CRYSTAL COMMERCE INTRA-NETWORK TERMS OF SERVICE



Last Updated: March 13, 2017

THESE TERMS OF SERVICE (THIS “AGREEMENT”) IS AN AGREEMENT BETWEEN YOU (hereinafter referred to as the “MEMBER”) AND CRYSTAL COMMERCE, INC. a Washington corporation (“CRYSTAL COMMERCE”) AND SETS FORTH THE TERMS AND CONDITIONS UNDER WHICH CRYSTAL COMMERCE AGREES TO GRANT MEMBER THE RIGHT TO ACCESS AND USE CERTAIN CRYSTAL COMMERCE PRODUCTS AND SERVICES, INCLUDING WITHOUT LIMITATION, ACCESS TO CRYSTAL COMMERCE’S GLOBAL NETWORK OF BUYERS AND SELLERS.

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR PLACING AN ORDER (AS DEFINED IN SECTION 1 BELOW) THAT REFERENCES THIS AGREEMENT, YOU AGREE TO BE BOUND TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT TO US THAT YOU HAVE THE LEGAL AUTHORITY TO BIND SUCH LEGAL ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE REFERENCES TO “MEMBER,” “YOU” AND “YOUR” IN THIS AGREEMENT SHALL MEAN SUCH ENTITY.

  1. CONSTRUCTION

    Capitalized terms (whether in the singular or plural) shall have the meanings assigned in the text of this Agreement, and Member’s Order. For the purpose of this Agreement, an “Order” means an order for one or more Crystal Commerce services placed by Member and accepted by Crystal Commerce, or placed by Member with a third party through the Crystal Commerce Intra-network. The Order may be a physical purchase order or may be a checkout process that you click through electronically, including by signing up for specific services on the Crystal Commerce network of websites or engaging in a transaction with a third party through the Crystal Commerce Intra-network (a “Transaction”). Crystal Commerce and its Members offer both free and paid products and services. If your Order indicates that your selected product or service will be provided at no charge, the payment obligations set forth in Section 3.1 will not apply until such time as Member upgrades to a paid product or service or places an order for paid products or services from Crystal Commerce or from a third party through the Crystal Commerce Intra-network.

  2. THE SERVICE
      2.1 Access.

      Commencing on the earlier of the Start Date (as specified in the applicable Order) or Member’s first Transaction on the Crystal Commerce Internetwork, Crystal Commerce shall make available to Member the Crystal Commerce services identified in the Order for use by the number of Authorized Team Members (as defined below) specified in the Order, subject to the terms of this Agreement and any scope limitations set forth in the Order (the “Service” or “Services”). The Services include access to Crystal Commerce’s network of Personas (as defined below) that have contracted with Crystal Commerce to provide products and services for sale or resale to one another (the “Crystal Commerce Intra-network”) as well as data feeds that facilitate that access and exchange of information. For the purpose of this Agreement, “Persona” or “Personas” means any users of the Crystal Commerce Intra-network, including without limitation, retailers, event coordinators, distributors, manufacturers, affiliate marketers, marketplaces, and personal buyers/sellers.

      2.2 Rights to the Service.

      Subject to the terms and conditions of this Agreement, Crystal Commerce hereby grants Member a non-exclusive, non-transferable, worldwide right during the Term to access the Service and permit the number of individual users specified in the Order to use the Service solely for Member’s own internal business purposes (“Authorized Team Members”). Service provided to Member is subject to any scope limitations set forth in the applicable Order.

      2.3 Business Account Provisioning.

      Crystal Commerce will, if applicable, issue to one Authorized Team Member (“Crystal Commerce Administrator”) an individual login identifier and password ("Administrator's Login") for purposes of administering the Services. On a case by case basis, Crystal Commerce may offer access to administrative functions through an API token or other agreed upon mechanism. Using Administrator's Login, the Crystal Commerce Administrator shall assign each remaining Authorized Team Member a unique Login identifier and password and assign and manage the business rules that control each such Authorized Team Member’s access to the Services. Member acknowledges and agrees that its Crystal Commerce Administrator and any Authorized Team Member account with sufficient privileges granted by Member to transact business through the Service shall be Member’s agent with the full authority to act on behalf of and is authorized to bind Member in connection with any service provided to Member under this Agreement or Transaction or subscription entered into by such Authorized Team Member. Crystal Commerce shall have no liability to any Member for any action taken by any Authorized Team Member on behalf of that Member.

      2.4 Personal Account Provisioning.

      If accessing Crystal Commerce products and services as an individual, Crystal Commerce will, if applicable, issue Member a personal login identifier and password (“Personal Login”) for purposes of accessing the Crystal Commerce Intra-network.

      2.5 Updates.

      At no charge to Member, Crystal Commerce shall install on its servers any software updates deemed reasonably necessary to address errors, bugs or other performance issues in the Service purchased by Member (an “Update” or collectively, “Updates”). Updates (if any) shall be subject to the same terms and conditions of this Agreement. Crystal Commerce may offer improvements or enhancements to the Service from time to time, and if Crystal Commerce elects to provide Member with such improvements or enhancements, either for free or at an additional charge, such improvements and enhancements will be subject to the same terms and conditions of this Agreement. By utilizing the Services, you agree to accept any such Updates provided by Crystal Commerce. Any failure to accept any Update or Updates may result in the inability to utilize the Services.

      2.6 Restrictions and Conditions.

      Member shall not, directly, indirectly or through its Authorized Team Members, employees and/or the services of independent contractors: (a) attempt to sell, transfer, assign, rent, lend, lease, sublicense or otherwise provide third parties rights to the Service or access to data provided through the Service; (b) publicly publish, copy, duplicate or replicate the Service or any data provided through the Service, except for the sole purpose of promoting and selling Member’s products through the Service; (c) scrape any data, Content or intellectual property, or otherwise trespass or interfere with Crystal Commerce's Service or systems; (d) "frame," "mirror,” copy or otherwise enable third parties to use the Service (or any component thereof) as a service bureau or other outsourced service; (e) allow access to the Service by multiple individuals impersonating a single end user; (f) use the Service in a manner that interferes with, degrades, or disrupts the integrity or performance of any Crystal Commerce technologies, services, systems or other offerings, including data transmission, storage and backup; (g) use the Service for the purpose of developing a product or service that competes with the Crystal Commerce online products and services; (h) circumvent or disable any security features or functionality associated with Service, or delete any information from the Service, including without limitation Content provided by Member, with the purpose or effect of preventing or interfering with Crystal Commerce’s continued access to such information or Content; or (i) use the Service in any manner prohibited by law. Notwithstanding the foregoing, your account may permit publication of certain data to third parties through the use of publications features made available by Crystal Commerce (e.g. embeddable widgets, iFrames), and Member may use such features, as provided by Crystal Commerce, to publish information to third parties.

      2.7 Delivery of Service and Materials.

      The Service, and any updates or maintenance releases thereof, shall be made available only on a hosted basis, and will not be delivered in object code or physical media to Member.

      2.8 API Access.

      If Member’s subscription, as specified in the applicable Order, expressly includes API access, Crystal Commerce shall provide Member with access to the API services specified in the Order. Data, content, and information made available through the API (“API Data”) is licensed only for Member’s own business purposes in connection with a Crystal Commerce software application (“API Client”) developed by Member in accordance with the terms and conditions of this Agreement and Crystal Commerce’s applicable API documentation and specifications. Crystal Commerce may monitor Member’s use of the Crystal Commerce API to ensure quality, improve Crystal Commerce’s products and services, and verify Member’s compliance with the terms of this Agreement. Member also agrees to provide Crystal Commerce with access to its systems, code base, records and other information and materials to the extent necessary or desirable for Crystal Commerce to verify Member’s compliance with the terms of this Agreement. Member’s use of the Crystal Commerce API is subject to the following restrictions: (a) unless otherwise authorized by Crystal Commerce in writing, all calls to the Crystal Commerce API must reference the API Key (“API Key”) issued to Member; (b) Member agrees to keep its API Key confidential and not to share it with any third party; (c); Member may not otherwise reproduce, modify, distribute, decompile, disassemble or reverse engineer any portion of the API or content, except with prior written consent from Crystal Commerce.

      2.9 Crystals.

      At Crystal Commerce’s discretion, Crystal Commerce may license to certain virtual rewards (“Crystals”). The basis for the provision of Crystals, and the opportunity to redeem the Crystals, may be set forth more specifically within the Crystal Commerce Intra-network. Any Crystals “granted” or provided to Member are in fact licensed to Member personally, and cannot be transferred to any third party (including without limitation other Personas or affiliates of Member). The Crystals have no cash value, and cannot be exchanged for cash or products, but may be used to acquire the provision of certain services by, or benefits from, Crystal Commerce, at Crystal Commerce’s sole discretion. Upon termination or expiration of this Agreement, the license to the Crystals shall immediately terminate. While the Crystals have no cash value, in granting Crystals, Crystal Commerce makes no representation or warranty regarding the tax implication of any Member or Members utilizing Crystals. Member acknowledges responsibility for any tax consequence resulting from the use of Crystals. For additional information please see www.irs.gov.

      2.10 Revenue Generating Services

      The Services may include Crystal Commerce’s performance or facilitation of potential revenue-generating services for Member if and as specified in the service description in an applicable Order. Some Members may earn member affiliate fees from other Personas for the referral of business to such Personas, as set forth in the Crystal Commerce’s published fee schedule, as updated from time to time by Crystal Commerce (the “Value Schedule”). Revenue share fees and referral revenue fees shall be paid as specified on the Value Schedule. In the event that Crystal Commerce believes, in its sole discretion, that Member has not accurately reported its Transactions, or in the event that Crystal Commerce believes it is not receiving accurate reports of Transactions, at Crystal Commerce’s request, Member will deliver to Crystal Commerce true, complete and accurate statement(s) setting forth Member's Net Revenue collected during the prior month (the “Revenue Report”). Crystal Commerce also shall have the right, at its expense, to review and audit the books and records of Member upon thirty (30) days’ notice, such books and records to be made available by Member to Crystal Commerce at Crystal Commerce’s corporate office. For the purpose of this Agreement “Net Revenue” means all amounts received by or on behalf of Member in connection with the Services and the Transactions herein contemplated, including but not limited to the warranties, products, commissions, and Services, excluding amounts received for sales taxes and shipping.

      2.11 Service Limitations

      Member agrees and acknowledges that any software or applications that are provided as a part of the Crystal Commerce Services may include errors or bugs that may result in erroneous information, including but not limited to, computations and calculations, for the Member. Member agrees that Crystal Commerce is not responsible or liable for any errors, bugs, malfunctions, or incomplete or erroneous information that may result from Member’s use of Crystal Commerce Services or from any related software or applications that are provided by Crystal Commerce or a third party. Member agrees and acknowledges that any tax computation(s) that Member generates or requests from Crystal Commerce Services may not be reliable and Member should therefore always use a third party professional to calculate any and all taxes. Members expressly agrees that Crystal Commerce is not responsible or liable in any way to the Member for the accuracy of any tax computation or calculation of any kind that the Member performs using Crystal Commerce Services, any related software or applications. Crystal Commerce is not responsible for making any sales or creating introductions or Transaction opportunities for Member. Crystal Commerce does not warranty or guaranty that Crystal Commerce’s Services will result in increased revenue, profitability, sales, or traffic for customer. Crystal Commerce is not liable for Transactions or the outcome of Transactions between Member and any third party or between Personas. Crystal Commerce is not liable for credit (or store credit) granted by Member to any third party, member, or Persona, or granted by such third party, member, or Persona to Member.

  3. MEMBER OBLIGATIONS.
      3.1 Fees and Payment Terms.

      In consideration of the rights granted herein, Member shall pay Crystal Commerce the amounts specified in each applicable intra-network Order (“Fees”). The Services may include Crystal Commerce’s performance of potential revenue-generating services for Member if and as specified in the service description of an applicable Order. Fees based on a revenue share or referral fees will be paid as specified in the applicable Order or Crystal Commerce’s Recurring & Transaction Fee Schedule, as published by Crystal Commerce from time to time.

        (a) Fees are exclusive of any applicable sales, use, import or export taxes, duties, fees, value-added taxes, tariffs or other amounts attributable to Member’s execution of this Agreement or use of the Service (collectively, “Sales Taxes”). Member shall be solely responsible for the payment of any Sales Taxes. In the event Crystal Commerce is required to pay Sales Taxes on Member’s behalf, Member shall promptly reimburse Crystal Commerce for all amounts paid.

        (b) Unless otherwise specified in the applicable Order, all amounts shall be paid to Crystal Commerce immediately upon the execution of the Order, or the receipt of Net Revenue by Member, if applicable. Fees not paid when due shall be subject to a late fee equal to one and one half percent (1.5%) of the unpaid balance per month or the highest monthly rate permitted by applicable law. Crystal Commerce further reserves (among other rights and remedies) the right to suspend access to the Service for late or delinquent payment of fees. Amounts payable to Crystal Commerce shall continue to accrue during any period of suspension and must be paid as a condition precedent to reactivation, which reactivation is at the sole discretion of Crystal Commerce. Member authorizes Crystal Commerce to charge the credit card or account that Member has on file with Crystal Commerce any fees or outstanding balances that Member owes to Crystal Commerce. Member shall immediately update its credit card, account, or payment information if such information changes in any manner, or if payment is declined or unable to be processed. In the event that there are three (3) failed billings to the credit card provided by Member, access Member’s account will automatically be suspended until such time as the credit card information is updated with valid payment information and Crystal Commerce re-enables access to the account. Crystal Commerce may require Member to maintain a minimum account balance with Crystal Commerce to draw against for products and services purchased.

        (c) Except as otherwise specified in this Agreement, payment obligations are non-cancelable, fees paid are non-refundable.

      3.2 Transaction Notifications.

      Crystal Commerce and its Intra-network systems are automated to derive a notification from Member each time that a Transaction between Member and any third party (including without limitation member Personas) occurs within the Crystal Commerce Intra-network, on a Crystal Commerce supported retailer, distributor, or manufacturer website, affiliate marketplace website, or through the Crystal Commerce POS system. Member agrees not to interfere with, intermeddle with, alter, modify, attempt to alter or modify, or otherwise take any action that detrimentally affects any software or systems that Crystal Commerce uses to derive notifications of such Transactions or accurate reports for Member. In addition, Member has an affirmative obligation to keep accurate records of, and notify Crystal Commerce of, all Transactions and Net Revenue, and shall deliver such reports on the schedule set forth in Section 3.1(c), unless otherwise agreed by Crystal Commerce and Member. Member grants Crystal Commerce authorization to: (i) access all of Member's systems necessary for the provision and delivery of the products and Services; (ii) update and automate all products and Services; and (iii) deliver such products and Services through such updates and order automation. Member acknowledges and agrees that Crystal Commerce may send email product/service related alerts to Member and its member customers for service(s) related messages, orders, Transactions and personal account updates (e.g., system issues and updates) regardless of Member’s opt in/out status on Crystal Commerce’s weekly newsletter.

      3.3 Compliance with Laws and Acceptable Use Policy.

      The Crystal Commerce Service is of U.S. origin. Member shall adhere to all applicable state, federal, local and international laws and treaties in all jurisdictions in which Member uses the Service, including all end-user, end-use and destination restrictions issued by U.S. and other governments and the U.S. Export Administration Act and its associated regulations. Member will not upload any data or information to the Service (including, without limitation catalog data) for which Member does not have full and unrestricted rights. Member agrees to adhere to Crystal Commerce’s Acceptable Use Policy, available for review at http://www.Crystal Commerce.com/AUP, as updated by Crystal Commerce from time to time (the “AUP”). Crystal Commerce may, in its sole discretion, remove any content which it believes may be in violation of the AUP. Crystal Commerce reserves the right to deny, suspend, terminate or revoke access to the Crystal Commerce Services, in whole or in part, if Crystal Commerce believes Member and/or its Authorized Team Members are in breach of this Agreement or are otherwise using or accessing the Crystal Commerce Services inconsistent with the terms and conditions of this Agreement or the AUP.

      3.4 Reporting, Records, and Audit.

      Member shall allow Crystal Commerce, at Crystal Commerce’s expense, to audit all applicable records, computers and equipment pertaining to Member’s compliance with the terms of this Agreement, upon reasonable notice, and not more than once per year, unless there is documented evidence of a discrepancy within such annual audit period and in such event, Crystal Commerce may elect to conduct an additional audit to address such discrepancy. In the event of any discrepancy uncovered through Crystal Commerce’s audit, Crystal Commerce’s audit results will control with respect to each parties obligations under this Agreement, and the parties will undergo a reconciliation to account for the discrepancy.

      3.5 Feedback and Use of Data.

      Member has no obligation to give Crystal Commerce any suggestions, comments or other feedback (“Feedback”) relating to the Service(s) or other current or potential Crystal Commerce products or services. However, Crystal Commerce may use and include any Feedback that Member provides, and any system usage data collected by CyrstalCommerce, to improve the Service or other Crystal Commerce products, services, software and technologies. Accordingly, if Member provides Feedback, Member grants Crystal Commerce and its affiliates and subsidiaries a worldwide, non-exclusive, irrevocable, royalty-free, perpetual license to, directly or indirectly, use, reproduce, license, sublicense, distribute, make, have made, sell and otherwise commercialize the Feedback in the Service or other products, services, software and technologies. Member further agrees not to provide any Feedback that (a) Member knows is subject to any patent, copyright or other intellectual property claim or right of any third party or (b) is subject to license terms which seek to require any products incorporating or derived from such Feedback, or other Crystal Commerce intellectual property, to be licensed to or otherwise shared with any third party.

      3.6 Public Announcements.

      Member grants Crystal Commerce the right to use Member's name, logo and branding in press releases, product brochures, co-marketing efforts, public relations, and financial reports indicating that Member is a customer of Crystal Commerce. Member grants Crystal Commerce a royalty-free, irrevocable license to use, publish, copy, and exhibit Member’s trademarks, service marks, and logos in furtherance of the Services and promotion of the Crystal Commerce Intra-network. If Member terminates its relationship with Crystal Commerce for any reason, the license granted under this Section 3.6 shall survive such termination. Provided, however, that Member may contact Crystal Commerce and request to have its name, logo and branding removed from any future press releases, product brochures, co-marketing efforts, public relations, and financial reports. In the event such request is received, Crystal Commerce shall not use Member’s name, logo, or branding on any future marketing efforts related to the Intra-network.

      3.7 Non-Solicitation.

      During the Term and for twelve (12) months after completion of the Term, Member will not solicit, directly or indirectly, any member Persona of the Crystal Commerce Intra-network to cease doing business with Crystal Commerce.

      3.8 Non-Disparagement.

      Member shall not disparage, defame, slander, or otherwise make any negative comment, statement, or innuendo to any third party about Crystal Commerce or any other Personas on the Crystal Commerce Intra-network, its products, Services, or personnel, including, without limitation, via the curated Intra-network Rating System (as described below), unless required by court order or law enforcement.

  4. INTERACTIONS ON THE CRYSTAL COMMERCE INTRA-NETWORK.
      4.1 Rating System, Fraud Detection, Network Data.

      Crystal Commerce allows Personas within the Crystal Commerce Intra-network to rate other Personas within the Crystal Commerce Intra-network based on their experience with those Personas. Personas may filter other Personas based on this rating system, meaning that if a certain Persona receives unfavorable ratings, that Persona’s business and Transaction quantity may significantly decrease. Member acknowledges and agrees that its rating or other comments about Member may be published by Crystal Commerce on the Service, and that all information provided by Member to Crystal Commerce may be used or disclosed by Crystal Commerce at Crystal Commerce’s sole discretion for any purpose. No Persona of one class may rate a Persona of the same class (e.g., retailer rating another retailer; distributor rating another distributor) unless and until those Personas complete a Transaction between one another. Crystal Commerce is NOT responsible for any user ratings, the content thereof, or the result of one or more ratings on any Persona’s business, sales or other outcomes. Crystal Commerce reserves the right to remove any user rating at any time, in its sole discretion. If Member violates the AUP, or conducts itself in a way that Crystal Commerce determines it its sole discretion reflects poorly on the Service, Crystal Commerce may suspend or terminate Member’s ability to rate other Personas, and suspend or terminate this Agreement. If Member posts a user rating, Member is solely responsible for the truth of the rating. By rating any Persona or creating any comment related thereto, Member represents and warrants that the comment and rating is true and correct. Member agrees to indemnify, defend and hold harmless Crystal Commerce from and against any liabilities (including without limitation judgments, losses, costs, claims, damages, reasonable attorneys’ fees, and costs) arising from or relating to any user ratings or comments made by Member or its representatives or Authorized Team Members. Member acknowledges that Crystal Commerce may monitor Member’s successful or unsuccessful use of the Service and use such data for the purpose of calculating fraud risk, and may share such data and the results of such calculations with other Personas on the Service in connection with Crystal Commerce’s fraud prevention activities, and for any other purpose.

      4.2 Responsibility for Transactions.

      Personas may elect to enter into Transactions with one another within the Crystal Commerce Intra-network. Any Transactions entered into between Personas within the Crystal Commerce Intra-network (or outside thereof) are the sole responsibility and liability of the Personas entering into that Transaction. Crystal Commerce is not liable for any such Transaction, the failure of such Transaction, any negligent or wrongful act related to the Transaction, or any result thereof. All shipping and handling charges that result from Transactions are the sole responsibility of the Personas that are party to the Transaction. Crystal Commerce does not assume, and shall not have any “Risk of Loss” or other obligations as it relates to the Transactions. Member agrees that all transactions it enters into with third parties in connection with the Service will be managed exclusively through Crystal Commerce and Member will not circumvent the Crystal Commerce Intra-network and conduct such transactions outside of the Service.

      4.3 Buy-Sell Listings.

      Certain Personas on the Service may be given the opportunity to make binding offers to buy or sell one or more products at a specific price or range of prices. Member acknowledges and agrees that if it utilizes the “Buy List” or “Sell List” feature on the Service, that the purchase or sale the applicable product is binding once the Member and Persona agree to a specified price. Member further represents and warrants that it has the authority to sell and/or purchase the items it transacts via the “Buy List” or “Sell List” features. In the event that a Member’s buy/sell offer is accepted through the Service, the Transaction will automatically be executed through the Service from one or many applicable member Personas, and Member must complete the agreed upon Transaction. Crystal Commerce may, at its option, automatically match up compatible buy and sell offers for a particular product and execute such Transactions between the applicable Personas. By utilizing the Buy List or Sell List feature of the Service, Member represents and warrants that the contents of its buy list and sell list will be accurate and that Member will honor the offers represented by such buy list and/or sell list.

  5. PROPRIETARY RIGHTS.
      5.1 Reservation of Rights.

      All rights not expressly granted to Member are reserved by Crystal Commerce, its suppliers and licensors.

      5.2 Ownership of Content and Data.

      Member will retain all right, title and interest to the Content (as defined below) created by Member using the Services, subject to any rights of Crystal Commerce and its affiliates to elements provided by Crystal Commerce and any associated Derivative Work or underlying documents, graphics, images, data or information related to Crystal Commerce products or services.

      5.3 Limited License to Crystal Commerce.

      By submitting any content (including without limitation, any photograph, words, pictures, data or symbols) or information to us in connection with your registration for and use of the Services (collectively referred to herein as “Content”), Member grants Crystal Commerce a perpetual, irrevocable, worldwide, non-exclusive, royalty-free license, sublicensable through multiple tiers, in all media now known or hereinafter created and for any purpose, license to use, copy, modify, create derivative works, publicly perform and distribute such Content in connection with our products and services, including for the purposes of providing our products and services to you. For the sake of clarity, Content may include, for instance, coupons, prices, offers, buy lists, wish lists, promo-codes, promotions, advertisements, buy and sell prices, content articles products, catalog data and Transaction history. You represent and warrant that you have sufficient rights to grant Crystal Commerce the foregoing license. The foregoing license includes any personality or publicity rights encompassed in such Content, and you acknowledge Crystal Commerce may use any such content to promote the Services. You must obtain consent and a release from any person (or the legal guardians of any persons) depicted in your content before you submit it to Crystal Commerce, with full knowledge from these persons that Crystal Commerce may use and publish the Content in which they are depicted in any manner whatsoever. For the sake of clarity Crystal Commerce may provide access to Content to its affiliates and other third parties. You hereby authorize Crystal Commerce to represent the Content, including without limitation, any pricing, content, inventory or catalog information to third parties including through publication on the Crystal Commerce Intra-network. Any such Content may be distributed by Crystal Commerce through the Crystal Commerce Intra-network.

      5.4 Responsibility for Content.

      You are solely responsible for any Content that you submit, post or transmit via our Services or otherwise through your activities on the Crystal Commerce Intra-network. You may not post or submit any Content that: (i) infringes the copyright, trademark, or other intellectual property rights of any person; (ii) is defamatory; (iii) contains nudity or sexually explicit Content, or is otherwise obscene; (iv) may disparage any ethnic, racial, sexual, religious, or other group by stereotypical depiction or otherwise; (v) depicts or advocates the use of illicit drugs; (vi) makes use of offensive language or images; (vii) characterizes violence as acceptable, glamorous or desirable; (viii) provides a link to any other websites; or (ix) provides a phone number, email or other personal contact information. Crystal Commerce has no obligation to process or post any specific Content from you or anyone else. Crystal Commerce may, in our sole and unfettered discretion, edit, remove or delete any Content that you post or submit, including without limitation, if such Content is judged by Crystal Commerce to violate the foregoing restrictions or otherwise determined by Crystal Commerce to be inappropriate for the Services or the CyrstalCommerce Intra-network.

      5.5 Required Notices and Terms.

      If you use the Services to host or power a public-facing web page, web site, eCommerce store or to host Content or sell products or services, you must include certain Crystal Commerce mandated terms and conditions (the “Minimum User-Facing Terms and Conditions”). Your Minimum User-Facing Terms must include the following: (i) terms of service and privacy policy at least as protective of Crystal Commerce as the terms set forth in this Agreement and the Crystal Commerce privacy policy, (ii) notice to your visitors that data that they submit to you may be shared with Crystal Commerce, and that Crystal Commerce may contact them in connection with their use of the Service, and (iii) that your visitor’s use of features powered by Crystal Commerce are subject to the visitor’s compliance with the Crystal Commerce Terms of Service and provide the visitor with a link to these terms. Member agrees that it will not do anything directly or indirectly to interfere with Crystal Commerce’s relationship with the visitor as a member Persona on Crystal Commerce’s Services.

      5.6 Derivative Works of Crystal Commerce Intellectual Property.

      To the extent that you create any Derivative Work (any work that is based upon one or more preexisting versions of a work provided to you, such as an enhancement or modification, revision, translation, abridgement, condensation, expansion, collection, compilation or any other form in which such preexisting works may be recast, transformed or adapted) of any Crystal Commerce intellectual property (“Derivative Work”) such Derivative Work shall be owned by Crystal Commerce and its affiliates and all right, title and interest in and to each such Derivative Work shall automatically vest in Crystal Commerce and its affiliates. Crystal Commerce and its affiliates shall have no obligation to grant you any right in any such Derivative Work. Member will retain all right, title and interest to the documents created by Member using the Crystal Commerce Services, subject to any rights of Crystal Commerce and its affiliates to any Derivative Work or underlying documents, graphics, images, data or information. Title, ownership rights and intellectual property rights in and to the Content accessed through the Services, such as a product catalog, are the property of Crystal Commerce and the applicable Content owner and may be protected by applicable copyright or other law. This Agreement gives Member no rights to such catalog, code, or related Content separate or independent of the Services.

      5.7 Data.

      Crystal Commerce shall collect inventory, pricing information, returns, statistics, and any other information about Member, and regarding the sale of products and Services over the Crystal Commerce Intra-network. This may include access to your administrative and other accounts on the Services to review for system checks, troubleshooting tickets and system performance data. Distributors and manufacturers shall allow Crystal Commerce to access their catalog of products, and will assist Crystal Commerce in the creation and maintenance of an up-to-date catalog, updated on a commercially reasonable basis, of out-of-print, in-print, and future products available for pre-order, and prices related thereto. In the course of its performance hereunder, Crystal Commerce may collect certain personally identifiable data, as well as aggregated non-personally identifiable data about its Intra-networks of sites and users of the Crystal Commerce Intra-network. Member will disclose to its end users that such user’s data may be disclosed to Crystal Commerce, and Member will obtain any necessary consent for the same. Member grants Crystal Commerce the perpetual, irrevocable right to use all collected data for performance of the Services, create derivative works therefrom, to share with other Members of the Crystal Commerce Intra-network and for such other purposes as Crystal Commerce deems reasonably appropriate. All data provided by Crystal Commerce to Member is Confidential Information of Crystal Commerce and may not be shared with any third party, including but not limited to competitors of Crystal Commerce. Member shall take all measures necessary to ensure that its privacy policy allows for the data collection and sharing contemplated hereunder. Member shall be solely responsible for, and will indemnify, defend, and hold harmless Crystal Commerce from and against, any and all liabilities (including without limitation judgments, losses, claims, damages, reasonable attorneys’ fees, and costs) arising from or related to Its privacy policy and the collection and sharing of data hereunder. All data developed by Crystal Commerce in performance of the Services are the sole and exclusive property of Crystal Commerce and cannot be sold, licensed, transferred or published by Member without the prior written consent of Crystal Commerce, for instance, as in connection with Crystal Commerce’s affiliate program. Member acknowledges and agrees that Crystal Commerce may track site metrics by using cookies and various third party analytics services (including for instance, Google Analytics), and that usage data may be shared with such third parties.

      5.8 Trademarks.

      Crystal Commerce, the Crystal Commerce logo, CrystalMarkets, Turbo Store among others, are common law or registered trademarks and/or registered service marks of Crystal Commerce, or one of its affiliates, in the United States and other countries. Other brands or product names are trademarks or service marks of their respective owners, should be treated as such, and may be registered by Crystal Commerce in various jurisdictions.

  6. MARKETING & BRANDING.
      6.1 Crystal Commerce Branding.

      Member shall allow Crystal Commerce to place a Crystal Commerce branded extended footer containing Crystal Commerce’s name and logo (the “Marks”), and other information and links (including a hyperlink to Crystal Commerce’s website), on the bottom of Member’s webpage in the form and substance reasonably determined by Crystal Commerce. Any use of Crystal Commerce’s Marks by Member is subject to the following restrictions. Crystal Commerce grants to Member a non-exclusive license to use the Marks solely in connection with the Services. Crystal Commerce reserves all rights not expressly granted to Member herein. Member’s use of the Marks shall inure to the benefit of Crystal Commerce and shall not create in favor of Member any right, title or interest whatsoever in the Marks. Member agrees that ownership of the Marks and the goodwill relating thereto shall remain vested in Crystal Commerce both during the period of this license and thereafter and inure to the benefit of Crystal Commerce. Member further agrees never to challenge, contest or question the validity of Crystal Commerce’s ownership of the Marks or any registrations thereof by Crystal Commerce. In order to safeguard the integrity of the Marks and the goodwill generated thereby, Member shall use the Marks only as specifically permitted in each instance by Crystal Commerce, in compliance with the standards and specifications set by Crystal Commerce, and subject to the Its covenants and agreements set forth herein. When requested by Crystal Commerce, Member agree to provide Crystal Commerce with samples of advertising and promotional materials, as well as goods and promotional and advertising materials bearing or sold under the Marks and any other documents which may permit Crystal Commerce to determine whether the goods and services and trademark uses meet the standards, specifications and directions approved by Crystal Commerce.

  7. TERM AND TERMINATION.
      7.1 Term.

      Unless otherwise specified in the Order, the initial term of this Agreement will begin on the earlier of the Start Date or Member’s first Transaction or payment through the Crystal Commerce Intra-network and shall continue thereafter until the End Date specified in the Order (the “Initial Term”), and shall thereafter automatically renew for additional periods of one (1) year (each a “Renewal Term,” and collectively together with the Initial Term, the “Term”) unless either party provides written notice of its intention not to renew to the other party at least forty five (45) days prior to expiration of the current term, and no sooner than ninety (90) days prior to the expiration of the current term. If no End Date is specified in the Order, the End Date will be one year from the commencement of this Agreement.

      7.2 Termination.

      Either party may terminate this Agreement if the other party materially breaches this Agreement and such breach has not been cured within thirty (30) days of providing notice thereof. Crystal Commerce, in its sole discretion, may terminate all or part of this Agreement and Member’s Service with Crystal Commerce, individual features, Member’s password, Crystal Commerce Intra-network access, and/or its account, and remove any Content within the Service for any reason, including and without limitation, the lack of use, or if Crystal Commerce believes that Member has violated or acted inconsistently with the letter or spirit of this Agreement. Any contracts, verbal or written or assumed, in conjunction with Member’s deleted Web Store and all its parts, at Crystal Commerce's discretion, will be terminated as well. Crystal Commerce may also in its sole discretion and at any time discontinue providing the Crystal Commerce Service, or any part thereof, with or without notice. Member agrees that any termination by Crystal Commerce of access to the Service under any provision of this Agreement may be effected without prior notice. Member agrees that Crystal Commerce shall not be liable to it or any third-party for any termination of access to the Crystal Commerce Service.

      7.3 Effect of Termination.

      Upon expiration or termination for any reason, Member shall discontinue all use of the Service, and return any and all software and documentation provided to Member by Crystal Commerce. No later than the end of the Term, Member shall return to Crystal Commerce any and all Crystal Commerce Services, equipment, software, documentation or other deliverables provided to Member by Crystal Commerce including any copies thereof held by Member, and except to the extent Member must retain such information in order to comply with law or account for its sales through the Service (e.g. for Member’s own tax and accounting purposes). Notwithstanding anything to the contrary set forth in this Agreement, all licenses granted to Crystal Commerce under this Agreement shall survive the expiration or termination of this Agreement for any reason.

  8. INDEMNIFICATION.
      8.1 Member.

      Member shall indemnify and hold Crystal Commerce, its suppliers and licensors harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs) arising out of or in connection with Member’s use of the Service or breach of this Agreement. In the event Crystal Commerce is required to seek legal remedies to enforce collection of any amounts due under this Agreement, Member agrees to reimburse for all additional costs associated with collection of that past due amount, including reimbursement of collection and attorney's fees.

      8.2 Process.

      A party seeking indemnification hereunder shall promptly notify in writing the other party of any claim for which defense and indemnification is sought. Each party agrees that it will not, without the other’s prior written consent, enter into any settlement or compromise of any claim that: (a) results, or creates a likelihood of a result, that in any way diminishes or impairs any right or defense that would otherwise exist absent such settlement or compromise; or (b) constitutes or includes an admission of liability, fault, negligence or wrongdoing on the part of the other party. Each indemnifying party has the sole right to control the defense of any claim for which it is providing indemnification hereunder with counsel mutually acceptable to the parties. The indemnified party may, at its own expense, participate in the defense of any such claim.

  9. WARRANTY/ LIABILITY/ TOTAL LIABILITY.
      9.1 Warranties.

      Each party represents and warrants to the other that it is duly authorized to execute this Agreement and perform the obligations set forth herein. Member represents and warrants to Crystal Commerce that: (a) Member will use all necessary security options with any equipment or software that Member uses in conjunction with Crystal Commerce Services; (b) Member’s authorized representative is of legal age (at least 18 years of age) to enter into this Agreement (or are at least 13 years of age and have parents' permission to apply for Crystal Commerce Services); (c) Should Member receive notice of any claim regarding the Crystal Commerce Services, Member shall promptly provide Crystal Commerce with a written notice of such claim.

      9.2 Disclaimer.

      THE SERVICE AND ANY OTHER SERVICES PROVIDED IN CONNECTION WITH THIS AGREEMENT AND ALL DATA PROVIDED IN CONNECTION WITH THE SERVICES ARE PROVIDED STRICTLY ON AN "AS IS" BASIS. CRYSTAL COMMERCE DOES NOT WARRANT THE COMPLETENESS OR ACCURACY OF DATA PROVIDED, AND MEMBER SHOULD INDEPENDENTLY VERIFY SUCH INFORMATION. DATA PROVIDED ON OR THROUGH THE SERVICE IS FOR GENERAL INFORMATION ONLY, AND DOES NOT CONSTITUTE INVESTMENT ADVICE. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR SATISFACTORY RESULTS ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY CRYSTAL COMMERCE, ITS SUPPLIERS AND ITS LICENSORS.

      9.3 Internet Risk.

      MEMBER ACKNOWLEDGES AND AGREES THAT SERVICE MAY BE SUBJECT TO INTERRUPTION, LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF INTERNET APPLICATIONS AND ELECTRONIC COMMUNICATIONS. CRYSTAL COMMERCE IS NOT RESPONSIBLE FOR ANY SUCH DELAYS, DELIVERY FAILURES, OR ANY OTHER DAMAGE RESULTING FROM EVENTS BEYOND CRYSTAL COMMERCE’S REASONABLE CONTROL, WITHOUT REGARD TO WHETHER SUCH EVENTS ARE REASONABLY FORESEEABLE BY CRYSTAL COMMERCE.

      9.4 Limitation.

      TO THE MAXIMUM EXTENT PERMITTED BY LAW, MEMBER’S EXCLUSIVE REMEDY AND CRYSTAL COMMERCE’S, ITS SUPPLIERS’ AND LICENSORS’ TOTAL AGGREGATE LIABILITY RELATING TO, ARISING OUT OF, IN CONNECTION WITH, OR INCIDENTAL TO THIS AGREEMENT, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY OR ANY OTHER CLAIM SHALL BE LIMITED TO THE ACTUAL DIRECT DAMAGES INCURRED BY MEMBER, UP TO THE GREATER OF THE AGGREGATE AMOUNTS PAID BY MEMBER AND RECEIVED BY CRYSTAL COMMERCE HEREUNDER DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE APPLICABLE CLAIM OR ONE HUNDRED US DOLLARS ($100). THE EXISTENCE OF MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THIS AGREEMENT WILL NOT ENLARGE OR EXTEND THIS LIMITATION OF DAMAGES. MEMBER HEREBY RELEASES CRYSTAL COMMERCE, ITS SUPPLIERS AND LICENSORS FROM ALL OBLIGATIONS, LIABILITY, CLAIMS OR DEMANDS IN EXCESS OF THIS LIMITATION. THE PROVISIONS OF THIS SECTION DO NOT WAIVE OR LIMIT CRYSTAL COMMERCE’S ABILITY TO OBTAIN INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR BREACH OF THIS AGREEMENT.

      9.5 Exclusion of Certain Damages and Limitations of Types of Liability.

      IN NO EVENT WILL CRYSTAL COMMERCE BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR PUNITIVE DAMAGES, OR LOST PROFITS OR LOST REVENUE ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SERVICE. THE FOREGOING EXCLUSION AND LIABILITY LIMITATIONS APPLY EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IN THE EVENT OF STRICT OR PRODUCT LIABILITY.

  10. ADDITIONAL TERMS.

    With the exception of additional Authorized Team Members obtained by Member under Section 8, Crystal Commerce shall not be bound by any subsequent terms, conditions or other obligations included in any Member purchase order, receipt, acceptance, confirmation or other correspondence from Member unless expressly agreed to in writing by Crystal Commerce and counter-signed by its authorized agent. The parties may supplement the terms of this Agreement at any time by signing a written addendum, which shall be deemed incorporated by this reference upon execution. The terms of any addendum shall control any conflicting terms in this Agreement. Unless expressly stated otherwise in an applicable addendum, all addenda shall terminate upon the expiration or termination of this Agreement. Either party may give notice to the other party by means of electronic mail to the primary contact designated on the Order or by written communication sent by first class mail or pre-paid post, either of which shall constitute written notice under this Agreement.

  11. COPYRIGHT INFRINGEMENT.

    Crystal Commerce respects the intellectual property rights of others, and ask you to do the same. It is our policy to terminate the access privileges of those who repeatedly infringe the copyright rights of others. If you believe that your work has been posted on the Services in a way that constitutes copyright infringement, please contact us at the address below and provide the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed, and identification of the time(s) and date(s) the material that you claim is infringing was displayed on the Services; (3) your address, telephone number, and email address; (4) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (5) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.

    If you believe that your Member Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the Content in your Member Content, you may send a counter-notice containing the following information to the copyright agent: (1) your physical or electronic signature; (2) identification of the Content that has been removed or to which access has been disabled and the location at which the Content appeared before it was removed or disabled; (3) a statement that you have a good faith belief that the Content was removed or disabled as a result of mistake or a misidentification of the Content; and (4) your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in the Western District of Washington and a statement that you will accept service of process from the person who provided notification of the alleged infringement. If a counter-notice is received by the copyright agent, we may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed Content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the Content provider, member or user, the removed Content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.

    Our designated agent for notice of copyright infringement can be reached at: Crystal Commerce, Inc., Attention: Copyright Notice, 7116 220th Street S.W., Mountlake Terrace, WA 98043, copyright@Crystal Commerce.com

  12. MODIFICATIONS TO AGREEMENT.

    EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, MEMBER AGREES, DURING THE TERM OF THIS AGREEMENT, THAT CRYSTAL COMMERCE MAY: (A) REVISE THE TERMS AND CONDITIONS OF THIS AGREEMENT; AND/OR (B) CHANGE PART OF THE SERVICES PROVIDED UNDER THIS AGREEMENT AT ANY TIME. ANY SUCH REVISION OR CHANGE WILL BE BINDING AND EFFECTIVE ON YOU THROUGH YOUR CONTINUED USE OF THE CRYSTAL COMMERCE SERVICES AFTER ANY SUCH REVISIONS. MEMBER AGREE TO PERIODICALLY REVIEW NOTICES POSTED ON THE SERVICE, TO BE AWARE OF ANY SUCH REVISIONS. IF YOU DO NOT AGREE WITH ANY REVISION TO THE AGREEMENT, YOU MAY TERMINATE THIS AGREEMENT AT ANY TIME BY PROVIDING US WITH NOTICE. NOTICE OF YOUR TERMINATION WILL BE EFFECTIVE ON RECEIPT AND PROCESSING BY US. BY CONTINUING TO USE CRYSTAL COMMERCE SERVICES AFTER ANY REVISION TO THIS AGREEMENT OR CHANGE IN SERVICE(S), YOU AGREE TO ABIDE BY AND BE BOUND BY ANY SUCH REVISIONS OR CHANGES.

  13. GENERAL.

    This Agreement shall be governed by Washington law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction to the contrary, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in King County, Washington. No joint venture, partnership, employment, agency or exclusive relationship exists between the parties as a result of this Agreement or use of the Service. The failure of Crystal Commerce to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision. Sections 1, 2.5, 3, 4, 5, 7, 8, 9, 10, and 13 will survive termination or expiration of this Agreement for any reason. If any part of this Agreement is found to be illegal, unenforceable, or invalid, Member’s right to use the Service will immediately terminate, except for those provisions noted above which will continue in full force and effect. This Agreement may not be transferred or assigned by Member to any third party, including by operation of law, without Crystal Commerce’s prior written consent. This Agreement, together with any applicable Orders comprises the entire agreement between Member and Crystal Commerce and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.

  14. Entire Agreement

    These terms and conditions are the entire agreement between the user and Company and supersede any prior understandings or agreements (written or oral).

  15. Additional Assistance

    If you do not understand any of the foregoing Terms and Conditions or if you have any questions or comments, we invite you to contact our Customer Service Department by email at support@crystalcommerce.com or by phone at 206-274-7437.

  16. Copyright Notice

    All Site design, graphics, text selections, arrangements, and all software are Copyright © , CrystalCommerce. ALL RIGHTS RESERVED.