CUSTOMER AGREES TO:
I. The effective date of the Terms governing this Order Form will commence upon signature for
the Initial Term of one (1) year, automatically renewing annually for an additional one-year term
unless canceled by CUSTOMER in writing 30 days prior to renewal date. To cancel, CUSTOMER
must provide express written confirmation of their desire to cancel sent to
II. MyShopManager also reserves the right to change pricing for each renewal period, with 30 days’
written notice to CUSTOMER.
III. For the Initial Term and any renewal terms, CUSTOMER shall be invoiced on the first day of each
calendar month; payments are due by the last day of the month of the invoice.
IV. Each site built by MyShopManager is considered Intellectual Property of MyShopManager. All
domains transferred to MyShopManager are considered property of the CUSTOMER and control
can be turned over at any time for any reason.
These Terms and Conditions (“Terms”) are made as of the date Customer signs an Order Form that
incorporates these Terms by reference (the “Effective Date”) and are made between MyShopManager,
LLC (“MyShopManager”) and the customer identified in the Order Form (“Customer”) (each a “Party,” and
together, the “Parties”).
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the
Parties agree as follows:
a. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common
control with the subject entity. “Control,” for purposes of this definition, means direct or indirect
ownership or control of more than 50% of the voting interests of the subject entity.
b. “Authorized User” means an individual who is authorized by Customer to use the Services, for
whom Customer has ordered the Services, and to whom Customer (or MyShopManager at
Customer’s request) has supplied a user identification and password. Authorized Users may
include, for example, Customer employees, consultants, contractors, and agents.
c. “Customer-Acquired URL” means a website address owned or licensed exclusively to Customer.
d. “Customer Content” means all electronic data or information submitted by Customer or its
Authorized Users to the Subscription Services, including, without limitation, Website Content.
e. “Documentation” means manuals, technical manuals, and/or “Help” files within the Subscription
Services that relate to the Subscription Services and that MyShopManager makes available to
Customer in connection with and/or through the Subscription Services, as updated from time to
f. “Malicious Code” means viruses, worms, time bombs, Trojan horses, and any other harmful or
malicious code, files, scripts, agents, or programs.
g. “MSM Website” means the website designed, developed, and maintained by MyShopManager or
its licensors in MyShopManager’s provision of Subscription Services.
h. “Order Form” means the document governing the purchases of subscriptions to the
Services, including addenda thereto, that are entered into, in writing, between Customer and
MyShopManager and references these Terms.
i. “Services” means the Subscription Services and Support Services.
j. “Subscription Services” means the website design and development and hosting services
provided by MyShopManager as described in the Documentation, to which Customer subscribes
under an Order Form.
k. “Support Services” means any ongoing maintenance and support that is provided to Customer by
MyShopManager as set forth in the applicable Order Form.
l. “Third-Party Application” means an online, Web-based application and/or offline software product
that is provided by a third party but that may be configured to interoperate with or on the MSM
Website or other aspects of the Subscription Services.
m. “Website Content” means all content submitted by a Website Visitor to or through the MSM
n. “Website Visitor” means a visitor to the MSM Website who may submit comments or other usergenerated
content to or through the MSM Website.
2. Subscription Services and Support Services.
a. Eligibility. Customer understands that the Services are available only to Customers who maintain
an account with MyShopManager (the “MSM Account”) and have complied with the terms and
conditions governing that MSM Account.
b. Provision of Subscription Services and Support Services. MyShopManager shall make
Subscription Services and Support Services available to Customer pursuant to these Terms
and the relevant Order Form(s) during each subscription term specified in the applicable Order
Form(s). Customer agrees that Customer’s purchases of subscriptions hereunder are neither
contingent on the delivery of any future functionality or features nor dependent on any oral or
written public comments made by MyShopManager regarding future functionality or features.
c. Subscriptions. Unless otherwise specified in the applicable Order Form, (a) the Subscription
Services are purchased as annual subscriptions ; and (b) additional services, including additional
Support Services, offered by MyShopManager may be purchased during the subscription term at
the fees specified in the Order Form.
3. Use of the Subscription Services and Support Services.
a. MyShopManager’s Responsibilities. MyShopManager shall: (1) provide Support Services to
Customer in accordance with the Order Form; and (2) use commercially reasonable efforts to
make the Subscription Services available for use by Customer and Website Visitors.
b. Customer’s Responsibilities. Customer shall: (1) provide and maintain the computer and network
software and hardware necessary to access and use the Services, including a web server(s) that
supports Internet service, and as otherwise detailed in the then-current Documentation; (2) be
responsible for Authorized Users’ compliance with these Terms; (3) use commercially reasonable
efforts to prevent unauthorized access to or use of the Services and notify MyShopManager
promptly of any such unauthorized access or use; and (4) use the Services only in accordance
with the Documentation, Terms, and applicable laws and government regulations. Except for
availability of the MSM Website to Website Visitors in accordance with these Terms, Customer
shall not (i) make the Services available to any third parties other than Authorized Users, and
such access shall be limited to the purposes described in the Documentation; (ii) sell, resell,
license, sublicense, relicense, rent, or lease the Services, including without limitation use the
Services in connection with any third-party website (unless MyShopManager expressly agrees
in writing); (iii) act as service bureau or application service provider for the Services; (iv)
provide access to the Services on a time-sharing basis; (v) interfere with or disrupt the integrity
or performance of the Services or third-party data contained therein; or (vi) attempt to gain
unauthorized access to the Services or their related systems or networks.
c. Acceptable Use. Customer acknowledges and agrees that MyShopManager does not monitor
or police Customer Content or Website Content (though MyShopManager reserves the right
to do so) and that MyShopManager shall not be responsible for the content of any such
communications or transmissions. Customer shall use the Services exclusively for authorized
and legal purposes, consistent with all applicable laws and regulations. Customer will not load
into the Services any content or data which (1) is libelous, defamatory, obscene, pornographic,
abusive, harassing, or threatening; (2) contains Malicious Code; (3) violates the rights of others,
including without limitation, data which infringes on, or misappropriates, any intellectual property
rights or violates any right of privacy or publicity; or (4) otherwise violates any applicable
law (including, without limitation, the laws and regulations governing unfair competition).
MyShopManager reserves the right to delete, move, or edit any of Customer Content that
MyShopManager may determine, in its sole but reasonable discretion, violates this Section or
is otherwise inappropriate. In addition, Customer will not attempt to avoid or defeat any security
measures associated with the Services, including without limitation sharing login and/or password
information, attempting to compromise authentication protocols, and launching malicious
attacks against the Services (such as SQL injections, port scans, denials of service, and the
like). MyShopManager reserves the right to deny access to the Services for an Authorized User
if MyShopManager determines, in its sole but reasonable discretion, that an Authorized User
has violated the foregoing sentence or otherwise misused the Services. Customer shall require
Authorized Users to comply with the restrictions in this Section.
d. De-Identified and Aggregated Data. Customer agrees that MyShopManager may collect, use,
and disclose aggregated or de-identified data for its business purposes, including industry
analysis, benchmarking, analytics, and marketing. All data collected, used, and disclosed will be
in aggregate and de-identified form only and will not identify Customer, its Authorized Users, or
any specific Website Visitor. The rights and permissions granted under this Section shall survive
termination or expiration of these Terms or any Order Form.
where applicable a policy or provisions related to cookies, that clearly and accurately describes
to Website Visitors how information is collected through Customer’s use of the Subscription
Services (i.e. the MSM Website) and how Customer uses and discloses that information to third
parties, such as MyShopManager (though, for the avoidance of doubt, MyShopManager need not
cover information collected by MyShopManager on Customer’s behalf through the Subscription
f. Usage Limitations. The Services may be subject to other limitations. Any such limitations are
specified in the Documentation.
4. Third-Party Applications and Services.
a. Acquisition of Third-Party Products and Services. Any acquisition by Customer of third-party
products or services, including but not limited to Third-Party Applications, implementation
services, and/or other consulting services, and any exchange of data between Customer and
any third-party provider, is solely between Customer and the applicable third-party provider.
MyShopManager does not warrant or support third-party products or services, except as
specified in an Order Form. No purchase of third-party products or services is required to use the
b. Third-Party Applications and Customer Content. If Customer installs or enables Third-Party
Applications for use with the Subscription Services, Customer acknowledges that the providers
of those products may have access to Customer Content and/or Website Content as required
for the interoperation of such applications with the Subscription Services. As a result, Customer
further acknowledges that MyShopManager shall not be responsible for any disclosure,
modification, or deletion of Customer Content and/or Website Content resulting from any such
access by Third-Party Application providers.
c. Interoperation of Subscription Services and Third-Party Applications. If Customer installs
or enables a Third-Party Application for use with the Subscription Services (or authorizes
MyShopManager to do so on Customer’s behalf), Customer represents that its license or
subscription from the provider of such Third-Party Application permits the integration of the
Subscription Services with such Third-Party Application and further represents that Customer is
duly authorized to permit MyShopManager to access data and other content in such Third-Party
Application as required for the interoperation of such Third-Party Application with the Subscription
Services. MyShopManager shall treat any data contained in such Third-Party Application as
5. Proprietary Rights
a. Reservation of Rights. Subject to the limited rights expressly granted to Customer hereunder,
MyShopManager reserves all rights, title, and interest in and to the Subscription Services,
Support Services, and Documentation, including all related intellectual property rights. For the
avoidance of doubt and notwithstanding anything to the contrary herein, MyShopManager’s
reservation of rights under this Section includes, but is not limited to the MSM Website.
b. Restrictions. Customer shall not, and shall not permit any third party, including Authorized Users,
to (1) access the Services except as expressly permitted herein or in an Order Form, including
without limitation, to provide any services to a third party; (2) create derivative works based
on the Services; (3) copy, frame, or mirror any part or content of the Services; (4) decompile,
disassemble, change, merge, enhance, reverse engineer or attempt to reconstruct, identify or
discover any source code, underlying ideas, underlying user interface techniques, or algorithms
of the Services; (5) infringe on any third party’s intellectual property rights through Customer’s
use of the Services; (6) remove, alter, modify, destroy, or obfuscate any content or notices
provided as part of the Services, including without limitation trademarks, service marks, trade
dress, click-through agreements, URLs, or patent, copyright, trademark, and/or confidentiality
markings or legends; or (7) access the Services in order to (i) build a competitive product or
service or (ii) copy any features, functions, or graphics of the Services.
c. Ownership of Customer Content and Website Content. As between MyShopManager and
Customer, Customer exclusively owns all rights, title, and interest in and to all Customer Content
and Website Content. Customer grants MyShopManager a limited, revocable, non-sublicensable,
non-transferable license to process Customer Content and Website Content to provide the
d. Ownership of MSM Website. MyShopManager and its licensors retain all rights, including
copyrights, trademarks, patents or other proprietary rights in the MSM Website (which, for clarity,
do not include Customer Content and Website Content).
e. License to MSM Website. Subject to Customer’s compliance with the terms and conditions
of these Terms and the applicable Order Form, MyShopManager grants Customer a limited,
revocable, non-sublicensable, non-transferable license to access the Services during the term of
the applicable Order Form, including to receive Website Content through the MSM Website.
f. License to Customer-Acquired URL. Where the MSM Website will be available at a Customer-
Acquired URL, Customer grants MyShopManager a limited, revocable, non-sublicensable, nontransferable
license to access and manage the Customer-Acquired URL to facilitate provision of
g. Feedback. Customer grants to MyShopManager and its Affiliates a worldwide, perpetual,
irrevocable, royalty-free license to use and incorporate into the Services any suggestion,
enhancement request, recommendation, correction or other feedback provided by Customer or
Authorized Users relating to the operation of the Services.
6. Fees and Payments
a. Subscription Fees. Fees for the Subscription Services and Support Services will be set forth in
the Order Form (collectively, the “Fees”). Customer will be liable for payment of all taxes that
are levied upon and related to the performance of obligations or exercise of rights under these
Terms. MyShopManager may be required to collect and remit taxes from Customer, unless
Customer provides MyShopManager with a valid tax exemption certificate. The amounts received
by MyShopManager, after the provision for any tax or withholding required by any country, will be
equal to the amounts specified on the Order Form. In no event will either Party be responsible for
any taxes levied against the other Party’s net income.
b. Renewal Fees. The Fees stated in each Order Form shall be effective during the term specified
in that Order Form and the fees for each renewal term shall be defined in the applicable Order
Form, or in the absence of any such terms regarding Fees for renewal, by mutual agreement of
c. Invoicing and Payment. All Fees due under an Order Form shall be due and payable within thirty
(30) days of the invoice date. Except as otherwise expressly permitted herein, all Fees owed
pursuant to an Order Form are non-cancelable and non-refundable. Customer is responsible for
maintaining complete and accurate billing and contact information with MyShopManager.
d. Overdue Charges. If any invoiced amount not subject to good faith dispute is not received
from Customer by the due date, then without limiting MyShopManager’s rights or remedies,
(i) Customer agrees that MyShopManager may impose later interest at the rate of 1.5% of the
outstanding balance per month, or the maximum rate permitted by law, whichever is lower and/or
(ii) MyShopManager may condition acceptance of future Order Forms on payment terms shorter
than those specified in Section 6(c) (Invoicing and Payment).
e. Suspension of Services. If any amount owing by Customer under these Terms is thirty (30)
or more days overdue, MyShopManager may, without limiting its other rights and remedies,
suspend Customer’s access to the Subscription Services (including the availability of the MSM
Website) and/or Support Services until such amounts are paid in full.
f. Payment Disputes. MyShopManager shall not exercise its rights under Section 6(d) (Overdue
Charges) or 6(e) (Suspension of Services) until after sixty (60) days from the payment due date
if the applicable fees are under reasonable and good-faith dispute and Customer is cooperating
diligently to resolve the dispute.
a. Definition of Confidential Information. “Confidential Information” means all information disclosed
by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing,
that is designated as confidential or that reasonably should be understood to be confidential
given the nature of the information and the circumstances of disclosure. Except as otherwise
specifically provided in these Terms, Customer’s Confidential Information includes Customer
Content and Website Content; MyShopManager’s Confidential Information includes the MSM
Website and the Services; and Confidential Information of each Party includes the terms and
conditions of these Terms and all Order Forms (including pricing), as well as business and
marketing plans, technology and technical information, product plans and designs, business
processes, development tools and processes, computer printouts, computer programs, design
drawings and manuals, and improvements, patents, copyrights, trade
b. Protection of Confidential Information. Except as otherwise specifically provided in these Terms,
each Party covenants and agrees that it will not publish, communicate, divulge, or disclose to any
person, firm, or corporation any Confidential Information of any other Party, except as necessary
in the performance of the terms of these Terms. Each Party covenants and agrees that it will not
use any Confidential Information of any other Party except as necessary to fulfill its obligations or
exercise its rights under these Terms, and only for such purposes and only for the time that it is
necessary to do so. The Receiving Party will use the same degree of care that it uses to protect
the confidentiality of its own confidential information of like kind (but not less than reasonable
care): (1) not to use any Confidential Information of the Disclosing Party for any purpose outside
the scope of these Terms; and (2) except as otherwise authorized by the Disclosing Party in
writing, to limit access to Confidential Information of the Disclosing Party to those of its and its
Affiliates’ employees, service providers and contractors who need that access for purposes
consistent with these Terms and who have signed confidentiality agreements with the Receiving
Party containing protections no less stringent than those herein. Liability for damages due to
disclosure of the Confidential Information by any such third Party shall be with the Party that
disclosed the Confidential Information to the third Party. Neither Party will disclose the terms of these
Terms or any Order Form to any third Party other than its Affiliates, legal counsel and
accountants without the other Party’s prior written consent, provided that a Party that makes
any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such
Affiliate’s, legal counsel’s or accountant’s compliance with this Section 7(b).
c. Compelled Disclosure. In the event that the recipient of Confidential Information is requested
or becomes legally compelled to disclose any Confidential Information of the other Party, it is
agreed that the Receiving Party will provide the Disclosing Party with prompt written notice of
such request(s) to enable the Disclosing Party, at its sole cost and expense, to seek a protective
order or take other lawful steps to protect and preserve the confidential nature of the Confidential
Information, and the Receiving Party will cooperate with such efforts by the Disclosing Party,
including by delaying the disclosure to the extent lawfully permitted to do so to permit the
Disclosing Party the opportunity to engage in such efforts. Each Party agrees that it will furnish
only that portion of the Confidential Information which is legally required and will exercise
reasonable efforts to obtain reliable assurance that confidential treatment will be accorded to that
portion of the Confidential Information and other information which is being disclosed. Each Party
shall immediately notify the other upon discovery of any loss or unauthorized disclosure or other
processing of the Confidential Information of the other Party. The Parties agree that to the extent
any of their respective regulators have the right to examine the relationship between the Parties
described in these Terms, along with the records associated with such relationship, subject to any
privacy requirements applicable to either Party or its Affiliates, or to the individual customers of
either Party, the Parties shall: (1) provide advance notice of such examination; and (2) cooperate
with each other in making relevant records available.
d. Return or Destruction. As requested by the Disclosing Party during the Term, upon expiration
or any termination of these Terms, or completion of the obligations of the Receiving Party, as
applicable, the Receiving Party shall: (1) return or destroy, as the Disclosing Party may direct,
and in the manner reasonably directed by the Disclosing Party, all material in any medium
that contains, refers to, or relates to the Disclosing Party’s Confidential Information; and (2)
retain no copies except one copy solely to the extent, if any, required compliance with record
retention requirements under applicable law; provided, however, that no Party will be obligated
to erase Confidential Information subject to a license granted herein or contained in an archived
computer system backup made in accordance with such Party’s security and/or disaster recovery
procedures, provided that such archived copy will: (i) eventually be erased or destroyed in the
ordinary course of such Party’s data processing procedures; and (ii) will remain fully subject to
the obligations of confidentiality and security stated herein.
e. Misuse. In the event of any actual or suspected misuse, disclosure or loss of, or inability to
account for, any Confidential Information of the Disclosing Party, the Receiving Party promptly
shall: (1) (and in any event within three business days) notify the Disclosing Party upon becoming
aware thereof; (2) furnish to the Disclosing Party full details of the unauthorized possession, use
or knowledge, or attempt thereof, and use reasonable efforts to assist the Disclosing Party in
investigating or preventing the reoccurrence of any unauthorized possession, use, or knowledge,
or attempt thereof, of Confidential Information; (3) take such actions as may be necessary or
reasonably requested by the Disclosing Party to minimize the violation; and (4) cooperate in all
reasonable respects with the Disclosing Party to minimize the violation and any damage resulting
f. Injunctive Relief. The Parties acknowledge and agree that the confidentiality obligations set forth
in these Terms are reasonable and necessary for the protection of the Parties’ business interests,
that irreparable injury may result if they are breached, and that in the event of any actual or
potential breach of Section 7, that the non-breaching Party may have no adequate remedy at law
and shall be entitled to seek injunctive and/or other equitable relief as may be deemed proper by
a court of competent jurisdiction.
8. Term and Termination
a. Term of Subscriptions. Subscriptions purchased by Customer commence on the commencement
date in the Order Form and continue for the subscription term specified therein. Except as
otherwise specified in the applicable Order Form, all subscriptions shall automatically renew
for additional periods equal to the expiring subscription term, unless either Party gives the
other notice of non-renewal in writing at least thirty (30) days before the end of the relevant
subscription term. The per subscription pricing during any such renewal term shall be at the thencurrent
b. Termination for Cause. Either Party may terminate the Order Form (i) immediately upon written
notice if the other Party commits a non-remediable material breach; or (ii) if the other Party fails
to cure any remediable material breach within fifteen (15) days of being of notified in writing of
such breach, unless such breach is for non-payment and then within five (5) days of such notice.
c. Refund or Payment Upon Termination. Upon any termination for cause by Customer,
MyShopManager shall refund Customer any prepaid fees covering the remainder of the term
of all subscriptions after the effective date of termination. Upon any termination for cause by
MyShopManager, Customer shall pay any unpaid fees covering the remainder of the term of
all Order Forms after the effective date of termination. In no event shall any termination relieve
Customer of the obligation to pay any fees payable to MyShopManager for the period prior to the
effective date of termination.
d. Effect of Termination of MSM Account. If the MSM Account is terminated before the termination of
an Order Form, MyShopManager has no obligation to provide Services. Termination of an MSM
Account shall have no effect on Customer’s payment obligations herein. MyShopManager may,
but has no obligation to, direct Customer to a third party that may provide website services to
Customer. Customer is solely responsible for its interactions and relationship with any such third
party, and MyShopManager disclaims any responsibility for the actions or inactions of any such
e. Survival. In the event of the termination or expiration of these Terms, the provisions of these
Terms which by their nature extend beyond the expiration or termination of these Terms, including
but not limited to Section 1, 3(d), 3(e), and 5-12.
9. Representations, Warranties, Exclusive Remedies, and Disclaimers
a. Representations. Each Party represents that it has validly entered into these Terms and has the
legal power to do so.
b. MyShopManager Warranties. MyShopManager warrants that during an applicable subscription
term: (1) the Subscription Services shall perform materially in accordance with the then-current
Documentation; and (2) the functionality of the Subscription Services will not be materially
decreased during a subscription term. For any breach of a warranty in this Section 9(b),
Customer’s exclusive remedies are those described in 8(b) (Termination for Cause) and 8(c)
(Refund or Payment upon Termination).
c. Customer Warranties: Customer warrants that (1) at all times during the term of these Terms,
Customer shall comply with all applicable federal, state, and local laws, and the terms of these
Terms and (2) Customer’s use of the Services For agreement to these Terms do not and will not
conflict with Customer’s obligations to any third parties.
d. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, MYSHOPMANAGER MAKES
NO REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED,
STATUTORY OR OTHERWISE, AND MYSHOPMANAGER SPECIFICALLY DISCLAIMS ALL
IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT; IMPLIED WARRANTY
ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE
OF TRADE; CLAIM OF INFRINGEMENT; OR CLAIM IN TORT (WHETHER BASED
ON NEGLIGENCE, STRICT LIABILITY, PRODUCT LIABILITY OR OTHER THEORY).
MYSHOPMANAGER FURTHER DISCLAIMS ALL LIABILITY AND INDEMNIFICATION
OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY THIRD-PARTY HOSTING
PROVIDERS. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF
a. Indemnification by MyShopManager. MyShopManager will defend Customer against any claim,
demand, suit or proceeding made or brought against Customer by a third party alleging that the
use of the Subscription Services in accordance with these Terms infringes or misappropriates
such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify
Customer from any damages, attorney fees and costs finally awarded against Customer as a
result of, or for amounts paid by Customer under a court-approved settlement of, a Claim Against
Customer, provided Customer (a) promptly gives MyShopManager written notice of the Claim
Against Customer, (b) gives MyShopManager sole control of the defense (including selection
of attorneys) and settlement of the Claim Against Customer (except that MyShopManager may
not settle any Claim Against Customer unless it releases Customer of all liability), and (c) gives
MyShopManager necessary assistance, at MyShopManager’s expense. The above defense
and indemnification obligations do not apply to the extent a Claim Against Customer arises from
Customer’s breach of these Terms.
b. Indemnification by Customer. Customer will indemnify, defend, and hold MyShopManager
harmless against any claim, demand, suit or proceeding made or brought against
MyShopManager by a third party alleging that Customer Content, or Customer’s breach of
these Terms, or any conduct arising out of Customer’s breach of these Terms infringes or
misappropriates such third party’s intellectual property rights or violates applicable law (a “Claim
Against MyShopManager”), and will indemnify MyShopManager from any damages, attorney
fees and costs finally awarded against MyShopManager as a result of, or for any amounts paid
by MyShopManager under a court-approved settlement of, a Claim Against MyShopManager,
provided MyShopManager promptly gives Customer written notice of the Claim Against
MyShopManager (provided that failure to so notify will not remove Customer’s obligation except
to the extent Customer is materially prejudiced thereby). For a Claim Against MyShopManager,
Customer controls the defense and settlement of the Claim Against MyShopManager and
MyShopManager agrees to give Customer all reasonable assistance, at Customer’s expense.
Customer will not settle, compromise, or otherwise enter into any agreement regarding the
disposition of any Claim Against MyShopManager without the prior written consent and approval
of MyShopManager unless such settlement: (i) is solely for a cash payment; (ii) requires no
admission of liability or wrongdoing on the part of MyShopManager, (iii) imposes no affirmative
obligation on MyShopManager; (iv) imposes no restriction on MyShopManager’s business; (v)
provides that the parties to such settlement shall keep the terms of the settlement confidential;
and (vi) provides for a full and complete release of MyShopManager. Customer shall reimburse
MyShopManager upon demand for any losses incurred by MyShopManager that is subject to an
indemnification obligation as set forth in this Section 10(b).
c. Exclusive Remedy. This section 10 states the indemnifying Party’s sole liability to, and the
indemnified Party’s exclusive remedy against, the other Party for any type of claim described in
this section 10.
11. Limitation of Liability
a. Limitation of Liability. NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE
INCIDENT ARISING OUT OF OR RELATED TO THESE TERMS OR ANY ORDER FORM WILL
EXCEED THE AMOUNT PAID OR PAYABLE BY CUSTOMER HEREUNDER IN THE TWELVE
(12) MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL EITHER
PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS OR
ANY ORDER FORM EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER.
THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT
AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS
WILL NOT APPLY TO: (1) CUSTOMER’S RECKLESS OR NEGLIGENT ACTS OR OMISSIONS;
(2) CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 6 (FEES AND PAYMENTS);
(3) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10; OR (4)
EITHER PARTY’S LIABILITY FOR ANY BREACH OF ITS CONFIDENTIALITY OBLIGATIONS
UNDER SECTION 7; OR (E) EITHER PARTY’S LIABILITY FOR ITS INFRINGEMENT OR
MISAPPROPRIATION OF ANY PROPRIETARY RIGHTS OF THE OTHER PARTY.
b. Exclusion of Consequential and Related Damages. NEITHER PARTY WILL HAVE ANY
LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT,
SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER
AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY,
EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY
c. Essential Purpose. THE LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES
STATED HEREIN WILL APPLY REGARDLESS OF THE FAILURE OF ESSENTIAL PURPOSE
OF ANY REMEDY. BOTH PARTIES HEREUNDER SPECIFICALLY ACKNOWLEDGE THAT
THESE LIMITATIONS OF LIABILITY ARE REFLECTED IN THE PRICING.
12. General of Liability
a. Notices. Except as otherwise set forth herein, all notices under these Terms will be in writing
addressed to the Parties at the address set forth on the signature page hereto and will be
deemed to have been duly given (1) when received, if personally delivered; (2) the first business
day after sending by email; (3) three (3) working days after the date of posting if sent by mail
from within the United States to an address within the United States; (4) five (5) working days
after the date of posting if sent by mail outside the United States or mailed to an address outside
the United States; (5) the day after it is sent, if sent for next day delivery by recognized overnight
delivery service; and (6) upon receipt, if sent by certified or registered mail, return receipt
b. Relationship of the Parties. MyShopManager is performing the services as an independent
contractor and nothing in these Terms will be construed as establishing an employment,
agency, partnership or joint venture relationship between Customer and MyShopManager or
any MyShopManager employees or other persons performing MyShopManager’s obligations
hereunder. Neither Party will have the authority to act on behalf of or bind the other Party in any
c. Governing Law and Venue. These Terms will be governed by and construed in accordance with
the law for the time being in force in Florida, and the Parties agree to submit to the jurisdiction of
the state and federal courts in Florida.
d. Force Majeure. Neither Party shall be liable hereunder by reason of any failure or delay in the
performance of its obligations on account of events beyond the reasonable control of such Party,
which may include hosting provider failure or delay, denial-of-service attacks, strikes, shortages,
riots, fires, acts of God, war, terrorism, and governmental action.
e. No Third-Party Beneficiaries. There are no third-party beneficiaries to these Terms.
f. Waiver. No failure or delay by either Party in exercising any right under these Terms shall
constitute a waiver of that right.
g. Severability. If any provision of these Terms is held by a court of competent jurisdiction to
be contrary to law, the provision shall be modified by the court and interpreted so as best to
accomplish the objectives of the original provision to the fullest extent permitted by law, and the
remaining provisions of these Terms shall remain in effect.
h. Construction. These Terms have been prepared with the participation of each Party and will not
be strictly construed against either Party. Each Party acknowledges that it has consulted with
or had the opportunity to consult with counsel of its choice, and that in executing these Terms it
has not relied upon any statements, representations or agreements other than those expressly
i. Assignment. Neither Party may assign any of its rights or obligations hereunder, whether
by operation of law or otherwise, without the other Party’s prior written consent (not to be
unreasonably withheld); provided, however, either Party may assign these Terms in its entirety
(including all Order Form(s)), without the other Party’s consent to an Affiliate or in connection
with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets,
provided that such Party assumes or is otherwise fully bound by all of the obligations of the
assigning Party under these Terms. Notwithstanding the foregoing, if a Party is acquired by, sells
substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor
of the other Party, then such other Party may terminate these Terms upon written notice. In the
event of such a termination, MyShopManager will refund to Customer any prepaid fees covering
the remainder of the term of all subscriptions. Subject to the foregoing, these Terms will bind and
inure to the benefit of the Parties, their respective successors and permitted assigns.
j. Entire Agreement and Order of Precedence. These Terms are the entire agreement between
Customer and MyShopManager regarding Customer’s use of the Services and supersedes
all prior and contemporaneous agreements, proposals or representations, written or oral,
concerning its subject matter. No modification, amendment, or waiver of any provision of these
Terms will be effective unless in writing and signed by the Party against whom the modification,
amendment or waiver is to be asserted. The Parties agree that any term or condition stated
in Customer’s purchase order or in any other of Customer’s order documentation (excluding
Order Form as defined herein) is void. In the event of any conflict or inconsistency among the
following documents, the order of precedence shall be: (1) the applicable Order Form, and (2)
these Terms. Notwithstanding any other provision of these Terms, in no event shall any terms
or conditions in these Terms or any other document be agreed, accepted, waived or modified
via a “Void Contracting Method.” A “Void Contracting Method” is one in which an agreement or
acceptance purportedly takes place within or through products or services or an application,
website, or portal operated by or for MyShopManager through Customer action (such as
electronic signature, checking a box, or clicking to accept) or inaction, even if Customer is
informed that such action or inaction will constitute agreement or acceptance. Any terms or
conditions purportedly accepted or agreed via a Void Contracting Method shall be void and of no
k. Headings. The headings used in these Terms are for reference only and do not define, limit, or
otherwise affect the meaning of any provisions hereof.