1. Overview. WebAssist has developed certain proprietary computer software program(s), related application programming interfaces, and button graphics for an application service called CafeCommerce (collectively, as the same may be supplemented, modified, updated, or enhanced from time to time, the "Application"), which is hosted on servers and made available to WebAssist customers by means of the Internet (collectively, the "Service"). Customer desires to access and use the Service to implement e-commerce functionality on Customer's website(s) and WebAssist desires to provide the Service to Customer, subject to all of the terms and conditions hereof.
2. Access. WebAssist grants to Customer a non-exclusive, non-assignable, and non-transferable right during the Term (as hereinafter defined) to use the Service in accordance with all of the terms and conditions set forth herein.
3. Customer Requirements. Customer represents, warrants and covenants that it shall:
3.1. Provide and maintain account information that is up-to-date, materially accurate, and is sufficient for WebAssist to contact Customer, charge accurate Fees, and provide the Service in all respects. Customer is responsible for maintaining and promptly updating account information for accuracy and completeness and keeping such information secure against unauthorized access.
3.2. Provide reasonable security devices to protect against unauthorized usage of or access to the Service;
3.3. Not rent, lease, sublicense, distribute, transfer, copy, or modify the Service or any component thereof;
3.4. Only use the Service for its internal business use and not in the operation of a service bureau or for the benefit of any other person or entity;
3.5. Not translate, decompile, or create or attempt to create, by reverse engineering or otherwise, the source code from the object code made available hereunder;
3.6. Not adapt the Service in any way or use it to create a derivative work;
3.7. Not remove, obscure, or alter WebAssist's proprietary notices, trademarks, or other proprietary rights notices affixed or contained in the Service;
3.8. Not use the Service in any manner, or in connection with any content, data, hardware, software or other materials provided by or on behalf of Customer (collectively, "Customer Materials") that (A) infringes upon or violates any patent, copyright, trade secret, trademark, or other intellectual property right of any third party, (B) constitutes a defamation, libel, invasion of privacy, or violation of any right of publicity or other third-party right or is threatening, harassing or malicious, or (C) violates any applicable international, federal, state or local law, rule, legislation, regulation or ordinance, including without limitation the Communications Decency Act of 1996, as amended;
3.9. Not use the Service for any illegal, obscene, offensive or immoral purpose, or to transmit communications described in 47 U.S.C. § 223(b);
3.10. Ensure that all Customer Materials are free from viruses, worms, trojan horses, and other malicious code; and
4.1. In consideration of WebAssist's provision of the Service hereunder, Customer shall pay fees (the "Fees") equal to $30 per month in US Dollars (USD). Customer shall pay Fees to WebAssist. WebAssist reserves the right to change how it calculates Fees. In the event of a change to Fees, WebAssist will notify Customer of the new calculation, which Customer must agree to before continuing to use the Service. If Customer does not agree to a new Fees calculation, Customer's sole remedy is to terminate this Agreement.
4.2. If Customer fails to pay any amount due hereunder within thirty (30) days of the due date set forth herein, late charges of the lesser of 1.5% per month or the maximum allowable under applicable law, together with all of WebAssist's expenses and collection costs, including reasonable attorneys' fees, incurred in enforcing the Agreement, shall also become due and payable by Customer to WebAssist. All amounts payable by Customer hereunder shall be paid in immediately available funds, in United States dollars, and are non-refundable. Customer is not entitled to an offset or reduction for any reason, including without limitation, as a result of product returns or chargebacks.
5. Operating Environment. The Parties acknowledge that successful implementation and use of the Service depends upon the Customer's provision of appropriate hardware and software as WebAssist may reasonably recommend from time to time (collectively, the "Operating Environment"). Customer shall be responsible for providing the Operating Environment at its own expense.
6. Service Standards.
6.1. WebAssist shall use commercially reasonable efforts to cause the Service to be accessible to Customer except for scheduled maintenance and required repairs, and except for any interruption due to causes beyond the reasonable control of, or not reasonably foreseeable by, WebAssist, including, but not limited to, any Force Majeure Event (as hereinafter defined). In the event of any interruption or failure of the Service, other than as permitted in accordance with this § 6, Customer shall promptly notify WebAssist thereof.
6.2. Under no circumstances shall Customer be entitled to a refund, credit, or other offset as a result of the Service being unavailable.
6.3. WebAssist reserves the right to change the Service without notice and without liability. WebAssist shall consider backward compatibility with respect to all such changes but is under no obligation to implement or maintain any such compatibility. Customer is solely responsible for maintaining operability with the then-current version of the Service.
7. Proprietary Rights.
7.1. As between Customer and WebAssist, the Service and all data processed by the Service are and shall remain the sole and exclusive property of WebAssist, including all applicable rights to patents, copyrights, trademarks, trade secrets, or other proprietary or intellectual property rights inherent therein or appurtenant thereto. All rights not expressly granted to Customer herein are reserved to WebAssist.
7.2. As between Customer and WebAssist, the Customer Materials are and shall remain the sole and exclusive property of Customer, including all applicable rights to patents, copyrights, trademarks, trade secrets, or other proprietary or intellectual property rights inherent therein or appurtenant thereto.
8. Support.WebAssist shall provide online community-powered support during WebAssist's normal business hours to assist Customer in identifying, verifying, and resolving problems with the Service.
9. Confidentiality.Customer agrees that the Application, Service, and all data processed by the Service are WebAssist's confidential and/or trade secret information (collectively, "Confidential Information"). Customer shall not sell, transfer, publish, disclose, display, or otherwise make available any portion of the Confidential Information to others except as expressly provided for herein. Customer agrees to secure and protect the Confidential Information in a manner consistent with the maintenance of WebAssist's rights therein. Customer shall use its best efforts to assist WebAssist in identifying and preventing any unauthorized access, use, copying, or disclosure of the Confidential Information, or any component thereof, or any of the algorithms or logic contained therein. Without limitation of the foregoing, Customer shall advise WebAssist immediately in the event Customer learns or has reason to believe that any person to whom Customer has given access to Confidential Information has violated or intends to violate the confidentiality of the Confidential Information or any other the proprietary rights of WebAssist, and Customer will, at Customer's expense, cooperate with WebAssist in seeking injunctive or other equitable relief in the name of Customer or WebAssist against any such person. Customer agrees to maintain the confidentiality of WebAssist's Confidential Information using at least as great a degree of care as Customer uses to maintain the confidentiality of Customer's own most confidential information (and in no event less than a reasonable degree of care). Customer acknowledges that the disclosure of any aspect of the Confidential Information, including without limitation the Application or any other Confidential Information referred to herein, or any information which, at law or equity ought to remain confidential, will immediately give rise to continuing irreparable injury to WebAssist inadequately compensable in damages at law, and WebAssist is entitled to seek and obtain immediate injunctive relief against the breach or threatened breach of any of the foregoing confidentiality undertakings, in addition to any other legal remedies which may be available. In addition, WebAssist may immediately terminate this Agreement, including all license rights granted herein, in the event Customer breaches any of its confidentiality obligations.
10.1. WebAssist Indemnity. WebAssist shall indemnify, defend, and hold harmless Customer and its affiliates and the directors, officers, employees and agents of the foregoing with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys' fees, to the extent that it is based upon any third party claim (an "Infringement Claim") that the Service infringes any copyright, patent, trademark, trade secret or other intellectual property right of any third party; provided, however, that WebAssist shall have no obligation pursuant to the foregoing indemnification provision to the extent that any claim is based on or related to (i) any use of the Service or Application in violation of this Agreement, (ii) any use of the Service or Application in conjunction with any third party product, data, hardware or software not provided by WebAssist, or (iii) any Customer Material. If Customer's use of the Service is enjoined by reason of an Infringement Claim, WebAssist's sole obligation shall be to either (i) procure the right for Customer to continue using the Service, (ii) replace or modify the components of the Service subject to the Infringement Claim with non-infringing components of substantially equivalent functionality, or (iii) terminate this Agreement. The foregoing states the entire liability of WebAssist with respect to any Infringement Claim, and Customer hereby expressly waives any other such liabilities.
10.2. Customer Indemnity. Customer shall indemnify, defend, and hold harmless WebAssist and its affiliates and the directors, officers, employees and agents of the foregoing with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys' fees, to the extent that it is based upon any third party claim that, if true, would constitute a breach of any of the Customer's representations, warranties, obligations, covenants or agreements hereunder.
10.3. Indemnification Procedures. A Party seeking indemnification hereunder (an "Indemnified Party") shall give the Party from whom indemnification is sought (the "Indemnifying Party"): (i) reasonably prompt notice of the relevant claim; provided, however, that failure to provide such notice shall not relieve the Indemnifying Party from its liability or obligation hereunder except to the extent of any material prejudice directly resulting from such failure; (ii) reasonable cooperation, at the Indemnifying Party's expense, in the defense of such claim; and (iii) the right to control the defense and settlement of any such claim; provided, however, that the Indemnifying Party shall not, without the prior written approval of the Indemnified Party, settle or dispose of any claims in a manner that affects the Indemnified Party's rights or interest. The Indemnified Party shall have the right to participate in the defense at its own expense.
11. Limited Warranty.
11.1. WebAssist warrants that the Application and Service will substantially conform in all material respects to the current documentation provided by WebAssist in connection with the Service, including, without limitation, any updates thereof (the "Documentation") when used in the Operating Environment in accordance with the Documentation and all of the terms and conditions hereof. In the event that the Service fails to perform in accordance with this warranty, Customer shall promptly inform WebAssist of such fact, and, as Customer's sole and exclusive remedy WebAssist shall either: (i) repair or replace the Service to correct any defects in performance without any additional charge to Customer, or (ii) in the event that such repair or replacement cannot be done within a reasonable time and cost, terminate the Agreement.
11.2. DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN § 11.1 HEREOF, WEBASSIST DOES NOT WARRANT, AND SPECIFICALLY DISCLAIMS ANY REPRESENTATION, THAT THE APPLICATION, THE SERVICE, THE DOCUMENTATION, ANY ADDITIONAL WORK, OR ANY COMPONENT OF ANY OF THE FOREGOING, WILL MEET CUSTOMER'S REQUIREMENTS OR THAT CUSTOMER'S USE OF THE APPLICATION OR THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. EXCEPT AS EXPRESSLY SET FORTH IN § 11.1 HEREOF, WEBASSIST AND WEBASSIST'S SUPPLIERS MAKE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND TITLE, IN CONNECTION WITH THE APPLICATION, THE SERVICE, THE DOCUMENTATION, ANY ADDITIONAL WORK OR OTHERWISE, AND ANY SUCH WARRANTIES ARE HEREBY DISCLAIMED. THE APPLICATION, THE SERVICE AND THE DOCUMENTATION ARE PROVIDED "AS IS", WITH ALL FAULTS AND DEFECTS, OTHER THAN AS EXPRESSLY SET FORTH IN § 11.1 HEREOF.
11.3. LIMITATION OF LIABILITY. WEBASSIST SHALL HAVE NO LIABILITY TO CUSTOMER WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFIT, REVENUE, DATA OR GOODWILL, WHETHER INCURRED OR SUFFERED AS A RESULT OF UNAVAILABILITY OF THE SERVICE OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL WEBASSIST'S AGGREGATE LIABILITY HEREUNDER FOR ANY CAUSE ARISING OUT OF OR RELATED TO WEBASSIST'S PERFORMANCE OR NON-PERFORMANCE UNDER THIS AGREEMENT OR OTHERWISE EXCEED THE AMOUNT OF THE FEES PAID HEREUNDER TO WEBASSIST IN THE CALENDAR MONTH IN WHICH THE DIRECT DAMAGES ARE INCURRED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS.
13.1. Either Party may terminate this Agreement by providing notice to the other Party. Regardless of the circumstances, such termination shall not give rise to liability. Upon termination, all Fees become due and payable. Customer authorizes WebAssist to immediately obtain funds for said Fees from the account that Customer provided for billing purposes. Customer may provide notice by closing your account in your account profile.
13.2. The termination of this Agreement shall automatically, and without further action by WebAssist, terminate and extinguish Customer's right to use the Service.
13.3. The following provisions shall survive termination: § 4, Fees; § 7, Proprietary Rights; § 9, Confidentiality; § 10, Indemnity; § 11, Limited Warranty; § 14, General.
14.1. Taxes. Customer shall pay all applicable sales, use, transfer or other taxes and all duties, whether international, national, state, or local, however designated, which are levied or imposed by reason of the transaction contemplated hereby, excluding, however, income taxes on profits which may be levied against WebAssist. Customer shall reimburse WebAssist for the amount of any such taxes or duties paid or accrued directly by WebAssist as a result of this transaction.
14.2. Export Restrictions. THIS AGREEMENT IS EXPRESSLY MADE SUBJECT TO ANY LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS ON THE EXPORT FROM THE UNITED STATES OF AMERICA OF THE APPLICATION OR THE SERVICE OR INFORMATION ABOUT SUCH APPLICATION OR SERVICE WHICH MAY BE IMPOSED FROM TIME TO TIME BY THE GOVERNMENT OF THE UNITED STATES OF AMERICA. CUSTOMER SHALL NOT EXPORT THE APPLICATION OR THE SERVICE, INCLUDING, WITHOUT LIMITATION, THE DOCUMENTATION, OR INFORMATION ABOUT THE APPLICATION OR THE SERVICE WITHOUT THE WRITTEN CONSENT OF WEBASSIST AND COMPLIANCE WITH SUCH LAWS, REGULATIONS, ORDERS OR OTHER RESTRICTIONS.
14.3. Each party represents and warrants to the other that it has full right and authority to enter into this Agreement and to perform all of its obligations hereunder; that its execution and performance of this Agreement will not breach any agreement between itself and a third party; and that the provisions of this Agreement are binding upon and enforceable against it except as may be limited by applicable United States bankruptcy laws and other laws affecting creditors rights.
14.4. Publicity. WebAssist may use the name of and identify Customer as a WebAssist customer, in advertising, publicity, or similar materials distributed or displayed to prospective customers.
14.5. Complete Understanding. This Agreement, including all exhibits attached hereto, constitutes the final, complete and exclusive agreement between the Parties with respect to the subject matter hereof, and supersedes any prior proposals, understandings and all other oral and written agreements between the Parties relating to the subject matter hereof.
14.6. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain in full force and effect.
14.7. Waiver and Amendment. No modification, amendment or waiver of any provision of this Agreement or any Statement of Work shall be effective unless in writing and signed by the Party to be charged. No failure or delay by either Party in exercising any right, power, or remedy under this Agreement or any Statement of Work shall operate as a waiver of any such right, power or remedy.
14.8. Force Majeure. Except for Customer's obligations to pay WebAssist hereunder, neither Party shall be liable to the other Party for any failure or delay in performance caused by reasons beyond its reasonable control, including, but not limited to, restrictions of law, regulations, orders or other governmental directives, labor disputes, acts of God, third-party mechanical or other equipment breakdowns, fire, explosions, fiber optic cable cuts, interruption or failure of telecommunication or digital transmission links, Internet failures or delays, storms or other similar events (each, a "Force Majeure Event").
14.9. Assignment. Customer may not assign, by operation of law or otherwise (including, without limitation, by means of outsourcing), this Agreement, in whole or in part, without the prior written consent of WebAssist, which consent shall not be unreasonably withheld. WebAssist may assign this Agreement and/or subcontract some or all of its obligations hereunder.
14.10. Governing Law. This Agreement shall be governed by the laws of the State of California, excluding conflict of laws provisions thereof and the Parties hereby submit to exclusive jurisdiction in the federal and state courts of California located in San Diego County.
14.11. Notices. Any notice provided pursuant to this Agreement shall be in writing and shall be deemed given (i) if by hand delivery or email, upon receipt thereof; (ii) if mailed, three (3) days after deposit in the U.S. mails, postage prepaid, certified mail return receipt requested; or (iii) if by next day delivery service, upon such delivery. All notices shall be addressed to WebAssist at the address first set forth and to Customer at the address provided in Customer's member profile.
14.12. Independent Contractors. WebAssist and its personnel or agents, in performance of this Agreement, are acting as independent contractors and not as an employees or agents of Customer. Under no circumstance will either Party have the right or authority to enter into any contracts or assume any obligations for the other or to give any warranty to or make any representation on behalf of the other.
Effective Date: February 23, 2011