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AGREEMENT
The ShopCPN.comsm
Store service ("CPN Store Creator" or the "Service"), owned and
operated by CPN, Inc. (CPN) is provided to you ("you" or "Merchant")
under the terms and conditions of this ShopCPN.comsm
Store Merchant Service Agreement and any amendments thereto and
any operating rules or policies (collectively, the "SMSA" or "Agreement").
CPN reserves the right, in its sole discretion, to change, modify,
add or remove all or part of the SMSA at any time. Merchant will
receive notice of such changes and/or modifications pursuant to
Section 14 regarding notices.
1.1 By accepting the
terms and conditions of the SMSA, Merchant (a) represents and warrants
that he or she is 18 years old or older; (b) agrees to provide true,
accurate, current and complete information about Merchant as prompted
by the Account Registration Form; and (c) agrees to maintain and
update this information to keep it true, accurate, current and complete.
If any information provided by Merchant is untrue, inaccurate, not
current or incomplete, CPN has the right to terminate Merchant�s
account and refuse any and all current or future use of the Service.
1.2 BY COMPLETING THE
ACCOUNT REGISTRATION PROCESS AND CLICKING THE "I ACCEPT" BUTTON,
YOU AGREE TO BE BOUND BY THE SMSA. Nothing in this agreement obligates
CPN or the Service to list, link to, accept or otherwise host any
online store anywhere on the CPN site. If these terms and conditions
or any future changes are unacceptable to you, you may cancel your
account pursuant to Section 7.1 regarding termination of service.
2.0 DESCRIPTION OF
CPN STORE SERVICE
CPN hosts interactive
online stores ("Store") on the World Wide Web and may provide Merchants
with, among other things, (i) access to its CPN Store Software ("Software")
to facilitate the creation and maintenance of Stores for the sale
of goods and services; (ii) the listing of such Stores in the CPN
Store Listings located at http://www.shopcpn.com;
and (iii) the listing of such goods and services in the CPN Shopping
Listings located at www.shopcpn.com ("Online Store Services").
3.0 MERCHANT'S OBLIGATIONS
3.1 Merchant acknowledges
and agrees that it shall be responsible for all goods and services
offered at Merchant�s Store, all materials used or displayed at
the Store, and all acts or omissions that occur at the Store or
in connection with Merchant's account or password. Certain Stores
may be subject to additional requirements.
3.1.1 Merchant agrees
to display in the Store Merchant's contact information, including
but not limited to Merchant's company name, address, telephone number,
fax number and e-mail address. Merchant also agrees to update such
information to keep it true, accurate, current and complete.
3.1.2 Merchant agrees
that any and all press releases and other public announcements related
to this Agreement and subsequent transactions between CPN and Merchant,
including the method and timing of such announcements, must be approved
in advance by CPN in writing. CPN reserves the right to withhold
approval of any public announcement in its sole discretion. Without
limitation, any breach of Merchant's obligation regarding public
announcements shall be a material breach of the SMSA.
3.1.3 Merchant represents
and warrants that it has full power and authority under all relevant
laws and regulations:
* to offer and sell
the goods and services offered at the Store, including but not limited
to holding all necessary licenses from all necessary jurisdictions
to engage in the advertising and sale of the goods or services offered
at the Store;
* to copy and display
the materials used or displayed at the Store; and,
* to provide for credit
card payment and delivery of goods or services as specified at the
Store.
3.1.4 Merchant represents
and warrants that it will not engage in any activities:
* that constitute or
encourage a violation of any applicable law or regulation, including
but not limited to the sale of illegal goods or the violation of
export control or obscenity laws;
* that defame, impersonate
or invade the privacy of any third party or entity;
* that infringe the
rights of any third party, including but not limited to the intellectual
property, business, contractual, or fiduciary rights of others;
and,
* that are in any way
connected with the transmission of "junk mail" "spam" or the unsolicited
mass distribution of e-mail, or with any unethical marketing practices.
3.2 CPN reserves the
right to refuse to host or continue to host any Store which it believes,
in its sole discretion: (1) offers for sale goods or services, or
uses or displays materials, that are illegal, obscene, vulgar, offensive,
dangerous, or are otherwise inappropriate; (2) has substantially
changed its Store from the time it was accepted; (3) has received
a significant number of complaints for failing to be reasonably
accessible to customers or timely fulfill customer orders; (4) has
become the subject of a government complaint or investigation; or
(5) has violated or threatens to violate the letter or spirit of
the SMSA.
4.0 PROPRIETARY RIGHTS
4.1 Software License.
CPN hereby grants Merchant a non-exclusive, non-transferable license
to use the Software in object code form only on a server controlled
by CPN for the sole purpose of creating and maintaining Stores on
such server. Merchant is not being granted any right to copy the
Software or to use it on computers other than a server controlled
by CPN. Merchant may not use Web pages or parts of Web pages generated
by means of the Software, other than content that originates from
and is proprietary to Merchant, on any server other than the servers
controlled by CPN without CPN�s express written agreement. Merchant
also acknowledges and agrees that the Software is intended for access
and use by means of web browsing software, and that CPN does not
commit to support any particular browsing platform. CPN reserves
the right at any time to revise and modify the Software, release
subsequent versions thereof and to alter features, specifications,
capabilities, functions, and other characteristics of the Software,
without notice to Merchant. If any revision or modification to the
Software materially changes Merchant�s ability to conduct business,
Merchant�s sole remedy is to terminate the SMSA pursuant to Section
7.1 regarding termination of service.
4.2 CPN Intellectual
Property. Merchant acknowledges and agrees that content available
from CPN or the Service, including but not limited to text, software,
music, sound, logos, trademarks, service marks, photographs, graphics,
or video, is protected by copyright, trademark, patent, or other
proprietary rights and laws, and may not be used in any manner other
than as specified in Section 4.1 above.
4.3 Merchant's Property.
Merchant agrees that by using the Service, Merchant grants CPN,
and its successors and assigns, a non-exclusive, worldwide, royalty-free,
perpetual, non-revocable license under Merchant�s copyrights and
other intellectual property rights, if any, in all material and
content displayed in Merchant's Store to use, distribute, display,
reproduce, and create derivative works from such material in any
and all media and display in any manner and on any CPN property
the results of search queries and comparisons conducted on CPN,
including, without limitation, searches conducted on CPN Shopping
and the Service. Merchant also grants CPN the right to maintain
such content on CPN's servers during the term of the SMSA and to
authorize the downloading and printing of such material, or any
portion thereof, by endusers for their personal use.
4.4 Unauthorized Access.
Merchant shall not attempt to gain unauthorized access to any servers
controlled by CPN.
5.0 FEES
5.1 Merchant shall
pay CPN a monthly fee as set forth in the CPN Store fee schedule
available at http://www.shopcpn.com/webpage/store/pricing.html and
made a part hereof. All such fees are payable in U.S. dollars to
CPN and shall be charged on the first day of each month to the credit
card number given to CPN at the time of registration or to such
other credit card number which Merchant shall so designate. CPN
may also, upon 30 days prior notice to Merchant, alter its fee schedules
and terms of the SMSA.
5.2 If Merchant elects,
subject to CPN�s approval, to participate in the promotional opportunities
available to Merchants via CPN Shopping, and the total sales of
Merchant goods and services attributable to Merchant�s participation
in such promotional opportunities exceeds five thousand dollars
($5000) in a given month, then Merchant shall pay to CPN two percent
(2%) of Revenue received by Merchant in that month. �Revenue� shall
mean the total net retail amount of sales attributable to Merchant�s
participation in such promotional opportunities that exceeds five
thousand dollars ($5000), excluding shipping, handling and taxes
(i.e., if twenty thousand dollars ($20,000) of sales were attributable
to Merchant�s participation in such promotional opportunities in
a given month, then the revenue share payment would be two (2%)
percent of fifteen thousand dollars ($15,000), excluding shipping,
handling and taxes on those goods and services that comprise the
fifteen thousand dollar ($15,000) amount). CPN shall calculate such
revenue share payments and, in its discretion, either (a) charge
such revenue share payments on the first day of each month to the
credit card number given to CPN at the time of registration or to
such other credit card number which Merchant shall so designate,
or (b) invoice such revenue share payments to be paid by Merchant
within thirty (30) days after the invoice date.
5.3 All fees are payable
in U.S. dollars. Late payments shall bear interest at the rate of
one percent (1%) per month (or the highest rate permitted by law,
if less). In the event of any failure by Merchant to make payment,
Merchant shall be responsible for all reasonable expenses (including
attorneys� fees) incurred by CPN in collecting such amounts.
6.0 TERMS
6.1 Term. The term
of the SMSA shall be 90 days commencing on the date that Merchant
opens an account for Merchant�s Store. The term shall automatically
renew for successive monthly periods at renewal rates applicable
at the time, unless notice of non-renewal is provided in accordance
with Section 6.2, below; provided, however, that to qualify for
each renewal Merchant must at the time of renewal be in substantial
compliance with the material terms and conditions of the SMSA. CPN
shall have the right, but not the obligation, to review any Store
for compliance with the SMSA as part of the renewal process, or
at any time.
6.2 Non-Renewal. Either
party, in its sole and absolute discretion, may give notice of nonrenewal
with or without cause and without stating any reason therefor. Any
notice of nonrenewal must be given at least thirty (30) days prior
to the end of the term then in effect and in the manner described
in Section 14 regarding notice.
7.0 TERMINATION
7.1 Termination. Either
party may terminate the SMSA on thirty (30) days notice if the other
party has materially breached or is otherwise not in compliance
with any provision of the SMSA, and such breach or noncompliance
is not cured within such thirty (30) day period. CPN reserves the
right to immediately suspend any customer access to the Store until
such breach or noncompliance is cured.
7.2 Termination for
Illegal or Other Activity. Notwithstanding the foregoing, CPN may,
but has no duty to, immediately terminate Merchant and remove it
from CPN servers if CPN in its sole discretion concludes that Merchant
is engaged in illegal activities or the sale of illegal or harmful
goods or services, or is engaged in activities or sales that may
damage the rights of CPN or others. Any termination under this Section
7.2 shall take effect immediately and Merchant expressly agrees
that it shall not have any opportunity to cure.
7.3 Waiver. Merchant
expressly waives any statutory or other legal protection in conflict
with the provisions of this Section 7.
7.4 Deletion of Information.
Upon termination, CPN reserves the right to delete from its servers
any and all information contained in Merchant�s account, including
but not limited to order processing information, mailing lists,
and any Web pages generated by the Software.
7.5 The provisions
of Section 4 (Proprietary Rights), Section 10 (Indemnity), and Section
11 (Disclaimer of Warranties and Liabilities) of this Agreement
shall survive any termination of the Agreement.
8.0 MERCHANT PRIVACY
8.1 Merchant Information.
CPN maintains information about Merchant and the Store on CPN servers,
including but not limited to Merchant�s account registration information,
Merchant's customer order information, sales information, and clickstream
data ("Merchant Information"). Merchant agrees that CPN may use
Merchant Information in aggregate form (i.e., Merchant Information
is not individually attributable to the Merchant) for marketing
or other promotional purposes.
8.1.1 Merchant agrees
that CPN may disclose Merchant Information in the good faith belief
that such action is reasonably necessary: (a) to comply with the
law; (b) to comply with legal process; (c) to enforce the SMSA;
(d) to respond to claims that the Merchant or Store is engaged in
activities that violate the rights of third parties; or (e) to protect
the rights or interests of CPN, CPN Store or others; provided, however,
that nothing in this section shall impose a duty on CPN to make
any such disclosures.
8.1.2 Merchant agrees
that CPN may delete customer credit card information from CPN servers
14 days after Merchant retrieves such information, and may delete
all other Merchant Information from CPN servers at the end of each
calendar year.
8.2 Password. Merchant
shall receive a password from CPN to provide access to and use of
the Software and Online Store Services. Merchant is entirely responsible
for any and all activities which occur under Merchant�s account
and password. Merchant agrees to keep its password confidential,
to allow no other person or company to use its account, and to notify
CPN promptly if Merchant has any reason to believe that the security
of its account has been compromised.
8.3 Technical Access.
Merchant acknowledges and agrees that technical processing of Merchant
Information is and may be required: (a) for the Service to function;
(b) to conform to the technical requirements of connecting networks;
(c) to conform to the technical requirements of the Service; or
(d) to conform to other, similar technical requirements. Merchant
also acknowledges and agrees that CPN may access Merchant's account
and its contents as necessary to identify or resolve technical problems
or respond to complaints about the Service.
8.4 If Merchant elects,
subject to CPN�s approval, to participate in the promotional opportunities
available to Merchants via ShopCPN, then Merchant agrees (a) to
post a privacy policy in its Merchant Store that, at a minimum,
discloses any and all uses of personal information collected from
users by Merchant, including but not limited to any uses of personal
information collected during a transaction that is canceled or otherwise
not completed by the user; (b) to provide a hypertext link to Merchant�s
privacy policy on the page of the Merchant Store on which Merchant
provides its contact information; and (c) to use personal information
only as expressly permitted by Merchant�s privacy policy. Merchant
agrees to begin complying with these privacy principles on or before
June 1, 2000.
9.0 MAINTENANCE AND
SUPPORT
9.1 Merchant can obtain
assistance with any technical difficulty that may arise in connection
with Merchant's utilization of the Software or Online Store Services
by requesting assistance by email to support@cyberworksmedia.com.
CPN reserves the right to establish limitations on the extent of
such support, and the hours at which it is available.
9.2 Merchant is responsible
for obtaining and maintaining all telephone, computer hardware and
other equipment needed for its access to and use of the Software
and Online Store Services and Merchant shall be responsible for
all charges related thereto.
10.0 INDEMNITY
Merchant agrees to
indemnify and hold harmless CPN, and its parents, subsidiaries,
affiliates, officers, directors, shareholders, employees and agents,
from any claim or demand, including reasonable attorneys fees, made
by any third party due to or arising out of Merchant�s conduct,
Merchant�s use of the Service, the goods or services offered at
Merchant�s Store, any alleged violation of the SMSA, or any alleged
violation of any rights of another, including but not limited to
Merchant�s use of any content, trademarks, service marks, trade
names, copyrighted or patented material, or other intellectual property
used in connection with Merchant�s Store. CPN reserves the right,
at its own expense, to assume the exclusive defense and control
of any matter otherwise subject to indemnification by Merchant,
but doing so shall not excuse Merchant�s indemnity obligations.
11.0 DISCLAIMER OF
WARRANTIES AND LIABILITIES
THE SERVICE AND SOFTWARE
ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES
OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED
TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE
OR NON-INFRINGEMENT. NEITHER THIS AGREEMENT OR ANY DOCUMENTATION
FURNISHED UNDER IT IS INTENDED TO EXPRESS OR IMPLY ANY WARRANTY
THAT THE ONLINE STORE SERVICES WILL BE UNINTERRUPTED, TIMELY OR
ERROR-FREE OR THAT THE SOFTWARE WILL PROVIDE UNINTERRUPTED, TIMELY
OR ERROR FREE SERVICE. THE SECURITY MECHANISM INCORPORATED IN THE
SOFTWARE HAS INHERENT LIMITATIONS AND MERCHANT MUST DETERMINE THAT
THE SOFTWARE ADEQUATELY MEETS ITS REQUIREMENTS. MERCHANT ACKNOWLEDGES
AND AGREES THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE
OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT ITS OWN DISCRETION
AND RISK AND THAT MERCHANT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES
TO ITS COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD
OF SUCH MATERIAL AND/OR DATA. CPN, AND ITS PARENTS, SUBSIDIARIES,
AFFILIATES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS,
SHALL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES OR LEGAL THEORIES WHATSOEVER,
FOR ANY LOSS OF BUSINESS, PROFITS OR GOODWILL, LOSS OF USE OR DATA,
INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL
OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER, EVEN IF CPN IS AWARE
OF THE RISK OF SUCH DAMAGES, THAT RESULT IN ANY WAY FROM MERCHANT�S
USE OR INABILITY TO USE THE ONLINE STORE SERVICES OR THE SOFTWARE,
OR THAT RESULT FROM ERRORS, DEFECTS, OMISSIONS, DELAYS IN OPERATION
OR TRANSMISSION, OR ANY OTHER FAILURE OF PERFORMANCE OF THE ONLINE
STORE SERVICES OR THE SOFTWARE. CPN�S LIABILITY TO MERCHANT SHALL
NOT, FOR ANY REASON, EXCEED THE AGGREGATE PAYMENTS ACTUALLY MADE
BY MERCHANT TO CPN OVER THE COURSE OF THE EXISTING TERM. SOME JURISDICTIONS
DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR LIABILITIES,
SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
12.0 NO RESALE OR ASSIGNMENT
OF SERVICE
Merchant agrees not
to resell or assign or otherwise transfer its rights or obligations
under the SMSA without the express written authorization of CPN.
13.0 FORCE MAJEURE
Neither party shall
be liable to the other for any delay or failure in performance under
the SMSA resulting directly or indirectly from acts of nature or
causes beyond its reasonable control.
14.0 NOTICES
Any notices or communications
under the SMSA shall be by electronic mail or in writing and shall
be deemed delivered upon receipt to the party to whom such communication
is directed, at the addresses specified below. If to CPN, such notices
shall be addressed to support@cyberworksmedia.com or Cyberworks
Media Group 4410 N. Ravenswood Ave. Chicago, IL, USA. If to Merchant,
such notices shall be addressed to the electronic or mailing address
specified when Merchant opens an account with CPN Store, or such
other address as either party may give the other by notice as provided
above.
15.0 ENTIRE AGREEMENT
The SMSA constitutes
the entire agreement between the parties with respect to the subject
matter hereof and supersedes all previous proposals, both oral and
written, negotiations, representations, writings and all other communications
between the parties.
16.0 GENERAL
The SMSA and the relationship
between Merchant and CPN shall be governed by the laws of the state
of California without regard to its conflict of law provisions.
Merchant and CPN agree to submit to the personal and exclusive jurisdiction
of the Superior Court of the State of California for the County
of Santa Clara or the United States District Court for the Northern
District of California. CPN�s failure to exercise or enforce any
right or provision of the SMSA shall not constitute a waiver of
such right or provision. If any provision of the SMSA is found by
a court of competent jurisdiction to be invalid, the parties nevertheless
agree that the court should endeavor to give effect to the parties
intentions as reflected in the provision, and agree that the other
provisions of the SMSA remain in full force and effect. Merchant
agrees that regardless of any statute or law to the contrary, any
claim or cause of action arising out of or related to use of the
Service or the SMSA must be filed within one (1) year after such
claim or cause of action arose, or be forever barred. The section
titles in the SMSA are for convenience only and have no legal or
contractual effect.
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