TERMS OF
SERVICE
This
Terms of Service Agreement ("Agreement") is entered into as
of the date on which the Customer first applies for and/or uses the
Starling Services (as defined below) ("Effective Date") by
and between STARLING WEB MARKETING DIRECT, LLC., and its affiliates
("Starling", “we”, “us” and “our”) and Customer
("Customer", “you” and “your”) (individually, a “Party”
and collectively the “Parties”).
R E C I T A L S:
WHEREAS,
Starling is a service provider that offers access to, and use of, certain
applications and design services including a fully integrated set of
web-based modules and e-commerce storefront templates, design, software
and shopping cart functionality ("Starling Services" or “services”)
and implementation support to initiate such access and use.
WHEREAS,
Customer wants to access and use the Starling Services under the terms
and conditions set forth in this Agreement.
NOW
THEREFORE, in consideration of the mutual covenants and agreements hereinafter
set forth, and for other good and valuable consideration, Customer and
Starling hereby agree to the foregoing and as follows:
1. INTRODUCTION. This Agreement represents the terms and conditions under which Starling shall provide Customer access to and use of the Starling Services package or packages subscribed to (“Starling Services Package”), which may be amended from time to time to reflect additional or amended services ordered by Customer. Additional services and/or deliverables may be procured consistent with the terms of this Agreement. Any attempt by you, the Customer, to alter or amend the terms and conditions contained in this Agreement through conflicting or inconsistent terms in any other document shall be void and of no force and effect. Further, this Agreement explains our obligations to you, and your obligations to us in relation to the Starling Service(s) you purchase. By purchasing or otherwise applying for Starling Service(s), you agree to establish an account with us for such services. When you use your account or permit someone else to use your account to purchase or otherwise acquire access to additional service(s) or to modify or cancel your service(s) (even if we were not notified of such authorization), this Agreement as amended covers any such service or actions. Additionally, you agree that each person listed in your account information as being associated with your account for any services provided to you (including, but not limited to, domain name registration services) is your agent with full authority to act on your behalf with respect to such services in accordance with the permissions granted, and that each of those persons shall have the authority, without limitation, to terminate, transfer (where transfer is permitted by the Agreement), or modify such services or your account information, or purchase additional services. Any acceptance of your application(s) or requests for our services and the performance of our services will occur at our offices in Salt Lake County, Utah, the location of our principal places of business. Except as otherwise expressly set forth in this Agreement, you agree that if you list, directly or by default, Starling as a contact for your account and/or any of the services in your account, we have the right, without notice, to remove our name and/or information from any such account or service and to replace the same with the name and/or information provided by you for any other contact associated with that account or service.
2. VARIOUS SERVICES. Sections 1 through 30 apply to any and all Starling Services that you purchase. The terms and conditions set forth in the Schedules of this Agreement apply only to customers who have purchased the services referenced in those Schedules. In the event of any inconsistency between the terms of Sections 1 through 30 and the terms of the Schedules, the terms of the Schedules shall control with regard to the applicable service(s). IMPORTANT NOTICE CONCERNING BUNDLED SERVICES: If you purchase services that are sold together as a "bundled" package (e.g., you select a Web Site package that includes both a domain name and a Starling Web Site, as opposed to your purchasing such services separately), termination of any part of the services will result in termination of all services provided as part of the bundled package. Please see Section 10(d) of this Agreement for more information. You acknowledge and agree that some or all of the services you purchase or receive from us may be provided by one or more vendors, contractors or affiliates selected by Starling in its sole discretion.
3. FEES, PAYMENT AND TERM OF SERVICE. As consideration for the services you purchased, you agree to pay Starling the applicable service(s) fees set forth on our Web site at the time of your selection, or, if applicable, upon receipt of your invoice from Starling. All fees are due immediately and are non-refundable, except as otherwise expressly noted in one or more of the Schedules to this Agreement or as such fees are billed by Starling under an invoice to a Customer that expressly permits payment for Services by a Customer within thirty (30) days after Starling has sent the Customer such invoice (a “Credit Customer”). Starling may require a Customer to successfully complete a credit application prior to such Customer qualifying to become a Net-30 Customer. Any renewal of your services with us is subject to our then current terms and conditions, including, but not limited to, successful completion of any applicable authentication procedure, and payment of all applicable service fees at the time of renewal. Except with respect to service to which you subscribe on a monthly basis, we will endeavor to provide you notice prior to the renewal of your services at least fifteen (15) days in advance of the renewal date. Additional payment terms may apply to the Starling services you purchase, as set forth in the applicable Schedules to this Agreement. We may provide you with an opportunity to "opt in" to our automatic renewal process in accordance with the instructions (and subject to your agreement to the terms and conditions pertaining to that process) on our Web site. We are authorized to charge your credit card or other payment method (such as PayPal®) on file for the renewal of the service(s). In any event, you are solely responsible for the credit card or payment information you provide to Starling and must promptly inform Starling of any changes thereto (e.g., change of expiration date or account number). In addition, you are solely responsible for ensuring the services are renewed. Starling shall have no liability to you or any third party in connection with the renewal as described herein, including, but not limited to, any failure or errors in renewing the services. In order to process a renewal under our auto-renew service, we may use third-party vendors for the purpose of updating the expiration date and account number of your credit card or payment method on file. Such third-party vendors maintain relationships with various credit card issuers and may be able to provide us with the updated expiration date and account number for your credit card by comparing the information we have on file with the information the third-party has on file. By selecting our auto-renew service, you acknowledge and agree that we may share your credit card or other payment method information with such a third-party vendor for the purpose of obtaining any update to your credit card expiration date, account number, or payment account. You agree to pay all value added, sales and other taxes (other than taxes based on Starling income) related to Starling services or payments made by you hereunder. All payments of fees for Starling services shall be made in U.S. dollars. Set up fees, if any, will become payable on the applicable effective date for the applicable Starling services. All sums due and payable that remain unpaid after any applicable cure period herein will accrue interest as a late charge of 1.5% per month or the maximum amount allowed by law, whichever is less. In the event of non-payment by a Credit Customer on any amount of any invoice, Starling reserves the right to refer such invoice and Customer to a collection agency in order for Starling to secure payment on the invoice. Starling may terminate any or all of the Services of a Credit Customer who fails to pay an invoice in a timely fashion. Starling may charge a late fee(s) to Credit Customers for late payment of an invoice or a reinstatement fee(s) to Credit Customers who wish to reinstate Service(s) that have been terminated due to non-payment.
4. ACCURATE INFORMATION. You agree to: (1) provide certain true, current, complete and accurate information about you as required by the application process; and (2) maintain and update according to our modification procedures the information you provided to us when purchasing our services as needed to keep it current, complete and accurate. We rely on this information to send you important information and notices regarding your account and our services. You agree that Starling (itself or through its third party service providers) is authorized to change any address information associated with your account (e.g., registrant address, billing contact address, etc.), and you agree that Starling may use and rely upon any such changed address information for all purposes in connection with your account (including the sending of invoices and other important account information) as though such changes had been made directly by you.
5. PRIVACY. Our privacy
statement, (a) for the Sxorch ecommerce platform and/or value added
services purchased through www.sxorch.com or www.sxorchdirect.com is located on our Web site at http://www.sxorch.com/privacy-policy
6. OWNERSHIP. Except as otherwise set forth herein, all right, title and interest in and to all, (i) registered and unregistered trademarks, service marks and logos; (ii) patents, patent applications, and patentable ideas, inventions, and/or improvements; (iii) trade secrets, proprietary information, and know-how; (iv) all divisions, continuations, reissues, renewals, and extensions thereof now existing or hereafter filed, issued, or acquired; (v) registered and unregistered copyrights including, without limitation, any forms, images, audiovisual displays, text, software and (vi) all other intellectual property, proprietary rights or other rights related to intangible property which are used, developed, comprising, embodied in, or practiced in connection with any of the Starling services identified herein ("Starling Intellectual Property Rights") are owned by Starling or its licensors, and you agree to make no claim of interest in or ownership of any such Starling Intellectual Property Rights. You acknowledge that no title to the Starling Intellectual Property Rights is transferred to you, and that you do not obtain any rights, express or implied, in the Starling or its licensors' service, other than the rights expressly granted in this Agreement. To the extent that you create any Derivative Work (any work that is based upon one or more preexisting versions of a work provided to you, such as an enhancement or modification, revision, translation, abridgement, condensation, expansion, collection, compilation or any other form in which such preexisting works may be recast, transformed or adapted) such Derivative Work shall be owned by Starling and all right, title and interest in and to each such Derivative Work shall automatically vest in Starling. Starling shall have no obligation to grant you any right in any such Derivative Work.
7. EXCLUSIVE REMEDY; TIME LIMITATION ON FILING ANY CLAIM. YOU AGREE THAT OUR ENTIRE LIABILITY, AND YOUR EXCLUSIVE REMEDY, IN LAW, IN EQUITY, OR OTHERWISE, WITH RESPECT TO ANY STARLING SERVICE(S) PROVIDED UNDER THIS AGREEMENT AND/OR FOR ANY BREACH OF THIS AGREEMENT IS SOLELY LIMITED TO THE AMOUNT YOU PAID FOR SUCH SERVICE(S) DURING THE TERM OF THIS AGREEMENT. IN NO EVENT SHALL STARLING, ITS LICENSORS AND CONTRACTORS (INCLUDING, BUT NOT LIMITED TO, THIRD PARTIES PROVIDING SERVICES AS PART OF THE SUBSCRIPTION SERVICE FOR WEBSITES FROM STARLING) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES EVEN IF STARLING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT THAT A STATE DOES NOT PERMIT THE EXCLUSION OR LIMITATION OF LIABILITY AS SET FORTH HEREIN STARLING'S LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW IN SUCH STATES. Starling and its licensors and contractors disclaim any and all loss or liability resulting from, but not limited to: (1) loss or liability resulting from access delays or access interruptions; (2) loss or liability resulting from data non-delivery or data mis-delivery; (3) loss or liability resulting from acts of god; (4) loss or liability resulting from the unauthorized use or misuse of your account number, password or security authentication option; (5) loss or liability resulting from errors, omissions, or misstatements in any and all information or service(s) provided under this agreement; (6) loss or liability relating to the deletion of or failure to store e-mail messages; (7) loss or liability resulting from the development or interruption of your web site or your Starling web site; (8) loss or liability from your inability to use our e-mail service, web site manager service or any component of the subscription service (for websites from Starling); (9) loss or liability that you may incur in connection with our processing of your application for our services, our processing of any authorized modification to your domain name record or your agent's failure to pay any fees, including the initial registration fee or re-registration fee; (10) loss or liability as a result of the application of our dispute policy; or (11) loss or liability relating to limitations, incompatibilities, defects, or other problems inherent in xml, or any other standard not under Starling’s sole control. YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY OF OUR SERVICES MUST BE FILED IN THE JURISDICTION SET FORTH IN THIS AGREEMENT WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR SUCH CLAIM SHALL BE FOREVER BARRED.
8. DISCLAIMER OF WARRANTIES. YOU AGREE THAT YOUR USE OF OUR SERVICE(S) OR OUR LICENSORS' SERVICES IS SOLELY AT YOUR OWN RISK. YOU AGREE THAT ALL OF SUCH SERVICES ARE PROVIDED ON AN "AS IS," AND "AS AVAILABLE" BASIS, EXCEPT AS OTHERWISE NOTED IN THIS AGREEMENT. WE AND OUR LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NEITHER STARLING NOR OUR LICENSORS MAKE ANY WARRANTY THAT SERVICE(S) LICENSED HEREUNDER WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICE(S) WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NEITHER WE NOR OUR LICENSORS MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE(S) OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH OUR SERVICES. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF OUR SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. WE MAKE NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH ANY OF OUR SERVICES OR ANY TRANSACTIONS ENTERED INTO THROUGH SUCH SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OUR SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN, YOU MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE. TO THE EXTENT JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. WE ARE NOT RESPONSIBLE FOR AND SHALL HAVE NO LIABILITY WITH RESPECT TO ANY PRODUCTS AND/OR SERVICES PURCHASED BY YOU FROM A THIRD PARTY.
9. INDEMNITY. You agree to release, indemnify, defend and hold harmless Starling and any of our (or their) contractors, agents, employees, officers, directors, shareholders, affiliates and assigns from all liabilities, claims, damages, costs and expenses, including reasonable attorneys' fees and expenses, relating to or arising out of (a) this Agreement or the breach of your warranties, representations and obligations under this Agreement, (b) the Starling services or your use of such services, including without limitation infringement or dilution by you, or someone else using our service(s) from your computer, (c) any intellectual property or other proprietary right of any person or entity, (d) a violation of any of our operating rules or policies relating to the service(s) provided, (e) any information or data you supplied to Starling, including, without limitation, any misrepresentation in your application, if applicable, (f) the inclusion of meta-tags or other elements in any website created for you or by you via the Starling services, or (g) any information, material, or services available on your licensed Starling Web Site . When we are threatened with suit or sued by a third party, we may seek written assurances from you concerning your promise to indemnify us; your failure to provide those assurances may be considered by us to be a material breach of this Agreement. We shall have the right to participate in any defense by you of a third-party claim related to your use of any of the Starling services, with counsel of our choice at our own expense. We shall reasonably cooperate in the defense at your request and expense. You shall have sole responsibility to defend us against any claim, but you must receive our prior written consent regarding any related settlement. The terms of this paragraph will survive any termination or cancellation of this Agreement.
10. TERMINATION.
a. By You. You may terminate this Agreement upon at least thirty (30) days written notice to Starling for any reason.
b. By Us. We may terminate
this Agreement or any part of the Starling services at any time in the
event you breach any obligation hereunder, fail to respond within ten
(10) calendar days to an inquiry from us concerning the accuracy or
completeness of the information referred to in Section 4 of this Agreement,
if we determine in our sole discretion that you have violated the Starling
Acceptable Use Policy, which is located on our Web site at http://starlinginteractive.com
c. Effect of Termination. Except as otherwise expressly set forth herein or on our Web site, Starling will cease charging your credit card, if applicable, for any monthly service fees as of the expiration of the monthly billing cycle in which the termination is effective. Unless otherwise specified in writing by Starling, you will not receive any refund for payments already made by you as of the date of termination, and, you may incur additional fees (in the case of a monthly or annual subscription being paid over time, as provided in various Schedules below). If termination of this Agreement is due to your default hereunder, you shall bear all costs of such termination, including any reasonable costs Starling incurs in closing your account. You agree to pay any and all costs incurred by Starling in enforcing your compliance with this Section, including attorney fees and costs. Upon termination, you shall destroy any copy of the materials licensed to you hereunder and referenced herein. You agree that upon termination or discontinuance for any reason, we may delete all information related to you on the Starling service, if applicable. In addition to the terms set forth herein, certain Starling services may have additional terms regarding termination, which are set forth in the applicable Schedule.
11. REPRESENTATIONS AND WARRANTIES. You agree and warrant that: (i) neither your registration nor use of the any of the Starling services nor the manner in which you intend to use such Starling services will directly or indirectly infringe the legal rights of a third party, (ii) you have all requisite power and authority to execute this Agreement and to perform your obligations hereunder, (iii) you have selected the necessary security option(s) for your domain name registration record, (iv) you are of legal age to enter into this Agreement (you are at least 18 years of age); and (vi) you agree to comply with all applicable laws and regulations.
12. MODIFICATIONS TO AGREEMENT. Except as otherwise provided in this Agreement, you agree, during the term of this Agreement, that we may: (1) revise the terms and conditions of this Agreement; and/or (2) change part of the services provided under this Agreement at any time. Any such revision or change will be binding and effective 30 days after posting of the revised Agreement or change to the service(s) on Starling Web sites, or upon notification to you by e-mail or United States mail. You agree to periodically review our Web sites, including the current version of this Agreement available on our Web sites, to be aware of any such revisions. If you do not agree with any revision to the Agreement, you may terminate this Agreement at any time by providing us with notice. Notice of your termination will be effective on receipt and processing by us. Any fees paid by you if you terminate your Agreement with us are nonrefundable, except as expressly noted otherwise in one or more of the Schedules to this Agreement, but you will not incur any additional fees. By continuing to use Starling services after any revision to this Agreement or change in service(s), you agree to abide by and be bound by any such revisions or changes. We are not bound by nor should you rely on any representation by (i) any agent, representative or employee of any third party that you may use to apply for our services; or in (ii) information posted on our Web site of a general informational nature. No employee, contractor, agent or representative of Starling is authorized to alter or amend the terms and conditions of this Agreement.
13. ACCOUNT ACCESS. To access or use the Starling services or to modify your account, you may be required to establish an account and obtain a login name, account number, password and/or passphrase. You authorize us to process any and all account transactions initiated through the use of your password and/or passphrase. You are solely responsible for maintaining the confidentiality of your password and passphrase. You must immediately notify us of any unauthorized use of your password or passphrase, and you are responsible for any unauthorized activities, charges and/or liabilities made through your password or passphrase. In no event will we be liable for the unauthorized use or misuse of your login name, account number, password or passphrase. You agree that we may log off any account that is inactive for an extended period of time.
14. AGENTS. You agree that, if your agent (e.g., your designated contact persons, Internet Service Provider, employee or other authorized persons) purchased our service(s) on your behalf, you are nonetheless bound as a principal by all terms and conditions herein, including the domain name dispute policy. Your continued use of our services ratifies any unauthorized actions of your agent. By using your login name, account number or password, or otherwise purporting to act on your behalf, your agent certifies that he or she is authorized to apply for our services on your behalf, that he or she is authorized to bind you to the terms and conditions of this Agreement, that he or she has apprised you of the terms and conditions of this Agreement, and that he or she is otherwise authorized to act on your behalf. In addition, you are responsible for any errors made by your agent.
15. RIGHT OF REFUSAL. We, in our sole discretion, reserve the right to refuse to register your chosen domain name, issue you a digital certificate, or register you for other Starling service(s), or to delete your chosen domain name within the first thirty (30) calendar days from receipt of your payment for such services. In the event we do not register your chosen domain name, issue you a digital certificate, or register you for other Starling service(s), or we delete your chosen domain name or other Starling service(s) within such thirty (30) calendar day period, we agree to refund any applicable fee(s) you have paid. You agree that we shall not be liable to you for loss or damages that may result from our refusal to register your chosen domain name, refusal to issue a digital certificate, the deletion of your chosen domain name or refusal to register you for other Starling service(s).
16. NOTICES AND ANNOUNCEMENTS. (a) Except as expressly provided otherwise herein, all notices to Starling shall be in writing and delivered via overnight courier or certified mail, return receipt requested to Starling Web Marketing Direct, LLC, Attention: Customer Concerns, 1545 South 4800 West, Suite 200, Salt Lake City, UT 84104. All notices to you shall be delivered to your mailing address or e-mail address as provided in your account information (as updated by you pursuant to this Agreement) or to any e-mail address associated with your domain name registration(s) with Starling. (b) You authorize us to contact you as our customer via telephone, at the number provided by you in your account information (as updated by you pursuant to this Agreement), which telephone number is incorporated herein by reference, e-mail or postal mail regarding information that we deem is of potential interest to you. Notices and announcements may include commercial e-mails, telephone solicitations and other notices describing changes, upgrades, new products and services or other information pertaining to Internet security or to enhance your identity on the Internet and/or other relevant matters.
17. SEVERABILITY. You agree that the terms of this Agreement are severable. If any term or provision is declared invalid or unenforceable, in whole or in part, that term or provision will not affect the remainder of this Agreement; this Agreement will be deemed amended to the extent necessary to make this Agreement enforceable, valid and, to the maximum extent possible consistent with applicable law, consistent with the original intentions of the parties, and the remaining terms and provisions will remain in full force and effect.
18. ENTIRE AGREEMENT. You agree that this Agreement, the rules and the policies incorporated by reference in this Agreement (including, without limitation, the dispute policy and the privacy statement) are the entire, complete and exclusive agreement between you and us regarding our services and supersede all prior agreements and understandings, whether written or oral, or whether established by custom, practice, policy or precedent, with respect to the subject matter of this Agreement, including, without limitation, any purchase order provided by you for the services.
19. ASSIGNMENT AND RESALE. Except as otherwise set forth herein, your rights under this Agreement are not assignable or transferable. Any attempt by your creditors to obtain an interest in your rights under this Agreement, whether by attachment, levy, garnishment or otherwise, renders this Agreement voidable at our option. You agree not to reproduce, duplicate, copy, sell, resell or otherwise exploit for any commercial purposes any of the services (or portion thereof) without Starling’s prior express written consent.
20. GOVERNING LAW.
a. You and Starling agree that this Agreement and any disputes hereunder shall be governed in all respects by and construed in accordance with the laws of the State of Utah, United States of America, excluding its conflict of laws rules. You and we each agree to submit to exclusive subject matter jurisdiction, personal jurisdiction and venue of the United States District Court in Salt Lake County, Utah for any disputes between you and Starling under, arising out of, or related in any way to this Agreement (whether or not such disputes also involve other parties in addition to you and Starling). If there is no United States District Court located in Salt Lake County, Utah for any such disputes, you and we agree that exclusive jurisdiction and venue shall be in the state courts located Salt Lake County, Utah.
b. The parties hereby waive any right to jury trial with respect to any action brought in connection with this Agreement.
c. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.
21. AGREEMENT TO BE BOUND. By applying for a Starling service(s) through our online application process or otherwise, or by using the service(s) provided by Starling under this Agreement, you acknowledge that you have read and agree to be bound by all terms and conditions of this Agreement and documents incorporated by reference.
22. INDEPENDENT PARTIES. Neither party nor their employees, consultants, contractors or agents are agents, employees or joint ventures of the other party, and they do not have any authority to bind the other party by contract or otherwise to any obligation. Each party shall ensure that the foregoing persons shall not represent to the contrary, either expressly, implicitly, by appearance or otherwise.
23. WAIVER. No waiver of any provision of this Agreement shall be effective unless it is in writing and signed by an authorized representative of Starling. The remedies of Starling under this Agreement shall be cumulative and not alternative, and the election of one remedy for a breach shall not preclude pursuit of other remedies. The failure of a party, at any time or from time to time, to require performance of any obligations of the other party hereunder shall not affect its right to enforce any provision of this Agreement at a subsequent time, and the waiver of any rights arising out of any breach shall not be construed as a waiver of any rights arising out of any prior or subsequent breach.
24. EXPORT RESTRICTIONS. You acknowledge and agree that you shall not import, export, or re-export directly or indirectly, any commodity, including your products incorporating or using any Starling services in violation of the laws and regulations of any applicable jurisdiction.
25. U.S. Government Users. In the event any software is provided by Starling to a U.S. Government User, the software and accompanying documentation which are used as part of the Starling service are "commercial items," as such terms are defined at 48 C.F.R. 2.101 (Oct 1995), consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (Sep 1995) and is provided to the U.S. Government only as a commercial end item. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (Jun 1995), all U.S. Government entities acquiring the use of the Service and accompanying documentation shall have only those rights set forth herein.
26. FORCE MAJEURE. Neither party shall be deemed in default hereunder, nor shall it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder due to causes beyond its control including, but not limited to: earthquake; flood; fire; storm; natural disaster; act of God; war; terrorism; armed conflict; labor strike; lockout; boycott; supplier failures, shortages, breaches, or delays; or any law, order, regulation, direction, action or request of the government, including any federal, state and local governments having or claiming jurisdiction over Starling, or of any department, agency, commission, bureau, corporation or other instrumentality of any federal, state, or local government, or of any civil or military authority; or any other cause or circumstance, whether of a similar or dissimilar nature to the foregoing, beyond the reasonable control of the affected party, provided that the party relying upon this section (i) shall have given the other party written notice thereof promptly and, in any event, within five (5) days of discovery thereof and (ii) shall take all steps reasonably necessary under the circumstances to mitigate the effects of the force majeure event upon which such notice is based; provided further, that in the event a force majeure event described in this Section extends for a period in excess of thirty (30) days in the aggregate, Starling may immediately terminate this Agreement.
27. HEADINGS. The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section.
28. SURVIVAL. In the
event this Agreement terminates as provided herein, Sections 1, 2, 3,
6, 7, 8, 9, 10(c), 14, and 16 through 28 of this Agreement shall survive
such expiration or termination.
SERVICE SPECIFIC TERMS: The
following terms apply in addition to Sections 1 through 28 only if you
have purchased the particular service described:
SCHEDULE Y TO STARLING SERVICE AGREEMENT
ADDITIONAL TERMS APPLICABLE TO E-COMMERCE SERVICES
In addition to the terms and conditions in the General Provisions and other applicable Schedules in the Agreement, the following additional terms and conditions shall apply to any and all purchases of Sxorch E-Commerce Services (as defined below).
1. Description of Service. Starling may make available for purchase, from time to time, a variety of e-commerce packages, stand-alone e-commerce services, optional add-on e-commerce services and e-commerce software, as published on the Starling Interactive or Sxorch website (collectively, "E-Commerce Services"). The E-Commerce Services include, but are not limited to, shopping cart functionality, e-commerce templates, storefront design, support and hosting, order and payment processing, and other various services that may be offered from time to time by Starling. Starling reserves the right to amend its E-Commerce Services offerings and to add, delete, suspend or modify the terms and conditions of the E-Commerce Services, at any time and from time to time, and to determine whether and when any such changes apply to both existing and future customers.
2. Software License and Proprietary Rights. During the term of this Agreement, Customer will have a limited, revocable, non-transferable and non-exclusive license for Customer to use the E-Commerce Services, including but not limited to any software, and related documentation solely for Customer to provide business related services over the internet that are consistent with the terms and conditions of this Agreement as well as any applicable state, federal, or international law. Customer agrees that Customer and its agents will not: (a) sell, lease, transfer, license or sublicense the E-Commerce Services; (b) modify, change, alter, translate, create derivative works from, reverse engineer, disassemble or decompile the E-Commerce Services in any way for any reason; (c) provide, disclose, divulge or make available to, or permit use of the E-Commerce Services by any third party; (d) copy or reproduce all or any part of the E-Commerce Services (except as expressly provided for herein); (e) interfere, or attempt to interfere, with the E-Commerce Services in any way; (f) engage in spamming, mail bombing, spoofing or any other fraudulent, illegal or unauthorized use of the E-Commerce Services; (g) knowingly introduce into or transmit through the E-Commerce Services or any other services any virus, worm, trap door, back door, timer, clock, counter or other limiting routine, instruction or design; (h) remove, obscure or alter any copyright notice, trademarks or other proprietary rights notices affixed to or contained within the E-Commerce Services; (i) engage in or allow any action involving the E-Commerce Services that is inconsistent with the terms and conditions of this Agreement; or (j) cause, assist or permit any third party to do any of the foregoing. No right, title or interest of intellectual property or other proprietary rights in and to the E-Commerce Services and/or other products, services or software made available under this Agreement is transferred to Customer hereunder. Starling, its wholly-owned subsidiaries and affiliates and its Third Party Licensors (as defined below) retain all right, title and interests, including, without limitation, all copyright, trade secret, intellectual property and other proprietary rights in and to the E-Commerce Services and/or other products, services or software provided under this Agreement.
3. Audit Rights. If a customer has purchased any Starling software or has obtained FTP access to the Starling software or other E-Commerce Services, Starling shall have the right, during the term of this Agreement and for a period of six (6) months thereafter to access Customer's location and files to inspect Customer's or your agent's use of the E-Commerce Services, as well as computers and equipment used in connection therewith. Customer shall cooperate fully with any such audit or inspection. In the event that any audit shows any misuse, violation or breach of the E-Commerce Services or this Agreement, Starling shall be entitled to pursue any remedies available to it under this Agreement or otherwise at law or in equity, and to or suspend, revoke, or terminate E-Commerce Services if you are still a Starling customer.
4. Availability, Downtime and General Services. In addition to the provisions in Sections 7 and 8 of this Agreement, the parties acknowledge that since the Internet is neither owned nor controlled by any one entity, Starling makes no guarantees that any given user will be able to access the E-Commerce Services at any given time. Starling shall not be liable to Customer for failure of accessibility to the E-Commerce Services or any potential or actual losses that Customer may suffer from Customer's inability to access or use the E-Commerce Services or your customer's inability to access any websites that may be supported or hosted by E-Commerce Services. Starling provides all E-Commerce Services and any software related to those services to the Customer on an "as is" basis and does not guarantee that the E-Commerce Services or any related software has no errors, defects or bugs or will function properly. Customer agrees that Starling is not responsible in any way for any malfunction or downtime in the E-Commerce Services or related software and any damage, injury or lost profits that may arise from such malfunction or downtime. Starling makes no guarantee that the E-Commerce Services that the Customer purchases will operate seamlessly and without error with Customer's own hardware, software or other services (including third party products) that Customer currently uses. Starling makes no guarantees regarding system uptime, including but not limited to, the uptime for hosting a Customer's store(s) on Starling or third party systems. From time to time, and as may be necessary to maintain such systems and Starling hardware, Starling reserves the right to take its servers and other hardware offline for repairs, upgrades or routine maintenance. Customer agrees and understands that Starling E-Commerce Services, including the hosting of a Customer's store, may be dependant on third party services that Starling can not control. Customer expressly agrees that the availability of those third party services may impact Customer's E-Commerce Services and therefore does not hold Starling liable for any actions of a third party that may adversely impact Customer's E-Commerce Services. Any uptime calculation or percentage that is provided as a part of the E-Commerce Services does not include routine maintenance, unexpected downtime caused by network issues or third party vendors, and occurrences that are outside the control of Starling, including but not limited to the Force Majeure occurrences that are outlined in Section 27 of this Agreement.
5. Terms and Conditions of Starling's Licensors. Customer acknowledges and agrees that the E-Commerce Services are provided, in some cases, by third party Licensors to Starling (hereinafter "Third Party Licensors"). For all E-Commerce Services that are provided by Third Party Licensors to Starling, Customer agrees with and shall abide by all Third Party Licensor terms and conditions, if any. Such Third Party Licensor terms and conditions are available upon request (the "Additional Terms and Conditions"). Any Additional Terms and Conditions are in addition to and supplement the terms and conditions provided in this Agreement. Customer acknowledges and agrees that it will be subject to all Additional Terms and Conditions and that all such Additional Terms and Conditions shall be incorporated into this Agreement, to the extent those Additional Terms and Conditions do not conflict with the terms and conditions of this Agreement, as if set forth fully herein. Customer further agrees that it will be subject to all Additional Terms and Conditions where Customer elects to add services to its E-Commerce Services package.
6. Changes to Starling Licensors. Customer acknowledges that Starling may, at its sole discretion, change any Third Party Licensors that provide services under this Agreement, or add or delete discrete services from the E-Commerce Services. In the event that Starling changes Third Party Licensors, Starling may provide Customer with notification of changes in Third Party Licensors and refer Customer to information posted on Starling’s website relative to that change which shall become Additional Terms and Conditions for the purposes of this Agreement.
7. Assistance. Starling will provide at its discretion certain materials, trouble-shooting and other assistance aids at its web site as well as certain limited telephone assistance and support, all as it deems necessary.
8. Refund. Refunds for
certain E-Commerce Services are only provided in limited instances and
solely and entirely at Starling’s discretion.