TERMS AND CONDITIONS OF USE (“Terms”)
Please read these TERMS AND CONDITIONS OF USE (“Terms”) carefully. Your access to, purchase of, and/or use of the Services (as defined below) constitutes your legally binding agreement to be bound by these Terms.
These Terms govern the user’s (“Customer,” “you,” or “your”) use of the websites, platform, applications, and software owned and/or operated by SuccessEcom (“Company,” “we,” “us,” or “our”), to which these Terms are linked or referenced to, including all content, features, functionality, and related services (collectively, the “Services,” as further defined hereafter). These Terms apply whether you are accessing the Services via a personal computer, wireless or mobile device, or any other technology or device. If you do not agree to these Terms, do not access or use the Services.
The acceptance of these Terms and the execution of one or more Order Confirmation(s) (as defined below) form the “Agreement.” For the purposes of these Terms, Customer and Company may be referred to herein individually as a “Party” and collectively as the “Parties.”
We reserve the right, at any time and from time to time, temporarily or permanently, in whole or in part, to modify, suspend, or discontinue the Services; modify and/or waive any Fees (as defined hereafter) charged in connection with the Services; and/or make available opportunities to some or all users of the Services. You agree that the Company shall not be liable to you or to any other person for any modification, suspension, or discontinuance of the Services or any component thereof.
(a) The Company agrees to provide the Customer with the Services, which shall include the use of the Company’s proprietary software (“Software”) and access to its proprietary platform (“Platform”). The Services may be further defined in one or more order confirmation(s) (each an “Order Confirmation(s)”) or the Customer shall have the option to purchase the Services through an online checkout portal by selecting the Services and agreeing to these Terms. Either method of ordering shall be incorporated into and made a part of this Agreement by this reference and called the “Order.”
(b) Customer may only adjust the Services ordered by executing a new or revised Order Confirmation or through an online checkout portal. Changes to the Services may result in an adjustment to the Fees and will be subject to the following: (i) the term for the new Fees and new Service(s) will be coterminous with the preexisting Term (as defined hereafter); (ii) Fees will be the then-current Fees set by the Company; (iii) any increase to the Fees which results from changes made in the middle of a billing month will be charged in full on a pro-rated basis for the portion of the billing month following such change; and (iv) any reduction in Fees that results from changes made in the middle of a billing month will not take effect until the next billing month, and no partial refunds will be given.
(c) In the event of any conflict between these Terms and those contained in an Order Confirmation, the terms contained in the applicable Order Confirmation shall control.
(d) Although the Company attempts to ensure the integrity and accuracy of the Platform, it makes no representations, warranties, or guarantees whatsoever as to the correctness or accuracy of the Platform and Content thereon. It is possible that the Platform could include typographical errors, inaccuracies, or other errors, and that unauthorized additions, deletions, and alterations could be made to the Platform by third parties. In the event that an inaccuracy arises, please inform the Company so that it can be corrected. The Company reserves the right to unilaterally correct any inaccuracies on the Platform without notice. Information contained on the Platform may be changed or updated without notice. Additionally, the Company will have no responsibility or liability for information or Content posted to the Platform from any non-Company affiliated third party.
(e) In the event a product or service is listed at an incorrect price due to a typographical error or error in pricing information received from our suppliers, we have the right to refuse or cancel any orders placed for product/service listed at the incorrect price. We have the right to refuse or cancel any such orders whether or not the order has been confirmed and your credit or debit card charged. If your credit or debit card has already been charged for the purchase and your order is canceled, we shall promptly issue a credit to your credit or debit card account in the amount of the incorrect price.
The Customer agrees to pay the Company the fees (“Fees”) as set forth in each applicable Order Confirmation or online checkout portal pursuant to the payment schedule contained therein. Customer acknowledges and agrees that any failure by Customer to make any timely payment(s) may result in Company suspending its provision of Services and restricting Customer’s access to the Platform. The Parties agree that such suspension or restriction shall not be considered a breach of this Agreement or any Order Confirmation.
If Customer repeatedly fails to pay any Fees which are due to the Company, in addition to its other rights and remedies contained herein, the Company shall have the right to terminate this Agreement and all orders (including any Orders Confirmations then in effect at the time of termination) without any liability to the Customer.
All payments made to SuccessEcom for its services shall be processed by its designated payment processor. In the event that a refund is requested, claims must be submitted in writing to SuccessEcom within 30 days of the original payment date. Refunds will be processed accordingly.
(a) Each Party hereto may be allowed access to confidential or otherwise proprietary information of the other Party, which is either (i) marked as confidential or proprietary or (ii) not marked but reasonably understood to be confidential due to the nature of the information or the circumstances surrounding its disclosure (“Confidential Information”). For the purposes of this Section 3, the Party that receives Confidential Information shall be referred to as the “Receiving Party,” and the Party that discloses Confidential Information shall be referred to as the “Disclosing Party.”
(b) Confidential Information includes but is not limited to business, finances, technology, strategies, customers, and trade secrets. The Receiving Party agrees to maintain the confidentiality of the Disclosing Party’s Confidential Information and not use it for any purpose other than the performance or receipt of Services hereunder.
(c) Confidential Information shall not include information that is: (i) already publicly available; (ii) already known to the Receiving Party; or (iii) obtained from a third party legally entitled to disclose it.
(d) Upon termination of this Agreement, the Receiving Party agrees to return or destroy all Confidential Information, except as required for archival purposes.
The term of this Agreement shall commence as of the Effective Date set forth in the Order Confirmation or during the online checkout process and shall continue for as long as the Company provides the Services under each applicable Order (“Initial Term”). The Initial Term of each applicable Order shall automatically renew for additional periods of the same length (each a “Renewal Term”) until Customer notifies Company in writing (email to suffice) that it does not wish to renew and such notice is made at least fifteen (15) days prior to the end of the then-current Term; provided, however, that the Parties may agree to increase the foregoing notice period for certain products or Services in an Order Confirmation. For the purposes of this Agreement, the terms “Initial Term” and any “Renewal Term” may be collectively referred to as the “Term.”
(a) Either Party may terminate this Agreement or any applicable Order in the event that the other Party commits a material breach and fails to cure such breach, if curable, to the reasonable satisfaction of the non-breaching Party within fifteen (15) days following receipt of written notice of such breach. Any notice of alleged breach hereunder shall include sufficient information to enable the alleged breaching Party the opportunity to cure the breach, if curable.
(b) Either Party may terminate this Agreement if (i) the other Party files a petition in bankruptcy, insolvency, or similar proceedings, or if any petition seeking reorganization, readjustment, or rearrangements of the business of such Party shall have been filed and not stayed or discharged for a period of thirty (30) days; or (ii) if a receiver or trustee shall be appointed for the property and assets of either Party and not discharged for a period of thirty (30) days.
(c) In the event of early termination of any Term for any reason, except for a material breach by the Company which is not cured, the Customer acknowledges and agrees that it shall be required to pay all Fees for the remainder of the applicable Term. The Company shall continue to provide the Services to the Customer along with access to the Platform for the remainder of the Term.
(d) In the event this Agreement expires or is terminated for any reason, Customer acknowledges and agrees that Company has no obligation to retain any Customer Data.
The Customer is solely responsible for all activity occurring under its Company account(s) (“Account”) as well as any account that the Customer has with any retail operation—e.g., Amazon®, Walmart®, Shopify®, etc. (each a “Merchant”). Customer shall abide by all applicable local, state, national, and foreign laws, treaties, and regulations in connection with its use of the Account and Merchant Accounts, including those related to data privacy, international communications, and the transmission of technical or personal data. Customer shall:
(a) Notify the Company immediately of any unauthorized use of any password or Account or any other known or suspected breach of security;
(b) Report to the Company immediately and use best efforts to stop immediately any copying or distribution of Company intellectual property that is known or suspected by Customer;
(c) Not impersonate another user or provide false identity information to gain access to the Platform, the Services, or any Account;
(d) Not use the Platform, the Services, or any Account to defame, abuse, harass, threaten, or otherwise violate the legal rights of others;
(e) Not publish, post, upload, email, distribute, or disseminate any defamatory, misleading, infringing, or unlawful content; and
(f) Not collect, store, or transmit personal information about individuals or any information that is subject to applicable privacy laws or regulations.
Customer hereby grants the Company access to its online administration accounts with each Marketplace for which Company provides Services (each a “Marketplace Account”). Notwithstanding the foregoing grant of access or anything to the contrary contained herein or on each applicable Marketplace’s standard terms of use, Customer shall be fully responsible and solely liable for all activity in each Marketplace Account unless any such activity is solely attributable to the willful misconduct of the Company. Customer agrees that it shall be solely responsible for adhering to any flow-down obligations required under any Marketplace Account terms and conditions, including any revisions made to such terms and conditions which may affect the Platform or the Services.
(a) All trademarks, patents, copyrights, and other intellectual property rights owned by either Party prior to the provision of any Services by Company shall be and shall continue to be owned solely by such Party, and nothing herein shall be deemed to confer any rights to any such intellectual property on the other Party, except as provided herein.
(b) The Company alone (and its licensors, where applicable) shall own all rights, title, and interest to the Services and Platform, including any derivatives, suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Customer or any other party relating to the Service, and any aggregated metrics, data, and trends compiled by the Company. This Agreement does not convey to the Customer any rights of ownership in or related to the Services, the Platform, any Account, or any intellectual property rights of the Company. The Company name, the Company logo, and the product and service names associated with the Services and the Platform are trademarks of the Company, and no right or license is granted to use them hereunder.
(c) The Company reserves the right to adjust the scope of the Services and the functionality of the Platform to reflect the continuing development of the Service and technical advances. Customer acknowledges and agrees that any results and proceeds from such adjustments, without respect to whether the Customer had any influence or input, shall accrue to the sole benefit of the Company.
(d) You are prohibited from violating or attempting to violate the security of the Platform, including, without limitation, accessing data not intended for such user, attempting to probe or test the vulnerability of a system, or interfering with the proper working of the Platform.
(a) The term “Customer Data” shall include, without limitation, data related to advertising campaigns, inventory and pricing information, account performance (from either Customer or any Marketplace), sales tax calculation, transaction settlement, or any other data that Customer submits to the Platform in the course of using the Services.
(b) Customer hereby grants the Company a worldwide, royalty-free, non-exclusive right to use, reproduce, create derivative works of, distribute, perform, transmit, and publish Customer Data for the sole and exclusive purposes of (i) processing Customer Data in connection with providing the Service to the Customer, and (ii) storing or hosting the Customer Data in a remote database or on the Platform for access by the Customer.
(c) Customer shall have sole responsibility for the accuracy and quality of all Customer Data. The Company shall not be responsible or liable for the deletion, correction, destruction, damage, loss, or failure to store any Customer Data.
Please consult the Company’s Privacy Policy for information about the Company’s practices and policies with respect to the collection, use, and sharing of personal information, often referred to as personal data in the European Union.
(a) The Company hereby grants the Customer a non-exclusive, non-transferable, limited, revocable, worldwide right to access the Platform and use the Services during the Term, solely for the Customer’s own internal business purposes, subject to the terms and conditions of this Agreement (“License”).
(b) The Customer agrees it shall not (i) license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party the Services or the Platform in any way; (ii) modify or make derivative works based upon the Service or Platform; (iii) embed the Service as an “iframe” or “frame” from within another application; or (iv) reverse engineer or access the Service or Platform to (A) build a competitive product or service, (B) build a product using ideas, features, functions, or graphics similar to those related to the Service or Platform, or (C) copy any ideas, features, functions, or graphics of the Service or Platform.
(c) Customer acknowledges and expressly agrees that the Services and Accounts cannot be shared or used by more than one individual unless (and solely to the extent that) the terms of the applicable Order Confirmation allow for sharing within Customer’s internal organization. Sharing access to the Services, Platform, or Accounts outside the Customer’s organization is not allowed without the express written permission of the Company, such permission to be withheld at the Company’s sole discretion.
(d) The Customer is solely responsible for maintaining the confidentiality of all usernames and passwords related to all Accounts. Usernames and passwords may not be shared by more than one individual and may not be transferred unless the original user no longer requires access. The Customer may use the Service only for its internal business purposes and shall not:
(i) Send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs;
(ii) Interfere with or disrupt the integrity or performance of the Service or the data contained therein, or the Company’s sites, servers, or networks;
(iii) Attempt to gain unauthorized access to the Service or its related systems or networks; or
(iv) Take any action that imposes an unreasonably or disproportionately large load on the Company’s infrastructure.
(a) All results and proceeds from the Company’s provision of Services hereunder, including, without limitation, all copyrights, patents, trademarks, data, information, and materials owned, licensed, or created by the Company, shall be owned by the Company (“Proprietary Information”). The Company agrees to provide the Customer, at no additional charge, certain website analytics (e.g., number of visitors, page views, bounce rate, traffic trends) as well as customer testimonials and feedback.
(b) The Customer acknowledges and agrees that the Company shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Platform and Services any suggestions, enhancement requests, recommendations, or other feedback provided by the Customer, including those made by its employees, contractors, or advisors.
(a) The Company agrees to defend, indemnify, and hold harmless the Customer, its subsidiaries, affiliates, and their respective officers, directors, employees, and agents from and against all costs, damages, claims, and liabilities brought by third parties (including reasonable attorney’s fees) arising out of or related to:
(i) Any breach of this Agreement by the Company which is not cured;
(ii) Any grossly negligent or willful act by the Company; and
(iii) Any personal injury, death, or property damage directly caused by the Company.
(b) The Customer agrees to defend, indemnify, and hold harmless the Company, its subsidiaries, affiliates, and their respective officers, directors, employees, and agents from and against all costs, damages, claims, and liabilities (including reasonable attorney’s fees) arising out of or related to:
(i) Any breach of this Agreement by the Customer which is not cured;
(ii) Any negligent or willful act or omission by the Customer or its employees, contractors, or subcontractors; and
(iii) Any personal injury, death, or property damage caused by the Customer or its products/services.
(a) Each Party’s total liability under this Agreement or any Order Confirmation, whether in contract, tort (including negligence), or otherwise, shall not exceed the total Fees paid by the Customer to the Company for the applicable Services during the prior six (6) months.
(b) The Company shall not be liable for any loss, damage, or destruction of software or systems during the provision of Services unless caused solely by the Company’s willful misconduct.
(c) IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFITS OR REVENUES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
This Agreement and all Order Confirmations shall be governed by the laws of the State of California, USA, without regard to its conflict of law principles. Venue and jurisdiction for any disputes shall lie exclusively in the state or federal courts located in Los Angeles, California.
(a) Both Parties agree to attempt to resolve any disputes through good-faith negotiations between executives. If such negotiations fail, disputes shall be submitted to binding arbitration under the rules of the American Arbitration Association (AAA).
(b) Arbitration shall take place in Los Angeles, California, in English, and the arbitrator’s decision shall be final and binding. Each Party shall bear its own costs for the arbitration, except as otherwise provided in the arbitration award.
This Agreement constitutes the entire agreement between the Parties concerning the subject matter hereof and supersedes all prior agreements. Any amendments to this Agreement must be made in writing and signed by both Parties. In the event of a conflict between this Agreement and an applicable Order Confirmation, the Order Confirmation shall control.
The Parties acknowledge that the Company operates as an independent contractor and is not an employee, partner, or joint venture of the Customer. Neither Party shall have the authority to bind or obligate the other Party.
The Company makes no guarantees concerning the results of the Customer’s use of the Services or Platform, including but not limited to increased income, sales, or other outcomes. The Customer acknowledges that the success of any eCommerce efforts depends on numerous factors beyond the Company’s control.
(a) Binding Agreement: This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors, assigns, and legal representatives.
(b) No Waiver: No provision of this Agreement or any Order Confirmation will be waived by any Party except in writing. The waiver of any breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach.
(c) Severability: If any provision of this Agreement or any Order Confirmation is held invalid or unenforceable, the remaining provisions shall remain in full force and effect.
(d) Electronic Delivery: The delivery of an executed copy of this Agreement or any Order Confirmation via electronic means, including email or electronic signature, shall constitute effective delivery and be deemed equivalent to an original document.
(e) Counterparts: This Agreement and any Order Confirmation may be executed in counterparts, and all such counterparts together shall constitute one agreement.
(f) Force Majeure: The Company shall not be liable for any failure or delay in its performance due to causes beyond its reasonable control, including but not limited to acts of God, government actions, natural disasters, labor disputes, and interruptions in internet or communication services.
(g) Assignment: The Customer may not assign or transfer its rights or obligations under this Agreement without the prior written consent of the Company. The Company may assign this Agreement to an affiliate or in connection with a merger, acquisition, or sale of all or substantially all of its assets.
(h) Survival: The provisions of this Agreement that by their nature should survive termination or expiration, including but not limited to Sections 3 (Confidential Information), 8 (Intellectual Property), 9 (Customer Data), and 13 (Indemnification), shall survive.
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