Agatep Ecommerce Terms of Service
1.0 ACCEPTANCE OF TERMS
1.2 Agatep Ecommerce reserves the right, in its sole discretion, to change, modify, add, or remove all or part of these Terms, including but not limited to any term, applicable fee, policy, or guideline, at any time without notice or acceptance by You, except as provided in Section 4. Regardless of whether Agatep Ecommerce has provided You individual notice, Your continued use of the Service following Agatep Ecommerce's notice or posting of changed Terms will constitute Your acceptance of such changes. It is Your responsibility to check regularly for changes to the Terms and ensure that any contact information You provide to Agatep Ecommerce is updated and correct.
1.3 If You are registering a new domain name or using a previously registered domain name in conjunction with the Service, Your use of the domain name is also subject to the policies of the Internet Corporation for Assigned Names and Numbers ("ICANN") and the appropriate Domain Name Registration company and not with Agatep Ecommerce
1.4 BY COMPLETING THE REGISTRATION PROCESS ("Registration Process") AND USING ANY AGATEP ECOMMERCE PRODCUT OR SERVICE, YOU: (a) agree to be bound by these Terms and, if applicable, the appropriate Domain Name Registration company agreement; (b) represent and warrant that, if You are an individual, You are 18 years old or older or, if you are an entity, that You are a corporation, partnership, or other legal entity duly formed (and incorporated if applicable) in good standing where required to do business with all legal authority and power to accept these Terms; (c) agree to provide true, accurate, current, and complete information in the Service registration form, including billing and payment-related information and other account information (all together, the "Account Information"), and agree to maintain and update this information to keep it true, accurate, current, and complete; (d) agree to be bound by the terms of the ICANN Uniform Domain Name Dispute Resolution Policy located at http://www.icann.org/udrp/udrp.htm as may be amended or relocated from time to time; and (e) represent and warrant that You have the power and authority to enter into and perform under these Terms. If these Terms or any future changes are unacceptable to You, Your sole remedy is to cancel Your Service. IF YOU DO NOT ACCEPT AND AGREE TO THESE TERMS, DO NOT COMPLETE THE REGISTRATION PROCESS.
2.0 DESCRIPTION OF SERVICE
2.1 The complete list of services (the "Service") governed by these Terms is as follows:
Agatep Ecommerce - Ecommerce Solutions: Economy Solution, Standard Solution, Deluxe Solution, and Professional Solution;
Agatep Ecommerce - Web Hosting;
Agatep Ecommerce - Domain Services;
2.2 If You are a Agatep Ecommerce - Ecommerce Solutions customer, Your Service includes Ecommerce (Store) functionality. These entire Terms apply to You.
2.3 If You are a Agatep Ecommerce - Web Hosting customer, Your Service includes Web Hosting. Except for Sections 10 these entire Terms apply to You.
2.4 If You are a Agatep Ecommerce - Domain Services customer, Your Service includes the Agatep Ecommerce Domain Service. Except for Sections 10, these entire Terms apply to You.
2.5 Unless explicitly stated otherwise, any new features that augment or enhance the current Service, including the release of new Service resources, shall be subject to these Terms. In order to use the Service, You must obtain access to the World Wide Web, either directly or through devices that access web-based content, and pay any fees associated with such access. You are responsible for obtaining and maintaining all telephone, computer hardware, and other equipment needed for Your access to and use of the Service and any Software, and for all related fees.
3.0 INTELLECTUAL PROPERTY
3.1 Except for the rights expressly granted herein, this Agreement does not transfer from Agatep Ecommerce to You any Agatep Ecommerce developed, licensed, or owned technology, and all rights, title, and interest in and to such technology will remain solely with Agatep Ecommerce The parties agree that they will not, directly or indirectly, reverse engineer, decompile, disassemble, or otherwise attempt to derive source code or other trade secrets from the other party.
3.2 Notwithstanding anything to the contrary in this Agreement, You will not attempt to prohibit or enjoin Agatep Ecommerce at any time from utilizing any skills or knowledge of a general nature acquired during the course of providing the Services, including, without limitation, information publicly known or available or that could reasonably be acquired in similar work performed for another customer of Agatep Ecommerce
3.3 Agatep Ecommerce may be required to disclose information to individuals asserting rights under the Digital Millennium Copyright Act, and You expressly authorize Agatep Ecommerce to comply with any and all lawful notices, subpoenas, court orders, or warrants without prior notice to You.
3.4 You will not use Agatep Ecommerce's name or any language, pictures, or symbols that could, in Agatep Ecommerce's sole judgment, imply Agatep Ecommerce's identity in any (i) written or oral advertising or presentation, or (ii) brochure, newsletter, book, or other written material of whatever nature, without Agatep Ecommerce's prior written consent. You agree that any and all press releases and other public announcements related to this Agreement and subsequent transactions between Agatep Ecommerce and You, including the method and timing of such announcements, must be approved in advance by Agatep Ecommerce in writing. Agatep Ecommerce reserves the right to withhold approval of any public announcement in its sole discretion. Without limitation, any breach of Your obligation regarding public announcements shall be a material breach of these Terms.
3.5 Agatep Ecommerce, other Agatep Ecommerce product and service names, and all of their related logos are each trademarks of Agatep Ecommerce (the "Agatep Ecommerce Marks"). Without Agatep Ecommerce's prior written permission, you agree not to display, or use in any manner, the Agatep Ecommerce Marks.
4.1 Payment Terms
Unless modified in accordance with Section 4.6, You will pay all fees due according to the prices and terms applicable to your Services, including option features. All administration fees and non-recurring charges, along with the first month's recurring charges, shall be due and payable within ten (10) days of initiation of Service. Thereafter, recurring fees will be charged in advance to Your selected payment method. If Your selected payment method is invalid or You are otherwise past due in your payments for any reason, the Service may be terminated and removed from Agatep Ecommerce's servers by Agatep Ecommerce with or without notice, and all the information contained within deleted permanently. Agatep Ecommerce accepts no liability for information or content that is deleted due to an invalid payment method or where Your payments are past due. Reactivation of the Service after termination or cancellation for any reason shall require the payment of additional administration fees. In the event You fail to pay charges, Agatep Ecommerce may assign unpaid late balances to a collection agency for appropriate action. In the event legal action is necessary to collect on balances due, You agree to reimburse Agatep Ecommerce for all expenses incurred to recover sums due, including attorneys' fees and other legal expenses. You also agree to pay all current charges for the Service as well as taxes and fees assessed against You or Agatep Ecommerce on the charges and all late payment, interest, or other fees as stated on Your bill. Agatep Ecommerce may modify its billing practices or late payment charges by providing You with prior written notice of the modification. Agatep Ecommerce in its discretion may offer discounts or special offers from time to time.
4.2 Ecommerce Solutions
If You are a Agatep Ecommerce - Ecommerce Solutions customer, You will be charged, as applicable, (a) an annual administration fee, (b) an annual ecommerce hosting fee, (c) an annual digital certificate fee, and (d) a monthly service fee according to the maximum amount of products you have listed online for a given month. Agatep Ecommerce will calculate all fees.
For annual digital certificate cancellation, there is no refund of any unused portion of the service. You will own the digital certificate until the end of your prepaid term.
4.3 Web Hosting and Domain Services
If You are a Agatep Ecommerce - Web Hosting customer, You will be charged, as applicable, (a) a one-time setup fee and (b) a recurring annual Service fee. If You are a Agatep Ecommerce Domains customer, you will be charged, as applicable, an annual Service fee. Agatep Ecommerce will calculate all fees.
4.4 Upgrades and Downgrades
You can upgrade or downgrade between the plans and products listed in Section 2 above at any time. Such upgrade or downgrade will take effect immediately. You will be automatically charged, via the payment method You provided, any and all fees based upon your upgrade or downgrade. If You are due a refund, the amounts will be credited and refunded to You. In the event that you change from one non-annual service to another, your payment method will be charged a pro-rata amount for the upgraded service and credited a pro-rata amount for the unused previous service. In the event that you change from a non-annual service to an annual service, your payment method will be charged for the entire annual service and credited a pro-rata amount for the unused non-annual service. In the event that you change from an annual service to a non-annual or annual service, no refunds will be provided. Both the refund and charge will both be based on the number of days remaining in Your contract term. The contract term and anniversary date may change if You change from a non-annual service to an annual service, or from an annual service to a non-annual service. You may also be charged, as applicable, an upgrade or downgrade fee. Fees may not be credited towards other services.
For Domain upgrades, downgrades, or cancellation there is no refund of any unused portion of the service. You will own the domain name until the end of your prepaid term. For Domains who upgrade to Web Hosting or Ecommerce Solutions, Your prepaid domain registration will be extended for the unused portion of the term, and all setup fees for the product will be waived.
4.5 Price Changes
Agatep Ecommerce may, upon notice required by applicable laws, at any time change the amount of or basis for determining any fee or charge or institute new fees or charges with respect to the Service. Upon renewal, as provided in Section 5.1, the prices charged may be changed without notice to the then prevailing price for the Services.
Current Fee Schedules
For the current fee schedules, go to:
http://www.agatep.ca/ecommerce_services.php for Web Hosting;
http://www.agatep.ca/ecommerce_services.php for Domains; and
http://www.agatep.ca/merchant/comparison.php for Ecommerce Solutions.
You shall pay or otherwise be responsible for all federal, provincial, or local sales, use, excise, gross receipts, municipal fees, transfer, transaction, property, or similar taxes, fees, or surcharges (hereinafter "Tax") imposed on, or with respect to, the Services under this Agreement.
5.0 TERM AND TERMINATION
The initial term of this Agreement and these Terms will commence on the first date on which you use the Service and will remain in effect for the period of time corresponding to the plan You select during the Registration Process ("Initial Term"). If You wish to terminate the Services at the end of the Initial Term or any subsequent term to which you have agreed ("Renewal Term"), You must contact us via email, fax, or phone. If You fail to notify Agatep Ecommerce of Your intent not to renew, this Agreement will be automatically renewed, thirty (30) days prior to the end of the current Initial or Renewal Term for a month-to-month period, ninety (90) days prior to the end of the current term for a 3-month-term product, or for one year in the case of products with an annual term, at the Agatep Ecommerce then-current rates and charges. If You agree to a Renewal Term, or fail to cancel the services as set forth herein, this Agreement will be renewed at the then-current rates and fees. Except as set forth in these Terms, neither party will be liable to the other for any termination or expiration of any Service or this Agreement in accordance with its Terms.
5.2 Cancellation/Termination by You
You may cancel Your Service and terminate these Terms at any time. If You cancel the Service before the end of the Initial or Renewal Term, Your Service and access to the Service will be discontinued immediately, and no refund will be provided for any payments You have made. If the Initial or Renewal Term is more than one month, and you cancel Your Service prior to the expiration of such Term, an early termination fee may apply to the extent agreed to during the Registration Process.
If You registered for a new domain name in conjunction with Your Service, and cancel before You have paid your second monthly payment without disputing such charge with either your payment method company or Agatep Ecommerce, Agatep Ecommerce reserves the right to request the domain name provider to remove the domain name from the domain name registry and/or transfer the domain name from You to Agatep Ecommerce You acknowledge that where Agatep Ecommerce transfers such domain name to Agatep Ecommerce under this Section 5.2, Agatep Ecommerce will hold all rights of the registered domain name holder in respect of that domain name, including the right to sell the domain name to a third party (where this was a right held by You as the original registrant in respect of the relevant domain name).Additionally, Your domain name will cease working with Your email and no longer point to Your web site. After cancellation and/or expiration of this Agreement, You will no longer have access to Your web site and all information contained therein may be deleted by Agatep Ecommerce
If You did not register for a new domain name in conjunction with the Service, or did register for a new domain name but cancel Your Service after You have paid Your second monthly payment without disputing such charge with either your payment method company or Agatep Ecommerce, Your domain name will remain registered for its current term. However, Your domain name will cease working with Your email and no longer point to Your web site. After cancellation and/or expiration of this Agreement, You will no longer have access to Your web site and all information contained therein may be deleted by Agatep Ecommerce
5.3 Termination by Agatep Ecommerce
Agatep Ecommerce may terminate these Terms at any time upon notice to You. Notwithstanding anything to the contrary herein, Agatep Ecommerce may also, but has no duty to, immediately suspend or terminate Your Service, terminate Your access and password, remove Your Service from Agatep Ecommerce's servers, or remove any Content within the Service, if Agatep Ecommerce concludes, in its sole discretion, that You (a) have breached, violated, or acted inconsistently with the letter or spirit of these Terms, including any applicable Agatep Ecommerce Policy or any applicable law or regulation; (b) have provided false information as part of your Account Information; (c) have failed to keep your Account Information complete, true, and accurate; (d) fail to respond to any email communication sent to the email address listed in your Account Information; (e) are engaged in fraudulent or illegal activities or the sale of illegal or harmful goods or services; or (f) are engaged in activities or sales that may damage the rights or reputation of Agatep Ecommerce or others (each "Termination for Cause"). Any Termination for Cause by Agatep Ecommerce will take effect immediately, and You expressly agree that You will not have any opportunity to cure. If Your Agatep Ecommerce ID is terminated for any reason, these Terms and Your access to the Service will also be terminated. Additionally, if You registered a new domain name in conjunction with Your Service, and Agatep Ecommerce terminates Your Service due to a Termination for Cause, then Agatep Ecommerce reserves the right to request the domain name provider to remove the domain name from the domain name registry and/or transfer the domain name from You to Agatep Ecommerce You acknowledge that where Agatep Ecommerce transfers such domain name to Agatep Ecommerce under this Section 5.3, Agatep Ecommerce will hold all rights of the registered domain name holder in respect of that domain name, including the right to sell the domain name to a third party (where this was a right held by You as the original registrant in respect of the relevant domain name).
5.4 Termination for Cause by Either Party
In addition to any other right to terminate set forth herein, either party may terminate this Agreement if: (i) the other party breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of the same, except in the case of failure to pay fees, which must be cured within five (5) days after receipt of written notice from Yahoo; (ii) the other party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (iii) the other party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing.
5.5 Termination - Legal Event
In the event a ruling, regulation, or order issued by a judicial, legislative, or regulatory body causes Agatep Ecommerce to believe that these Terms and/or the Service provided hereunder may be in conflict with such rules, regulations, and/or orders, Agatep Ecommerce may suspend or terminate the Service, or terminate these Terms without liability.
5.6 Deletion of Content
Upon any termination of the Service, Agatep Ecommerce reserves the right to permanently delete from its servers any and all information and content contained in Your account or Service, including but not limited to order processing information, mailing lists,files, email, and any web pages generated by You or the Service. Agatep Ecommerce accepts no liability for such deleted information or content.
5.7 Responsibility for Fees
Should Agatep Ecommerce suspend a portion, but not all, of your Service due to a violation by You of any law, regulation, or policy, You shall remain liable for all fees applicable to the Service as a whole. Should Agatep Ecommerce terminate your Service, You are liable for the payment of all fees applicable to the Service up to the date of termination, in addition to any early termination fees (if any).
You expressly waive any statutory or other legal protection in conflict with the provisions of this Section 5.
As part of the Service, You agree to receive the first of an ongoing series of product update communications related to the Service ("Ecommerce Solutions Product Updates"). Ecommerce Solutions Product Updates may include information about Agatep Ecommerce - Ecommerce Solutions, Agatep Ecommerce - Web Hosting, and/or Agatep Ecommerce - Domain Services, in addition to other related products and services.
7.0 PRIVACY AND ACCEPTABLE USE
7.1 Agatep Ecommerce Policies
As part of Your Registration Process, You agree that some communications are required, such as, by way of example and not limitation, customer service messages regarding Your Service, and updates to the Service. In order to opt out of receiving such communications, You must cancel the Service. You also understand and agree that the Service may include certain communications from Agatep Ecommerce, such as service announcements and administrative messages, that these communications are considered part of Agatep Ecommerce membership, and that You will not be able to opt out of receiving them.
7.2 Prohibited Uses
In addition to those matters set forth in the Agatep Ecommerce Policies, You shall not post, transmit, retransmit, or store material on or through any of the Services which, in the sole judgment of Agatep Ecommerce (i) is in violation of any local, provincial, federal, or foreign law or regulation, (ii) is threatening, obscene, indecent, defamatory, or that otherwise could adversely affect any individual, group, or entity (collectively, "Persons"), or (iii) violates the rights of any person, including rights protected by copyright, trade secret, patent, or other intellectual property or similar laws or regulations including, but not limited to, the installation or distribution of "pirated" or other software products that are not appropriately licensed for Your use. You agree that you will NOT knowingly use the Service, among other things, to:
(a) upload, post, email, transmit, or otherwise make available any content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically, or otherwise objectionable;
(b) harm minors in any way;
(c) impersonate any person or entity, including but not limited to a Agatep Ecommerce official, forum leader, guide, or host, or falsely state or otherwise misrepresent your affiliation with a person or entity;
(d) forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Service;
(e) upload, post, email, transmit, or otherwise make available any content that You do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary, and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
(f) upload, post, email, transmit, or otherwise make available any content that infringes any patent, trademark, trade secret, copyright, or other proprietary rights of any party;
(g) upload, post, email, transmit, or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation, except in those areas (such as shopping rooms) that are designated for such purpose;
(h) upload, post, email, transmit, or otherwise make available any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;
(i) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies, or regulations of networks connected to the Service;
(j) intentionally or unintentionally violate, attempt to violate, or avoid any applicable ICANN regulation or policy;
(k) intentionally or unintentionally violate any applicable local, provincial, national or international law;
(l) "stalk" or otherwise harass another;
(m) collect, transmit, or store personal or financial data about any individual or entity, other than in accordance with Section 9.3 herein;
(n) promote or provide instructional information about illegal activities, promote physical harm or injury against any group or individual, or promote any act of cruelty to animals. This may include, but is not limited to, providing instructions on how to assemble bombs, grenades, and other weapons, and creating "Crush" sites;
(o) use your home page (or directory) as storage for remote loading or as a door or signpost to another home page, whether inside or beyond Agatep Ecommerce; or
(p) collect, transmit, or store any type of adult, mature, or sexually explicit content.
You agree to indemnify and hold harmless Agatep Ecommerce from any claims resulting from the use of the Services which damages You or any other party. Agatep Ecommerce reserves the right to investigate You, Your business, and/or Your owners, officers, directors, managers, and other principals, Your sites, and the materials comprising the sites at any time. These investigations will be conducted solely for Agatep Ecommerce's benefit, and not for Your benefit or that of any third party. If the investigation reveals any information, act, or omission, which in Agatep Ecommerce's sole opinion, constitutes a violation of any local, provincial, federal, or foreign law or regulation, or the Agatep Ecommerce Policies, Agatep Ecommerce may immediately shut down the site, and notify You of the action. You agree to waive any cause of action or claim You may have against Agatep Ecommerce for such action.
7.3 Advertising and Promotions
Agatep Ecommerce may run advertisements and promotions on Dormant Domains. A Dormant Domain is any domain name that uses Agatep Ecommerce's name servers and is not being used by You to display Your content. A domain may become dormant by, including without limitation, (i) not setting up a home page upon purchase of any of this product, (ii) not modifying the default "Under Construction" page provided with your Agatep Ecommerce Web Hosting, Agatep Ecommerce Store, or Agatep Ecommerce - Ecommerce Solutions product, (iii) cancellation or expiration of the Agatep Ecommerce Domains service without redelegating or transferring the domain to another provider, (iv) canceling your Web Hosting, Store, or Ecommerce Solutions service without redelegating or transferring the domain to another provider. In the event you would like Agatep Ecommerce to cease running advertisements and promotions on your Dormant Domain, you may contact Agatep Ecommerce as set forth at http://www.agatep.ca/contact_us.php. The manner, mode, and extent of advertising by Agatep Ecommerce on your Agatep Ecommerce Dormant Domain is subject to change. Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Service, including payment and delivery of related goods or services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and such advertiser. You agree that Agatep Ecommerce shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on the Service.
7.4 Abusive User Behavior
Agatep Ecommerce 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 Agatep Ecommerce servers. Agatep Ecommerce 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. Agatep Ecommerce updates these tools, techniques, and practices from time to time as the abusive practices and industry standards change. You agree that Agatep Ecommerce 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 Agatep Ecommerce taking or not taking any actions in response to any actual or perceived abusive user behavior.
8.0 OWNERSHIP AND SECURITY
You will receive a password from Agatep Ecommerce to provide access to and use of Your Service, and You agree to keep Your password confidential. You are entirely responsible for maintaining the security of Your Service, and You are fully responsible for all activities that occur under Your Service and password, and any other actions taken in connection with the registered domain name, including any email accounts or sub-accounts that You create for You or other individuals ("Domain Email Users"). You agree to immediately notify Agatep Ecommerce of any unauthorized uses of the Service or any other breaches of security. Agatep Ecommerce cannot and will not be liable for any loss or damage from Your failure to comply with this security obligation. You acknowledge and agree that under no circumstances will Agatep Ecommerce be liable, in any way, for any acts or omissions of You or any user of Your Service to whom You gave access, including any damages of any kind incurred as a result of such acts or omissions.
9.0 CONTENT AND SOFTWARE: THIS SECTION APPLIES TO AGATEP ECOMMERCE - ECOMMERCE SOLUTIONS, AGATEP ECOMMERCE - WEB HOSTING, AND AGATEP ECOMMERCE - DOMAINS CUSTOMERS
9.1 Content and Conduct Rules
You understand that all information, data, text, software, music, sound, photographs, graphics, video, messages, goods, products, services, links to other World Wide Web sites or resources, and other materials ("Content"), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated. This means that You, and not Agatep Ecommerce, are entirely responsible for all Content that You upload, post, transmit, or otherwise make available via the Service. The Content must comply with these Terms, including applicable Agatep Ecommerce Policies, and any applicable law or regulation.
9.3 Provisions for Use and Security of Cardholder Data and Other Personal or Financial Data
For purposes of this Section, the term "Cardholder Data" or "CDI" refers to the number assigned by the card issuer that identifies the cardholder's account or other cardholder personal information, and "Personally Identifiable Information" or "PII" means any CDI or other personal or financial data relating to any individual or entity.
The provisions set forth in this Section apply to a Merchant that either itself, or through a processor or other agent, stores, processes, handles, or transmits cardholder data or PII in any manner.
A. Merchant shall at all times comply with the Cardholder Information Security Program ("CISP") requirements for cardholder data that are prescribed in the Visa Operating Regulations or otherwise issued by Visa, as they may be amended from time to time (collectively, the "CISP Requirements"). Copies of current CISP Requirements documentation are available on the Visa.com web site at http://usa.visa.com/business/merchants/cisp_index.html.
B. Merchant acknowledges and agrees that cardholder data may be used only for assisting in completing a card transaction, for fraud control services, for loyalty programs, or as specifically agreed to by Visa or as required by applicable law.
C. In the event of a breach or intrusion of or otherwise unauthorized access to cardholder data stored at or for Merchant, Merchant shall immediately notify the card issuer in the manner required in the CISP Requirements, and provide Visa and the acquiring financial institution and their respective designees access to Merchant's facilities and all pertinent records to conduct a review of Merchant's compliance with the CISP Requirements. Merchant shall fully cooperate with any reviews of their facilities and records provided for in this paragraph.
D. Merchant shall maintain appropriate business continuity procedures and systems to ensure security of cardholder data in the event of a disruption, disaster, or failure of Merchant's or Merchant's primary data systems.
E. Merchant and its successors and assigns shall comply with the CISP Requirements after termination of this Agreement.
F. Merchant acknowledges and agrees that PII may be used only for assisting in completing an e-commerce transaction, including fraud control services associated with said e-commerce transaction, subject to applicable law.
9.4 Content Ownership
Agatep Ecommerce does not claim ownership of the Content You place on Your Service. By submitting Content to Agatep Ecommerce for inclusion on Your Service, You grant Agatep Ecommerce and its successors and assignees, the worldwide, royalty-free, and nonexclusive license under Your copyrights and other intellectual property rights, if any, in all material and content displayed in Your web site 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 Agatep Ecommerce property the results of search queries and comparisons conducted on Agatep Ecommerce, including, without limitation, searches conducted on Agatep Ecommerce Shopping and the Service. You also grant Agatep Ecommerce the right to maintain such content on Agatep Ecommerce's servers during the term of these Terms and to authorize the downloading and printing of such material, or any portion thereof, by end-users for their personal use. This license exists only for as long as You continue to be a Service customer and terminates when Your Service is terminated.
You acknowledge that Agatep Ecommerce does not prescreen Content, but that Agatep Ecommerce and its designees shall have the right (but not the obligation) in their sole discretion to refuse or remove any Content that is available via the Service. Without limiting the foregoing, Agatep Ecommerce and its designees shall have the right to remove any Content that violates these Terms, including any applicable Agatep Ecommerce Policies, is illegal, or is otherwise objectionable as determined in Agatep Ecommerce's sole discretion. You agree that You must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content.
9.5 Agatep Ecommerce Proprietary Rights and Software
You acknowledge and agree that the Service and any necessary software used in connection with the Service ("Software") contains proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that Content available from Agatep Ecommerce for the Service, or contained in sponsor advertisements or information presented to You through the Service or advertisers, is protected by copyrights, trademarks, service marks, patents, or other proprietary rights and laws. Except as expressly authorized by Agatep Ecommerce or advertisers, You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the such Content, the Service, or the Software, in whole or in part.
Agatep Ecommerce grants to You a personal, nontransferable and nonexclusive right and license to use the object code of its Software only on a server controlled by Agatep Ecommerce for the sole purpose of using the Service; provided that You do not (and do not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble, or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in, or otherwise transfer any right in the Software. You agree not to modify the Software in any manner or form, or to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to the Service. You agree not to access the Service by any means other than through the interface that is provided or authorized by Agatep Ecommerce for use in accessing the Service.
You 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 You, on any server other than the servers controlled by Agatep Ecommerce without Agatep Ecommerce's express written agreement. You also acknowledge and agree that the Software is intended for access and use by means of web browsing software, and that Agatep Ecommerce does not commit to support any particular browsing platform. Agatep Ecommerce 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 You. If any revision or modification to the Software materially changes Your ability to conduct business, Your sole remedy is to cancel Your Service.
With respect to any elective, additional software that may be made available by Agatep Ecommerce in connection with the Service, if You elect to download or access such additional software, You understand that You may have to agree to additional terms and conditions before You use such software.
9.6 Agatep Ecommerce - Web Hosting 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. Agatep Ecommerce Web Hosting is designed to serve the web hosting needs of small, independently owned and operated businesses in Canada. It is not intended to support the greater web hosting needs of large enterprises or internationally based businesses. Agatep Ecommerce Web Hosting is also a shared web hosting service, which means a number of customers' web sites are hosted from the same server. To ensure that Agatep Ecommerce Web Hosting 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 Agatep Ecommerce 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 Agatep Ecommerce's sole discretion, You are deemed to have violated this section, Agatep Ecommerce may suspend or terminate Your account without notice to You and with no liability to Agatep Ecommerce.
10.0 AGATEP ECOMMERCE SOLUTIONS: THIS SECTION APPLIES ONLY TO AGATEP ECOMMERCE - ECOMMERCE SOLUTIONS CUSTOMERS
10.1 Ecommerce Solutions
With Agatep Ecommerce - Ecommerce Solutions, You can use the Service to facilitate the creation and maintenance of an interactive online store ("Store") for the sale of goods and services. You acknowledge and agree that You will be solely responsible for all goods and services offered at and sold through Your Store, all materials used or displayed at the Store, and all acts or omissions that occur at the Store or in connection with Your account or password. Certain Stores may be subject to additional requirements. You agree that Your use of the Service and Your Store will be in compliance with the Store Guidelines located at http://docs.agatep.ca/info/guidelines/store.html and any applicable laws and regulations at all times. You agree to display in Your Store Your contact information, including but not limited to Your company name, address, telephone number, fax number, and email address. You also agree to update such information to keep it true, accurate, current, and complete.
10.2 Representations and Warranties
You represent and warrant that You have full power and authority under all relevant laws and regulations: (a) to offer and sell the goods and services offered at the Store, including, but not limited to, holding all necessary licenses from all necessary jurisdictions to engage in the advertising and sale of the goods or services offered at the Store; (b) to copy and display the materials used or displayed at the Store; and (c) to provide for credit card payment and delivery of goods or services as specified at the Store.
10.3 Suspension or Termination of Store
In addition to that right set forth in Sections 5.3 & 5.4, Agatep Ecommerce reserves the right to terminate Your Service, or refuse to host or continue to host any Store which it believes, in its sole discretion: (a) has caused a significant number of complaints for failing to be reasonably accessible to customers or timely fulfill customer orders; or (b) has become the subject of a government complaint or investigation. Additionally, Agatep Ecommerce reserves the right to review and remove any Store at any time for non-compliance with these Terms.
10.4 Merchant Information
Agatep Ecommerce maintains information about You and the Store on Agatep Ecommerce servers, including, but not limited to, Your Account Information, Your customer order information, sales information, and clickstream data ("Merchant Information"). You grant to Agatep Ecommerce 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 You) for research, marketing and other promotional purposes. You agree that Agatep Ecommerce may disclose Merchant Information in the good faith belief that such action is reasonably necessary: (a) to comply with the law; (b) to comply with legal process; (c) to enforce these Terms; (d) to respond to claims that You or the Store is engaged in activities that violate the rights of third parties; or (e) to protect the rights or interests of Agatep Ecommerce or others; provided, however, that nothing in this Section shall impose a duty on Agatep Ecommerce to make any such disclosures.
10.5 Deletion of Merchant Information
You agree that Agatep Ecommerce may delete customer credit card information from Agatep Ecommerce servers 14 days after You retrieve such information, and may delete all other Merchant Information from Agatep Ecommerce servers at the end of each calendar year.
10.6 Technical Access
You acknowledge and agree 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. You also acknowledge and agree that Agatep Ecommerce may access Your account and its contents as necessary to identify or resolve technical problems or respond to complaints about the Service.
10.7 Sale and Assignment of Stores
Notwithstanding Section 17 below, You are permitted to sell Your Store to a third party, provided that all of the following occur: (a) You assign, in accordance with Section 22 below, all rights and obligations under these Terms to such third party receiving the Store, (b) You give prior written notice to Agatep Ecommerce, (c) You provide to Agatep Ecommerce evidence that such third party has agreed to these Terms as a permitted assignee, and (d) such third-party assignee has provided Agatep Ecommerce with all information requested by Agatep Ecommerce, and such information is complete and accurate. Should You attempt to sell a Store or assign these Terms in violation of this Section 10.7, such attempt will be null and void, and You will remain responsible for all obligations and liabilities under these Terms, Your Store, and the Service.
11.1 You represent and warrant that You are not a resident of any country or affiliated with any organization prohibited to do business within Canada. You further represent and warrant that You will not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside of Canada in connection with this Agreement without first complying with all export control laws and regulations that may be imposed by the Canadian government and any country or organization of nations within whose jurisdiction You operate or do business. You agree to comply with all applicable Canadian and non-Canadian. laws, rules, regulations and orders, including, but not limited to, tax, export and import, embargo and trade sanctions, intellectual property, including copyright, content, sales, mail-order, commerce, and Ecommerce laws and regulations. You shall be responsible for determining what laws or regulations are applicable to Your use of the Services. You shall, upon the request of Agatep Ecommerce, provide Agatep Ecommerce assurance of Your compliance with those laws. You acknowledge that Agatep Ecommerce 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 Agatep Ecommerce Policies.
11.2 You are responsible for charging and collecting from Your end-user customers any and all applicable taxes. If You fail to impose and/or collect any tax from end users or Your other retail customers as required herein, then, as between Agatep Ecommerce and You, You shall remain liable for such uncollected tax and any interest and penalty assessed thereon with respect to the uncollected tax by the applicable taxing authority. With respect to any tax that You have agreed to pay or impose on and/or collect from end users or Your other retail customers, You agree to indemnify and hold harmless Agatep Ecommerce for any costs incurred as a result of actions taken by the applicable taxing authority to collect the tax from Agatep Ecommerce due to Your failure to pay or collect and remit such tax to such authority.
Agatep Ecommerce reserves the right to establish limitations on the extent of any support provided for the Service, and the hours at which it is available.
You agree to indemnify and hold harmless Agatep Ecommerce, and its parents, subsidiaries, affiliates, cobranders or other partners, officers, directors, shareholders, employees, and agents, from any claim, demand, or investigation, including reasonable attorneys fees, made by any third party due to or arising out of Your Content, Your conduct, Your use of the Service, the goods or services offered or sold through Your Service, any alleged violation of these Terms, including any applicable Agatep Ecommerce Policies, law, or regulation, or any alleged violation of any rights of another, including but not limited to Your use of any content, trademarks, service marks, trade names, copyrighted or patented material, or other intellectual property used in connection with Your Service. Agatep Ecommerce reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, but doing so shall not excuse Your indemnity obligations.
14.0 RESALE OF SERVICE
You agree not to reproduce, duplicate, copy, sell, resell, or exploit any portion of the Service, use of the Service, or access to the Service without the express written permission of Agatep Ecommerce
15.0 GENERAL PRACTICES REGARDING USE AND STORAGE
You acknowledge that Agatep Ecommerce may establish general practices and limits concerning use of the Service.
16.0 MODIFICATIONS TO AND DISCONTINUATION OF SERVICE
Agatep Ecommerce reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Agatep Ecommerce shall not be liable to You or to any third party for any modification, suspension, or discontinuance of the Service.
17.0 DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
(a) THE SERVICE AND SOFTWARE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. AGATEP ECOMMERCE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.
(b) YOUR USE OF THE SERVICE, THE SOFTWARE, AND ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE, IS DONE AT YOUR OWN DISCRETION AND RISK, AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA.
(c) THE SECURITY MECHANISM INCORPORATED IN THE SOFTWARE HAS INHERENT LIMITATIONS, AND YOU MUST DETERMINE THAT THE SOFTWARE ADEQUATELY MEETS ITS REQUIREMENTS.
(d) NEITHER THIS AGREEMENT NOR ANY DOCUMENTATION FURNISHED UNDER IT IS INTENDED TO EXPRESS OR IMPLY ANY WARRANTY THAT(i) THE SERVICE OR SOFTWARE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE OR SOFTWARE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, AND (v) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
(e) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
(f) AGATEP ECOMMERCE ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MISDELIVERY, OR FAILURE TO STORE ANY USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
18.0 LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT AGATEP ECOMMERCE AND ITS AFFILIATES, COBRANDERS, OR OTHER PARTNERS, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS,SHALL NOT BE LIABLE,UNDER ANY CIRCUMSTANCES OR LEGAL THEORIES WHATSOEVER, FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS, PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF AGATEP ECOMMERCE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) ERRORS, DEFECTS, OMISSIONS, DELAYS IN OPERATION OR TRANSMISSION, OR ANY OTHER FAILURE OF PERFORMANCE OF THE SERVICE OR THE SOFTWARE; (iii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO, THROUGH, OR FROM THE SERVICE; (iv) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (v) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; (vi) ANY GOOD OR SERVICE OFFERED OR SOLD THROUGH THE SERVICE; OR (vii) ANY OTHER MATTER RELATING TO THE SERVICE OR SOFTWARE.
AGATEP ECOMMERCE'S LIABILITY TO YOU SHALL NOT, FOR ANY REASON, EXCEED THE AGGREGATE PAYMENTS ACTUALLY MADE BY YOU TO AGATEP ECOMMERCE OVER THE COURSE OF THE EXISTING TERM. YOU ACKNOWLEDGE THAT AGATEP ECOMMERCE HAS SET ITS PRICES IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH HEREIN, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. YOU AGREE THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THESE TERMS WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR LIABILITIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
Notices under these Terms 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 Agatep Ecommerce, such notices shall be addressed to 74-1010 Wilkes Ave, Winnipeg, MB R3P 2S4, Canada. If to You, such notices shall be addressed to the electronic or mailing address specified when You opened Your account, or such other address as either party may give the other by notice as provided above. Agatep Ecommerce may also provide notices of changes to these Terms or other matters by displaying notices or links to notices to You generally on the Service.
20.0 CHOICE OF LAW AND FORUM (LOCATION OF LAWSUIT)
These Terms and the relationship between You and Agatep Ecommerce shall be governed by the laws of the Province of Manitoba without regard to its conflict of law provisions, and specifically excluding from application to these Terms that law known as the United Nations Convention on the International Sale of Goods. You and Agatep Ecommerce agree to submit to the personal jurisdiction of the courts located within the city of Winnipeg, Manitoba. The failure of Agatep Ecommerce to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision.
21.0 FORCE MAJEURE
Except for the obligation to make payments, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including, but not limited to, acts of war, acts of terrorists, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act, or failure of the Internet (not resulting from the actions or inactions of Agatep Ecommerce), provided that the delayed party: (a) gives the other party prompt notice of such cause, and (b) uses its reasonable commercial efforts to promptly correct such failure or delay in performance. If Agatep Ecommerce is unable to provide Service(s) for a period of thirty (30) consecutive days as a result of a continuing force majeure event, You may cancel the Service(s), but there shall be no liability on the part of Agatep Ecommerce
Except as expressly set forth herein, You may not assign Your rights or delegate Your duties under this Agreement either in whole or in part without the prior written consent of Agatep Ecommerce, and any attempted assignment or delegation without such consent will be void. Agatep Ecommerce may assign this Agreement in whole or part. Agatep Ecommerce also may delegate the performance of Services to third parties, including Agatep Ecommerce affiliates. This Agreement will bind and inure to the benefit of each party's successors and permitted assigns.
23.0 RELATIONSHIP OF PARTIES
This Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between Agatep Ecommerce and You. Neither Agatep Ecommerce nor You will have the power to bind the other or incur obligations on the other's behalf without the other's prior written consent, except as otherwise expressly provided herein.
24.0 NO THIRD-PARTY BENEFICIARIES
Agatep Ecommerce and You agree that, except as otherwise expressly provided in this Agreement, there shall be no third-party beneficiaries to this Agreement, including but not limited to the insurance providers for either party or Your customers.
25.0 COPYRIGHTS AND COPYRIGHT AGENTS
Agatep Ecommerce respects the intellectual property of others, and we ask that You do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide our Copyright Agent for notice the following information:
(a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual-property interest;
(b) a description of the copyrighted work or other intellectual property that You claim has been infringed;
(c) a description of where the material that You claim is infringing is located on the site;
(d) Your address, telephone number, and email address;
(e) a statement by You that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
(f) a statement by You, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual-property owner or authorized to act on the copyright or intellectual-property owner's behalf.
The Copyright Agent for notice of claims of copyright or other intellectual-property infringement can be reached as follows:
74-1010 Wilkes Ave
Winnipeg, MB R3P 2S4
By email: firstname.lastname@example.org
26.0 INTEGRATION AND SEVERABILITY
These Terms constitute the entire agreement between You and Agatep Ecommerce and govern Your use of the Service, superceding any prior agreements between You and Agatep Ecommerce (including, but not limited to, any prior versions of these Terms) pertaining to this Service. You also may be subject to additional terms and conditions that may apply when You use affiliate or other Agatep Ecommerce services, third-party content, or third-party software. If any provision of these Terms or incorporated documents 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 the other provisions of these Terms remain in full force and effect. You agree 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 these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section titles in these Terms are for convenience only and have no legal or contractual effect.
The provisions of Sections 3, 4, 5.6, 5.7, 5.8, 7, 8, 9, 10.1, 10.2, 10.4, 10.5, 10.7, and 11 through this Section 27 will survive any termination or expiration of these Terms.