Autoresponder Max Service Agreement
THIS CUSTOMER SERVICE AGREEMENT, (the “Agreement”) is now entered into between Ecommerce Product Machine, Inc (DBA Autoresponder Max), a Michigan Corporation, referred to as (“Seller”) and entity, referred to as (“Customer”), collectively referred to as the (“Parties”) for the subscription and use of Seller’s e-commerce website support service known as “Autoresponder Max”, the (“Service”).
The Parties acknowledge that Seller is the creator and sole owner of the Service and that said Service has been developed to provide e-commerce customer support applications. As a result, Customer acknowledges that it is now entering into this Agreement for the purpose of subscribing to Seller for the on-going use of said Service applications on a monthly basis, pursuant to the following terms and conditions.
IN CONSIDERATION of the following terms and conditions and all other value received by the Parties, the Parties hereby agree to the following:
I TERM, AUTHORIZED USE AND ACCESS
The Parties acknowledge and agree that Customer shall subscribe to and be authorized to use said Service for website support purposes on a monthly basis, per the terms herein, with said term commencing upon Customers execution of this Agreement, registration as a user of said Service and Sellers receipt of Customers initial monthly payment.
If customer is part of a “Trial subscription” as indicated in the Order or Confirmation form or if Customer orders a regular subscription, then the term of this Agreement will continue for the initial period stated in the Order for the Service and will thereafter automatically renew on a monthly basis. Unless terminated, the term of this Agreement will continue to automatically renew each month until Customer provides Seller electronic or written notification of its intent to cancel. In all other cases, the term of this Agreement will continue until terminated as set forth herein.
Customer acknowledges that as a registered subscriber, it shall have the option to purchase and utilize one of four Service application packages: the “Solo”, “Plus”, “Premium”, or “Ultimate”. Each package offers unique service applications and Customer may “upgrade” or “downgrade” its selected package on-line at anytime.
Customer agrees to utilize the Service and each of its applications for the sole exclusive purpose of enhancing its customer support and service capabilities. Customer acknowledges that it has been informed of how each application works, the potential outcomes and advantages of each application as well as any potential limitations. As a result, Customer acknowledges that said Service shall only be used and delivered for its intended customer support purposes and that Customer will follow all on-line accessing and registration procedures, information sharing, storing and all other procedural requirements for said subscription and use, as required by Seller prior to and during the term of this Agreement. Customer further agrees not to use, copy, distribute and or otherwise attempt to modify, alter or change the code, appearance or capability of the Service. Customer’s right to access and use the Service are personal, non-exclusive and non-transferable. Customer further acknowledges and agrees that said Service and its applications, may from time to time in Sellers sole discretion, be updated, changed, revised, suspended or discontinued without any prior notice being provided to Customer. However, Customer will be notified after the fact and shall receive any resulting discounts or price offsets, if any.
Customer further acknowledges that its rights granted under this Agreement entitles it to access the Service through its “customer account portal”, as furnished by Seller, and that Customer will be provided with a user identification and password applicable to said account. Each customer account shall be protected from access by other customers and third parties not servicing your account. Your account may only be used by the designated Customer employees or contacts. As a result, Customer is responsible for all use of the Service by each of its users and for compliance by each user with the applicable terms of this Agreement. Customer will ensure the security and confidentiality of each account ID and will notify Seller immediately if any account ID is lost, stolen or otherwise compromised. Customer further acknowledges that it is fully responsible for all costs, fees, liabilities or damages incurred through use of each account ID (whether lawful or unlawful) and that the Service ordered or provided through any Customer account will be deemed to have been received by Customer. In no event will Seller be liable for the foregoing obligations and Customer will be solely responsible for acquiring, installing and maintaining all hardware, software and other equipment as may be necessary for each Customer user to connect to, access, and use said Service.
II SUBSCRIPTION FEES AND PAYMENT TERMS
Customer agrees to pay Seller a fixed monthly fee equaling the one time set up and on-going delivery of the selected Service and its current applications. Said monthly fee shall be set forth in Customer’s Order form, and all fees will be billed and paid on-line as indicated in each Order by way of credit card. The payment of fees specified under the Order form for each monthly period will be due and payable by Customer on or before the “Effective Date” of Service, and prior to first date of the next month of Service. Customer will use a specific credit card as the applicable payment mechanism under this Agreement, and Seller shall be granted the right to charge the credit card provided for all fees incurred under this Agreement. For any upgrade or downgrade in plan level, Customers credit card will automatically be charged the “new” monthly subscription price at the next monthly billing cycle. All fees will be non-refundable once paid to Seller (including upon any termination or suspension of this Agreement). Until paid in full, all past due amounts will bear an additional charge of the lesser of 3½% per month or the maximum amount permitted under applicable law.
Seller reserves the right to change its fees by posting the changes to its Site or otherwise notifying Customer electronically and such changes shall take effect at the beginning of the next period of this Agreement. All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes. If Seller is required to use collection agencies, attorneys, or courts of law for collection on any account, Customer agrees to be responsible for those expenses.
As a customer of Autoresponder Max, you are solely responsible for canceling your account. Any request sent to us through an email, support ticket, chat or phone call is not considered a cancellation. Autoresponder Max support does not have the ability to cancel your account for you. To cancel your account at anytime, login to the Autoresponder Max Dashboard, proceed to the “My Account” area and click “Cancel.”
If your payment has failed, and your account has been cancelled, you can update payment information in the Autoresponder Max Dashboard. Once you update your payment information, contact email@example.com to request reactivation. Your card will be billed immediately when the account is reactivated.
Autoresponder Max has the right to suspend or terminate the customer account and refuse service for any reason, at any time, in sole discretion. Any accounts terminated will result in deactivation and loss of access to the account.
IV MODIFICATIONS, UPDATES AND CHANGES TO SERVICE
Customer acknowledges and agrees that Seller reserves the right at all times to modify, update or change the software, code or any of the current Service applications without providing any advance notice to Customer. Seller shall work with Customer to ensure that the performance and reliability of said Service remains constant, and to make any price adjustments, if any, as a result.
V OWNERSHIP, CONFIDENTIALITY AND REPRESENTATIONS
Seller retains all right, title and interests, including, without limitation, whether interests are known or unknown or registered and unregistered in said Service, its applications, software, content, and any additions, improvements, updates, and modifications thereto. Customer acknowledges that it is merely purchasing a monthly subscription for the use and features of said Service, and therefore has no ownership or possessory interest in or to said Service or its applications, software, platforms, or any additions, improvements, updates or modifications, regardless if said changes were specifically requested and created for Customer. In addition, all tradenames, copyrights, trademarks, servicemarks, logos and other illustrations or names associated with the Service are proprietary to Seller and no right or license is granted to Customer for the use of them.
The Parties acknowledge that during the course of Seller implementing and providing said Service to Customer, the Parties may disclose to each other or may become aware of certain proprietary information regarded as confidential by the Parties. As such,
The Parties acknowledge that “Confidential Information” shall be defined as all information, whether oral, written or otherwise documented, software code, business documentation, records, practices and procedures, trade secrets, copyrights, trademarks, patents, and other registered and non-registered property which is owned by or pertains to either Parties products and services, operations, facility and/or the needs of their current or prospect clientele.
The Parties further acknowledge that “Representative” shall mean, with respect to either Party, their members, directors, officers, employees agents, contractors, advisors or anyone affiliated with such party.
The Parties agree that during the term of this Agreement and all times thereafter, all Confidential Information: (i) will remain confidential by Seller and its Representatives; (ii) shall not, except as hereinafter provided with Customers prior consent, be disclosed by Seller or its Representatives to any other person in any manner whatsoever; and (iii) shall not be used by Seller or its Representatives for any purpose other than the delivery and maintenance of the said Service. Seller further agrees to transmit Confidential Information only to those Representatives who need to know such information for the purpose of delivering, maintaining, updating or revising the above stated Service, and who agree to comply, in writing, with the use and nondisclosure provisions of this Agreement. Seller also agrees to be responsible for any breach of these provisions by its Representatives, and shall safeguard the disclosure of the Confidential Information by reasonable means, not less than those means used by Seller to protect its own Confidential Information. Seller shall further direct its Representatives not to disclose to any person (other than a person authorized hereunder by Customer) the fact that the Confidential Information has been made available to Seller or Representative, any of the terms herein, or any of the terms, conditions or facts with respect to the delivery of said Service. For purposes herein, “person” as used in this Agreement shall be broadly interpreted to include without limitation any corporation, limited liability company, partnership or individual.
Disclosure of Confidential Information shall not be precluded under this Agreement, if such disclosure is, in the reasonable opinion of counsel to Seller: (i) necessary to establish rights under this Agreement; or (ii) in response to a valid subpoena or order of a court or other governmental body or other valid legal process; provided, however, that with respect to any disclosure pursuant to clause (ii) of this sentence, Seller shall first give notice to Customer and use reasonable efforts to cooperate with Customer to take legally available steps to resist or narrow any applicable request, subpoena or order and obtain an appropriate protective order or other assurance that confidential treatment will be accorded such information. Notwithstanding any disclosure of Confidential Information pursuant to clause (i) and/or (ii) hereof, said Confidential Information shall remain Confidential Information for all other purposes.
Upon request from Customer, Seller shall immediately destroy all intangible property (including that maintained in any computer memory, storage media or similar form) and Confidential Information (whether prepared by Customer, Seller his Representatives, or otherwise) and will not retain any copies, extracts or other reproductions, in whole or in part, of such material. Any such destruction shall be certified in writing to Customer by an authorized officer of Seller supervising the same.
Seller further acknowledges that Customer makes no representations or warranties, expressed or implied, including any implied warranties of merchantability, fitness for a particular purpose or freedom from patent, trademark or copyright infringements, whether arising by law, custom or conduct as to the accuracy or completeness of the Confidential Information.
Parties further agree that all Service specifications, software codes and other technology or other materials, collectively the (“materials”), whether in hardcopy or electronically, which are provided, disclosed or furnished by Seller to Customer for the purpose of implementing and delivering said Service shall remain at all times remain proprietary to Seller, and as a result, Customer acknowledges it shall have no legal right or interest in said materials and may only possess such for the purposes of verifying and accepting said Service.
Seller represents to Customer that the implementation and delivery of said Service, its applications and all modifications, upgrades and modifications shall be performed in a “reasonable” professional manner in accordance with all known accepted trade and industry standards. Customer acknowledges and agrees that Sellers delivery and implementation of said Service will not be held to any other standard of care, and that
CUSTOMER ACKNOWLEDGES THAT THE E-COMMERCE SITE AND SAID SERVICE (including all applications, upgrades, modifications, changes and modifications to the Service, the site and applications) FURNISHED BY SELLER TO CUSTOMER PER THE TERMS OF THIS AGREEMENT ARE PROVIDED TO CUSTOMER “AS IS” AND “AS MADE AVAILABLE” BY SELLER. CUSTOMER FURTHER ACKNOWLEDGES THAT SELLER AND ITS REPRESENTATIVES EXPRESSLY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES AND ALL OTHER REPRESENTATIONS BEYOIND THOSE SET FORTH HEREIN, OF ANY KIND WITH REGARD TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE OR NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION, OR ADVICE GIVEN BY SELLER ITS EMPLOYEES, DISTRIBUTORS, DEALERS, OR AGENTS WILL INCREASE THE SCOPE OF OR CREATE ANY NEW WARRANTIES OR REPRESENTATIONS IN ADDITION TO, THE REPRESENTATIONS SET FORTH HEREIN.
VI TERMINATION AND SUSPENSION
Customer acknowledges that this Agreement may be terminated by Seller, at any time, in Sellers sole discretion: (1) upon providing notice to Customer from Seller’s Representatives following any breach by of this Agreement by Customer; or (2) at any time during any “Trial” subscription period, for any reason or no reason, upon notice to Customer. Without limiting Sellers right to terminate this Agreement, Seller may also immediately and indefinitely suspend Customers access to said Service, with or without notice to Customer upon any actual, threatened or suspected breach of this Agreement or of applicable law or upon any other conduct deemed inappropriate by Seller. Upon termination or expiration of this Agreement for any reason: (a) all rights and subscriptions granted to Customer under this Agreement will terminate; (b) Customer will immediately cease all access to the its e-commerce site for the use and delivery of the Service; (c) all Fees then owed by Customer will become immediately due and payable; (d) Customer will immediately either return to Seller or, at Sellers discretion, destroy any Service content, code, Confidential Information, and other information or documentation related to this Agreement in Customers possession or control; and (e) Seller may delete any of Customers content, information or documentation held by Seller within 10 days after the date of termination.
VII LIMITATION OF LIABILITY, INDEMNIFICATION AND LEGAL RECOURSE
CUSTOMER ACKNOWLEDGES AND AGREES THAT SELER WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING IN ANY WAY IN CONNECTION WITH THE USE OF CUSTOMERS E-COMMERCE SITE, THE SERVICE (or its applications, upgrades, modifications or changes) EVEN IF CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA, PROPRIETARY INFORMATION, MARKETING OPPORTUNITY, REVENUES OR PROFITS, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. SELLERS TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND ALL OTHER SERVICES UNDER THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, SHALL NOT EXCEED THE FEES PAID TO SELLER HEREUNDER FOR THE MONTH PRECEDING ANY SUCH INITIAL OCCURANCE OF LIABILITY (OR, IF NO SUCH FEES HAVE BEEN PAID, $100). CUSTOMER AGREES THAT THE TOTAL FEES PAID BY CUSTOMER REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND ACKNOWLEDGES THAT SELLER WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.
The Parties further agree to defend, indemnify and hold each other harmless from any and all liability, losses, suits, claims, proceedings, costs, expenses or damages, including court costs and reasonable attorney fees, alleged, claimed or incurred by any third party, including any of Customer’s existing or prospective employees, agents or contractors resulting from either Parties material breach of this Agreement, negligent or intentional acts or omissions, negligent miss-representation regarding the outcomes of said services, intellectual property right infringement, violations of any federal, state or municipal laws or any other cause associated with the delivery of the Service or this Agreement. In order to receive indemnification under this Section, the seeking Party must promptly notify the other of the assertion of any claim; allow that indemnifying Party to retain sole and exclusive control over the defense and/or settlement of the claim; and to cooperate with the other Party, at its expense, in the defense and/or settlement of the claim. This Section sets forth the sole indemnification obligations and indemnification remedies in association with the claims described above.
The Parties agree to submit any unresolved dispute, controversy or claim, pertaining to this Agreement or the delivery of the Service, to an agreeable alternate dispute resolution (ADR) forum within Fourteen (14) days of any claim submitted by either Party to other Party. If the Parties cannot agree on ADR or cannot resolve the dispute by consultation, mediation, facilitation or other alternate dispute resolution forum, the dispute shall be submitted to mandatory arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association within seven (7) days after either Party provides written notice to the other that such agreement for ADR cannot be made. This Agreement to arbitrate shall be valid and enforceable under the then prevailing statutory arbitration law and shall be irrevocable, save upon such grounds as exist at law or in equity for the rescission or revocation of any contract. In as much as time is of the essence, upon the request of either Party, the arbitrator shall handle the contested matter on an expedited basis.
If the Parties cannot agree upon an arbitrator within twenty (20) days of the date that either Party provides written notification to the other of its request for arbitration, then either Party can petition a court having jurisdiction to select an arbitrator who shall be a lawyer licensed in Michigan with a private practice in Oakland County who devotes a substantial portion of his or her practice to commercial litigation matters. The arbitrator shall have the authority under Michigan law to subpoena witnesses and to compel reasonable discovery proceedings consistent with expeditious and cost conscience resolution of the matter(s) in arbitration. The award rendered by the arbitrator shall be in accordance with the damage limitations set forth herein and final, and a judgment of any circuit court may be rendered and entered upon the award made in accordance with the statutory law and court rules then obtaining and any process or notice in connection with arbitration may be served by certified mail, return receipt requested, or by personal service, provided a reasonable time for appearance is allowed. The Parties further agree that failure to institute arbitration proceedings within one year after the Party claiming damages has actual or constructive occurrence of the claimed breach shall constitute an absolute bar to the institution of any proceedings and a waiver of all claims. The arbitrator’s award shall also apportion between the Parties the costs of arbitration, including the fees and expenses of the Parties’ attorneys.
VIII SELLERS RIGHT TO PUBLICITY
Parties agree that Seller shall retain the right to document and publish, for marketing and advertising purposes only, all phases of Customer’s Service applications, its documented successes and customer services as a result, and all other aspects of Customers services, with the exception of all known proprietary or confidential information or content.
IX NOTICE REQUIREMENTS
The Parties acknowledge that either Party shall provide and receive adequate written notice, as required herein or within the Order form or Customer registration, by way of regular ordinary mail, e-mail, or return requested certified mail. All verbal notice must be substantiated by way of written notice as stated. Written notice shall be delivered to each Party’s last known address provided by each Party. Each Party shall be responsible for updating and communicating any changes in their address.
Wherever possible, each provision of this instrument shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this instrument shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this instrument, unless the removal or alteration of the invalid or unenforceable provisions will substantially defeat the basic intent, purpose and spirit of this instrument.
XI GOVERNING LAW AND ENTIRE AGREEMENT
This Agreement, the scope of work and all amendments therein shall be governed and enforced in accordance with the laws of the State of Michigan. This Agreement contains the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous written or oral negotiations and agreements between the Parties regarding the subject matter hereof, and no other representations, warranties or agreement whatsoever have been made which are not contained herein. Any and all agreements previously entered into between the Parties regarding the subject matter hereof are hereby terminated, an each of the Parties, except as otherwise provided herein, releases and discharges the other from any and all obligations and liabilities heretofore are non-existing under by reason of any such previous agreement(s). This Agreement may be amended only by a writing signed by duly authorized representatives of both Parties.
XII CAPACITY AND AUTHORIZATION
The Parties acknowledge and stipulate that the following representatives signing this Agreement on behalf of their respective organizations have the requisite legal authority and capacity, as designated by the laws of the State of Michigan, to execute this Agreement by way Sellers registration process and do so upon their own will and fruition.
THE PARTIES HEREBY AGREE TO THE ABOVE STATED TERMS AND CONDITIONS, AS IS, BY WAY OF CUSTOMERS REGISTRATION AND SELLERS CONFIRMATION OF THE ORDER FORM FOR SAID SERVICE, AS SET FORTH BY SELLER.