TERMS AND CONDITIONS
1. GENERAL. THE FOLLOWING ARE THE TERMS AND CONDITIONS FOR THE USE OF THE SOLID CACTUS AMAZON® WEBSTORE DESIGN AND DEVELOPMENT SERVICES TO BE PROVIDED TO YOU (“CLIENT”) BY SOLID CACTUS, INC. (“SOLID CACTUS”) AND FURTHER DESCRIBED HEREIN AS WELL AS IN THE ONLINE ORDER FORM (THE “ORDER FORM”) TO BE CONCURRENTLY SUBMITTED BY CLIENT (THE “SERVICE”). (THE TERMS AND CONDITIONS AND THE ORDER FORM ARE HEREBY REFERRED TO COLLECTIVELY AS THE “TERMS AND CONDITIONS”).
CLIENT MUST CAREFULLY READ ALL OF THE TERMS AND CONDITIONS BEFORE CONSENTING TO SUCH TERMS BY CLICKING THE “SUBMIT” BUTTON ON THE ONLINE ORDER FORM. BY CLICKING THE "SUBMIT" BUTTON, CLIENT IS STATING THAT THEY HVE THE AUTHORITY TO DO SO AND THAT CLIENT AGREES TO BE BOUND BY THE TERMS AND CONDITIONS.
2. SERVICE DESCRIPTION AND LIMITATIONS
A. The Service consists of the Solid Cactus Amazon Webstore Design and Development Service to be provided to Client by Solid Cactus. As such, Solid Cactus is to design and develop Client’s Amazon® WebStore (the “WebStore”). Client acknowledges and agrees that all functionality and hosting associated with the WebStore is to be provided to Client by Amazon.com, Inc. (“Amazon”) and is subject to a separate agreement and/or terms and conditions to be entered into and/or agreed upon between Client and Amazon. Client acknowledges and agrees that Solid Cactus will have no responsibility or liability of any kind with regards to said hosting and/or functionality of the WebStore.
3. COMPENSATION
A. Costs and payments for the Service are to be described in the Order Form. Additionally, where necessary, Client will pay all additional expenses related to Solid Cactus providing the Service to Client, pursuant to Client’s prior written approval.
B. If applicable, all invoices from Solid Cactus shall be paid in accordance with their terms by all stipulated due dates, and if not, Client shall be considered to be in default (“Default”). Client will be notified of such Default and will be given fifteen (15) days to fully cure. Upon failure to cure, any amount still due shall bear interest at the lesser of the rate of 1.5% per month or the maximum rate allowed by law. Client will also pay all costs of collection, including reasonable attorney’s fees, for the collection of any amount due upon failure to cure Default.
C. In the event of failure to cure Default, Solid Cactus has the right to cease any ongoing services, as well as relinquishing all rights conveyed to Client by Solid Cactus. In the event that the Total Due to Solid Cactus under the Order Form is to be paid in monthly installments, upon failure to cure Default, all monthly payments, regardless of due date, will become immediately due in full. In the event of failure to cure Default, Client will be obligated to return all Solid Cactus materials immediately to Solid Cactus.
4. REPRESENTATIONS & WARRANTIES
A. Representations and Warranties of Solid Cactus. Solid Cactus warrants and represents to the Client as follows:
i. Solid Cactus is a duly organized and validly existing corporation, in good standing under the laws of the Commonwealth of Pennsylvania, and has the requisite power and authority to provide the Service.
B. Representations and Warranties of Client. Client acknowledges, warrants, and represents to Solid Cactus as follows:
i. To Client’s knowledge, there is no action, proceeding, or investigation pending or threatened which questions, directly or indirectly, the validity or enforceability of the Terms and Conditions.
ii. The consummation by Client of the transactions contemplated in the Order Form will not (i) conflict with, or result in a breach of, the terms, conditions or provisions of, or constitute a default, or result in a termination of, any agreement or instrument to which the Client is a party, (ii) violate any restriction to which Client is subject, or (iii) constitute a violation of any Applicable Laws.
iii. Client has taken all actions required by Applicable Law, and have obtained all consents which are necessary to authorize or enable them to consummate the transactions contemplated in the Terms and Conditions. The individual(s) executing the Terms and Conditions on behalf of Client has been duly authorized and are empowered to bind Client to the Terms and Conditions.
iv. Client acknowledges and agrees that Client is to obey all Copyright and other applicable laws. Solid Cactus will not be responsible if Client provides or uses another party’s protected material in violation of Copyright or other applicable laws.
5. TERM AND TERMINATION
A. Unless stipulated otherwise in the Order Form, the Terms and Conditions are effective from the date of the submission of the Order Form and shall be in effect until the Service and/or project is completed and Client has paid in full in accordance with the Order Form.
B. Unless stipulated otherwise in the Order Form, Solid Cactus may terminate the Services at any time upon adequate notice. Absent willful misconduct or gross negligence, thirty (30) days notice shall be deemed adequate. Payment in full for all services performed prior to termination will be required within thirty (30) days of termination.
C. If the Order Form stipulates a total amount to be paid to Solid Cactus by Client pursuant to the completion of a particular project or upon the providing of particular services and Client terminates the Service before all specified work is completed and/or all services are provided, Client will not be entitled to a refund of any funds submitted to Solid Cactus for such projects or services. However, at the discretion of Solid Cactus Client may be entitled to a credit towards additional Solid Cactus services.
D. Upon termination of the Service, all Client data, Client confidential information, and other Client information within possession of Solid Cactus will belong to Client and will be returned within a reasonable period of time in a manner agreed upon by the parties.
E. Upon the termination of the Service, all Solid Cactus data, Solid Cactus confidential information, and other Solid Cactus information within possession of Client will belong to Solid Cactus and will be returned within a reasonable period of time in a manner agreed upon by the parties.
6. LICENSE; PROPRIETARY RESTRICTIONS.
A. Upon completion of the Service and payment in full of the Total Due stipulated in the Order Form, Client shall be considered the owner of all intellectual property rights, including but not limited to federal copyrights, in the design of the final published WebStore, including but not limited to, the text, artwork, graphics, pictures, photos, images and other such materials, but excluding any and all stock photography provided to Client by Solid Cactus and used in the development and design of the Website (the "Stock Photography").
B. Provided Client is not in default of the Terms and Conditions, Client is also granted and accepts a license for the use of the Stock Photography. All licenses referenced in this Section are to be nonexclusive, nontransferable, and nonsublicensable and Client may not alter, modify, distribute, resell or otherwise provide the Stock Photography to any other person or entity.
C. The parties acknowledge and agree that the rights conveyed in this Section do not apply to rights or property belonging to and/or owned by Amazon, and that Solid Cactus does not have the authority to convey any such rights or property to Client.
7. INTELLECTUAL PROPERTY
A. Solid Cactus will not acquire any rights to Client’s goodwill, trademark, copyright or other property of Client. All Client data and Client lists, trade secrets and Client customer lists, shall be the sole possession of Client and Solid Cactus shall have no right to them.
B. Client will not acquire any rights to Solid Cactus’ goodwill, trademark, copyright or other property of Solid Cactus. All Solid Cactus data and Solid Cactus lists, trade secrets and Solid Cactus customer lists, shall be the sole possession of Solid Cactus and Client shall have no right to them.
8. CONFIDENTIALITY
A. Each party will protect the confidential information of the other party which shall include but not be limited to any and all information produced by any party for the purposes of providing the Service, from misappropriation and unauthorized use or disclosure, and at a minimum, will take precautions at least as great as those taken to protect its own confidential information of a similar nature.
B. Without limiting the foregoing, the receiving party will: (a) use such confidential information solely for the purposes for which it has been disclosed; and (b) disclose such confidential information only to those of its employees, agents, consultants and others who have a need to know the same for the purpose of performing or receiving the Service and who are informed of and agree to a duty of nondisclosure.
C. The receiving party may also disclose confidential information of the disclosing party to the extent necessary to comply with applicable law or legal process; provided that the receiving party uses reasonable efforts to give the disclosing party prompt, advance notice thereof and provides reasonable cooperation to the disclosing party to minimize the extent or scope of any such disclosure.
D. Upon request of the other party, or in any event upon any termination of the Service, each party will return to the other all materials, in any medium, that contain, embody, reflect or reference all or any part of any confidential information of the other party.
9. FORCE MAJEURE. Neither party is responsible for any failure to perform its obligation under the Terms and Conditions if such failure is caused by acts of God, war, strikes, revolutions, lack or failure of transportation facilities, laws or governmental regulations or other causes that are beyond the reasonable control of such party. The forgoing does not excuse nonpayment. The party facing an event of force majeure will use commercially reasonable efforts to remedy a failure caused by such event. If such event makes it commercially unreasonable for Solid Cactus to continue to provide the Service, Solid Cactus may terminate the Service upon written notice to Client.
10. INDEMNIFICATION
A. Client hereby agrees to indemnify, defend, and hold harmless Solid Cactus against, and agrees to pay and hold harmless Solid Cactus for all liabilities, obligations, losses, damages, penalties, claims, actions, suits, judgments, settlements, out-of-pocket costs, expenses and disbursements (including reasonable costs of investigation, and reasonable attorneys, accountants and expert witness fees), of whatsoever kind and nature that are imposed on or incurred by Solid Cactus as a consequence of or in connection with (i) any material misrepresentation by Client, (ii) any breach by Client of a warranty or covenant contained herein, or (iii) any failure by Client to perform in accordance with the Terms and Conditions.
B. Solid Cactus agrees to (i) notify Client in writing promptly after Solid Cactus becomes aware of such claim, (ii) give Client sole control of the settlement, compromise, negotiation, and defense of any such action (provided that Client may not agree to any settlement that involves injunctive or equitable relief affecting Solid Cactus or admission of liability by Solid Cactus without obtaining Solid Cactus’s prior consent), and (iii) cooperate reasonably and in good faith in the defense of any such legal action. In connection with any such third party claim, Solid Cactus may, at its election and expense, have the right to participate in the defense of such third party claim.
11. EXCLUSIONS; LIMITATIONS ON LIABILITY
A. SOLID CACTUS WILL NOT BE RESPONSIBLE FOR REASONABLE DELAYS THAT MAY OCCUR WHILE PROVIDING THE SERVICE.
B. NO REPRESENTATION OR WARRANTY MADE UNDER THE TERMS AND CONDITIONS APPLIES TO THE EFFECT OF ANY CONDITION OUTSIDE THE REASONABLE CONTROL OF SOLID CACTUS, INCLUDING WITHOUT LIMITATION ANY (I) FAILURE IN TELECOMMUNICATIONS, (II) FAILURE BY CLIENT TO COMPLY WITH THE TERMS AND CONDITIONS, OR (III) CONDITION IN, OR COMBINATION OF ANY SERVICE, SOFTWARE, HARDWARE, SYSTEM, EQUIPMENT, PROCESS, METHOD, DATA OR INFORMATION USED OR PROVIDED BY SOLID CACTUS OR ANY THIRD PARTY.
C. EXCEPT AS SET FORTH IN SECTION 4, CLIENT HAS NOT AND DOES NOT RECEIVE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, OR ARISING FROM COURSE OF DEALING OR PERFORMANCE, REGARDING THE SUBJECT MATTER OF THE TERMS AND CONDITIONS, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ACCURACY OF SERVICE OR DATA, ERROR-FREE PERFORMANCE OF SERVICE OR DATA, NONINFRINGEMENT OR NONINTERFERENCE WITH DATA. CLIENT’S SOLE REMEDY FOR BREACH OF ANY REPRESENTATION OR WARRANTY IS TO TERMINATE THE SERVICE.
D. UNDER NO CIRCUMSTANCES MAY CLIENT RECOVER DAMAGES UNDER RELATED TO THE SERVICE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR SIMILAR DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE, PROFITS OR BUSINESS, COSTS OF DELAY, LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES, ARISING FROM ANY SOURCE, EVEN IF THE LIABLE PARTY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CLIENT’S TOTAL CUMULATIVE RECOVERY OF DAMAGES MAY NOT EXCEED THE FEES PAID BY CLIENT UNDER IN RELATION TO THE TERMS AND CONDITIONS DURING THE 6-MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
1. NOTICE. All notices herein must be in writing and must be given by first class mail, certified or registered with return receipt requested, or by Federal Express or such other nationally-recognized overnight courier, provided that the recipient is required to sign for such notice, and will be deemed to have been duly given upon receipt. All such notices will be sent to Client at the address as listed on the Order Form and Client may change its address by notice duly given pursuant to this Section. Solid Cactus’ then current address will be listed on their website at http://www.solidcactus.com.
2. ENTIRE AGREEMENT. Except as otherwise provided herein, the Terms and Conditions and the Order Form represent the entire understanding among the parties with respect to the Service, and as such they supersede any and all prior understandings, agreements, or obligations. Each party acknowledges and agrees that the other has not made any representations, warranties or agreements of any kind, except as expressly set forth herein.
3. HEADINGS AND INTERPRETATION. The Section headings herein are intended for reference and may not by themselves determine the construction or interpretation of the language herein. They are for convenience only and are not intended to expand or restrict the scope or substance of the provisions of the Terms and Conditions.
4. WAIVER AND SEPARABILITY. The waiver of any breach of any provision of the Terms and Conditions will not operate or be construed as a waiver of any subsequent breach of the same or other provision of the Terms and Conditions. If any portion of the Terms and Conditions is determined to be invalid or unenforceable, that portion of the Terms and Conditions will be adjusted, rather than voided, to achieve the intent of the parties under the Terms and Conditions. The invalidity or
unenforceability of any provision of the Terms and Conditions shall not affect the validity or enforceability of any other provision of the Terms and Conditions, which shall remain in full force and effect.
1. MODIFICATION AND ASSIGNMENT. The Terms and Conditions may not be amended or modified except by an instrument signed in writing on behalf of each of the parties hereto. Neither party shall have the right to assign their respective rights and obligations arising under the Terms and Conditions without the consent of the other party. Any attempt by a party to assign their respective rights and obligations arising under the Terms and Conditions, without the consent of the other party shall be null and void.
2. NON-SOLICITATION. Client agrees that it will not solicit the engagement and/or employment of the services of any of the employees of Solid Cactus (either directly or through agents), without written permission of Solid Cactus, during the term of the Terms and Conditions and any extension thereof and continuing for a period of one (1) year following its expiration or termination.
3. SURVIVAL OF OBLIGATIONS. The Terms and Conditions will be binding on, and inure to the benefit of, the executors, administrators, heirs, successors, and assigns of the parties.
4. GOVERNING LAW AND VENUE. The Terms and Conditions and any disputes relating hereto shall be governed by and construed in all respects, including validity, interpretation, and effect, in accordance with the laws of the Commonwealth of Pennsylvania, without reference to its choice of law principles.. All disputes under the Terms and Conditions may be heard only in the courts of the Commonwealth of Pennsylvania located in Luzerne County or the United States District Court for the Middle District of Pennsylvania. All parties acknowledge and agree to submit to personal jurisdiction and venue in the courts stipulated herein.
5. CLIENT ACKNOWLEDGES THAT THEY HAVE READ THE TERMS AND CONDITIONS, UNDERSTAND THEM, AND AGREE TO BE BOUND BY THEM.
