EXHIBIT 10.8
SHABANG! MERCHANT SERVICE AGREEMENT
1.0 ACKNOWLEDGMENT AND ACCEPTANCE OF SERVICE AGREEMENT
The Shabang! Shopping Service ("Shabang!"), owned and operated by Shabang!,
Inc. ("Shabang!") is provided to you ("you" or "Merchant") under the terms
and conditions of this Shabang! Merchant Service Agreement and any amendments
thereto and any operating rules or policies (collectively, the "SMSA" or
"Agreement"). Shabang! reserves the right, in its sole discretion, to change,
modify, add or remove all or part of the SMSA at any time. Merchant will
receive notice of such changes and/or modifications pursuant to Section 14
regarding notices.
1.1 By accepting the terms and conditions of the SMSA, Merchant (a)
represents and warrants that he or she is 18 years old or older; (b) agrees
to provide true, accurate, current and complete information about Merchant as
prompted by the Merchant Application, 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, Shabang! 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 merchant application, you agree to be bound by the
SMSA. Nothing in this agreement obligates Shabang! or the Service to list,
link to, accept or otherwise host any merchant anywhere on the Shabang! site.
If these terms and conditions or any future changes are unacceptable to you,
you may cancel your account pursuant to Section 7.1 regarding termination of
service.
2.0 DESCRIPTION OF SHABANG! SERVICE
Shabang! hosts an online shopping service on the World Wide Web and provides
merchants with access to its Shabang! Store Software ("Software") to
facilitate the maintenance of Stores for the sale of goods and services and
the listing of such Stores in the Shabang! Store Listings located at
Xxxxxxx.xxx.
3.0 MERCHANT'S OBLIGATIONS
3.1 Merchant acknowledges and agrees that it shall be responsible for the
timely processing of orders for goods and services offered by Merchant and
shall communicate with buyer via e-mail within 24 hours stating order
acknowledgement, anticipated shipping date, anticipated arrival date, and
contact information for questions.
3.2 Merchant acknowledges and agrees that it shall maintain the
confidentiality of the consumer's personal information supplied by Shabang!
for the processing of orders and shall not use the consumer's personal
information for any purpose other than processing the order without the
consent of the consumer, including selling of personal information to third
parties.
3.3 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.
3.3.1 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.
3.3.2 Merchant represents and warrants that it has full power and authority
under all relevant laws and regulations:
- to offer and sell the goods and services offered at the Store, including
but not limited to holding all necessary licenses from all necessary
jurisdictions to engage in the advertising and sale of the goods or
services offered at the Store.
- to copy and display the materials used or displayed at the Store, and,
- to provide for credit card payment and delivery of goods or services as
specified at the Store.
3.3.3 Merchant represents and warrants that it will not engage in any
activities:
- that constitute or encourage a violation of any applicable law or
regulation, including but not limited to the sale of illegal goods or
the violation of export control or obscenity laws;
- that defame, impersonate or invade the privacy of any third party or
entity;
- that infringe the rights of any third party, including but not limited to
the intellectual property, business, contractual, or fiduciary rights of
others; and,
- that are in any way connected with the transmission of "junk mail" "spam"
or the unsolicited mass distribution of e-mail, or with any unethical
marketing practices.
3.4 Shabang! 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 including tobacco
products, firearms and weapons of war; (2) received a significant number of
complaints for failing to be reasonably accessible to customers or timely
fulfill customer orders; (3) has become the subject of a government complaint or
investigation; or (4) has violated or threatens to violate the letter or spirit
of the SMSA.
4.0 PROPRIETARY RIGHTS
4.1 Software License. Shabang! hereby grants Merchant a non-exclusive,
non-transferable license to use the Software in object code form only on a
server controlled by Shabang! for the sole purpose of 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 Shabang!. Merchant
acknowledges and agrees that the Software is intended for access and use by
means of web browsing software, and that Shabang! does not commit to support
any particular browsing platform. Shabang! reserves the right at any time to
revise and modify the Software, release subsequent versions thereof and to
alter features, specifications, capabilities, functions, and other
characteristics of the Software, without notice to Merchant. If any revision
or modification to the Software materially changes Merchant's ability to
conduct business, Merchant's sole remedy is to terminate the SMSA pursuant to
Section 7.1 regarding termination of service.
4.2 Shabang! Intellectual Property. Merchant acknowledges and agrees that
content available from Shabang! 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 Shabang!, and its successors and assigns, a non-exclusive, worldwide,
royalty-free, perpetual, non-revocable license under Merchant's copyrights or
other intellectual property rights, if any, in such material to use,
distribute, display, reproduce, and create derivative works from such
material in any and all media, for purposes of promoting Shabang! or Shabang!
Stores generally or Merchant's Store in particular. Merchant also grants
Shabang! the right to maintain such content on Shabang!'s servers during the
term of the SMSA and to authorize the downloading and printing of such
material, or any portion thereof, by end-users for their personal use.
4.4 Unauthorized Access. Merchant shall not attempt to gain unauthorized
access to any servers controlled by Shabang!
5.0 FEES
5.1 Merchant shall pay Shabang! in advance a monthly fee as set forth in the
Shabang! Store fee schedule. All such fees are payable in U.S. dollars to
Shabang! and shall be charged on the anniversary date of each month from the
date Shabang! lists the Store in the Shabang! Store Listings. Shabang! may
also, upon 30 days prior notice to Merchant, alter its fee schedules and
terms of the SMSA.
5.2 Merchant acknowledges and agrees that a separate setup fee may be
charged by a Shabang! Technical Service Provider ("TSP") to initially setup
the merchant's product information and pictures. The TSP may also provide
additional e-commence services as needed and commissioned by the merchant.
5.3 Merchant hereby authorizes Shabang! to initiate credit and debit entries
for payments and appropriate adjustments to the bank account at the
depository specified on the Merchant Application. This authorization is to
remain in force until Shabang! has received written notification from the
Merchant of its termination in such time and in such manner as to afford
Shabang! and the depository reasonable opportunity to act upon it.
6.0 TERMS
6.1 Term. The term of the SMSA shall begin on the date Shabang! lists the
Store in the Shabang! Store Listings and continue for the indicated duration.
The term shall automatically renew for successive durations at renewal rates
applicable at the time, unless notice of non-renewal is provided in
accordance with Section 6.2, below; provided, however, that to qualify for
each renewal Merchant must at the time of renewal be in substantial
compliance with the material terms and conditions of the SMSA. Shabang! shall
have the right, but not the obligation, to review any Store for compliance
with the SMSA as part of the renewal process, or at any time.
6.2 Non-Renewal. Either party, in its sole and absolute discretion, may give
notice of nonrenewal with or without cause and without stating any reason
therefor. Any notice of nonrenewal must be given at least thirty (30) days
prior to the end of the term then in effect and in the manner described in
Section 14 regarding notice.
7.0 TERMINATION
7.1 Termination. Either party may terminate the SMSA on thirty (30) days
notice if the other party has materially breached or is otherwise not in
compliance with any provision of the SMSA, and such breach or noncompliance
is not cured within such thirty (30) day period. Shabang! reserves the right
to immediately suspend any customer access to the Store until such breach or
noncompliance is cured.
7.2 Early Termination. Any refund or balance due will be adjusted to reflect
the actual duration of the service according to the original fee schedule.
7.3 Termination for illegal or Other Activity. Notwithstanding the foregoing,
Shabang! may, but has no duty to, immediately terminate Merchant and remove it
from Shabang! servers if Shabang! in its sole discretion concludes that
Merchant is engaged in illegal activities or the sales of illegal or harmful
goods or services, or is engaged in activities or sales that may damage the
rights of Shabang! 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.
7.4 Waiver. Merchant expressly waives any statutory or other legal protection
in conflict with the provisions of this Section 7.
7.5 Deletion of Information. Upon termination, Shabang! reserves the right
to delete from its servers any and all information contained in Merchant's
account, including but not limited to store information, order processing
information, and any product information.
7.6 The provisions of Section 4 (Proprietary Rights). Section 10 (Indemnity),
and Section 11 (Disclaimer of Warranties and Liabilities) of this Agreement
shall survive any termination of the Agreement.
8.0 MERCHANT PRIVACY
8.1 Merchant Information. Shabang! maintains information about Merchant and
the Store on Shabang! servers, including but not limited to Merchant's account
registration information, Merchant's customer order information and sales
information. Merchant agrees that Shabang! may use Merchant Information in
aggregate form for marketing or other promotional purposes.
8.1.1 Merchant agrees that Shabang! may disclose Merchant Information in the
good faith belief that such action is reasonably necessary: (a) to comply
with the law; (b) to comply with legal process; (c) to enforce the SMSA; (d)
to respond to claims that the Merchant or Store is engaged in activities that
violate the rights of third parties; or (e) to protect the rights or
interests of Shabang!, Shabang! Store or others; provided, however, that
nothing in this section shall impose a duty on Shabang! to make any such
disclosures.
8.2 Password. Merchant shall receive a password from Shabang! to provide
access to and use the Software and Online Store Services. Merchant is entirely
responsible for any and all activities which occur under Merchant's account
and password. Merchant agrees to keep its password confidential, to allow no
other unauthorized person or company to use its account, and to notify
Shabang! promptly if Merchant has any reason to believe that the security of
its account has been compromised.
8.3 Technical Access. Merchant acknowledges and agrees that technical
processing of Merchant Information is and may be required: (a) for the
Service to function; (b) to conform to the technical requirements of
connecting networks; (c) to conform to the technical requirements of the
Service; or (d) to conform to other, similar technical requirements. Merchant
also acknowledges and agrees that Shabang! may access Merchant's account and
its contents as necessary to identify or resolve technical problems or
respond to complaints about the Service.
9.0 MAINTENANCE AND SUPPORT
9.1 Merchant can obtain assistance with any technical difficulty that may
arise in connection with Merchant's utilization of the Software or Online
Store Services by requesting assistance at xxxxx-xxxx@xxxxxxx.xxx. Shabang!
reserves the right to establish limitations on the extent of such support,
and the hours at which it is available.
9.2 Merchant is responsible for obtaining and maintaining all telephone,
computer hardware and other equipment needed for its access to and use of
the Software and Online Store Services and Merchant shall be responsible for
all charges related thereto.
10.0 INDEMNITY
Merchant agrees to indemnify and hold harmless Shabang!, and its parents,
subsidiaries, affiliates, officers, directors, shareholders, employees and
agents, from any claim or demand, including reasonable attorneys fees, made
by any third party due to or arising out of Merchant's conduct. Merchant's
use of the Service, the goods or services offered at Merchant's Store, any
alleged violation of the SMSA, or any alleged violation of any rights of
another, including but not limited to Merchant's use of any content,
trademarks, services marks, trade names, copyrighted or patented material, or
other intellectual property used in connection with Merchant's Store. Shabang!
reserves the right at its own expense, to assume the exclusive defense and
control of any matter otherwise subject to indemnification by Merchant, but
doing so shall not excuse Merchant's indemnity obligations.
11.0 DISCLAIMER OF WARRANTIES AND LIABILITIES
The service and software are provided on an "as is" and "as available" basis
without warranties of any kind, either express or implied, including but not
limited to warranties of merchantability, fitness for a particular purpose or
non-infringement. Neither this agreement or any documentation furnished under
it is intended to express or imply any warranty that the online store
services will be uninterrupted, timely or error-free or that the software
will provide uninterrupted, timely or error free service.
Merchant acknowledges and agrees that any material and/or data downloaded or
otherwise obtained through the use of the service is done at its own
discretion and risk and that merchant will be solely responsible for any
damages to its computer system or loss of data that results from the download
of such material and/or data.
Shabang!. 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 Shabang! 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. Shabang!'s liability to merchant shall not, for any
reason, exceed the aggregate payments actually made by merchant to Shabang!
over the course of the existing term.
Some jurisdictions do not allow the exclusion of certain warranties or
liabilities, so some of the above exclusions may not apply to you.
12.0 NO RESALE OR ASSIGNMENT OF SERVICE
Merchant agrees not to resell or assign or otherwise transfer its rights or
obligations under the SMSA without the express written authorization of
Shabang!
13.0 FORCE MAJEURE
Neither party shall be liable to the other for any delay or failure in
performance under the SMSA resulting directly or indirectly from acts of
nature or causes beyond its reasonable control.
14.0 NOTICES
Any notices or communications under the SMSA shall be by electronic mail or
in writing and shall be deemed delivered upon receipt to the party to whom
such communication is directed, at the addresses specified below. If to
Shanbang!, such replies shall be addressed to xxxxx-xxxxxx@xxxxxxx.xxx or
0000 Xxxxxxx Xx., Xxxxxxxxxx, Xxxxx 00000, XXX. If to Merchant, such notices
shall be addressed to the electronic or mailing address specified when
Merchant opens an account with Shabang!, or such other address as either
party may give the other by notice as provided above.
15.0 ENTIRE AGREEMENT
The SMSA constitutes the entire agreement between the parties with respect to
the subject matter hereof and supersedes all previous proposals, both oral
and written, negotiations, representations, writings and all other
communications between the parties.
16.0 GENERAL
The SMSA and the relationship between Merchant and Shabang! shall be governed
by the laws of the state of Texas without regard to its conflict of law
provisions. Merchant and Shabang! agree to submit to the personal and
exclusive jurisdiction of the District Court of Dallas County, Texas or the
United States Federal District Court for Northern District of Texas, Dallas
Division. Shabang's failure to exercise or enforce any right or provision of
the SMSA shall not constitute a waiver of such right or provision. If any
provision of the SMSA is found by a court of competent jurisdiction to be
invalid, the parties nevertheless agree that the court should endeavor to
give effect to the parties intentions as reflected in the provision, and
agree that the other provisions of the SMSA remain in full force and effect.
Merchant agrees that regardless of any statute or law to the contrary, any
claim or cause of action arising out of or related to use of the Service or
the SMSA must be filed within one (1) year after such claim or cause of
action arose, or be forever barred.
The section titles in the SMSA are for convenience only and have no legal or
contractual effect.
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My signature indicates that I have read and accepted all the terms and
conditions regarding privileges and obligations as outlined on this
agreement. I have completed and submitted a Merchant Application to Shabang!.
All signatures to this application must be affirmed personally. Merchant
must be of legal age in his/her state of residence.
Printed Name X. X. XXXXXXXXX Store Name Pitt's & Spitt's
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Signature /s/ X. X. Xxxxxxxxx Date 12-9-98
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