SOFTSLATE HOSTING SERVICES AGREEMENT
This agreement ("Agreement") is a legal agreement between you (either an individual or a single entity) ("Client") and SoftSlate, LLC ("SoftSlate").
The terms and conditions in this agreement are entered into as of the date on which you first apply for and/or use the Subscribed Services as defined below. By using the Subscribed Services, you are agreeing to be bound by the Agreement. SoftSlate reserves the right to update and change the Agreement from time to time without notice. Continued use of the Subscribed Services after any changes shall constitute your consent to the changes.
You understand that SoftSlate uses a third party vendor, Strategic Systems Consulting, Inc., d/b/a eApps Hosting ("eApps"), to provide the necessary hardware, software, networking, storage, and related technology required to run the Subscribed Services ("Hosting Account"). The eApps account fee is included in the amount you pay SoftSlate. No additional fee is required and you need not have any direct contact nor any direct relationship with eApps. However, by agreeing to the Agreement you also agree to abide by the terms of the eApps Hosting Agreement, whose text may be found on the eApps website (http://support.eapps.com/policy/hagree).
2. Subscribed Services
The Subscribed Services include:
2.1. Installation and configuration of SoftSlate Commerce on the Hosting Account, including Web server configuration, application server configuration, database configuration, and SoftSlate Commerce configuration. You will be supplied an administrative URL, login, and password for SoftSlate Commerce when installation is complete, which you can then use to set up your store.
2.2. Complete access to the SoftSlate Commerce User Guide and Java API documentation (http://www.softslate.com/docs.html) as well as complete access to the SoftSlate User Forums (http://www.softslate.com/forums).
2.3. Ongoing application-level support, including:
2.3.1. Assistance with the initial Payment Configuration for the store, including setting up the integration with any of the payment gateways supported by SoftSlate Commerce out-of-the-box.
2.3.2. Assistance with the initial Shipping Configuration for the store, including setting up the integration with any of the shipping providers supported by SoftSlate Commerce out-of-the-box such as UPS or USPS.
2.3.3. Assistance with the initial Tax Configuration for the store.
2.3.4. Troubleshooting any issues with the shopper experience of SoftSlate Commerce, including navigating through products and categories, and establishing and maintaining customer accounts.
2.3.5. Troubleshooting any issues with placing orders and going through the checkout process of SoftSlate Commerce.
2.3.6. Troubleshooting any issues with the Administrator interface of SoftSlate Commerce and assistance with any of the out-of-the-box administrative functions and features.
2.3.7. Troubleshooting any issues with any of the other out-of-the-box functions featured in SoftSlate Commerce.
2.3.8. Troubleshooting any issues with application errors or exceptions experienced by users of SoftSlate Commerce.
2.3.9. Regular monitoring of the application to notify SoftSlate of application errors or exceptions that take place.
2.3.10. If Client is purchasing the Pro or Premium Hosted Edition of the Subscribed Services, regular monitoring of the shopper's experience through a test script that mimics a user's session and notifies SoftSlate of any unexpected responses.
2.3.11. If Client is purchasing the Pro or Premium Hosted Edition of the Subscribed Services, regular monitoring of the application server through a test script that ensures the application is up and running and restarts the application server and notifies SoftSlate if it is not.
3.1. Support includes the above monitoring activities, following up on errors and issues, answering questions, providing suggestions, and general help and support. It does not include the regular maintenance tasks involved with running your store, such as maintaining the product catalog, processing orders, communicating with customers, or configuring the store's detailed behaviors.
3.2. If customizations are made to the Client's installation of SoftSlate Commerce that modify the out-of-the-box functions and features, SoftSlate will provide support for the customizations according to any Master Services Agreement signed by SoftSlate and the Client, or, if no Master Services Agreement has been executed, according to any applicable Purchased Support Agreement (available at http://www.softslate.com/purchase.html).
3.3. Support for any other applications not installed and configured solely through the eApps control panel is subject to a separate agreement and billing.
3.4. You are responsible for maintaining the security of your accounts and passwords. SoftSlate cannot and will not be liable for any loss or damage from your failure to protect your account.
3.5. You are responsible for all content posted to the Hosting Account and activity that occurs under each of your account's administrative logins.
3.6. You may not use the Subscribed Services for any illegal or unauthorized purpose. You must not, in the use of the Subscribed Services, violate any laws in your jurisdiction (including but not limited to copyright laws).
3.7. SoftSlate does not actively police the content of its Clients. However, we do not permit illegal or highly objectionable content on our service. Examples of prohibited content are gambling sites, pornographic sites, or content that is highly offensive.
4. Payments, Refunds, Cancellation, and Termination
4.1. The fee for the Subscribed Services is posted on softslate.com.
4.2. You may cancel your account at any time by contacting SoftSlate by phone or email (http://www.softslate.com/contact.html). However, the Subscribed Services are billed in advance on a yearly basis and payments are non-refundable. There will be no refunds or credits for partial years of service, or refunds for years unused with an open account.
4.3. Unless other payment arrangements have been made, a valid credit card is required for paying accounts. If your credit card expires or is no longer valid for any other reason and we ask for updated credit card information but you do not provide it, we will cancel your account.
4.4. If you are registering on behalf of a corporation you warrant that you have the authority to bind the corporation.
4.5. All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes.
4.6. SoftSlate, in its sole discretion, has the right to suspend or terminate your account and refuse any and all current or future use of the Subscribed Services, or any other SoftSlate service, for any reason at any time.
5.1.Mutual Warranties. Each party represents and warrants to the other party that: (a) it has the full authority and power to enter into and perform its obligations under this Agreement; (b) no approval, action or authorization by any governmental agency is required for its execution and performance hereunder, or if it is, such approval, action or authorization has been obtained; (c) its execution and delivery of this Agreement and performance or compliance with the terms of this Agreement will not conflict with, result in a breach of, constitute a default under, or require the consent of any third party under any license, sublicense, lease, contract, agreement or instrument to which such party is bound or to which its properties are subject; (d) to its knowledge, there are no pending or threatened lawsuits, actions or any other legal or administrative proceedings against it which, if adversely determined against it, would have a material adverse affect on its ability to perform its obligations under this Agreement; (e) it will comply with all applicable laws, rules, orders, statutes, and regulations in connection with the performance of its obligations under this Agreement, and (f) all employees, agents, consultants and subcontractors who will participate in the performance, delivery or acceptance of the Subscribed Services have been informed of the obligations contained herein and have agreed in writing to be bound by them, including without limitation the confidentiality obligations.
5.2.Disclaimer Regarding the Subscribed Services and SoftSlate Commerce. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY SOFTSLATE, EITHER IMPLIED OR STATUTORY, WITH RESPECT TO THE SUBSCRIBED SERVICES INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR TITLE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. FURTHERMORE, SOFTSLATE DISCLAIMS ANY WARRANTY (A) THAT THE SOFTWARE WILL RUN PROPERLY ON ALL HARDWARE OR SYSTEMS OR OPERATE IN ALL COMBINATIONS WHICH MAY BE SELECTED FOR USE BY A USER, OR (B) THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE.
Each party agrees to indemnify and hold the other party harmless against any and all claims, demands, actions, suits, liabilities, damages, losses and expenses (including attorneys' fees) arising out of or in connection with (a) any breach of any representation, warranty, or obligation under this Agreement; (b) any personal injury (including death) and property damage, if due to gross negligence or wilful misconduct, and (c) a breach of the confidentiality obligations hereunder.
"Confidential Information" means trade secrets or other information that has actual or potential commercial value or other utility in the business or prospective business of the disclosing party, including, but not limited to, ideas, methods, design concepts, inventions, internet implementation and operation processes and policies, documentation, products, technology, business plans, business partners, potential or pending acquisitions, roll-out dates, timelines, any customer information, location information, advertising and marketing plans and strategies, formulas, patterns, devices, user names, systems, applications, specifications and data, software (including, without limitation, its architecture, features, functions, structure and code), customer and supplier lists, financial information, and compilations of information. Confidential Information may be transmitted orally, in writing, as photocopies, photographs, computer files, notes, memos, faxes, letters, e-mails, files, reports, surveys, presentations, business plans, financial documents, analyses, video and audio tapes, or in any other manner, or method of transmitting information whether prepared by the disclosing party to this Agreement or a third party on the disclosing party's behalf.
7.1.Non-Disclosure. The receiving party agrees, both during and after the Term of this Agreement, to hold the Confidential Information of the disclosing party in the strictest confidence, not to disclose such Confidential Information to any third party, and not use the Confidential Information except as authorized under this Agreement. The receiving party shall, however, be permitted to disclose relevant aspects of such Confidential Information to its officers, employees, attorneys, auditors by a public accounting firm, or a federal or state government agency as required by law, each on a need-to-know basis, provided that such party has undertaken to protect the Confidential Information to the same extent as required under this Agreement.
7.2.Exception. The obligations set forth in Section 5.1 do not apply if and to the extent the party receiving Confidential Information ("Receiving Party") establishes that:
(a) the information disclosed to the Receiving Party was already known to the Receiving Party, without obligation to keep it confidential;
(b) the Receiving Party received the information in good faith from a third party lawfully in possession thereof without obligation to keep such information confidential;
(c) the information was publicly known at the time of its receipt by the Receiving Party or has become publicly known other than by a breach of this Agreement;
(d) the information is independently developed by the Receiving Party without use of the other Party's Confidential Information; or
(e) the information is required to be disclosed by applicable statute or regulation or by judicial or administrative process;
provided that, in the case of (a) through (e) above, such circumstances are demonstrated with written evidence thereof and that, in the case of (e) above, the Receiving Party will use reasonable efforts under the circumstances and if not prohibited by applicable law or order to notify the other party of such requirements so as to provide such party the opportunity to obtain such protective orders or other relief as the compelling court or other entity may grant.
8.Limitation of Liability.
Except for obligations arising out of Section 4 (Indemnification) or liabilities arising out of a breach of Section 5 (Confidentiality), neither party shall be liable for any indirect, incidental, special or consequential damages (including cover, any loss of profits or data, business interruption, computer failure or other pecuniary loss) arising out of this Agreement, whether a claim is brought in contract, warranty, tort (including negligence, product liability or strict liability), even if a party has been advised of the possibility of such damages.
In the event of any dispute between the parties arising out of or related to this Agreement except for collection of any fees due hereunder, the dispute shall be referred initially for resolution by written notice under the following escalation process: (a) to a vice president, senior manager or equivalent officer for discussion and resolution for a period of ten (10) calendar days, beginning no later than the last day of any requisite review, notice or cure period; and (b) thereafter to the Chief Financial Officer, Chief Operating Officer or Chief Executive Officer, in the case of Client, and David Tobey for SoftSlate for discussion and resolution for a period of ten (10) calendar days, beginning no later than the last day of the first level escalation process. The identified representatives shall meet in good faith to attempt to resolve such matter. The representatives are subject to change with reasonable written notice. In the event that any dispute that is not settled by such good faith negotiation, within twenty (20) days of any party's initial written notice to the other party, then the dispute shall be submitted to arbitration conducted by a single arbitrator familiar with agreements such as this Agreement and the Subscribed Services in Albany, New York under the Commercial Arbitration Rules of the American Arbitration Association. Either party, before or during any discussion, may apply to a court of competent jurisdiction under this Agreement for injunctive relief where such relief is necessary to protect its interest pending completion of the discussion or if the expiration of the statute of limitations for a cause of action is imminent.
10.1.Assignment. Neither party shall assign this Agreement or any right or interest in this Agreement without the prior written consent of the other. This Agreement will be fully binding upon and inure to the benefit of and be enforceable by the parties and their respective successors and permitted assigns.
10.2.Notices. All communications and notices given by either party under this Agreement must be in writing and sent to the address below or as designated in writing by a party via (a) electronic mail with electronic mail receipt, (b) hand delivery, (c) facsimile with confirming receipt of delivery, (d) registered or certified mail, return receipt requested, or (e) overnight express carrier. Any party may change its address for purposes of any such communication by giving ten (10) days' prior notice of such change. All notices sent pursuant to the terms of this section will be deemed received if properly sent pursuant to this Section 8.2 and (i) if sent by electronic mail or facsimile, on the day sent or, if not a business day, then on the next business day, (ii) if sent by overnight, express carrier, on the business day immediately following the day sent, or (iii) if sent by registered or certified mail, on the fourth business day following the day sent.
10.3.Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to its conflict of law rules. Any legal proceeding arising out or relating to this Agreement will be subject to the exclusive jurisdiction of any state or federal court sitting in Albany, New York. In any action to enforce rights under this Agreement, the prevailing party shall be entitled to an award of reasonable attorneys' fees and any court costs incurred in such action or proceeding.
10.4.Compliance with Laws. Each party agrees to comply with all applicable laws, rules, and regulations in connection with its activities under this Agreement, including without limitation the applicable export and sanctions regulations of the United States.
10.5.Relationship of the Parties. This Agreement does not create any partnership, agency, employment or joint venture relationship between the parties and neither party has the authority to create any obligation on behalf of the other. This Agreement governs only the relationship between Client and SoftSlate and nothing herein creates any right or will inure to the benefit of any person not a party to this Agreement. SoftSlate's employees who perform SoftSlate's obligations under this Agreement shall at all times be and remain employees of SoftSlate, not employees of Client. SoftSlate shall pay SoftSlate's employees and shall ensure that each of its subcontractors pays its employees all wages, salaries, overtime, and other amounts due to such employees. SoftSlate shall be responsible for, and shall ensure that each of its subcontractors shall be responsible for, all reports, payments, and other obligations respecting their respective employees, including without limitation, those related to social security, income tax withholding, unemployment compensation, workers' compensation, and employee benefit plans.
10.6.Injunctive Relief. The parties agree that a breach of the provisions of this Agreement by the other party may cause irreparable damage for which recovery of monetary damages would be inadequate and that the non-breaching party may seek injunctive relief or other equitable relief to protect its Confidential Information and proprietary rights under this Agreement, in addition to any and all remedies available at law without the necessity of posting a bond.
10.7.Personnel. As used in this Agreement, the term "SoftSlate" shall include SoftSlate's employees, agents and subcontractors, and the terms and conditions of this Agreement will apply to and be binding upon such employees, agents and subcontractors of SoftSlate. Client shall have the right in its sole discretion to approve in advance any use of any agents or subcontractors.
10.8.Severability. In the event that any one or more of the provisions contained in this Agreement is, for any reason, held to be invalid, illegal or unenforceable in any respect, then to the maximum extent permitted by law, such invalidity, illegality or unenforceability will not affect any other provision of this Agreement. Furthermore, in lieu of any such invalid or unenforceable provision, the parties hereto intend that there will be added as a part of this Agreement a provision as similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable.
10.9.Entire Agreement; Waiver; Amendment. Each party acknowledges that it has read this Agreement, and its Exhibits, and agrees to be bound by its terms and that it is the complete and exclusive agreement and understanding between the parties concerning the subject matter hereof, which supersedes all previous understandings, negotiations and proposals, whether oral or written. No modification, amendment, consent or discharge in connection with this Agreement or any of its provisions shall be binding upon either party unless in writing and signed by both parties. Each exhibit is governed by the terms and conditions of this Agreement. To the extent that any conflict arises between any exhibit and this Agreement, the terms and conditions of this Agreement shall control. The observance of any term may be waived only with the written consent of the parties. The failure of a party at any time or times to require performance of any provision hereof shall in no manner affect its right at a later time.
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