Multichannel Order Manager® Complete Commerce Option Non-Exclusive License Agreement
- Definitions (As used in this Agreement):
- “Product” refers collectively to the CDROM, other electronic media, the software Programs recorded on them, all the related documentation provided by Freestyle under the name Multichannel Order Manager®, and all updates subsequently provided by Freestyle in physical or electronic form.
- “Program” refers to the software programs recorded on the CDROM or other electronic media.
- “Freestyle” or ‘We’ refers to Freestyle Solutions Inc., a Delaware corporation located at 9 Campus Drive, Parsippany, NJ 07054, which is the publisher, copyright holder, and owner of all Multichannel Order Manager Programs.
- “Customer” refers to the original end user, either individual or company.
- “Computer” refers to the single computer or single network of computers on which this Program is used.
- “License” and/or “Agreement” for a non-exclusive license refers to this entire Agreement and the rights, obligations, and restrictions created hereunder by the United States Copyright Law, the New Jersey Law, and international treaty provisions.
- Copyright – Program(s) is owned and is the sole and exclusive property of Freestyle. Program and Product are protected by the United States Copyright Law, the laws in force in the State of New Jersey, and international treaty provisions. Therefore, you must treat the Program and Product like any other copyrighted materials except that you may (a) make one copy of the program solely for backup or archival purposes, and to label such copies with all information included on original disc labels (b) you may operate one copy of the Program onto one computer or one computer network in one location to use the program. No other types of copies are printed. You may not copy the written materials accompanying the Program.
- License and Usage – Freestyle grants to Customer the right to use one copy of the Program on a single hard disk on a single computer in one location or one copy of the Program on a single hard disk on one network of computers in one location if the Customer complies with all the terms of this License and pays all applicable purchase costs. If the Customer seeks to use more than one copy of the program simultaneously on more than one Computer or on more than one network of computers, Customer agrees to request from Freestyle and pay to license additional user copies. Freestyle reserves the right to terminate this License and all rights if Customer violates any provisions hereof.
- Freestyle assumes no liability for special, incidental, consequential, direct, indirect, or other similar damages resulting from loss of time, loss of data, loss of profits or revenue or savings or loss of the use of the Program arising out of the use, or inability to use the Program or Product, even if We or any reseller of the Product or Program was advised of the possibility of such damages. At no time, will Freestyle be liable for any money damages.
- Transfer and Reproduction – Customer agrees to take all reasonable steps and to exercise due diligence to protect the Program and Product from unauthorized reproduction, publication, disclosure, or distribution. Unauthorized transfer or reproduction of the Program or Product is an unlawful act that will subject Customer to civil and criminal prosecution. Customer may not transfer this License, the Program or this Product to any other person or company without the prior written consent of and under the conditions set forth by Freestyle. Freestyle reserves the right to revoke this License and all rights and/or to seek any and all legal remedies to which it is entitled should this License or any part thereof be violated.
- Customer agrees specifically that Program and Product may not be reverse engineered or decompiled for any reason. Customer may not use, modify, alter, merge, copy, rent, transfer, lease, lend, sub lease or sub license, time share, contribute, distribute, or offer for sale, the Program or Product or any copy, modification or merged portion thereof, in whole or in part, or to knowingly allow others to do so except as expressly provided for in this License. Customer may not remove or obscure Freestyle Copyright or Trademark notices.
- Good Faith and Honesty – Customer agrees that in all contacts and communications with Freestyle to act in good faith and not to misrepresent any matters of fact.
- Limited Warranty and Returns – Product Warranty: Freestyle warrants that the original copy of the Program will perform substantially in accordance with the accompanying written Product and materials and warrants the Software media enclosed to be free of defects in material and workmanship for a period of thirty (30) days from the purchase date.
- Replacement Policy: If the diskettes or documentation have defects in materials or workmanship, Freestyle will replace any such defective diskettes and documentation if they are returned to us within thirty (30) days from the purchase date.
- Return Policy: All Sales are final for Programs.
- Access to Programs under the Complete Commerce subscription based model is contingent upon a current valid contract and timely receipt of monthly license payments. If customer elects to discontinue service and monthly license payments, then access to the Programs will be discontinued along with the agreement.
- Support – Support will be rendered by Freestyle to Customer only under Freestyle’s conditions and at Freestyle’s discretion. Freestyle reserves the right to terminate support to any Customer who violates this License Agreement or to any Customer acting in a manner unacceptable to Freestyle. Freestyle assumes no liability for special, incidental, consequential, direct, indirect, or other similar damages resulting from loss of time, loss of data, loss of profits or revenue or savings or loss of use of the program arising out of the use, or inability to use the Program or Product a result of support rendered to Customer. In no event, will Freestyle be liable for any money damages.
- Except for the express warranties set forth above, Freestyle disclaims all other warranties and makes no warranties, either expressed or implied, particularly no implied warranties of merchantability or of fitness for a particular purpose. Some states or jurisdictions do not allow the exclusion of implied warranties, so the above exclusions may not apply to you. This warranty gives you specific legal rights and you may have other legal rights that vary from state to state or by jurisdiction.
- Governing Law – This License Agreement is governed by the laws in force in the State of New Jersey (excluding the application of its conflicts of laws rules) and by the United States Copyright Law. This License Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If any part of this License Agreement violates applicable law, that part shall be deemed to be amended to the extent necessary to comply with such law. The validity of the remaining terms shall not be affected.
SiteLINK® Software License and Online Store Service Agreement
By publishing your SiteLINK® site, you (“Licensee”) acknowledge your acceptance of the terms and conditions of the following Agreement.
This Agreement is between Freestyle Solutions Inc., a Delaware corporation with offices at 9 Campus Drive, Parsippany, NJ 07054 and the Licensee accepting the terms of this Agreement.
WHEREAS, Freestyle hosts interactive online stores (“Stores”) on the World Wide Web and provides merchants with access to its SiteLINK® Store Software (“Software”) which facilitates the creation and maintenance of Stores (such services being referred to herein as “Online Store Services”) for the sales of goods and services;
WHEREAS, Licensee sells goods and/or services and wishes to obtain Online Store Services from Freestyle; NOW, THEREFORE, in consideration of the mutual promises set forth herein, the parties hereto agree as follows:
- Online Store Services. Freestyle shall host Licensee’s Store(s) on a server controlled by Freestyle. Licensee shall be responsible for the creation and maintenance of all content at the Store. Licensee represents that it has full power and authority (a) to offer and sell the merchandise, information and services offered at the Store, (b) to copy and display the materials displayed at the Store and (c) to provide for credit card payment for merchandise information or services as specified at the Store. Licensee also represents that such offer and sale, display of materials or provision for credit card payment, does not constitute a violation of any applicable law, including without limitation export control and obscenity laws. Licensee further represents that the content of its Store, and any domain name used in connection with the Store, do not infringe the rights of any other person, including without limitation trademark, copyright and trade secret rights. Licensee may not use pages or parts of pages generated by means of the Software on any server other than the servers controlled by Freestyle without Freestyle’s express written agreement. Licensee shall not attempt to gain unauthorized access to any servers controlled by Freestyle.
- Software License. Freestyle hereby grants Licensee a non-exclusive, non-transferable license to use the Software in object code form only on a server controlled by Freestyle for the sole purpose of creating and maintaining Stores on such server as part of the Multichannel Order Manager ® Complete Commerce option. Licensee is not being granted any right to copy the software or to use it on computers other than a server controlled by Freestyle. Licensee acknowledges that the Software is intended for access and use by means of web browsing software, and that Freestyle does not commit to support any particular browsing platform. Freestyle 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, all without notice to Licensee.
- Term of Agreement. This Agreement shall become effective upon the payment of all fees by Licensee to Freestyle for commencement of service in accordance with the Freestyle schedule of fees. This Agreement shall continue on a month to month basis as long as the fees for the monthly cycle are paid by Licensee in a timely manner. This Agreement may be terminated at the end of any monthly cycle period by giving written notice to the other party at least thirty (30) days prior to the end of the monthly cycle period.
This Agreement may be terminated by Freestyle immediately upon electronic or written notice to Licensee in respect of any Store as to which it shall be determined by Freestyle in its sole discretion that (a) the merchandise, information or services offered by such Store constitute a possible detriment to the reputation of Freestyle, (b) such Store does not fill orders promptly or handle customers courteously and responsively, or (c) such Store engages in unethical marketing practices, such as spamming or (d) non-payment of a monthly cycle period fee. In addition to the termination rights provided in the previous sentence, either party shall have the right to terminate this Agreement in the event the other party commits any other breach of this Agreement and fails to cure such breach within 10 days of the receipt of notice of such breach. The provisions of Section 6 (Proprietary Rights etc.) and Section 8 (Indemnification) of this agreement shall survive any termination of the Agreement.
- Password. Licensee shall receive a login from Freestyle to provide access to and use of the Software. Licensee agrees to keep its login confidential, to allow no other person or company to use its account, and to notify Freestyle promptly if Licensee has any reason to believe that the security of its account has been compromised.
- Fees. Licensee shall pay Freestyle the monthly cycle fee. All such fees are payable in U.S. dollars to Freestyle and shall be charged on the same date of each month so as to correspond with the date of the month this agreement became effective; such fees shall be charged to the credit card number given to Freestyle at the time of registration or to such other credit card number which Licensee shall so designate as set forth in the schedule of fees separately provided by Freestyle. Freestyle may also, upon 30 days’ prior notice to Licensee, alter its fee schedules and terms of this license.
- Proprietary Rights; Confidentiality. Freestyle shall retain all rights, title and interest (including intellectual property rights) in the Software and in all documentation and other materials distributed by Freestyle in conjunction with the installation or use of the Software. The Freestyle, Freestyle SOlutions®, SiteLINK®, SiteLINK® Store, M.O.M.® and Multichannel Order Manager® names and logos, and all page headers and button icons are trademarks of Freestyle Solutions Inc., except those produced by the Licensee for use on their SiteLINK® Store.
Licensee’s customer lists, sales and marketing data, and information concerning Licensee’s business affairs, finances, methods of operation and other confidential information of Licensee (collectively, “Confidential Information”) shall be kept confidential by Freestyle and not disclosed to any person or entity unless such information becomes publicly available, is received by Freestyle from a third party or is independently developed by Freestyle. Notwithstanding the foregoing, Freestyle shall have access to all data stored on its servers, including order information, for statistical purposes, and may publicly disclose aggregate sales data, without reference to any individual Store.
- Maintenance and Support. Freestyle shall provide support under the same terms as Support for the Mail Order Manager software. Freestyle reserves the right to establish reasonable limitations on the extent of such support, and the hours at which it is available in accordance with the Freestyle schedule of fees.
- Indemnification. Licensee agrees to indemnify and hold harmless Freestyle against any expense, loss or liability (including attorneys’ fees) in respect of any claims, or threatened claims, relating to the merchandise, services and information offered by Licensee’s Store(s) and relating to the trademarks, service marks, trade names and other intellectual property used in connection with such Store(s) and otherwise in connection with Licensee’s operation of an online store.
- NO IMPLIED WARRANTIES. THE SOFTWARE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTIBILITY AND FITNESS FOR A PARTICULAR PURPOSE. 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 OR ERROR-FREE OR THAT THE SOFTWARE WILL PROVIDE UNINTERRUPTED OR ERROR FREE SERVICE. THE SECURITY MECHANISM INCORPORATED IN THE SOFTWARE HAS INHERENT LIMITATIONS AND THE LICENSEE MUST DETERMINE THAT THE SOFTWARE ADEQUATELY MEETS ITS REQUIREMENTS.
- LIMITATION OF FREESTYLE’S LIABILITY. FREESTYLE SHALL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES OR LEGAL THEORY 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 FREESTYLE IS AWARE OF THE RISK OF SUCH DAMAGES, THAT RESULT IN ANY WAY FROM LICENSEE’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. FREESTYLE’S LIABILITY TO LICENSEE SHALL NOT, FOR ANY REASON, EXCEED THE AGGREGATE PAYMENTS ACTUALLY MADE BY LICENSEE TO FREESTYLE OVER THE PRIOR SIX MONTHS. IF FOR ANY REASON THE FREESTYLE SERVER IS NOT OPERATING FOR A FULL CONTINUOUS PERIOD OF 24 HOURS, THE LICENSEE IS ENTITLED TO A PROPORTIONATE CREDIT ADJUSTMENT TO THE MONTHLY SERVICE FEE.
- Force Majeure. Neither party shall be liable to the other for any delay or failure in performance under this Agreement resulting directly or indirectly from acts of God or any causes beyond its reasonable control.
- Assignment. This Agreement may not be assigned by Licensee.
- Notices. Any notices or communications under this Agreement shall be in writing and shall be deemed delivered upon receipt to the party to whom such communication is directed, at the address specified below, if sent by (a) hand, (b) a commercial overnight carrier, (c) US mail, return receipt requested, (d) confirmed facsimile or (e) electronically. If to Freestyle, such notices shall be addressed to the address specified at the beginning of this Agreement, and if to Licensee, such notices shall be addressed to the address specified when Licensee opens an account with Freestyle, or such other address as either party may give the other by notice as provided above.
- Entire Agreement. This Agreement 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.
- Applicable Law. This agreement shall be governed by the laws of the State of New Jersey, without giving effect to principles governing conflicts of laws.
- Nothing contained in this Agreement shall be construed as creating a joint venture, partnership, or employment relationship between the parties, and no party shall have the right, power or authority to create an obligation or duty on behalf of the other party.
- Taxes. In addition to any license fee or other amounts charged, Licensee shall pay to and/or reimburse Freestyle for any amounts billed or paid by Freestyle for any sales or other tax of any nature and kind imposed by any governmental authority and relating to the Licensee’s operation of an online store.
- System and Software Requirements. The Licensee has reviewed and determined for itself that it has the system requirements necessary to operate the Software licensed herein. Licensee understands that the Software licensed herein is an add-on software for the Multichannel Order Manager® software which must also be licensed and used by Licensee.