ACCEPTANCE OF TERMS
The services offered by PrimarySoftware under the Terms of Service include various products and services to help you manage and optimize profitability of online retail stores (the “Services”). Any new products, services, features or tools which are added to the current Services shall be also subject to the Terms of Service. You can review the current version of the Terms of Service at any time at Term Of Use.
This Agreement is effective as of the Effective Date and shall remain in force for the duration of the Subscription (the “Initial Term”). Upon expiration of the Initial Term, this Agreement will automatically renew on a monthly or yearly basis (each a “Renewal Term”, and the Initial Term and all Renewal Terms collectively, the “Term”) until terminated by Customer following the cancellation policy set out in Section 5, or until the Agreement is terminated by PrimarySoftware pursuant to Section 11. Customer may not terminate this Agreement prior to the expiration of the Initial Term. Following expiration of the Initial Term, PrimarySoftware may increase the fees payable by Customer under this Agreement, upon not less than thirty (30) days’ written notice (the “Increase notice”). If the Customer doesn’t decline within five (5) days following the delivery of the Increase notice, the Customer is deemed to have accepted the increase.
PAYMENT & FEES
Customer agrees to pay to PrimarySoftware any fees for each Service that Customer purchases, uses, or subscribes to in accordance with the pricing and payment terms presented by PrimarySoftware for that Service. Where applicable, you will be billed using the billing method you select through your account management page. Fees paid by you are non-refundable, except when required by law. Some of our Services are billed on a subscription basis (“Subscriptions”). Customer will be billed on a recurring basis, including without limitation, monthly and annual plans (each period is called a “Billing cycle”) when Customer signs up for the Services and thirty (30) days prior to the Renewal Term. Your Subscription will renew at the end of each Billing cycle, five (5) days after the delivery of the Increase notice, if applicable, unless you cancel auto-renewal following the “Cancellation” policy below.
You may cancel auto-renewal on your Subscription by contacting us at email@example.com least thirty (30) days prior to the end of the Initial Term or then-current Renewal Term, in which case your Subscription will continue until the end of that Billing cycle before terminating. You may cancel auto-renewal on your Subscription within thirty (30) days after the Subscription starts if you do not want it to renew.
During the Term, PrimarySoftware grants Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to use the Services on the terms set forth in this Agreement. Customer agrees that all rights, title and interest in and to all the intellectual property rights in the Services, and all modifications, extensions, scripts and other derivative works of the Services provided or developed by PrimarySoftware are owned exclusively by PrimarySoftware or its licensors. All rights not granted to Customer in this Agreement are reserved by PrimarySoftware.
Customer shall not (i) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming or interoperability interfaces of or used by the Services, by any means whatsoever; (ii) distribute viruses or other harmful or malicious computer code via or into the Services; (iii) engage in any conduct that disrupts or impedes a third party’s use and enjoyment of the Services; (iv) remove any product identification, copyright or other notices from the Services; (v) sell, lease, lend, assign, sublicense, grant access or otherwise transfer or disclose the Services in whole or in part, to any third party; (vi) use the Services for timesharing, service bureau or hosting purposes or otherwise use, resell, sublicense, distribute or transfer or allow others to use the Services to or for the benefit of third parties; (vii) modify or incorporate into or with other software or create a derivative work of any part of the Services; (viii) use the output or other information generated by the Services for any purpose other than as contemplated by this Agreement; (ix) use the Services for any use other than Customer’s internal business use; (x) use unauthorized modified versions of the Services, including without limitation, for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the Services; or (xi) use the Services in any way that is contrary to applicable local, state/provincial, federal and foreign laws, including without limitation those relating to privacy, electronic communications and anti-spam legislation. PrimarySoftware retains all title to, and, except as expressly licensed herein, all rights to the Services, all copies, derivatives and improvements thereof and all related documentation and materials.
The Services contain copyrighted material, trademarks and other proprietary information, including, but not limited to, text, software, photos, video, graphics, music and sound, and the entire contents of the Services are copyrighted as a collective work under copyright laws. PrimarySoftware owns a copyright in the selection, coordination, arrangement and enhancement of such content, as well as in the content original to it. Customer may not modify, publish, transmit, participate in the transfer or sale, create derivative works, or in any way exploit, any of the content, in whole or in part. Except as otherwise expressly permitted under copyright law, no copying, redistribution, retransmission, publication or commercial exploitation of downloaded material will be permitted without the express permission of PrimarySoftware and the copyright owner. In the event of any permitted copying, redistribution or publication of copyrighted material, no changes in or deletion of author attribution, trademark legend or copyright notice shall be made. YOUR CONTENT The Services may allow you to submit, post, display or upload content including but not limited to text, files and other materials (together the “Content”). You retain ownership of your Content, but by uploading or entering it onto any software, program or platform provided as part of the Services, you are granting us a license to use, copy, reproduce, process, adapt, publish, transmit, host and display that Content for the purpose of (i) providing you the Services and associated support; and (ii) analyzing and improving the operation of the Services. We reserve the right to remove Content on any software, program or platform provided as part of the Services that PrimarySoftware, in its sole discretion, finds to be in violation of the provisions hereof or otherwise objectionable.
PrimarySoftware and Customer shall each retain in confidence all information received from the other party pursuant to or in connection with this Agreement that the disclosing party identifies as being proprietary and/or confidential or that, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary and/or confidential (“Confidential Information”), and will make no use of such Confidential Information except as necessary to fulfill their respective obligations under the terms and during the term of this Agreement.
THIRD PARTY SERVICES
PrimarySoftware may from time to time recommend, provide you with access to, or enable third party software, applications, products, services or website links (collectively, “Third Party Services”) for your consideration or use. Such Third Party Services are made available only as a convenience, and purchase, access, or use of any such Third Party Services is solely between you and the applicable third party services provider (“Third Party Provider”). Any use by you of Third Party Services offered through the Services or PrimarySoftware and its Products website is entirely at your own risk and discretion, and it is your responsibility to read the terms and conditions and/or privacy policies applicable to such Third Party Services before using them. Under no circumstances shall PrimarySoftware be liable for any direct, indirect, incidental, special, consequential, punitive, extraordinary, exemplary or other damages whatsoever, that result from any Third Party Services or your contractual relationship with any Third Party Provider. These limitations shall apply even if PrimarySoftware has been advised of the possibility of such damages.
PrimarySoftware WORKS TO KEEP THE SERVICES BUG-FREE AND SAFE BUT THE CUSTOMER AGREES TO USE THE SERVICES AT CUSTOMER’S OWN RISK. PrimarySoftware IS PROVIDING THE SERVICES “AS IS” AND “AS AVAILABLE” WITHOUT ANY REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, NEITHER PrimarySoftware, ITS AFFILIATES NOR ANY OF THEIR RESPECTIVE EMPLOYEES, AGENTS, THIRD PARTY CONTENT PROVIDERS OR LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY OR AVAILABILITY OF THE SERVICES OR ANY SERVICES OR GOODS REQUESTED THROUGH THE USE OF THE SERVICES, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
IN NO EVENT SHALL PrimarySoftware AND/OR ITS RESPECTIVE SUPPLIERS OR AFFILIATES BE LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER CIVIL LIABILITY ACTION, ARISING OUT OF OR IN CONNECTION WITH THE USE OF ANY SOFTWARE, PROGRAM OR PLATFORM PROVIDED AS PART OF THE SERVICES EXCEPT IN THE CASE OF INTENTIONAL OR GROSS FAULT.
Customer agrees to defend, indemnify and hold harmless PrimarySoftware, its affiliates and their respective directors, officers, employees and agents from and against all claims and expenses, including without limitation, attorneys’ fees (collectively the “Costs”), to the extent that such Costs are attributable to any breach by Customer, of any representations, warranties, or other obligations set forth in this Agreement or arising out of the use of the Services by Customer.
These Terms of Service shall be construed in accordance with the laws applicable in the province of New York, USA, without regard to its conflict of laws rules. Customer hereby agrees, for any dispute or controversy arising under or in connection with this Agreement or resulting from the Services or PrimarySoftware websites shall be settled exclusively by arbitration in Newyork (USA). SEVERABILITY, FORCE MAJEURE, ENTIRE AGREEMENT AND HEADINGS If one or more of the provisions of this Agreement is held to be invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, then the validity, legality and enforceability of the remaining provisions of this Agreement shall be unaffected. Neither party shall be deemed in default or otherwise liable for any delay in or failure of its performance under this Agreement (other than payment obligations) by reason of any act of God, fire, natural disaster, accident, act of government, shortage of materials or supplies, failure of transportation or communication or of suppliers of goods or services, or any other cause to the extent it is beyond the reasonable control of such party. This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous written, electronic or oral communications, representations, agreements or understandings between the parties with respect thereto. The headings in this Agreement have been inserted solely for ease of reference and shall not modify, in any manner whatsoever, the meaning or scope of the provisions hereof.
REPRESENTATIONS AND WARRANTIES
Customer represents and warrants that currently and throughout the Term (i) it is fully authorized to enter into this Agreement and that Customer is fully authorized to use the Services, (ii) Customer is and will remain in compliance with all applicable laws and regulations with respect to its activities related to this Agreement, including but not limited to privacy laws; and (iii) if Customer imports, uploads or provides any information into any software, program or platform provided as part of the Services, then Customer warrants that such information provided is rightfully collected and will comply with all applicable laws and regulations. Customer and each of its Users agree to comply with all PrimarySoftware policies and all laws, rules and regulations relating to the use of the Products. Any violation of this section may result in loss of features, up to and including termination of Customer’s account. Customer will indemnify PrimarySoftware for any costs, fines or damages incurred by PrimarySoftware due to Customer’s or its User’s failure to comply with this section.