Terms of Service
The StoreToolz Store service ("StoreToolz Store" or the "Service"), owned and operated by Software Toolz Inc. d.b.a. StoreToolz, is provided to you ("you" or "Merchant") under the terms and conditions of this StoreToolz Store Merchant Service Agreement and any amendments thereto and any operating rules or policies (collectively, the "Agreement"). StoreToolz reserves the right, in its sole discretion, to change, modify, add or remove all or part of the Agreement at any time. Merchant will receive notice of such changes and/or modifications pursuant to Section 14 regarding notices.
2.0 DESCRIPTION OF STORETOOLZ STORE SERVICE
StoreToolz hosts interactive online stores ("Store") on the World Wide Web and may provide Merchants with, among other things, (i) access to its StoreToolz Store Software ("Software") to facilitate the creation and maintenance of Stores for the sale of goods and services.
3.0 MERCHANT'S OBLIGATIONS
3.1 Merchant acknowledges and agrees that it shall be responsible for all goods and services offered at Merchant's Store, all materials used or displayed at the Store, and all acts or omissions that occur at the Store or in connection with Merchant's account or password. You agree that your use of the Service and your Store will be in compliance with the StoreToolz Site Guidelines and any applicable laws and regulations at all times.
3.2 You agree to comply with the export, re-export, and import laws and regulations of the United States and other applicable countries where you operate or do business, including but not limited to the United States Export Administration Regulations, the antiboycott rules, and the Office of Foreign Assets Control regulations. Specifically, but without limitation, you represent and warrant that you:
You agree to comply with all applicable U.S. and non-U.S. laws, rules, regulations, and orders, including, but not limited to, tax and intellectual property, including copyright, content, sales, mail-order, commerce, and ecommerce laws and regulations. You shall be responsible for determining which laws or regulations are applicable to Your use of the Services. You shall, upon the request of StoreToolz, provide StoreToolz assurance of Your compliance with those laws. You acknowledge that StoreToolz exercises no control whatsoever over the content of the information passing through Your site(s) and that it is Your sole responsibility to ensure that the information You and Your users transmit and receive complies with all applicable laws and regulations and the StoreToolz Policies.
3.3 StoreToolz reserves the right to refuse to host or continue to host any Store which it believes, in its sole discretion: (1) offers for sale goods or services, or uses or displays materials, that are illegal, obscene, vulgar, offensive, dangerous, or are otherwise inappropriate; (2) has substantially changed its Store from the time it was accepted; (3) has received a significant number of complaints for failing to be reasonably accessible to customers or timely fulfill customer orders; (4) has become the subject of a government complaint or investigation; or (5) has violated or threatens to violate the letter or spirit of the Agreement.
4.0 PROPRIETARY RIGHTS
4.1 Software License
StoreToolz hereby grants Merchant a non-exclusive, non-transferable license to use the Software in object code form only on a server controlled by StoreToolz for the sole purpose of creating and maintaining Stores on such server. Merchant is not being granted any right to copy the Software or to use it on computers other than a server controlled by StoreToolz. Merchant may not use Web pages or parts of Web pages generated by means of the Software, other than content that originates from and is proprietary to Merchant, on any server other than the servers controlled by StoreToolz without StoreToolz's express written agreement. Merchant also acknowledges and agrees that the Software is intended for access and use by means of web browsing software, and that StoreToolz does not commit to support any particular browsing platform. StoreToolz reserves the right at any time to revise and modify the Software, release subsequent versions thereof and to alter features, specifications, capabilities, functions, and other characteristics of the Software, without notice to Merchant. If any revision or modification to the Software materially changes Merchant's ability to conduct business, Merchant's sole remedy is to terminate the Agreement pursuant to Section 6.2 regarding non-renewal of service.
4.2 StoreToolz Intellectual Property
Merchant acknowledges and agrees that content available from StoreToolz or the Service, including but not limited to text, software, music, sound, logos, trademarks, service marks, photographs, graphics, or video, is protected by copyright, trademark, patent, or other proprietary rights and laws, and may not be used in any manner other than as specified in Section 4.1 above.
4.3 Merchant's Property
Merchant agrees that by using the Service, Merchant grants StoreToolz, and its successors and assigns, a non-exclusive, worldwide, royalty-free, perpetual, non-revocable license under Merchant's copyrights and other intellectual property rights, if any, in all material and content displayed in Merchant's Store to use, distribute, display, reproduce, and create derivative works from such material in any and all media and display in any manner and on any StoreToolz property the results of search queries and comparisons conducted on StoreToolz, including, without limitation, searches conducted on StoreToolz Shopping and the Service. Merchant also grants StoreToolz the right to maintain such content on StoreToolz's servers during the term of the Agreement and to authorize the downloading and printing of such material, or any portion thereof, by end users for their personal use.
4.4 Abusive User Behavior
StoreToolz uses certain confidential internal and third-party tools and techniques to protect users from abusive and other harmful behavior on the Internet and on the StoreToolz servers. StoreToolz reserves the right to take any action it deems necessary at its sole discretion, including, without limitation, account termination or suspension, to protect against such abusive or harmful behavior. StoreToolz updates these tools, techniques, and practices from time to time as the abusive practices and industry standards change. You agree that StoreToolz shall not be responsible or liable for any loss or damage of any sort incurred by You, or any third party, as the result of StoreToolz taking or not taking any actions in response to any actual or perceived abusive user behavior.
4.6 Unauthorized Access
Merchant shall not attempt to gain unauthorized access to any servers controlled by StoreToolz.
4.7 StoreToolz Small Business Account Function
You acknowledge that the web hosting service is offered as a platform to host and serve web pages and web sites and is not offered for other purposes, such as remote disk space storage. Accordingly, You understand and agree to use the web hosting service solely for the purpose of hosting and serving web pages as viewed through a web browser and the Hypertext Markup Language (HTML) protocol or other equivalent technology. StoreToolz Small Business is designed to serve the web hosting needs of small, independently owned and operated businesses in the United States. It is not intended to support the greater web hosting needs of large enterprises or internationally based businesses. StoreToolz Small Business is also a shared web hosting service, which means a number of customers' web sites are hosted from the same server. To ensure that StoreToolz Small Business is reliable and available for the greatest number of users, a customer's web site usage cannot adversely affect the performance of other customers' sites.
Additionally, the purpose of StoreToolz web hosting is to host web sites, not store data. Using an account primarily as an online storage space for archiving electronic files is prohibited. You further agree that if, at StoreToolz's sole discretion, You are deemed to have violated this section, or if StoreToolz, in its sole discretion, deems it necessary due to excessive burden or potential adverse impact on StoreToolz's systems, potential adverse impact on other users, server processing power, server memory, abuse controls, or other reasons, StoreToolz may suspend or terminate Your account without notice to You and with no liability to StoreToolz.
5.1 Hosting Fee
Merchant shall pay to StoreToolz a monthly hosting fee based on a negotiated percentage of sales from the StoreToolz site exclusive of shipping charges and sales tax, with the first payment due on the last day of the first month of service, and subsequent payments due on a monthly basis. StoreToolz may, but has no obligation to, make available, one or more special discount offerings on the hosting fee. Any such special offerings will revert to the non-discounted and then-current price at the end of the term and will continue unless separately cancelled.
5.5 Reconciliation and Auditing for Transaction Fees and Revenue Share Fees
With respect to the fees set forth in Sections 5.3 and 5.4, Merchant shall be entitled to identify, and exclude from Total Revenue and Network Revenue, those transactions conducted through Merchant's Store that are cancelled or for which no products are shipped to the purchaser ("Excluded Transactions"), except that Merchant must identify a transaction as an Excluded Transaction within 90 days from the date on which the transaction was originally conducted. StoreToolz shall be entitled to audit, at a mutually agreed upon time during normal business hours, those Merchant records relating to Excluded Transactions and otherwise to investigate Excluded Transactions, which might include contacting the purchaser to confirm that the transaction at issue is an Excluded Transaction.
All fees are cumulative and payable in U.S. dollars. StoreToolz shall calculate all fees and, in its discretion and on the applicable due date set forth herein, either (a) charge payments to the credit card number given to StoreToolz at the time of registration or to any other credit card number that Merchant so designates, or (b) invoice payments to be paid by Merchant within ten (10) days after the invoice date. Late payments shall bear interest at the rate of one percent (1%) per month (or the highest rate permitted by law, if less). In the event of any failure by Merchant to make payment, Merchant shall be responsible for all reasonable expenses (including attorneys. fees) incurred by StoreToolz in collecting such amounts. StoreToolz may, upon 30 days prior notice to Merchant, alter its fees under the Agreement. Merchant will be charged for any extra fee features Merchant subscribes to or uses during that period's billing cycle. All such fees and charges are payable in accordance with payment terms in effect at the time the fee or charge becomes payable.
5.7 No Refunds or Credits
Upon cancellation or termination of the Service, Merchant will not receive a refund for any charges or fees associated with the Service.
The term of the Agreement shall be 30 days commencing on the date that Merchant opens an account for Merchant's Store (the 'Start Date'). The term shall automatically renew for successive monthly periods at renewal rates applicable at the time, unless notice of non-renewal is provided in accordance with Section 6.2, below; provided, however, that to qualify for each renewal Merchant must at the time of renewal be in substantial compliance with the material terms and conditions of the Agreement. StoreToolz shall have the right, but not the obligation, to review any Store for compliance with the Agreement as part of the renewal process, or at any time.
Either party, in its sole and absolute discretion, may give notice of nonrenewal with or without cause and without stating any reason therefor. Any notice of nonrenewal must be given at least five (5) days prior to the end of the current monthly period in order for the Agreement to expire on the last day of that monthly period; otherwise, the Agreement will expire on the last day of the following monthly period (e.g., if the Start Date were September 10, and Merchant were to provide StoreToolz with notice of nonrenewal on October 7, then the Agreement would expire on November 10). All notices under this Section 6.2 must be given in the manner described in Section 14 regarding notice.
Either party may terminate the Agreement on thirty (30) days notice if the other party has materially breached or is otherwise not in compliance with any provision of the Agreement, and such breach or noncompliance is not cured within such thirty (30) day period. StoreToolz reserves the right to immediately suspend any customer access to the Store until such breach or noncompliance is cured.
7.2 Termination for Illegal or Other Activity
Notwithstanding the foregoing, StoreToolz may, but has no duty to, immediately terminate Merchant and remove it from StoreToolz servers if StoreToolz in its sole discretion concludes that Merchant is engaged in illegal activities or the sale of illegal or harmful goods or services, or is engaged in activities or sales that may damage the rights of StoreToolz or others. Any termination under this Section 7.2 shall take effect immediately and Merchant expressly agrees that it shall not have any opportunity to cure.
Merchant expressly waives any statutory or other legal protection in conflict with the provisions of this Section 7.
7.4 Deletion of Information
Upon termination, StoreToolz reserves the right to delete from its servers any and all information contained in Merchant's account, including but not limited to order processing information, mailing lists, and any Web pages generated by the Software.
The provisions of Section 4 (Proprietary Rights), Section 8.1 (Merchant Information), Section 10 (Indemnity), and Section 11 (Disclaimer of Warranties and Liabilities) of this Agreement shall survive any termination of the Agreement.
8.0 MERCHANT PRIVACY
8.1 Merchant Information
StoreToolz maintains information about Merchant and the Store on StoreToolz servers, including but not limited to Merchant's account registration information, Merchant's customer order information, sales information, and clickstream data ("Merchant Information"). Merchant grants to StoreToolz a non-exclusive, worldwide, royalty-free, perpetual license to use Merchant Information in aggregate form (i.e., in a form that is not individually attributable to the Merchant) for research, marketing and other promotional purposes.
Merchant shall receive a password from StoreToolz to provide access to and use of the Software and Online Store Services. Merchant is entirely responsible for any and all activities which occur under Merchant's account and password. Merchant agrees to keep its password confidential, to allow no other person or company to use its account, and to notify StoreToolz promptly if Merchant has any reason to believe that the security of its account has been compromised.
8.3 Technical Access
Merchant acknowledges and agrees that technical processing of Merchant Information is and may be required: (a) for the Service to function; (b) to conform to the technical requirements of connecting networks; (c) to conform to the technical requirements of the Service; or (d) to conform to other, similar technical requirements. Merchant also acknowledges and agrees that StoreToolz may access Merchant's account and its contents as necessary to identify or resolve technical problems or respond to complaints about the Service.
9.0 MAINTENANCE AND SUPPORT
9.1 Merchant can obtain assistance with any technical difficulty that may arise in connection with Merchant's utilization of the Software or Online Store Services by contacting Merchant Care. StoreToolz reserves the right to establish limitations on the extent of such support, and the hours at which it is available.
9.2 Merchant is responsible for obtaining and maintaining all telephone, computer hardware and other equipment needed for its access to and use of the Software and Online Store Services and Merchant shall be responsible for all charges related thereto.
Merchant agrees to indemnify and hold harmless StoreToolz, and its parents, subsidiaries, affiliates, officers, directors, shareholders, employees and agents, from any claim or demand, including reasonable attorneys fees, made by any third party due to or arising out of Merchant's conduct, Merchant's use of the Service, the goods or services offered at Merchant's Store, any alleged violation of the Agreement, or any alleged violation of any rights of another, including but not limited to Merchant's use of any content, trademarks, service marks, trade names, copyrighted or patented material, or other intellectual property used in connection with Merchant's Store. StoreToolz reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Merchant, but doing so shall not excuse Merchant's indemnity obligations.
11.0 DISCLAIMER OF WARRANTIES AND LIABILITIES
THE SERVICE AND SOFTWARE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. NEITHER THIS AGREEMENT OR ANY DOCUMENTATION FURNISHED UNDER IT IS INTENDED TO EXPRESS OR IMPLY ANY WARRANTY THAT THE ONLINE STORE SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE OR THAT THE SOFTWARE WILL PROVIDE UNINTERRUPTED, TIMELY OR ERROR FREE SERVICE. THE SECURITY MECHANISM INCORPORATED IN THE SOFTWARE HAS INHERENT LIMITATIONS AND MERCHANT MUST DETERMINE THAT THE SOFTWARE ADEQUATELY MEETS ITS REQUIREMENTS. MERCHANT ACKNOWLEDGES AND AGREES THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT ITS OWN DISCRETION AND RISK AND THAT MERCHANT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO ITS COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. STORETOOLZ, AND ITS PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS, SHALL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES OR LEGAL THEORIES WHATSOEVER, FOR ANY LOSS OF BUSINESS, PROFITS OR GOODWILL, LOSS OF USE OR DATA, INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER, EVEN IF STORETOOLZ IS AWARE OF THE RISK OF SUCH DAMAGES, THAT RESULT IN ANY WAY FROM MERCHANT'S USE OR INABILITY TO USE THE ONLINE STORE SERVICES OR THE SOFTWARE, OR THAT RESULT FROM ERRORS, DEFECTS, OMISSIONS, DELAYS IN OPERATION OR TRANSMISSION, OR ANY OTHER FAILURE OF PERFORMANCE OF THE ONLINE STORE SERVICES OR THE SOFTWARE. STORETOOLZ'S LIABILITY TO MERCHANT SHALL NOT, FOR ANY REASON, EXCEED THE AGGREGATE PAYMENTS ACTUALLY MADE BY MERCHANT TO STORETOOLZ OVER THE COURSE OF THE EXISTING TERM. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR LIABILITIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
12.0 NO RESALE OR ASSIGNMENT OF SERVICE
Merchant agrees not to resell or assign or otherwise transfer its rights or obligations under the Agreement without the express written authorization of StoreToolz.
13.0 FORCE MAJEURE
Neither party shall be liable to the other for any delay or failure in performance under the Agreement resulting directly or indirectly from acts of nature or causes beyond its reasonable control.
Any notices or communications under the Agreement shall be by electronic mail or in writing and shall be deemed delivered upon receipt to the party to whom such communication is directed, at the addresses specified below. If to StoreToolz, such notices shall be addressed to StoreToolz Small Business, 701 First Avenue, Sunnyvale, CA 94089, USA. If to Merchant, such notices shall be addressed to the electronic or mailing address specified when Merchant opens an account with StoreToolz Store, or such other address as either party may give the other by notice as provided above.
15.0 ENTIRE AGREEMENT
The Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all previous proposals, both oral and written, negotiations, representations, writings and all other communications between the parties.
The Agreement and the relationship between Merchant and StoreToolz shall be governed by the laws of the state of California without regard to its conflict of law provisions. Merchant and StoreToolz agree to submit to the personal and exclusive jurisdiction of the Superior Court of the State of California for the County of Santa Clara or the United States District Court for the Northern District of California. StoreToolz's failure to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties intentions as reflected in the provision, and agree that the other provisions of the Agreement remain in full force and effect. Merchant agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the Agreement must be filed within one (1) year after such claim or cause of action arose, or be forever barred. The section titles in the Agreement are for convenience only and have no legal or contractual effect.
StoreToolz Site Guidelines
StoreToolz, in its sole discretion, may remove any product or service from the StoreToolz Site account that does not comply with these Guidelines or any other applicable agreement or terms and may suspend or terminate the StoreToolz Merchant's account (including StoreToolz ID and email). StoreToolz reserves the right to change these Guidelines at any time without notice. It is Your responsibility to check regularly for changes to the Guidelines.
If you see a product or service that violates our guidelines or terms, please let us know.
StoreToolz Small Business provides a platform for merchants to sell items online. StoreToolz Merchants are responsible for:
StoreToolz Merchant Guidelines
StoreToolz Merchants must:
Prohibited and Restricted Items Policy
StoreToolz maintains this Prohibited and Restricted Items Policy ("Policy") to provide customers and users of the StoreToolz Small Business platform and StoreToolz services with rules and restrictions that apply to the types of products and services that may be sold or promoted using StoreToolz services. StoreToolz may amend this Policy from time to time with no notice to you by posting updates on this page. Your continued use of StoreToolz services will constitute acceptance of any changes or additions to the Policy.
You may not sell the following items under any circumstances:
The sale of the following items may be restricted by certain applicable law. StoreToolz Merchants are required to provide satisfactory proof of compliance with all applicable laws immediately upon demand, in StoreToolz's sole discretion.
|[HOME] [Signup] [Need Help Deciding?] [Demo]||©2013 Software Toolz, Inc.|