By clicking the “I accept” button displayed as part of the registration process, you agree to the following terms and conditions (the “agreement”) governing your use of Now Commerce’s online service, including offline components (collectively, the “Service”). If you are entering into this agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these terms and conditions, in which case the terms “you” or “your” shall refer to such entity. If you do not have such authority, or if you do not agree with these terms and conditions, you must select the “I decline” button and may not use the service. As part of the Service, Now Commerce will provide you with use of the Service, including a browser interface and data encryption, transmission, access and storage. Your registration for, or use of, the Service shall be deemed to be your agreement to abide by this Agreement including any materials available on the Now Commerce website incorporated by reference herein, including but not limited to Now Commerce’s privacy and security policies. For reference, a Definitions section is included at the end of this Agreement.

As part of the Service, Now Commerce will provide you with use of the Service, including a browser interface and data encryption, transmission, access and storage. Your registration for, or use of, the Service shall be deemed to be your agreement to abide by this Agreement including any materials available on the Now Commerce website incorporated by reference herein, including but not limited to Now Commerce’s privacy and security policies. For reference, a Definitions section is included at the end of this Agreement.

1. Privacy & Security; Disclosure

Now Commerce’s privacy and security policies may be viewed at Privacy and Security, respectively. Now Commerce reserves the right to modify its privacy and security policies in its reasonable discretion from time to time.

2. License Grant & Restrictions

Now Commerce hereby grants you a non-exclusive, non-transferable, worldwide right to use the Service, solely for your own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by Now Commerce and its licensors.

You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet “links” to the Service or “frame” or “mirror” any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. User licenses cannot be shared or used by more than one individual User but may be reassigned from time to time to new Users who are replacing former Users. You may use the Service only for your internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.

3. Your Responsibilities

You are responsible for all activity occurring under your User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify Now Commerce immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Now Commerce immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by you or your Users; and (iii) not impersonate another Now Commerce user or provide false identity information to gain access to or use the Service.

4. Account Information and Data

Now Commerce does not own any data, information or material that you submit to the Service in the course of using the Service (“Customer Data”). You, not Now Commerce, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and Now Commerce shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data.

5. Intellectual Property Ownership

Now Commerce alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Now Commerce Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the Now Commerce Technology or the Intellectual Property Rights owned by Now Commerce. The Now Commerce name, the Now Commerce logo, and the product names associated with the Service are trademarks of Now Commerce or third parties, and no right or license is granted to use them.

6. Third Party Interactions

Now Commerce does not endorse any sites on the Internet that are linked through the Service. Now Commerce provides these links to you only as a matter of convenience, and in no event shall Now Commerce or its licensors be responsible for any content, products, or other materials on or available from such sites.

7. Charges and Payment of Fees

You will pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. Payments must be made monthly in advance unless otherwise mutually agreed upon. All payment obligations are non-cancelable and all amounts paid are nonrefundable. You are responsible for paying for all User licenses ordered, whether or not such User licenses are actively used. You must provide Now Commerce with valid credit card as a condition to signing up for the Service

8. Non-Payment and Suspension

In addition to any other rights granted to Now Commerce herein, Now Commerce reserves the right to suspend or terminate this Agreement and your access to the Service if your account becomes delinquent.

You agree and acknowledge that Now Commerce has no obligation to retain Customer Data.

9. Term

This Agreement commences on the Effective Date. The Initial Term will be monthly, with recurring billing, commencing on the date you agree to pay for the Service. Either party may terminate this Agreement by notifying the other party in writing.

10. Termination for Cause

Any breach of your payment obligations or unauthorized use of the Now Commerce Technology or Service will be deemed a material breach of this Agreement. Now Commerce, in its sole discretion, may terminate your use of the Service if you breach or otherwise fail to comply with this Agreement.

11. Representations & Warranties

Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Now Commerce represents and warrants that it will provide the Service in a manner consistent with general industry standards. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct.

12. Mutual Indemnification

You shall indemnify and hold Now Commerce its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by you of your representations and warranties; or (iii) a claim arising from the breach by you or your Users of this Agreement, provided in any such case that Now Commerce (a) gives written notice of the claim promptly to you; (b) gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release Now Commerce of all liability and such settlement does not affect Now Commerce’s business or Service); (c) provides to you all available information and assistance; and (d) has not compromised or settled such claim.

Now Commerce shall indemnify and hold you and your parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that the Service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; (ii) a claim, which if true, would constitute a violation by Now Commerce of its representations or warranties; or (iii) a claim arising from breach of this Agreement by Now Commerce; provided that you (a) promptly give written notice of the claim to Now Commerce; (b) give Now Commerce sole control of the defense and settlement of the claim (provided that Now Commerce may not settle or defend any claim unless it unconditionally releases you of all liability); (c) provide to Now Commerce all available information and assistance; and (d) have not compromised or settled such claim. Now Commerce shall have no indemnification obligation, and you shall indemnify Now Commerce pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of your products, service, and hardware or business processes

13. Disclaimer of Warranties

Now Commerce and its licensors make no representation, warranty, or guaranty as to the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of the service or any content. Now Commerce and its licensors do not represent or warrant that (a) the use of the service will be secure, timely, uninterrupted or error-free or operate in combination with any other hardware, software, system or data, (b) the service will meet your requirements or expectations, (c) any stored data will be accurate or reliable, (d) the quality of any products, services, information, or other material purchased or obtained by you through the service will meet your requirements or expectations, (e) errors or defects will be corrected, or (f) the service or the server(s) that make the service available are free of viruses or other harmful components. The service and all content are provided to you strictly on an “as is” basis. All conditions, representations and warranties, whether express, implied, statutory or otherwise, including, without limitation, any implied warranty of merchantability, fitness for a particular purpose, or non-infringement of third party rights, are hereby disclaimed to the maximum extent permitted by applicable law by Now Commerce and its licensors.

14. Internet

Now Commerce’s services may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. Now Commerce is not responsible for any delays, delivery failures, or other damage resulting from such problems.

15. Limitation of Liability

In no event shall either party’s aggregate liability exceed the amounts actually paid by you in the twelve month period immediately preceding the event giving rise to such claim. In no event shall either party and/or its licensors be liable to anyone for any indirect, punitive, special, exemplary, incidental, consequential or other damages of any type or kind (including loss of data, revenue, profits, use or other economic advantage) arising out of, or in any way connected with this service, including but not limited to the use or inability to use the service, or for any content obtained from or through the service, any interruption, inaccuracy, error or omission, regardless of cause in the content, even if the party from which damages are being sought or such party’s licensors have been previously advised of the possibility of such damages.

16. Additional Rights

Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.

17. Local Laws and Export Control

If you use the Service from outside the United States of America, you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries.

18. General

This Agreement shall be governed by California law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, 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 San Diego County, California. No text or information set forth on any other purchase order, preprinted form or document (other than an Order Form, if applicable) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and Now Commerce as a result of this agreement or use of the Service. The failure of Now Commerce to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Now Commerce in writing. This Agreement, together with any applicable Order Form, comprises the entire agreement between you and Now Commerce and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.

19. Definitions

As used in this Agreement and in any Order Forms now or hereafter associated herewith: “Agreement” means these online terms of use, any Order Forms, whether written or submitted online, and any materials available on a Now Commerce website specifically incorporated by reference herein, as such materials, including the terms of this Agreement; “Content” means the audio and visual information, documents, software, products and services contained or made available to you in the course of using the Service; “Customer Data” means any data, information or material provided or submitted by you to the Service in the course of using the Service; “Effective Date” means the earlier of either the date this Agreement is accepted by selecting the “I Accept” option presented on the screen after this Agreement is displayed or the date you begin using the Service; “Initial Term” means the initial period during which you are obligated to pay for the Service equal to the billing frequency selected by you during the subscription process (e.g., if the billing frequency is monthly, the Initial Term is the first month); “Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world; “Order Form(s)” means the form evidencing the initial subscription for the Service and any subsequent order forms submitted online or in written form, specifying, among other things, the applicable fees, the billing period, and other charges as agreed to between the parties, each such Order Form to be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of this Agreement shall prevail); “Now Commerce” means collectively Now Commerce LLC, A Delaware Limited Liability Company having its principal place of business at 215 S Highway 101, Suite 116, Solana Beach, CA 92075, USA; “Now Commerce Technology” means all of Now Commerce’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by Now Commerce in providing the Service; “Service(s)” means Now Commerce’s online applications other services identified during the ordering process, developed, operated, and maintained by Now Commerce, accessible via http://www.nowcommerce.com or another designated web site or IP address, or ancillary online or offline products and services provided to you by Now Commerce to which you are being granted access under this Agreement, including Now Commerce Technology and the Content; “User(s)” means your employees, representatives, customers, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by you (or by Now Commerce at your request).

Questions or Additional Information

If you have questions regarding this Agreement or wish to obtain additional information, please send an e-mail to info@nowcommerce.com.