Setup Services Policy

These Setup Services Policy terms and conditions ("Setup Terms") are provided to you, the user, together with any company or other business entity you are representing, if any, (collectively, "You") under the terms and conditions of the Merchant User Agreement, between You and ProStores Inc. ("ProStores").

The Setup Services offered under these Setup Terms is an "Additional Service" as provided under Sections 2.5 ("Additional Features") of the Merchant User Agreement.

You agree to be bound by these Setup Terms, any amendments to these Setup Terms, and to such terms and conditions as are incorporated herein by reference. All amended terms shall automatically be effective thirty (30) days after they are initially posted on the ProStores Site.

1. Setup Services.

If You sign-up for the Basic Store Setup or Full Store Setup service packages, ProStores will provide You with website setup services as described at www.prostores.com/. You understand and agree that ProStores will setup the website solely in accordance with the information provided by You in the submittal form sent by You via email and subsequent telephone interviews. After ProStores receives all complete information from You, ProStores will deliver a) for Pro Setup, a website with up to five (5) products within approximately ten (12) business days, or b) for Pro Setup Plus, a website with up to twenty-five (25) products within approximately fifteen (15) business days. The website will be made available for You to view prior to hosting for purposes of editing for corrections to content only. Editing beyond correction of content will be considered as additional services subject to additional fees and will be billed as such. ProStores will attempt to contact You to notify You that the site is completed, and ready to publish. In the event that You do not respond within five (5) business days, the site shall be deemed "accepted" by You and ProStores will deem the service engagement completed (together, the "Setup Service"). Setup Service shall also include customized website design services that may be requested by You and accepted by ProStores, all as described in the information provided by You in the written submittal form and subsequent telephone interviews.

2. Your Responsibilities.

You acknowledge and agree that:

  1. The setup and other fees applicable to the Setup Service are non-refundable once development work has commenced.

  2. You must send content and graphic images to the designer in electronic format. Fax copies and handwritten or typed hardcopy letters cannot be received.

  3. Web page development commences once Your written submittal form is submitted via email including Your Content (defined below).

  4. Shopping cart development commences once a completed store setup form is received from You.

  5. Once You receive a beta store from the designer, You have five business days to respond with approval or revisions. Upon approval, or if there is no response from You within 5 business days, the site shall be deemed "accepted" by You and ProStores will deem the service engagement completed.

  6. If You have revisions to the beta website, the designer will complete the revisions and send You a final proof of the store. You will be given an additional 5 business days to approve or make final alterations before the site shall be deemed "accepted" by You and ProStores will deem the service engagement completed.

  7. YOU ARE RESPONSIBLE FOR THE ACCURACY AND APPROPRIATENESS OF ALL DATA AND CONTENT WITHIN YOUR STORE; INCLUDING SALES TAX CALCULATIONS, PRODUCT PRICING, PRODUCT DESCRIPTIONS, SHIPPING CHARGES, CONTACT INFORMATION, EMAIL COMMUNICATIONS, AND ELECTRONIC PAYMENT PROCESSING. PROSTORES WILL NOT BE HELD RESPONSIBLE FOR INACCURATE INFORMATION AND ANY POTENTIAL DAMAGES CAUSED BY SUCH INACCURACIES.

  8. You understand that ProStores design team may not maintain copies of files or documents that are sent by You, and that You are solely responsible for backing up this data.

  9. You understand and agree that ProStores' performance under these Setup Terms may be dependent upon Your timely and satisfactory performance of Your responsibilities. In the event that ProStores is unable to perform or is delayed in performing its responsibilities under these Setup Terms as a result of Your delay or failure to perform Your responsibilities, the parties will discuss, mutually agree to and document, in a change order, any modified roles and/or fees associated with such delay or failure.

3. Fees.

Fees applicable to the Setup Service are set out in the Fees Policy. Where You have engaged ProStores for delivery of Setup Services for a fully customized website design other than the Basic Store Setup or Full Store Setup service packages, You agree to pay the Fees quoted to You by ProStores via email or other communication methods. All Fees will be automatically charged to Your account in accordance with the Fees Policy. ProStores may alter its fees, but will provide notice via email. All payments for the Setup Service are non-refundable and may not be credited back.

4. Rights and Licenses.

(a) Right to Website.

With the exception of any Third-Party Materials and Background Technology as defined in this Section 4, You own the website and Your Content. "Your Content" means all content or information (including, without limitation, any text, music, sound, photographs, video, graphics, data, or software), in any medium, provided by You to ProStores. "Third-Party Materials" means any content, software, or other computer programming material that is owned by an entity other than ProStores, and licensed by ProStores or generally available to the public, including You, under published licensing terms, and that ProStores will use in the development of or to display or run a website. The graphics utilized from ProStores' graphics library are licensed from third-party suppliers. ProStores provides You a limited, personal, nonexclusive, nontransferable license to use the graphics during the term of this Agreement.

(b) Limited License to Background Technology.

"Background Technology" means computer programming/formatting code or operating instructions developed by or for ProStores and used to create any portion of a website or used to operate the website or a Web server in connection with a website. Background Technology includes, but is not limited to, any files necessary to make forms, buttons, checkboxes, and similar functions and underlying technology or components, such as style sheets, website templates, animation templates, interface programs that link multimedia and other programs, customized graphics manipulation engines, and menu utilities, whether in database form, dynamically driven, or provided in any other format. Background Technology does not include any of Your Content or any derivatives, improvements, or modifications of Your Content. Subject to the terms and conditions of this Agreement, ProStores hereby grants You a perpetual, nonexclusive license to copy, distribute, transmit, display and perform the Background Technology that is incorporated into a website, in whole or in part, solely as necessary for You to operate, maintain, and make the website available in the normal course of Your business. You may not duplicate or distribute any Background Technology to any third party without the prior written consent of ProStores. All rights to the Background Technology not expressly granted to You hereunder are retained by ProStores. Without limiting the foregoing, You agree not to reverse-engineer, reverse-assemble, decompile, or otherwise attempt to derive any source code of the Background Technology, except as allowed by law.

(c) Limited License to Content.

You hereby grant to ProStores the limited, nonexclusive right and license to copy, distribute, transmit, display, perform, create derivative works from, modify, and otherwise use and exploit website, any of Your Content, or any of Your Marks provided to ProStores hereunder, solely for the purpose of rendering the Setup Service under this Agreement. Such limited right and license shall extend to no other materials or for any other purpose and will terminate automatically upon termination of this Agreement for any reason.

5. Content Standards. You covenant that Your Content shall not:

  1. be false, inaccurate or misleading;

  2. infringe or misappropriate any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy;

  3. violate any law, statute, ordinance or regulation (including, but not limited to, those governing privacy, publicity, export control, consumer protection, unfair competition, antidiscrimination or false advertising);

  4. be defamatory, trade libelous, unlawfully threatening or harassing, or advocating, promoting or providing assistance involving violence, significant risk of death or injury, or other unlawful activities;

  5. be obscene or contain child pornography;

  6. contain any viruses, Trojan horses, worms, time bombs, cancelbots, easter eggs or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information;

  7. link directly or indirectly to or include descriptions of goods or services that violate any applicable law, statute, ordinance or regulation, or that violate ProStores' Prohibited and Restricted Items that is incorporated herein by reference and may be amended from time to time.

6. Limited Warranty.

ProStores warrants that the website will conform to specifications or acceptance criteria mutually agreed upon between the parties in writing when delivered to You and for a period of thirty (30) days following acceptance (the "Warranty Period"). The foregoing warranty will not extend or apply to any website modified by any party other than ProStores. In the event that You discover an Error in the website during the Warranty Period, ProStores' sole responsibility will be to use reasonably commercial efforts to correct such Errors. "Error" means any reproducible error, problem, or defect resulting from (i) an incorrect functioning of the Background Technology that materially affects the functionality of the website or (ii) any failure of the website delivered to You to materially meet the specifications or acceptance criteria. All warranty claims not made in writing within the Warranty Period shall be deemed waived. ProStores' warranty obligations are personal to You and may not be extended to any third party.

7. Disclaimer of Warranty, Indemnification and Limitation of Liability.

In addition to the provisions in the Agreement, You agree to the following:

(a) Disclaimer of Warranty.

EXCEPT AS EXPRESSLY PROVIDED IN SECTION 6, PROSTORES, ITS SUPPLIERS AND SERVICE PROVIDERS, PROVIDE THE SETUP SERVICE, ON AN "AS IS" BASIS AND EXPRESSLY DISCLAIM ANY AND ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, TITLE, NON-INFRINGEMENT, AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE ARE EXCLUDED. PROSTORES, ITS SUPPLIERS AND SERVICE PROVIDERS, DO NOT WARRANT THAT THE SETUP SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED AND MAKE NO REPRESENTATIONS REGARDING UPTIME, USE, DATA SECURITY, ACCURACY AND RELIABILITY OF THEIR SERVICES. YOU ACKNOWLEDGE AND AGREE THAT THIS SECTION 7(A) IS REASONABLE AND AN ESSENTIAL ELEMENT OF THIS AGREEMENT AND THAT IN ITS ABSENCE, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.

(b) Limitation of Liability.

IN NO EVENT SHALL PROSTORES, ITS SUPPLIERS, OR SERVICE PROVIDERS, OR THEIR OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS OR AGENTS BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SETUP SERVICE (HOWEVER ARISING, INCLUDING NEGLIGENCE). PROSTORES', ITS SUPPLIERS', AND SERVICE PROVIDERS', CUMULATIVE LIABILITY, AND THE LIABILITY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS AND AGENTS TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF (A) THE AMOUNT OF FEES YOU PAY TO PROSTORES FOR THE SETUP IN THE ONE (1) YEAR IMMEDIATELY PRECEDING THE MONTH IN WHICH THE ACTION GIVING RISE TO THE LIABILITY FIRST AROSE, AND (B) ONE HUNDRED U.S. DOLLARS (U.S. $100). Some States do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to You.

(c) Indemnification.

You agree to indemnify and hold ProStores, its suppliers, and service providers, and their officers, directors, agents, and employees, harmless from any and all losses, costs, liabilities or expenses (including without limitation reasonable attorneys' and expert witnesses' fees) incurred or arising from: (a) Your use of the Setup Service, (b) any breach of these Setup Terms or the documents it incorporates by reference, or (c) any violation by You or users of services You offer through Your website, of any laws, regulations or rights of others, or (d) Your breach of Section 4 "Content Standards". ProStores', its suppliers' and service providers' indemnity rights shall not be limited or offset by any contributory negligence by ProStores.

8. Term and Termination

  1. You may terminate the Setup Service at any time through the administrative module for Your account with ProStores or such other method as ProStores may make available. No refunds or credits of initial or monthly fees will be issued in the event that You terminate Your Setup Service. Also, please note that terminating the Setup Service does not terminate other services You may be purchasing from ProStores; You may be required to take additional actions to terminate Your hosting and other services with ProStores.

  2. ProStores may terminate this agreement upon seven (7) days written notice for any reason. Without limitation, You expressly acknowledge and agree that in addition to this Section 8, the terms and conditions in Section 12 (Suspension and Termination) of the Merchant User Agreement also apply to Your use of the Setup Service.

  3. ProStores may, but has no duty to, immediately suspend or terminate Your use of the Setup Service and destroy any of Your Content in the event that ProStores, in its sole discretion, concludes that (a) You have engaged in illegal activities, in activities or sales that may damage the rights of ProStores or others, or (b) have violated or threatened to violate these Setup Terms, the terms of the Agreement or any other agreement You may have with ProStores. Any suspension or termination under this paragraph may take effect immediately. In the event that ProStores terminates Your Setup Service in connection with this paragraph, You will not be entitled to a refund or credit of any fees You have paid. Without limitation, You expressly acknowledge and agree that in addition to this Section 8, the terms and conditions in Section 12 (Suspension and Termination) of the Merchant User Agreement also apply to Your use of the Setup Service.

  4. Section 2(g) and Sections 4 through 8 will survive the termination or expiration of these Setup Terms.