Marketing Services Policy
These Marketing Services Policy terms and conditions ("Marketing 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 the ProStores Inc. ("ProStores").
The Marketing Services offered under these Marketing 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 Marketing Terms, any amendments to these Marketing 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. Marketing Services.
If You sign-up for the Basic Traffic Generation or Deluxe Traffic Generation service packages, ProStores will provide You with professional services designed to maximize the online brand awareness associated with Your website through the use of online advertising (the "Marketing Services"). You understand and agree that ProStores will design an online advertising campaign on the basis of its industry experience, its review of Your website and subsequent telephone interviews. ProStores will implement an online marketing campaign for Your website within approximately fifteen (15) business days after You sign-up. ProStores may, in its sole and exclusive discretion, select the online advertising mediums and locations used in connection with the display of advertisements for Your website.
2. Fees.
Fees applicable to the Marketing Services are set out in the Fees Policy. 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. ProStores will automatically bill Your credit card for applicable monthly fees until You cancel the Marketing Services via the administrative module or such other method as ProStores may make available. All payments for the Marketing Services are non-refundable and may not be credited back.
3. Rights and Licenses; Covenants.
You grant ProStores a limited, non-exclusive, transferable, sub-licensable, revocable, royalty free license in and to Your store name, domain name and any marks or logos associated Your website and the goods or services offered on Your website (the "Content"), including the right to reproduce, publicly display, transmit and broadcast their domain name, marks and logos for the sole purpose of providing the Marketing Services to You in accordance with the terms and conditions set forth in these Marketing Terms. You will retain all right, title and interest in and to Your store name, domain name and any marks or logos associated Your website and the goods or services offered on Your website.
You agree not to provide Content that (a) infringes on any third party's intellectual property or publicity/privacy rights; (b) violates any applicable law or regulation; (c) is defamatory, violent, clearly harmful, or obscene or pornographic or infringes on citizens' rights; or (d) contains any viruses, Trojan horses, worms, time bombs, cancel bots, or other computer programming routines that are intended to damage or interfere with any system, data, or personal information.
4. 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.
PROSTORES, ITS SUPPLIERS AND SERVICE PROVIDERS, PROVIDE THE MARKETING SERVICES, 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 MARKETING SERVICES 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 5(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 MARKETING SERVICES (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 MARKETING SERVICES 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 Marketing Services, (b) any breach of these Marketing 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. ProStores', its suppliers' and service providers' indemnity rights shall not be limited or offset by any contributory negligence by ProStores.
5. Term and Termination
(a) You may terminate the Marketing Services 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 set-up or monthly fees will be issued in the event that You terminate Marketing Services. Also, please note that terminating the Marketing Services 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.
(b) 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 6, the terms and conditions in Section 12 (Suspension and Termination) of the Merchant User Agreement also apply to Your use of the Marketing Services.
(c) ProStores may, but has no duty to, immediately suspend or terminate Your use of the Marketing Services 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 Marketing 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 Marketing Services in connection with this paragraph, You will not be entitled to a refund or credit of any fees You have paid.
(d) Sections 2 through 5 will survive the termination or expiration of these Marketing Terms.