x-cart solutions x-cart skin module add-ons designers programmers xcart services hosting

This Service Agreement ("Software Service Agreement") is a legal agreement between Customer (either an individual or a single entity) (referred to herein as "Client or Licensee") and X-Cart Solutions, Inc. (“Company or Licensor”). By using the X-Cart Solutions Service, Client agrees to be bound by the terms of this Agreement. If Client does not agree to the terms of this Agreement, do not purchase the X-Cart Solutions Service.

This Agreement constitutes the entire and only agreement between Client 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 Licensee. The latest Agreement will be posted on the Site, and Licensee should review this Agreement prior to using the Site.

LICENSE AGREEMENT

BY DOWNLOADING, INSTALLING AND/OR USING THIS SOFTWARE LICENSEE AGREES TO THE FOLLOWING LICENSE:

LICENSOR'S PROGRAM IS COPYRIGHTED AND LICENSED (NOT SOLD). LICENSOR DOES NOT SELL OR TRANSFER TITLE TO THE LICENSED PROGRAM TO LICENSEE.

LICENSE GRANT

Licensor hereby grants to Licensee, and Licensee accepts, a nonexclusive license to use the downloaded X-Cart Solutions 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 Licensee, or if Licensee is a company or corporation, any one website owned by Licensee company or corporation. Licensee agrees that Licensee will not assign, sublicense, transfer, pledge, lease, rent, or share Licensee’s rights under this License Agreement. Licensee agrees that Licensee may not reverse assemble, reverse compile, or otherwise translate the Software.

Upon loading the Software into Licensee’s computer, Licensee may make a copy of the Software for backup purposes. Any such copies of the Software or the Owners Manual shall include Licensor’s copyright and other proprietary notices. Except as authorized under this paragraph, no copies of the Program or any portions thereof may be made by Licensee or any person under Licensee’s authority or control.

LIMITED WARRANTY

Licensor warrants, for Licensee benefit alone, that the Licensed Program conforms in all material respects to the specifications for the current version of the Licensed Program. This warranty is expressly conditioned on Licensee’s observance of the operating, security, and data-control procedures set forth in the Owners Manual.

EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, LICENSEE 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.

LIMITATION OF LIABILITY

Licensee’s cumulative liability to Licensee or any other party for any loss or damages resulting from any claims, demands, or actions arising out of or relating to this Agreement shall not exceed the license fee paid to Licensee for the use of the Program. In no event shall Licensee be liable for any indirect, incidental, consequential, special, or exemplary damages or lost profits, even if Licensee has been advised of the possibility of such damages.

PROPRIETARY PROTECTION

Licensor 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 Licensee herein by Licensor. This Agreement does not provide Licensee with title or ownership of the Licensed Program, but only a right of limited use. Licensee must keep the Licensed Program free and clear of all claims, liens, and encumbrances.

RESTRICTIONS

Licensee may not use, copy, modify, or distribute the Licensed Program (electronically or otherwise), or any copy, adaptation, transcription, or merged portion thereof, except as expressly authorized by Licensor. Licensee may not reverse assemble, reverse compile, or otherwise translate the Licensed Program. Licensee 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 Licensee’s entire business who assumes the obligations of this Agreement or (2) any other party who is reasonably acceptable to Licensor, enters into a substitute version of this Agreement, and pays an 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 Licensor. If Licensee uses, copies, or modifies the Licensed Program or if Licensee transfers possession of any copy, adaptation, transcription, or merged portion of the Licensed Program to any other party in any way not expressly authorized by Licensor, Licensee license is automatically terminated.

LICENSOR'S RIGHT OF ENTRY

Licensee hereby authorizes Licensor to access Licensee’s web server in order to inspect the Licensed Program in any reasonable manner during regular business hours to verify Licensee’s compliance with the terms hereof.

INJUNCTIVE RELIEF

Licensee acknowledges that, in the event of Licensee breach of any of the foregoing provisions, Licensor will not have an adequate remedy in money or damages. Licensor shall therefore be entitled to obtain an injunction against such breach from any court of competent jurisdiction immediately upon request. Licensor's right to obtain injunctive relief shall not limit its right to seek further remedies.

SERVICE AGREEMENT

Copyright laws and international copyright treaties, as well as other intellectual property laws and treaties protect this Software Service Agreement. X-Cart Solutions is a service and is not sold on a licensed basis. This Agreement does not transfer any right, title or interest in the X-Cart Solutions Software to Client except as specifically set forth herein.

COPYRIGHT

All title and copyrights in and to the X-Cart Solutions (including but not limited to any scripts, images, photographs, and copy into the X-Cart Solutions Software), the accompanying printed materials, are owned by Company, and copyright laws and international treaty provisions protect X-Cart Solutions. Therefore, Client must treat the X-Cart Solutions like any other copyrighted material.

CUSTOMER SUPPORT

Company may provide Client with customer support related to the X-Cart Solutions Software Service Agreement. Use of Customer Support is governed by the policies and programs described in the handbook or under the “help” area of the X-Cart Solutions website. With respect to technical information Client 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 Client.

SOFTWARE SERVICE - RESTRICTED RIGHTS

The X-Cart Solutions 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.

MONTHLY SERVICE FEES

Company will set up an automated billing cycle that will charge Client monthly fees starting 60 days from original purchase date. This is called the Billing Due Date. Client will prepay monthly service in accordance with this Software Service Agreement for Software Services to remain live and its hosting account valid.

LATE PAYMENTS

To avoid uninterrupted Service, Client must make timely monthly payments. If, for any reason, Company does not receive pre-payment from Client for its monthly Service, Company will have the right to terminate this Agreement and/or suspend Client access to any or all of Company’s Services and/or performance of the services provided by Company hereunder. Furthermore, Company reserves the right to erase all Client data within the hosting environment.

If payment is not received, Company will immediately notify Client regarding non-payment. Resolution and payment, including a three percent (3%) late fee must be collected and verified within five days of notification to avoid an interruption in Service. 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.

ADDITIONAL FEES

Additional fees may apply if installation is requested and not previously purchased on a module. Also, on any support unrelated to software and/or service issues performed by X-Cart Solutions. In which case the cost of installation for the perticular product will be applicable or any additional fees for support time involved.

TERMS OF USE

This Agreement exists and holds for the duration that X-Cart Solutions Software is installed and in use by the client.

TERMINATION DUE TO BREACH

Company may terminate this Software Service Agreement if Client 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.

30-DAY MONEY BACK GUARANTEE

Unqualified Guarantee Company will fully refund Client for the purchase of the Software Service, for any reason, within the first 30-days of this Software Service Agreement. For Client to receive their refund, a request must be sent to X-Cart Solutions using the Contact Us form prior to midnight MST on the 30th day from time of purchase. Provide Company name, contact and date of purchase in the email correspondence. Refunds are processed one-time per week and payment will be returned within 60 days of request. All fees charged for installation and/or support is NOT elligable for refund.

INDEMNIFICATION

Client 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 Client 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.

LIMITATION REMEDY

Company, its Affiliates, and Service Providers entire liability and Client’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. Client will receive the remedy elected by Company without charge, except that Client is responsible for any service expenses Client may incur in returning monies.

TRADEMARKS

Company may use Client’s trademarks, service marks, trade names, logos, or other commercial or product designations (collectively, “Marks”) for promotional purposes only with prior written consent of the other Party. Client may use Company’s trademarks, service marks, trade names, logos, or other commercial or product designations (collectively, “Marks”) for promotional purposes only with prior written consent of the other Party. Notwithstanding the foregoing, Client grants to Company a non-exclusive, nontransferable, royalty-free, worldwide license to use Client’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 Client and the Client/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 CLIENT’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 CLIENT 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 CLIENT’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 CLIENT FOR THE SERVICE OR U.S. $5.00. 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.

ASSIGNMENT

The 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.