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EXHIBIT 10.1
This agreement ("Agreement") contains the complete terms and conditions that
apply to your participation in the VSTORE Virtual Storefront Network. As used in
this Agreement:
* "VSTORE," "we," "us," and "our" refer to Vstore, Inc.;
* "you" and "your" refer to you, the manager of the Storefront (defined below)
that is the subject of this Agreement;
* "VSTORE Virtual Storefront" and "Storefront" refer to the online, configurable
storefront hosted and maintained by VSTORE through which you will sell Products
(defined below) to customers;
* "VSTORE Virtual Storefront Network" and "Network" refer collectively to all
Storefronts and other software, including but not limited to the VSTORE web site
(located at xxxx://xxx.xxxxxx.xxx/), owned, hosted, and maintained by VSTORE or
its designees;
* "Your Web Sites" refer to web pages and sites, excluding the Storefront, on
which you have permission to display images, text, information, or other
materials;
* "Your Content" refers to the images, text, information, and other materials
you upload to the Storefront; and
* "Your Storefront Name" refers to the name you choose to give the Storefront,
subject to the terms and conditions set forth below.
1. Storefront.
Subject to the terms and conditions of this Agreement, VSTORE will use
commercially reasonable efforts to make available to you an online means (the
"Administration Tool") to configure and manage a Storefront that will be stored
on and operated from the server(s) of VSTORE or its designees. Through the
Administration Tool, you will be able to select one or more items or categories
of merchandise distributed by VSTORE ("Products") to make available through the
Storefront. For each Product listed on the Storefront, VSTORE will display a
short description, review, or other reference pertaining to that Product, as
well as pricing, shipping, and other information. VSTORE will be responsible for
the content, style, and placement of these references, and will provide a
special link from each such reference to the corresponding VSTORE online catalog
entry. Each link will connect directly to a single item in our online catalog
using a special link format that we provide.
2. Order Processing.
As between you and VSTORE, VSTORE and/or its designees will be responsible for
processing customer Product orders, overseeing the preparation of order forms,
processing customer payments, cancellations, and returns, tracking Product sales
through the Storefront, providing you with online reports (in a form subject to
VSTORE's discretion) summarizing such sales activity, and providing you and
Storefront customers with customer service. VSTORE reserves the right to reject
any customer order if it does not comply with VSTORE's ordering requirements
(subject to modification by VSTORE) or for any other reason.
3. Referral Fees.
VSTORE will pay you referral fees on Qualifying Product Sales to Storefront
customers. For a Product sale to be deemed a Qualifying Product Sale, the
applicable customer must follow a special link (as specified and implemented by
VSTORE) from the Storefront to the ordering means generated by VSTORE; purchase
the Product using VSTORE's automated ordering system; accept delivery of the
Product at the customer's shipping destination; and remit full payment to VSTORE
or its designees. For a referral fee to be paid to you on any Qualifying Product
Sale, the return period (typically 30 days) will have to have expired since the
date of the purchase. Your referral fees will equal a percentage of the Sale
Price of each Product whose sale is deemed a Qualifying Product Sale. ("Sale
Price" means the price at which Products are sold to customers through the
Storefront as determined solely by VSTORE, and excludes shipping and handling
costs and taxes.) Actual percentages vary by Product. VSTORE reserves the right
to change this referral fee, to propose alternate fee schedules, or to establish
different fee schedules for particular Products at any time, in accordance with
Section 17 below.
4. Fee Payment.
VSTORE will pay you accrued referral fees on a quarterly basis. Approximately 45
days following the end of each calendar quarter, VSTORE will send you a check
for any referral fees you have earned, as described above, on Qualifying Product
Sales completed during that quarter; provided, however, that if the fees payable
to you for any
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calendar quarter are less than twenty five dollars ($25.00), VSTORE may hold
those fees until either the total amount due is at least twenty five dollars
($25.00) or this Agreement is terminated, whichever is earlier. If this
Agreement is terminated by VSTORE in the event of your breach, VSTORE may
withhold your referral fees at least until any dispute regarding your breach of
this Agreement is resolved. It is your responsibility throughout the term to
provide Vstore with your current mailing address, and you acknowledge that
Vstore cannot be responsible for any payment if you do not provide us with such
a current address. You agree to pay all federal, state, and local sales,
personal property, and other taxes (excluding taxes on VSTORE's income) arising
as a result of this Agreement.
5. Policies and Pricing.
Because customers who purchase Products through the Storefront will be deemed
customers of VSTORE, (a) all VSTORE requirements, policies, and operating
procedures will apply to those customers, and (b) all data collected through the
Storefront, including but not limited to customer Product purchase information,
are and shall remain solely the property of VSTORE. VSTORE reserves the right to
change its policies and operating procedures concerning Product pricing or any
other matter at any time and for any reason. Product prices and availability may
vary from time to time. VSTORE will use commercially reasonable efforts to
provide accurate information regarding Products, but does not guarantee the
price or availability of, or the accuracy of any information regarding, any
Product.
6. VSTORE Trademarks.
If you wish to use the VSTORE trade name, trademark, and/or associated logo
(collectively the "Marks") to promote your Storefront or for any other reason,
please email VSTORE customer service at xxxxxxxxxxxxxxx@xxxxxx.xxx and request
permission to do so. If VSTORE notifies you in writing that it is willing to
grant you such permission, the following trademark license shall apply: VSTORE
grants you, for the term of this Agreement, a royalty-free, nonexclusive,
nontransferable, nonsublicensable, limited, worldwide license to use the Marks
for the sole purpose of providing a hyperlink on Your Web Sites to the Vstore
Web Site, the Storefront, or the Products sold thereon. You acknowledge VSTORE's
ownership of the Marks and agree not to claim any ownership in such Marks. You
shall at no time adopt or use, without VSTORE's prior written consent, any
variation of the Marks, any xxxx (including without limitation Your Storefront
Name) incorporating any of the Marks, or any xxxx likely to be similar to or
confused with any of the Marks. Any and all goodwill arising from your use of
the Marks shall inure solely to the benefit of VSTORE, and neither during nor
after the termination of this Agreement shall you assert any claim to the VSTORE
Marks or associated goodwill. You agree to cooperate fully with VSTORE to ensure
proper and appropriate usage of the Marks, including but not limited to
adherence to VSTORE's standard usage guidelines, as may be modified from time to
time. VSTORE reserves the right to revoke your limited license in the Marks at
any time upon prior written notice, and any license granted pursuant to this
Section 6 shall terminate upon termination of this Agreement.
7. Storefront Promotion.
It is your sole responsibility, and not VSTORE's, to promote the Storefront. Any
and all promotional activities you undertake will be subject to the terms and
conditions of this Agreement, and to any other guidelines governing Storefront
promotion that may be established and modified from time to time by VSTORE
(VSTORE's current promotional guidelines are available through the
administration system). If you promote individual Products sold through the
Storefront, whether on the Storefront itself, on Your Web Sites, or in any other
manner, you will be solely responsible for any information you make available in
connection with such Product(s) (including any difference between the actual
price of the Product(s) as generally made available by VSTORE and the price at
which you promote such Product(s)) and any customer's reliance on that
information.
8. Storefront Ownership.
You acknowledge and agree that VSTORE is and shall remain the owner of the
Network, the Storefront, and any and all component parts thereof (excluding Your
Content and Your Storefront Name), including but not limited to any intellectual
property rights therein. Except as otherwise expressly set forth in this
Agreement, you agree not to copy, reverse engineer, disassemble, decompile,
modify, or translate all or any part of the VSTORE Web Site, the Network, or the
Storefront, provided that you may modify the Storefront as permitted through the
use of the
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Administration Tool. You agree not to create a network of virtual storefronts
that directly competes with the VSTORE Virtual Storefront Network, as defined
above.
9. Your Content and Your Storefront Name.
VSTORE acknowledges that, as between you or your licensors and VSTORE, you or
your licensors own Your Content and Your Storefront Name. Nevertheless, because
you understand that VSTORE needs certain limited rights in such materials to
make the Network available to the public, by uploading Your Content to the
Storefront using the Administration Tool you grant VSTORE the worldwide,
royalty-free, transferable, NONEXCLUSIVE right and license to use, reproduce,
distribute, transmit, display, modify, adapt, prepare derivative works of, and
perform Your Content and Your Storefront Name for the purpose of operating the
Storefront and the Network as a whole. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE
SOLELY RESPONSIBLE FOR YOUR CONTENT (INCLUDING WITHOUT LIMITATION ANY
REPRESENTATIONS, WARRANTIES, PRICES, CONTACT INFORMATION, OR OTHER INFORMATION
THAT YOU UPLOAD TO THE STOREFRONT) AND ALL CONSEQUENCES OF THE USE OF YOUR
CONTENT. You represent and warrant that Your Content and Your Storefront Name do
not infringe upon or violate the intellectual property rights or other rights of
any third party, that you have all necessary rights to grant VSTORE the
aforementioned rights in Your Content and Your Storefront Name, and that Your
Content and Your Storefront Name are not defamatory, libelous, obscene, or
otherwise illegal, and you agree that the burden of determining all such factors
rests solely with you. You also agree to provide us, upon our reasonable
request, with documentation confirming that you have all necessary rights to
grant VSTORE the aforementioned rights in Your Content and Your Storefront Name.
Because such a high volume of content is uploaded to our servers every day,
VSTORE does not pre-screen or monitor Your Content, but you acknowledge and
agree that we shall have the right (but not the obligation) in our sole
discretion to refuse or remove all or part of Your Content from the Storefront,
and to block the Storefront or remove it from the Network, if in our reasonable
discretion you are in violation of the terms of this Agreement or the VSTORE
Code of Conduct (available at xxxx://xxx.xxxxxx.xxx/xxxxx).
10. Specifically Prohibited Activities.
Without limiting any other provision of this Agreement:
- Because you will not be responsible for any aspect of order processing or
fulfillment, you agree not to make any statement, whether on Your Web Sites, the
Storefront, or otherwise, representing or implying that you are responsible for
order processing or fulfillment; and
- Because you understand that federal and state laws seek to protect consumers
from misleading advertising, you agree not to make any statement, whether on
Your Web Sites, the Storefront, or otherwise, that could be interpreted as a
representation or warranty regarding any Product.
11. Acknowledgments.
By agreeing to these terms and conditions, you represent that you are at least
18 years old and are authorized to enter into this Agreement, are entering into
this Agreement on your own behalf, have independently evaluated the desirability
of entering into this Agreement, and are not relying on any representation,
guarantee, or statement other than as expressly set forth in this Agreement. You
acknowledge that nothing in this Agreement should be construed as guaranteeing
the purchase of any Product, or the generation of any referral fees from your
operation of the Storefront. You represent and warrant that the Storefront will
not be used in connection with any illegal purpose. At any time upon request by
VSTORE, you agree to sign a non-electronic version of this Agreement.
12. Nondisclosure.
You acknowledge that during the term of this Agreement you may obtain
confidential and/or proprietary information relating to VSTORE, the Network,
and/or the Storefront ("Proprietary Information"). Such Proprietary Information
shall belong solely to VSTORE. Proprietary Information shall not include
information that is or becomes publicly known through no wrongful act of your
own or of other members of the Network. You shall not disclose Proprietary
Information to third parties without the prior written consent of VSTORE, and
you agree to undertake reasonable measures to ensure that the Proprietary
Information is kept confidential. You also agree to report immediately to VSTORE
any unauthorized disclosure of Proprietary Information of which you have
knowledge. You acknowledge and agree that, due to the unique nature of the
Network, the Storefront, and any
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Proprietary Information, there can be no adequate remedy at law for any breach
of your obligations hereunder; that any such breach may allow you or third
parties to unfairly compete with VSTORE resulting in irreparable harm to VSTORE;
and therefore that, upon any such breach or threat thereof, VSTORE shall be
entitled to injunctions and other appropriate equitable relief in addition to
whatever remedies it may have at law.
13. Warranty Disclaimer.
VSTORE has no control over the conditions under which you configure, operate,
manage, or otherwise use or interact with the Storefront, and does not and
cannot warrant the results obtained or not obtained by such use or interaction.
VSTORE DOES NOT WARRANT THAT YOUR USE OF OR INTERACTION WITH THE NETWORK OR THE
STOREFRONT WILL BE UNINTERRUPTED OR THAT THE OPERATION OF THE NETWORK OR THE
STOREFRONT WILL BE ERROR-FREE OR SECURE. VSTORE DISCLAIMS ALL WARRANTIES,
EXPRESS OR IMPLIED, RELATING TO THE NETWORK, THE STOREFRONT, OR ANY PRODUCT SOLD
THROUGH THE NETWORK OR THE STOREFRONT, INCLUDING, BUT NOT LIMITED TO ANY
WARRANTIES AGAINST INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTIES ARISING OUT OF A
COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE. YOU ACKNOWLEDGE THAT THE
NETWORK, THE STOREFRONT, AND ALL COMPONENT PARTS THEREOF ARE PROVIDED "AS IS"
AND MAY NOT BE FUNCTIONAL ON ANY MACHINE OR IN ANY ENVIRONMENT. YOU ASSUME ALL
RISK OF THE USE, QUALITY, AND PERFORMANCE OF THE NETWORK AND THE STOREFRONT. YOU
FURTHER ACKNOWLEDGE THAT VSTORE BEARS NO RESPONSIBILITY FOR (A) ANY PRODUCT, (B)
THE PURCHASE OF (OR INABILITY TO PURCHASE) ANY PRODUCT, OR (C) YOUR CONTENT (AS
DEFINED HEREIN) OR ANY THIRD PARTY'S RELIANCE THEREON. YOU AGREE THAT ANY
DISPUTE REGARDING ANY PRODUCT SHALL BE DIRECTED TO THE MANUFACTURER OR SUPPLIER
OF THE PRODUCT, AND NOT TO VSTORE.
14. Limitation of Remedies and Damages.
IN NO EVENT SHALL VSTORE, ITS SUBSIDIARIES OR AFFILIATES, OR ANY OF THEIR
RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SUPPLIERS AND/OR AGENTS BE
RESPONSIBLE OR LIABLE FOR ANY LOST PROFITS OR FOR ANY INDIRECT, INCIDENTAL,
CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES (EVEN IF THEY HAVE
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) UNDER ANY CONTRACT, NEGLIGENCE,
STRICT LIABILITY OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY TO THE
NETWORK, THE STOREFRONT, ANY PRODUCT, THE USE OF ANY PRODUCT, OR ANY OTHER
SUBJECT MATTER OF THIS AGREEMENT. VSTORE SHALL NOT BE LIABLE FOR ANY LOSS OR
DAMAGE CAUSED BY DELAY IN FURNISHING ANY PERFORMANCE UNDER THIS AGREEMENT. YOUR
SOLE REMEDY FOR DISSATISFACTION WITH THE NETWORK OR THE STOREFRONT IS TO
TERMINATE THIS AGREEMENT PURSUANT TO SECTION 18 BELOW. IN NO EVENT SHALL
VSTORE'S LIABILITY EXCEED THE TOTAL AMOUNT OF REFERRAL FEES PAID TO YOU
HEREUNDER.
15. Indemnification.
You agree to indemnify and hold VSTORE and its subsidiaries, affiliates,
suppliers, and agents harmless against any and all claims, damages, losses,
costs or other expenses (including reasonable attorneys' fees) that arise
directly or indirectly out of (a) your breach of this Agreement, (b) your use of
the Storefront or Network, (c) your use or misuse of the Marks, including but
not limited to your causing to be transmitted unsolicited bulk e-mail that
refers to VSTORE, the Storefront, or the Network, or (d) Your Content or Your
Storefront Name, including but not limited to any claim that Your Content or
Your Storefront Name infringes upon the intellectual property rights or other
rights of any third party, or is defamatory, libelous, obscene, or otherwise
illegal.
16. Breach of Security.
If you have reason to believe that your account with VSTORE is no longer secure
(for example, in the event of a loss, theft or unauthorized disclosure or use of
your VSTORE ID or password), you must promptly change your VSTORE password using
the Administration Tool and immediately notify VSTORE of the problem by notice
given as described in Section 21 of this Agreement, to minimize the possibility
of any unauthorized changes to or use of your member information or the
Storefront.
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17. Modification.
VSTORE reserves the right to modify any of the terms and/or conditions of this
Agreement, at any time and at VSTORE's sole discretion, by posting a change
notice or a new agreement on our web site. Any modification shall take effect
three (3) days following our posting of a change notice or new agreement on the
Vstore Web Site. You agree to periodically review the VSTORE Web Site for
modifications to this Agreement. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU,
YOUR SOLE RECOURSE IS TO TERMINATE THIS AGREEMENT PURSUANT TO SECTION 18 BELOW.
YOUR CONTINUED OPERATION OF THE STOREFRONT FOLLOWING VSTORE'S POSTING OF A
CHANGE NOTICE OR NEW AGREEMENT AT THE VSTORE WEB SITE WILL BE DEEMED ACCEPTANCE
OF SUCH CHANGE NOTICE OR NEW AGREEMENT.
18. Termination.
This Agreement shall be effective upon the date on which VSTORE provides you
with access to the Storefront and Administration Tool. This Agreement may be
terminated as follows: (i) by you, at any time and for any reason, by providing
VSTORE with notice in accordance with Section 21 below; (ii) by VSTORE, at any
time and for any reason, by providing you with fifteen (15) days advance notice
in accordance with Section 21 below; or (iii) by VSTORE immediately upon notice
to you in the event of any breach by you of the terms of this Agreement or the
VSTORE Code of Conduct (available at xxxx://xxx.xxxxxx.xxx/xxxxx), or upon your
insolvency, bankruptcy, suspension of business, assignment of assets for the
benefit of creditors, voluntary dissolution, or appointment of a trustee for all
or any substantial portion of your assets. Upon any termination of this
Agreement your access to the Administration Tool will terminate, and you will
immediately destroy or erase all copies of any Proprietary Information and, upon
VSTORE's request, promptly confirm destruction of same by signing and returning
to VSTORE an "affidavit of destruction" acceptable to VSTORE.
19. Survival of Certain Provisions.
Sections 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, and 22
hereof shall survive the termination of this Agreement for any reason.
20. General.
This Agreement expresses the entire understanding and Agreement between the
parties, and supersedes any and all prior or contemporaneous agreements,
understandings, or contracts, written or oral, entered into between you and
VSTORE with respect to the subject matter hereof. This Agreement may not be
modified except by a writing signed by an authorized representative of both
parties, or as set forth in Section 17 above. VSTORE's failure to enforce your
strict performance of any provision of this Agreement will not constitute a
waiver of VSTORE's right to subsequently enforce such provision or any other
provision of this Agreement. No waiver of any breach of this Agreement shall be
effective unless made in writing and signed by an authorized representative of
the waiving party. Neither your rights nor your obligations arising under this
Agreement are assignable or otherwise transferable by you (whether voluntarily
or by operation of law) without VSTORE's express written consent, and any such
prohibited assignment or transfer shall be void and without effect; provided
that if VSTORE should so consent in writing, the assignee shall be bound by all
of the terms and conditions of this Agreement. Notwithstanding the foregoing,
VSTORE may assign and/or delegate any or all of its rights or obligations
hereunder without your consent. You and VSTORE are independent contractors, and
nothing in this Agreement shall create or be construed to create any
partnership, joint venture, agency, franchise, sales representative, or
employment relationship between the parties. Except as otherwise provided in
this Agreement, neither party shall have the right, power, or authority to act
or to create any obligation, express or implied, on behalf of the other. You
will have no authority to make or accept any offers or representations on
VSTORE's behalf. This Agreement is entered into in the State of New York,
U.S.A., and shall be governed by and construed under the substantive laws of the
State of New York, U.S.A., exclusive of its choice-of-law rules. You expressly
consent to (a) the exclusive jurisdiction of the federal and state courts within
the County of New York in the State of New York, U.S.A., over any dispute
arising out of this Agreement, and waive any improper venue or inconvenient
forum objections thereto, and (b) service of process being effected upon you by
registered or certified mail sent to the most current address for you on file
with VSTORE. If either party is required to retain the services of an attorney
to enforce or otherwise litigate or defend any matter or claim arising out of or
in connection with this Agreement, then the prevailing party will be
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entitled to recover from the other party, in addition to any other relief
awarded or granted, its reasonable costs and expenses (including attorneys'
fees) incurred in the proceeding. If any provision of this Agreement is found
invalid or unenforceable under judicial decree or decision, the remainder will
remain valid and enforceable according to its terms.
21. Notice.
Unless otherwise provided herein, any notices required or permitted under this
Agreement shall be sent to VSTORE by e-mail to xxxxxxxxxxxxxxx@xxxxxx.xxx, with
a hard copy sent to VSTORE by registered or certified mail or by express,
overnight delivery, addressed to Vstore, Inc., 0000 Xxxxxxxxxx Xxxxxxxxx, Xxxxx
000, Xxxxxxxx, XX 00000, ATTN: Customer Service (or at such other address as
VSTORE may from time to time notify you); any notices required or permitted
under this Agreement shall be sent to you at your most current address on file
with VSTORE, or by e-mail to your most current e-mail address on file with
VSTORE, or by posting a message on the VSTORE Web Site in a section entitled
"Legal Information" (or similar title). All notices and demands shall be deemed
complete upon receipt.
22. Export Controls.
You acknowledge that none of the Proprietary Information may be downloaded,
transferred or otherwise exported or re-exported (a) into (or to a national or
resident of) Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria or any other
country to which the United States has embargoed goods; or (b) to anyone on the
U.S. Treasury Department's list of Specially Designated Nationals or the U.S.
Commerce Department's Table of Denial Orders. You represent and warrant that you
are not located in, under the control of, or a national or resident of any such
country or on any such list.
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