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TERMS & CONDITIONS FOR ECOMMERCETECH SERVICES

  1. SCOPE & ACCEPTANCE OF TERMS AND CONDITIONS.  These Terms and Conditions are a binding legal agreement between EcommerceTech, Inc. (“EcommerceTech”) and the person and/or entity named in the invoice (hereinafter, the “Client”) issued by EcommerceTech for the services purchased by Client from EcommerceTech (the “Services”) as described in the written or electronic order document mutually agreed upon in writing (email okay) by the parties (the “Order”).  By agreeing to the Order, providing approval to EcommerceTech to commence performance of the Services, and/or by paying the fees for the Services pursuant to the invoice issued by EcommerceTech that references and/or incorporates these Terms and Conditions, you acknowledge and agree that you are indicating your acceptance and agreement to be bound by these Terms and Conditions.  You represent and warrant that you have read, understand, and agrees to be bound by these Terms and Conditions and have full power, capacity, and authority to accept these Terms and Conditions. If you are agreeing to be bound by this Agreement on behalf of the Client (for example, where the Client is your employer or other entity), you represent and warrant that you have full legal authority to bind the Client to these Terms and Conditions.
  2. SERVICES
  1. Performance.  EcommerceTech shall have sole discretion in staffing the Services and may assign the performance of any portion of the Services to any subcontractor provided that Commerce shall remain responsible for monitoring the performance of any such subcontractor in accordance with these Terms and Conditions.  EcommerceTech shall not be obligated to provide any services to Client except as specifically set forth in the applicable Order.  Any changes to the Services (which may result in increased or decreased fees and/or delivery times) must be mutually agreed upon in writing by the parties.  Any and all documents, work product and other materials that are prepared by or on behalf of the EcommerceTech in the course of performing the Services, but expressly excluding any Client Materials and/or Client Confidential Information incorporated therein, shall be owned by EcommerceTech.
  2. Client Materials.  Client will provide EcommerceTech with all appropriate materials as applicable, which may include branding, text, music, sound, images, video, graphics, logos, trademarks, and all other content and/or materials necessary for EcommerceTech to perform the Services hereunder (collectively, “Client Materials”), within a reasonable time period, and in a format, designated by EcommerceTech.  Client hereby grants to EcommerceTech a non-exclusive, royalty-free, fully-paid, worldwide license, under all of Client’s intellectual property and proprietary rights, to reproduce, modify, incorporate, perform and otherwise use the Client Materials as reasonably necessary for EcommerceTech to provide Client the Services hereunder.  Client represents and warrants that: (a) Client or its licensors own all right, title, and interest in and to the Client Materials; (b) Client has all necessary rights and/or authorizations to grant the licenses to Client Materials hereunder to EcommerceTech; and (c) the Materials (nor any part thereof) do not and will not violate these Terms and Conditions or any third party’s trademark and/or branding usage guidelines or requirements, any applicable laws, rules or regulations, or any third party’s intellectual property or other proprietary rights. 
  3. Client Obligations.  Unless specifically included in the scope of Services under the Order, EcommerceTech will not be obligated to procure any third-party products or services, including, without limitation, and hardware, applications, tools, software, or materials utilized in connection with the Services (collectively, “Third-Party Materials”).  Client understands and agrees that Third Party Materials provided by EcommerceTech (if at all), are subject solely to the terms accompanying such Third-Party Materials and not any terms contained in these Terms and Conditions (other than this Section 2.3).  Client acknowledges and agrees that EcommerceTech’s ability to successfully provide the Services in a timely manner is contingent upon performance by Client of the obligations set forth in these Terms and Conditions.  Client agrees to provide the necessary Client Materials, Third-Party Materials, personnel, and other necessary items or access requested by EcommerceTech that are required for EcommerceTech to provide the Services.  EcommerceTech shall have no liability for deficiencies in the Services resulting from any act or omission of Client, or any of their respective employees, contractors, or agents.
  1. FEES & PAYMENT
  1. Fees; Expenses.  The fees for the Services shall be set forth in the Order.  In addition, Client shall reimburse EcommerceTech for any out-of-pocket expenses specified on the applicable Order, or otherwise expressly agreed to in writing by Client, incurred by EcommerceTech in connection with the performance of the Services.
  2. Payment Terms.  Unless otherwise expressly agreed to by EcommerceTech in writing, all fees for the Services are due and payable by Client in advance, and shall be due and payable by Client within fourteen (14) days from the date of EcommerceTech’s invoice for such fees.  All payments shall be made in United States dollars.  Overdue balances are subject to a service charge equal to the lesser of 3.0% per month or the maximum legal interest rate allowed by law.  If any payment remains unpaid (in whole or in part) more than fifteen (15) days from the due date for such payment, EcommerceTech may, without limiting its other rights and remedies under these Terms and Conditions or under applicable law, discontinue providing the Services.  Client further agrees to pay all reasonable costs and expenses, including attorneys’ fees and costs, associated or incurred by EcommerceTech in collecting any past due amounts or enforcing Client’s payment obligations hereunder.  Except to the extent otherwise set forth in these Terms and Conditions, all fees and expenses due and payable hereunder are non-refundable and non-cancellable and are not contingent on any additional services or products to be provided.
  3. Taxes.  Client will be responsible for and will indemnify and hold EcommerceTech harmless from payment of all federal, state, local or international taxes whether sales, use, or other taxes (other than taxes based on EcommerceTech’s income), fees, duties, and other governmental charges, and any related penalties and interest, arising from the payment of fees and/or expenses to EcommerceTech under these Terms and Conditions or performance of any Services for, Client.  Client will make all payments of fees and/or expenses to EcommerceTech free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of fees and/or expenses to EcommerceTech will be Client’s sole responsibility, and Client will provide EcommerceTech with official receipts issued by the appropriate taxing authority, or such other evidence as EcommerceTech may reasonably request, to establish that such taxes have been paid.  If Client is not required to pay an applicable tax due to any tax exemption, Client will provide to EcommerceTech certificates from the appropriate taxing authorities verifying Client’s tax exemption.
  1. TERM & TERMINATION
  1. Term; Termination.  Unless earlier terminated in accordance with this Section, these Terms and Conditions will commence on the Effective Date and shall continue until the completion of the Services under the Order.  Either party may terminate these Terms and Conditions for material breach by the other party that remains uncured thirty (30) days after delivery of written notice to the breaching party describing such breach in reasonable detail.  The foregoing rights of termination are in addition to any other rights and remedies provided in these Terms and Conditions or under applicable law.
  2. Effects of Termination. Upon any termination or expiration of these Terms and Conditions for any reason, other than as otherwise set forth below, all fees and amounts payable by Client under these Terms and Conditions and the Order that remain unpaid as of the effective date of termination shall become immediately due and payable.  If Client terminates these Terms and Conditions for EcommerceTech’s breach in accordance with Section 4.1, EcommerceTech will refund to Client the pro rata portion of any pre-paid and unused as of the effective date of termination.  Sections 1, 2.2, 2.3, 3, 4.2, 5, 6, 7, 8 and 9 will survive any termination of these Terms and Conditions.
  1. CONFIDENTIALITY.  Each party (the “Disclosing Party”) may from time to time disclose to the other party (the “Receiving Party”) certain proprietary and non-public information regarding the Disclosing Party’s products, services, and business (collectively, “Confidential Information”) in connection with the Services.  For the avoidance of doubt, the fees payable by Client to EcommerceTech hereunder shall be deemed the Confidential Information of EcommerceTech.  The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by these Terms and Conditions, and will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for the purposes of these Terms and Conditions and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder.  The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.  Confidential Information shall not include information: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party without any obligation of confidentiality; (b) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party, or its employees and contractors, has become, generally available to the public; or (d) is independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information.  The Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party without violating its obligations under this Section to the extent that such disclosure is (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under these Terms and Conditions; or (iii) required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.  The Receiving Party will return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control promptly upon the written request of the Disclosing Party.  At the Disclosing Party’s request, the Receiving Party will certify in writing that it has fully complied with its obligations under this Section.  Neither party will disclose any terms of these Terms and Conditions to anyone other than its attorneys, accountants, and other professional advisors under a duty of confidentiality except (1) as required by law, or (2) in connection with a proposed merger, financing, or sale of such party’s business (provided that any third party to whom the terms of these Terms and Conditions are to be disclosed is under a duty of confidentiality).
  2. DISCLAIMER.  ECOMMERCETECH MAKES NO REPRESENTATIONS, WARRANTIES, OR GUARANTEES UNDER THESE TERMS AND CONDITIONS AND EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES, AND GUARANTEES THAT MAY BE PRESCRIBED OR IMPLIED BY APPLICABLE LAW, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY PURPOSE, TITLE, NONINFRINGEMENT, ACCURACY, AND QUIET ENJOYMENT.  ECOMMERCETECH DOES NOT WARRANT THAT THE SERVICES WILL MEET CLIENT'S REQUIREMENTS.  CLIENT ACKNOWLEDGES THAT THEY HAVE NOT ENTERED INTO THESE TERMS AND CONDITIONS IN RELIANCE UPON ANY WARRANTY OR REPRESENTATION.
  3. LIMITATION OF LIABILITY.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL (A) ECOMMERCETECH BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR EXEMPLARY DAMAGES, OR FOR LOST PROFITS OR LOST DATA, OR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS, ARISING OUT OF OR RELATED TO THESE TERMS AND CONDITIONS AND/OR THE SERVICES PERFORMED BY ECOMMERCETECH, WHETHER FROM BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF ECOMMERCETECH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) ECOMMERCETECH’S TOTAL AGGREGATE, CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS AND CONDITIONS AND/OR THE SERVICES PERFORMED BY ECOMMERCETECH, EXCEED THE FEES PAID OR PAYABLE TO ECOMMERCETECH BY CLIENT FOR THE APPLICABLE SERVICES GIVING RISE TO THE LIABILITY. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THESE LIMITS.  ECOMMERCETECH DISCLAIMS ALL LIABILITY OF ANY KIND WITH RESPECT TO ECOMMERCETECH’S SUPPLIERS.  THE LIMITATIONS SET FORTH IN THIS SECTION 7 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN.  THE PARTIES ACKNOWLEDGE THAT THE FEES SPECIFIED IN THESE TERMS AND CONDITIONS REFLECTS THE ALLOCATION OF RISK SET FORTH IN THESE TERMS AND CONDITIONS AND THAT ECOMMERCETECH WOULD NOT ENTER INTO THESE TERMS AND CONDITIONS WITHOUT THE FOREGOING LIMITATIONS ON ITS LIABILITY AND THE WARRANTY DISCLAIMERS CONTAINED HEREIN.
  4. INDEMNITY.  Client hereby agrees to indemnify, defend and hold harmless EcommerceTech and its parents, affiliates, subsidiaries, licensors, third party service providers, and its and their respective officers, directors, employees, agents, representatives, and contractors from and against any and all liability and costs (including, without limitation, attorneys’ fees and costs) arising out of, or relating to: (a) Client’s breach of these Terms and Conditions and/or any terms and conditions or other agreement applicable to any Third Party Materials; (b) allegations that the Client Materials violate any applicable law or infringe or misappropriate the intellectual property rights of any third party; and/or (c) Client’s or any of its employees, contractors and/or agents gross negligence, fraudulent misrepresentation or willful misconduct or violation of any applicable laws, rules or regulations.
  5. GENERAL
  1. Governing Law; Dispute Resolution.  These Terms and Conditions will be governed in all respects by the laws of the state of California, USA, without giving effect to any choice of law principles that would require the application of the laws of a different jurisdiction; provided that, the agreement to arbitration and the dispute resolution provisions set forth in this Section are governed by the Federal Arbitration Act.  Any and all disputes of every kind, arising out of or related to these Terms and Conditions (whether contractual or noncontractual) shall be subject to final, binding and confidential arbitration conducted by the American Bar Association under its Commercial Arbitration Rules in force as of the date such dispute is referred for arbitration (the “Rules”).  To the extent there is any conflict between the provisions set forth in this Section and the Rules or any procedural or other rules issued by the arbitrator, this Section will control.  The parties shall select a mutually acceptable arbitrator knowledgeable about issues relating to the subject matter of these Terms and Conditions. In the event the parties are unable to agree to such a selection, each party will select an arbitrator and the two arbitrators in turn shall select a third arbitrator, all three of whom shall preside jointly over the matter.  The arbitrator shall apply the laws of the state of California, USA.  The place of the arbitration shall be San Francisco, California, United States of America, unless otherwise mutually agreed by the parties in writing. Notwithstanding the foregoing, to the extent feasible, the parties agree the arbitration may be conducted by video conference, telephone, or other telecommunication means.  Each party shall bear its own attorney's fees, costs, and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the arbitrator.  The arbitral proceedings, and all pleadings and written evidence will be in the English language.  Any written evidence originally in a language other than English will be submitted in English translation accompanied by the original or true copy.  The English language version will control.  The arbitration proceedings and any information and materials furnished during the arbitration shall be treated as confidential.  The arbitrator shall not have the power to award damages except to the extent specifically permitted by these Terms and Conditions. Any judgment on the award rendered by the arbitrator shall be binding, final, and confidential, and may be entered in any court of competent jurisdiction, and each of the parties irrevocably submits to the jurisdiction of such court for confirmation or recognition or enforcement of any award rendered by the arbitral tribunal in accordance with, inter alia, the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards.  If either party challenges the right of the other party to obtain arbitration of a dispute between them, or otherwise seeks to file a court action notwithstanding the agreement of the parties to arbitrate disputes, any such legal suit, action or proceeding arising out of or relating to these Terms and Conditions shall be commenced solely in the courts located in San Francisco County, California, United States of America, and each party hereto irrevocably submits to the exclusive jurisdiction and exclusive venue of any such court in any such suit, action or proceeding. In the event of a legal suit, action or proceeding regarding a matter which is determined to be subject to arbitration under these Terms and Conditions, the party which obtains the determination that the matter is subject to arbitration shall be entitled to an award of its costs and reasonable attorney’s fees in such legal suit, action or proceeding.  Notwithstanding the foregoing, either party may seek injunctive or other equitable relief in any court with competent jurisdiction, to prevent immediate harm arising from the violation of a party’s rights regarding Confidential Information or intellectual property rights, pending arbitration of any remaining claims.
  2. Independent Contractors.  The relationship of the parties is that of independent contractors.  Nothing contained herein will be construed to imply a joint venture, employee-employer, or principal-agent relationship between the parties, and neither party will have any right, power, or authority to create any obligation, express or implied, on behalf of the other.  EcommerceTech’s employees are not and shall not be deemed to be employees of Client.
  3. Severability; Waiver.  If any provision of these Terms and Conditions is held to be invalid or unenforceable for any reason by a court of competent jurisdiction, the remaining provisions will continue in full force without being impaired or invalidated in any way. The failure of either party to insist upon strict performance of any provision of these Terms and Conditions, or to exercise any right provided for herein, will not be deemed to be a waiver of the future enforcement of such provision or right, and no waiver of any provision or right will affect the right of the waiving party to enforce any other provision or right herein.
  4. Notices.  All notices permitted or required under these Terms and Conditions shall be in writing and shall be delivered by personal delivery, e-mail, or by certified or registered mail, return receipt requested, and shall be deemed given upon personal delivery, three (3) business days after deposit in the U.S. mail, or upon confirmation of transmission if sent by e-mail.  Notices shall be sent to EcommerceTech via email to: derric@ecommercetech.io, and to Client at the billing address set forth in the applicable invoice issued by EcommerceTech to Client for the Services purchased by Client.  Each party may update their contact information from time-to-time by notice to the other party pursuant to this Section 9.4.
  5. Force Majeure.  Neither party shall be liable for any breach of these Terms and Conditions or for any delay or failure of performance (excluding any default in payment obligations) resulting from any cause beyond such party’s reasonable control, including the weather, acts of civil or military authorities, acts of God, fire, earthquake, civil unrest, act of terror, plague, epidemic, pandemic, outbreaks of infectious disease or any other public health crisis, including quarantine or other employee restrictions, strike, or other labor problem.
  6. Construction.  Section headings are provided solely for reference purposes and in no way define, limit, interpret, or describe the scope or extent of such section or in any way affect these Terms and Conditions.  When used in these Terms and Conditions, the term “including” means “including without limitation,” unless expressly stated to the contrary.
  7. Assignment.  Client may not assign or transfer, by operation of law or otherwise, any of its rights under these Terms and Conditions or delegate any of its duties under these Terms and Conditions to any third party without EcommerceTech’s prior written consent.  Any attempted assignment or transfer in violation of the foregoing will be void.
  8. Non-exclusivity.  Client acknowledges and agrees that the relationship with EcommerceTech is and the Services being provided by EcommerceTech are on a non-exclusive basis.  EcommerceTech shall be free to enter into similar agreements and perform similar Services for other parties, and nothing herein create any obligations in any way that require EcommerceTech to limit or restrict the assignments, activities, or training of employees or contractors of EcommerceTech.
  9. No Third-Party Beneficiaries. The parties hereto expressly agree that there are no third-party beneficiaries of these Terms and Conditions.
  10. Entire Agreement.  These Terms and Conditions constitute the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous representations, understandings, agreements, communications, or purchase orders between the parties, whether written or oral, relating to the subject matter hereof.  Except as otherwise specified in these Terms and Conditions, any amendments, modifications, supplements, or other changes to these Terms and Conditions must be in writing and signed by duly authorized representatives of each party.

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