eCommerce

Date Last Modified: November 10, 2015 1.        Description of Service. CyberSpyder, Inc. may make available for purchase, from time to time, a variety of ecommerce packages or solutions, stand-alone eCommerce services, optional add-on ecommerce services and ecommerce software (collectively, “eCommerce Services”). The eCommerce Services include, but are not limited to, shopping cart functionality, ecommerce templates, storefront or ecommerce website design, support and hosting, order and payment processing, inventory and product tracking and management, and website analytical tools. CyberSpyder, Inc. reserves the right to amend its eCommerce Services offerings and to add, delete, suspend or modify the terms and conditions of the eCommerce Services, at any time and from time to time, and to determine whether and when any such changes apply to both existing and future customers. 2.        Software License and Proprietary Rights. During the term of this Agreement, Customer will have a limited, revocable, non-transferable and non-exclusive license for Customer to use the eCommerce Services, including but not limited to any software, and related documentation solely for Customer to provide business related services over the internet that are consistent with the terms and conditions of this Agreement as well as any applicable state, federal, or international law. Customer agrees that Customer and its agents will not: (i) sell, lease, transfer, license or sublicense the eCommerce Services; (ii) modify, change, alter, translate, create derivative works from, reverse engineer, disassemble or decompile the eCommerce Services in any way for any reason; (iii) provide, disclose, divulge or make available to, or permit use of the eCommerce Services by any third party; (iv) copy or reproduce all or any part of the eCommerce Services (except as expressly provided for herein); (v) interfere, or attempt to interfere, with the eCommerce Services in any way; (vi) engage in spamming, mail bombing, spoofing or any other fraudulent, illegal or unauthorized use of the eCommerce Services; (vii) knowingly introduce into or transmit through the eCommerce Services or any other services any virus, worm, trap door, back door, timer, clock, counter or other limiting routine, instruction or design; (viii) remove, obscure or alter any copyright notice, trademarks or other proprietary rights notices affixed to or contained within the eCommerce Services; (ix) engage in or allow any action involving the eCommerce Services that is inconsistent with the terms and conditions of this Agreement; or (x) cause, assist or permit any third party to do any of the foregoing. No right, title or interest of intellectual property or other proprietary rights in and to the eCommerce Services and/or other products, services or software made available under this Agreement is transferred to Customer hereunder. CyberSpyder, Inc., its wholly-owned subsidiaries and affiliates and its Third Party Licensors (as defined below) retain all right, title and interests, including, without limitation, all copyright, trade secret, intellectual property and other proprietary rights in and to the eCommerce Services and/or other products, services or software provided under this Agreement. 3.        Audit Rights. If a customer has purchased any CyberSpyder, Inc. software or has obtained FTP access to the CyberSpyder, Inc. software or other eCommerce Services, CyberSpyder, Inc. shall have the right, during the term of this Agreement and for a period of six (6) months thereafter to access your location and files to inspect your or your agent’s use of the eCommerce Services, as well as computers and equipment used in connection therewith. Customer shall cooperate fully with any such audit or inspection. In the event that any audit shows any misuse, violation or breach of the eCommerce Services or this Agreement, CyberSpyder, Inc. shall be entitled to pursue any remedies available to it under this Agreement or otherwise at law or in equity, and to or suspend, revoke, or terminate eCommerce Services if you are still a CyberSpyder, Inc. customer. 4.        Availability, Downtime and General Services. The parties acknowledge that since the Internet is neither owned nor controlled by any one entity, CyberSpyder, Inc. makes no guarantees that any given user will be able to access the eCommerce Services at any given time. CyberSpyder, Inc. shall not be liable to Customer for failure of accessibility to the eCommerce Services or any potential or actual losses that Customer may suffer from your inability to access or use the eCommerce Services or your customer’s inability to access any websites that may be supported or hosted by eCommerce Services. CyberSpyder, Inc. provides all eCommerce Services and any software related to those services to you on an “as is” basis and does not guarantee that the eCommerce Services or any related software has no errors, defects or bugs or will function properly. Customer agrees that CyberSpyder, Inc. is not responsible in any way for any malfunction or downtime in the eCommerce Services or related software and any damage, injury or lost profits that may arise from such malfunction or downtime. CyberSpyder, Inc. makes no guarantee that the eCommerce Services that you purchase will operate seamlessly and without error with your own hardware, software or other services (including third party products) that Customer currently uses. CyberSpyder, Inc. makes no guarantees regarding system uptime, including but not limited to, the uptime for hosting your store(s) on CyberSpyder, Inc. or third party systems. From time to time, and as may be necessary to maintain such systems and CyberSpyder, Inc. hardware, CyberSpyder, Inc. reserves the right to take its servers and other hardware offline for repairs, upgrades or routine maintenance. Customer agrees and understands that CyberSpyder, Inc. eCommerce Services, including the hosting of your store, may be dependent on third party services that CyberSpyder, Inc. cannot control. Customer expressly agrees that the availability of those third party services may impact your eCommerce Services and therefore does not hold CyberSpyder, Inc. liable for any actions of a third party that may adversely impact your eCommerce Services. Any uptime calculation or percentage that is provided as a part of the eCommerce Services does not include routine maintenance, unexpected downtime caused by network issues or third party vendors, and occurrences that are outside the control of CyberSpyder, Inc., including but not limited to the Force Majeure occurrences outlined in this Agreement.  If you purchase eCommerce Design Services, you agree that you take full responsibility for all content suggested or supplied to CyberSpyder, Inc. for inclusion on web document(s), advertisement(s) or any form of media. Customer is held legally liable for any such supplied content. 5.        Fees and Payment Terms. Fees for the eCommerce Services selected by you will be on a pre-paid basis, due and payable on a recurring basis, in advance of each billing cycle, throughout the Term of the Agreement, unless another fee or payment structure is mutually agreed to by you and CyberSpyder, Inc. in writing. You also agree to pay any and all transaction fees and all other fees designated to be paid in arrears based on the value of goods and services sold through your Website via the eCommerce Services during the previous billing period in the following month, and further in accordance with the invoicing and payment requirements. 6.        Restrictions on Use. You agree that you will not exceed the bandwidth or storage space limits applicable to the eCommerce Services purchased, as set forth on our Website. You agree that if you do exceed any such limits or otherwise engage in any such activity, CyberSpyder, Inc., in its sole and exclusive discretion, may immediately take corrective action, including, but not limited to, billing plan adjustment and/or upgrade, assessment of additional fees and/or suspension, and/or termination of your eCommerce Services. You agree that if your bandwidth and storage space usage adversely affects other customers on our shared eCommerce Services platform, CyberSpyder, Inc. may adjust your billing plan and/or suspend or terminate your eCommerce Services without liability. You agree that CyberSpyder, Inc. will have no liability to you or any of your end users due to any corrective action that CyberSpyder, Inc. may take and that you will not be entitled to a refund of any fees paid in advance prior to the corrective action 7.        Bandwidth Fees. Bandwidth overages will be incurred for each Gigabyte (GB) of usage over your allotted plan amount. The fees are applied by the following scale, which is subject to change at CyberSpyder, Inc.’s sole discretion: Bandwidth Overage (GB)                                     Per GB 6 – 10                                                                      $ 1.50 11 – 24                                                                    $ 3.50 25 – 60                                                                    $ 5.00 61 – 100                                                                  $ 7.50         Excess bandwidth usage cannot be purchased by you in advance. If you exceed your data transfer limit in the last 24 hours of any given month, CyberSpyder, Inc. will not charge you additional fees so long as the data transfer overage does not exceed 25GB. For eCommerce Services, you agree that CyberSpyder, Inc. may automatically charge your credit card for the bandwidth overage fees. You may opt-out of automatic charges to your credit card by contacting Customer Service. If you opt out of the automatic overage charges, you risk account suspension if you exceed your allotted amount. 8.        Terms and Conditions of CyberSpyder, Inc.’s Licensors. Customer acknowledges and agrees that the eCommerce Services are provided, in some cases, by third party Licensors to CyberSpyder, Inc. (hereinafter “Third Party Licensors”). For all eCommerce Services that are provided by Third Party Licensors to CyberSpyder, Inc., Customer agrees with and shall abide by all Third Party Licensor terms and conditions, if any. Such Third Party Licensor terms and conditions are available upon request (the “Additional Terms and Conditions”). Any Additional Terms and Conditions are in addition to and supplement the terms and conditions provided in this Agreement. Customer acknowledges and agrees that it will be subject to all Additional Terms and Conditions and that all such Additional Terms and Conditions shall be incorporated into this Agreement, to the extent those Additional Terms and Conditions do not conflict with the terms and conditions of this Agreement, as if set forth fully herein. Customer further agrees that it will be subject to all Additional Terms and Conditions where Customer elects to add services to its eCommerce Services package. 9.        Changes to CyberSpyder, Inc. Licensors. Customer acknowledges that CyberSpyder, Inc. may, at its sole discretion, change any Third Party Licensors that provide services under this Agreement, or add or delete discrete services from the eCommerce Services. In the event that CyberSpyder, Inc. changes Third Party Licensors, CyberSpyder, Inc. may provide Customer with notification of changes in Third Party Licensors and refer Customer to information posted on CyberSpyder, Inc.’s website relative to that change which shall become Additional Terms and Conditions for the purposes of this Agreement. 10.     Refunds. Refunds for certain eCommerce Services are only provided in limited instances and only within the first 30 days from your purchase of the services. Such refunds are only permitted where the Customer has taken all actions consistent with this Agreemen. Refunds will not include a processing fee that all Customers must pay.