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The INSTASITE® Service ("Service") is operated by Shupe Chang Technologies, Inc., a Hawaii corporation ("SCT"). This Service Agreement governs the Service to be provided by SCT to any individual or entity registering for the Service ("Merchant"). Every Merchant should take the time to read and understand the entire Service Agreement as registration and use of the Service constitutes Merchant's express agreement to comply with and be bound by all of the terms and conditions set forth herein.
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| 1. |
DESCRIPTION OF THE SERVICE. |
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The Service is intended to allow Merchant to conduct business on the Internet in a cost effective and user-friendly manner using SCT's proprietary INSTASITE® software ("Software") to create and maintain a cyberstore ("Site") hosted on a server operated by SCT ("SCT's server").
INSTASITE® and the INSTASITE® logo are the trademarks of SCT. SCT is the sole and exclusive entity that is allowed to use INSTASITE® and the INSTASITE® logo.
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| 2. |
DOCUMENTS WHICH FORM THE AGREEMENT BETWEEN SCT AND MERCHANT. |
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The documents which form the agreement between SCT and Merchant are this Service Agreement, Service Policies which may be issued by SCT from time to time, and any amendments to the Service Agreement and Service Policies issued by SCT. These documents shall be collectively referred to as the "Agreement". Acceptance by Merchant is strictly limited to the terms and conditions of the Agreement. Any change or modification of the terms and conditions of the Agreement by Merchant shall only be effective if agreed to in writing by SCT.
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| 3. |
ACCEPTANCE OF THE TERMS AND CONDITIONS OF THE AGREEMENT. |
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By registering and using the Service, Merchant understands and agrees that Merchant shall comply with and be bound by all of the terms and conditions of the Agreement.
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| 4. |
CHANGES TO THE AGREEMENT. |
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SCT reserves the right to change all or any part of the Agreement at any time at its sole discretion. SCT shall notify Merchant of changes as provided in the Notice provision. Merchant's use of the Service after such notification constitutes Merchant's agreement to and acceptance of such changes.
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| 5. |
REPRESENTATIONS BY MERCHANT. |
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Merchant makes the following representations and warranties to SCT:
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a. |
Capacity of Merchant. If Merchant is an individual, Merchant represents and warrants that he or she is of legal age and capacity to enter into and be bound by the Agreement, and to perform the activities contemplated under the Agreement. If Merchant is not an individual, Merchant represents and warrants that Merchant is an entity in good standing in its place of formation and is legally able to enter into and be bound by the Agreement, and to perform the activities contemplated under the Agreement.
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Accuracy of Information. All registration and other information provided and to be provided to SCT by Merchant is and shall be true, correct and complete. Merchant shall promptly notify SCT of any changes and shall correct any errors in any information provided to SCT.
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c. |
Right to Information Used on the Service. Merchant owns and/or has properly secured the right to use all information and other materials used by Merchant on the Service. Merchant's use of such information and other materials does not infringe upon or violate the rights of others.
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d. |
Compliance with Agreement. Merchant shall, at all times comply with the terms, conditions and intent of the Agreement.
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| 6. |
DUTIES OF MERCHANT. |
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a. |
Required Site Information. The Site shall contain Merchant's current name, address, telephone and facsimile numbers, and e-mail address in order that persons accessing the Site are able to contact Merchant and place any orders and inquiries directly with Merchant.
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b. |
Merchant is Responsible for Use of the Service. Merchant shall be solely responsible for all content, goods and services offered by Merchant on the Service, completing transactions placed with Merchant through the Service, all information and other materials used or displayed by Merchant on the Service, all representations, errors or omissions by Merchant on the Service, and any act or omission involving Merchant's creation or maintenance of the Site and/or the use of the Service. The merchant shall be solely responsible for verification of all pricing, taxes, and shipping or any other information related to transactions placed with the Merchant through the Service.
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c. |
Compliance with Law. Merchant shall be solely responsible for complying with all applicable laws, statutes, rules and regulations in any jurisdiction in which the content, goods or services offered by Merchant on the Service are advertised, offered or sold. This includes, but is not limited to, obtaining and maintaining all required licenses and/or permits, complying with intellectual property rights of SCT and others, and properly reporting and paying taxes arising from the activities of Merchant.
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d. |
Merchant is Responsible for Completion of Transactions as Represented. Merchant shall be solely responsible to take all commercially reasonable steps to complete each transaction through the Service in the manner represented by Merchant and/or expected by Merchant's customers.
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e. |
Merchant Shall Properly Use the Service. Merchant shall strictly adhere to all limitations on the use of the Service. Merchant shall not attempt the improper or unauthorized use of the Service, or take any steps which could compromise the integrity or security of the Service.
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| 7. |
MERCHANT'S LICENSE TO USE THE SOFTWARE. |
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During the term of the Agreement, SCT grants Merchant a license to use the Software for the sole purpose of creating and maintaining Merchant's Site for hosting on SCT's server. Merchant may not use the Software on any other computer. The Software is and shall remain the property of SCT. The license is non-exclusive and is non-transferable. Merchant shall not copy, disseminate, modify, decompile, disassemble or reverse engineer the Software. Any act in violation of the license is strictly prohibited by SCT.
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| 8. |
SERVICE FEES. |
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Fees for the Service are payable by Merchant to SCT monthly in advance. The amount of the fees are shown in the Monthly Charges at www.insta-site.com/sales/price/. SCT may change the Monthly Charges upon thirty (30) days notice to Merchant. SCT reserves the right to monitor site traffic and to individually adjust monthly billings for sites that generate above average traffic. All payments shall be in U.S. dollars and shall be payable by charge to the credit card number provided by Merchant to SCT. The first month's Charge shall be made when the Merchant submits the Registration Form and Monthly Payment to SCT. The first month's Charge shall be made up to 48 hours in advance of the issuance of the Merchant's URL by SCT. Subsequent Charges shall be made on the monthly anniversary date of the issuance of the Merchant's URL by SCT ("Anniversary Date"). For example, if a seller was issued the URL by SCT on January 10, the Anniversary Date would be the 10th day of each month and seller's credit card would be charged on or about the 10th day of each month. Merchant shall be responsible for updating credit card information and expiration dates in order that SCT has a valid credit card number for Merchant at all times.
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| 9. |
TERM OF THE AGREEMENT. |
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The Agreement shall commence on the date that Merchant is issued the URL by SCT and shall continue for one (1) calendar month. The Agreement shall automatically renew indefinitely on the Anniversary Date for one (1) calendar month periods at the then current fees shown in the Monthly Charges at www.insta-site.com/sales/price/, unless and until notice of termination is given under subsection a.(1) of the Termination provision.
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| 10. |
ACCESS TO THE SERVICE. |
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a. |
Password Access. Access to the Service is by password. Merchant shall choose a password upon registration. The password will allow Merchant to use the Software and to setup and maintain the Site. Merchant shall take all steps which are necessary to safeguard the password and to keep it confidential. Merchant shall not provide the password to any other individual or entity. Merchant shall be solely responsible for the Site and the use of the password. Merchant shall notify SCT immediately if there has been unauthorized access to the Site. In the event Merchant loses the password, SCT shall re-issue the password to Merchant via Merchant's registered email address upon receipt of written request by Merchant.
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Merchant's Access to the Service. Merchant understands and agrees that Merchant must have the necessary hardware, software and communications lines and devices in order to access the Service. Merchant shall be solely responsible for acquiring, providing for and maintaining such items. [At present, Merchant can access the Service via the Internet using Netscape 3 or 4. SCT is currently working to make the Service compatible with Internet Explorer and AOL's browser.]
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SCT's Access to the Site. Merchant understands and agrees that SCT may access the Site from time to time for quality control, troubleshooting, resolving complaints and conflicts, and other technical and customer relations reasons pertaining to the Site and/or the Service.
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| 11. |
Merchant's INDEMNITY DUTY. |
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Merchant shall defend, indemnify and hold harmless SCT, and its parents, subsidiaries, affiliates, officers, directors, shareholders, employees, agents and representatives, from any loss, claim, allegation, damage, injury, demand, liability or expense (including attorney's fees and costs), resulting from or arising out of (i) Merchant's acts, omissions, representations and/or warranties, (ii) the Site, (iii) Merchant's use of the Service, (iv) the content, goods or services offered by Merchant on the Service, (v) Merchant's violation of the Agreement, or (vi) Merchant's violation of any right or interest of another person or entity, including, but not limited to, intellectual property rights.
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| 12. |
SCT'S DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY. |
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a. |
Disclaimer of Warranties. SCT IS PROVIDING THE SERVICE, SOFTWARE, SITE AND ACCESS TO SCT'S SERVER ON AN "AS IS" BASIS. SCT MAKES NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR SECURITY.
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b. |
Limitation of Liability. IN NO EVENT SHALL SCT, ITS PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, AND/OR REPRESENTATIVES BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR OTHER DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF USE, BUSINESS, PROFITS, DATA OR GOODWILL), ARISING OUT OF OR RESULTING FROM (i) THE USE OF THE SERVICE, (ii) DELAY, INTERRUPTION, INABILITY OR PROBLEMS IN USING THE SERVICE, (iii) DEFECTS OR DEFICIENCIES IN THE SERVICE, (iv) PERFORMANCE, RELIABILITY OR SECURITY PROBLEMS WITH THE SERVICE, (v) THE USE OF THE SERVICE BY OTHERS, OR (vi) DEFECTS OR PROBLEMS OF ANY KIND INVOLVING THE SOFTWARE OR SCT'S SERVER, EVEN IF SCT IS AWARE OF THE RISK OF SUCH DAMAGES. SCT'S LIABILITY TO MERCHANT SHALL NOT, FOR ANY REASON, EXCEED THE TOTAL FEES ACTUALLY RECEIVED BY SCT FROM MERCHANT FOR THE CURRENT TERM. Merchant's ONLY OTHER REMEDY IS TO TERMINATE THE AGREEMENT AND NO LONGER USE THE SERVICE.
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| 13. |
TERMINATION. |
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a. |
Methods of Termination. The Agreement may be terminated as follows:
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(1) |
Either party may terminate the Agreement on at least twenty (20) days notice;
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(2) |
Either party may terminate the Agreement if the other party is in material breach of or non-compliance with the Agreement, and fails to cure such breach or non-compliance within seven (7) days after notice; if Merchant is in such breach or non-compliance, SCT shall have the right, at its sole discretion, to immediately suspend all access to the Service pending Merchant's cure;
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(3) |
SCT may immediately terminate Merchant without giving Merchant any opportunity to cure if SCT, in its sole discretion, believes that Merchant: (i) used the Site, Service, SCT's server or Software in a manner which is improper or unauthorized; (ii) compromised the integrity or security of the Site, Service, SCT's server or Software; (iii) engaged in illegal or inappropriate activities, or is the subject of a government complaint or investigation; (vi) provided false information to SCT or others; and/or (v) has created a risk of injury or damage to SCT or others;
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(4) |
SCT may terminate the Agreement immediately in the event Merchant makes an assignment of assets or business for the benefit of creditors, if a trustee or receiver is appointed to administer or conducts its business or affairs, or if bankruptcy proceedings are commenced by or against Merchant; and/or
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(5) |
The Agreement may be terminated by the mutual agreement of the parties.
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b. |
Procedure Upon Termination. Upon termination, Merchant shall immediately cease using and accessing the Site, Service, SCT's server and Software. SCT shall have the right to preclude access to and delete the Site from the Service. Merchant shall not be entitled to any refund for prepaid fees.
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| 14. |
SCT's INFORMATION POLICY. |
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Information Maintained by SCT. Merchant understands and agrees that SCT is entitled to maintain, create and store Site information, information provided by Merchant to SCT, and information concerning the Site, Software, SCT's server and Service usage, activity and orders, if it so chooses.
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Disclosure of Information. SCT agrees to take reasonable measures to protect against the unnecessary disclosure of private information concerning Merchant. However, Merchant understands and agrees that SCT may disclose any information it has concerning Merchant: (i) to protect SCT or others from the acts or omissions of Merchant; (ii) to comply with court order, subpoena or as required by law; (iii) to cooperate in any government investigation; (iv) in any dispute involving the Agreement; and/or (v) as reasonably required for SCT's internal, marketing or other business purposes.
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| 15. |
NO ASSIGNMENT BY MERCHANT. |
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Merchant shall not assign or otherwise transfer its rights or obligations under the Agreement without the express written consent of SCT.
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| 16. |
FORCE MAJEURE. |
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SCT shall not be responsible for any delay, errors, data loss, nonperformance or other problems resulting directly or indirectly from acts of nature or other causes which are reasonably beyond SCT's control.
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| 17. |
MERCHANT IS AN INDEPENDENT CONTRACTOR. |
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Merchant is an independent contractor and is in no way authorized to make any contract, agreement, warranty or representation on behalf of SCT, or to create any obligation, express or implied, on behalf of SCT. Nothing herein shall be construed or interpreted as making Merchant an agent, employee, partner, joint venturer or other representative of SCT for any purpose whatsoever.
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| 18. |
NOTICES. |
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Any notices or communications under the Agreement shall be by e-mail or in writing. If to SCT, such notices shall be sent to sales@insta-site.com. If to Merchant, such notices shall be sent to the e-mail or mailing address provided by Merchant. Notice is effective upon receipt. A party may change the address for notification upon giving notice to the other party as provided above.
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| 19. |
MISCELLANEOUS. |
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Choice of Law; Jurisdiction and Venue. This Agreement shall be construed, interpreted and the rights of the parties determined in accordance with the laws of the State of Hawaii. The parties agree that any action which in any way involves or arises out of the Service and/or the Agreement shall be brought in the Circuit Court of the First Circuit, State of Hawaii, or the United States District Court for the District of Hawaii. The parties agree to submit to the personal and exclusive jurisdiction of such courts for such lawsuits.
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Entire Agreement. The Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, of the parties.
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No Third-Party Beneficiary. This Agreement is for the benefit of, and may be enforced only by the parties hereto and any other parties protected by or indemnified hereunder, and is not for the benefit of, and may not be enforced by, any other third party.
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Invalidity. In the event that any one or more of the provisions contained in this Agreement or in any other instrument referred to herein, shall, for any reason, be held by a court to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement or any other such instrument.
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Survival of Provisions. Sections 5, 6, 11 and 12 shall survive the termination or expiration of the Agreement.
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Headings. The headings used herein herein are inserted for convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of the Agreement.
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Number and Gender. In this Agreement, the singular shall include the plural, and the plural shall include the singular as the case may be and the use of any one gender shall include all genders.
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