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Rapid eStore, LLC, an Illinois limited liability
company d/b/a Rapid eStore (“RES”) provides web
design and hosting services and payment solutions to enable merchants to
sell their goods and services to customers over the
internet (“Services”).
Merchant desires to obtain Services from RES as
further described in this Agreement.
1. SERVICES.
RES will provide certain web design, hosting and
support Services for Merchant under this Agreement.
Merchant’s Website shall be hosted on a RES Server
on which several merchants may share the resources
and network capacity of that RES Server. RES shall
have the right to place a link on Merchant's Website
offering RES's Services at no cost to RES.
2. WEB DESIGN.
(a) Merchant shall provide to RES all information
required to build the Merchant Website. Development
of Merchant Website cannot begin until all
information has been properly submitted through the
RES online Website Application. Merchant shall
provide to RES all text, photographs, graphics, logo
data, software, design, information and all other
content (“Merchant Content”) for Merchant Website. RES shall transfer all Merchant Content into
electronic form and a user-accessible format.
Merchant is responsible for the accuracy,
completeness and propriety of information concerning
Merchant’s business, products and services including
Merchant Content and any rights, licenses and
permissions to use materials furnished by Merchant
for inclusion by RES on the Merchant Website.
(b) Website design for unlimited products shall be
provided by RES. RES shall also provide a shopping
cart to Merchant at no additional cost to Merchant.
The Merchant Website will be completed approximately
fifteen (15) Business Days from the time all
Merchant Content and a complete Website Application
has been properly submitted by Merchant to RES. RES
will provide Merchant no more than two (2) hours of
development and design time for the Merchant
Website.
(c) Once a Website Application has been submitted to
RES for use in design of the Merchant Website, RES
will not accept changes from Merchant. All changes
to the Merchant Website are the sole responsibility
of the Merchant and must be completed through the
RES online site editor. Additional products may be
added by Merchant, using the RES online site editor,
after the Merchant Website is complete. Merchant may
revise the Merchant Website itself at any time
utilizing the RES online site editor at Merchant’s
option. At Merchant’s option, revisions by RES to
the Merchant Website will be charged to Merchant at
the rate of fifty dollars ($50) per hour.
3. DOMAIN NAME REGISTRATION.
At Merchant’s request, subject to Merchant’s
agreement to the payment of applicable fees
including acquisition and registration fees and the
RES transfer fee, RES may acquire, register and
administer a Domain Name for Merchant’s Website.
Merchant waives any and all claims that it may have,
or which may later arise, against RES for any and
all damages, losses, claims or expenses arising out
of or related to the acquisition, registration
and/or use of such Domain Name. In addition, RES
reserves the right, in its sole discretion, to
refuse to acquire or register any Domain Name
requested by Merchant, and to discontinue the use of
any Domain Name requested by Merchant. RES shall own
all Domain Names, that are acquired and registered
by RES, until such time, if any, RES transfers
ownership to Merchant which shall only occur after
all payments are made which may be owed by Merchant
including a fifteen dollar ($15) transfer fee.
Merchant authorizes RES to own and utilize the
Domain Name that was purchased by RES. If any other
company alleges that use of a Domain Name conflicts
with their rights, RES shall have no duty to defend
use of such name and may relinquish any rights to
such name without consent of Merchant.
4. MERCHANT REPRESENTATIONS AND WARRANTIES.
(a) Merchant is proficient to set up and use a
computer and other software or hardware, including
but not limited to scanner, word processing, e-mail,
imaging software and internet access.
(b) Merchant is engaged in a business not personal
enterprise and the website will be used solely for
business purposes. The person who signs this
Merchant Agreement on behalf of the Merchant has the
authority to do so and is of legal age to bind the
Merchant.
(c) The products, services, Merchant Content and
Merchant Website will not (i) be false, inaccurate
or misleading; (ii) be fraudulent or involve the
sale of counterfeit or stolen items; (iii) infringe
any third party's copyright, patent, trademark,
trade secret or other proprietary rights or rights
of publicity or privacy; (iv) violate any law,
statute, ordinance or regulation (including, but not
limited to, those governing privacy, publicity,
export control, consumer protection, transmission of
any unsolicited commercial or bulk e-mail, pyramid
or ponzi schemes, unfair competition,
antidiscrimination or false advertising); (v) be
defamatory, libelous, unlawfully threatening or
harassing, or advocating, promoting or providing
assistance involving violence, significant risk of
death or injury, or other unlawful activities; (vi)
be obscene or contain child pornography; (vii)
contain any viruses, Trojan horses, worms, time
bombs, cancelbots, easter eggs or other computer
programming routines that may damage, detrimentally
interfere with, intercept or expropriate any system,
data or personal information; (viii) involve the
collection or attempt to collect personally
identifiable information of any person or entity,
except with the express written consent of that
person or entity and of which consent Merchant shall
maintain a written record for a period of three (3)
years after any termination of this Merchant
Agreement; (ix) be harmful or potentially harmful
to the RES Server structure as determined in RES'
sole discretion, including without limitation
overloading the RES technical infrastructure; (x)
involve subleasing your Merchant account or offering
"free space" on or other access to the Merchant
Website to third parties; (xi) create liability for
RES or expose it to undue risk or otherwise engage
in activities that RES, in its sole discretion,
determines to be harmful to RES, its affiliates, and
their operations, reputation, or goodwill; and (xii)
link directly or indirectly to or include
descriptions of goods or services that violate any
applicable law, statute, ordinance or regulation.
(d) Merchant’s breach of any of the representations
and warranties set forth in this Section of the
Merchant Agreement is cause for immediate suspension
and/or termination by RES under Sections 16 or 17.
5. SOFTWARE LICENSE.
Subject to the terms and conditions of this Merchant
Agreement, RES grants to Merchant a non-exclusive,
non-transferable, revocable, limited license to
remotely access and use the RES online editor
software on servers operated by or for RES ("RES
Servers") through the RES Site solely for the
purpose of revising and maintaining its Merchant
Website hosted by the RES Servers on which Merchant
offers its products or services ("Merchant
Website").
6. E-MAIL ADDRESSES.
(a) RES agrees to provide Merchant with a web based
e-mail account at no charge to Merchant. Merchant
further agrees that Merchant’s failure to abide by RES’s
acceptable use policy shall result in the
termination of Merchant’s e-mail account. Merchant
shall use the Online Application designated by RES
to establish its own e-mail addresses.
(b) Merchant shall be limited to five (5) e-mail
addresses, each of which shall have approximately
ten (10) megabytes of storage space. In the event
that Merchant’s utilization of storage space for any
of the five (5) permitted e-mail addresses exceeds
ten (10) megabytes, Merchant understands and agrees
that incoming e-mail will be rejected and will be
returned to the sender thereof. Merchant shall be
responsible for monitoring Merchant’s use of storage
space and ensuring that there is adequate storage
space available for the use of the e-mail account.
Merchant agrees that RES has no obligation to
back-up any data related to Merchant Website's
operations and Merchant should independently take
appropriate steps to maintain such data in
accordance with its needs and requirements.
(c) Merchant agrees that the e-mail account provided
under this Merchant Agreement is not secure and is
not fit or suitable for the transmission of credit
card numbers and Merchant agrees that Merchant shall
not use the e-mail account for the transmission or
receipt of credit card numbers.
(d) Merchant agrees that Merchant is solely
responsible for any and all anti-virus filtering for
use with Merchant’s e-mail and that no such
filtering shall be provided by RES.
(e) Merchant acknowledges and agrees that
maintenance will be performed from time to time with
respect to the e-mail account, which maintenance may
create an interruption of the use thereof.
(f) Merchant knowingly and voluntarily assumes all
risks associated with its use of the e-mail account
including, but not limited to, loss, destruction, or
damage to the e-mail account or any portion thereof,
regardless of whether a claim for damages is based
upon breach of contract, tort, or other legal
theory. The entire exclusive liability of RES and
sole remedy available to Merchant shall be the
provision of a new e-mail account to replace the
prior e-mail account.
(g) Merchant agrees that RES
has no obligation to provide e-mail accounts,
including for any specified period of time, and may
discontinue the provision of e-mail accounts,
including Merchant’s e-mail account, at any time and
for any reason.
7. MERCHANT WEBSITE AND CONTENT.
(a) Merchant will be solely responsible for the
operation and maintenance of Merchant Website,
including all descriptions of the products and
services offered to customers and accepting,
processing and filing customer orders generated
through Merchant Website, and handling any customer
inquiries, complaints, or disputes arising from
orders or sales generated through Merchant Website.
Merchant has complete discretion over Merchant
Content provided on Merchant Website using the RES
online site editor. Merchant retains all rights,
title and interest in and to all intellectual
property rights embodied in Merchant’s Content,
exclusive of any content provided by RES.
(b) RES has no obligation to Merchant or any third
party, and undertakes no responsibility, to review
Merchant Website, the products or services listed
therein or any other Merchant Content, including but
not limited to user-generated content, published
and/or distributed on Merchant Website to determine
whether any such product, service or Merchant
Content may incur liability to third parties.
Provided, if Merchant breaches any of the
representations and warranties in Section 4 of this
Merchant Agreement, RES is entitled to suspend or
terminate the Merchant Website and/or any access to
information or data related to your Merchant account
and the Merchant Website in accordance with Sections
16 or 17 of this Merchant Agreement.
8. MERCHANT WEBSITE AND CONTENT LICENSE.
During the period that RES provides Services to
Merchant pursuant to this Agreement, Merchant hereby
grants to RES a non-exclusive, irrevocable,
non-sublicenseable, royalty-free, worldwide license
to reproduce, distribute, create derivative works
of, transmit, publicly perform, publicly display and
digitally perform the Merchant Website and Merchant
Content solely for the purposes provided in this
Merchant Agreement.
9. FEES.
(a) RES
shall provide Merchant web design and hosting
service at no cost for six (6) months, after an
initial sign-up fee of $39, from the Effective Date
of the Merchant Agreement. The web design service
will include development of a fifteen (15) page
Merchant Website as further described in Section 2.
Merchant shall pay fees for additional modifications
and design beyond the two (2) hours provided by RES
to create the Merchant Website. After the six (6)
month period has expired, Merchant shall pay RES a
monthly hosting fee of thirty-nine dollars ($39) per
month. All fees are subject to change upon notice.
(b) Merchant hereby authorizes RES to debit all fees
from the credit card that was given during signup by
Merchant. Without limiting RES' other remedies, any
amount that is not paid from Merchant’s designated
credit card account when due will accrue a late fee
at one and one half percent (1.5%) per month or the
maximum rate permitted by applicable law, whichever
is less, from the due date until paid.
10. TAXES.
All fees under this Merchant Agreement exclude all
applicable sales, use, and other taxes and
government charges, whether federal, state or
foreign, and Merchant will be responsible for
payment of all such taxes (other than taxes based on
RES’ income), fees, duties, and charges, and any
related penalties and interest, arising from the
payment of any and all fees under this Merchant
Agreement including the access to or license of the
RES online site editor and performance of the
Services hereunder.
11. DISCLAIMER OF WARRANTIES.
RES, ITS SUPPLIERS AND SERVICE PROVIDERS, PROVIDE
THE RES ONLINE EDITOR, AND SERVICES, ON AN "AS IS"
BASIS AND EXPRESSLY DISCLAIM ANY AND ALL EXPRESS,
IMPLIED OR STATUTORY WARRANTIES, INCLUDING THE
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, QUIET ENJOYMENT, TITLE,
NON-INFRINGEMENT, AND WARRANTIES ARISING FROM A
COURSE OF DEALING, USAGE OR TRADE PRACTICE ARE
EXCLUDED. RES, ITS SUPPLIERS AND SERVICE PROVIDERS,
DO NOT WARRANT THAT THE ONLINE SITE EDITOR OR
SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED AND
MAKE NO REPRESENTATIONS REGARDING UPTIME, USE, DATA
SECURITY, ACCURACY AND RELIABILITY OF THEIR
SERVICES.
12. LIMITATION OF LIABILITY.
IN NO EVENT SHALL RES, ITS SUPPLIERS, OR SERVICE
PROVIDERS, OR THEIR OFFICERS, DIRECTORS, EMPLOYEES,
CONTRACTORS OR AGENTS BE LIABLE FOR LOST PROFITS OR
ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES
ARISING OUT OF OR IN CONNECTION WITH THE ONLINE SITE
EDITOR, THE SERVICES INCLUDING E-MAIL SERVICES OR
THIS MERCHANT AGREEMENT. EXCEPT AS PROVIDED
ELSEWHERE IN THIS AGREEMENT, RES', ITS SUPPLIERS',
AND SERVICE PROVIDERS', CUMULATIVE LIABILITY, AND
THE LIABILITY OF THEIR OFFICERS, DIRECTORS,
EMPLOYEES, CONTRACTORS AND AGENTS TO MERCHANT OR ANY
THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE
GREATER OF (A) THE AMOUNT OF FEES MERCHANT PAYS TO
RES FOR (I) THE SERVICES IN THE 5 MONTH IMMEDIATELY
PRECEDING THE MONTH IN WHICH THE ACTION GIVING RISE
TO THE LIABILITY FIRST AROSE, AND (B) $200 U.S.
DOLLARS ($200).
13. INDEMNITY.
Merchant agrees to indemnify and hold RES, its
suppliers, and service providers, and their
officers, directors, agents, and employees, harmless
from any and all losses, costs, liabilities or
expenses (including without limitation reasonable
attorneys' fees and court costs) incurred or arising
from: (a) any breach of the obligations of Merchant
under this Merchant Agreement; (b) any breach of the
representations and warranties in Section 4 of this
Merchant Agreement, (c) any Merchant Content
provided by Merchant or generated by users of the
Merchant Website, or (d) any claims arising from the
sale or license of goods or services on the Merchant
Website.
14. CUSTOMER DATA, MERCHANT DATA & PRIVACY POLICY.
(a) Merchant shall own all data disclosed by or
collected about (a) an individual or entity that
accesses the Merchant Website to browse or shop
("Customer Data"), and (b) Merchant ("Merchant
Data"). RES does not sell or rent Merchant Data to
third parties for marketing purposes without
Merchant’s explicit consent and RES only uses and
disclose Merchant Data as described in the RES
Privacy Information, that is incorporated herein by
reference and as it may be amended from time to
time.
(b) RES shall collect, store and process Customer
Data and Merchant Data on computers located in the
United States that are protected by physical as well
as technological security devices.
(c) Merchant shall maintain all Customer Data that
is collected by or disclosed to Merchant in trust
and confidence and use and disclose such information
solely in accordance with Merchant’s privacy policy.
Merchant must post, maintain and adhere to
Merchant’s privacy policy that informs the Merchant
Website customers what Customer Data is collected,
how it is used, the effective date of Merchant
privacy policy and how customers of the Merchant
Website can learn of changes to Merchant privacy
policy. You shall include a hyperlink to Merchant
privacy policy on the home page of Your Store and on
all pages where You collect Customer Data. In
addition, You must prominently include within Your
posted privacy policy a statement notifying Your
customers that the Merchant Website is hosted by RES
and that RES has access to aggregated information
about customers of the Merchant Website in order for
RES to analyze performance and make improvements to
RES Services.
15. TERM AND TERMINATION.
This Merchant Agreement shall be effective after
execution by Merchant and delivery of a completed
Online Application to RES (the “Effective Date”).
This Merchant Agreement and all of its terms shall
remain in full force and effect until it is
terminated in accordance with the terms of this
Merchant Agreement. This Merchant Agreement may be
terminated either (a) by RES immediately as provided
in this Merchant Agreement upon breach by Merchant,
or (b) by RES or Merchant upon thirty (30) days
written notice to the other party for any reason.
16. SUSPENSION.
If Merchant becomes delinquent or past due, Merchant
agrees that any Services or part of any Service
including, but not limited to, Merchant Website and
e-mail accounts, shopping cart and hosting in
connection therewith may be suspended by RES all
without any liability of any type and kind on the
part of RES to Merchant. Merchant may request
re-activation of Services, subject to payment by
Merchant of the re-activation fee, once Merchant
account is no longer delinquent or past due. If
Merchant account continues to be delinquent Services
may continue to be suspended and upon notice by RES
this Merchant Agreement shall terminate without any
liability of any type or kind on the part of RES to
Merchant.
17. GOVERNING LAW.
This Agreement shall be governed in all respects by
the laws of the State of Illinois without giving
effect to any conflicts of law principles that would
require the application of the laws of a different
jurisdiction. Personal jurisdiction over, subject
matter jurisdiction over, forum for and venue of any
and all disputes arising directly or indirectly out
of this Merchant Agreement shall lie solely and
exclusively in the federal or state courts of Cook
County, Illinois. Merchant hereby waives all
objections to said forum, jurisdiction and venue and
agree to submit thereto. Such forum, jurisdiction
and venue shall be solely and exclusively in Cook
County, Illinois regardless of whether Merchant is a
plaintiff or defendant in any action arising out of
this Merchant Agreement, or by virtue of any law or
regulation (or purported violation thereof)
whatsoever. RES AND MERCHANT HEREBY WAIVE ANY RIGHT
TO A TRIAL BY JURY IN ANY ACTION CONCERNING ANY
RIGHTS OR REMEDIES UNDER THIS MERCHANT AGREEMENT.
Each party is responsible for its own costs and
expenses, except that Merchant shall be liable for
all costs and expenses including any and all of the
attorneys' fees and court costs of RES in connection
with the collection of any sums due to RES hereunder
(including in bankruptcy).
18. LEGAL COMPLIANCE.
Merchant shall comply with all applicable state,
federal and international laws, statutes, ordinances
and regulations regarding Merchant’s use of the
Services, and Merchant’s listing and sale of
products and services on the Merchant Website.
19. NO AGENCY.
Merchant and RES are independent contractors, and no
agency, partnership, joint venture,
employee-employer or franchiser-franchisee
relationship is intended or created by this Merchant
Agreement.
20. FORCE MAJEURE.
Except for the payment of any fees due and payable
under this Merchant Agreement, neither party's delay
in the performance of any duties or obligations
under this Merchant Agreement will be considered a
breach of this Merchant Agreement if such delay is
caused by a labor dispute, shortage of materials,
fire, earthquake, flood, failures in electric power
or telecommunications services, or any other event
beyond the control of the party.
21. NOTICES.
Notice shall be deemed given twenty four (24) hours
after e-mail is sent, unless the sender is notified
that the e-mail address is invalid. Alternatively,
sender may give the other party notice by certified
mail, postage prepaid and return receipt requested,
to the address provided at the end of this Merchant
Agreement. In such case, notice shall be deemed
given three (3) days after the date of mailing.
22. ASSIGNMENT.
Merchant shall not assign, transfer or delegate this
Merchant Agreement or any rights or obligations
hereunder. Any assignment, transfer or delegation in
contravention of the foregoing provision shall be
null and void. Merchant agrees that this Merchant
Agreement may be assigned by RES, in RES' sole
discretion.
23. NO THIRD PARTY BENEFICIARY.
Merchant acknowledges and agree that nothing herein,
express or implied, is intended to nor shall be
construed to confer upon or give to any person,
other than the parties, any interests, rights,
remedies or other benefits with respect to or in
connection with any agreement or provision contained
herein or contemplated hereby.
24. SEVERABILITY; WAIVER.
If any provision of this Merchant Agreement is held
to be invalid or unenforceable, such provision shall
be struck and the remaining provisions shall be
enforced. RES' failure to act with respect to a
breach by Merchant does not waive RES' right to act
with respect to subsequent or similar breaches.
25. CONSTRUCTION.
Headings are for reference purposes only and in no
way define, limit, construe or describe the scope or
extent of such section. When used in this Agreement,
the term "including" means "including without
limitation," unless expressly stated to the
contrary.
26. SURVIVAL.
All of the provisions of this Merchant Agreement
that by their nature are intended to survive the
termination of this Merchant Agreement shall survive
and remain in full force and effect, including, but
not limited to Sections 3, 6, 10, 12, 13, 14, 16, 17
and 18.
27. ENTIRE AGREEMENT.
This Merchant Agreement sets forth the entire
understanding and agreement between Merchant and RES
with respect to the subject matter hereof.
28. AMENDMENT.
No provision of this Merchant Agreement may be
amended, modified, or waived except by a writing
signed by RES and Merchant. This Merchant Agreement
including rates and fees may be amended by RES from
time to time upon written notice of the change(s) in
terms and conditions. Any amendment to this Merchant
Agreement shall be effective on the later of the
effective date specified in the notice or seven (7)
days after the notice is sent to Merchant (or in the
manner prescribed for notice herein). Acceptance of
Services by Merchant on or after any effective date
constitutes acceptance of any amendment.
29. AGREEMENT.
All the information provided on the Signup Form is
complete and correct and RES has the authority to
verify any information it chooses regarding the
Merchant or its owners including any information
provided by the Merchant on the Signup Form. The
Merchant intends to enter into this Merchant
Agreement by providing an electronic signature to
this document. All notices may be provided to
Merchant either in writing at the street address or
electronically at the e-mail address provided below
or as updated in RES’ records from time to time by
Merchant. |
