Merchant User Agreement

This Merchant User Agreement ("Agreement") is between you, the user, together with any company or other business entity you are representing, if any (collectively, "You"), and ProStores, Inc. ("ProStores"). ProStores provides software programs ("Software") that enable merchants to build online stores through which they can sell their products and services online. ProStores may also provide merchant services, including (but not limited to) hosting of the online store, site design, email services, marketing services, search engine marketing, price comparison shopping services, keyword buying services, domain name registration, and other related services as may be offered from time to time (collectively, "Services"). This Agreement is effective upon the activation of Your account. Upon Your acceptance of this Agreement and the activation of Your account by ProStores, ProStores will grant You a limited license to use the Software and will provide the Services You elected to receive, subject to the terms and conditions of this Agreement, including those terms and conditions that are set forth on the ProStores website located at http://www.prostores.com and affiliated websites ("ProStores Site") and that are incorporated herein by reference and may be accessed through links in this Agreement. Please note that underlined words and phrases in this Agreement are links to pages on the ProStores Site. By accepting this Agreement, You further agree to be bound by any amendments to the terms and conditions of this Agreement or to such terms and conditions as are incorporated herein by reference. Except as stated below, all amended terms shall automatically be effective thirty (30) days after they are initially posted on the ProStores Site. Notwithstanding anything contained in the foregoing, this Agreement will not bind ProStores unless You meet the eligibility criteria for entering into this Agreement as set forth in Section 1 of this Agreement.

1. ELIGIBILITY CRITERIA

The Software license and Services are available only to, and may only be used by individuals who can form legally binding contracts under applicable law. Without limiting the foregoing, the Software and Services are not available to minors. By completing the registration process, You represent that You are 18 years old or older. You represent that You are acting in Your professional capacity and not as a consumer. If You are concluding this Agreement on behalf of an entity, You represent that You have all required authority and power to bind the entity to this Agreement. ProStores uses many techniques to verify the accuracy of the information You provide when You register on the ProStores Site. If for any reason, ProStores, in its sole discretion, believes such information to be incorrect, it reserves the right, without provision of any notice to You, to revoke any and all licenses under this Agreement or to refuse to provide the Software license and Services under this Agreement to You.

2. PROSTORES SOFTWARE AND TRADEMARK OWNERSHIP AND LICENSES

2.1 SOFTWARE OWNERSHIP

Software provided by ProStores, and all worldwide intellectual property rights therein, are the exclusive property of ProStores. All rights in and to the Software not expressly granted to You in this Agreement are reserved by ProStores.

2.2 SOFTWARE LICENSE

Subject to the terms and conditions of this Agreement, ProStores grants to You a non-exclusive, non-transferable, revocable, limited license to remotely access and use the Software on servers operated by or for ProStores ("ProStores Servers") through the ProStores Site solely for the purpose of building and maintaining an interactive store hosted by the ProStores Servers on which You offer Your or a third party's products or services ("Your Store").

2.3 SOFTWARE LICENSE RESTRICTIONS

You acknowledge that the Software and its structure, organization, and source code constitute valuable trade secrets of ProStores. Accordingly, except as expressly allowed under Section 2.2, You will not, either directly or through a third party, (a) modify, adapt, alter, translate, or create derivative works from the Software; (b) distribute, sublicense, lease, rent, loan, or otherwise transfer the Software to any third party; (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Software or (d) transfer your interest in and to Your Store to any third party.

2.4 PROSTORES TRADEMARK OWNERSHIP, LICENSE AND RESTRICTIONS

Subject to the terms and conditions of this Agreement, and upon Your election to use and pay applicable fees (if any) for certain features of the Software, ProStores grants to You a non-exclusive, non-transferable, revocable, royalty-free license (without the right to grant sublicenses) to use and reproduce those trademarks provided to you by ProStores under this Agreement ("ProStores Marks"), solely for use in the display on those locations on Your Store's web pages as designated by ProStores in its sole discretion, and solely in accordance with ProStores’ Trademarks Use Policy, that is incorporated herein by reference and that ProStores may periodically change from time to time. ProStores grants no rights in the ProStores Marks other than those expressly granted in this Section 2.4. You acknowledge ProStores’ exclusive ownership of the ProStores Marks. You agree not to take any action inconsistent with such ownership and You agree not to adopt, use, or attempt to register any trademarks or trade names that are confusingly similar to the ProStores Marks or in such a way as to create combination marks with the ProStores Marks. At ProStores’ request (in its sole discretion), You will immediately discontinue any use and display of the ProStores Marks. You acknowledge and agree that, except with respect to the trademark license granted herein in and to the ProStores Marks, no licenses are granted by ProStores to any other trademarks, service marks, or trade names owned by ProStores, its parent, or affiliates.

2.5 ADDITIONAL FEATURES

Certain additional features that ProStores may make available to You may require access to and/or installation of additional software (including third party software) that is subject to supplemental or independent terms and conditions ("Additional Software"). Similarly, ProStores may make available additional services (including third party services) that are subject to supplemental or independent terms and conditions ("Additional Services"). You agree that You will not use such Additional Software or Additional Services unless You have agreed to and comply with the applicable terms and conditions, including but not limited to Your payment of additional fees as required. Depending on the available Services you elect to receive, You may be responsible for establishing and maintaining a commercial relationship with a financial institution or money transmitter such as a credit card processor, bank or PayPal. The terms of any such relationship shall be between You and that entity and such terms may be more restrictive or place limits on the operation of Your Store - you should contact those entities for more information regarding such terms.

3. SERVICES

3.1 SERVICES

Upon activation of Your account and subject to the payment of applicable fees, ProStores will provide the hosting, support or other miscellaneous Services that you elected, for the operation of the Software licensed to You under this Agreement and of Your Store during the term of this Agreement. Your Store shall be hosted on a ProStores Server on which several merchants may share the resources and network capacity of that ProStores Server.

3.2 PROSTORES ADDITIONAL SERVICES

At Your request and subject to Your agreement to applicable terms and conditions and the payment of applicable fees, ProStores Additional Services may include:

  1. acquisition and registration of a second-level domain name ("Domain Name") for Your Store on Your behalf. If you choose to use the Domain Name Service, You hereby appoint ProStores and third parties who provide domain name registration services to ProStores as Your agent in the acquisition, registration and ongoing administration of Domain Names on Your behalf and You authorize ProStores and third parties who provide domain name registration services to ProStores to select and issue binding instructions to domain name registrars and registries used to acquire, register, and administer Domain Names on Your behalf. ProStores provides this Service as a convenience to You only and You hereby waive any and all claims that You may have, or which may later arise, against ProStores for any and all damages, losses, claims, or expenses arising out of or related to the acquisition, registration, and/or use of such Domain Name. In addition, ProStores reserves the right, in ProStores’ sole discretion, to refuse to acquire or register any domain name requested by You, and to discontinue the use of any domain name requested by you. Your use of the domain name we may have registered for You is subject to the policies of the Internet Corporation for Assigned Names and Numbers (“ICANN”) and subject to the policies detailed in the Domain Names Terms and Conditions
  2. participation in the Pay-Per-Sale program ("PPS Program"). If You choose to join the PPS Program, You hereby appoint ProStores and third parties who administer services related to the PPS program as Your Agents for search engine marketing and price comparison shopping services. You acknowledge that once You join the PPS Program and agree to abide its terms and conditions, Your receipt of any of these related Services is subject to ProStore's sole discretion. You acknowledge ProStores provides the PPS Program as a convenience to You only and You hereby waive any and all claims that You may have, or which may later arise, against ProStores for any and all damages, losses, claims or expenses arising out of or related to the PPS Program. In addition, ProStores reserves the right, at ProStores’ sole discretion, to refuse or terminate Your participation in PPS Program and/or to discontinue the PPS Program at any time without notice.
  3. other services. ProStores may offer other related or compatible services. If You decide to subscribe to such additional services, You will have to read and accept the specific terms and conditions applicable to such additional services offered directly by ProStores.

3.3 THIRD PARTY APPLICATIONS AND SERVICES 

On the ProStores web site, we may offer or allow third parties to offer You software applications or services related to the design, customization, set-up, marketing, promotion, or operation of Your store. The third party offering the application(s) or service(s) is referred to as the “Third Party Provider” and the applications and services offered by Third Party Providers are referred to as “Third Party Applications” and “Third Party Services”. Third Party Applications and Third Party Services are intended to interoperate with the ProStores applications and services but ProStores does not warrant or support Third Party Applications or Services, whether or not they are designated by us as “certified” or “approved” or some similar designation. Except as expressly stated in this Agreement, there is no requirement that You use Third Party Applications or Services.

If You decide to use Third Party Applications or Services, You are responsible for understanding the terms of use and privacy policy applicable to those Third Party Applications or Services (“Third Party Terms”). Any questions about Third Party Terms, Applications, or Services should be addressed to the Third Party Provider. These Third Party Terms are between You and the Third Party Provider and they govern your rights and obligations with respect to the Third Party Applications or Services, including but not limited to: payment terms, term and termination terms, refunds, use of Your data, and other obligations and limitations. You acknowledge that the Third Party Terms are a binding agreement between you and the Third Party Provider only.

3.4 CHANGES IN SERVICES

ProStores reserves the right to change, amend and/or otherwise alter the Services provided with equivalent or otherwise equal Services without prior notice to You. You agree to receive administrative communications from ProStores in regards to the Software, Services, Your account, policy changes, and system updates.

4. YOUR STORE & CONTENT CONTROL

4.1 CONTROL OF YOUR STORE

You will be solely responsible for the development, operation, and maintenance of Your Store, including accepting, processing and filing customer orders generated through Your Store, and handling any customer inquiries, complaints, or disputes arising from orders or sales generated through Your Store. You agree that ProStores has no obligation to back-up any data related to Your Store's operations and you should independently take appropriate steps to maintain such data in accordance with Your needs and requirements.

4.2 CONTROL OF YOUR STORE'S CONTENT

You will be solely responsible for creating, managing, editing, reviewing, deleting and otherwise controlling any and all Content displayed on or in connection with your Store, regardless of whether ProStores provides any design or customization Services to You under this Agreement, including all descriptions of the products and services You offer to customers of Your Store and user-generated Content on and related to Your Store. As a conduit, ProStores will give You complete discretion over Your Content, subject to the terms set out in this Agreement. Your Content must not infringe applicable laws or regulations and it must be compatible and interoperable with the Software and Services provided by ProStores under this Agreement. You retain all rights, title and interest in and to all intellectual property rights embodied in Your Content, exclusive of any content provided by ProStores. Notwithstanding anything contained in the foregoing, if You breach any of the covenants in Section 5.1 of this Agreement, ProStores is entitled to, without notice to you and at its sole discretion, suspend or terminate Your Store and/or any access to information or data related to Your account and the Software in accordance with Section 12 of this Agreement.

4.3 PASSIVE CONDUIT

You acknowledge that, by only providing You with the ability to publish and distribute Your own or third party products, services or Content, ProStores and its Software are acting only as passive conduits for the distribution and/ or publishing of such products, services or Content on the Store. ProStores has no obligation to You or any third party, and undertakes no responsibility, to review Your Store, the products or services listed therein or any other Content, including but not limited to user-generated Content, published and/or distributed on Your Store to determine whether any such product, service or Content may incur liability to third parties. Notwithstanding anything to the contrary herein, if ProStores believes in its sole discretion (as applicable) that Your Store or any products, services, Content or other materials in the Store or on ProStores Servers may create liability for ProStores, You agree that ProStores may take any actions with respect to the Content or materials or Your Store that ProStores believes are prudent or necessary to minimize or eliminate ProStores' potential liability.

4.4 CONTENT LICENSE

During the period that ProStores provides Services to You pursuant to Section 3 of this Agreement, You hereby grant to ProStores, its affiliates and any service providers (including, but not limited to advertising and promotional partners) a non-exclusive, irrevocable, non-sublicenseable, royalty-free, worldwide license to reproduce, distribute, create derivative works of, transmit, publicly perform, publicly display and digitally perform Your Content solely for the execution of this Agreement.

To prevent all doubt, the above granted license includes a license for purposes of marketing. We may upload Your Content to services such as, but not limited to, Google Base, TheFind.com and Nextag. If you do not wish to participate in such programs, simply indicate your preference in Your ProStores account. Though You grant us a license to upload Your Content to such Third Party tools, we do not have an obligation to upload the Content.  We reserve the right to change the terms, conditions, and fees related to our Pay-Per-Sale Services at any time. When we do so, we will notify you of the changes in accordance with this Agreement.

You acknowledge that each search engine and directory has its own submission policy and ranking-calculation procedure. You also acknowledge and understand that after executing the submissions, ProStores has no control over when, whether or how Your web site appears in search engine results or directory rankings. Further, You know and agree that when You indicate in Your ProStores account that you no longer wish that we submit your Content, it may take some time before the search engine and directory service providers execute this request.

5. COVENANTS

5.1 COVENANTS BY YOU

You covenant that any products, services, Your Content, Your Store and Your related activities shall not violate the ProStores Acceptable Use Policy that is incorporated herein by reference and as it may be amended from time to time, nor shall they:

  1. be false, inaccurate or misleading;
  2. be fraudulent or involve the sale of counterfeit or stolen items;
  3. infringe or misappropriate any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; ProStores may, in appropriate circumstances and at its discretion, disable and/or terminate the accounts of users who may be repeat infringers;
  4. 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);
  5. 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;
  6. be obscene or contain child pornography;
  7. 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;
  8. involve the transmission of any unsolicited commercial or bulk email (known as "spamming"). You shall not use Your account or Your Store as a return address for unsolicited commercial mail originating elsewhere or participate in any activities related to so-called pyramid or ponzi schemes;
  9. involve the collection or attempt to collect personally identifiable information of any person or entity, except with the express written consent of that person or entity and of which consent You shall maintain a written record for a period of three (3) years after any termination of this Agreement;
  10. be harmful or potentially harmful to the ProStores Server structure as determined at ProStores' sole discretion, including without limitation overloading the ProStores technical infrastructure;
  11. involve subleasing Your account or offering "free space" on or other access to Your account or Your Store to third parties;
  12. create liability for ProStores and its subcontractors or expose them to undue risk. You will not engage in activities that ProStores, at its sole discretion, determines to be harmful to ProStores' affiliates, operations, reputation, or goodwill ; or           
  13. 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;

You represent that you will use the web hosting service solely for the on-line needs of a small or medium enterprise and as set out in the Acceptable Use Policy. You will not use the web hosting services for other purposes than hosting and serving ecommerce web pages as viewed through a web browser. You will not use the said services to store data that is not related to active and current transactions. Using your account as an online storage space for archiving electronic files is disallowed. We have internal policies and may, at our sole discretion, limit downloads from your site if our server processing power, server memory, or abuse controls indicate that you are not using the hosting services to serve the ecommerce needs of a small, independently owned and operated business in the United States.
Furthermore, You agree to display and adhere to terms of use or other user-type agreement, as well as a privacy policy that complies with applicable law, governing Your operation of Your Store and Your conduct with Your Store's customers.

5.2 BREACH OF COVENANT

Your failure to comply with the covenants set forth in Section 5.1 of this Agreement will amount to a breach of this Agreement and is cause for immediate suspension and/or termination under Section 12 of this Agreement.

6. FEES, TAXES, & AUDIT RIGHTS

6.1 FEES

You shall pay the fees set forth for the Software license and Services purchased by You in accordance with ProStores' Fees Policy that is incorporated into this Agreement by reference. ProStores may change its Fees Policy and the fees for its Services from time to time. ProStores' changes to the policy are effective after ProStores provides You with at least fourteen (14) days' notice of the changes by posting the changes on the ProStores Site. Unless otherwise stated, all fees are quoted in U.S. Dollars.

6.2 PAYMENT TERMS

ProStores will invoice You and You agree to pay for (i) non-refundable monthly subscription and other annual or one-time fees, in advance, including fees for the license of Software and Services to be rendered to You by or on behalf of ProStores in the following month, and (ii) transaction fees and all other fees designated in the Fees Policy to be paid in arrears based on the value of goods and services sold through Your Store during the previous calendar month, in accordance with the invoicing and payment requirements set forth in the Fees Policy. ProStores will debit all fees payable by You to ProStores directly from the credit card or PayPal account designated by You when You register for Your ProStores account to receive a license to the Software and to receive the Services from ProStores and thereafter in accordance with the Fees Policy. The terms applicable to the payment method shall be between You and the credit card company or PayPal. When you choose PayPal as your payment method on file, You agree to make automatic payments of Your fees to ProStores. You will be asked to convey to PayPal (in an on-line billing agreement with PayPal) that you authorize ProStores to charge the available funding source in your PayPal account for future payments of these Fees. Without limiting ProStores' other remedies, any amount that is not retrievable from Your designated account when due will accrue a late fee at one and one half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. If we suspend a portion of your Service due to a violation by You of any laws, regulations, or policies, You will remain responsible for the payment of all applicable fees.

6.3 TAXES

All fees under this Agreement exclude all applicable sales, use, and other taxes and government charges, whether federal, state or foreign, and You will be responsible for payment of all such taxes (other than taxes based on ProStores' income), fees, duties, and charges, and any related penalties and interest, arising from the payment of any and all fees under this Agreement or from the access to or receipt of the Software license or receipt of the Services hereunder.

7. DISCLAIMER OF WARRANTIES

PROSTORES, ITS SUPPLIERS AND SERVICE PROVIDERS, PROVIDE THE SOFTWARE, ADDITIONAL SOFTWARE, AND 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. PROSTORES, ITS SUPPLIERS AND SERVICE PROVIDERS, DO NOT WARRANT THAT THE SOFTWARE, ADDITIONAL SOFTWARE, OR 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 7 IS REASONABLE AND AN ESSENTIAL ELEMENT OF THIS AGREEMENT AND THAT IN ITS ABSENCE, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.

8. LIMITATION OF LIABILITY

IN NO EVENT SHALL PROSTORES, ITS SUPPLIERS, ADVERTISING AND PROMOTIONAL PARTNERS, 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 SOFTWARE, THE ADDITIONAL SOFTWARE, THE SERVICES OR THIS AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE). PROSTORES', ITS SUPPLIERS', ADVERTISING AND PROMOTIONAL PARTNERS', 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 (I) THE SOFTWARE LICENSE AND (II) THE SERVICES IN THE ONE (1) MONTH 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 of incidental or consequential damages may not apply to You.

9. INDEMNITY

You agree to indemnify and hold ProStores, its suppliers, advertising and promotional partners, 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) any breach of the covenants in Section 5.1 of this Agreement, (b) any Content provided by You or generated by users of Your Store, (c) any claims arising from the sale or license of goods or services in Your Store, or (d) any breach of this Agreement or the documents it incorporates by reference. ProStores', its suppliers', advertising and promotional partners', and service providers' indemnity rights shall not be limited or offset by any contributory negligence by ProStores.

10. CUSTOMER DATA, YOUR DATA & PRIVACY POLICY

As between ProStores and You, You shall own all data disclosed by or collected about (a) an individual or entity that accesses Your Store to browse or shop ("Customer Data"), and (b) You ("Your Data"). ProStores does not sell or rent Your Data to third parties for marketing purposes without Your explicit consent and ProStores only uses and disclose Your Data as described in the ProStores Privacy Information, that is incorporated herein by reference and as it may be amended from time to time. ProStores shall collect, store and process Customer Data and Your Data on computers located in the United States that are protected by physical as well as technological security devices. If You object to Customer Data or Your Data being collected, stored or processed in this way, please do not use the Software or Services.

You shall maintain all Customer Data that is collected by or disclosed to You in trust and confidence and use and disclose such information solely in accordance with Your privacy policy. You must post, maintain and adhere to Your privacy policy that informs Your Store customers what Customer Data is collected, how it is used, the effective date of Your privacy policy and how customers of Your Stores can learn of changes to Your privacy policy. You shall include a hyperlink to Your privacy policy on the home page of Your Store and on all pages where You collect Customer Data. In addition, You must prominently include within Your Store a privacy policy statement notifying Your customers that Your Store is hosted by ProStores and that ProStores, including its service providers, promotional partners, parent entity and affiliates may have access to aggregated information about customers of Your Store in order for ProStores to analyze performance and make improvements to ProStores products. If you are a ProStores Express merchant, your privacy policy may be posted by way of a visually separate (as with lines or color changes) section within your "About Us" page and your home page may hyperlink to the privacy policy section. You may not use your customer information to send unsolicited commercial messages (spam).

You are responsible for keeping Your password in a secure place and for maintaining the confidentiality of your password. You agree not to disclose your password to any third party. You agree to immediately notify ProStores if you suspect any unauthorized use of your account or access to your password. You are solely responsible for any and all use made of your account. 

11. BREACH

Without limiting other remedies, ProStores may limit Your activity, issue a warning, temporarily suspend, indefinitely suspend or terminate Your account or Your Store, in whole or in part, and refuse to provide some or all of the Software functionality or Services to You if: (a) You fail to pay any fees in accordance with Section 6 of this Agreement and the Price Policy; (b) You breach the covenants in Section 5.1 of this Agreement; (c) You breach this Agreement or the documents it incorporates by reference in any other manner; (d) ProStores is unable to verify or authenticate any information You provide to ProStores; or (e) ProStores believes that Your actions may cause financial loss or legal liability for You, Your Store customers, or ProStores.

12. SUSPENSION AND TERMINATION

12.1 SUSPENSION

At the discretion of ProStores and for any reason set forth in Section 12 of this Agreement, ProStores may suspend Your account by deactivating any access by You or by Your customers to any information contained on the ProStores Servers related to Your account while maintaining the information and data related to Your account upon the ProStores Servers. Suspension shall specifically include the disabling of Your Store and/or any access to information or data related to Your account. In the event of any such suspension You will be notified and given an opportunity to correct such breach. In the event that such breach is not corrected within ten (10) days of the receipt of such notice the account may be terminated under Section 12.2 of this Agreement. Fees under this Agreement will continue to accrue on suspended accounts as if they were not suspended. You will remain responsible for the payment of any such fees during any such period of suspension.

12.2 TERMINATION

This Agreement and all of its terms shall remain in full force and effect until it is terminated in accordance with the terms of this Agreement. This Agreement may be terminated either by ProStores (a) immediately as provided in this Agreement, (b) after a period of suspension as set forth in Section 12.1 of this Agreement, or (c) upon thirty (30) days written notice for any reason. You may terminate this Agreement upon twenty-four hours notice by telephoning ProStores' designated customer support center. Your termination request may be recorded by ProStores and will require Your user name and password and verification code.

12.3 RIGHTS UPON TERMINATION

In the event of expiration or termination for any reason, the licenses granted under Section 2 of this Agreement shall automatically and immediately cease and You shall destroy all copies of the Software in Your possession, if any. Upon termination, there will be no refund provided to You except as set forth in the Price Policy and all outstanding fees owed by You shall become immediately due and payable. Termination shall not affect the rights of ProStores to recover from You losses, damages, indemnity, defense costs, expert costs, collection costs and/or attorneys fees or expert witnesses' cost or other costs of any kind under this Agreement.

13. GENERAL

13.1 GOVERNING LAW

This Agreement shall be governed in all respects by the laws of the State of California without giving effect to any conflicts of law principles that would require the application of the laws of a different jurisdiction.

13.2 LEGAL COMPLIANCE

You shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding Your use of the Software, the Services, Your Content, and Your listing and sale of products and services on Your Store.

13.3 NO AGENCY

You and ProStores are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.

13.4 FORCE MAJEURE

Except for the payment of any fees due and payable under this Agreement, neither party's delay in the performance of any duties or obligations under this Agreement will be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, failures in electric power or telecommunications services, or any other event beyond the control of the party.

13.5 DISPUTES

In the event a dispute arises between You and ProStores, ProStores’ goal is to provide You with a neutral and cost effective means of resolving the dispute quickly. Accordingly, You and ProStores agree that any claim or controversy at law or equity that arises out of or related to this Agreement, the use of or related to the use of the Software, or related to the use of the Services ("Claims") shall be resolved in accordance with one of the subsections below or as otherwise mutually agreed upon in writing by the parties. Before resorting to these alternatives, ProStores strongly encourages You to first contact ProStores directly as provided in Section 14.6 to seek a resolution and ProStores will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation, as an alternative to litigation.

  1. Binding Arbitration. For any Claim (excluding Claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, You or ProStores may elect to resolve the dispute through binding arbitration conducted by telephone, on-line and/or based solely upon written submissions where no in-person appearance is required. In such cases, the arbitration shall be administered by the American Arbitration Association ("AAA") or the Judicial Arbitration and Mediation Service ("JAMS") in accordance with their applicable rules, or any other established Alternative Dispute Resolution provider mutually agreed upon by the parties. Any judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
  2. Court. Alternatively, You and ProStores agree to submit Your claim or case to the jurisdiction of the courts located within the county of Santa Clara, California.
  3. Alternative Dispute Resolution. Alternatively, ProStores will consider use of other alternative forms of dispute resolution, such as binding arbitration to be held in Santa Clara County, California or another location mutually agreed upon by the parties. All Claims (excluding requests for injunctive or equitable relief) between the parties must be resolved using the dispute resolution mechanism that is selected in accordance with this Section 14.5 by the first party to file a Claim. Should either party file an action contrary to this Section, the other party may recover attorneys' fees and costs up to $1000, provided that the party seeking the award has notified the other party in writing of the improperly filed Claim, and the other party has failed to withdraw the Claim.

13.6 NOTICES

Except as explicitly stated otherwise, any notices shall be given by postal mail to ProStores Attn: Legal Department, 2145 Hamilton Avenue, San Jose, CA 95125 (in the case of ProStores) or to the email address You provide to ProStores during the registration process (in Your case). Notice shall be deemed given twenty four (24) hours after email is sent. Alternatively, ProStores may give You notice by certified mail, postage prepaid and return receipt requested, to the address provided to ProStores during the registration process. In such case, notice shall be deemed given three (3) days after the date of mailing.

13.7 CONFIDENTIALITY

"Confidential Information" means any information disclosed to You by ProStores, either directly or indirectly, in writing, orally, by inspection of tangible objects or by data feed or other electronic means, other than information that You can establish (i) was publicly known and made generally available in the public domain prior to the time of disclosure to You by ProStores; (ii) becomes publicly known and made generally available after disclosure to You by ProStores other than through action or inaction; (iii) is in Your possession, without confidentiality restrictions, at the time of disclosure by You as shown by files and records immediately prior to the time of disclosure; or (iv) consists solely of aggregated data which is not "Confidential Information" under this Agreement, provided that the aggregated data is presented in a manner that makes it impossible to identify the party or parties to whom the data relates. You shall not at any time (a) disclose, sell, license, transfer or otherwise make available to any person or entity any Confidential Information You receive from ProStores; (b) use any Confidential Information received from ProStores; or (c) reproduce or otherwise copy any Confidential Information received from ProStores, except as necessary in connection with the purpose for which such Confidential Information is disclosed to You or as required by applicable law. You agree to take all reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information. All Confidential Information shall at all times remain the personal property of ProStores and all documents, electronic media and other tangible items containing or relating to any Confidential Information shall be delivered to ProStores immediately upon ProStore's request.

13.8 ASSIGNMENT

You shall not assign, transfer or delegate this Agreement or any rights or obligations hereunder. Any assignment, transfer or delegation in contravention of the foregoing provision shall be null and void. You agree that this Agreement may be assigned by ProStores, in ProStores' sole discretion.

13.9 SEVERABILITY, WAIVER

If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. In such case, Parties will include one or more new provisions in the Agreement, which enables them, if possible, to reach the same or a similar result as envisaged by the stricken provision.

ProStores' failure to act with respect to a breach by You or others does not waive ProStores' right to act later on with respect to the breach or with respect to subsequent or similar breaches.

13.10 CONSTRUCTION

Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. When used in this Agreement, the term "including" means "including without limitation," unless expressly stated to the contrary.

13.11 SURVIVAL

Sections 2.4 (Ownership), 6.1 (Fees) with respect to any outstanding fees owed for the Services, 7 (Disclaimer of Warranties), 8 (Limitation of Liability), 9 (Indemnity), 10 (Customer Data, Your Data, & Privacy Policy), 12.3 (Rights Upon Termination), and 14 (General) shall survive any termination or expiration of this Agreement.

13.12 DISCLOSURES

The services hereunder are offered by ProStores Inc., located at 2145 Hamilton Avenue, San Jose, CA 95125.

13.13 ADDITIONAL TERMS

The following policies are incorporated into this Agreement by reference and provide additional terms and conditions related to the Services offered by ProStores:

Each of these policies may be amended from time to time and the amended policies shall be automatically effective thirty (30) days after they are initially posted on the ProStores Site. The foregoing notwithstanding, the updated Fees Policy will be effective fourteen (14) days after notification on the Site and through ProStores Store Administration messages. In addition, when using particular services on the ProStores Site, You agree that You are subject to any posted policies or rules applicable to services You use through the ProStores Site, which may be posted from time to time. All such posted policies or rules are hereby incorporated by reference into this Agreement.

13.14 ENTIRE AGREEMENT

This Agreement (and any terms and conditions incorporated by reference herein) sets forth the entire understanding and agreement between You and ProStores with respect to the subject matter hereof. In the event of any conflict between or among the main Agreement and the terms and conditions incorporated by reference herein, the main Agreement (Sections 1 to 13 set out above) will prevail.