Professional Services Terms of Service
Effective Date: January 1, 2011
This Terms of Service ("TOS") contains the terms and conditions between you and ProStores, Inc. that govern your use of the WEBSITE and ProStores Professional Services (as defined below). This TOS describes your rights and responsibilities and what you can expect from ProStores Professional Services. Use of the WEBSITE or ProStores Professional Services constitutes your acceptance of and agreement to this TOS.
ProStores, Inc. reserves the right to add, delete and/or modify any of the terms and conditions contained in this TOS, at any time and in its sole discretion, by posting a change notice or a new agreement on the WEBSITE. In the event of substantive changes to this TOS, you may be notified by email. If any modification is unacceptable to you, your only recourse is to not use the WEBSITE and ProStores Professional Services. Your continued use of the WEBSITE or ProStores Professional Services following posting of a change notice or new TOS on the WEBSITE will constitute binding acceptance of the changes.
1. ProStores Professional Services
ProStores, Inc. provides a number of Internet-based services through the WEBSITE (all such services, collectively, "ProStores Professional Services"), including design, setup, and customization of a ProStores online store for a fee. ProStores merchants sell products and or services through their own sites on the ProStores eCommerce system ("Merchant’s ProStores Website"). This allows end users to browse the Merchant’s ProStores Website and purchase Products from the Merchant’s ProStores Website. Users who would like to sell Products through a ProStores eCommerce Website must enter into a contract with ProStores, Inc.. ProStores Professional Services may offer a number of other products or services to you, including, without limitation, custom services, setup services, setup of add-on software, graphics customization, message boards, community sites, and newsletters, which may change from time to time.
2. Use of the WEBSITE and ProStores Professional Services
2.1 Eligibility.
ProStores, Inc. will only knowingly provide ProStores Professional Services to parties that can lawfully enter into and form contracts under applicable law. If you are under the age of 18, but at least 13 years of age, you may use ProStores Professional Services only under the supervision of a parent or legal guardian who agrees to be bound by this TOS. ProStores Professional Services is not intended for children under the age of 13.
2.2 Compliance with TOS and Applicable Law.
You must comply with all of the terms and conditions of this TOS, the applicable agreements and policies referred to below, and all applicable laws, regulations and rules when you use ProStores Professional Services and the WEBSITE.
2.3 Your License to Use the WEBSITE and ProStores Professional Services.
(a) ProStores, Inc. solely and exclusively owns all intellectual property and other rights, title and interest in and to ProStores Professional Services and WEBSITE, except as expressly provided for in these TOS or under expressed contractual agreement with participating third parties. For example and without limitation, ProStores, Inc. owns the trademarks, ProStores, Inc, ProStores, and the ProStores logo; the copyrights in and to the WEBSITE, and certain technology used in providing ProStores Professional Services. You will not acquire any right, title or interest therein under this TOS or otherwise to any intellectual property owned by ProStores, Inc.
(b) ProStores, Inc. grants you a limited revocable license to access and use the WEBSITE and ProStores Professional Services for its intended purposes, subject to your compliance with this TOS. This license does not include the right to collect or use information contained on the WEBSITE for purposes prohibited by ProStores, Inc.; to compete with ProStores, Inc.; to create derivative works based on the content of the WEBSITE; or download or copy the WEBSITE (other than page caching). If you use the WEBSITE in a manner that exceeds the scope of this license or you breach this TOS, ProStores, Inc. may revoke the license granted to you.
(c) This Section 2.3 does not pertain to your intellectual property rights. For information regarding your intellectual property rights, please see Section 4.4.
2.4 Third-Party Services.
ProStores, Inc. may use or recommend the use of third parties to provide certain services accessible through the WEBSITE. ProStores, Inc. does not control those third parties or their services, and you agree that ProStores, Inc. will not be liable to you in any way for your use of such services. These third parties may have their own terms of use and other policies. You must comply with such terms and policies as well as this TOS when you use those services. If any such terms or policies conflict with ProStores, Inc.'s TOS, agreements or policies, you must comply with ProStores, Inc.'s TOS, agreements or policies, as applicable.
3. General Rules
3.1 Prohibited Use.
You may only use the ProStores Professional Services as expressly permitted by ProStores, Inc. You may not cause harm to the WEBSITE or ProStores Professional Services. Specifically, but not by way of limitation, you may not: (i) interfere with the WEBSITE or ProStores Professional Services by using viruses or any other programs or technology designed to disrupt or damage any software or hardware; (ii) modify, create derivative works from, reverse engineer, decompile or disassemble any technology used to provide the WEBSITE or ProStores Professional Services; (iii) use a robot, spider or other device or process to monitor the activity on or copy pages from the WEBSITE, except in the operation or use of an internet "search engine", hit counters or similar technology; (iv) collect electronic mail addresses or other information from third parties by using the WEBSITE or ProStores Professional Services; (v) impersonate another person or entity; (vi) use any meta tags, search terms, key terms, or the like that contain ProStores, Inc.'s or other represented third party’s on WEBSITE name or trademarks; (vii) engage in any activity that interferes with another user's ability to use or enjoy the WEBSITE or ProStores Professional Services; or (viii) assist or encourage any third party in engaging in any activity prohibited by this TOS.
3.2 Privacy Policy.
By entering into this TOS, you agree to ProStores, Inc.'s collection, use and disclosure of your personal information in accordance with the ProStores, Inc. published Privacy Policy.
4. ProStores Professional Services General Rules and License
4.1 Description.
As part of ProStores Professional Services, ProStores, Inc. offers various services, including setup, design, maintenance, training, and custom services for ecommerce Websites on the ProStores eCommerce platform.
4.2 Subject to the terms and conditions of this Agreement.
ProStores grants to you a non-exclusive, non-transferable, revocable, limited license to use any designs, graphics or templates provided to you by ProStores Professional Services solely for the purpose of building, maintaining, and marketing of an interactive store hosted by the ProStores Servers.
4.3 Delivery of Content.
You will upload or deliver to ProStores, Inc. all Content that you want to use with the ProStores Professional Services in accordance with the applicable instructions on the WEBSITE or based on instructions otherwise provided to you by ProStores, Inc. ProStores, Inc. may, in its sole and exclusive discretion, determine whether any Content complies with such instructions and is satisfactory for use with the ProStores Professional Services.
4.4 Licensing of Your Content.
You will retain ownership of the Content that you upload to the Website and as outlined in the ProStores Merchant User Agreement. You represent that the Content you submit, including but not limited to, images, videos, media, logos, taglines, and copy, does not and will not infringe upon any copyright, trademark, patent, trade secret, right of publicity or privacy, or any other intellectual property or proprietary right of any person, whether contractual, statutory or at common law.
4.5 Payment Terms, Cancellation, and Refunds.
Payment is due in full prior to commencement of work unless otherwise noted in the description of the specific service purchased. In the event of cancellation of a project after commencement of work, ProStores will charge a cancellation fee in the amount of hours booked based on an hourly rate of $195/hour. Should the amount paid by the merchant customer exceed the cancellation fee, a refund will be issued for the difference.
4.6 Ongoing Technical Support.
ProStores Professional Services will provide technical support limited to the scope of a design or development project itself and/or areas of the ProStores software specific to the design or development work performed during the course of fulfilling the project and for up to 30-days from the date the final deliverable was completed. All other software support should be directed to ProStores Technical Support.
Support or repairs to molested code caused by you, improper use of ProStores' Store Design tools or a third party action or attempt to modify, customize, extend or integrate the design or services delivered is excluded. Ad hoc or ongoing monthly maintenance and support services may be contracted separately for a fee.
4.7 Scope of Projects and Change Orders
ProStores Professional Services will review all requests, content and data submitted by you to ensure everything falls within the scope of the purchased design or development package. Once work begins, any modifications, additions or subtractions to the scope of the project resulting in redevelopment, repeating work already completed and approved or resulting in significantly increased development time, may result in additional charges. Any change orders requiring additional costs will be outlined in writing or via an online project management process in advance of performing work and must be agreed to by both parties.
4.8 Backup and storage of deliverables.
It is your responsibility to back up data, designs, custom code, and any other deliverables provided by ProStores Professional Services. ProStores Professional Services will not be held liable for any designs, code or data lost by you for any reason.
5. Reservation of Rights
5.1 Monitoring.
ProStores, Inc. reserves the right, but does not assume the obligation, to monitor transactions and communications that occur through the WEBSITE. If ProStores, Inc. determines, in its sole and absolute discretion, that you or another ProStores, Inc. user will breach a term or condition of this TOS or that such transaction or communication is inappropriate, ProStores, Inc. may cancel such transaction or take any other action to restrict access to or the availability of any material that may be considered objectionable, without any liability to you or any third party.
5.2 Modification of the Service.
ProStores, Inc. reserves the right to modify the organization, structure or "look and feel" of ProStores Professional Services or the WEBSITE, and may change, suspend, or discontinue any aspect of the ProStores Professional Services at any time without any liability to you or any third party. ProStores, Inc. shall have complete discretion over the features, functions, prices and other terms and conditions on which ProStores Professional Services is offered to WEBSITE users.
6. Submissions
When you submit Website content, questions, comments, suggestions, ideas, message board postings, material submitted via web forms, contest entries, communications or any other information ("Submissions"), you grant ProStores, Inc. permission to use such Submissions for marketing and other promotional purposes, including the right to sublicense. You agree that ProStores, Inc. will have no obligation to keep any Submissions confidential. You will not bring a claim against ProStores, Inc. based on "moral rights" or the likes arising from ProStores, Inc.'s use of a Submission. This Section does not apply to your Content that you use in connection with ProStores Professional Services.
7. Representations and Warranties
7.1 Mutual Representations and Warranties.
You represent and warrant to ProStores, Inc. and ProStores, Inc. represents and warrants to you: (i) that you or it has the full power and authority to enter into and perform under this TOS, (ii) the execution and performance of your or its obligations under this TOS does not constitute a breach of or conflict with any other agreement or arrangement by which you or it is bound, and (iii) this TOS is a legal, valid and binding obligation of the party entering into this TOS, enforceable in accordance with its terms and conditions.
7.2 By You.
You represent and warrant to ProStores, Inc. that, in your use of ProStores Professional Services, you: (i) will not infringe the copyright, trademark, patent, trade secret, right of privacy, right of publicity or other legal right of any third party, and (ii) will comply with all applicable laws, rules, and regulations. You further represent and warrant to ProStores, Inc. that: (i) there are no claims, demands or any form of litigation pending, or to the best of your knowledge, threatened with respect to any of your Content; (ii) ProStores, Inc. will not be required to make any payments to any third party in connection with its use of your Content, except for the expenses that ProStores, Inc. incurs in providing the ProStores, Inc. Service; (iii) the use of any instructions, formulae, recommendations, or the like contained in your Content will not cause injury to any third party; and (iv) your Content does not contain viruses or any other programs or technology designed to disrupt or damage any software or hardware.
8. Disclaimers and Exclusions
DISCLAIMER OF WARRANTIES. PROSTORES, INC. PROVIDES THE WEBSITE AND PROSTORES PROFESSIONAL SERVICES ON AN "AS IS" AND "AS AVAILABLE" BASIS. PROSTORES, INC. DOES NOT REPRESENT OR WARRANT THAT THE WEBSITE, PROSTORES PROFESSIONAL SERVICES OR ITS USE: (i) WILL BE UNINTERRUPTED, (ii) WILL BE FREE OF INACCURACIES OR ERRORS, (iii) WILL MEET YOUR REQUIREMENTS, OR (iv) WILL OPERATE IN THE CONFIGURATION OR WITH THE HARDWARE OR SOFTWARE YOU USE. PROSTORES, INC. MAKES NO WARRANTIES OTHER THAN THOSE MADE EXPRESSLY IN THIS TOS, AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT.
9. Limitation of Liability
LIMITATION OF LIABILITY. PROSTORES, INC. WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO OR CONNECTED WITH THE USE OF THE WEBSITE OR PROSTORES PROFESSIONAL SERVICES OR THIS TOS, BASED ON ANY CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR A BREACH OF A PARTY'S REPRESENTATIONS AND WARRANTIES UNDER THIS TOS OR IN CONNECTION WITH YOUR INDEMNITY OBLIGATIONS UNDER THIS TOS, IN NO EVENT WILL THE LIABILITY OF EITHER PARTY IN CONNECTION WITH THIS TOS EXCEED THE GREATER OF (i) THE AMOUNT PAID BY YOU TO PROSTORES, INC. DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE EVENT THAT GIVES RISE TO SUCH LIABILITY OR (ii) $100.
10. Indemnification
You must indemnify and hold ProStores, Inc., and its service providers, subcontractors, employees, representatives, agents, affiliates, directors, officers, managers and shareholders (the "Parties") harmless from any damage, loss, or expense (including without limitation, attorneys' fees and costs) incurred in connection with any third-party claim, demand or action ("Claim") brought against any of the Parties alleging that you have breached any provision of this TOS through any act or omission. If you have to indemnify ProStores, Inc. under this Section, ProStores, Inc. will have the right to control the defense, settlement, and resolution of any Claim at your sole expense. You may not settle or otherwise resolve any Claim without ProStores, Inc.'s express written permission.
11. Termination
11.1 Termination.
In its sole discretion, with or without notice to you, ProStores, Inc. may: (i) suspend, limit your access to or terminate your use of the Website and/or ProStores Professional Services, (ii) suspend, limit your access to or terminate your account, (iii) remove any of your Content from ProStores, Inc.'s servers and directories and (iv) prohibit you from using ProStores Professional Services and/or the WEBSITE.
11.2 Survival.
Notwithstanding Section 11.1 above, this TOS will survive indefinitely unless and until ProStores, Inc. chooses to terminate this TOS.
11.3 Effect of Termination.
If you or ProStores, Inc. terminates your use of the WEBSITE or the ProStores, Inc. Service, ProStores, Inc. may delete any Content or other materials relating to your use of the ProStores, Inc. Service on ProStores, Inc.'s servers or otherwise in its possession and ProStores, Inc. will have no liability to you or any third party for doing so.
12. Notice
All notices required or permitted to be given under these TOS will be in writing and delivered to the other party by any of the following methods: (i) U.S. mail, (ii) overnight courier, or (iii) electronic mail. If you give notice to ProStores, Inc., you must use the following addresses: 2145 Hamilton Ave, San Jose, CA 95125, or services@prostores.com. If ProStores, Inc. provides notice to you, ProStores, Inc. will use the contact information provided by you to ProStores, Inc. All notices will be deemed received as follows: (i) if by delivery by U.S. mail, seven (7) business days after dispatch, (ii) if by overnight courier, on the date receipt is confirmed by such courier service, or (iii) if by electronic mail, 24 hours after the message was sent, if no "system error" or other notice of non-delivery is generated. If applicable law requires that a given communication be "in writing," you agree that email communication will satisfy this requirement.
13. Dispute Resolution
All disputes arising out of, relating to or connected with these TOS or your use of any part of the ProStores, Inc. Products or Services will be exclusively resolved under confidential binding arbitration held in Yolo County, California, before and in accordance with the Rules of the American Arbitration Association, by a sole arbitrator applying California law (without regard for conflicts of law principles). The arbitrator's award will be binding and may be entered as a judgment in any court of competent jurisdiction. Any action to enforce an arbitrator's award will be brought in a federal or state court located in Yolo County, California. Each party hereby irrevocably submits to the personal jurisdiction of the Federal and California State courts in Santa Clara County. Notwithstanding anything to the contrary in this Section 13, ProStores, Inc. may seek equitable relief, including, without limitation, injunctive relief and specific performance, without the requirement of posting a bond or other security or proving money damages are insufficient, from a court of competent jurisdiction.
14. Miscellaneous
These TOS will be binding upon each party hereto and its successors and permitted assigns, and governed by and construed in accordance with the laws of the State of California without reference to conflict of law principles. This TOS is not assignable or transferable by you without the prior written consent of ProStores, Inc. This TOS (including all of the policies and other Agreements described in this TOS, which are incorporated herein by this reference) contain the entire understanding of the parties regarding its subject matter, and supersedes all prior and contemporaneous agreements and understandings between the parties regarding its subject matter. No failure or delay by a party in exercising any right, power or privilege under this TOS will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other such right, power, or privilege. You and ProStores, Inc. are independent contractors, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by this TOS. The invalidity or unenforceability of any provision of this TOS will not affect the validity or enforceability of any other provision of this TOS, all of which will remain in full force and effect.
