CORECOMMERCE SOFTWARE LICENSE AND SERVICES AGREEMENT
1. SOFTWARE AND SERVICES.
1.1 Access to the Software and Services. Upon Customer’s submission of the order form and payment of applicable fees to CoreCommerce, CoreCommerce shall provide Customer with access to the Software and Services during the Term of this Agreement. Subject to the terms and conditions contained herein, CoreCommerce grants to Customer a limited, revocable, non-exclusive, non-transferable license to use the Software solely in connection with Customer’s creation and design of eCommerce features on the website owned and operated by Customer.
1.2 Support Services. CoreCommerce may, but is not obligated to, provide Customer with support services related to the Software (“Support Services”). Any supplemental software code provided to Customer as part of the Support Services is considered part of the Software and subject to the terms and conditions of this Agreement. Any custom programming (or coding) by the client is not supported in this agreement.
2. CUSTOMER RESPONSIBILITIES.
2.1 Customer-Supplied Information. As part of the order process, Customer must provide CoreCommerce with true, current, complete and accurate information as prompted by the online order form. Customer agrees that it shall promptly and routinely update such information with CoreCommerce in order to maintain its truth and accuracy. CoreCommerce reserves the right to terminate or suspend Customer’s account upon the discovery that any information Customer has provided is not accurate.
2.2 Account and Passwords. Customer is solely responsible for maintaining the confidentiality of its user names, passwords and its account. Customer agrees to notify CoreCommerce immediately of any unauthorized use of its account or any other breach of security. Customer should immediately request a change in a password if unauthorized use of the Software occurs using such password. Any and all persons accessing the Software using a confidential password issued to Customer shall be deemed to have actual authority to access the Software and input information on behalf of Customer. CoreCommerce will not be liable for any loss that Customer may incur as a result of someone else using Customer’s account, user names or passwords, either with or without its knowledge. However, Customer could be held liable for losses incurred by CoreCommerce or another party due to someone else using Customer’s account or any of its passwords. Customer may not use anyone else’s account at any time, without the permission of the account holder. Failure to comply with the foregoing shall constitute a breach of this Agreement, which may result in immediate termination of Customer’s account.
2.3 Authorized Access. Customer, its employees and authorized agents shall comply with all of the terms and conditions of this Agreement. Customer is responsible for ensuring that only authorized personnel have access to its Customer name(s) and password(s). Customer and its employees and authorized agents shall take all steps necessary to protect the security of accessing and using the Software and the Services, including without limitation, the implementation of virus protection software on its network, and of procedures to prevent abusive or malicious acts or omissions against the Software.
2.4 Customer Content. “Customer Content” means any and all material that Customer makes available to end users via Customer’s website or that Customer otherwise uses in conjunction with its website. Customer Content includes, but is not limited to, information regarding merchandise or services sold by Customer through its website and end user data collected by Customer through its website. Customer acknowledges and agrees that Customer is solely responsible for all aspects of the Customer Content, including, but not limited to, the quality, performance, information, data, graphics, and text contained therein. Customer acknowledges and agrees that Customer is solely responsible for all back-up and archiving of Customer Content. Customer Content shall not include (a) any photographs or videos showing male or female frontal nudity or any sexually explicit nudity; (b) any audio clips or text containing sexually explicit material; (c) any direct hyperlinks to other websites that contain any of the foregoing material; or (d) any sexually explicit items. CoreCommerce reserves the right, in its sole discretion, to determine whether Customer Content is sexually explicit. If Customer’s website contains material of which Customer is unsure, then Customer agrees to notify CoreCommerce before completing its purchase of the Software and Services.
2.5 Compliance with Email Policy. Customer shall not use any mass email programs in conjunction with CoreCommerce’s SMTP servers. Such use is strictly prohibited. CoreCommerce also maintains a zero-tolerance spam policy. Customer shall not use CoreCommerce’s mail servers to send spam. All email sent by Customer via CoreCommerce’s servers must meet the following criteria: (a) the recipient of the email must have made a purchase, requested information, responded to a questionnaire or survey, or had offline contact with Customer; (b) marketing/newsletter emails sent by Customer must provide a working hyperlink that allows recipients to unsubscribe; (c) all unsubscribe requests received by Customer must be processed within ten (10) days; (d) the email “from” address must contain the domain name of Customer’s store created with the Software; and (e) email subject lines must not contain misleading information. CoreCommerce actively monitors its mail servers for abuse. If CoreCommerce finds that Customer is using CoreCommerce’s mail servers to send spam, CoreCommerce will immediately suspend Customer’s use of the Software and Services, and Customer will not be entitled to a pro-rata refund of any fees paid.
2.6 Customer Warranties. Customer hereby warrants and represents that: (a) it owns or has the right to use the Customer Content in the manner in which such Customer Content is offered or may be offered during the Term of this Agreement; (b) Customer will comply with all applicable federal, state and local laws, rules and regulations, including, without limitation, laws related to privacy and use of consumer data; and (c) the Customer Content does not infringe the intellectual property or other proprietary rights of any third party.
2.7 Additional Restrictions. Customer shall not: (a) offer online gambling through Customer’s website; (b) attempt to undermine or cause harm to a CoreCommerce server or current customer; (c) engage in any unauthorized use of other CoreCommerce customer accounts or computers; (d) install IRC or other chat rooms of any kind on Customer’s website without obtaining the prior written approval of CoreCommerce (except that FlashChat and MyPHPChat are pre-approved by CoreCommerce for purposes of this Section); (e) allow any third party software applications or other programs to run continually in the background of Customer’s website without obtaining the prior written approval of CoreCommerce; or (f) use any additional third party applications or executables on CoreCommerce’s servers.
2.8 Unlimited Data Transfer (applies to only certain plans). CoreCommerce serves companies of all sizes, from small businesses to enterprises. It is not appropriate to use our non-corporate plans for any large enterprise or business with sustained demand which will put a burden on our systems. It is not appropriate to use an account primarily as an online storage space or for archiving electronic files. You cannot stream audio or video files, nor use any downloadable goods nor any other heavy bandwidth usage without using our corporate plans or a plan that doesn’t allow for unlimited bandwidth. If you abuse our unlimited bandwidth policy, as determined by CoreCommerce, then your account can be terminated immediately without any refund.
2.9 Payment Card Association Compliance. CoreCommerce utilizes the services of PCI Auditors to insure and certify it is operating in a compliant manner; however, Customer acknowledges and agrees that its use of CoreCommerce service does not guarantee PCI compliance or that its systems are secure from unauthorized access. Customer is responsible for PCI compliance and notification of any suspected breach of your systems and any fines, penalties, cost of those notifications or registration fee imposed by any payment card association and your Acquirer.
2.10 Abuse of Servers. Client acknowledges if they abuse our server with excessive traffic they will be shutdown without notice. This is to preserve other customers sites on the same server. The customer will not receive any compensation for this termination of service. The customer will need to upgrade to a dedicated server plan based on the traffic they are receiving.
2.11 Free Trial. The free trial is for demo uses only. You cannot use it for static content. If your account has 60 days of inactivity your free trial will be deleted from the servers with no backup available. You cannot take any real orders until you become a paid store.
2.12 Test Transactions. Client acknowledges that from time to time they may request a CoreCommerce Service Representative to conduct a test transaction on their behalf, using a CoreCommerce actual credit card. Client agrees to issue a refund within 24 hours of the test. If a refund is not issued by the Client to CoreCommerce, CoreCommerce is hereby authorized to charge Client’s Credit Card on file for the clients account, called a “refund reimbursement for test transaction”.
In consideration for access to the Software and the Services provided hereunder, Customer shall pay CoreCommerce the fees listed on the order form or applicable invoice (the “Fees”). If paying by credit card, Customer hereby authorizes CoreCommerce to charge Customer’s credit card for all Fees. Upon payment of the Fees, CoreCommerce will provide Customer with access to the Software and the Services. CoreCommerce reserves the right to adjust its fee schedules at any time.
Overages for bandwidth and storage: Hard drive overages will be charged $9.00 per 100 MB and bandwidth overages at $9.00 per 1000MB, rounding up to the nearest 100MB for Hard Drive and GB for bandwidth. CoreCommerce reserves the right to terminate Customer’s access to the Software for non-payment of Fees by Customer, if Customer fails to pay for any bandwidth or hard drive overages, or if Customer initiates a chargeback.
CoreCommerce shall not be responsible or liable for any loss of Customer data or content that may result from such termination. In addition, CoreCommerce reserves the right to charge Customer a re-activation fee if Customer’s account is suspended or terminated. No refunds, on a prorated basis or otherwise are provided for the prepaid services we provide. Any fees paid for custom programming or services are not refundable.
4. INTELLECTUAL PROPERTY.
4.1 Ownership of Software. The Software is protected by intellectual property laws and treaties. The Software is licensed to Customer, not sold. All rights not expressly granted herein are reserved by CoreCommerce. Subject to the rights granted herein, CoreCommerce has sole and exclusive ownership of all right, title and interest in and to the Software and all portions thereof. In addition, subject to the rights granted herein, CoreCommerce shall have sole and exclusive ownership of any add-on components, updates and/or upgrades provided to Customer for the Software under this Agreement. If title to the Software or any part or element thereof does not, by operation of law, vest in CoreCommerce, Customer hereby assigns to CoreCommerce or its designee all right, title and interest in and to the Software and/or any portion or element thereof.
4.2 CoreCommerce Trademarks. Certain of the names, logos, and other materials displayed in connection with the Software and the Services constitute trademarks or intellectual property of CoreCommerce. CoreCommerce hereby grants Customer a limited, revocable, non-exclusive, non-transferable right and license to use CoreCommerce’s trade name, trademarks, and service marks (collectively, “CoreCommerce Trademarks”) solely as provided by CoreCommerce for purposes of credit and attribution of the Software and Services on Customer’s website. Customer is not authorized to use the CoreCommerce Trademarks other than as explicitly set forth in this Agreement. Ownership of such trademarks and other intellectual property shall remain at all times with CoreCommerce.
4.3 Customer Trademarks. Customer hereby grants to CoreCommerce a non-exclusive right and license to use Customer’s name, logos, and such of Customer’s trade names, trademarks, and service marks (collectively, “Customer’s Marks”) as are contained in the Customer Content or otherwise provided to CoreCommerce in connection with this Agreement (a) to carry out CoreCommerce’s obligations hereunder, (b) on CoreCommerce’s own websites, and (c) in CoreCommerce’s marketing and promotional materials.
4.4 Restrictions. Except as otherwise expressly set forth in this Agreement, Customer shall not (a) adapt, alter, create derivative works based on, modify, or translate the Software, in whole or in part; (b) sell, assign, distribute, lease, market, rent, sublicense, transfer, make available, or otherwise grant rights to the Software in whole or in part to any third party in any form; (c) enable any timesharing or service bureau use of the Software to any third party; or (d) reverse engineer, decompile or disassemble any component of the Software or otherwise obtain or attempt to obtain the source code for the Software. Customer agrees that in the event of actual or threatened breach of this paragraph by Customer, CoreCommerce will have no adequate remedy at law and will be entitled to immediate and injunctive and other equitable relief, without bond and without the necessity of showing actual money damages. Any breach by Customer of this Section 4.4. shall also be grounds for immediate termination of this Agreement by CoreCommerce.
4.5 Termination of Access to Customer Content. CoreCommerce shall have no duty or obligation to monitor the Customer Content or any other content provided or distributed by Customer. Notwithstanding the foregoing, CoreCommerce may, in its sole discretion, and at any time without notice or liability to Customer, remove from public view and terminate the Services with respect to any Customer Content or other content that CoreCommerce, in its sole discretion, deems offensive or illegal or that fails to comply with the terms and conditions of this Agreement, including non-payment by the client.
5. TERM AND TERMINATION.
5.1 Term. The term of this Agreement shall begin on the date on which Customer signs-up for service with CoreCommerce and continue on a month-to-month basis or annually (the “Term”), depending upon the payment plan chosen by the Customer. The Customer may provide written notice of cancellation through the CoreCommerce admin panel ticketing system by filling out a cancellation request form in the admin panel.
5.2 Termination. Without prejudice to any other rights, CoreCommerce may terminate this Agreement immediately if Customer fails to comply with the terms and conditions of this Agreement. In such event, Customer shall immediately cease all use of and access to the Software.
5.3 Effect of Termination. Upon termination or cancellation of Customer’s account, Customer shall not be entitled to any pro-rata refunds of sums already paid by Customer to CoreCommerce. Any templates, pre-designed or premium must be destroyed and cannot be used on any other site outside of the Software.
CoreCommerce provides a framework to its customers which is CISP-certified under optimal security settings. If a Customer chooses to view credit card information, Customer is choosing a less secure set of security settings as well as assuming a higher risk that CoreCommerce does not endorse or recommend. In addition, such lower security settings may not be PCI-compliant. Customer hereby acknowledges and agrees that if Customer chooses to view credit card information, Customer assumes all liability for its actions and the inherent risk associated with viewing such credit card information. Customer acknowledges and agrees that CoreCommerce shall in no way be liable or responsible for any such risk or liability regardless of the security settings.
7. DISCLAIMER; LIMITATION OF LIABILITY.
7.1 Disclaimer. CORECOMMERCE MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY REGARDING OR RELATING TO THE SOFTWARE, ANY UPDATES OR UPGRADES THERETO, THE SERVICES OR ANY OTHER MATERIALS OR SERVICES FURNISHED OR PROVIDED TO CUSTOMER UNDER THIS AGREEMENT, INCLUDING MAINTENANCE AND SUPPORT. CORECOMMERCE EXPRESSLY AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, RESULTS, WORKMANLIKE EFFORT, COURSE OF DEALING AND TITLE, AND NONINFRINGEMENT WITH RESPECT TO THE SOFTWARE AND SAID OTHER MATERIALS AND SERVICES, AND WITH RESPECT TO THE USE OF ANY OF THE FOREGOING. CORECOMMERCE TAKES ALL COMMERCIALLY REASONABLE MEASURES TO ENSURE THAT ACCESS TO ITS SOFTWARE AND THE SERVICES IS AVAILABLE WITHOUT INTERRUPTION, EXCEPT FOR ANY SCHEDULED DOWNTIME NEEDED TO HELP MAINTAIN EFFECTIVE OPERATION OF THE SOFTWARE AND/OR SERVICES. HOWEVER, DIFFICULTIES WITH HARDWARE, SOFTWARE AND EQUIPMENT AND SERVICES SUPPLIED BY OTHERS MAY RESULT IN SERVICE INTERRUPTIONS. IN SUCH CASES, CORECOMMERCE WILL TAKE THOSE MEASURES THAT IT DEEMS REASONABLE TO ACCOMMODATE THE INTERESTS OF ITS CUSTOMERS. IN NO EVENT WILL CORECOMMERCE BE LIABLE TO ANY PARTY FOR ANY LOSS, COST OR DAMAGE THAT RESULTS FROM ANY PERIOD OF DOWNTIME SUFFERED BY THE SOFTWARE AND/OR SERVICES.
7.2 Limitation of Liability. IN NO EVENT WILL CORECOMMERCE BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF CONFIDENTIAL OR OTHER INFORMATION, BUSINESS INTERRUPTION, PERSONAL INJURY, LOSS OF PRIVACY, FAILURE TO MEET ANY DUTY (INCLUDING OF GOOD FAITH OR OF REASONABLE CARE), AND ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER, ARISING OUT OF OR IN ANY WAY RELATED TO THE FURNISHING, PERFORMANCE OR USE OF THE SOFTWARE, SERVICES PERFORMED HEREUNDER, OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF CORECOMMERCE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL CORECOMMERCE BE LIABLE TO CUSTOMER FOR ANY DAMAGES RESULTING FROM OR RELATED TO ANY FAILURE OR DELAY OF CORECOMMERCE IN PROVIDING ACCESS TO THE SOFTWARE UNDER THIS AGREEMENT. CORECOMMERCE’S LIABILITY UNDER THIS AGREEMENT FOR DIRECT DAMAGES WILL NOT, IN ANY EVENT, EXCEED THE MONTHLY SUBSCRIPTION FEES PAID BY CUSTOMER TO CORECOMMERCE UNDER THIS AGREEMENT DURING THE PRECEDING SIX (6) MONTH PERIOD. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
7.3 No Other Warranty. No employee, agent, representative or affiliate of CoreCommerce has authority to bind CoreCommerce to any oral representations or warranty concerning the Software or the Services provided hereunder. Any written representation or warranty not expressly contained in this Agreement will not be enforceable. The disclaimers and limitations on liability set forth above are fundamental elements of the basis of the agreement between CoreCommerce and Customer. CoreCommerce would not be able to provide the Software on an economic basis without such limitations.
7.4 Limitation on Claims Against CoreCommerce. Customer agrees that any claim or cause of action arising out of Customer’s use of the Software or Services must be filed within one (1) year after such claim or cause of action arose or it shall forever be barred, notwithstanding any statute of limitations or other law to the contrary. Any failure by CoreCommerce to enforce or exercise any provision of this Agreement or related right within such period shall not constitute a waiver of that right or provision.
8. INDEMNITY BY CUSTOMER.
Customer shall indemnify and hold CoreCommerce harmless from and against any and all claims, demands, actions, suits, proceedings, costs, losses, liabilities and expenses (including reasonable attorneys’ fees and legal costs) arising out of or related Customer’s use of the Software, the Services provided hereunder, the Customer Content, violation of this Agreement, and/or any violation of any applicable law.
9.2 Notices of Trademark and Copyright Infringement. CoreCommerce reserves the right to terminate end user access to Customer’s eCommerce services if Customer fails to comply with a legitimate notice of infringement provided to Customer by CoreCommerce pursuant to the Digital Millennium Copyright Act within the specified time.
9.3 Waiver. Any waiver of the provisions of this Agreement or of a party’s rights or remedies under this Agreement must be in writing to be effective. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed and will not be deemed to be a waiver of such party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such party’s right to take subsequent action. Except as expressly stated in this Agreement, no exercise or enforcement by either party of any right or remedy under this Agreement will preclude the enforcement by such party of any other right or remedy under this Agreement or that such party is entitled by law to enforce.
9.4 Severability. If any term, condition or provision in this Agreement is found to be invalid, unlawful or unenforceable to any extent, such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.
9.5 Relationship of Parties. The relationship of CoreCommerce and Customer established by this Agreement is that of independent contractors, and nothing contained in this Agreement will be construed to constitute the parties as partners, joint venturers, co-owners or otherwise as participants in a joint or common undertaking.
9.6 Amendments and Modifications. No amendment of any provision of this Agreement shall be valid unless in a writing signed by an authorized representative of each of the parties.
9.7 Assignment. Customer may not assign or delegate this Agreement or any of its rights or duties under this Agreement, without the prior written consent of CoreCommerce, which may be withheld in CoreCommerce’s sole discretion. Any attempt by Customer to assign this Agreement without the consent of CoreCommerce shall be null and void. CoreCommerce may assign this Agreement at any time.
9.8 Notices. All notices under this Agreement will be in writing and will be deemed given when: (a) delivered personally; (b) sent by confirmed email containing a commercially reasonable digital signature or facsimile; (c) five (5) days after having been sent by registered or certified mail, return receipt requested; or (d) one (1) day after deposit with a commercial overnight carrier specifying next day delivery, with written verification of receipt. All communications to Customer shall be sent to the address set forth on the order form or to such other address as may be designated by Customer in writing.
9.9 Applicable Law. The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of Tennessee, without giving effect to the principles of conflict of laws. The limitations or exclusions of warranties, remedies or liability contained in this Agreement shall apply to Customer only to the extent such limitations or exclusions are permitted under the laws of the jurisdiction where Customer is located.
9.10 Arbitration. All disputes arising in connection with this Agreement shall be submitted to and finally settled by arbitration in accordance with the commercial arbitration rules of the American Arbitration Association by an arbitrator appointed in accordance with the rules who shall be free to act according to equity to the extent this does not interfere with the legal enforcement of the award. Both parties consent that the arbitration shall take place in Williamson County, Tennessee and agree that process may be served in the manner provided herein for giving of notices or otherwise as allowed by Tennessee or federal law. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorney’s’ fees.
All questions concerning this Agreement shall be directed to: CoreCommerce LLC, 231 Wilson Pike Circle; Brentwood, TN 37027.