|TERMS OF SERVICE
ZoomCart.com Merchant Service Agreement
The ZoomCart.com service ("ZoomCart.com " or the "Service"), owned and operated by ASGweb LLC . (ASGweb LLC), is provided to you ("you" or "Merchant") under the terms and conditions of this ZoomCart.com Merchant Service Agreement and any amendments thereto and any operating rules or policies (collectively, the "CMSA" or "Agreement"). ASGweb LLC reserves the right, in its sole discretion, to change, modify, add or remove all or part of the CMSA at any time. Merchant will receive notice of such changes and/or modifications pursuant to Section 14 regarding notices.
1.1 By accepting the terms and conditions of the CMSA, Merchant (a) represents and warrants that he or she is 18 years old or older; (b) agrees to provide true, accurate, current and complete information about Merchant as prompted by the Account Registration Form; and (c) agrees to maintain and update this information to keep it true, accurate, current and complete. If any information provided by Merchant is untrue, inaccurate, not current or incomplete, ASGweb LLC has the right to terminate Merchant's account and refuse any and all current or future use of the Service.
1.2 BY COMPLETING THE ACCOUNT REGISTRATION PROCESS AND CLICKING THE "I AGREE" BUTTON, YOU AGREE TO BE BOUND BY THE CMSA.
2.0 DESCRIPTION OF THE ZoomCart.com SERVICE. ASGweb LLC hosts interactive online stores ("Store") on the World Wide Web and may provide Merchants with, among other things, (i) access to its ZoomCart.com 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. Certain Stores may be subject to additional requirements.
3.1.1 Merchant agrees to display in the Store Merchant's contact information, including but not limited to Merchant's company name, address, telephone number, fax number and e-mail address. Merchant also agrees to update such information to keep it true, accurate, current and complete.
3.1.2 Merchant agrees that any and all press releases and other public announcements related to this Agreement and subsequent transactions between ASGweb LLC and Merchant, including the method and timing of such announcements, must be approved in advance by ASGweb LLC in writing. ASGweb LLC reserves the right to withhold approval of any public announcement in its sole discretion. Without limitation, any breach of Merchant's obligation regarding public announcements shall be a material breach of the CMSA.
3.1.3 Merchant represents and warrants that it has full power and authority under all relevant laws and regulations: * 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; * to copy and display the materials used or displayed at the Store; and, * to provide for credit card payment and delivery of goods or services as specified at the Store.
3.1.4 Merchant represents and warrants that it will not engage in any activities: * that constitute or encourage a violation of any applicable law or regulation, including but not limited to the sale of illegal goods or the violation of export control or obscenity laws; * that defame, impersonate or invade the privacy of any third party or entity; * that infringe the rights of any third party, including but not limited to the intellectual property, business, contractual, or fiduciary rights of others; and, * that are in any way connected with the transmission of "junk mail" "spam" or the unsolicited mass distribution of e-mail, or with any unethical marketing practices.
3.2 ASGweb LLC 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 CMSA.
4.0 PROPRIETARY RIGHTS
4.1 Software License. ASGweb LLC hereby grants Merchant a non-exclusive, non-transferable license to use the Software in object code form only on a server controlled by ASGweb LLC for the sole purpose of creating and maintaining Stores on such server. The Software, its structure, sequence and organization and source code are considered trade secrets of ASGweb LLC and its suppliers and are protected by trade secret laws. WITHOUT LIMITING THE FOREGOING, COPYING OR REPRODUCING THE SOFTWARE TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED. MEMBER MAY NOT DECOMPILE OR DISASSEMBLE, REVERSE ENGINEER OR OTHERWISE ATTEMPT TO DISCOVER ANY SOURCE CODE CONTAINED IN ANY SOFTWARE PROVIDED HEREUNDER. Merchant also acknowledges and agrees that the Software is intended for access and use by means of web browsing software, and that ASGweb LLC does not commit to support any particular browsing platform. ASGweb LLC 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 CMSA pursuant to Section 6.2 regarding non-renewal of service.
4.2 Merchant's Property. Merchant agrees that by using the Service, Merchant grants ASGweb LLC, 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. Merchant also grants ASGweb LLC the right to maintain such content on ASGweb LLC's servers during the term of the CMSA and to authorize the downloading and printing of such material, or any portion thereof, by end users for their personal use.
4.3 Unauthorized Access. Merchant shall not attempt to gain unauthorized access to any servers controlled by ASGweb LLC.
5.1 Hosting Fee. Merchant shall pay to ASGweb LLC a monthly hosting fee in the amount accordingly to the hosting package, with the first payment and subsequent payments due on a monthly basis from the Start Date (e.g., if the Start Date were February 1, then payments of the hosting fee would be due on the 1st day of every month thereafter).
5.2 Mechanics. All fees are cumulative and payable in U.S. dollars. ASGweb LLC 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 ASGweb LLC 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 twelve (12) 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 ASGweb LLC in collecting such amounts. ASGweb LLC may, upon 30 days prior notice to Merchant, alter its fees under the CMSA.
6.1 Term. The term of the CMSA 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 CMSA. ASGweb LLC shall have the right, but not the obligation, to review any Store for compliance with the CMSA as part of the renewal process, or at any time.
6.2 Non-Renewal. Either party, in its sole and absolute discretion, may give notice of non-renewal with or without cause and without stating any reason therefor. Any notice of non-renewal must be given at least five (5) days prior to the end of the current monthly period in order for the CMSA to expire on the last day of that monthly period; otherwise, the CMSA will expire on the last day of the following monthly period (e.g., if the Start Date were September 1st, and Merchant were to provide ASGweb LLC with notice of non-renewal on September 29th, then the CMSA would expire on November 1st). All notices under this Section 6.2 must be given in the manner described in Section 14 regarding notice.
7.1 Termination. Either party may terminate the CMSA on thirty (30) days notice if the other party has materially breached or is otherwise not in compliance with any provision of the CMSA, and such breach or noncompliance is not cured within such thirty (30) day period. ASGweb LLC 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, ASGweb LLC may, but has no duty to, immediately terminate Merchant and remove it from ASGweb LLC servers if ASGweb LLC 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 ASGweb LLC 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.
7.3 Waiver. 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, ASGweb LLC 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 or created by Merchant.
8.0 MERCHANT PRIVACY
8.1 Merchant Information. ASGweb LLC maintains information about Merchant and the Store on ASGweb LLC servers, including but not limited to Merchant's account registration information, Merchant's customer order information, sales information ("Merchant Information"). Merchant grants to ASGweb LLC 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.
8.1.1 Merchant agrees that ASGweb LLC 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 the CMSA; (d) to respond to claims that the Merchant or Store is engaged in activities that violate the rights of third parties; or (e) to protect the rights or interests of ASGweb LLC, ZoomCart.com or others; provided, however, that nothing in this section shall impose a duty on ASGweb LLC to make any such disclosures.
8.1.2 Merchant agrees that ASGweb LLC may delete customer credit card information from ASGweb LLC servers 14 days after Merchant retrieves such information, and may delete all other Merchant Information from ASGweb LLC servers at the end of each calendar year.
8.2 Password. Merchant shall create a password from ASGweb LLC 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 ASGweb LLC 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 ASGweb LLC 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 requesting assistance by e-mail to support LLC. ASGweb LLC 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 ASGweb LLC, 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 CMSA, 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. ASGweb LLC 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. ASGweb LLC, 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 ASGweb LLC 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. ASGweb LLC'S LIABILITY TO MERCHANT SHALL NOT, FOR ANY REASON, EXCEED THE AGGREGATE PAYMENTS ACTUALLY MADE BY MERCHANT TO ASGweb LLC 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 CMSA without the express written authorization of ASGweb LLC.
13.0 FORCE MAJEURE
Neither party shall be liable to the other for any delay or failure in performance under the CMSA resulting directly or indirectly from acts of nature or causes beyond its reasonable control.
Any notices or communications under the CMSA 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 ASGweb LLC, such notices shall be addressed to support LLC or 1362 Eats 3345 So Salt Lake City, UT, USA. If to Merchant, such notices shall be addressed to the electronic or mailing address specified when Merchant opens an account with ZoomCart.com , or such other address as either party may give the other by notice as provided above.
15.0 ENTIRE AGREEMENT
The CMSA 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 CMSA and the relationship between Merchant and ASGweb LLC shall be governed by the laws of the state of Utah without regard to its conflict of law provisions. Merchant and ASGweb LLC agree to submit to the personal and exclusive jurisdiction of the Superior Court of the State of Utah for Salt Lake County or the United States District Court for Washington. ASGweb LLC's failure to exercise or enforce any right or provision of the CMSA shall not constitute a waiver of such right or provision. If any provision of the CMSA 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 CMSA 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 CMSA must be filed within one (1) year after such claim or cause of action arose, or be forever barred. The section titles in the CMSA are for convenience only and have no legal or contractual effect.
We have established the following guidelines to ensure the quality of ZoomCart.com . We expect our merchants to adhere to the following guidelines when running their Store. All transactions conducted on ZoomCart.com must be consistent with any applicable legal rules and the ZoomCart.com Merchant Service Agreement.