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This INFORMATION TECHNOLOGY SERVICES agreement (Agreement) is a legal agreement between you (Customer, you or your) and Big Internet Seller Services Inc whose registered office is at 3408, Crowley Drive, Vancouver, British Columbia, Canada V5R 6C3 (Contractor, we or our) for use of the capabilities provided by the computer information system Fab On Go, which includes Fab On Go software product (Software), the data supplied with it, printed materials and online or electronic documentation (Documentation).
BY UTILIZING THE SOFTWARE, YOU AGREE TO THE TERMS OF THIS AGREEMENT WHICH WILL BIND YOU AND YOUR EMPLOYEES. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, WE ARE UNWILLING TO INTRODUCE THE SOFTWARE AND PROVIDE OUR SERVICES TO YOU AND YOU MUST DISCONTINUE TO UTILIZE THE SOFTWARE.
The Contractor has full legal rights and power to render services in connection with introduction and support of the Software, being computer information system to assist professional sellers (be they private individuals or legal entities) who wish to solicit feedback and communicate via email with their customers on online trading platforms (Platform(s)).
The services offered by the Contractor are only accessible on the following website at www.fabongo.com (Site).
1. ACCESS CONDITIONS
1.1 You hereby warrant that: (a) you are the holder of a “Pro Merchant” (or other appropriate merchant) account with the Platform(s) you are using, and have a username and password granting you access to such Platform(s) (please note that some parts of the service offered by the Software will not work if you are not registered with the Platform(s) in this manner); (b) you have fulfilled all necessary registration requirements to use the Platform(s), hold an appropriate merchant account to use the Platform(s) and have fulfilled all other legal requirements necessary to access the Platform(s); (c) if using Amazon, you regularly sell products via the Platform(s) (“regularly” in this context meaning sales of no less than 50 products each month) and that you carry out such activity on the Platform(s) in a professional capacity; (d) that you agree to and will abide by all terms and conditions applicable to access to and use of the Platform(s) and are fully aware of the Platform(s) rules governing sales of products and setting of prices; (e) you have full legal capacity to enter into this Agreement; and (f) you fully understand what you can get from using the services offered by the Software as set out in this Agreement; and (g) you agree (upon expiry of the free trial period referred to below) to pay the Contractor solely by credit or debit card (which you are authorized to use for that purpose).
1.2 You undertake to provide accurate information about your identity, your address and the products you sell via the Platform(s) and to update such information (including information held on your user account) regularly and promptly.
1.3 You warrant that: (a) you will not use the Software to offer products for sale on the Platform(s) that are illegal, infringe third party rights (including, without limitation, third party intellectual property rights), which undermine public decency, infringe the Platform(s) terms of conduct or are otherwise offensive; (b) you have the requisite rights (including, without limitation, ownership rights) to advertise, offer to sell and sell the products via the Platform(s); and (c) no text placed by you or on your behalf alongside products offered for sale shall run contrary to applicable law or regulations, and that such text shall not be obscene, defamatory, threatening, contain any viruses or serve as the basis for any form of bulk mailing (Spam).
1.4 You will provide the Contractor with all information reasonably requested by it in order to enable full use of the Software or any services associated with same.
2. ORDER SERVICES
2.1 The Contractor will provide you with a confirmation as soon as your order is accepted.
2.2 You undertake to keep any username and/or password(s) provided to you or chosen by you as part of the registration process strictly confidential. If you are a legal entity, a single individual person representing the legal entity shall be authorized to hold the username and associated password.
2.3 You agree to notify us immediately in the event that you suspect misuse, loss or theft of your username or password. Upon receipt of such notification, the Contractor shall allocate you with a new username and password. Until such allocation, you shall remain the sole party responsible for the consequences of any use of your username and password.
2.4 If you have more than one Platform account on any single Platform, you may open several separate registrations with us (with separate usernames and passwords), each subject to the terms of this Agreement. Order is only valid for a single account on each Platform.
3. FREE TRIAL PERIOD
3.1 Upon confirmation of order with the Contractor, you shall be provided with a 21 day free trial period (excluding internet connection or other third-party costs) to utilize functions offered by the Software on a non-exclusive, personal and non-transferable basis, for your internal business management purposes only, with the sole aim of assisting you to communicate with your customers and solicit feedback or product reviews when they have purchased products on the Platform(s) in accordance with all the terms of this Agreement (Free Trial Period).
3.2 In the event that you wish to continue to use the services offered by the Contractor beyond the Free Trial Period, you must (prior to the end of the Free Trial Period); (a) have correctly completed all the information relating to payment of the support service fee in the deploy order process ; (b) provided valid credit card details for payment of the Agreement support service fee; and (c) chosen a subscription to sign up to for use of the Software; and (d) paid the correct amount owed for order your subscription.
3.3 If you do not order services in connection with use of the Software following the expiry of the Free Trial Period, some parts of the services may automatically be deactivated.
4. SUPPORT SERVICES FEE
4.1 Subscription to and use of the Software beyond the Free Trial Period is strictly subject to payment of the monthly support fee set out at the Site (Support Fee).
4.2 Payment of the Support Fee shall be deducted automatically by the Contractor monthly in advance from the credit card details you provided at registration, and you hereby authorize the Contractor to deduct such payments. Support Fees paid will not be refunded upon termination of this Agreement for any reason.
4.3 Without prejudice to any other right or remedy which it may have, if you fail to pay the Contractor on the due date, the Contractor may suspend your account and stop rendering the services provided by the Contractor until payment has been made in full. If payment of the Support Fee is not received by the Contractor within 14 days of the Contractor notifying you that payment is overdue, rendering support service concerning your use of the Software will be terminated and your user account and all related information deleted by the Contractor. Any debt collection proceedings that the Contractor is required to pursue against you will be undertaken at your expense.
5.1 All communications and/or publications in any form whatsoever or data or information arising from the use of the Software for reasons other than sale price optimization and/or sales management on the Platform(s) for your benefit shall be subject to prior written authorization from the Contractor.
5.2 The Contractor reserves the right to inform its employees, temporary workers or subcontractors of any confidential information relating to you or your business if such communication is necessary or desirable for the Contractor performance of its obligations arising from this Agreement, it being understood that the Contractor will bring the confidential nature of this aforementioned information to such persons.
6.1 You agree that in accordance with the Agreement you obtain permission in writing from Fab On Go prior to using the Fab On Go Logo or Fab On Go name in any collateral or forums or publication.
6.2 You agree that we may publicly disclose that we are providing services to you and may use your name and logo to identify you as our customer in promotional materials, including press releases (provided that Fab On Go will allow you to review any press release(s) prior to issuance) and case studies, white papers, event materials, presentations, website content and earnings calls, in all media, now known or which shall become known in the future.
To resolve an issue arising in your use of the Software within a reasonable period, please contact us by way of email at email@example.com or via live chat and we will endeavor to provide you with assistance, where possible.
1. GRANT AND SCOPE OF AGREEMENT
1.1 In consideration of you agreeing to abide by the terms of this Agreement (and, following expiry of the Free Trial Period, subject to payment of the Support Fee, the Contractor hereby takes obligation introduce and support computer information system Fab On Go on the terms of this Agreement. This Agreement shall commence on the day following the last day of the Free Trial Period and shall continue thereafter on a monthly basis subject to monthly payment of the Support service Fee and any termination in accordance with the terms of this Agreement.
1.2 You may: (a) access via the Site and use the Software in conjunction with the Platform(s) for your internal business management purposes only with the sole aim of assisting you to communicate with your customers and solicit feedback or product reviews when they have purchased products on the Platform(s); (b) not make any copies of the Software; (c) receive and use any free supplementary software code or update of the Software incorporating “patches” and corrections of errors as may be provided by the Contractor from time to time; (d) use any Documentation in support of the use permitted under condition.
2.1. Except as expressly set out in this Agreement or as permitted by any local law, you undertake: (a) not to copy the Software or Documentation; (b) not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Software or Documentation or any part thereof; (c) not to make alterations to, or modifications of, the whole or any part of the Software nor permit the Software or any part of it to be combined with, or become incorporated in, any other programs; (d) not to disassemble, de-compile, reverse engineer or create derivative works based on the whole or any part of the Software nor attempt to do any such things except to the extent that (by virtue of section 296A of the Copyright, Designs and Patents Act 1988) such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the Software with another software program, and provided that the information obtained by you during such activities: (i) is used only for the purpose of achieving inter-operability of the Software with another software program;
(ii) is not disclosed or communicated without the Contractor’s prior written consent to any third party to whom it is not necessary to disclose or communicate it; and
(iii) is not used to create any software which is substantially similar to the Software; (e) to supervise and control use of the services provided by the Software and ensure that the Software is used by your employees and representatives in accordance with the terms of this Agreement; (f) to use the most current version of the Software, including upgrading to any updated or upgraded version or new release provided by the Contractor under the terms of this Agreement immediately on receipt of such version or release; (g) not to provide, or otherwise make available, the Software or services offered by the Software in any form, in whole or in part to any person other than your employees without prior written consent from the Contractor; (h) not to access all or any part of the Software or Documentation in order to build a product or service which competes with the services provided by the Software and/or Documentation; (i) not to use the Software and/or Documentation to provide services to third parties; (j) not to attempt to obtain, or assist third parties in obtaining, access to the Software and/or Documentation or the services offered by some other than as set out in this Agreement and (k) to display the Fab On Go logo and/or links to www.fabongo.com on marketplace listings were we deem appropriate.
2.2. You shall not access, store, distribute or transmit any viruses, worms, trojans or other material which may prevent, impair or otherwise adversely affect the operation of any software, hardware, equipment, network or telecommunications service, or any material during the course of your use of the services provided by the Software which: (a) is unlawful, harmful, threatening, defamatory, infringing, harassing or racially or ethnically offensive; (b) facilitates illegal activity; (c) depicts sexually explicit images; (d) promotes unlawful violence; (e) is discriminatory based on race, gender, color, religious belief, sexual orientation, disability, or any other illegal activity; or (f) causes damage or injury to any person or property, and the Contractor reserves the right, without liability to you, to disable your access to any material that breaches this condition.
2.3. You shall indemnify, defend and hold harmless the Contractor against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with your use of the services offered by the Software and/or Documentation or any part thereof or any breach of the terms of this Agreement.
INTELLECTUAL PROPERTY RIGHTS
3.1. You acknowledge that all intellectual property rights in the Site, the services provided by the Contractor and the Software and the Documentation throughout the world belong to the Contractor, and that you have no rights in, or to, the Software or the Documentation other than the right to access and/or use services in accordance with the terms of this Agreement.
3.2. You acknowledge that all intellectual property rights in the Platform(s) belong to the Platform(s) operator and you shall take this into account in using the Platform(s).
3.3 You acknowledge that you have no right to have access to the Software in source code form or in unlocked coding.
3.4 The integrity of this Software is protected by technical protection measures (TPM) so that the intellectual property rights, including copyright, in the Software of the Contractor are not misappropriated. You must not attempt in any way to remove or circumvent any such TPM, nor to apply, manufacture for sale, hire, import, distribute, sell, nor let, offer, advertise or expose for sale or hire, nor have in your possession for private or commercial purposes, any means whose sole intended purpose is to facilitate the unauthorized removal or circumvention of such TPM.
4.1 Except as set out in this Agreement, the services offered by the Contractor is rendered to you “as is”. All warranties, conditions and other terms implied by statute or common law (including, but limited to, implied warranties of satisfactory quality and fitness for a particular purpose) are, to the fullest extent permitted by law, excluded from this Agreement.
4.2. You acknowledge that the services offered by the Contractor concerning Software may not be free of bugs or errors and you agree that the existence of any minor errors in work of the Software shall not constitute a breach of this Agreement. The Contractor shall not be liable for bugs, problems, errors, issues, difficulties in using, or an inability to use the services offered by the Contractor or the Software which arises either wholly or partly as a result of either your or third-party computer equipment or software or due to internet connection problems (including, without limitation, unavailability of the Platform(s)).
5.1. Nothing in this Agreement shall exclude or in any way limit either party’s liability for fraud, or for death and personal injury resulting from negligence, or any other liability to the extent that it cannot be excluded or limited as a matter of law.
5.2. Subject to condition 5.1 the Contractor shall not be liable under or in connection with this Agreement for: (a) loss of income; (b) loss of business profits or contracts; (c) business interruption; (d) loss of the use of money or anticipated savings; (e) loss of information; (f) loss of opportunity, goodwill or reputation; (g) loss of, damage to or corruption of data; or (h) any indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise.
5.3. Subject to condition 5.1 and condition 5.2, the Contractor ’s maximum aggregate liability under or in connection with this Agreement, or any collateral contract, whether in contract, tort (including negligence) or otherwise (including any liability for the acts or omissions of its employees or agents), shall be limited to a sum equal to the total Support services Fees paid to the Contractor in the period of 12 months considered retrospectively from the date the cause of action arose.
5.4 The Contractor does not warrant that the Software or the service offered thereby will not infringe third party intellectual property rights (whether such rights subsist in the United Kingdom or otherwise).
5.5 This Agreement sets out the full extent of the Contractor’s obligations and liabilities in respect of the rendering services concerning introduction to the Software and support services in utilizing Software and Documentation. In particular, there are no conditions, warranties, representations or other terms, express or implied, that are binding on the Contractor except as specifically stated in this Agreement. Any condition, warranty, representation or other term concerning the supply of the services offered by the Contractor, the Software and Documentation which might otherwise be implied into, or incorporated in, this Agreement, or any collateral contract, whether by statute, common law or otherwise, is hereby excluded to the fullest extent permitted by law.
5.6 You acknowledge that you alone are responsible for the information and data you hold, as well as that arising from use of our services and the Software, and assume sole responsibility for the security of such information. You acknowledge that you alone are responsible for forecasting and calculating any damage you are liable to suffer in the event of any problem arising in the performance of the Software and/or the Site. As a consequence, you acknowledge that it is your responsibility to insure your business against all risks which you regard as appropriate having regard to your individual circumstances and the terms of this Agreement.
5.7 You acknowledge that all sales made by you via the Platform and using the Software or our services are made between you and the buyer directly, and the Contractor accepts no responsibility for and is not a contractual party to same. You undertake to abide by all legislative and regulatory provisions, including without limitation, all consumer protection and distance selling regulations.
5.8 You acknowledge and agree that the Contractor shall have no liability in the event that the Platform(s) operator makes changes to the Platform(s) or the API for the Platform(s) which render the Software or services offered thereby obsolete or prevent access to the Platform(s). The Contractor shall have no liability for any decisions or actions of the Platform(s) operator or their consequences, whether they arise with or without warning and irrespective of the consequences.
5.9 The Contractor is not liable for: (a) the integrity, completeness, precision, accuracy or updating of information or data provided by the Software which is dependent upon the Platform(s); or (b) information uploaded to the Platform(s) by you.
5.11 You hereby acknowledge that whilst the Software regularly updates your information, it does not provide a real-time connection with the Platform(s) and as a result, there may be a discrepancy in data provided by the Software, for example, between the number of products displayed as sold, and those actually sold. If products are oversold by you and the Platform(s) operator(s) receive a request for a refund from the buyer, this may result in your access and use of the Platform(s) being suspended, on either a permanent or temporary basis. The Contractor accepts no liability in such event. It is your sole responsibility to monitor your sales on Platform(s) on a regular basis.
5.12 The Contractor shall not be liable for any fluctuations in exchange rates or currency conversions or for the accuracy, completeness or reliability of any information supplied to it by third parties.
5.13 The Contractor shall use commercially reasonable endeavors to make the services it offers available 24 hours a day, 7 days a week, except for: (a) planned maintenance; or (b) unscheduled maintenance. The Contractor does not accept any liability for unavailability of the services it offers through the Software and the Site due to events outside of its control, including without limitation, network failures.
6.1. The Contractor may terminate this Agreement immediately by notice to you if you commit a material or persistent breach of this Agreement which you fail to remedy (if remediable) within 14 days after the service on you of written notice requiring you to do so.
6.2. Either party may, without cause, terminate this Agreement upon giving the other party not less than one month’s prior written notice of such termination.
6.3. Upon termination for any reason: (a) all rights granted to you under this Agreement shall cease; (b) you must cease all activities authorized by this Agreement; (c) you must immediately pay to the Contractor any sums due to the Contractor under this Agreement; (d) you must immediately delete or remove the Software (where relevant) from all computer equipment in your possession; and (e) the Contractor will close your user account and the information contained in that account will be deleted.
TRANSFER OF RIGHTS AND OBLIGATIONS.
7.1. This Agreement is binding on you and us and on our respective successors and assigns.
7.2. You may not transfer, assign, charge or otherwise dispose of this Agreement, or any of your rights or obligations arising under it,
without our prior written consent.
7.3. The Contractor may transfer, assign, charge, sub-contract or otherwise dispose of this Agreement, or any of his rights or obligations arising under it, at any time during the term of the Agreement.
All notices given by you to the Contractor must be given to firstname.lastname@example.org. The Contractor may give notice to you at either the e-mail or postal address you provided to it when registering. Notice will be deemed received and properly served 24 hours after an e-mail is sent, or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail, that such e-mail was sent to the specified e-mail address of the addressee.
EVENTS OUTSIDE THE CONTRACTOR’S CONTROL
9.1. The Contractor will not be liable or responsible for any failure to perform, or delay in performance of, any of his obligations under this Agreement that is caused by an event outside its reasonable control (Force Majeure Event).
9.2. A Force Majeure Event includes any act, event, non-happening, omission or accident beyond our reasonable control and includes in particular (without limitation) the following: (a) strikes, lock-outs or other industrial action; (b) civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war; (c) fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster; (d) impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport; (e) impossibility of the use of public or private telecommunications networks; (f) the acts, decrees, legislation, regulations or restrictions of any government.
9.3. The Contractor’s performance under this Agreement is deemed to be suspended for the period that the Force Majeure Event continues, and it will have an extension of time for performance for the duration of that period. The Contractor will use its reasonable endeavors to bring the Force Majeure Event to a close or to find a solution by which its obligations under this Agreement may be performed despite the Force Majeure Event.
10.1 You shall own all rights, title and interest in and to all of the data inputted by you, or on your behalf (including by the Contractor) for the purpose of using the services provided by the Software (Customer Data) and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
10.2 The Contractor shall follow its internal archiving procedures for Customer Data. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy shall be for the Contractor to use reasonable commercial endeavors to restore the lost or damaged Customer Data from the latest backup of such Customer Data maintained by the Contractor in accordance with the archiving procedure. The Contractor shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party.
10.4 If the Contractor processes any personal data on your behalf when performing its obligations under this Agreement, the parties record their intention that you shall be the data controller and the Contractor shall be a data processor and in any such case: (a) you acknowledge and agree that the personal data may be transferred or stored outside the EEA or the country where you are located in order to carry out the services provided by the Software and the Contractor’s other obligations under this Agreement; (b) you shall ensure that you are entitled to transfer the relevant personal data to the Contractor so that the Contractor may lawfully use, process and transfer the personal data in accordance with this Agreement on your behalf; (c) you shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation; and (d) each party shall take appropriate technical and organizational measures against unauthorized or unlawful processing of the personal data or its accidental loss, destruction or damage.
WAIVER AND VARIATION
11.1. If the Contractor fails, at any time during the term of this Agreement, to insist on strict performance of any of your obligations under this Agreement, or if the Contractor fails to exercise any of the rights or remedies to which he is entitled under this Agreement, this shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations.
11.2. A waiver by the Contractor of any default shall not constitute a waiver of any subsequent default.
11.3. No waiver by the Contractor of any provision of this Agreement shall be effective unless it is expressly stated to be a waiver and is communicated to you in writing.
11.4. In the event that the Contractor decides to apply new Agreement terms to use of the Software or change the terms of this Agreement, the Contractor will inform you of the new terms applicable by email.
If any of the terms of this Agreement are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
13.1. This Agreement and any document expressly referred to in it represents the entire agreement between us in relation to the licensing of the Software and Documentation and supersedes any prior agreement, understanding or arrangement between us, whether oral or in writing.
13.2. We each acknowledge that, in entering into this Agreement, neither of us has relied on any representation, undertaking or promise given by the other or implied from anything said or written in negotiations between us before entering into this Agreement except as expressly stated in this Agreement.
13.3. Neither of us shall have any remedy in respect of any untrue statement made by the other, whether orally or in writing, prior to the date we entered into this Agreement (unless such untrue statement was made fraudulently) and the other party’s only remedy shall be for breach of contract as provided in this Agreement.
LAW AND JURISDICTION
This Agreement, its subject matter or its formation (including non-contractual disputes or claims) shall be construed in accordance with the English law.
Please note that calls to or from our business may be monitored or recorded.