LIQUIDATE DIRECT LLC DBA SOLID COMMERCE
TERMS OF SERVICE FOR SOLID COMMERCE PRODUCTS AND SERVICES
PLEASE READ CAREFULLY: THESE TERMS OF SERVICE CONSTITUTE A LEGAL AND BINDING AGREEMENT BETWEEN YOU AND SOLID COMMERCE
THIS AGREEMENT, UPON ACCEPTANCE BY THE END USER, WHICH ACCEPTANCE SHALL BE INDICATED BY USING THE PRODUCTS AND SERVICES IN ANY MANNER, FORMS A LEGALLY BINDING AGREEMENT BETWEEN THE END USER AND LIQUIDATE DIRECT LLC DOING BUSINESS AS SOLID COMMERCE THAT GOVERNS THE PROVISIONS OF THE PRODUCTS AND SERVICES.
THIS AGREEMENT SHALL TAKE PRECEDENCE OVER ANY TERMS AND CONDITIONS SOUGHT TO BE RELIED UPON BY THE END USER IN RESPECT OF THE PRODUCTS AND SERVICES. NOTWITHSTANDING ANY LANGUAGE ON ANY CORRESPONDENCE RECEIVED FROM THE END USER TO THE CONTRARY, THIS AGREEMENT SHALL TAKE PRECEDENCE OVER ANY SUCH CORRESPONDENCE. SUCH CORRESPONDENCE SHALL BE ACCEPTED BY SOLID COMMERCE FOR ADMINISTRATIVE PURPOSES ONLY AND SHALL NOT MODIFY OR AMEND THIS AGREEMENT. ALL TERMS AND CONDITIONS ON ANY CORRESPONDENCE ORIGINATING FROM THE END USER SHALL BE NULL, VOID AND WITHOUT LEGAL EFFECT.
In this Agreement the following definitions shall apply.
Affiliate means any other person or entity which directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, a party.
Agreement means these terms and conditions, and any Solid Commerce policies referred to in these terms and conditions and which shall be deemed to be included in this Agreement by reference.
End User means you, the user of the Products and Services.
End User Data means all information and data inputted to and/or stored by the End User on the Products and Service.
End User Documentation means the manuals, instructions, guides, tutorials, or other analogous documents regardless of format provided or made available to the End User by Solid Commerce from time to time regarding the Products and Services.
Hardware means any hardware, tools, equipment and other tangible property (including laptop and, desktop computers, mobile telephony, personal digital assistance devices and data network components) and physical IT infrastructure owned or leased by the End User and used in connection with the Products and Services.
IPR means intellectual property rights to include all (i) patents, designs, trade-marks and trade names (whether registered or unregistered), copyright and related rights, moral rights, database rights, know-how and confidential information; (ii) all other intellectual property rights and similar or equivalent rights anywhere in the world which currently exist or are recognized in the future; and (iii) applications, extensions and renewals in relation to any such rights.
Order Form means the order form signed by End User which details, among other things, the pricing for the Products and Services.
Products and Service shall mean the provision of any of the products or services offer by Solid Commerce to the End User, including the Solid Commerce proprietary web-based Software and any associated services including SolidShip™ and related add-ons and the ongoing customer service to the End User for the duration of the Subscription Period.
Price Plan means the schedule of charges detailing the cost of the provision of the Products and Services described in this Agreement to the End User, and as detailed in the Order Form.
Solid Commerce means Liquidate Direct LLC, d/b/a Solid Commerce, a limited liability company with its principal place of business at 12021 Wilshire Blvd. 530 Los Angeles, CA 90025.
Subscription Charges means the charges payable by and End User for access to and use of the Products and Services as set out and described in the Order Form.
Subscription Period means the period during which Solid Commerce shall provide the Products and Service and the End User permitted to access and use the Products and Services.
2. GRANT OF LICENSE TO END USER
2.1. General. License grants are subject to the End User’s obligation to pay and continue paying the Subscription Charges and the End User’s compliance with this Agreement, the Order Form, and any additional products or services use terms associated with this Agreement. The license granted hereunder is non-exclusive, non-perpetual (unless specifically allowed by Solid Commerce in writing), and is not transferable (unless specifically allowed). The ability to use licensed software may be affected by minimum system requirements or other factors. Solid Commerce reserves all rights not expressly granted (and no other rights will arise by implication, estoppel, exhaustion, or otherwise).
2.2. Licensed software. In consideration of the Subscription Charges Solid Commerce grants the End User license for the Solid Commerce proprietary web-hosted software that the End User ordered from Solid Commerce.
2.2.1. Duration of License. Unless the End User obtains perpetual licenses under an available buy-out option from Solid Commerce, licensed software obtained under this Agreement lasts only for the term of this Agreement.
2.2.2. License confirmation. All of the following, when taken together, are proof of the End User’s license: (a) this Agreement, (b) the Order Form confirmation, and (c) proof of payment.
2.2.3. Transferring licenses to Affiliates or third parties. The End User may not transfer licenses for licensed software under this Agreement without Solid Commerce explicit written and executed prior written consent. Any attempted transfer not made in compliance with this section will be void. No license transfer will be valid unless the End User provides this Agreement to the party who is receiving the licenses and that party accepts it in writing. A transfer of licenses will not relieve the assigning party of its obligations under this Agreement. The resale of licenses, and any other transfer not expressly permitted by this section, is expressly prohibited.
2.2.4. Limitations on use. Licensed software is licensed to the End User, not sold. The End User has no right to:
(a) reverse engineer, decompile, or disassemble any licensed software, except where applicable law permits it despite this limitation;
(b) rent, lease, lend, resell, or host to or for third parties any licensed software, except as may be expressly permitted for a given licensed software in the product use terms;
(c) separate and use the components of licensed software on two or more computers, upgrade or downgrade components at different times, or transfer components separately, except as may be expressly permitted in the product use terms; or
(d) modify or create derivative works of the licensed software.
2.3. Universal Terms.
2.3.1. End User Use Rights. If the End User complies with this Agreement, the End User may use the software and Products and Service only as expressly permitted by this Agreement.
2.3.2. Third Party Programs. If other terms come with a program or software licensed by a third party, those terms apply to the End User’s use of it.
2.3.3. Updates and Supplements. Solid Commerce may update or supplement the software which the End User licenses. If so, the End User may use that update or supplement with the software. If other terms come with an update or supplement, those terms apply to the End User’s use of it.
2.3.4. Technical Limitations. The End User must comply with any technical limitations in the Products and Services that only allow the End User to use them in certain ways. The End User may not work around them.
2.3.5. Other Rights. Rights to access the software on any device do not give the End User any right to implement Solid Commerce patents or other Solid Commerce IPR in software or devices that access that device.
2.3.6. Additional Functionality. Solid Commerce may provide additional functionality for the Products and Services. Other license terms and fees may apply.
2.3.7. Internet Based Services.
18.104.22.168 Prohibited Use. The Products and Services are provided by Solid Commerce as Internet based services. The End User may not use these Internet based services in any way that could harm them or impair anyone else’s use of them. The End User may not use the Products and Services to try to gain unauthorized access to any service, data, account or network by any means. End User must have or must obtain access to the Internet and must also provide all equipment necessary to make such (and maintain such) connection to the Internet. T-1, T-3, DSL, cable, or other high speed Internet connection is required for property performance of the Products and Services.
22.214.171.124. Computer Information. These features use Internet protocols, which send to the appropriate systems computer information, such as the End User’s Internet protocol address, the type of operating system, browser and name and version of the software the End User is using, and the language code of the device where the End User installed the software. Solid Commerce uses this information only to make the Internet based services available to the End User.
126.96.36.199. Use of Information. Solid Commerce may use the computer information, error reports, malware reports and URL filtering reports to improve its software and Products and Services. Solid Commerce may also share it with others, such as hardware and software vendors. Both may use the information to improve how their products and services run with Solid Commerce software and Products and Services.
188.8.131.52 Storage Limits. Solid Commerce limits the amount of free of charge database, image, and bandwith storage and may offer additional storage for fee. See further details at http://solidcommerce.com/pricing/. Solid Commerce reserves the right to amend the storage amount and fee at any time at its sole discretion.
2.3.8. Documentation. Any person that has valid access to the End User’s computer or internal network may copy and use the documentation corresponding to licensed software for the End User’s internal reference purposes.
2.3.9 External Users. End User may not grant access to the Products and Services to any External Users. External users” means users that are not either (i) the End User or the End User’s affiliates’ employees, or (ii) the End User or the End User’s affiliates’ onsite contractors or agents.
2.3.10 Subscription Validation. Solid Commerce may automatically check the version of any version of software installed by the End User users on any device. Devices on which the software is installed may periodically provide information to verify that the software is properly licensed and that the term has not expired. This information includes the software version, product ID information, a machine ID, and the internet protocol address of the device. If the software is not properly licensed, its functionality will be affected. The End User may only obtain updates or upgrades for the software from Solid Commerce. By using the software, the End User consents to the transmission of the information described in this section.
2.3.11 Media Elements and Templates. Media images, clip art, animations, sounds, music, video clips, templates and other forms of content are “media elements”. The End User may have access to media elements provided with the software or as part of a related service. The End User may copy and use those media elements in projects and documents. The End User may not:
- sell, license or distribute copies of the media elements by themselves or as a product;
- grant the End User’s customers rights to further license or distribute the media elements;
- license or distribute for commercial purposes media elements that include the representation of identifiable individuals, governments, logos, trademarks, or emblems or use these types of images in ways that could imply an endorsement or association with the End User’s product, entity or activity; or
- create obscene or scandalous works using the media elements.
2.4. Additional Terms.
2.4.1. License Terms Updates. Solid Commerce may update the license terms in this Agreement from time to time. Changes to these license terms that Solid Commerce either introduce with updates or supplements or are required by law to make, or that do not materially affect the End User’s use of the Products and Services will apply immediately. Solid Commerce will endeavor to notify the End User of updates at least 30 days before they are generally effective. The End User agrees to the new terms by using the Products and Services after Solid Commerce publishes them or sends the End User an email notice about the updates.
2.4.2. Online Service Updates. Solid Commerce may modify the functionality or features or release a new version of the Products and Services and software from time to time. After an update, some previously available functionality or features may change or no longer be available. If Solid Commerce updates the Products and Services or software and the End User does not use the updated Products and Services or software, some features may not be available to the End User and the End User’s use of the Products and Services and software may be interrupted.
2.4.3. Online Service Suspension. Solid Commerce may suspend the Products and Services in accordance with the provisions of Clause 9. Any suspension of services shall apply to the minimum necessary portion of the Products and Services and only be in effect for as long as reasonably necessary to address the issues giving rise to the suspension.
2.5. Online Service Expiration or Termination. Upon expiration or termination of the End User Products and Services Subscription Period, the End User must contact Solid Commerce and tell Solid Commerce whether to:
- disable the End User account and then irretrievably delete and purge the End User Data; or
- retain the End User Data in a limited function account for at least 90 days after expiration or termination of the End User subscription so that the End User may extract the data.
If the End User indicates option (a), the End User will not be able to extract the End User Data from the End User account. If the End User indicates option (b), the End User will reimburse Solid Commerce for any applicable costs. If the End User does not indicate (a) or (b) Solid Commerce will retain the End User Data in accordance with (b).
Following the expiration of the retention period, Solid Commerce will disable the End User account and then irretrievably delete and purge the End User Data. Cached or back-up copies will be irretrievably purged and deleted within 30 days of the end of the retention period.
2.6. No Liability for Deletion of Customer Data. The End User agrees that, other than as described in these terms, Solid Commerce has no obligation to continue to hold, export or return the End User Data. The End User agrees that Solid Commerce has no liability whatsoever for deletion of the End User Data pursuant to these terms.
2.7. Responsibility for End User Accounts. The End User is responsible for the End User’s passwords and all activity with the End User’s online service accounts including that of users the End User provisions and dealings with third parties that take place through the End User’s account or associated accounts. The End User must keep End User accounts and passwords confidential. The End User must tell Solid Commerce immediately about any possible misuse of End User accounts or any security incident related to the Products and Services.
2.9. Third Party Software, Content and Services. Solid Commerce is not responsible for any third party software, content and services the End User accesses directly or indirectly via the Products or Services. The End User is responsible for the End User’s dealings with any third party (including advertisers) related to the Products and Services (including the delivery of and payment for goods and services). Solid Commerce is not responsible for notifying End User of any upgrades, fixes or enhancements to any such software; or for any compromise of data transmitted across computer networks or telecommunication facilities, including but not limited to, the Internet, which are not owned or operated by Solid Commerce.
2.10. End User’s Customer Data. The End User may be able to submit customer data for use in connection with the Products and Services. “Customer data” are all data, including all text, sound, or image files that are provided to Solid Commerce by, or on behalf of, the End User through the End User’s use of the Products and Services. When the End User submits customer data for use with any Products and Services that enables communication or collaboration with third parties, the End User acknowledges that those third parties may then be able to:
2.10.1. use, copy, distribute, display, publish, and modify the End User’s customer data;
2.10.2. publish the End User’s name in connection with the customer data; and
2.10.3. facilitate others’ ability to do the same.
2.11. Ownership of customer data. As between the parties, the End User retains all right, title and interest in and to customer data. Solid Commerce acquires no rights in customer data, other than the rights the End User grants to Solid Commerce in order for Solid Commerce to provide the applicable Products and Services.
2.12. Privacy. Personal data collected through the Products and Services may be transferred, stored and processed in the United States or any other country in which Solid Commerce or its service providers maintain facilities. This includes any personal data the End User collects using the Products and Services. By using the Products and Services, the End User consents to transfer of personal data outside of the End User country. The End User also agrees to obtain sufficient authorization from persons providing personal data to the End User, to:
2.12.1. transfer that data to Solid Commerce and its agents, and
2.12.2. permit its transfer, storage and processing.
2.13. Solid Commerce Use of Customer Data.
2.13.1. Both parties undertake to act in full compliance with the provisions of the all applicable laws and regulations regarding use and protection of customer data.
2.13.2. Solid Commerce may require the End User to provide it with the name of one or more individuals within the End User’s organization for contact purposes. Solid Commerce agrees that such information shall only be used for contact purposes and insofar as may be necessary for the provision of Products and Services under this commercial arrangement.
2.13.3 End User understands that the technical processing and transmission of End User’s electronic communications is fundamentally necessary to End User’s use of the Products and Services. End User consents to Solid Commerce’s interception and storage of electronic communications and/or customer data, and End User acknowledges and understands that End User’s electronic communication will involve transmission over the Internet, and over various networks, only part of which may be owed and/or operated by Solid Commerce. End User acknowledged and understands that changes to End User’s electronic communications may occur in order to conform and adapt such electronic communication to the technical requirements of connecting to the Products and Services.
2.14. Security of End User Data. Solid Commerce will implement reasonable and appropriate technical and organizational measures to help secure the End User Data processed or accessed by the Products and Services against accidental or unlawful loss, access, or disclosure. The End User agrees that these measures are Solid Commerce’s only responsibility with respect to the security and handling of End User Data. End User acknowledges and understands that electronic communications may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone, or other electronic means. Solid Commerce is not responsible for any electronic communications and/or customers data which are delayed, lost, altered, intercepted or stored without authorization during the transmission of any data whatsoever across networks not owned and/or operated by Solid Commerce, including, but not limited to, the Internet.
2.15. Scope of Use.
The End User may not:
2.15.1. use the Products and Services in a way that is prohibited by any law, regulation or governmental order or decree in any relevant jurisdiction, or that violates others’ legal rights including without limitation those related to privacy and electronic communications;
2.15.2. use the Products and Services in a way that could harm it or impair anyone else’s use of it;
2.15.3. use the Products and Services to try to gain unauthorized access to any service, data, account or network by any means;
2.15.4. falsify any protocol or email header information (e.g., “spoofing”);
2.15.5. use the Products and Services to send “spam” (i.e., unsolicited bulk or commercial messages) or otherwise make available any offering designed to violate these terms (e.g., denial of service attacks, etc.);
2.15.6. remove, modify, or tamper with any regulatory or legal notice or link that is incorporated into the Products and Services;
2.15.7 in any way express or imply that any opinions contained in End User’s electronic and non-electronic communications are endorsed by Solid Commerce; or
2.15.8 in any way use the Products and Services to target for solicitation any Solid Commerce customers for purposes of providing any competitive products.
End User shall ensure that any of the Products and Services by End User’s employees or authorized users, is in accordance with the terms and conditions of this Agreement.
2.16. Regulatory. Solid Commerce may modify or terminate the Products and Services in any country where there is any current or future government requirement or obligation that subjects Solid Commerce to any regulation or requirement not generally applicable to businesses operating there, presents a hardship for Solid Commerce to continue operating the Products and Services without modification, and/or causes Solid Commerce to believe these terms or the Products and Services may be in conflict with any such requirement or obligation.
2.17. Electronic Notices. Solid Commerce may provide the End User with information about the Products and Services in electronic form. It may be via email to the address the End User provides when the End User signs up for the Products and Services or through a web site that Solid Commerce identifies. Notice via email is given as of the transmission date. As long as the End User uses the Products and Services, the End User has the software and hardware needed to receive these notices. The End User may not use the Products and Services if the End User does not agree to receive these electronic notices.
3. OTHER GENERAL TERMS FOR THE ONLINE SERVICE
3.1. Subject to Clause 3.2, Solid Commerce shall in consideration of the payment of the Subscription Charges provide the Products and Services to the End User subject to the terms and conditions of this Agreement.
3.2. Solid Commerce shall not be liable for any loss, damage, liability, cost or expense incurred by the End User whether directly or indirectly in connection with End User Hardware.
3.3. It is hereby expressly agreed and acknowledged by Solid Commerce and the End User that:
3.3.1. SOLID COMMERCE MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THE DESIGN, COMPLIANCE WITH SPECIFICATIONS, ACCURACY OF DATA, QUALITY, OPERATION, THE MERCHANTABILITY OR FITNESS OF THE PRODUCTS AND SERVICES FOR A PARTICULAR PURPOSE, OR ISSUES REGARDING IPR INFRINGEMENT, TITLE AND THE LIKE;
3.3.2. the End User hereby waives to the maximum extent permitted by law any rights and remedies conferred upon the End User under any relevant legislation, and those rights now or hereafter conferred by statute or otherwise;
3.3.3. Solid Commerce shall not be deemed to have made, be bound by or liable for, any representation, warranty or promise made by any party other than Solid Commerce in respect of the Products and Services; and
3.3.4. Solid Commerce shall not be liable for any failure of the Products and Services or any delay in the availability thereof.
3.4. The End User shall be fully and solely responsible for satisfying itself that the Products and Services is fit for the End Users purposes and Solid Commerce does not provide any representations or warranties in this regard.
3.5. The End User acknowledges that Solid Commerce may at any time do any of the following:
3.5.1. Modify all or part of an existing Products and Services, including adding new features or functionality to, or removing existing features or functionality;
3.5.2. In the event of Solid Commerce issuing a new release of all or part of the Products and Services, migrate End Users to such new release at any time subject to the terms and conditions of this Agreement;
3.5.3. Release a new version of the Products and Services or part of it.
3.6. Each Subscription Period shall last for the End Users billing period and shall, subject to the termination rights set out in Clause 9, and be automatically renewed upon expiry, in accordance with Clause 8 (Auto-Renewal).
4.1. The Subscription Charges payable by the End User to Solid Commerce for the Products and Services described herein are as set out in End Users Order Form.
4.2. The End User acknowledges that the Subscription Charges may be amended by Solid Commerce by giving the End User not less than thirty (30) days notice.
5. BILLING ARRANGEMENTS
5.1. Solid Commerce shall charge End Users account monthly in arrears in respect of the Subscription Charges due for the relevant period.
5.2. Without prejudice to any other rights of Solid Commerce, in the event of the End User failing to pay any sums due pursuant to this Agreement on time or at all notwithstanding notification by Solid Commerce of the overdue debt to the End User, Solid Commerce shall be entitled to:
5.2.1. charge interest (both before and after any judgment) on amounts overdue from the End User from the due date until the payment is actually made at the rate of 10% per annum;
5.2.2. suspend the provision of the Products and Services, and/or disconnect the Products and Services until such time as all payments due including all interest accrued have been paid and satisfied in full;
5.2.3. terminate this Agreement forthwith.
6. END USER’S OBLIGATIONS
6.1. The End User undertakes and agrees with Solid Commerce that throughout the Subscription Period it will:
6.1.1. pay the Subscription Charges levied by Solid Commerce in accordance with this Agreement and the Order Form;
6.1.2. comply with all laws in relation to the use of the Products and Services; and
6.1.3. use the Products and Services, including the licensed software, in accordance with the terms of this Agreement and any End User Documentation or other instructions of Solid Commerce and not copy, reverse engineer or modify any Products and Services made available as part of any of the services in any way.
6.2. The End User warrants and represents that it has the necessary rights to all data, software programs and services that it uses in connection with its access to or use of the Products and Services, and that such activities do not infringe the intellectual property or other proprietary rights of any third party. The End User agrees to indemnify, defend, and hold Solid Commerce harmless from and against any and all claims, costs, expenses, damages, liabilities and legal fees that Solid Commerce may suffer or incur as a result of any dispute that may arise, in any way whatsoever, in connection with any breach of this clause.
6.3. The End User warrants and represents that it shall access and use the Products and Services:
6.3.1. without violating the rights of any third party or purporting to subject Solid Commerce to any obligations with any third party, and
6.3.2. solely in a manner that complies with all applicable laws and regulations.
7. SOLID COMMERCE’S OBLIGATIONS
7.1. Solid Commerce will provide the Products and Services in accordance with the terms and conditions of this Agreement and any relevant Statement of Work, if any.
7.2. Solid Commerce will provide the necessary log in details as are required to enable the End User to access and use the Products and Services.
7.3. Solid Commerce will provide customer support services to the End User in relation to all technical support queries up to a level at which the issue no longer rests with Solid Commerce, for the duration of the Subscription Period.
The End User acknowledges that its subscription to the Products and Services, subject to the rights of termination and suspension in this Agreement, will auto-renew at the end of each billing period. Such auto-renewal will take effect unless this Agreement is terminated in accordance with its terms and shall include all services to which the End User has subscribed in the relevant billing period immediately prior to the auto renewal.
9. TERMINATION AND SUSPENSION
9.1. The End User may terminate this Agreement by giving thirty (30) days prior written notice to Solid Commerce by contacting Solid Commerce customer care or by availing of any termination option offered in an on-line format. Such termination will take effect at the expiration of the thirty (30) days notice period.
9.2. On termination or suspension for any reason the provisions of Clause 2.5 shall apply.
9.3. The End User shall not be entitled to any refund of Subscription Charges for the unexpired remainder of the Subscription Period in any circumstances.
9.4. Solid Commerce may terminate this Agreement as follows:
9.4.1. with immediate effect in the event the End User fails to pay the Subscription Charges by the due date;
9.4.2. with immediate effect where there are reasonable grounds to believe that the End User is using the Products and Services described in this Agreement in a manner which is in breach of this Agreement or is illegal or that the End User is misusing those Products and Services in any way;
9.4.3. without any reason by providing not less than 30 days prior written notice to the End User;
9.4.4. in accordance with any other termination provisions set out in this Agreement.
9.5. Solid Commerce may suspend or restrict the provision of Products and Services under this Agreement in the event of:
9.5.1. the End User failing to pay the Subscription Charges by the due date and the provisions of Clause 10 shall apply;
9.5.2. an emergency or if there are reasonable grounds to believe there is a threat or risk to the security or integrity of the Products and Services;
9.5.3. breach of this Agreement by the End User;
9.5.4. in accordance with any other suspension provisions of this Agreement.
9.6. During a period of suspension the End User will have limited or no access to the Products and Services except for purposes of retrieving End User Data in accordance with the provisions of Clause 10. The End User acknowledges that Solid Commerce will not be liable in any manner whatsoever to the End User where Solid Commerce has suspended or terminated the End User’s access to and use of the Products and Services in accordance with the terms of this Agreement.
9.7. The End User shall be relieved of the obligation to pay the Subscription Charges due the suspension or termination of the provision of the Products and Services described in this Agreement.
9.8. Solid Commerce shall endeavor to provide advance notice to the End User of any suspension or termination of the Products and Services described in this Agreement but shall not be required to do so.
10. RETRIEVAL OF END USER DATA
On the termination, suspension or expiration of this Agreement for any reason the provisions of clause 2.5 shall apply. End User shall be fully and solely responsible for contacting Solid Commerce in the manner described in Clause 2.5. Solid Commerce shall not be liable to the End User for any cost, claim, loss, liability, expense or damage incurred directly or indirectly or any way whatsoever in the event the End User data is deleted owing to the failure of the End User to comply with Clause 2.5.
11. SERVICE LEVELS
11.1. Solid Commerce provides service levels for the Products and Services. Solid Commerce reserves the right to change service levels at any time provided that such changes shall not apply to:
11.1.1. existing End User orders for the duration of their applicable Subscription Period; and
11.1.2. to End User orders received by Solid Commerce within sixty (60) days of the service level change being effective. In the event Solid Commerce agrees to apply a credit (if any) in respect of its failure to meet a certain service level Solid Commerce shall credit the End User in the same amount of credit on its next invoice following such date.
12. INTELLECTUAL PROPERTY
12.1. The End User acknowledges that nothing in this Agreement, or elsewhere in this commercial arrangement, will be deemed to or require Solid Commerce to transfer, assign or license any IPR to the End User.
12.2. The End User will not be entitled to use in the course of trade or otherwise in relation to any goods or services of the End User any registered or unregistered trademark, logotype or abbreviation of the name of Solid Commerce or any part of Solid Commerce so that any person might reasonably import a connection between those goods or services and Solid Commerce or any part of Solid Commerce.
12.3. The provision of the Products and Services to the End User does not grant the End User any right, title, interest or license in or to any of Solid Commerce’s IPR.
SOLID COMMERCE SHALL NOT BE LIABLE FOR ANY INDIRECT, EXEMPLARY, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION LOST PROFITS, BUSINESS INTERRUPTION, LOST BUSINESS INFORMATION OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, EVEN IF SOLID COMMERCE KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY. SOLID COMMERCE’S CUMULATIVE LIABILITY TO CUSTOMER, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND SHALL NOT EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO SOLID COMMERCE FOR THE SERVICE DURING THE TWELVE (12) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM AROSE. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE DISCLAIMER OF WARRANTY AND THE LIMITATIONS OF LIABILITY SET FORTH IN THESE TERMS MAY NOT BE PERMITTED IN CERTAIN JURISDICTIONS. IN SUCH CASE, END USER’S AND SOLID COMMERCE’S LIABILITY SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW. The parties acknowledge that the limitations set forth in this Section are integral to the amount of fees charged in for access to the Products and Services and that, were Solid Commerce to assume any further liability other than as set forth herein, such fees would of necessity be set substantially higher.
14. MATTERS BEYOND THE PARTIES’ REASONABLE CONTROL
Neither party shall be deemed in default or liable to the other party for any matter whatsoever for any delays in performance or from failure to perform or comply with the this Agreement due to any cause beyond that party’s reasonable control including, without limitation, acts of God, acts of Government or other competent regulatory authority, telecommunications network operators, war or national emergency, riots, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes and other industrial disputes (in each case, whether or not relating to that party’s workforce).
15.1. End User shall not assign or transfer the benefit of this Agreement to any third party without the prior written consent of Solid Commerce, such consent not to be unreasonably withheld or delayed.
15.2. Solid Commerce may assign or transfer its obligations under this Agreement to any third party and may subcontract the performance of all or part of the same.
16. CONFIDENTIAL INFORMATION
For purposes of this Agreement, confidential information shall include the terms of the Agreement, customer data, and any information that is clearly identified in writing at the time of disclosure as confidential (“Confidential Information”). Each party shall: (a) keep confidential all Confidential Information disclosed to it by the other party or by a third-party; (b) not use the Confidential Information of the other party except to the extent necessary to perform its obligations or exercise rights under this Agreement; and (c) protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information) and to make Confidential Information available to authorized persons only on a “need to know” basis. Either party may disclose Confidential Information on a need-to-know basis to its employees or contractors who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services in connection with the performance of the Products and Services. Confidential Information shall not include information which: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the recipient, subsequent to disclosure by the disclosing party; or (4) the recipient becomes aware of from a third party not bound by non-disclosure obligations to the disclosing party and with the lawful right to disclose such information to the recipient. Notwithstanding the foregoing, this Section 16 will not prohibit the disclosure of Confidential Information to the extent that such disclosure is permitted by law or order of a court or other governmental authority or regulation. With respect to any information received by either party from the other as a result of any other relationship between the parties other than in the course of performance hereunder (e.g., business development, partnership, alliance, etc.), the parties will abide by the terms and conditions of any applicable Nondisclosure Agreement (or similar agreement) executed between the parties.
If any of the provisions of this Agreement is or becomes invalid, illegal or unenforceable, the validity or enforceability of the remaining provisions shall not in any way be affected or impaired. In any such circumstances the parties shall negotiate in good faith in order to agree the terms of a mutually satisfactory provision, achieving as nearly as possible the same commercial effect, to be substituted for the provision which is found to be invalid, illegal or unenforceable.
The failure or delay by either party to exercise or enforce any right, power or remedy under this commercial arrangement shall not be deemed to operate as a waiver of any such right, power or remedy; nor shall any single or partial exercise by any party operate so as to bar the exercise or enforcement thereof or of any right, power or remedy on any later occasion.
Solid Commerce reserves the right to amend this Agreement by notifying the End User of the proposed amendment not less than thirty (30) days prior to the date of implementation of any such proposed amendment via direct notification and/or via the Solid Commerce website http://solidcommerce.com.
20. GOVERNING LAW
The commercial arrangement, and any issues or disputes of whatever nature arising out of or in any way relating to them or this Agreement (whether such disputes are contractual or non-contractual in nature, such as claims in tort, for breach of statute or regulation, or otherwise) shall be governed by and construed in accordance with the Laws of the State of California and the parties submit to the exclusive jurisdiction of the courts of Los Angeles County.