Shopping Cart Terms of Use and Notices

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Shopping Cart Terms of Use and Notices

This Agreement is entered into the day and year indicated on the DesignCart Shopping Cart Terms of Use and Notices & Software License Agreement (herein after referred to as the "Agreement") by and between DesignCart Corporation, whose principal place of business is 2250 N. University Pkwy #4880, Provo, UT 84604 (hereinafter referred to as "DesignCart"), and the user and/or licensee of DesignCart software or services (hereinafter referred to as "Merchant"). DesignCart is offered to you, the Merchant, conditioned on your acceptance without modification to the Agreement, and your use of DesignCart constitutes your acceptance of this agreement. In consideration of the premises set forth herein, DesignCart and Merchant hereby agree as follows:

DesignCart agrees to perform online Shopping Cart services for Merchant. This includes the collection of information and calculations required to complete an online purchase forwarded from Merchant in a timely manner, the optional subsequent transmission of transactions to a merchant selected processing gateway, and email notification of purchase confirmation.
By accepting the Agreement, Merchant understands and agrees that the DesignCart Shopping Cart Services may require additional charges, as indicated below under Schedule of Fees, to be billed directly by DesignCart to the Merchant and payable pursuant to paragraphs 14 and 16 listed below. All sales re final. DesignCart offers the use of a 14 day demo to allow merchants to use our shopping cart service. As a result of this DesignCart holds the policy that all sales are final and no refunds will be issued once your shopping cart account has been purchased and/or activated. In the event that DesignCart deems it necessary to cancel your service for any reason, there will be no refund issued.
By accepting this document, Merchant will indemnify, protect, defend and hold DesignCart, affiliates and / or subsidiaries and all of its or their officers, agents and / or employees, harmless from and against any and all claims, losses, demands, actions, expenses, damages, liability, and / or causes of action, including (without limitation) attorneys' fees, other costs of defense and / or collection fees, which in any way result directly or indirectly from:
1. Merchant breach of this Agreement or any warranty or representation made to DesignCart;
2. Any damage or loss caused by negligence, fraud, dishonesty or willful behavior by Merchant or any of Merchant employees or agents;
3. Any contention, whether well-founded, baseless or otherwise, that Merchant violated the law or any rule or regulation;
4. Any damages resulting from or related to any failure or delay of DesignCart in providing Shopping Cart services under this Agreement; or
5. Any delays in the performance of services hereunder or for any failure to perform same hereunder if such delays are due to strikes, inclement weather, acts of God, or other causes beyond DesignCart's reasonable control. DesignCart will not be liable for performance of services where delayed by war, riots, embargoes, strikes, or acts of it's vendors and suppliers, concealed acts of workmen (whether of DesignCart or others), or accidents.
The indemnifications provided for in this Article shall survive any termination of this Agreement.
Merchant warrants to DesignCart all of the following:
1. That all representations and statements made by Merchant in this Agreement, or in any other document relating hereto, by Merchant or on Merchant's behalf are true, accurate and complete in all material respects. Merchant hereby authorizes DesignCart to investigate and confirm the information herein. For this purpose, DesignCart may utilize credit bureau / reporting agencies and / or its own agents. Upon Merchant's request, DesignCart will provide Merchant with a copy of the results of such investigation.
2. That Merchant is engaged in the lawful business shown on the Agreement which includes the sale of merchandise and / or services, and is duly licensed to conduct such business under the laws of the state, county and city in which Merchant is located.
Merchant agrees that DesignCart's services shall only be performed for lawful purposes. Furthermore, Merchant agrees not use DesignCart products or services provided through or in connection with DesignCart to:
1. defame, abuse, harass, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others;
2. conduct or forward illegal contests, pyramid schemes or chain letters;
3. sell, promote, publish, post, distribute, disseminate or link to any: (i) inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful product, image, material, service, name, or information; (ii) software or other material protected by intellectual property laws, rights of privacy or publicity, or other proprietary rights, unless you own, control such rights or have received all necessary consents for your use of such software and other materials; (iii) software or other material that contains viruses, corrupted files, or that may or are intended to damage the operation of another's computer (e.g., "cracks" or other programs written to defeat the security measures of any computer, system or programs);
4. sell, distribute, disseminate or link to any sites for marketing, sales or distribution of: adult materials, firearms, explosives, ammunition, liquor, tobacco products, food that is not packaged or does not comply with all applicable laws for sale to consumers by commercial merchants, pharmaceuticals and controlled substances, counterfeit, pirated or stolen goods, any goods or services that infringe or otherwise violate a third party's rights, registered or unregistered securities, goods or services that (i) you cannot legally sell, (ii) are misrepresented, and/or (iii) if sold via DesignCart or Your Web Site would cause DesignCart to violate any law, statute or regulation;
5. harvest or otherwise collect information about third parties, including e-mail addresses, without the express consent of such third parties;
6. restrict or inhibit any other user from using and enjoying its rights in DesignCart; or
7. violate any applicable governmental laws or regulations.
DesignCart shall not be liable for the individual merit and legitimacy of orders forwarded from Merchant. This liability shall remain the Merchant's.
DesignCart shall in no event be liable to Merchant or Purchaser (Purchaser is any customer, client, member or entity who elects to buy goods or services from Merchant) for any indirect, special or consequential damages or lost profits arising out of or related to this Agreement, the performance or breach thereof, or the accuracy or correctness of the data being passed to and from Merchant, even if DesignCart and/or Merchant has been advised of the possibility thereof.
Any claim or legal action arising out of disputes, failures, misrepresentations, malfunctions, or defects shall be waived. In no event shall DesignCart's liability to Merchant exceed the total amount Merchant paid to DesignCart hereunder. Merchant agrees that any cause or action arising out of or relating to this Agreement must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred. Jurisdiction of any legal proceeding arising hereby shall be Salt Lake City, Utah, United States of America.
Merchant agrees, as a company and/or as an individual, to defend, indemnify, and hold harmless DesignCart from any and all claims resulting from Merchant's use of any services contemplated under this Agreement, which cause damage to Merchant or any other party.
DesignCart shall not be responsible or liable for unauthorized access of facilities or to Merchant's data or programs due to accident, illegal or fraudulent means or devices.
DesignCart shall retain full ownership of all data submitted by either Merchant or Purchaser through the DesignCart Shopping Cart (Shopping Cart refers to the electronic systems through which a Merchant may pass payment information to DesignCart) including, but not limited to name, mailing & shipping address, email address, phone number, dollar amount of purchase, type of purchase and description of purchase.
Merchant agrees that DesignCart's services shall only be performed for lawful purposes. Any transaction or transmission, which violates any Federal, State, or local laws is expressly prohibited.
Merchant understands that Merchant may not process orders on behalf of any other entity or individual and that the use of the Shopping Cart services is provided herein as a service license for a single Merchant account. Any attempt to use the Shopping Cart services provided herein for more than one Merchant account without additional service licenses may result in additional fees and charges and/or the revocation of the service license and termination of this Agreement. This service license is non-transferable and may not be sold, traded, assumed or otherwise transferred to any other individual or entity without the express written consent of DesignCart.
This Agreement may be amended by DesignCart at any time upon written or electronic notice to Merchant of not less than ten (10) days prior to the effective date of such amendment, except for service fee or other fee increases, exclusive of those increases listed in Section 17, of which will be upon thirty (30) days' notice.
Merchant hereby authorizes DesignCart to either initiate transaction entries to Merchant's depository account number or to charge Merchant's credit card, both of which are listed on the Agreement (and as those numbers may be changed, any new account numbers provided to DesignCart) for the monthly charges required as listed under Schedule of Fees. This billing will occur on the last day of each month regardless of the number of days in which services were actually performed for that month. Merchant agrees that in the event of non-payment Merchant's processing services may be placed on hold and a non-payment fee of $25.00 will be incurred for each unsuccessful attempt to bill Merchant by either ACH debit, credit card charge or check deposit. Service will be restored immediately upon payment in full of past due charges and fees. Merchant agrees to pay all costs and expenses of whatever nature, including attorneys' fees and other legal expenses, incurred by or on behalf of DesignCart in connection with the collection of all unpaid charges and fees.
Merchant agrees not to change its type of business, as indicated on the Agreement without the express written consent of DesignCart.
The Merchant will be considered in default when past due charges have not been paid for 30 days and will be subject to an interest charge of 1.5% per month on the outstanding balance.
Merchant may terminate monthly service with 30 days written notice and only a request in writing relieves Merchant from the obligation to pay charges at the conclusion of thirty days from date of receipt of notice. DesignCart reserves the right to cancel Merchant's Shopping Cart account at any time for any reason. DesignCart reserves the right to refuse service to anyone for any reason.
If any provision in this Agreement is invalid, such invalidity shall not affect the validity of the remaining provisions of this Agreement and Merchant and DesignCart agree to substitute for the invalid provision a valid provision which most closely approximates the effect and intent of the invalid provision.
This Agreement shall remain ineffectual against DesignCart until accepted by a DesignCart Corporation.

DesignCart Software License Agreement

Grant of Software License: Upon installation/setup of the DesignCart software and service (the "Software") or by using it for any purpose, you accept all the terms and conditions of this License. Please read this License in its entirety carefully before using the Software. Subject to your acceptance of the terms of this License, DesignCart hereby grants to you, the Licensee, a nonexclusive license to use the Software for the purposes of sending and/or receiving purchase processing information that includes product and price information, customer billing and shipping information and the transmission of the information to an authorized gateway.
Limitations:
1. Copyright Protection. The Software is owned or licensed by DesignCart and is subject to protection under the copyright, patent and trademark laws of the United States and other countries. You may not remove any of the copyright notices, DesignCart identifiers, or other proprietary labels, or modify, reverse engineer, decompile, or disassemble the binary components of the Software, or assign or transfer your rights under this License. All rights, title and interest in and to the Software, and all copies, in any form, and all intellectual property rights in the Software(including without limitation copyrights and trademarks) shall be the sole and exclusive property of DesignCart. No title or ownership of the Software, or to any copyright, trademark, trade secret or other proprietary or intellectual property rights to the Software, is transferred from DesignCart under this agreement. All rights not expressly granted to Licensee under this Agreement are hereby reserved by DesignCart.
2. Single Product. The Software is licensed as a single product and it may not be separated into its component files nor shall its component files be used for any purpose other than as set forth in Section 1.
3. Distribution and Copying. You may not distribute the Software or incorporate the Software or any portion of it into any other products or software or create derivative works from it without the prior written consent of DesignCart.
4. Changes and Updates. DesignCart may, in its discretion, issue updates, corrections, and new releases (a "Change") to the Software. DesignCart is not responsible for any damages suffered as a result of such Change. If DesignCart chooses to issue a Change, the terms of this License shall apply to such Change and the same shall be treated as Software hereunder. Changes may require that you agree to additional or revised terms and conditions as a condition of continued use of the Software. Unless otherwise agreed to by DesignCart in writing, DesignCart shall have no obligation to provide Changes, maintenance, or support to you or any person to whom you provide access to the Software.
Government Use: Use, duplication or disclosure by or on behalf of U.S. Government entities is subject to restrictions set forth in subparagraphs (a) through (d) of the Commercial Computer-Restricted Rights clause at FAR 52.227-19 when applicable, or in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, and in similar clauses in the NASA AR Supplement. The contractor/manufacturer is DesignCart Corporation, 2250 N. University Pkwy #4880, Provo, UT 84604.
Restrictions on Export: You may not setup, download or otherwise export or re-export the Software or any of its components, data, code or technology except in full compliance with all United States and other applicable laws and regulations. In particular, but without limitation, none of the Software or it's components, data, code or technology may be downloaded or otherwise exported or re-exported
1. into (or to a national resident of) Cuba, Iraq, Libya, Sudan, North Korea, Iran, or Syria, or
2. to anyone on the U.S. Treasury Department's list of Specially Designated nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading the Software, you are agreeing to the preceding terms and are representing and warranting that you are not located in, under the control of, or a national or resident of any such country or on any such list.
Limited Warranty: DesignCart warrants that if the Software is inoperable or materially defective, it will make commercially reasonable efforts to make available to you at no charge a replacement copy of the Software. DesignCart and its vendors disclaim all other warranties, expressed or implied, written or oral, including but not limited to those of merchantability, fitness for a particular purpose, and infringement.
Limitation of Damages:
1. Except for a breach by you of your obligations under Sections 2(a), (b), and (c), the parties hereto, and their vendors (and any officers, directors, employees and agents of the parties, and their vendors) shall not be liable for any consequential, incidental or indirect damages.
2. Except for claims arising from criminal or willful misconduct, the parties agree to waive any claim to seek punitive or exemplary damages.
Termination:
1. Either party may terminate this License on 30 days written notice for material breach by the other party of its obligations hereunder unless such breach is cured within such 30-day period.
2. In addition to your termination right under paragraph (a) you may terminate this license on 30 days written notice.
3. In addition to DesignCart's termination right under paragraph (a), DesignCart may terminate this license as provided in Section 11.
4. Upon termination of this License, you will return or destroy all copies of the Software in your possession.
Notices: All notices shall be given electronically, with notices to you being sent to the electronic mail address which you furnish at the time you install the Software and notices to DesignCart going to legal@DesignCart.
Trademarks: "DesignCart", the DesignCart logo "DesignCart Corporation", the DesignCart Corporation logo are trademarks of DesignCart Corporation. DesignCart grants you a limited, non-exclusive license to use those trademarks in displaying payment options on your web site and in promotional documentation.
No Agency: Without DesignCart's written consent, you will not represent that you are an agent of DesignCart, or that you have been endorsed or certified by DesignCart.
Infringement Indemnity:
1. DesignCart hereby agrees to indemnify you against any loss or damage, including attorneys' fees and costs of litigation, arising from a claim that the Software infringes a patent, copyright, trademark or other intellectual property right of any other person.
2. You hereby agree to indemnify DesignCart against any loss or damage, including attorneys' fees and costs of litigation, arising from a claim that the Software infringes a patent, copyright, trademark or other intellectual property right resulting from:
  1. your use of the Software for purposes other than making use of a payment service authorized by DesignCart; or
  2. an unauthorized modification of the Software by you, provided, however, that the foregoing indemnification obligation applies only to such a claim that would have been avoided in the absence of such use or modification.
3. In the event a party (the "Indemnified Party") becomes aware of a claim described in Sections 10 (a) or (b) for which it may seek indemnification, the Indemnified Party shall promptly give the other party (the "Indemnifying Party") notice of the claim and permit the Indemnifying Party to assume the defense of the claim. The Indemnified Party shall have the right to participate in the defense at its expense.
4. DesignCart shall have no obligation to indemnify you with respect to any claim to the extent it is based on:
  1. the use of the Software for a purpose other than data collection, calculation and the use a payment service authorized by DesignCart;
  2. the use of the Software in combination with other products, equipment, devices or software where such combination is likely to infringe or infringes the rights of a third party; or
  3. the alteration or modification of the binary elements of the Software by or for you if such infringement charge would have been avoided in the absence of such alteration or modification.
5. If the Software or any component of the Software becomes, or in DesignCart's opinion is likely to become, the subject of a claim of infringement, then you shall permit DesignCart, at its option and expense, either:
  1. to procure for you the right to continue using the Software as permitted in this Agreement, or
  2. to replace or modify Software or the infringing component of the Software so that it becomes non-infringing. If, after the using commercially reasonable efforts DesignCart is unable to cure the infringement, either party may terminate this Agreement on written notice to the other.
Payment Terms:
1. It is the Licensee's understanding they will be charged the rates and fees for their use of the Software as set forth in their Agreement at the time of sale.
2. If the Licensee fails to stay current with the payment terms as described in 12 (a), DesignCart reserves the right to discontinue use of the Software by Licensee until paid in full.
Acceptable Use Policy: Merchant will not engage in Net Abuse, that can be defined as (but is not limited to):
1. Sending any kind of unsolicited or unwelcome email to a substantial number of network users, anywhere on the Internet.
2. Posting a single article or substantially similar articles to an excessive number of newsgroups or mailing lists (i.e., 20 or more).
3. Repeated or deliberate posting of articles that are off-topic according to the charter of that newsgroup or mail list.
4. Posting commercial advertising in almost any conference or newsgroup, unless it is specifically permitted within that group. I understand that DesignCart investigates all reported occurrences of net abuse, and will take action according to the circumstances and severity of the abuse. For first offenders, DesignCart will normally issue a warning, and take necessary action to minimize any damage. Depending on the severity of the breach of this policy, DesignCart may immediately take any of the following actions:
  1. Immediate suspension of your account, halting all processing of credit card and/or ACH transactions.
  2. Possible termination of account. DesignCart will not tolerate Net Abuse of any kind.
Entire Agreement: This License constitutes the entire Agreement between you and DesignCart pertaining to the subject matter hereof, and supersedes in their entirety any and all written or oral Agreements pertaining to the Software and its use between the parties.
Governing Law: This License Agreement shall be governed by the laws of the State of Utah, United States of America.