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AGREEMENT
The Hollidaysburg Store service ("Hollidaysburg Store" or the
"Service"), owned and operated by INet Construction is provided to you
("you" or "Merchant") under the terms and conditions of this
Hollidaysburg Merchant Service Agreement and any amendments thereto and any
operating rules or policies (collectively, the "HMA" or
"Agreement"). INet Construction reserves the right, in its sole discretion, to
change, modify, add or remove all or part of the HMA at any time. Merchant will
receive notice of such changes and/or modifications pursuant to Section 14
regarding notices.
1.1 By accepting the terms and conditions of the HMA, Merchant (a) represents
and warrants that he or she is 18 years old or older; (b) agrees to provide
true, accurate, current and complete information about Merchant as prompted by
the Account Registration Form; and (c) agrees to maintain and update this
information to keep it true, accurate, current and complete. If any information
provided by Merchant is untrue, inaccurate, not current or incomplete, INet Construction
has the right to terminate Merchant’s account and refuse any and all current
or future use of the Service.
1.2 BY COMPLETING THE ACCOUNT REGISTRATION PROCESS YOU AGREE TO BE BOUND BY THE HMA.
Nothing in this agreement obligates INet Construction or the Service to list,
link to, accept or otherwise host any online store anywhere on the Hollidaysburg
site. If these terms and conditions or any future changes are unacceptable to
you, you may cancel your account pursuant to Section 7.1 regarding termination
of service.
2.0 DESCRIPTION OF HOLLIDAYSBURG STORE SERVICE
INet Construction hosts interactive online stores ("Store") on the
World Wide Web and may provide Merchants with, among other things, (i) the
listing of such Stores in the Hollidaysburg Store Listings located at
www.hollidaysburg.com/directory; and (ii) the listing of such goods and services
in the Hollidaysburg Online Mall Shopping Listings located at the-diamond-district.com
("Online Store Services").
3.0 MERCHANT'S OBLIGATIONS
3.1 Merchant acknowledges and agrees that it shall be responsible for all goods
and services offered at Merchant’s Store, all materials used or displayed at
the Store, and all acts or omissions that occur at the Store or in connection
with Merchant's account or password. Certain Stores may be subject to additional
requirements.
3.1.1 Merchant agrees to display in the Store Merchant's contact information,
including but not limited to Merchant's company name, address, telephone number,
fax number and e-mail address. Merchant also agrees to update such information
to keep it true, accurate, current and complete.
3.1.2 Merchant agrees that any and all press releases and other public
announcements related to this Agreement and subsequent transactions between INet
Construction and Merchant, including the method and timing of such
announcements, must be approved in advance by INet Construction in writing. INet
Construction reserves the right to withhold approval of any public announcement
in its sole discretion. Without limitation, any breach of Merchant's obligation
regarding public announcements shall be a material breach of the HMA.
3.1.3 Merchant represents and warrants that it has full power and authority
under all relevant laws and regulations:
* to offer and sell the goods and services offered at the Store, including but
not limited to holding all necessary licenses from all necessary jurisdictions
to engage in the advertising and sale of the goods or services offered at the
Store;
* to copy and display the materials used or displayed at the Store; and,
* to provide for credit card payment and delivery of goods or services as
specified at the Store.
3.1.4 Merchant represents and warrants that it will not engage in any
activities:
* that constitute or encourage a violation of any applicable law or regulation,
including but not limited to the sale of illegal goods or the violation of
export control or obscenity laws;
* that defame, impersonate or invade the privacy of any third party or entity;
* that infringe the rights of any third party, including but not limited to the
intellectual property, business, contractual, or fiduciary rights of others;
and,
* that are in any way connected with the transmission of "junk mail"
"spam" or the unsolicited mass distribution of e-mail, or with any
unethical marketing practices.
3.2 INet Construction reserves the right to refuse to host or continue to host
any Store which it believes, in its sole discretion: (1) offers for sale goods
or services, or uses or displays materials, that are illegal, obscene, vulgar,
offensive, dangerous, or are otherwise inappropriate; (2) has substantially
changed its Store from the time it was accepted; (3) has received a significant
number of complaints for failing to be reasonably accessible to customers or
timely fulfill customer orders; (4) has become the subject of a government
complaint or investigation; or (5) has violated or threatens to violate the
letter or spirit of the HMA.
4.0 PROPRIETARY RIGHTS
4.2 INet Construction Intellectual Property. Merchant acknowledges and agrees
that content available from INet Construction or the Service, including but not
limited to text, software, music, sound, logos, trademarks, service marks,
photographs, graphics, or video, is protected by copyright, trademark, patent,
or other proprietary rights and laws.
4.3 Merchant's Property. Merchant agrees that by using the Service, Merchant
grants INet Construction, and its successors and assigns, a non-exclusive,
worldwide, royalty-free, perpetual, non-revocable license under Merchant’s
copyrights and other intellectual property rights, if any, in all material and
content displayed in Merchant's Store to use, distribute, display, reproduce,
and create derivative works from such material in any and all media and display
in any manner and on any INet Construction property the results of search
queries and comparisons conducted on Hollidaysburg DOT Com, including, without
limitation, searches conducted on Hollidaysburg Shopping and the Service.
4.4 Unauthorized Access. Merchant shall not attempt to gain unauthorized access
to any servers controlled by INet Construction.
5.0 FEES
5.1 Merchant shall pay INet Construction a monthly fee as set forth in the Hollidaysburg
eStore fee schedule. All such fees are payable in U.S. dollars to INet
Construction and shall be charged on the first day of each month. INet
Construction may also, upon 30 days prior notice to Merchant, alter its fee
schedules and terms of the HMA.
5.2 All fees are payable in U.S. dollars. Late payments shall bear interest at
the rate of one percent (1%) per month (or the highest rate permitted by law, if
less). In the event of any failure by Merchant to make payment, Merchant shall
be responsible for all reasonable expenses (including attorneys’ fees)
incurred by INet Construction in collecting such amounts.
6.0 TERMS
6.1 Term. The term of the HMA shall be 90 days commencing on the date that
Merchant opens an account for Merchant’s Store. The term shall automatically
renew for successive monthly periods at renewal rates applicable at the time,
unless notice of non-renewal is provided in accordance with Section 6.2, below;
provided, however, that to qualify for each renewal Merchant must at the time of
renewal be in substantial compliance with the material terms and conditions of
the HMA. INet Construction shall have the right, but not the obligation, to
review any Store for compliance with the HMA as part of the renewal process, or
at any time.
6.2 Non-Renewal. Either party, in its sole and absolute discretion, may give
notice of nonrenewal with or without cause and without stating any reason therefore.
Any notice of nonrenewal must be given at least thirty (30) days prior to the
end of the term then in effect and in the manner described in Section 14
regarding notice.
7.0 TERMINATION
7.1 Termination. Either party may terminate the HMA on thirty (30) days notice
if the other party has materially breached or is otherwise not in compliance
with any provision of the HMA, and such breach or noncompliance is not cured
within such thirty (30) day period. INet Construction reserves the right to
immediately suspend any customer access to the Store until such breach or
noncompliance is cured.
7.2 Termination for Illegal or Other Activity. Notwithstanding the foregoing,
INet Construction may, but has no duty to, immediately terminate Merchant and
remove it from INet Construction servers if INet Construction in its sole
discretion concludes that Merchant is engaged in illegal activities or the sale
of illegal or harmful goods or services, or is engaged in activities or sales
that may damage the rights of INet Construction or others. Any termination under
this Section 7.2 shall take effect immediately and Merchant expressly agrees
that it shall not have any opportunity to cure.
7.3 Waiver. Merchant expressly waives any statutory or other legal protection in
conflict with the provisions of this Section 7.
7.4 Deletion of Information. Upon termination, INet Construction reserves the right to
delete from its servers any and all information contained in Merchant’s
account, including but not limited to order processing information, mailing
lists, and any Web pages generated by the Software.
7.5 The provisions of Section 4 (Proprietary Rights), Section 10 (Indemnity),
and Section 11 (Disclaimer of Warranties and Liabilities) of this Agreement
shall survive any termination of the Agreement.
8.0 MERCHANT PRIVACY
8.1 Merchant Information. INet Construction maintains information about Merchant
and the Store on INet Construction servers, including but not limited to
Merchant’s account registration information, Merchant's customer order
information, and sales information. Merchant agrees that INet Construction
may use Merchant Information in aggregate form (i.e., Merchant Information is
not individually attributable to the Merchant) for marketing or other
promotional purposes.
8.1.1 Merchant agrees that INet Construction may disclose Merchant Information in the good
faith belief that such action is reasonably necessary: (a) to comply with the
law; (b) to comply with legal process; (c) to enforce the HMA; (d) to respond to
claims that the Merchant or Store is engaged in activities that violate the
rights of third parties; or (e) to protect the rights or interests of INet Construction,
Hollidaysburg eStore or others; provided, however, that nothing in this section shall
impose a duty on INet Construction to make any such disclosures.
8.1.2 Merchant agrees that INet Construction may delete customer credit card
information from INet Construction servers 14 days after Merchant retrieves such
information, and may delete all other Merchant Information from INet
Construction servers at the end of each calendar year.
8.2 Password. Merchant shall receive a password from INet Construction to
provide access to and use of the Online Storefront Services. Merchant is
entirely responsible for any and all activities which occur under Merchant’s
account and password. Merchant agrees to keep its password confidential, to
allow no other person or company to use its account, and to notify INet
Construction promptly if Merchant has any reason to believe that the security of
its account has been compromised.
8.3 Technical Access. Merchant acknowledges and agrees that technical processing
of Merchant Information is and may be required: (a) for the Service to function;
(b) to conform to the technical requirements of connecting networks; (c) to
conform to the technical requirements of the Service; or (d) to conform to
other, similar technical requirements. Merchant also acknowledges and agrees
that INet Construction may access Merchant's account and its contents as
necessary to identify or resolve technical problems or respond to complaints
about the Service.
8.4 Merchant Privacy Policy. Merchant agrees (a) to post a privacy policy in its
Merchant Storefront that, at a minimum, discloses any and all uses of personal
information collected from users by Merchant; (b) to include in Merchant's
privacy policy a paragraph provided or approved by INet Construction that
describes INet Construction's collection and use of Merchant's customer
information, (c) to provide a hypertext link to Merchant’s privacy policy on
the home page of the Merchant Store and on all pages where Merchant collects
personal information from users [including, but not limited to, all check out
pages]; and (d) to use personal information only as expressly permitted by
Merchant’s privacy policy.
9.0 MAINTENANCE AND SUPPORT
9.1 Merchant can obtain assistance with any technical difficulty that may arise
in connection with Merchant's utilization of the Software or Online Store
Services by requesting assistance by email to store-support@inetcon.net. INet
Construction reserves the right to establish limitations on the extent of such
support, and the hours at which it is available.
9.2 Merchant is responsible for obtaining and maintaining all telephone,
computer hardware and other equipment needed for its access to and use of the
Software and Online Store Services and Merchant shall be responsible for all
charges related thereto.
10.0 INDEMNITY
Merchant agrees to indemnify and hold harmless INet Construction, and its
parents, subsidiaries, affiliates, officers, directors, employees and agents,
from any claim or demand, including reasonable attorneys fees, made by any third
party due to or arising out of Merchant’s conduct, Merchant’s use of the
Service, the goods or services offered at Merchant’s Store, any alleged
violation of the HMA, or any alleged violation of any rights of another,
including but not limited to Merchant’s use of any content, trademarks,
service marks, trade names, copyrighted or patented material, or other
intellectual property used in connection with Merchant’s Store. INet
Construction reserves the right, at its own expense, to assume the exclusive
defense and control of any matter otherwise subject to indemnification by
Merchant, but doing so shall not excuse Merchant’s indemnity obligations.
11.0 DISCLAIMER OF WARRANTIES AND LIABILITIES
THE SERVICE AND SOFTWARE ARE PROVIDED ON AN "AS IS" AND "AS
AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE OR NON-INFRINGEMENT. NEITHER THIS AGREEMENT OR ANY
DOCUMENTATION FURNISHED UNDER IT IS INTENDED TO EXPRESS OR IMPLY ANY WARRANTY
THAT THE ONLINE STORE SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE OR
THAT THE SOFTWARE WILL PROVIDE UNINTERRUPTED, TIMELY OR ERROR FREE SERVICE. THE
SECURITY MECHANISM INCORPORATED IN THE SOFTWARE HAS INHERENT LIMITATIONS AND
MERCHANT MUST DETERMINE THAT THE SOFTWARE ADEQUATELY MEETS ITS REQUIREMENTS.
MERCHANT ACKNOWLEDGES AND AGREES THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR
OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT ITS OWN DISCRETION
AND RISK AND THAT MERCHANT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO ITS
COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL
AND/OR DATA. INET CONSTRUCTION, AND ITS PARENTS, SUBSIDIARIES, AFFILIATES,
OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, SHALL NOT BE LIABLE, UNDER ANY
CIRCUMSTANCES OR LEGAL THEORIES WHATSOEVER, FOR ANY LOSS OF BUSINESS, PROFITS OR
GOODWILL, LOSS OF USE OR DATA, INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT,
SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER, EVEN IF INET
CONSTRUCTION IS AWARE OF THE RISK OF SUCH DAMAGES, THAT RESULT IN ANY WAY FROM
MERCHANT’S USE OR INABILITY TO USE THE ONLINE STORE SERVICES OR THE SOFTWARE,
OR THAT RESULT FROM ERRORS, DEFECTS, OMISSIONS, DELAYS IN OPERATION OR
TRANSMISSION, OR ANY OTHER FAILURE OF PERFORMANCE OF THE ONLINE STORE SERVICES
OR THE SOFTWARE. INET CONSTRUCTION'S LIABILITY TO MERCHANT SHALL NOT, FOR ANY
REASON, EXCEED THE AGGREGATE PAYMENTS ACTUALLY MADE BY MERCHANT TO INET
CONSTRUCTION OVER THE COURSE OF THE EXISTING TERM. SOME JURISDICTIONS DO NOT
ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR LIABILITIES, SO SOME OF THE ABOVE
EXCLUSIONS MAY NOT APPLY TO YOU.
12.0 NO RESALE OR ASSIGNMENT OF SERVICE
Merchant agrees not to resell or assign or otherwise transfer its rights or
obligations under the HMA without the express written authorization of INet
Construction
13.0 FORCE MAJEURE
Neither party shall be liable to the other for any delay or failure in
performance under the HMA resulting directly or indirectly from acts of nature
or causes beyond its reasonable control.
14.0 NOTICES
Any notices or communications under the HMA shall be by electronic mail or in
writing and shall be deemed delivered upon receipt to the party to whom such
communication is directed, at the addresses specified below. If to INet
Construction, such notices shall be addressed to store-sales@inetcon.net or PO
Box 251, Quentin, PA 17083, USA. If to Merchant, such notices shall be
addressed to the electronic or mailing address specified when Merchant opens an
account with Hollidaysburg Store, or such other address as either party may give
the other by notice as provided above.
15.0 ENTIRE AGREEMENT
The HMA constitutes the entire agreement between the parties with respect to the
subject matter hereof and supersedes all previous proposals, both oral and
written, negotiations, representations, writings and all other communications
between the parties.
16.0 GENERAL
The HMA and the relationship between Merchant and INet Construction shall be governed by
the laws of the Commonwealth of Pennsylvania without regard to its conflict of
law provisions.