Terms & Conditions

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THIS SERVICE.BY USING THE SERVICE OR CLICKING AGREE CUSTOMER IS AGREEING TO BE BOUND BY THIS AGREEMENT. IF CUSTOMER DOES NOT WANT TO AGREE TO THIS AGREEMENT CLICK "I DECLINE", BUT THEN CUSTOMER CANNOT USE THE SERVICE.

This agreement is between E-Commerce Pack LLC. Inc., a California limited liability company (ECP), and the entity or individual agreeing to these terms (Customer).

  1. E-COMMERCE PLATFORM AS A SERVICE.

    This agreement provides Customer access to a proprietary online e-commerce platform as a service as specified on a subscription order agreement (SOA) with the following main functionality:

    • Front End Web Store,
    • Backend Management Platform,
    • Third Party Integration Module,
    • Managed Support Service, and
    • Managed Hosting.

    ECP will provide this functionality through a URL within a hosted server environment under the terms below (Service). This agreement contemplates one or more SOA for the Service, which orders are governed by the terms of this agreement.

  2. USE OF SERVICE.

    1. Managed Support. ECP must provide customer support for the Service under the terms of ECP’s Managed Support Service (Managed Support), which is located at www.ecommercepack.com/support.php, and is incorporated into this agreement for all purposes. ECP may change Managed Support and the functionality of the Service at any time.
      • If ECP configures the Service at the request of Customer, then Customer must (at the time the configurations are made) validate that the configurations were performed correctly.
    2. Customer Owned Data. All files, images, transactions and other data uploaded or created by Customer’s use within the Service remains the sole property of Customer, as between ECP and Customer (Customer Data). Customer grants ECP the right to use and publish the Customer Data solely for purposes of performing under this agreement.
      • During the term of this agreement and upon request, for a reasonable fee, ECP will provide most of the Customer Data only in the following format: comma delimited or csv format.
      • ECP may use aggregate unidentifiable data from the Service for support and enhancement purposes, and other business purposes, during the Term (defined below) and after the Term.
    3. Customer Responsibilities and Restrictions.
      • Customer (i) is solely responsible for Customer Data, all activity in its account in the Service, and backing up its data on regular intervals; (ii) must use commercially reasonable efforts to prevent unauthorized access to its account, and notify ECP promptly of any such unauthorized access; and (iii) may use the Service only in accordance with applicable law.
      • Customer may not (i) sell, resell, rent or lease the Service or Licensed Software and Documentation (defined below); (ii) use the Service to store or transmit infringing, unsolicited marketing emails, libelous, or otherwise objectionable, unlawful or tortious material, or to store or transmit material in violation of third-party rights; (iii) use the Service to store or transmit pornographic, obscene or excessively profane content; content intended to advocate or advance computer hacking or cracking; gambling material; illegal material; drug paraphernalia material; or to advocate hate, violence or racial or ethnic intolerance; (iv) interfere with or disrupt the integrity or performance of the Service; (v) attempt to gain unauthorized access to the Service or their related systems or networks; or (vi) access the Service other than through an industry standard Internet browser.
    4. Trial Version. If Customer has trial access of the Service, Customer may access the Service for so long as ECP allows such access. Access may be terminated at any time. The Service is provided AS IS, with no warranty during this time period. All Customer Data will be deleted after the trial period, unless Customer converts its account to a paid Service under a SOA.
    5. Shopping Cart Issues. Customer assumes the risk of credit card and other payment fraud. While Customer can configure the Service to collect sales tax and shipping fees, Customer is solely responsible for identifying all jurisdictions where ECP should calculate sales tax and all shipping fees.
    6. Compliance with Laws. Customer agrees to only use the Service in compliance with applicable laws, including without limitation all export control laws of the United States.
    7. Contractors and Employee Access and Use. Customer may allow its employees and contractors to access the Services in compliance with the terms of this agreement, which access must be for the sole benefit of Customer. Customer is responsible for the compliance with this agreement by its employees and contractors.
    8. Licensed Software and Documentation. Any associated software provided by ECP as part of the Service, and the Service documentation, sample data, marketing materials, training material and other material provided through the Service or by ECP (Licensed Software and Documentation) are licensed to Customer as follows: ECP grants Customer a non-exclusive, license during the Term, to such Licensed Software and Documentation, for use solely with the Service.
    9. Trademark Usage by ECP. Customer grants ECP a non-exclusive, license to use, during the Term, Customer’s trademarks for purposes of ECP performing under this agreement. ECP will make reasonable commercial efforts to comply with all Customer provided trademark guidelines.

  3. PAYMENT TERMS.

    Customer must pay all fees as specified on the SOA, but if not specified then within 30 days of receipt of an invoice. Customer is responsible for the payment of all applicable sales, use, withholding, VAT and other similar taxes.

  4. WARRANTY, REMEDY AND DISCLAIMERS.

    1. Service Availability Warranty. ECP warrants to Customer, that commercially reasonable efforts will be made to maintain the online availability of the Service for a minimum of availability in any given month as provided in the chart below (excluding scheduled outages, force majeure (which includes without limitation subcontractors of ECP), and outages that result from any Customer technology issues)
      Availability Warranty Credit/Refund
      99.99% prorated amount of the monthly recurring Service fee for each 30 mins of an outage beyond the warranty.
      Maximum amount of the credit/refund is 100% of the recurring Service fees for that month.
    2. Limited Remedy and Disclaimers. Customer’s exclusive remedy and ECP’S sole obligation for breach of the warranty in A above will be for ECP to provide a credit as provided in the chart above (if this agreement is not renewed, then a refund), for the month; provided that Customer notifies ECP in writing of such breach within 15 days of the end of the alleged breach, along with the details of the outage.
    3. DISCLAIMER GENERAL. EXCEPT FOR THE WARRANTY ABOVE, THE SERVICE IS PROVIDED ‘AS IS’ AND ECP DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE. THE SERVICE AND managed SUPPORT MAY BE INTERRUPTED OR CONTAIN AN ERROR. ECP DOES NOT GUARANTY THAT THE SERVICE CANNOT BE COMPROMISED.
    4. DISCLAIMER FOR THIRD-PARTY INTEGRATIONS AND SOFTWARE/SERVICES.
      • THE SERVICE PROVIDES CUSTOMER ACCESS TO THIRD-PARTY INTEGRATED WEBSITES AND OTHER WEB SERVICES CONNECTED USED AS PART OF THE SERVICE, WHICH ARE NOT UNDER ECP’S CONTROL. ECP IS NOT RESPONSIBLE FOR ANY SUCH SITES OR SERVICES. CUSTOMER USE AND ACCESS TO THESE SITES AND SERVICES IS SOLELY GOVERNED BY CUSTOMER’S AGREEMENT WITH THOSE PROVIDERS. THESE SITES AND SERVICES MAY BE UNAVAILABLE TEMPORARILY OR PERMANENTLY, AND ECP IS NOT RESPONSIBLE FOR ANY SUCH UNAVAILABILITY.
      • DISCLAIMER FOR USAGE SPIKES. IF CUSTOMER EXPECTS USAGE OF THE SERVICE TO SPIKE, CUSTOMER MUST NOTIFY ECP IN ADVANCE. IF CUSTOMER FAILS TO NOTIFY ECP OF ANY SPIKE IN USAGE, THE AVAILABILITY AND PERFORMANCE OF THE SERVICE COULD BE IMPACTED. ECP IS NOT RESPONSIBLE FOR ANY SUCH FAILURE AND MAY TEMPORARILY SUSPEND CUSTOMER’S ACCOUNT IN SUCH CASE. USAGE SPIKES MAY REQUIRE CHANGES TO THE CONFIGURATION AND MAY REQUIRE AN ADDITIONAL FEE.

  5. MUTUAL CONFIDENTIALITY.

    1. Definition of Confidential Information. Confidential Information means all information disclosed by a party (Discloser) to the other party (Recipient), 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 (Confidential Information). ECP’ Confidential Information includes without limitation the Service, the Licensed Software and Documentation and the ECP pricing (including without limitation the Service user interface design and layout).
    2. Protection of Confidential Information. The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this agreement.
    3. Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser, (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser, (iii) is received from a third party without breach of any obligation owed to Discloser, or (iv) was independently developed by the Recipient without use or access to the Confidential Information.
    4. Disclosure Required by Law. The Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice to seek a protective order.

  6. PROPRIETARY RIGHTS.

    1. Reservation of Rights by ECP. The software, workflow processes, user interface, designs, know-how, Licensed Software and Documentation, and other technologies provided by ECP as part of the Service are the proprietary property of ECP and its licensors, and all right, title and interest in and to such items, including all associated intellectual property rights, remain only with ECP. ECP reserves all rights unless expressly granted in this agreement.
    2. Customer Restrictions. Customer may not:
      1. Reverse engineer the Service or Licensed Software and Documentation;
      2. Remove or modify any proprietary marking or restrictive legends in the Service or Licensed Software and Documentation; or
      3. Access the Service or Licensed Software and Documentation to build a competitive service or product, or copy any feature, function or graphic for competitive purposes.
    3. Feedback. By submitting ideas, suggestions or feedback to ECP regarding the Service, Customer agrees that such items submitted do not contain confidential or proprietary information; and Customer hereby grants ECP an irrevocable, royalty-free and full paid perpetual license to use such items for any business purpose.

  7. EXCLUSION OF DAMAGES AND LIMITATION OF LIABILITY.

    1. Exclusion of Certain Damages. ECP IS NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, COSTS OF DELAY; LOSS OF DATA OR INFORMATION; LOSS OF FUTURE TRANSACTIONS OR PROFIT; AND ANY FAILURE OF DELIVERY OF THE SERVICE).
    2. Limitation of Liability. ECP’S liability for DIRECT damages ARISING OUT OF OR relatED TO This Agreement (WHETHER IN CONTRACT, TORT OR OTHERWISE) does not exceed the actual amount paid by CUSTOMER within the preceding 6 months UNDER THIS AGREEMENT.

  8. TERM, TERMINATION, RETURN OF DATA AND SUSPENSION OF SERVICE.

    1. Term. This agreement continues for the duration specified on the SOA (Term).
    2. Termination for Convenience. Either party can terminate this agreement or any SOA for its convenience upon 30 days notice. ECP does not provide pro-rated refunds of any prepaid amounts.
    3. Mutual Termination for Material Breach. If either party is in material breach of this agreement, the other party may terminate this agreement at the end of a 15-day notice/cure period, if the breach has not been cured.
    4. Return or Destroy ECP Property Upon Termination. Upon termination of this agreement for any reason, Customer must pay ECP for any amounts owed, uninstall all ECP software, and destroy or return all property of ECP. Customer will confirm its compliance with this requirement in writing upon request of ECP.
    5. Return of Customer Data.
      1. Within 30-days after termination, upon request ECP will provide Customer Data in accordance with Section 2(b).
      2. After such 30-day period, ECP has no obligation to maintain the Customer Data and may destroy it.
    6. Suspension of Service for Violations of Law or Restriction. ECP may immediately suspend the Service and remove applicable Customer Data if it in good faith believes that, as part of using the Service, Customer may have violated a law, restriction or limitation in this agreement. ECP may try to contact Customer in advance, but it is not required to do so.

  9. GOVERNING LAW AND FORUM.

    This agreement is governed by the laws of the State of California without regard to conflict of law principles. Any dispute arising out of or related to this agreement may only be brought in the state and federal courts for Los Angeles County, CA. Both parties consent to the personal jurisdiction of such courts and waive any claim that it is an inconvenient forum. Nothing in this agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its attorneys’ fees and costs from the other party.

  10. INDEMNITY.

    Customer must indemnify, defend and hold harmless ECP from all third party claims and actions, and all associated damages, losses, liabilities, costs and expenses (including reasonable attorney's fees) sustained or incurred by ECP, arising out of or related to: (i) Customer’s (or its customer’s) use or access to the Service, (ii) Customer’s breach of any term of this agreement, (iii) infringement of the Customer Data of a patent, copyright, trademark or other third party right. ECP must promptly notify Customer of any claim in writing.

  11. MISCELLANEOUS OTHER TERMS.

    1. Non-Solicitation. Customer will not solicit for employment (or as an independent contractor) any person who is employed by ECP and who Customer works with under this agreement; but this clause does not apply to general solicitations not directed at the employee of ECP, or if the employee first initiates contact with Customer regarding employment.
    2. Money Damages Insufficient. Any breach by a party of this agreement or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach.
    3. Entire Agreement and Changes. This agreement and the SOA constitute the entire agreement between the parties, and supersede all prior or contemporaneous negotiations, agreements and representations, whether oral or written, related to this subject matter. No modification or waiver of any term of this agreement is effective unless both parties sign it.
    4. No Assignment. Customer may not assign or transfer this agreement or a SOA to a third party, except with the prior approval of ECP. Any assignment in violation of this restriction is void. ECP can assign or transfer this agreement and all SOAs to a successor or any majority owned affiliate.
    5. Electronic Notice. For purposes of service messages and notices about the Service, ECP may notify Customer through banners within the Service or to the email address associated with Customer’s account. Customer understands that ECP has no liability associated with Customer's failure to maintain accurate contact or other information, including, but not limited to, Customer’s failure to receive critical information about the Service.
    6. Privacy Policy. Customer should read the ECP Privacy Policy, which policy, in its then current form, is incorporated into this agreement for all purposes.
    7. Independent Contractors. The parties are independent contractors with respect to each other.
    8. Enforceability. If any term of this agreement is invalid or unenforceable, the other terms remain in effect.
    9. Order of Precedence. If there is an inconsistency between this agreement and an SOA, the SOA prevails.
    10. Survival of Terms. Any terms that by their nature survive termination or expiration of this agreement, will survive.
    11. CISG Not Apply. The Convention on Contracts for the International Sale of Goods does not apply.

Confidential – E-Commerce Pack Rev. March 08, 2012