NuORDER’s Terms and Conditions
Last modified: May 24, 2018
These NuORDER, Inc. (“NuORDER,” “Company,” “we,” “us” or “our”) Terms and Conditions (these “Terms” or this “Agreement”) govern how you may access and use: (i) www.nuorder.com, its subdomains and related domains, and any other website where these Terms are posted (collectively, the “Site”); (ii) the various tools and documentation, such as application programming interfaces (“APIs”), made available on the Site or otherwise by NuORDER (collectively, the “Tools”); (iii) NuORDER’s online hosted services; and (iv) any other platform, dashboard or software that provides or allows you to access any of the foregoing ((i) – (iv) collectively, the “Service”). We may from time to time provide you with a more detailed description of the Service through published software libraries, APIs and additional resources we make available to you on our Site.
IF YOU ACCESS OR USE THE SERVICE ON BEHALF OF A COMPANY, PRINCIPAL OR OTHER ENTITY (WHETHER A SINGLE ENTITY OR MULTIPLE ENTITIES), YOU REPRESENT AND WARRANT THAT YOU HAVE AUTHORITY TO BIND EACH SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND THAT THESE TERMS ARE FULLY BINDING UPON SUCH ENTITY AND ITS AFFILIATES. IN SUCH CASE, THE TERM “YOU” AND “YOUR” WILL REFER TO BOTH YOU INDIVIDUALLY AND SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS, YOU MAY NOT ACCESS OR USE THE SITE, TOOLS OR SERVICE. YOU SHOULD READ AND KEEP A COPY OF THESE TERMS FOR YOUR RECORDS.
PLEASE READ THESE TERMS CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THESE TERMS CONTAIN A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
Company reserves the right to modify or revise these Terms at any time, and in connection with doing so, will update the ‘last modified’ date at the top of this page. You should visit the Site periodically to review these Terms and check for updates. If we make any material changes to these Terms, we will use reasonable efforts to notify you of such changes. Your continued use of the Service after the effective date of any such changes will constitute your acceptance of and agreement to such changes. If YOU DO NOT WISH TO BE BOUND TO ANY NEW TERMS, YOU MUST TERMINATE THESE TERMS BY IMMEDIATELY CEASING USE OF THE SERVICE. Any attempt by you to unilaterally supplement or modify these Terms shall be null and void.
- Subscription to Service; Restrictions; Company Accounts; Mobile Software:
(a) Subject to your full compliance with these Terms, Company grants you a non-exclusive, revocable, nonsublicensable, nontransferable, limited license to access and use the Service in each case solely for your internal business purposes and in accordance with these Terms, including Appendix A below.
(b) Your Company account gives you access to the Service and functionality that we may establish and maintain from time to time and in our sole discretion. You may never use another user’s account without permission. You are solely and fully responsible and liable to Company for the activity that occurs on your account, including the acts or omissions of each user on your account (such as your employees, contractors and service providers) or any other person accessing or using the Service through or in connection with your account. When creating your account, you must provide accurate and complete information, and you must keep your account password secure. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your account. You must notify Company immediately of any breach of security or unauthorized use of your account. Company will not be liable for any losses caused by any unauthorized use of your account. By providing Company your email address you consent to our using the email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the Service and special offers. If you do not want to receive such email messages, you may opt out or change your preferences in your account settings. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.
(c) We may make available software to access the Service via a mobile device (“Mobile Software”). To use the Mobile Software you must have a mobile device that is compatible with the Mobile Software. Company does not warrant that the Mobile Software will be compatible with your mobile device. Company hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Software solely in order to use the Service as provided herein. You may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Software, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Software to any third party or use the Mobile Software to provide time sharing or similar services for any third party; (iii) make any copies of the Mobile Software; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Software, features that prevent or restrict use or copying of any content accessible through the Mobile Software, or features that enforce limitations on use of the Mobile Software; or (v) delete the copyright and other proprietary rights notices on the Mobile Software. You acknowledge that Company may from time to time issue upgraded versions of the Mobile Software, and may automatically electronically upgrade the version of the Mobile Software that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of these Terms will apply to all such upgrades. Any third-party code that may be incorporated in the Mobile Software is covered by the applicable open source or third‑party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile Software or any copy thereof, and Company or its third party partners or suppliers retain all right, title, and interest in the Mobile Software (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in these Terms, is void. Company reserves all rights not expressly granted under these Terms. If the Mobile Software is being acquired on behalf of the United States Government, then the following provision applies. Use, duplication, or disclosure of the Mobile Software by the U.S. Government is subject to restrictions set forth in these Terms and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (OCT 1988), FAR 12.212(a) (1995), FAR 52.227-19, or FAR 52.227-14 (ALT III), as applicable. The Mobile Software originates in the United States, and is subject to United States export laws and regulations. The Mobile Software may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Mobile Software may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Mobile Software and the Service.
(d) This paragraph applies to any Mobile Software you acquire from the iTunes Store (“iTunes-Sourced Software”): You acknowledge and agree that these Terms are solely between you and Company, not Apple, and that Apple has no responsibility for the iTunes-Sourced Software or content thereof. Your use of the iTunes-Sourced Software must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the iTunes-Sourced Software. In the event of any failure of the iTunes-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the iTunes-Sourced Software to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the iTunes-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these Terms and any law applicable to Company as provider of the software. You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the iTunes-Sourced Software or your possession and/or use of the iTunes-Sourced Software, including, but not limited to: (i) product liability claims; (ii) any claim that the iTunes-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by these Terms and any law applicable to Company as provider of the software. You acknowledge that, in the event of any third party claim that the iTunes-Sourced Software or your possession and use of that iTunes-Sourced Software infringes that third party’s intellectual property rights, Company, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms. You and Company acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms as relates to your license of the iTunes-Sourced Software, and that, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as relates to your license of the iTunes-Sourced Software against you as a third party beneficiary thereof.
2. We Are Not A Party To Your Transactions; Third Party Content, Links and Services; No Advice:
(a) The Service is an information exchange website. Users subscribe to it for the right to communicate with others and to post material and information they wish others to search, review, find, or otherwise use. The Company does not provide this material or information, does not review it for accuracy, and makes no representations or warranties regarding it. While users of the Service may use it to facilitate transactions, including but not limited to, the sale and purchase of apparel and related items, the Service and the Company are not parties to such transactions.
(b) The Service may contain links to websites maintained by third parties (“Third Party Websites”), including service providers. Such links to Third Party Websites are provided for your convenience and reference only. Company does not operate or control and is not responsible for, any content, software, products or services available on Third Party Websites. Company’s inclusion of links to Third Party Websites does not imply endorsement, warranty, guarantee or recommendation of them, or of the content, property, products or services of the sponsoring organization thereof. You expressly relieve Company from any and all liability arising from your use of any Third-Party Website or any third-party service or content.
(c) Company is a data aggregator of content supplied by third parties and users and assumes no obligation to exercise editorial control over the opinions, advice, statements, services, offers or other content provided by third parties, including by users. Nevertheless, Company reserves the right to screen, review, edit or remove content if it does not comply with laws, rules, regulations, or these Terms, or for any other reason Company deems relevant in its sole discretion.
(d) Descriptions of property, products or services for sale by other users or third parties, and other information appearing on the Service or on Third Party Websites have not been verified by Company, and are not intended to be and are not binding on Company. All prices and terms are subject to change without notice.
(e) You acknowledge and agree that your purchase and/or use of any property, product or service in connection with the Service shall be subject to the terms of a separate agreement between you and the applicable provider and that Company has no liability to you in relation to your dealings with, or the acts or omissions of, that party.
(f) Company may receive payment from third parties for its property, products, services and referrals on and through the Service. A subscription with Company and use of the property, products and/or services offered by Company constitutes your agreement to this compensation arrangement.
(g) Since we are not a party to your transactions with others on the Service, we have no fiduciary, agency or other due diligence or disclosure obligation to or for you. You should consider, among other things, that property, products and/or services listed on the Service:
(i) may not have been subject to due diligence;
(ii) may not have insurance;
(iii) may be subject to liens, UCC-1 filings, secured interests, or the like;
(iv) may not match the indicated specifications;
(v) may have latent defects;
(vi) may have been produced, handled, or shipped in contravention to applicable law;
(vii) may not sell or be otherwise exploitable by you;
(viii) might be sold by a third party that have financial distress or other legal problems; and/or
(ix) may be subject to third party rights.
(h) The information available to you on or through the Service is not a substitute for the services of trained professionals in any pertinent field. In particular, you should regularly consult a qualified attorney and/or other expert in all matters relating to import, export, licensing and manufacturing of the property, products or services you order, including but not limited to laws and requirements related to taxes, pricing (including but not limited to price fixing and other anti-trust matters) and intellectual property. We make no representations or warranties to any person concerning any information, product, service or property provided on or through the Service.
(a) By using the Service, you agree to pay the fees set forth in the applicable Brand Subscription Agreement (defined in Appendix A) in accordance with Appendix A and the pricing and payment terms as we may update them from time to time. Company may add new services for additional fees and charges, or amend fees and charges for existing services, at any time in its sole discretion. Any change to our pricing or payment terms shall become effective in the billing cycle following notice of such change to you as provided in these Terms.
(b) All information that you provide in connection with a purchase or transaction or other monetary transaction interaction with the Service must be accurate, complete, and current. You agree to pay all charges incurred, and you will pay any applicable taxes (including without limitation any applicable sales tax. Any amounts not paid when due shall bear interest at the rate of 1.5% per month or the maximum rate allowed by law, whichever is less.
(c) Except as otherwise set forth in the applicable Brand Subscription Agreement, there are no refunds for cancellation or termination of the Service.
4. Your Representations and Warranties: You represent and warrant that:
(a) you are at least eighteen (18) years old, and you have the legal capacity to enter into contracts;
(b) your Content (defined below) and your use of the Site, Tools and Service will comply with all applicable laws and regulations, including without limitation privacy and data protection laws;
(c) you have all necessary rights, licenses and consents to provide, receive, access and/or use your Content and any other content you provide, receive, access and/or use through or in connection with the Service;
(e) you will provide all required notices, and obtain all required consents, that relate to your use of the Tools and Service, and that allow Company to receive and use your Content as permitted under these Terms, including from individuals: (i) who use websites, applications, or other products or services that you incorporate the APIs or portions of the Tools or Service into; or (ii) that you receive your Content from or whom your Content relates to;
(f) you have the written consent of each and every identifiable natural person in your Content, if any, to use such person’s name or likeness in the manner contemplated by the Service and these Terms, and each such person has released you from any liability that may arise in relation to such use;
(g) you have obtained and are solely responsible for obtaining all consents as may be required by law to post any of your Content relating to third parties, and you are responsible for clearing all rights and paying all licensing fees and other costs and expenses arising in connection with your Content;
(h) your Content and Company’s use or distribution thereof as contemplated by these Terms and the Service will not violate any law or infringe or misappropriate any rights of any third party, including but not limited to any intellectual property rights and privacy rights;
(i) Company may exercise the rights to your Content granted under these Terms without liability for payment of any third party fees, residuals, payments, or royalties; and
(j) to the best of your knowledge, your Content and other information that you provide to us is truthful and accurate.
5. No Company Representations or Warranties; Disclaimers: Company does not make any representation, warranty or guarantee regarding the content posted or transmitted via the Service, the property, products and services provided by Company, the products, property and services listed by others on or through the Service, or data loss (including but limited to whether such may occur or not). Company does not buy or sell, or represent any buyer or seller of, property, products and/or services on the Service, and disclaims any and all liability for the sale or attempted sale of property, products and services on and through the Service. Company makes no guarantee, whether express or implied, that you will find property, products or services that meet your specifications. In addition, Company may make changes and improvements to the Service at any time. Company makes no representation or warranty as to the quality or qualification of any property, products or services of sellers, buyers, service provider, or any third party appearing on or through the Service, and is not responsible or liable for any acts or omissions committed by such third parties. You further acknowledge and agree that:
(a) Company won’t pre-screen content provided by any user and, as such, Company does not guarantee the accuracy, integrity, or quality of such content;
(b) you will evaluate, and bear all risks associated with, the use by you or third parties of any content on the Service, including any reliance on the accuracy, completeness, or usefulness of such user provided content;
(c) you may be exposed to content that is indecent, offensive, or otherwise objectionable and that Company shall not be liable for such; and
(d) Company will not be liable in any way for any user provided content, including, but not limited to, any errors or omissions in any content you provided, or for any loss or damages or any kind incurred as a result of the use of any user provided content by you or any third part.
THE SERVICE, ITS CONTENT, THE PROPERTY, PRODUCTS AND SERVICES OF THE COMPANY AND OTHERS, INCLUDING BUT NOT LIMITED TO THAT LISTED ON THE SERVICE, ARE PROVIDED “AS IS” AND “AS AVAILABLE”. COMPANY DISCLAIMS ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AS TO ANY MATTER WHATEVER RELATING TO THE SERVICE, ITS CONTENT, THE PROPERTY, PRODUCTS AND/OR SERVICES OF COMPANY, AND THE PROPERTY, PRODUCTS, SERVICES AND PROPERTY OF OTHERS, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT. COMPANY MAKES NO GUARANTEE THAT THE CONTENT OF THE SERVICE IS UP-TO-DATE, ACCURATE OR COMPLETE, AND YOU SHOULD NOT RELY ON OR ASSUME ITS ACCURACY FOR ANY DECISION OR TO TAKE ANY ACTION. COMPANY HEREBY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT LOSS OF YOUR DATA WILL NOT OCCUR. COMPANY HEREBY DISCLAIMS ANY WARRANTY THAT THE SERVICE, ITS CONTENT, THE PROPERTY, PRODUCTS AND SERVICES OF COMPANY, OR THE PRODUCTS, SERVICES AND PROPERTY OF OTHERS WILL BE FREE OF INTERRUPTION OR DEFECTS, OR THAT THE SERVICE IS FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER CODE THAT HAS CONTAMINATING OR DESTRUCTIVE PROPERTIES. BY YOUR USE OF THE SERVICE, ITS CONTENT, OR THE PROPERTY, PRODUCTS OR SERVICES OF COMPANY, YOU AGREE AND ACKNOWLEDGE THAT YOUR USE OF SUCH IS AT YOUR OWN RISK.
- Termination of Subscriptions and Accounts: Company reserves the right to terminate your use of the Service, except that arising from a current unterminated Brand Subscription, for any reason at any time, without notice. Regarding any Brand Accounts, Buyer Accounts, or Brand Subscriptions, such may be terminated by the Company by termination of the applicable Term as set forth in Section 2.2 of Appendix A. If you are holder of a Brand Account and wish to deactivate or terminate your account, contact the Company and indicate such by e-mailing a termination request to firstname.lastname@example.org.
If you are a user who did not pay for a subscription to the website or sign up for a Buyer Account, you must request from all Brand Users that created your account or associated your account with them to cancel your account. Termination or deactivation of such a Buyer Account will be in the discretion of such Brand Users. If your Buyer Account, if you have one, has been incorrectly affiliated with other Buyer Accounts, contact the Brand User who created such affiliation to correct such incorrect affiliation.
On termination, your ability to use the Service will end:
(a) for an account other than a Brand Account or Buyer Account, upon termination without requirement of notice,
(b) for a Buyer Account, upon notice, and
(c) for a Brand Account, upon expiration of the Term (as defined in Appendix A) for which you have paid the applicable subscription fee.
The Service currently allows Brand Users and holders of Buyer Accounts to save all orders as PDF’s and to export order summaries in a CSV format. It is your responsibility to maintain back-up copies of your data at all times. As such, for avoidance of doubt, in the event of termination of any account, the Company does not have an obligation to provide any of the account data to any party.
- Your Conduct Requirements; Your Grant of License:
(a) You agree to comply with:
(i) these Terms, and all other rules as may be issued by Company from time to time and communicated to you for the use of the Service;
(ii) the requirement that you use and communicate with others through the Service in good faith;
(iii) all applicable laws, rules and regulations;
(iv) the requirement that you shall not violate the rights of any third party; and
(v) the requirement that any information you submit shall be accurate and not misleading.
(b) The Service is protected by copyright and trademark laws, and are the property of their respective owners. Unless Company agrees to otherwise in writing, you may access the materials located within the Service only for your use and the use of your employer. This means you may only use posted materials for the purpose for which the information or material was made available to you by its owner or the conditions such owner indicates to you as to such information and material, so long as you neither change nor delete any author attribution, trademark, legend or copyright notice. When you download copyrighted material, you do not obtain any ownership rights in that material.
(c) You shall not disassemble, decompile, manipulate or reverse engineer the Service, and shall take all necessary steps to prevent such activity. Under no circumstances shall you sell, license, publish, display, copy, modify, transmit, distribute, or exploit the Service (or the content therein), or otherwise make available the Service (or any products, services or property provided herein) in any form or by any means, including without limitation the transfer to a third party, except as expressly permitted in these Terms. Only if you obtain prior written consent from Company and from all other entities with an interest in the relevant intellectual property may you publish, display or commercially exploit any material from the Service. You will take all reasonable steps to protect the security of the Service, and to prevent unauthorized use or disclosure thereof. You are responsible for all access to and use of the Service by means of your equipment or under your user ID and password, whether or not you have knowledge of or authorized such access or use. You shall be responsible for maintaining the confidentiality of all assigned user IDs and passwords, and you shall be responsible for all charges relating to the use of such user IDs and passwords, whether or not authorized by you.
(d) If there is a breach of the confidentiality of a password or user account ID assigned to a holder of an account, or any breach of security through such user’s account, such user has an obligation to and shall notify Company immediately via the same methods set forth above for the termination of an account.
(e) You must abide by all additional copyright notices or other restrictions on the Service.
(f) You agree not to do any of the following while using the Service, in relation to another user of the website, or to or perpetrate against the Company:
(i) harass, stalk or otherwise abuse another user of the Service;
(ii) transmit or otherwise make available any content that is false, harmful, threatening, abusive, tortious, defamatory, libelous, disparaging (including disparaging of the Service), vulgar, obscene, pornographic or that promotes violence, racial hatred, terrorism or illegal acts, or is otherwise objectionable (as determined by us in our sole discretion);
(iii) transmit or otherwise make available any content that is unlawful or infringes, violates or misappropriates any patent, trademark, trade identity right, trade secret, publicity right, privacy right, copyright or any other intellectual property or any other rights of any third party;
(iv) upload or transmit viruses, Trojan horses or other harmful, disruptive or destructive files or post material that interferes with any third party’s uninterrupted use and enjoyment of the Service;
(v) impersonate any person or entity, or otherwise disguise the origin of any content transmitted through the Service or to us, including forging any TCP/IP packet header or any part of the header information in any transmission to the Service for any reason;
(vi) transmit or otherwise make available through the Service any personal advertising, junk mail, spam, chain letters, pyramid schemes or offer for sale of any property, products or services, except in areas specifically designated for such purposes;
(vii) violate any applicable local, state, federal or international law, rule or regulation;
(viii) become involved in any type of attack on the Service;
(ix) attempt to gain unauthorized access to, the Service or accounts (including but not limited to Brand Accounts or Buyer Accounts) of others;
(x) utilize any type of malicious software such as bots, spiders, viruses or other codes on or in conjunction with the Site, Tools or the Service;
(xi) create derivative works of the Service or the proceeds of any of the Service;
(xii) copy, frame or mirror any part of content of the Service without the written consent of Company;
(xiii) attempt to reverse engineer any component or other aspect of the Site, Tools or Service;
(xiv) sell, resell, lease, loan, gift, provide, or the functional equivalent of any of the foregoing, access to or use of the Service to a third party;
(xv) identify or refer to Company, the Site, Tools, or Service in a manner that could reasonably imply an endorsement, relationship or affiliation with or sponsorship between you or a third party and Company, other than your permitted use of the Service under these Terms;
(xvi) use the Site, Tools or Service in a manner that impacts the stability of Company’s servers, the operation or performance of the Service, or the behavior of other applications using the Service;
(xvii) identify the Company or display any portion of the Site, Tools or Service on any site or service that disparages Company or its products or services, or infringes any Company intellectual property or other rights;
(xviii) use the Site, Tools or Service in any manner or for any purpose that violates any applicable law, regulation, legal requirement or obligation, contractual obligation, or any right of any person including, but not limited to, intellectual property rights, rights of privacy and/or rights of personality, or which otherwise may be harmful (in Company’s sole discretion) to Company, its providers, its suppliers, end users of the Site, or your end users;
(xix) use the Site, Tools or Service in a manner that could reasonably be interpreted to suggest that the use represents the views of Company;
(xx) use the Site, Tools or Service in competition with Company or for competitive analysis, to develop competing products or services, or otherwise to Company’s detriment or commercial disadvantage;
(xxi) use the Site, Tools or Service in connection with or to promote any products, services, or materials that constitute, promote or are used primarily for the purpose of dealing in: spyware, adware, or other malicious programs or code; counterfeit goods; items subject to U.S. embargo; unsolicited mass distribution of email; multi-level marketing proposals; hate materials; hacking / surveillance / interception / descrambling equipment; libelous, defamatory, obscene, abusive or otherwise offensive content; prostitution; stolen products and items used for theft; illegal activities or conduct; or any other subject matter prohibited by these Terms;
(xxii) attempt to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Site or Service;
(xxiii) share passwords or authentication credentials for the Site or Service, impersonate another person or otherwise misrepresent your affiliation with a person or entity, conduct fraud, or hide or attempt to hide your identity; or
(xxiv) bypass the measures we may use to prevent or restrict access to the Site or Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Site or Service or the content therein.
(g) If you make any post or submission to the Service or transmit any content, information or materials on or through the Service (collectively, your “Content”), then:
(i) you remain owner of your Content to the extent you were the owner;
(ii) you automatically and hereby do grant on behalf of yourself, or otherwise warrant that the owner of such Content has expressly granted Company, for use on the Service or for the provisioning, maintaining or improving of the Service, or in aggregate and anonymous form for any business purpose, a royalty-free, perpetual, irrevocable, sublicensable, transferable, world-wide, nonexclusive right and license to use, reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform, display, and/or otherwise exploit, the Content in any media, form, format, or forum now known or hereafter developed;
(iii) you acknowledge and agree that you are solely responsible and liable for the content of any images, product detail, product information, messaging, order content, buyer information, questions, data and feedback to submit to the Company or the Service; and
(iv) you agree and warrant that Company may sublicense or assign its rights through multiple tiers of sublicenses or assigns.
Company has the right, but not the obligation, to remove any information provided by you which it believes is incorrect, misleading, or in violation of law, in its sole discretion.
Company takes no responsibility and assumes no liability for any content that you or any other user or third party posts, sends, or otherwise makes available over the Service. You shall be solely responsible for your Content and the consequences of posting, publishing it, sharing it, or otherwise making it available on the Service. You understand and agree that you may be exposed to content that is inaccurate, objectionable, or otherwise unsuited to your purpose, and you agree that Company shall not be liable for any damages you allege to incur as a result of or relating to any such content.
- Copyrights; Trademark; Ownership of the Service:
(a) Except for your Content, as between you and Company, all content included on the Service, such as data, information, text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, and software, is the property of Company or its content suppliers (including the Buyers and Sellers, as applicable) and protected by United States and international copyright laws. The compilation of all content on the Service is the exclusive property of the Company and protected by U.S. and international copyright laws. The Company name and other Company logos, page headers, button icons, scripts, and service names are trademarks, registered trademarks or trade dress of Company or its affiliates in the U.S. and/or other countries. Company’s trademarks and trade dress may not be used in connection with any product or service that is not the Company’s, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits Company. All other trademarks not owned by Company or its affiliates that appear on the Service are the property of their respective owners, who may or may not be connected to or sponsored by Company or its affiliates. The Service is and shall remain the sole and exclusive property of Company. You shall have only the limited rights with respect to the Service as expressly granted in these Terms, and all rights not expressly granted herein are reserved by Company. You acknowledge and agree that only Company shall have the right to alter, maintain, enhance or otherwise modify the Service, or its products or services. Company reserves the right to modify or to discontinue the Service and any products or services provided by Company hereunder, with or without notice to you. Company shall not be liable to you in the event that Company exercises its rights under this Section.
(b) You may choose to or we may invite you to submit comments or ideas about the Service, including without limitation about how to improve the Service or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Company under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Company does not waive any rights to use similar or related ideas previously known to Company, or developed by its employees, or obtained from sources other than you.
(c) We may make certain Company logos or marks (the “Marks”) available for use by you and other users to allow you to identify Company as a service provider. To use the Marks, you must first agree in writing to any written conditions or instructions regarding such use provided by Company to you. Company may limit or revoke your ability to use the Marks at any time. You may never use any Marks or any Company intellectual property consisting of trademarks or service marks without our express written permission, or in any manner that may lead people to confuse the origin of your products or services with ours. During the term of these Terms, you may publicly identify us as the provider of the Service to you and we may publicly identify you as a Company user. You agree that Company may use your trade name and logo in Company’s marketing and promotional materials, including but not limited to Company’s websites, sales and pitch decks, and other marketing materials, solely for the purpose of referring to you as a customer of Company’s products and services. Neither you nor we will imply any untrue sponsorship, endorsement, or affiliation between you and Company.
9. Limitation of Liability: You agree that Company shall have no liability whatsoever for any use you make of the Service. REGARDLESS OF WHETHER ANY REMEDY SET FORTH IN THESE TERMS FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, SERVICE PROVIDERS, AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, MANAGERS, SHAREHOLDERS, ATTORNEYS OR OTHER REPREENTATIVES OR ASSOCIATES BE LIABLE TO YOU OR TO ANY THIRD PARTY UNDER ANY TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY DAMAGES, INCLUDING WITHOUT LIMITATION FOR ANY: (a) DIRECT DAMAGES, (b) LOSS OF REVENUE, PROFITS, REPUTATION OR GOODWILL, (c) LOST OR CORRUPTED DATA, WEBSITE OR APPLICATION FAILURE, COMPUTER FAILURE OR MALFUNCTION, (d) INTERRUPTION OF BUSINESS, (e) UNAVAILABILITY OF THE SITE, TOOLS, OR SERVICE, (f) BREACH OF DATA, SYSTEM, OR SERVICE SECURITY, (g) BUGS, VIRUSES, TROJAN HORSES, OR OTHER SIMILAR ERRORS OR VULNERABILITIES THAT THE SITE, TOOLS OR SERVICE INCLUDES OR CAUSES, OR (f) OTHER SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES AND WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE. IN ANY CASE, TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY’S SOLE LIABILITY AND YOUR EXCLUSIVE REMEDY UNDER ANY PROVISION OF THESE TERMS SHALL BE: THE REPLACEMENT OF THE SERVICE, OR REFUND OF AMOUNTS PAID BY YOU FOR THE TOOLS OR SERVICE, IN COMPANY’S SOLE DISCRETION. ANY CLAIM ARISING OUT OF OR RELATING TO THESE TERMS MUST BE BROUGHT WITHIN ONE (1) YEAR AFTER THE OCCURRENCE OF THE EVENT GIVING RISE TO SUCH CLAIM. IN ADDITION, COMPANY DISCLAIMS ALL LIABILITY OF ANY KIND FOR ACTIONS OF COMPANY’S AFFILIATES, SERVICE PROVIDERS, OR AGENTS. IN NO EVENT WILL COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THE SITE, TOOLS, SERVICE, OR THESE TERMS, WHETHER FROM BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY EXCEED THE AMOUNTS ACTUALLY PAID TO COMPANY IN THE PRIOR THREE MONTHS PRECEDING THE EVENT GIVING RISE TO LIABILITY. THE FOREGOING CAP APPLIES EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
10. Indemnification: YOU AGREE THAT YOU WILL INDEMNIFY, DEFEND AND HOLD THE COMPANY AND THE COMPANY’S PARENTS, AFFILIATES, SUBSIDIARIES, RELATED ENTITIES, OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS AND CUSTOMERS (COLLECTIVELY, “INDEMNIFIED PARTIES”) HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, CAUSES OF ACTION, LIABILITIES, DAMAGES, COSTS AND EXPENSES, INCLUDING ATTORNEYS’ FEES (COLLECTIVELY, “CLAIMS”), INCURRED BY THE COMPANY AND THE INDEMNIFIED PARTIES AS A RESULT OF OR ARISING FROM (A) ANY ACTUAL OR ALLEGED INFRINGEMENT OR VIOLATION OF ANY THIRD PARTY INTELLECTUAL PROPERTY, INTELLECTUAL PROPERTY RIGHTS, OR OTHER RIGHTS BY YOU OR YOUR CONTENT; (B) THE FAILURE OR ALLEGED FAILURE OR DEFECT OF ANY PRODUCTS, PROPERTY OR SERVICES PROVIDED OR OFFERED BY YOU (INCLUDING BUT NOT LIMITED TO THEIR FAILURE TO COMPLY WITH THEIR SPECIFICATIONS OR WITH ANY EXPRESS OR IMPLIED WARRANTIES); (C) THE VIOLATION OR ALLEGED VIOLATION OF ANY LAW, STATUTE OR GOVERNMENTAL ORDINANCE DUE OR RELATED TO YOU; (D) ANY ACTUAL OR ALLEGED UNFAIR BUSINESS PRACTICES, FALSE ADVERTISING, MISREPRESENTATION OR FRAUD ENGAGED IN BY YOU; (E) ANY ACTUAL OR ALLEGED PERSONAL INJURY OR PROPERTY DAMAGE ARISING FROM OR RELATING TO YOUR CONDUCT; (G) ANY ACTUAL OR ALLEGED BREACH BY YOU OF ANY AGREEMENT OR OBLIGATION YOU HAVE WITH ANY THIRD PARTY, INCLUDING BUT NOT LIMITED TO ANY OTHER USER OF THE SERVICE; (H) ANY ACT OR OMMISSION BY YOU WITH REGARD TO ANY THIRD PARTY, INCLUDING BUT NOT LIMITED TO THE ACTUAL OR ALLEGED COMMISSION OF ANY TORTS; AND (I) ANY BREACH OR ALLEGED BREACH OF YOUR REPRESENTATIONS OR WARRANTIES OR ANY PROVISION OF THIS AGREEMENT BY YOU. THIS SECTION WILL NOT BE CONSTRUED TO LIMIT OR EXCLUDE ANY OTHER CLAIMS OR REMEDIES THAT THE COMPANY OR ITS RESPECTIVE AFFILIATES, SUCCESSORS AND ASSIGNS (AND ITS AND THEIR RESPECTIVE DIRECTORS, EMPLOYEES AND AGENTS) MAY ASSERT. You shall not settle a Claim without Company’s prior written consent. Company may participate in the defense of any Claim at its expense.
11. Confidentiality: “Confidential Information” shall mean the Service and all other information disclosed to you that Company characterizes as confidential at the time of its disclosure, or that reasonably ought to be understood by you as confidential, except for information which you can demonstrate: (a) is previously rightfully known to you without restriction on disclosure; (b) is or becomes, from no act or failure to act on your part, generally known in the relevant industry or public domain; (c) is disclosed to you by a third party as a matter of right and without restriction on disclosure; or (d) is independently developed by you without access to the Confidential Information. You shall use your best efforts to preserve and protect the confidentiality of the Confidential Information at all times, both during the term hereof and for a period of at least 3 years after termination of these Terms, provided, however, that any source code you receive shall be held in confidence in perpetuity (except as expressly allowed by Company, such as to the extent needed to comply with an open source license). You will not disclose Confidential Information except to employees and agents who need to know it and have agreed in writing to keep it confidential; only those parties may use the Confidential Information, and only to exercise your rights and fulfill your obligations under these Terms, while using at least a reasonable degree of care to protect it; provided, however, that you shall not disclose, disseminate or otherwise publish or communicate any source code you receive to any person, firm, corporation or other third party without the prior written consent of Company. You shall not use any Confidential Information other than in the course of the activities permitted hereunder. You shall notify Company in writing immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of these Terms, and you will cooperate with Company in every reasonable way to regain possession of Confidential Information and prevent any further unauthorized use. If you are legally compelled to disclose any of the Confidential Information, then, prior to such disclosure, you will (i) immediately notify Company prior to such disclosure to allow Company an opportunity to contest the disclosure, (ii) assert the privileged and confidential nature of the Confidential Information, and (iii) cooperate fully with Company in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. In the event such protection is not obtained, you shall disclose the Confidential Information only to the extent necessary to comply with the applicable legal requirements. You acknowledge that Company will be irreparably harmed if Confidential Information is distributed in breach of this Section, and that Company would not have an adequate remedy at law in the event of such an actual or threatened breach by you. Therefore, you agree that Company shall be entitled to seek injunctive relief against any actual or threatened breaches of this Section by you without the necessity of Company showing actual damages or showing that monetary damages would not afford an adequate remedy.
12. Company Use of User Name and Logo for Marketing: For as long as an entity is a user of the Service, including but not limited to Brand Users, Buyers, the holders of Brand Accounts, and the holders of Buyer Accounts, Company is granted the right to use such entity’s name and logos in order to indicate that such entity is a user of the Service.
13. Privacy; Security.
(b) To the extent that we process personal data as a processor on your behalf, and the personal data relates to individuals located in the European Economic Area or you are established in the European Economic Area, the Service is subject to the (which shall be incorporated herein) pursuant to the requirement of the EU General Data Protection Regulation, which is available on our Site, and which shall, in relation to the processing personal data, prevail over any conflicting terms and conditions in these Terms.
(c) We care about the integrity and security of your personal information. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
14. Export Controls: You shall comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control (“OFAC”), or other United States or foreign agency or authority, and you shall not export, or allow the export or re-export of the Service in violation of any such restrictions, laws or regulations. By using the Service, you agree to the foregoing and represent and warrant that you are not located in, under the control of, or a national or resident of any restricted country.
15. Digital Millennium Copyright Act; Procedure For Making Claims Of Copyright Infringement: It is the policy of the Company to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act of 1988 (“DMCA”). If you believe that your copyrighted work has been copied and is accessible on the Service in a way that constitutes copyright infringement, you may notify us by providing our copyright agent. For your complaint to be valid under the DMCA, you must provide the following information in writing:
(a) the electronic or physical signature of the owner of the copyright or the person authorized to act on the owner’s behalf;
(b) identification of the copyrighted work that you claim has been infringed;
(c) Identification of the material that is claimed to be infringing and where it is located on the Service;
(d) Information reasonably sufficient to permit Company to contact you, such as your name, address, telephone number, and email address; and
(e) A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
The above information must be submitted to the following DMCA Agent:
Attn: Legal Support, DMCA Complaints
900 Hilgard Avenue
Los Angeles, CA 90024
Email: Dmcanotice@nuorder.com Please place “Legal Support, DMCA” in the Subject Header.
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.
Please note that this procedure is exclusively for notifying Company and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with Company’s rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, Company has adopted a policy of terminating, in appropriate circumstances, users who are deemed to be repeat infringers. Company may also at its sole discretion limit access to the Service and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
- ; Feedback to the Company; Binding Arbitration; Disputes:
(a) Minimum Age 18 Requirement:We hereby require all users of the Site or Service to be over 18. You agree to abide by any such restrictions, and not to help anyone avoid these restrictions. If you are under 18, you agree not to subscribe to or otherwise purchase or use any of the property, products or services of the Company. If you are purchasing any of the property, products or services of the Company, you represent that you are at least 18 years of age.
(b) Governing Law;Binding Arbitration; Disputes: You agree that: (i) the Service shall be deemed solely based in California; and (ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than California. These Terms shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. The parties acknowledge that these Terms evidence a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of these Terms shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in Los Angeles County, California for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that Los Angeles County, California is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
(c) READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM COMPANY. You agree that any claim or controversy arising out of or relating to the use of the Service, its content, or the property, products or services of the Company, or to any acts or omissions for which you may contend the Company or its employees, agents, affiliates, officers or directors are liable, including but not limited to any claim or controversy (“Dispute”), shall be finally and exclusively settled by arbitration in Los Angeles, California, and that said arbitration shall be governed by California law. Such arbitration shall be held before one arbitrator under the commercial arbitration rules of the American Arbitration Association (“AAA”) in force at that time. The arbitrator shall be selected pursuant to the AAA rules. To begin the arbitration process, a party must make a written demand therefore. Any judgment upon the award rendered by the arbitrator may be entered only in a state or federal court located in Los Angeles, California, and you agree to submit to the jurisdiction of such court for that purpose. You and the Company agree that the arbitrator shall have limited authority to award damages such that the arbitrator shall not have the power to award damages in excess of those permitted under these Terms and in no event more than actual compensatory damages. The agreement to arbitrate shall not be construed as an agreement or consolidation of arbitration between you and us under this Section with arbitration of disputes or claims of any other party, regardless of the nature of the issues or disputes involved. Nothing in this Section shall be deemed as preventing Company from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of confidentiality, data security, intellectual property rights or other proprietary rights. SUBJECT TO THE FOREGOING, YOU AGREE THAT ALL DISPUTES BETWEEN YOU AND THE COMPANY WILL BE RESOLVED BY BINDING ARBITRATION IN LOS ANGELES, CALIFORNIA. THUS, YOU GIVE UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS. YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN OR BRING CLASS ACTIONS AND TO SERVE AS A PRIVATE ATTORNEY OR IN ANY OTHER REPRESENTATIVE CAPACITY IN CONNECTION WITH A DISPUTE. YOUR RIGHTS WILL BE DETERMINED BY AN ARBITRATOR AND NOT A JUDGE OR JURY. YOU AND COMPANY RETAIN THE RIGHT TO PURSUE INJUNCTIVE RELIEF IN COURT, AND AGREE TO SUBMIT EXCLUSIVELY TO THE JURISDICTION OF THE STATE OR FEDERAL COURTS LOCATED IN LOS ANGELS, CALIFORNIA, FOR THAT PURPOSE. You also acknowledge and understand that, with respect to any Dispute, in the event the Company incurs attorney fees or expenses in connection with the collection of sums owed to us by you under these Terms, we shall be entitled to recovery of those fees and expenses from you.
(d) Severability: If any provision contained in this agreement is or becomes invalid, illegal, or unenforceable in whole or in part, such invalidity, illegality, or unenforceability shall not affect the remaining provisions and portions of this agreement, and the invalid, illegal, or unenforceable provision shall be deemed modified so as to have the most similar result that is valid and enforceable under applicable California law.
(e) Waiver: The failure of either party to require performance by the other party of any provision of this agreement shall not affect in any way the first party’s right to require such performance at any time thereafter. Any waiver by either party of a breach of any provision in this agreement shall not be taken or held by the other party to be a continuing waiver of that provision unless such waiver is made in writing.
(f) Contact: Please contact us at email@example.com with any questions regarding these Terms.
(g) Interpretation: In these Terms, “including” means “including without limitation” (and similar terms will be construed without limitation) and headings are for convenience only and will not affect interpretation.
(h) Assignment: These Terms may not be assigned or transferred for any reason whatsoever (including, without limitation, by operation of law, merger, reorganization, or as a result of an acquisition or change of control involving you) without Company’s prior written consent and any action or conduct in violation of the foregoing shall be void and without effect. Company expressly reserves the right to assign these Terms and to delegate or subcontract any element of the Service or any of its obligations hereunder.
Appendix A – Subscription Terms
Section 1- Definitions:
1.1: A “Brand” means the specific brand or brands identified as such in a Brand Subscription Agreement.
1.2: A “Brand Account” means an account with a unique password and ID, that allows an individual to act on behalf of a Brand User with regard to use of a particular Brand Subscription and the Service, to be used for a particular Brand Line.
1.3: A “Brand Line” means the products and services that a Brand User uses the same Brand to identify and brand such products and services, but limited to a number equal to the Brand Line Limit.
1.4: A “Brand Line Limit” means the number set forth in a Brand Subscription Agreement with respect to a particular Subscription which is the maximum number of products of the Brand Line for which the Subscription may be used.
1.5: “Brand User” means an entity that is designed as such in a Brand Subscription Agreement.
1.6: A “Brand Subscription Agreement” means a purchase order or other agreement incorporating these Terms that is entered into by the Brand User and the Company in which the Company grants a Brand Subscription to an entity during a Brand Subscription Term regarding a particular Brand (and hence its associated Brand Line), designating that entity as Brand User, and indicating it is granted a Brand Subscription as described in these Terms. For avoidance of doubt, a Brand User may have several Brand Subscriptions since a Brand Subscription is for only one Brand and its associated Brand Line.
1.7: A “Brand Subscription” means the rights as defined in these Terms for a Brand User to use the functionality of the Service to market and sell a particular Brand Line.
1.8: A “Brand Subscription Term” with respect to a particular Brand Subscription of a particular Brand User means the period beginning as of the Effective Date for the particular Brand Subscription of a Brand User and ending upon the earlier of termination of that Brand Subscription as set forth herein or its expiration date as set forth in the Brand Subscription Agreement.
1.9: A “Brand User Account Fee” means the fee designated by Company in a Brand Subscription Agreement, for each additional Brand User Account a Brand User is allowed to create as described in the applicable Brand Subscription Agreement for a particular Brand and its associated Brand Line. Brand User Account Fees are exclusive of taxes, which shall be paid by the Brand User (excluding taxes on Company’s income).
1.10: A “Brand User Subscription Fee” means the fee designated by Company in a Brand Subscription Agreement for a Brand Subscription for a particular Brand and its associated Brand Line for the designated time period. Brand User Subscription Fees are exclusive of taxes, which shall be paid by the Brand User (excluding taxes on Company’s income).
1.11: “Buyer” means an entity that is authorized by a Brand User to receive solicitations from the Brand User in regard to a particular Brand Line, and to place orders for such.
1.12: A “Buyer Account” means an account with a unique password and ID that allows an individual to utilize the functionality of the Service intended for use by Buyers, such as but not limited to receive information of the products and services of a particular Brand Line of a Brand User, and to place orders for such.
1.13: The “Effective Date” means the date a Brand Subscription begins, usually as designated in a Brand Subscription Agreement.
Section 2- Subscriptions:
2.1: Brand Subscription: A Brand Subscription is limited to the associated Brand Subscription Term, subject to payment of the applicable Brand User Subscription Fee and Brand User Account Fee, and subject to these Terms. A Brand Subscription, except to the extent otherwise indicated in the applicable Brand Subscription Agreement, grants a Brand User the following with respect to one associated Brand and its associated Brand Line (but limited to the Brand Line Limit as set forth in the Brand Subscription Agreement), during the associated Brand Subscription Term:
- the right, through use of the Brand Accounts, to use the Service and the functionality intended by Company for Brand Users. Brand User is not authorized to use the Service except as a Brand User, and hereby agrees to limit its use to such purposes;
- the right to create up to the number of Brand Accounts indicated in the Brand Subscription Agreement, to be used only by its employees or agents for the designated Brand (and its associated Brand Line);
- the right to create and maintain Buyer Accounts for third parties, and provide access to such accounts to such third parties, provided that at all times the Brand User has a good faith belief that such third parties are buyers or potential buyers of Brand Line of the Brand User;
- the right to receive, if existing and in use by the Company, the Company’s current instruction sheet on appropriate image dimensions and instructions for uploading such, as well as an excel template to facilitate the uploading of product information to the Service;
- the right to make one (1) bulk upload of information, but not images, from the template provided by Company. The Company is not responsible for any error in the uploading of such information, or of any other materials; and
- the right to receive from the Company, but only to the extent the Company continues to offer such services to Brand Users, reasonable email and phone support post training as needed by a Brand User or the parties it designates as its Buyers.
2.2: Term; Term Extension; Payment of Fees; Termination:
- Unless either party provides written notice to the other at least thirty (30) days prior to the end of a Brand Subscription Term of non-renewal of the Brand Subscription Agreement, the Brand Subscription Term shall be extended by a period equal to the original non-extended length of the Brand Subscription Term (except to the extent Company provides written notice of a different length to the extension at least sixty (60) days before such extension begins). The Brand Subscription Term may be extended multiple times in the aforementioned manner. Upon and for each such extension of a Brand Subscription Term, upon receipt of invoice Brand User shall promptly pay (but in no event later than five (5) business days prior to the start of such extension of the Brand Subscription Term) to the Company the Brand User Subscription Fee as determined by the applicable Brand Subscription Agreement. In addition, for each additional Brand User Account subscribed for beyond those as set forth in the Brand Subscription Agreement (excluding those that Brand User indicates in writing thirty (30) days prior to the extension of the Brand Subscription Term, that it will not renew), upon receipt of invoice Brand User shall promptly pay (but in no event later than 5 business days prior to the start of such extension of the Brand Subscription Term) to the Company the Brand User Account Fee as determined by the Brand Subscription Agreement. Notwithstanding the foregoing, the Company may change the Brand User Account Fee and Brand User Subscription Fee in a Brand Subscription Agreement for an extension of the Brand Subscription Term by written notice to a Brand User of the change thirty (30) days prior to such extension.
- Notwithstanding anything to the contrary herein, the Brand Subscription Term may be terminated by Company, upon provision of written notice, at any time, for i) any material breach by Brand User of these Terms, as amended, ii) non-payment of any fees due Company if unpaid for more than 10 business days, or iii) any material breach of these Terms by any party designated a Buyer by Brand User unless Brand User, upon receipt of notice of breach, agrees to immediately terminate such Buyer’s right to use the Service and its Buyer Account.
2.3: Restrictions on Brand Users and Holders of Buyer Accounts:
- Brand User shall have the sole responsibility for creating any Buyer Accounts, to the extent allowed as set forth herein.
- Brand User shall have the sole responsibility to upload any images or upload or maintain product and service information related to its Brand Line that is associated with its Brand Subscription, to the extent allowed as set forth herein. If Company assists the Brand User in any way by uploading content, the Brand User agrees and acknowledges that such Brand User is solely responsible to check all such information has been uploaded and integrated onto the Service correctly and accurately.
- Brand User shall ensure that only one actual person is assigned to or has the ability to use a particular Brand User Account or Buyer Account, with the exception that the technical support personnel of Brand User may be granted access by a holder of a Brand User Account or Buyer Account solely for the purposes of technical support for such account.
- Free Updates: The Company in its discretion may designate certain updates, upgrades and/or features to the Service as “Free Updates”. Such may include, in the Company’s discretion, certain bug fixes and enhancements. Free Updates may be introduced into the Service at any time in the discretion of the Company. Free Updates may contain significant new features and enhancements and are provided at no extra charge to Brand Users. Free Updates may be based on user feedback, technical feasibility, and other factors. The Company intends to, but is not required to, provide notification of Free Updates by email.
- Paid Upgrades: The Company in its discretion may designate certain updates, upgrades and/or features to the Service as “Paid Upgrades”. The Company in its discretion may offer these Paid Upgrades to Brand Users or other users of the Service, and in such case such Paid Upgrades shall be pursuant to the terms, conditions and fees set forth in such offer. Paid Upgrades shall be considered part of any Brand Subscription or any other subscription unless separately agreed to in writing.
2.5 Website Support: Company shall provide reasonable technical support regarding the Service to Brand User by email and/or phone during its normal business hours (9 A.M. to 5 P.M., PDT) during its normal business days (i.e. excluding weekends, holidays, bank holidays and holidays of the Company). For avoidance of doubt, while Company intends to respond to support requests within 24 hours, it is not obligated to do so.