This Merchant User Agreement ("Agreement") is between you, the user, together with any company or other business entity you are representing, if any (collectively, "You"), and KloudStores – providers of the KloudStores website located at kloudstores.com ("KloudStores Site").
KloudStores provides software programs ("Software") that enable merchants to build online stores through which they can sell their products and services online. KloudStores also provides merchants services, including hosting of the online store, email services, marketing services, and other related services as may be offered from time to time (collectively, "Services").
This Agreement is effective upon Your acceptance in registration. By accepting this Agreement and subject to the terms and conditions of this Agreement, including Terms of Service for the KloudStores Site that are incorporated herein by reference and may be accessed through links in this Agreement, KloudStores will provide You with a limited license to use the Software and receive the Services. Please note that underlined words and phrases in this Agreement are links to pages on the KloudStores Site, or other relevant sites. In the event any terms provided in this Agreement conflict with the Terms of Service the terms provided in this Agreement will govern.
By accepting this Agreement, You further agree to be bound by any amendments to the terms and conditions of this Agreement or to such terms and conditions as are incorporated herein by reference.
You authorize KloudStores to process any and all of Your KloudStores account transactions initiated through the use of the password and/or passphrase that You establish through registration on the KloudStores Site and You are solely responsible for maintaining the confidentiality of such password and/or passphrase.
Notwithstanding anything contained in the foregoing, this Agreement will not bind KloudStores unless You meet the eligibility criteria for entering into this Agreement as set forth in Section 1 of this Agreement.
The Software license and Services are available only to, and may only be used by individuals who can form legally binding contracts under applicable law. Without limiting the foregoing, the Software and Services are not available to children (persons under the age of 18). If You are registering as a business entity, You represent that You have the authority to bind such entity to this Agreement. KloudStores may use techniques to confirm the accuracy of the information You provide when You register on the KloudStores Site. If for any reason, KloudStores, in its discretion, believes such information to be incorrect, it reserves the right, without provision of any notice to You, to revoke any and all licenses under this Agreement or to refuse to provide the Software license and Services under this Agreement to You.
You acknowledge and agree that, as between You and KloudStores, all Software and any other content provided by KloudStores, and all worldwide intellectual property rights therein, are the exclusive property of KloudStores. All rights in and to the Software not expressly granted to You in this Agreement are reserved by KloudStores.
Subject to the terms and conditions of this Agreement, KloudStores grants to You a non-exclusive, non-transferable, revocable, limited license to remotely access and use the Software on servers operated by or for KloudStores ("KloudStores Servers") through the KloudStores Site solely for the purpose of building and maintaining an interactive store hosted by the KloudStores Servers on which You offer Your or a third party’s products or services ("Your Store").
Upon activation of Your account and subject to the payment of applicable fees, KloudStores will provide You during the term of this Agreement with the hosting, support and other miscellaneous Services as provided on the pricing page of the KloudStores Site and for the Software licensed to You under this Agreement. Your Store will be hosted on an KloudStores’s Server on which several merchants may share the resources and network capacity.
KloudStores reserves the right to change, amend and/or otherwise alter the Services provided with equivalent or otherwise equal Services without prior notice to You. You agree to receive administrative communications from KloudStores in regards to the Software, Services, Your account, policy changes and system updates. If You do not agree to such changes, then You may terminate use of the Services. KloudStores will not refund any fees or payments in the event of such termination.
Downgrading your Service may cause the loss of content, features, or capacity of Your account. KloudStores does not accept any liability for such loss.
You will be solely responsible for the development, promotion, back-up, operation and maintenance of Your Store, including the operation of Your Store, accepting, processing and filling customer orders generated through Your Store, and handling any customer inquiries, complaints, or disputes arising from orders or sales generated through Your Store. You agree that KloudStores has no obligation to back-up any data related to Your Store’s operations and You should independently take appropriate steps to maintain such data in accordance with Your needs and requirements.
You will be solely responsible for creating, managing, editing, reviewing, deleting and otherwise controlling the content on Your Store, including all descriptions of the products and services You offer to customers of Your Store and user-generated content on and related to Your Store. As a conduit, KloudStores will give You discretion over Your content provided it is compatible and interoperable with the Software and Services provided by KloudStores under this Agreement and Your content and use of the Services, Software and KloudStores Site comply with all applicable laws and the terms of this Agreement. You retain all right, title and interest in and to all intellectual property rights embodied in Your content, exclusive of any content provided by KloudStores. Notwithstanding anything contained in the foregoing, if You breach any of the terms of this Agreement, KloudStores is entitled to suspend or terminate Your Store and/or any access to information or data related to Your account and the Software in accordance with Section 12 of this Agreement.
You acknowledge that, by only providing You with the ability to publish and distribute Your own or third party products, services or content, KloudStores and its Software are acting only as passive conduits for the distribution and/ or publishing of such products, services or content on the Store. KloudStores has no obligation to You or any third party, and undertakes no responsibility, to review Your Store, the products or services listed therein or any other content, including but not limited to user-generated content, published and/or distributed on Your Store to determine whether any such product, service or content may incur liability to third parties. Notwithstanding anything to the contrary herein, if KloudStores believes in its discretion that Your Store or any products, services, content or other materials in the Store or on KloudStores Servers may create liability for KloudStores or harm other users of KloudStores’s websites or services, then You agree that KloudStores may take any actions with respect to the content or materials or Your Store that KloudStores believes are prudent or necessary to minimize or eliminate KloudStores’s potential liability or to protect other users of KloudStores’s websites or services.
KloudStores, ITS SUPPLIERS AND SERVICE PROVIDERS, PROVIDE THE SOFTWARE, SERVICES, ADDITIONAL SOFTWARE, AND ADDITIONAL SERVICES, ON AN "AS IS" AND "AS AVAILABLE" BASIS AND EXPRESSLY DISCLAIM ANY AND ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, TITLE, NON-INFRINGEMENT, AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. KloudStores, ITS SUPPLIERS AND SERVICE PROVIDERS, DO NOT WARRANT THAT THE SOFTWARE, SERVICES, ADDITIONAL SOFTWARE, AND ADDITIONAL SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED AND MAKE NO REPRESENTATIONS REGARDING UPTIME, USE, DATA SECURITY, ACCURACY AND RELIABILITY OF THEIR SERVICES. YOU ACKNOWLEDGE AND AGREE THAT THIS SECTION 7 IS REASONABLE AND AN ESSENTIAL ELEMENT OF THIS AGREEMENT AND THAT IN ITS ABSENCE, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.
IN NO EVENT SHALL KloudStores, ITS SUPPLIERS, OR SERVICE PROVIDERS, OR THEIR OFFICERS, MEMBERS, DIRECTORS, EMPLOYEES, CONTRACTORS OR AGENTS BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE, SERVICES, ANY ADDITIONAL SOFTWARE, AND ADDITIONAL SERVICES OR THIS AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE). KloudStores’, ITS SUPPLIERS’, AND SERVICE PROVIDERS’, CUMULATIVE LIABILITY, AND THE LIABILITY OF THEIR OFFICERS, MEMBERS, DIRECTORS, EMPLOYEES, CONTRACTORS AND AGENTS TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE AMOUNT OF FEES YOU PAID TO KloudStores FOR THE SOFTWARE LICENSE AND THE SERVICES IN THE ONE (1) YEAR IMMEDIATELY PRECEDING THE MONTH IN WHICH THE ACTION GIVING RISE TO THE LIABILITY FIRST AROSE. Some States do not allow the exclusion or limitation of certain damages, so the above limitation or exclusion may not apply to You.
You agree to indemnify and hold KloudStores, its suppliers, and service providers, and their officers, members, directors, agents, and employees, harmless from any and all losses, costs, liabilities or expenses (including reasonable attorneys’ and expert witnesses’ fees) incurred or arising from: (a) any content provided, stored, sold or otherwise distributed by You or generated by users of Your Store, (b) any claims arising from the sale or license of goods or services in Your Store, or (c) any breach of this Agreement or the documents it incorporates by reference. KloudStores’, its suppliers’ and service providers’ indemnity rights shall not be limited or offset by any contributory negligence by KloudStores. KloudStores reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, and in such case, You agree to cooperate with KloudStores’s defense of such claim.
At the discretion of KloudStores KloudStores may suspend Your account or any part of Your account by deactivating any access by You or by Your customers to any information contained on the KloudStores Servers related to Your account while maintaining the information and data related to Your account upon the KloudStores Servers. Suspension may include the disabling of Your Store and/or any access to information or data related to Your account. Fees under this Agreement will continue to accrue on suspended accounts as if they were not suspended. You will remain responsible for the payment of any such fees during any such period of suspension.
This Agreement may be terminated by KloudStores either (a) immediately if you breach any provision of this Agreement, or (b) after a period of suspension as set forth in Section 12.1 of this Agreement. You may terminate this Agreement via the KloudStores Site or via the PayPal site or other electronic payment vendor site.
This Agreement, together with the agreements and policies that are incorporated herein by reference, sets forth the entire understanding and agreement between You and KloudStores with respect to the subject matter hereof.