, a non-exclusive, worldwide, royalty-free, perpetual, non-revocable license under Merchants copyrights or other intellectual property rights, if any, in such material to use, distribute, display, reproduce, and create derivative works from such material in any and all media, for purposes of promoting NetStores or NetStores generally or Merchants Storefront in particular. Merchant also grants NetStores the right to maintain such content on NetStores' servers during the term of the NMSA and to authorize the downloading and printing of such material, or any portion thereof, by endusers for their personal use.

4.4 Unauthorized Access. Merchant shall not attempt to gain unauthorized access to any servers controlled by NetStores.

5.0 FEES

5.1 Merchant shall pay NetStores a monthly fee as set forth in the NetStores fee schedule available at http://www.netstores.com/prods.html and made a part hereof. All such fees are payable in U.S. dollars to NetStores and shall be charged on the first day of each month to the credit card number given to NetStores at the time of registration or to such other credit card number which Merchant shall so designate. NetStores may also, upon 30 days prior notice to Merchant, alter its fee schedules and terms of the NMSA.

6.0 TERMS

6.1 Term. The term of the NMSA shall begin on the date Merchant purchases the Service through online payment method or faxed agreement and continue for 180 days. The term shall automatically renew for successive 180 day terms at renewal rates applicable at the time, unless notice of non-renewal is provided in accordance with Section 6.2, below; provided, however, that to qualify for each renewal Merchant must at the time of renewal be in substantial compliance with the material terms and conditions of the NMSA. NetStores shall have the right, but not the obligation, to review any Storefront for compliance with the NMSA as part of the renewal process, or at any time.

6.2 Non-Renewal. Either party, in its sole and absolute discretion, may give notice of nonrenewal with or without cause and without stating any reason therefor. Any notice of nonrenewal must be given at least thirty (30) days prior to the end of the term then in effect and in the manner described in Section 14 regarding notice.

7.0 TERMINATION

7.1 Termination. Either party may terminate the NMSA on thirty (30) days notice if the other party has materially breached or is otherwise not in compliance with any provision of the NMSA, and such breach or noncompliance is not cured within such thirty (30) day period. NetStores reserves the right to immediately suspend any customer access to the Storefront until such breach or noncompliance is cured.

7.2 Termination for Illegal or Other Activity. Notwithstanding the foregoing, NetStores may, but has no duty to, immediately terminate Merchant and remove it from NetStores servers if NetStores in its sole discretion concludes that Merchant is engaged in illegal activities or the sale of illegal or harmful goods or services, or is engaged in activities or sales that may damage the rights of NetStores or others. Any termination under this Section 7.2 shall take effect immediately and Merchant expressly agrees that it shall not have any opportunity to cure.

7.3 Waiver. Merchant expressly waives any statutory or other legal protection in conflict with the provisions of this Section 7.

7.4 Deletion of Information. Upon termination, NetStores reserves the right to delete from its servers any and all information contained in Merchants account, including but not limited to order processing information, mailing lists, and any Web pages generated by the Software.

7.5 The provisions of Section 4 (Proprietary Rights), Section 10 (Indemnity), and Section 11 (Disclaimer of Warranties and Liabilities) of this Agreement shall survive any termination of the Agreement.

8.0 MERCHANT PRIVACY

8.1 Merchant Information. NetStores maintains information about Merchant and the Storefront on NetStores servers, including but not limited to Merchants account registration information, Merchant's customer order information, sales information, and transaction data ("Merchant Information"). Merchant agrees that NetStores may use Merchant Information in aggregate form for marketing or other promotional purposes.

8.1.1 Merchant agrees that NetStores may disclose Merchant Information in the good faith belief that such action is reasonably necessary: (a) to comply with the law; (b) to comply with legal process; (c) to enforce the NMSA; (d) to respond to claims that the Merchant or Storefront is engaged in activities that violate the rights of third parties; or (e) to protect the rights or interests of NetStores, NetStores or others; provided, however, that nothing in this section shall impose a duty on NetStores to make any such disclosures.

8.1.2 Merchant agrees that NetStores may delete customer credit card information from NetStores servers 14 days after Merchant retrieves such information, and may delete all other Merchant Information from NetStores servers at the end of each calendar year.

8.2 Password. Merchant shall receive a password from NetStores to provide access to and use of the Software and Online Storefront Services. Merchant is entirely responsible for any and all activities which occur under Merchants account and password. Merchant agrees to keep its password confidential, to allow no other person or company to use its account, and to notify NetStores promptly if Merchant has any reason to believe that the security of its account has been compromised.

8.3 Technical Access. Merchant acknowledges and agrees that technical processing of Merchant Information is and may be required: (a) for the Service to function; (b) to conform to the technical requirements of connecting networks; (c) to conform to the technical requirements of the Service; or (d) to conform to other, similar technical requirements. Merchant also acknowledges and agrees that NetStores may access Merchant's account and its contents as necessary to identify or resolve technical problems or respond to complaints about the Service.

9.0 MAINTENANCE AND SUPPORT

9.1 Merchant can obtain assistance with any technical difficulty that may arise in connection with Merchant's utilization of the Software or Online Storefront Services by requesting assistance by email to support@netstores.com. NetStores reserves the right to establish limitations on the extent of such support, and the hours at which it is available.

9.2 Merchant is responsible for obtaining and maintaining all telephone, computer hardware and other equipment needed for its access to and use of the Software and Online Storefront Services and Merchant shall be responsible for all charges related thereto.

10.0 INDEMNITY

Merchant agrees to indemnify and hold harmless NetStores, and its parents, subsidiaries, affiliates, officers, directors, shareholders, employees and agents, from any claim or demand, including reasonable attorneys fees, made by any third party due to or arising out of Merchants conduct, Merchants use of the Service, the goods or services offered at Merchants Storefront, any alleged violation of the NMSA, or any alleged violation of any rights of another, including but not limited to Merchants use of any content, trademarks, service marks, trade names, copyrighted or patented material, or other intellectual property used in connection with Merchants Storefront. NetStores reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Merchant, but doing so shall not excuse Merchants indemnity obligations.

11.0 DISCLAIMER OF WARRANTIES AND LIABILITIES

THE SERVICE AND SOFTWARE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. NEITHER THIS AGREEMENT OR ANY DOCUMENTATION FURNISHED UNDER IT IS INTENDED TO EXPRESS OR IMPLY ANY WARRANTY THAT THE ONLINE STOREFRONT SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE OR THAT THE SOFTWARE WILL PROVIDE UNINTERRUPTED, TIMELY OR ERROR FREE SERVICE. THE SECURITY MECHANISM INCORPORATED IN THE SOFTWARE HAS INHERENT LIMITATIONS AND MERCHANT MUST DETERMINE THAT THE SOFTWARE ADEQUATELY MEETS ITS REQUIREMENTS.

MERCHANT ACKNOWLEDGES AND AGREES THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT ITS OWN DISCRETION AND RISK AND THAT MERCHANT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO ITS COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. NETSTORES, AND ITS PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS, SHALL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES OR LEGAL THEORIES WHATSOEVER, FOR ANY LOSS OF BUSINESS, PROFITS OR GOODWILL, LOSS OF USE OR DATA, INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER, EVEN IF NETSTORES IS AWARE OF THE RISK OF SUCH DAMAGES, THAT RESULT IN ANY WAY FROM MERCHANTS USE OR INABILITY TO USE THE ONLINE STOREFRONT SERVICES OR THE SOFTWARE, OR THAT RESULT FROM ERRORS, DEFECTS, OMISSIONS, DELAYS IN OPERATION OR TRANSMISSION, OR ANY OTHER FAILURE OF PERFORMANCE OF THE ONLINE STOREFRONT SERVICES OR THE SOFTWARE. NetStores' LIABILITY TO MERCHANT SHALL NOT, FOR ANY REASON, EXCEED THE AGGREGATE PAYMENTS ACTUALLY MADE BY MERCHANT TO NETSTORES OVER THE COURSE OF THE EXISTING TERM. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR LIABILITIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.

12.0 NO RESALE OR ASSIGNMENT OF SERVICE

Merchant agrees not to resell or assign or otherwise transfer its rights or obligations under the NMSA without the express written authorization of NetStores.

13.0 FORCE MAJEURE

Neither party shall be liable to the other for any delay or failure in performance under the NMSA resulting directly or indirectly from acts of nature or causes beyond its reasonable control.

14.0 NOTICES

Any notices or communications under the NMSA shall be by electronic mail or in writing and shall be deemed delivered upon receipt to the party to whom such communication is directed, at the addresses specified below. If to NetStores, such notices shall be addressed to billing@netstores.com or NetStores, c/o Fishbone Communications, Inc, 1462 W. 8th Ave, Eugene, OR, 97402, USA. If to Merchant, such notices shall be addressed to the electronic or mailing address specified when Merchant opens an account with NetStores, or such other address as either party may give the other by notice as provided above.

15.0 ENTIRE AGREEMENT

The NMSA constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all previous proposals, both oral and written, negotiations, representations, writings and all other communications between the parties.

16.0 GENERAL

The NMSA and the relationship between Merchant and NetStores shall be governed by the laws of the state of Oregon without regard to its conflict of law provisions. Merchant and NetStores agree to submit to the personal and exclusive jurisdiction of the Superior Court of the State of Oregon for the County of Lane or the United States District Court for the State of Oregon. NetStores' failure to exercise or enforce any right or provision of the NMSA shall not constitute a waiver of such right or provision. If any provision of the NMSA is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties intentions as reflected in the provision, and agree that the other provisions of the NMSA remain in full force and effect. Merchant agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the NMSA must be filed within one (1) year after such claim or cause of action arose, or be forever barred. The section titles in the NMSA are for convenience only and have no legal or contractual effect.

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