Pinnacle Shopping Cart Software Service & License Agreement (Hosted)
PinnacleCart.com is 100% owned by Pinnacle Cart, Inc.. This Service Agreement (“Software Service Agreement”) is a legal agreement between Customer (either an individual or a single entity) (referred to herein as “Customer”) and Pinnacle Cart, Inc.(“Company “). By using the Pinnacle Cart Software, Customer agrees to be bound by the terms of this Agreement. If Customer does not agree to the terms of this Agreement, do not purchase the Pinnacle Cart Software.
This Agreement constitutes the entire agreement between Customer and Company, and supersedes all prior or contemporaneous agreements, representations, warranties and understandings with respect to the web site, the content, or services provided by or through the web site, and the subject matter of this Agreement. Company may amend this Agreement at any time, without specific notice to Customer. The latest Agreement will be posted on the Site, and Customer should review this Agreement prior to using the Software.
BY COMPANY INSTALLING THIS SOFTWARE, CUSTOMER AGREES TO THE FOLLOWING LICENSE:
COMPANY’S PROGRAM IS COPYRIGHTED AND LOGO IS TRADEMARKED.
Company hereby grants to Customer, and Customer accepts, a nonexclusive license to use Pinnacle Cart Software Service, object code form only (collectively referred to as the “Software” and “Program”), and any accompanying User Documentation, only as authorized in this License Agreement. The Software may be used on any one website owned by Customer, or if Customer is a company or corporation, any one website owned by Customer company or corporation.
OWNERSHIP OF WEBSITE CONTENT
Customer agrees that Company has no proprietary or other interested in Customer’s content. By offering hosting of Customer’s content, Company does not publish or otherwise provide Customer’s content to end users. Customer is solely responsible for all text, graphics, data and any aspect of Customer’s website content. Customer warrants that it owns or has the right to use and offer the content on its website.
Company warrants to Customer benefit alone, that the Software conforms in all material respects to the specifications for the current version of the Software. This warranty is expressly conditioned on Customer’s observance of the operating, security, and data-control procedures set forth in the Owners Manual.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, CUSTOMER DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS, AND WARRANTIES WITH RESPECT TO THE LICENSED PROGRAM, INCLUDING ITS CONDITION, ITS CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, THE EXISTENCE OF ANY LATENT OR PATENT DEFECTS, ANY NEGLIGENCE, AND ITS MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE.
Company shall have sole and exclusive ownership of all right, title, and interest in and to the Licensed Program and all modifications and enhancements thereof (including ownership of all trade secrets and copyrights pertaining thereto), subject only to the rights and privileges expressly granted to Customer herein by Company . This Agreement does not provide Customer with title or ownership of the Software, but only a right of limited use. Customer must keep the Licensed Program free and clear of all claims, liens, and encumbrances.
Customer may not use, copy, modify, or distribute the Software (electronically or otherwise), or any copy, adaptation, transcription, or merged portion thereof, except as expressly authorized by Company. Customer rights may not be transferred, leased, assigned, or sublicensed except for a transfer of the Licensed Program in its entirety to (1) a successor in interest of Customer’s entire business who assumes the obligations of this Agreement or (2) any other party who is reasonably acceptable to Company, enters into a substitute version of this Agreement, and pays a $99.00 administrative fee intended to cover attendant costs. No service bureau work, multiple-user license, or time-sharing arrangement is permitted, except as expressly authorized by Company.
Customer acknowledges that, in the event of Customer breach of any of the foregoing provisions, Company will not have an adequate remedy in money or damages. Company shall therefore be entitled to obtain an injunction against such breach from any court of competent jurisdiction immediately upon request. Company’s right to obtain injunctive relief shall not limit its right to seek further remedies.
Copyright laws and international copyright treaties, as well as other intellectual property laws and treaties protect this Software Service Agreement. This Agreement does not transfer any right, title or interest in the Pinnacle Cart Software to Customer except as specifically set forth herein.
All title and copyrights in and to the Pinnacle Cart Software (including but not limited to any scripts, images, photographs, and copy into the Pinnacle Cart Software), the accompanying printed materials, are owned by Company, and copyright laws and international treaty provisions protect Pinnacle Cart Software. Therefore, Customer must treat the Pinnacle Cart Software like any other copyrighted material.
Company may provide Customer with customer support related to the Pinnacle Cart Software Service Agreement. The current support program details can be found at www.pinnaclecart.com/support.
- Free phone support – 6am – 11pm MST M-F (Weekends 9am – 6pm)
- Free email support – 24/7 email support to hosted customers that are paid in full. .
- Free Upgrades – Software version upgrades are available no charge to hosted customers that are paid in full.
Use of Customer Support is governed by the policies and programs described in the handbook or under the “help” area of the Pinnacle Cart website. With respect to technical information Customer provides to Company, as part of the Customer Support, Company, may use such information for its developmental purposes, including for Software support and upgrades. Company will not utilize such technical information in a form that personally identifies Customer.
SOFTWARE SERVICE – RESTRICTED RIGHTS
The Pinnacle Cart Software Service and documentation are provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software, Restricted Rights at 48 CFR 52.227-19, as applicable. Creator is Pinnacle Cart, LLC, 7227 N. 16th St., Suite 270, Phoenix, AZ 85020.
RECURRING SERVICE FEES
Company will set up an automated billing cycle that will charge Customer recurring fees based upon the package thatwas ordered. Billing date is calculated by adding service period days from the date of the original order. e.g monthlyservices is 30 days annual are 365. This is called the Billing Due Date. Customer will prepay recurring service inaccordance with this Software Service Agreement for Software Services to remain live and its hosting account valid.In the event of cancellation or termination of services, Company does not offer a pro-rated service on any moniescollected.
SERVICE & PRODUCT FEES
Company will deem all services and products ordered commenced on the date of order. Examples of these includebut are not limited to Design and Development Services, DIFM (do it for me), SEO, SSL, Training and Advanced Client Services.Additional information may be collected for packages ordered, but regardless of data gathered are still considerednon-cancelable and non-refundable. In the event of cancellation or termination of services, Company does not offer apro-rated service on any monies collected.
To avoid uninterrupted Service, Customer must make timely monthly payments by any means offered by Company. Company requires Customer to prepay for monthly services. Company will have the right to terminate this Agreement and/or suspend Customer access to any or all of Company’s Services and/or performance of the services provided by Company hereunder immediately. Furthermore, Company reserves the right to delete all Customer data within the hosting environment after thirty (30) days. Customer may request Company to provide Customer logs, for a fee, as a requirement of PCI Compliance, prior to deleting records.
If payment is not received, Company will immediately notify Customer regarding non-payment. Resolution and payment, including a Flat rate of $10 is required to be paid prior to restoring services. Customer will be responsible for any costs associated with collecting such fees including, without limitation, legal costs, attorneys’ fees, court costs and collection agency fees.
Client can cancel their Software Services hosting account at any time. Company will only honor a cancellation request if sent in writing to: email@example.com. Client must provide the following information in the cancellation request: Company Name, Domain Name(s), Name of Card Holder, and last 4 digits of the card. Failure to provide this information may result in a delay of processing your cancellation. Cancellation requests will not be recognized by any other communication written or verbal other than the afore mentioned method. Client is still responsible for any overages that occur in the month of the request. Monthly service fees are not prorated. To avoid paying for additional monthly service all cancellation requests must be received prior to midnight MST on the day before the Client’s Billing Due Date.
Based upon the Pinnacle Cart Software Service package, additional costs will be charged as follows:
- Bandwidth – $3.50/gigabit over Limited, Starter and Standard packages.
- Disk Space – $10/up to 100 megabit over Limited, Starter and Standard packages.
- Bandwidth – $2.50/gigabit for all packages above and including Premium.
- Disk Space - $8/up to 100 megabit for all packages above and including Premium.
Overage Fees are flat rates and not pro-rated based upon usage. Fees will be charged on the following months billing cycle. Failure to make payments related to overages can result in an interruption in service.
CHANGE IN FEES
Company may change fees at Company’s discretion.
This Agreement is on a month-to-month basis.
Company can terminate this agreement at anytime with a 10-day notice. Company will send a confirmation email notification of the termination. Customer is responsible for the last full month of service and Company does not pro-rate a return of any of the funds collected on the final payment.
Customer will be responsible for a final month payment for any and all Services under this Software Service Agreement. Customer further understands that there may be one additional bill for overage services associated with the Software Service Agreement, covered hereunder, after the Service has expired.
Company will notify Customer, by email, of any cancellation notice. Company will further outline steps Customer may need to take in order to transition Service to another provider.
Customer has optional access to user Company servers to send and receive emails. Customer agrees to comply with the CAN Spam Act of 2003 located here: http://www.business.ftc.gov/documents/bus61-can-spam-act-compliance-guide-business. Any violation to the CAN Spam Act of 2003 will result in the immediate shut down of access to the website. Company will charge Customer $500.00 (five hundred dollars) for the violation and any additional fees and time associated with the violation. Company’s time will be billed at $95 per hour.
Company has a zero tolerance policy for spam and does not permit spam to be sent through Company mail servers.
All email sent via Company mail servers must meet the following criteria:
- Email subject lines must not be misleading
- The recipient of your email must have made a purchase, requested information, responded to a questionnaire or a survey, or had offline contact with you.
- The email address that was used to send the email is required to contain the domain name of your website.
- All email sent to customers in the form of a newsletter or for marketing purposes must include the ability to unsubscribe. All requests to unsubscribe must be processed within 10 business days.
- No more than 1,000 emails can be sent by the Pinnacle Cart newsletter tool or product email tool within a 48 hour period. Violation of this policy will result in a charge of $0.10 per email attempted. A second violation can result in the shutdown of the violating website.
In addition, any account that uses more email accounts than allowed on their hosting package, will be moved up to the appropriate level and billed accordingly.
TERMINATION DUE TO BREACH
Company may terminate this Software Service Agreement if Customer fails to comply with the terms and conditions of this Software Service Agreement. Company also reserves the right to take additional legal action for violations of this Software Service Agreement.
UNITED STATES LAW
If Customer is located in the United States of America; this Software Service Agreement is governed by the laws of the State of Arizona, United States, excluding any conflict of law principles, and specifically excludes the United Nations Convention on Contracts. The U.S. federal and state courts of the State of Arizona shall have sole and exclusive jurisdiction and venue to adjudicate over any actions relating to the subject matter of this Software Service Agreement. Regardless of the physical location of Customer, the parties hereto consent to the exclusive jurisdiction of the courts specified above, and expressly waive any objection to the jurisdiction or convenience of such courts. Customer may contact the Company, for any reason. Please write: Pinnacle Cart, LLC, 7227 N. 16th St., Suite 270, Phoenix, AZ 85020. Attention: Legal or email firstname.lastname@example.org.
Customer agrees to indemnify, defend, and hold Company and its successors, officers, directors, agents and employees harmless from any and all actions, causes of action, claims, demands, cost, liabilities, expenses and damages (including attorneys’ fees) arising out of, or in connection with, this Software Service Agreement. Company agrees to indemnify, defend, and hold the Customer and its successors, officers, directors, agents and employees harmless from any and all actions, causes of action, claims, demands, costs, liabilities, expenses and damages (including attorneys’ fees) arising out of any breach of this Agreement by the Company.
Company, its Affiliates, and Service Providers entire liability and Customer’s exclusive remedy shall be, at Company’s option from time to time exercised subject to applicable law, return of the price paid for the Service. Customer will receive the remedy elected by Company without charge, except that Customer is responsible for any service expenses Customer may incur in returning monies.
Customer may use Company’s trademarks, service marks, trade names, logos, or other commercial or product designations (collectively, “Marks”) for promotional purposes with prior written consent of Company. Notwithstanding the foregoing, Customer grants to Company a non-exclusive, nontransferable, royalty-free, worldwide license to use Customer’s Marks (a) for the purposes of marketing, promotion, and content directories or indexes and (b) in electronic or printed advertising, publicity, press releases, newsletters and mailings about the Customer and the Customer/Company relationship.
DISCLAIMER OF WARRANTIES
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, COMPANY PROVIDES THAT ALL SERVICES PERFORMED HEREUNDER ARE “AS IS”. THE COMPANY HEREBY EXPRESSLY DISCLAIMS ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES, REGARDING COMPANY’S SOFTWARE SERVICE OR ANY PORTION THEREOF, INCLUDING BUT NOT LIMITED TO FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, TRADE PRACTICE, OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COMPANY SPECIFICALLY DISCLAIMS (A) ANY WARRANTY REGARDING: THE NUMBER OF PERSONS WHO WILL ACCESS THE CONTENT; (B) THAT THE SERVICES WILL MEET THE CUSTOMER’S NEEDS OR EXPECATIONS, (C) THAT ALL NON-CONFORMITIES CAN OR WILL BE CORRECTED; OR (D) THE OPERATION OR APPEARANCE OF THE SOFTWARE. COMPANY DOES NOT GUARANTEE OR WARRANT THAT ACCESS TO OR USE OF THE DATABASE SHALL BE CONTINUOUS, UNINTERRUPTED, SECURE BEYOND COMPANY’S FIREWALL OR ERROR-FREE. IN THE EVENT OF INTERRUPTION OF THE SERVICE, COMPANY’S SOLE OBLIGATION SHALL BE TO RESTORE SERVICE AS SOON AS REASONABLY POSSIBLE
LIMITATION OF LIABILITY
NOTWITHSTANDING ANY DAMAGES THAT CUSTOMER MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED ABOVE AND ALL DIRECT OR GENERAL DAMAGES), THE ENTIRE LIABILITY OF COMPANY AND ANY OF ITS SUPPLIERS UNDER ANY PROVISION OF THIS AGREEMENT AND CUSTOMER’S EXCLUSIVE REMEDY FOR ALL OF THE FOREGOING (EXCEPT FOR ANY REMEDY OF REPAIR ELECTED BY COMPANY WITH RESPECT TO ANY BREACH OF THE LIMITED WARRANTY) SHALL BE LIMITED TO THE GREATER OF THE AMOUNT ACTUALLY PAID BY CUSTOMER FOR THE FIRST THREE MONTHS OF SERVICE. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS (INCLUDING SECTIONS ABOVE) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
Company shall have the right to transfer and assign this Software Service Agreement, in whole or in part, to any person or entity who acquires all or substantially all of the business or assets of the Company or that portion of the business or assets to which this Software Service Agreement relates.