YAHOO! STORE MERCHANT SERVICE AGREEMENT
1. AGREEMENT.
The Yahoo! Store service ("Yahoo! Store" or the "Service"),
owned and operated by Yahoo! Inc. ("Yahoo!") is provided to you ("you" or
"Merchant") under the terms and conditions of this Yahoo! Store Merchant Service
Agreement and any amendments thereto and any operating rules or policies
(collectively, the "YMSA" or "Agreement"). Yahoo! reserves the right, in its
sole discretion, to change, modify, or remove all or part of the YMSA 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 YMSA,
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, Yahoo! 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 YMSA. Nothing in
this agreement obligates Yahoo! or the Service to list, link to, accept or
otherwise host any online store anywhere on the Yahoo! 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. DESCRIPTION OF YAHOO! STORE SERVICE
Yahoo! hosts interactive online stores ("Store") on the World
Wide Web and provides merchants with access to its Yahoo! Store Software
("Software") to facilitate the creation and maintenance of Stores for the sale
of goods and services and the listing of such Stores in the Yahoo! Store
Listings located at xxxxx.xxxxx.xxx ("Online Store Services").
3. 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 arid subsequent
transactions between Yahoo! and Merchant, including the method and timing of
such announcements, must be approved in advance by Yahoo! in writing. Yahoo
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 YMSA.
3.1.3 Merchant represents and warrants that it has
full power and authority under all relevant laws and regulations:
o 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;
o to copy and display the materials used or
displayed at the Store; and
o 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;
o 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;
o that defame, impersonate or invade the privacy
of any third party or entity;
o that infringe the rights of any third party,
including but not limited to the intellectual
property, business, contractual, or fiduciary
rights of others; and,
o 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 Yahoo! 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) 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 YMSA.
4. PROPRIETARY RIGHTS
4.1 Software License. Yahoo! hereby grants Merchant a
non-exclusive, non-transferable license to use the Software in object code form
only on a server controlled by Yahoo! 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
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Yahoo!. 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 Yahoo! without
Yahoo!'s express written agreement, Merchant also acknowledges and agrees that
the Software is intended access and use by means of web browsing software, and
that Yahoo! does not commit to support any particular browsing platform.
Yahoo! reserves the right at any time to revise and modify the
Software, release subsequent versions thereof and to alter features,
specification, 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 YMSA pursuant to Section 7.1 regarding
termination of service.
4.2 Yahoo! Intellectual Property. Merchant acknowledges and
agrees that content available from Yahoo! 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 Yahoo!, and its successors and assigns, a
non-exclusive, worldwide, royalty-free, perpetual, non-revocable license under
Merchants 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 Yahoo! Property the results of search
queries and comparisons conducted on Yahoo!, including, without limitation,
searches conducted on Yahoo! Shopping and the Service. Merchant also grants
Yahoo! the right to maintain such content on Yahoo!'s servers during the term of
the YMSA 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 Yahoo!.
5. FEES
5.1 Merchant shall pay Yahoo! a monthly fee as set forth in
the Yahoo! Store fee schedule available at xxxx://xxxxx.xxxxx.xxx/xxxx.xxxx and
made a part hereof. All such fees are payable in U.S. dollars to Yahoo! and
shall be charged on the first day of each month to the credit card number given
to Yahoo! at the time of registration or to such other credit card number which
Merchant shall so designate. Yahoo! may also, upon 30 days prior notice to
Merchant, alter its fee schedules and terms of the YMSA.
6. TERMS
6.1 Term. The term of the YMSA 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 YMSA. Yahoo! shall have the right, but not the obligation, to
review any Store for compliance with the YMSA as part of the renewal process, or
at any time.
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6.2 Non-Renewal. Either party, in its sole and absolute
discretion, may give notice of non-renewal with or without cause and without
stating any reason therefor. Any notice of non-renewal 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. TERMINATION
7.1 Termination. Either party may terminate the YMSA on thirty
(30) days notice if the other party has materially breached or is otherwise not
in compliance with any provision of the YMSA, and such breach or noncompliance
is not cured within such thirty (30) day period. Yahoo! reserves the right to
immediately suspend any customer access to the Store until such breach or
non-compliance is cured.
7.2 Termination for Illegal or Other Activity. Notwithstanding
the foregoing, Yahoo! may, but has no duty to, immediately terminate Merchant
and remove it from Yahoo! Servers if Yahoo!, 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
fights of Yahoo! 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, Yahoo! reserves
the right to delete from its server 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. MERCHANT PRIVACY
8.1 Merchant Information. Yahoo! maintains information about
Merchant and the Store on Yahoo! servers, including but not limited to Merchants
account registration information, Merchant's customer order information, sales
information, and clickstream data ("Merchant Information"). Merchant agrees that
Yahoo! may use Merchant Information in aggregate form for marketing or ether
promotional purposes.
8.1.1 Merchant agrees that Yahoo! 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 YMSA; (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 Yahoo!, Yahoo! Store or others; provided, however, that
nothing in this section shall impose a duty on Yahoo! to make any such
disclosures.
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8.1.2 Merchant agrees that Yahoo! may delete customer
credit card information from Yahoo! servers 14 days after Merchant retrieves
such information, and may delete all other Merchant Information from Yahoo!
servers at the end of each calendar year.
8.2 Password. Merchant shall receive a password from Yahoo! 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 Merchants
account and password. Merchant agrees to keep its password confidential, to
allow no other person or company to use its account, and to notify Yahoo!
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 requirement of the Service; or (d) to
conform to other, similar technical requirements. Merchant also acknowledges and
agrees that Yahoo! may access Merchant's account and its contents as necessary
to identify or resolve technical problems or respond to complaints about the
Service.
9. 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 e-mail to
xxxxx-xxxxxxx@xxxxx-xxx.xxx. Yahoo! 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. INDEMNITY
Merchant agrees to indemnify and hold harmless Yahoo!, and its
parents, subsidiaries, affiliates, officers, directors, shareholders, employees
and agents, from any claim or demand, including reasonable attorney's 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 YMSA, 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. Yahoo! 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. 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
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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
SOLEY RESPONSIBLE FOR ANY DAMAGES TO ITS COMPUTER SYSTEM OR LOSS OF DATA THAT
RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. YAHOO! 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 YAHOO! 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. YAHOO!'S LIABILITY TO
MERCHANT SHALL NOT, FOR ANY REASON, EXCEED THE AGGREGATE PAYMENTS ACTUALLY MADE
BY MERCHANT TO YAHOO! 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. NO RESALE OR ASSIGNMENT OF SERVICE
Merchant agrees not to resell or assign or otherwise transfer
its rights or obligations under the YMSA without the express written
authorization of Yahoo!.
13. FORCE MAJEURE
Neither party shall be liable to the other for any delay or
failure in performance under the YMSA resulting directly or indirectly from acts
of nature or causes beyond its reasonable control.
14. NOTICES
Any notices or communications under the YMSA 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 Yahoo!, such notices shall be addressed to xxxxx-xxxxx@xxxxx-xxx.xxx or
0000 Xxxxxxx Xxxxxxxxxx, Xxxxx 000, Xxxxx Xxxxx, Xxxxxxxxxx 00000, XXX. If to
Merchant, such notices shall be addressed to the electronic or mailing address
specified when Merchant opens an account with Yahoo! Store, or such other
address as either party may give the other by notice as provided above.
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15. ENTIRE AGREEMENT
The YMSA 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. GENERAL
The YMSA and the relationship between Merchant and Yahoo! shall be governed by
the laws of the state of California without regard to its conflict of law
provisions. Merchant and Yahoo! agree to submit to the personal and exclusive
jurisdiction of the Superior Court of the State of California for the County of
Santa Xxxxx or the United States District Court for the Northern District of
California. Yahoo!'s failure to exercise or enforce any right or provision of
the YMSA shall not constitute a waiver of such right or provision, if any
provision of the YMSA 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 tile provision, and agree that
the other provisions of the YMSA 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 YMSA must be
filed within one (1) year after such claim or cause of action arose, or be
forever barred. The section titles in the YMSA are for convenience only and have
no legal or contractual effect.
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