Terms and Conditions
You must read, agree with, and accept all of the terms and conditions in this
Terms of Service Agreement before you become an XLE previously OBN Customer. BY PURCHASING YOU HEREBY ACKNOWLEDGE THAT YOU HAVE REVIEWED THESE TERMS AND CONDITIONS SET FORTH ABOVE AND AGREE TO THE OBN TERMS OF SERVICE. TERMS OF SERVICE and STORE FRONT LICENSE AND SERVICES TERMS AND CONDITIONS
By signing up for OBN/XLE Electronic Commerce products and services (“Service”) or any of the services of XLE Commerce/Einsteins Eyes Inc previously Outdoor Business Network, Inc. (“OBN”) you are agreeing to be bound by the following terms and conditions (“Terms of Service”). Any new features, products, services or software which are added to the current Service shall also be subject to the Terms of Service. OBN reserves the right to change the Terms of Service by posting updates and changes to the OBN website. You are advised to check the Terms of Service on a regular basis for any updates or changes that may affect you. You can review the Terms of Service at any time here .
WITNESSETH:
WHEREAS, Consultant is in the business of developing and providing
Internet technology solutions and electronic commerce applications; and
WHEREAS, Customer desires to engage the services of Consultant in order to establish a Retail Internet StoreFront under the terms and conditions set
forth hereunder.
NOW, THEREFORE, Consultant and Customer hereby agree as follows:
ARTICLE I. DEFINITIONS
Section 1.01 – Recitals : The above recitals and identification of parties are
true and correct.
Section 1.02 – Definitions : The following definitions shall apply:
(1) Authorized Person(s) : The term “Authorized Person(s)” shall mean (i)
employees and legal counsel of the Receiving Party with a need to know
Confidential Information disclosed to Receiving Party by Disclosing Party and
(ii) persons or organizations with a need to know Confidential Information
and who agree in writing to maintain the confidentiality of such Confidential
Information.
(2) Additional Catalog Modules Fee . The term “Additional Catalog Modules
Fee” shall mean the fee for providing Catalog Modules in excess of one.
(3) Additional Domain Names Fee . The term “Additional Domain Names Fee”
shall mean the fee for each additional domain name used by the Customer.
(4) Bandwidth Fee : The term “Bandwidth Fee” shall mean the fees for
providing telecommunication access and meeting bandwidth and other usage
requirements of Customer as set forth in the Agreement. Any increase in
Bandwidth usage over and above forty five (45) gigabytes per month shall
result in an additional charge.
(5) Catalog Module . The term “Catalog Module” shall mean the catalog
module for each Distributor used by the Customer.
(6) Catalog Module Fee . The term “Catalog Module Fee” shall mean the fee
for one (1) Distributor Catalog Module.
(7) Coding : The term “Coding” shall mean software, programming codes,
models, processes, events, methods, properties, scripts or statements for
developing web pages as written in a programming language, including
(without limitations) Visual Basic (VB), Active Script (ASP), C++, Cascadian
Style Sheet (CSS), VBScript, Extended Markup Language (XML), Hypertext
Markup Language (HTML), Java, JavaScript, PreHyper
Text (PHP), Virtual
Reality Modeling Language (VRML) and Shockwave programming languages.
(8) Confidential Information : The term “Confidential Information” shall
mean all information identified in writing as confidential information and
which is not: (a) already known to the Receiving Party from a source other
than the Disclosing Party; (b) conveyed to the Receiving Party by a third
party without any restriction as to confidentiality or use; (c) independently
developed without reference to the confidential information or (d) in the
public domain.
(9) Consulting Services : The term “Consulting Services” shall mean those
certain consulting, programming, conversion, analysis, graphic art,
promotion, upgrade,
training and ad hoc services provided by Consultant to
Customer.
(10) Content : The term “Content” shall mean information uploaded to
Consultant’s website, including (without limitation) catalog information,
product list in Consultant’s format, and supplier lists provided by Customer
to Consultant, transaction histories, user information, chatroom transcripts
and any Technology uploaded, posted or submitted by user on the Retail
StoreFront.
(11) Customer : The term “Customer” shall mean the individual or entity
identified as “Customer” on the signature page of the Agreement.
(12) Customer Materials : The term “Customer Materials” shall mean the
Content disclosed or provided to Consultant by Customer for the purposes of
developing the Retail StoreFront,
including customer name, domain name,
logos, design sketch, questionnaires, text and images (if any).
(13) Deposit Materials : The term “Deposit Materials” shall mean only the
source code for the Consultant Technology developed in connection with the
Retail StoreFront
(excluding Tools).
(14) Design Template : The term “Design Template” shall mean a
nonfunctioning
template defining the Retail StoreFront,
based upon
information provided in the form of OBN’s Design Sketch & Sample Sites
sheet or other customer provided graphics and text.
(15) Developer : The term “Developer” shall mean the owner, authorized
distributor, or licensee of the Tools or Customer Materials (as applicable).
(16) Disclosing Party : The term “Disclosing Party” shall mean a party to the
Agreement who reveals Confidential Information to the other party to the
Agreement.
(17) Distributor . The term “Distributor” shall mean the distributors of
products sold on the Retail StoreFront.
(18) Documentation : The term “Documentation” shall mean the Retail
StoreFront
guide describing the functions of the Retail StoreFront
as
provided by Consultant in printed or electronic form as listed in Schedule A,
services purchased in Customers Online Account, or in documents linked to
on Consultant Web Site.
(19 Domain Registration/Transfer Fee : The term “Domain
Registration/Transfer Fee” shall mean the fee for making registering or
transferring the Customers domain name to Consultants System or
administering a domain name held by a 3rd party.
(20) Domain Name Redirect Fee . The term “Domain Name Redirect Fee”
shall mean the fee for linking more than one Customer domain name.
(21) Effective Date : The term “Effective Date” shall mean the date the
Agreement is signed by Customer (whichever is later) or entered into by
Customer by completing an online transaction requesting Consultant
product(s) and/or service(s).
(22) Monthly Fee: The term “Monthly Fee” shall mean the license fees for
making certain software modules available to Customer as set forth in the
Agreement on Schedule A or as purchased in the Customers Online Account
at Consultant Web Site. Monthly Fee may include fees for additional products
and/or services as requested by Customer, or purchased via the Customer
Online Account at Consultant Web Site. Monthly Fees are nonrefundable.
(23) Hosting Reinstatement Fee: The term “Hosting Reinstatement Fee”
shall mean the fees for reinstating this contract after a default or breach by
the Customer in any of the terms and provisions of this contract, including
late payment of fees.
(24) SetUp
Fee : The term “SetUp
Fee” shall mean the amount of money
to be paid by the Customer to Consultant for development of the Retail
StoreFront
as set forth in the Agreement. SetUp
Fee is nonrefundable.
(25) Consultant Technology : The term “Consultant Technology” shall mean
any and all Technology developed by or for Consultant, including (without
limitation) the Retail StoreFront,
Consultant Web Site, Consultant System,
code, content, databases, hardware, business practices, and other
information.
(26) Consultant Web Site : The term “Consultant Web Site” shall mean that
certain Consultant Web Site which is located on the Internet
at www.outdoorbusinessnetwork.com , or such other websites or domain
names, as may be set up by the Consultant from time to time, and as may
be relocated by Consultant from time to time, including any and all
Consultant Technology used, incorporated, stored or accessible therein, as
implemented on the Consultant System and made accessible to users
through the Internet. Consultant Web Site may allow Customer access to a
Customer Online Account to purchase additional products and services as
well as view account information, make payments, and receive notifications
from Consultant.
(27) Consultant System. The term “Consultant System” shall mean the
Consultant Technology, Consultant Web Sites, domain names, Policy
Statements, computer hardware, computer software, and all other aspects
of the Consultant’s business.
(28) OBN Hosted Email Fee. The term “OBN Hosted Email Fee” shall mean
the fee charged for Outdoor Business Network to host a Customer email
address.
(29) Policy Statement : The term “Policy Statement” shall mean those
certain written statements of policies, terms of use and legal notices
concerning access to the Retail StoreFront
as may be adopted by
Consultant and as modified by Consultant from time to time.
(30) Receiving Party : The term “Receiving Party” shall mean a party to the
Agreement who receives Confidential Information from the other party to the
Agreement.
(31) Retail StoreFront
Services : The term “Retail StoreFront
Services”
shall mean Retail StoreFront
features and services provided by Consultant
to facilitate the creation, implementation, and maintenance of the Retail
StoreFront
as selected by Customer and approved by Consultant in the
Agreement.
(32) Services : The term “Services” shall mean the Retail StoreFront
Services and the Consulting Services (as applicable).
(33) Technology : The term “Technology” shall mean (i) evaluation,
technical, scientific, engineering, marketing, catalog, financial and business
reports, plans, studies, diagrams, or flow charts; (ii) all forms and types of
scientific, technical, economic, or engineering information; and (iii)
information, data, ideas, works of authorship, computer software, source
code, object code, executable code, software libraries, documentation,
databases, database designs, data dictionaries, data models, fields, records,
scripts, texts, list server email logs, interface designs, protocols, screen
displays, web sites, web pages, links, audiovisual components, Coding,
Documentation, patterns, compilations, formulas, methodologies,
techniques, processes, procedures, adaptations, derivative works,
computers, machines, articles of manufacture, improvements, hardware,
peripherals, components and networks, whether tangible or intangible, and
whether stored, compiled, or memorialized (without limitation) physically,
electronically, graphically, photographically, or in writing.
(34) Launch : The day the website is launched and is navigable to online via
a dedicated IP address.
(35) Tools : The term “Tools” shall mean third party Technology
incorporated in whole or in part into the Retail StoreFront.
ARTICLE II. SCOPE OF SERVICES
Section 2.01 – Scope : In the event of any conflict between the terms set
forth herein and the terms of the Agreement, the terms set forth herein shall
govern.
Section 2.02 – Services : Consultant shall provide Consulting Services and
Retail Store Front Services to Customer as requested by Customer on
Schedule A or purchased via Customers Online Account at the Consultant
Web Site, subject to written approval of Consultant.
Section 2.03 – Personnel : The personnel assigned to perform Services shall
be determined solely by Consultant. Customer hereby acknowledges and
agrees that Consultant may engage independent contractors to perform the
Services on behalf of Consultant.
Section 2.04 – Access : Customer hereby authorizes Consultant to access
the Customer Materials and Customer’s information, data, computers, and
computer software for purpose of performing the Agreement. Such access
shall be subject to the confidentiality provisions hereunder and independent
contractors shall sign confidentiality Agreements. Customer hereby grants
permission to Consultant to incorporate anonymous statistics into publicly
available reports which may be derived from Customer’s data as follows:
1. Number of transactions, hits, sessions and visitors.
2. Gross volume of transaction dollar amounts.
3. Number of Retail StoreFront
Customers.
4. Geographic distribution of Retail StoreFronts,
warehouses and
distributions points.
5. Number of items stored in the catalog.
6. User profiles without attributing information to user identities.
Section 2.05 – Schedule : The Services shall be performed during the hours
of 9:00 a.m. through 5:00 p.m., Eastern Standard Time, Monday through
Friday (excluding holidays), unless otherwise required (as determined
exclusively by Consultant).
Section 2.06 – Facilities : The Services shall be performed at the facilities of
Consultant, unless otherwise required (as determined exclusively by
Consultant).
ARTICLE III. RETAIL STOREFRONT
DEVELOPMENT
Section 3.01 – Development Scope : Development of the retail storefront
includes products, services, and features listed on Schedule A or purchased
via Customers Online Account at the Consultant Web Site and those items
listed in this article III. The scope does not include set up or connection of
third party accounts, supplier accounts, payment gateways, shipping
accounts, merchandising, marketing services, or any other action, service,
module, or software not specifically listed in Schedule A or purchased via
Customers Online Account.
Section 3.02 – Customer Materials : Customer shall disclose and provide to
Consultant the Customer Materials within a reasonable time after completion
of this agreement and submission of the Design Sketch. Set up time is
measured in business days and starts at Consultants receipt of Customer
Materials and Design Sketch.
Section 3.03 – Design Template : Consultant shall develop a Design Template
which shows the Customer Materials integrated into the Retail Store Front
and provide access to it via the Consultant Web Site. At this time the Retail
Store Front is considered set up. The Design Template will be based upon
the Design Sketch with any changes deemed required by Consultant to
perform in accordance with the Documentation.
Section 3.04 – Revisions : The Customer is allowed one (1) round of revisions
to the Design Template. The Design Template shall be deemed approved by
Customer within fortyeight
(48) hours after Customer receipt of the Design
Template unless Consultant receives notice from Customer specifying the
changes to the Design Template via Consultant Web Site within such
fortyeight
(48) hour period.
Section 3.05 – Launch : Based upon the Design Template and revisions,
Consultant shall design the Retail StoreFront
and shall develop Coding and
website Technology for the Retail StoreFront
which shall enable the Retail
StoreFront
to perform the functions defined and described in the
Documentation.
Section 3.06 – Implementation : Based upon the Design Template
Consultant shall implement the Retail StoreFront
on the Consultant Web
Site and Launch the website.
Section 3.07 – Acceptance : The Retail StoreFront
shall be deemed
accepted at Implementation. Revisions requested after implementation may
be subject to additional hourly charges.
ARTICLE IV. RETAIL STOREFRONT SERVICES
Section 4.01 – StoreFront
License : During the Term, Consultant hereby
grants Customer a nonexclusive,
nontransferable
and revocable license to
use the Retail StoreFront
and to permit users to use the Retail StoreFront,
in executable code form only solely for the purposes set forth in the Design
Template and according to the Documentation. Customer shall not copy the
Retail StoreFront
or use the Retail StoreFront
on any other system or
server other than the Consultant System. Customer shall not use any
Technology created or generated during use or access to the Retail
StoreFront
on any other computer other than the Consultant System.
Section 4.02 Backup
and Usage Information : Consultant shall backup the
Retail StoreFront
using commercially reasonable backup procedures.
Customer shall not have access to such backup.
Section 4.03 – Credit Card Processing : All credit card or debit card
processing required for the Retail StoreFront
to enable credit or debit card
purchases by users, shall be provided by the Customer. Customer shall be
responsible for taking any action, providing information, maintaining,
updating implementing and executing any Agreements or documentation
required third parties, including (without limitation) obtaining a merchant
account and all fees, costs and expenses in connection therewith.
Consultant shall not be responsible for any aspect of the user financial
arrangements required by the Retail StoreFront,
or errors or omissions of
third parties in connection with fund processing services.
Section 4.04 – Security Certificate : Retail StoreFront
Services may include
issuance to Customer of an SSL certificate or other equivalent security
certificate to enable secure and encrypted communications between users
and the Retail StoreFront.
Customer hereby acknowledges that all such
security certificates are provided by third party certificate authorities.
Customer is responsible for taking any action, providing information,
maintaining, updating, implementing and executing any Agreements and
documentation required by such third parties, including (without limitation)
all fees, costs and expenses in connection therewith. Consultant shall not be
responsible for any errors or omissions of third parties in connection with
security certificates.
Section 4.05 – Domain Name Registration : Retail StoreFront
Services may
include registration of a domain name for the Retail StoreFront.
Upon
request by Customer, Consultant shall apply and pay the initial registration
fee to register the Domain Name desired by the Customer with a registration
company on behalf and in the name of the Customer. In the event such
desired domain name is not available, rejected or opposed by a third party,
Consultant shall explain the reasons for the unavailability or rejection of
such domain name. Such notice shall be given verbally to Customer after
Consultant receipt of notice of such unavailability, rejection or opposition.
Upon request by Customer, Consultant shall apply to register another
domain name subject to the foregoing procedures.
Section 4.06 – Passwords : Customer hereby acknowledges and agrees that
access to certain areas of Retail StoreFront
(as determined by Consultant)
shall be subject to use of a password mutually agreeable to Customer and
Consultant (“Customer Password”). Customer acknowledges that Consultant
shall not provide full or administrative access to the Retail StoreFront
or the
hosting equipment. Access to the Retail StoreFront
shall be determined in
the exclusive discretion of Consultant. Modification of Customer Password
shall be subject to approval of Consultant. In the event Customer is enabled
to issue passwords to users (“User Passwords”) for accessing the Retail
StoreFront,
Consultant shall have the right to access such User Passwords
and Customer shall cooperate with Consultant in providing information to
Consultant in connection with such User Passwords for purposes of operating
and maintaining the Retail StoreFront.
Consultant shall maintain all
password information in strict confidence. Customer hereby accepts
responsibility for, and shall be liable for, all access to the Retail StoreFront
in connection with User Passwords and Customer Passwords. Customer shall
be responsible for the confidentiality of the Customer Password. Customer
shall be responsible for maintenance of User Passwords.
Section 4.07 – Access : Customer hereby acknowledges and agrees that
access to the Retail StoreFront
may be affected by local market
telecommunication network activity, capacity and compatibility with third
party communication equipment, Internet access software and browser.
Consultant hereby disclaims and Customer hereby waives any and all
Consultant responsibility for any defect or service interruption in connection
with local market telecommunication network activity, capacity and
compatibility with third party communication equipment, Internet access
software and browsers.
Section 4.09 – Exclusivity : Customer hereby acknowledges and agrees that
Consultant shall be the exclusive provider of Internet access, hosting, web
design services, ecommerce
solutions, and advertising management for the
Retail StoreFront
and related websites. The Consultant System shall be
accessed exclusively by Consultant for purposes of performing the
Agreement. In no event shall Customer use third parties or permit third
parties to access the Retail StoreFront
for purposes of performing any
services concerning the Retail StoreFront,
including (without limitation)
third party Internet service providers, web designers, ecommerce
solution
providers, or thirdparty
advertising management services in connection
with the Retail StoreFront.
Section 4.10 Contact
Person : Consultant and Customer shall each
designate a principal contact person who shall act as a liaison between
Consultant and Customer and who shall have sufficient authority to grant or
communicate the granting of all necessary approvals.
ARTICLE V. INTELLECTUAL PROPERTY
Section 5.01 – Consultant Technology : Title to Consultant Technology
(excluding the Tools), including all ownership rights to patents, copyrights,
trademarks and trade secrets in connection therewith shall be the exclusive
property of Consultant. Customer hereby acknowledges that the Consultant
Technology shall not be deemed “works made for hire” under the U.S.
Copyright Act [17 U.S.C. § 101 et seq.]. Customer hereby assigns, transfers
and conveys any and all rights, title and interests, Customer may have or
accrue in connection with development or use of the Consultant Technology,
including (without limitation) any and all ownership rights to patents,
trademarks, copyrights and trade secrets in connection therewith.
Section 5.02 – Customer Materials : Title to Customer Materials, including all
ownership rights to patents, copyrights, trademarks and trade secrets in
connection therewith shall be the exclusive property of Customer.
Section 5.03 Content
License : All Technology and Content (except the User
Password and Customer Password) uploaded, posted or submitted by user
on the Retail StoreFront
shall be deemed nonconfidential.
User hereby
grants Consultant a nonexclusive,
perpetual, worldwide
license to use,
reproduce, create derivative works, display, perform, release, distribute,
sell, and disclose such Technology and Content, in whole or in part, in any
manner for the purpose of advertising, promotion, analysis and other
purposes beneficial to Consultant or Customer, and to have and authorize
others to do so. Customer hereby acknowledges and consents to use of
cookies or similar technology in the Retail StoreFront.
Section 5.04 – Trade Secrets : Customer hereby acknowledges and agrees
that the Consultant Technology (excluding Consultant Technology authorized
by Consultant for access through the Internet without a Password) derives
independent economic value (actual or potential) from not being generally
known to other persons who can obtain economic value from its disclosure
or use and not being readily ascertainable by proper means by other persons
who can obtain economic value from its disclosure or use; is the subject of
reasonable efforts by Consultant under the circumstances to maintain its
secrecy; and is a trade secret as defined under Chapter 688 of the Florida
Statutes [§688.002(4)].
Section 5.05 – Authorization : Customer hereby represents and warrants that
Customer has obtained all necessary authorizations, permissions or licenses
from the Developer to distribute and provide the Customer Materials to
Consultant. Customer hereby represents and warrants that Customer has
the authority to grant the license granted by Customer to Consultant under
the Agreement. Customer hereby represents and warrants that use,
reproduction, display and performance of Customer Materials by Consultant
shall not infringe upon or violate any patent, copyright, trade secrets or
trademark rights of any third party or violate any laws, including (without
limitation) the United States export laws (Export Administration Act, 15 CFR
730774)
and import laws.
Section 5.06 – Confidentiality : The Receiving Party shall not disclose
Confidential Information except to Authorized Persons. The Receiving Party
shall hold Confidential Information in confidence and shall not duplicate, use
or disclose Confidential Information except as permitted under the
Agreement. Receiving Party shall require Authorized Persons who receive
Confidential Information from Receiving Party to hold and maintain such
Confidential Information in confidence and not use or reproduce such
Confidential Information except as permitted under the Agreement. The
Consultant Technology (excluding the Tools and Consultant Technology
authorized by Consultant for access through the Internet without a
Password) shall be deemed Confidential Information of Consultant.
Section 5.07 – Links : Customer hereby acknowledges and agrees that
Consultant shall have the right to use the name of Customer, including the
Retail StoreFront,
and a mutually agreeable graphic logo and trademarked
name for reference as a customer of Consultant services and for referral and
marketing purposes. Customer hereby authorizes Consultant to maintain on
the Consultant Web Site a link to the Customer Retail StoreFront.
Customer hereby acknowledges that the Retail StoreFront
may contain links
to third party web sites. Any such links are provided solely as a convenience
to users and do not constitute an endorsement by Consultant of such web
sites and the third party content therein.
Section 5.08 – Consultant Legend : Customer hereby authorizes Consultant
to include the Consultant Legend on the primary web page of the Retail
StoreFront
in location and font type and size mutually agreeable to both
parties. Notwithstanding the foregoing, Consultant shall have no duty or
obligation to include the Consultant Legend on the Retail StoreFront.
Section 5.09 – Unauthorized Use : Customer shall not (directly or indirectly)
copy or download the Retail StoreFront
or Consultant Web Site without the
prior written consent of Consultant. Customer shall not modify, reverse
engineer, reproduce, display, perform or distribute, establish a link to,
associate (directly or indirectly) itself with, or cause confusing, including
(without limitation) by framing, metatags or similar means, the Retail
StoreFront
or Consultant Web Site and shall not allow the Retail StoreFront
to be reverse engineered.
Section 5.10 Unauthorized
Access : Customer shall prevent any individual
to access the Retail StoreFront
except for individuals and employees of
users authorized to access the Retail StoreFront
for the exclusive purpose
of accessing the areas of the Retail StoreFront
designated by Consultant in
the exclusive discretion of Consultant solely for purposes of viewing,
browsing, retrieving, uploading and posting information on and ordering
products through the Retail StoreFront,
according to the Documentation
during the Term using a Password (as may be required) subject to the
Terms and Conditions. Customer shall prevent any access to the Retail
StoreFront
except for the exclusive purpose of accessing the areas of the
Retail StoreFront
designated by Consultant in the exclusive discretion of
Consultant solely for purposes of viewing, browsing, retrieving, uploading
and posting information on and ordering products through the Retail
StoreFront,
according to the Documentation during the Term using a
Password (as may be required) subject to the Terms and Conditions.
Section 5.11 No
Contest : Customer shall not contest or aid in contesting
the ownership or validity of the copyrights, trademarks, service marks and
trade secrets (as applicable) of Consultant in connection with the Retail
StoreFront.
Section 5.12 Trademarks
: Consultant shall retain all rights, title, and
ownership interests in trademarks, trade names, service marks and trade
dress of Consultant and goodwill associated therewith. Customer
acknowledges that, excepting the trademarks of Consultant, all other
product, service and company names mentioned in the Retail StoreFront
may be trademarks of their respective owners.
Section 5.13 – Continuation : The terms and provisions of this Article V shall
survive termination and cancellation of the Agreement.
ARTICLE VI. PAYMENTS
Section 6.01 – SetUp
Fee : Customer shall pay Consultant the SetUp
fee
upon on the Effective Date.
Section 6.02 – Monthly Fees : Customer shall pay, on the 1st day of each
month, all of the fees applicable to the Retail StoreFront
Services as set
forth in the Agreement. Such fees shall apply as of the first month following
the Effective Date and shall be subject to an annual review by Consultant.
Registered users shall include all users registered to use the Retail
StoreFront
for any portion of the applicable month. Consultant must give
Customer at least thirty (30) days prior written notice of changes in the
foregoing fees.
Section 6.03 – Transaction Fees : N/A
Section 6.04 – Expenses : Customer shall pay all reasonable direct costs,
including (without limitation) postage, shipping, telephone, communications,
fees charged by third parties, insurance, travel, per diem, material and
reproduction costs incurred by Consultant in performing Services at rates
and in amounts approved by Customer before such costs are incurred.
Section 6.05 – Taxes : Customer shall pay any and all applicable taxes
(excluding income taxes assessed against Consultant) assessed by
governmental entities on the goods and services provided hereunder.
Section 6.06 – Invoice : Customer shall pay any invoices by Consultant for
fees and expenses in connection with the Services. Customer shall pay any
such invoice in full on the due date thereof or within thirty (30) days of
receiving such invoice (whichever is earlier). A ten (10) percent late fee will
be added to any invoice which has become past due.
ARTICLE VII. TEMPORARY SUSPENSION
Section 7.01 Causes for Temporary Suspension : We may suspend
Customer’s right to access or use any portion of the Retail Store Front
immediately if we determine:
(a) Customer’s use of Retail Store Front; (i) poses a security risk to Outdoor
Business Network, our affiliates, or any of our system’s users, (ii) may
adversely impact the services provided to any other Outdoor Business
Network Customer, (iii) may subject Consultant, our affiliates, or any other
third party to liability, or (iv) may be fraudulent;
(b) you are, or any End User is, in breach of this Agreement, including the
Terms and Conditions, including if you are delinquent on your payment
obligations for more than 30 days.
Section 7.02 Effects of Suspension: If we suspend your right to access or
use any portion or all of the Retail Store Front:
(a) you remain responsible for all fees and charges you have incurred
through the date of suspension;
(b) you remain responsible for any applicable fees and charges for any
ongoing Monthly Fees, late payment and interest charges applicable under
section 8.06, and any reinstatement fees which may be applicable under
section 8.06 until termination of the Agreement at which time Article VIII
governs payment responsibility;
(c) you will not be entitled to service credits for any period of suspension;
(d) we will not delete Customer’s Content except (i) if Customer’s Content is
the cause of suspension under Section 7.01; or (ii) if the Agreement is
Terminated under Article VIII while suspended.
ARTICLE VIII. TERMINATION
Section 8.01 Termination
Limitation : The Agreement shall only be
terminated or canceled as provided under this Article VIII.
Section 8.02 Term
: The Agreement shall be valid for the Term.
Section 8.03 – Renewal : The Agreement shall automatically renew at the
end of the Term unless written and signed notice of nonrenewal
is given by
Customer and received by Consultant thirty (30) days prior to the end of the
Term.
Section 8.04 Termination
: Consultant or customer may terminate the
Agreement for convenience upon providing thirty (30) days advance Written
and Signed Termination Notice to the other party or by nonpayment
as
described under section 8.06. If Customer terminates the Agreement before
the end of the Term, Customer shall be held liable for an early termination
fee equal to one half of the remaining Monthly Fees unless terminated within
30 days the Effective Date. Consultant may also terminate this Agreement
immediately upon notice to Customer;
(a) if any act or omission by Customer results in suspension described in
Section 7.01,
(b) if our relationship with a third party partner who provides software or
other technology we use to provide services described on the Schedule A
expires, terminates or requires us to change the way we provide services to
Customer,
(c) if Customer violates its obligations under the Agreement,
(d) if Consultant believes that providing services described on the Schedule
A, or as listed in the Consultant Web Site, could create a substantial
economic or technical burden or material risk for the Consultant,
(e) in order to comply with the law,
(f) if Consultant determines the use of services described on the Schedule A,
or as listed in the Consultant Web Site, has become impractical or unfeasible
for any legal or regulatory reason.
Section 8.05 Cancellation
: If the Consultant violates its obligations under
the Agreement, the Customer may cancel the Agreement by sending signed
written Cancellation Notice describing the noncompliance to the
noncomplying
party. Upon receiving Cancellation Notice, the Consultant
shall have thirty (30) days from the date of such notice to cure any such
noncompliance. If such noncompliance is not cured within the required
thirty (30) day period, the Customer shall have the right to cancel the
Agreement as of the thirtyfirst
(31st) day after the date of such
Cancellation Notice.
Section 8.06 – Payment : Termination or Cancellation of the Agreement shall
not terminate or cancel any payment obligation of Customer under the
Agreement. Outstanding invoices over thirty (30) days past due will be
subject to a ten (10) percent late fee. Any outstanding balance is subject to
an 18% annual interest rate. If Customer shall become ninety (90) days or
more past due Customer is terminating the agreement by nonpayment
even if Written Termination Notice has not been received by Consultant.
ARTICLE IX. WARRANTY
Section 9.01 – Products and Services Warranty : The Services to be provided
by Consultant under the Agreement shall be performed using reasonable
commercial efforts, shall conform to the standards generally observed in the
industry for similar services and shall be subject to this Article IX. Your use
of the Products and Services is at your sole risk. The products and services
provided is on an “as is” and “as available” basis without any warranty or
condition, expressed, implied, or statutory. Consultant does not warrant that
the Services will be uninterrupted, timely, secure, or error free.
Section 9.02 – Third Party Warranty : Consultant provides no warranty of
third party data, applications, services, merchantability, or access.
Section 9.03 – Express Warranties : Except for the Consultant express
warranties contained in this Article IX, Customer hereby acknowledges and
agrees that Consultant (including officers, directors, agents, employees and
independent contractors of Consultant) has not made or granted any
express warranties concerning the Services, the Retail StoreFront,
or any
products and services offered through the Retail StoreFront.
SECTION 9.04 DISCLAIMER
: The warranties set forth in THIS ARTICLE IX
are in lieu of all other warranties, express or implied, including but not
limited to, implied warranties of merchantability and implied warranties of
fitness for a particular purpose. Consultant hereby disclaims and CUSTOMER
hereby waives all OTHER warranties, express or implied, including, but not
limited to, all implied warranties of merchantability and all implied
warranties of fitness for a particular purpose.
Section 9.05 – Limitation of Liability : Consultant shall not be liable for any
reason and for any cause of action whatsoever in connection with the
Agreement, the Retail StoreFront
and the Services, regardless of the form
of action, whether in contract or in tort, including negligence.
Section 9.06 – Limitation of Damages : No damages shall exceed the amount
on Schedule A, or as purchaed in the Consultant Web Site Customer Online
Account, for one (1) Monthly Fee. Consultant shall not be liable to the
Customer for any special or consequential damages, including but not
limited to, lost profits, loss of use, costs of replacement, or other cause
whatsoever.
Section 9.07 – Remedies : The sole remedy of Customers and users for any
reason or any cause of action whatsoever in connection with or relating to
the Agreement and the Retail StoreFront,
regardless of the form of action,
whether in contract or in tort, including negligence, shall be modification of
the Retail StoreFront
and Consultant’s policies and practices, as determined
by Consultant.
Section 9.08 Indemnification
: Customer shall defend, indemnify and hold
harmless Consultant and its officers, directors, employees and agents, from
and against any and all losses, costs, claims, suits, obligations, demands,
damages, liabilities, expenses and reasonable attorney and paralegal fees on
account thereof resulting from any claims related to the use and
performance of the Retail StoreFront
and the Services.
Section 9.09 Infringement
: If Customer use of the Retail StoreFront
is
disrupted as a result of a thirdparty
claim, Consultant shall perform one or
all of the following actions (at the option of Consultant) within sixty (60)
calendar days of the date such third party claim is discovered:
(1) Replacement : Replace the Retail StoreFront
with a
noninfringing
product of substantially equivalent functional and
performance capability;
(2) Modification : Modify the Retail StoreFront
to avoid the
infringement without substantially eliminating the functional and
performance capabilities of the Proprietary Information;
(3) Obtain License : Obtain a license for use of the Retail StoreFront
from the third party claiming infringement for use of the Retail StoreFront.
The remedies set forth above shall be exclusive and shall be in
lieu of any and all remedies available at law or in equity.
Section 9.10 – Continuation : Excepting Sections 9.01 and 9.02, the terms
and provisions of this Article IX shall survive termination and cancellation of
the Agreement.
ARTICLE X. MISCELLANEOUS
Section 10.01 – Notice : Notices shall be in writing and shall be deemed
delivered when delivered by Certified or Registered Mail – Return Receipt
Requested – or by hand to the address set forth on Consultant Web Site for
Consultant and to the address set forth on the signature page of the
Agreement for Customer. Notices shall be deemed given on the date of
receipt as
evidenced in the case of Certified or Registered Mail by Return
Receipt.
Section 10.02 – Assignments : All assignments of rights under the
Agreement by Customer without the prior written consent of Consultant shall
be void.
Section 10.03 – Amendment and Modifications : Alterations, modifications or
amendments of provisions of the Agreement shall not be binding unless such
alterations, modifications or amendments are in writing and signed by
authorized representatives of Consultant and Customer.
Section 10.04 – Severability : If a provision of the Agreement or a portion
thereof is rendered invalid, void, unlawful, or unenforceable, the remaining
provisions or portions thereof shall remain in full force and effect.
Section 10.05 – Captions : The headings and captions of the Agreement are
inserted for convenience of reference and do not define, limit or describe the
scope or intent of the Agreement or any particular section, paragraph, or
provision.
Section 10.06 – Counterparts : The Agreement may be executed in multiple
counterparts, each of which shall be an original, but which together shall
constitute one and the same instrument.
Section 10.07 – NonDisparagement
: During the term and thereafter,
Customer agrees that it will take no action to disparage the Consultant, its
products and services, or any of its officers, directors, or employees.
Disparage shall mean any negative statement, whether written or oral,
about the Consultants products or services, employees, or unprofessional or
profane comments directed to employees. The Customer acknowledges that
this provision is a material part of the Consultants acceptance of this
agreement. Equitable remedy for each breach of this provision is equal to
the monetary value of this agreement.
We will treat your company in a professional manner and expect the same
from you. We hope to never have to enact this provision. However from time
to time we get a real zinger of a client that will go to any length to try to get
more than they bargained for by treating our employees, partners, third
parties, management, and company in an unprofessional manner, or
demanding products and services for free. This hurts all of our clients over
time, and this clause gives us the ability to stop such issues before they
start. It is intended to prohibit the waste of valuable time, money, and
resources which would be better spent investing in our software and
services.
Section 10.08 – NonDisclosure
: During the term and thereafter, Customer
agrees not to disclose certain details of the working relationship which is not
publicly known or generally made publicly available, including but not limited
to: prices, internal communications, training materials, support tickets,
feature lists, development lists, data schemas, hardware configurations,
business plans or any other information not specifically made public by the
Consultant. The Customer acknowledges that this provision is a material part
of the Consultants acceptance of this agreement. Equitable remedy for each
breach of this provision is equal to the monetary value of this agreement.
Section 10.09 – Governing Law : The Agreement shall be governed by the
laws of the State of Ohio, without regard to any rules of conflict or choice of
laws which require the application of laws of another jurisdiction, and venue
shall be proper in Lucas County, Ohio.
Section 10.10 – Pronouns/Gender : Pronouns and nouns shall refer to the
masculine, feminine, neuter, singular or plural as the context shall require.
Section 10.11 – Waiver : Waiver of breach of the Agreement shall not
constitute waiver of another breach . Failing to enforce a provision of the
Agreement shall not constitute a waiver or create an estoppel from enforcing
such provision. Any waiver of a provision of the Agreement shall not be
binding unless such waiver is in writing and signed by the party waiving such
provision.
Section 10.12 – Relationship of the Parties : Nothing herein shall be
construed as creating a partnership relationship, employment relationship,
or agency relationship between the parties, or as authorizing either party to
act as agent for the other. Each party maintains its separate identity.
Section 10.13 – Assurances: Each party hereby represents and warrants
that all representations, warranties, recitals, statements and information
provided to each other under the Agreement are true, correct and accurate
to the best of their knowledge.
Section 10.14 – Litigation Expense : In the event of litigation or arbitration
arising out of the Agreement, Customer shall pay all costs and expenses of
litigation or arbitration.
Section 10.15 – Entire Agreement : The Agreement contains the entire
understanding of the parties and supersedes previous verbal and written
agreements between the parties concerning the subject matter of the
Agreement.
I HEREBY ACKNOWLEDGE THAT I HAVE REVIEWED THESE TERMS AND
CONDITIONS SET FORTH ABOVE. I AM ENTERING INTO A CONTRACT FOR
SOFTWARE LICENSE AND PROFESSIONAL SERVICES FOR BUSINESS USE.