1.0 ACKNOWLEDGMENT AND ACCEPTANCE OF SERVICE AGREEMENT
The Amazia's Gift Certificate service ("the "Service"),
operated by Amazia, (Amazia) is provided to you ("you" or
"Merchant") under the terms and conditions of this Gift Certificate
Merchant Service Agreement and any amendments thereto and any
operating rules or policies (collectively, the "GCSA" or "Agreement").
Amazia reserves the right, in its sole discretion, to change, modify,
add or remove all or part of the GCSA at any time. Merchant will
receive notice of such changes and/or modifications pursuant to
Section 14 regarding notices.
- 1.1 By accepting the terms and conditions of the GCSA, Merchant
(a) represents and warrants that he or she is 18 years old or older;
(b) agrees to provide true, accurate, current and complete information
about Merchant as prompted by the Account Registration Form; and (c)
agrees to maintain and update this information to keep it true,
accurate, current and complete. If any information provided by
Merchant is untrue, inaccurate, not current or incomplete, Amazia has
the right to terminate Merchants account and refuse any and all
current or future use of the Service.
- 1.2 BY COMPLETING THE ACCOUNT REGISTRATION PROCESS AND CLICKING
THE "I ACCEPT" BUTTON, YOU AGREE TO BE BOUND BY THE GCSA. Nothing
in this agreement obligates Amazia or the Service to list, link to,
accept or otherwise host any online store anywhere on the Amazia site.
If these terms and conditions or any future changes are unacceptable
to you, you may cancel your account pursuant to Section 7.1 regarding
termination of service.
2.0 DESCRIPTION OF GIFT CERTIFICATE SERVICE
Amazia hosts interactive online stores ("Store") on the World Wide Web
and provides merchants with access to its Gift Certificate Software
("Software") to facilitate the creation and maintenance of Stores for
the sale of Gift Certificatess.
3.0 MERCHANT'S OBLIGATIONS
- 3.1 Merchant acknowledges and agrees that it shall be responsible
for all goods and services offered at Merchants Store, all materials
used or displayed at the Store, and all acts or omissions that occur
at the Store or in connection with Merchant's account or password.
Certain Stores may be subject to additional requirements.
- 3.1.1 Merchant agrees to display in the Store Merchant's contact
information, including but not limited to Merchant's company name,
address, telephone number, fax number and e-mail address. Merchant
also agrees to update such information to keep it true, accurate,
current and complete.
- 3.1.2 Merchant represents and warrants that it has full power
and authority under all relevant laws and regulations:
- to offer and sell the goods and services offered at the Store,
including but not limited to holding all necessary licenses from all
necessary jurisdictions to engage in the advertising and sale of the
goods or services offered at the Store;
- to copy and display the materials used or displayed at the Store;
and,
- to provide for credit card payment and delivery of goods or
services as specified at the Store.
- 3.1.3 Merchant represents and warrants that it will not engage in
any activities:
- that constitute or encourage a violation of any applicable law or
regulation, including but not limited to the sale of illegal goods or
the violation of export control or obscenity laws;
- that defame, impersonate or invade the privacy of any third party
or entity;
- that infringe the rights of any third party, including but not
limited to the intellectual property, business, contractual, or
fiduciary rights of others; and,
- that are in any way connected with the transmission of "junk
mail" "spam" or the unsolicited mass distribution of e-mail, or with
any unethical marketing practices.
- 3.2 Amazia reserves the right to refuse to host or continue to
host any Store which it believes, in its sole discretion: (1) offers
for sale goods or services, or uses or displays materials, that are
illegal, obscene, vulgar, offensive, dangerous, or are otherwise
inappropriate; (2) has substantially changed its Store from the time
it was accepted; (3) received a significant number of complaints for
failing to be reasonably accessible to customers or timely fulfill
customer orders; (4) has become the subject of a government complaint
or investigation; or (5) has violated or threatens to violate the
letter or spirit of the GCSA.
4.0 PROPRIETARY RIGHTS
- 4.1 Software License. Amazia hereby grants Merchant a
non-exclusive, non-transferable license to use the Software in object
code form only on a server controlled by Amazia for the sole purpose
of creating and maintaining Stores on such server. Merchant is not
being granted any right to copy the Software or to use it on computers
other than a server controlled by Amazia. Merchant may not use Web
pages or parts of Web pages generated by means of the Software, other
than content that originates from and is proprietary to Merchant, on
any server other than the servers controlled by Amazia without Amazia's
express written agreement. Merchant also acknowledges and agrees that
the Software is intended for access and use by means of web browsing
software, and that Amazia does not commit to support any particular
browsing platform. Amazia reserves the right at any time to revise
and modify the Software, release subsequent versions thereof and to
alter features, specifications, capabilities, functions, and other
characteristics of the Software, without notice to Merchant. If any
revision or modification to the Software materially changes Merchants
ability to conduct business, Merchants sole remedy is to terminate the
GCSA pursuant to Section 7.1 regarding termination of service.
- 4.2 Amazia Intellectual Property. Merchant acknowledges and
agrees that content available from Amazia or the Service, including
but not limited to text, software, music, sound, logos, trademarks,
service marks, photographs, graphics, or video, is protected by
copyright, trademark, patent, or other proprietary rights and laws,
and may not be used in any manner other than as specified in Section
4.1 above.
- 4.3 Merchant's Property. Merchant agrees that by using the
Service, Merchant grants Amazia, and its successors and assigns, a
non-exclusive, worldwide, royalty-free, perpetual, non-revocable
license under Merchants copyrights or other intellectual property
rights, if any, in such material to use, distribute, display,
reproduce, and create derivative works from such material in any and
all media, for purposes of promoting Amazia or Gift Certificates generally
or Merchants Store in particular. Merchant also grants Amazia the
right to maintain such content on Amazia's servers during the term of
the GCSA and to authorize the downloading and printing of such
material, or any portion thereof, by endusers for their personal use.
- 4.4 Unauthorized Access. Merchant shall not attempt to gain
unauthorized access to any servers controlled by Amazia.
5.0 FEES
- 5.1 Merchant shall pay Amazia or Amazia's Distributors a monthly fee as set forth in the
Gift Certificate fee schedule available at http://gift-connect.com/prices.shtml
and made a part hereof. All such fees are payable in U.S. dollars to
Amazia and shall be charged on the first day of the month in quarterly terms to the
credit card number given to Amazia at the time of registration or to
such other credit card number which Merchant shall so designate.
Amazia may also, upon 30 days prior notice to Merchant, alter its fee
schedules and terms of the GCSA.
6.0 TERMS
- 6.1 Term. The term of the GCSA shall begin on the date Amazia
receives an application from the Merchant to set up a store and continue for 90
days. The term shall automatically renew for successive 90 day terms
at renewal rates applicable at the time, unless notice of non-renewal
is provided in accordance with Section 6.2, below; provided, however,
that to qualify for each renewal Merchant must at the time of renewal
be in substantial compliance with the material terms and conditions of
the GCSA. Amazia shall have the right, but not the obligation, to
review any Store for compliance with the GCSA as part of the renewal
process, or at any time.
- 6.2 Non-Renewal. Either party, in its sole and absolute
discretion, may give notice of nonrenewal with or without cause and
without stating any reason therefor. Any notice of nonrenewal must be
given at least thirty (30) days prior to the end of the term then in
effect and in the manner described in Section 14 regarding notice.
7.0 TERMINATION
- 7.1 Termination. Either party may terminate the GCSA on thirty
(30) days notice if the other party has materially breached or is
otherwise not in compliance with any provision of the GCSA, and such
breach or noncompliance is not cured within such thirty (30) day
period. Amazia reserves the right to immediately suspend any customer
access to the Store until such breach or noncompliance is cured.
- 7.2 Termination for Illegal or Other Activity. Notwithstanding
the foregoing, Amazia may, but has no duty to, immediately terminate
Merchant and remove it from Amazia servers if Amazia in its sole
discretion concludes that Merchant is engaged in illegal activities or
the sale of illegal or harmful goods or services, or is engaged in
activities or sales that may damage the rights of Amazia or others.
Any termination under this Section 7.2 shall take effect immediately
and Merchant expressly agrees that it shall not have any opportunity
to cure.
- 7.3 Waiver. Merchant expressly waives any statutory or other
legal protection in conflict with the provisions of this Section 7.
- 7.4 Deletion of Information. Upon termination, Amazia reserves
the right to delete from its servers any and all information contained
in Merchants account, including but not limited to order processing
information, mailing lists, and any Web pages generated by the Software.
- 7.5 The provisions of Section 4 (Proprietary Rights), Section 10
(Indemnity), and Section 11 (Disclaimer of Warranties and Liabilities)
of this Agreement shall survive any termination of the Agreement.
- 7.6 Should a Merchant decides to terminate before carrying out the full term prior to renewal, he/she can do so
by instructing Amazia of such termination request. However, the Merchant agrees that no refunds will be given for the remainder
of the term thus waves all rights to claim or request such refund. Amazia warrants that there will be no early termination fees.
- 7.7 In case of SPAM being reported to Amazia about Merchant, Amazia will terminate service with immediate effect. Merchant will
not be able to refunded for the remainder of its term for such early termination.
8.0 MERCHANT PRIVACY
- 8.1 Merchant Information. Amazia maintains information about
Merchant and the Store on Amazia servers, including but not limited to
Merchants account registration information, Merchant's customer order
information, sales information, and clickstream data ("Merchant
Information"). Merchant agrees that Amazia may use Merchant
Information in aggregate form for marketing or other promotional
purposes.
- 8.1.1 Merchant agrees that Amazia may disclose Merchant
Information in the good faith belief that such action is reasonably
necessary: (a) to comply with the law; (b) to comply with legal
process; (c) to enforce the GCSA; (d) to respond to claims that the
Merchant or Store is engaged in activities that violate the rights of
third parties; or (e) to protect the rights or interests of Amazia,
Gift Certificate or others; provided, however, that nothing in this
section shall impose a duty on Amazia to make any such disclosures.
-
8.1.2 Merchant agrees that Amazia may delete customer credit card
information from Amazia servers 14 days after Merchant retrieves such
information, and may delete all other Merchant Information from Amazia
servers at the end of each calendar year.
- 8.2 Password. Merchant shall receive a password from Amazia to
provide access to and use of the Software and Online Store Services.
Merchant is entirely responsible for any and all activities which
occur under Merchants account and password. Merchant agrees to keep
its password confidential, to allow no other person or company to use
its account, and to notify Amazia promptly if Merchant has any reason
to believe that the security of its account has been compromised.
- 8.3 Technical Access. Merchant acknowledges and agrees that
technical processing of Merchant Information is and may be required:
(a) for the Service to function; (b) to conform to the technical
requirements of connecting networks; (c) to conform to the technical
requirements of the Service; or (d) to conform to other, similar
technical requirements. Merchant also acknowledges and agrees that
Amazia may access Merchant's account and its contents as necessary to
identify or resolve technical problems or respond to complaints about
the Service.
9.0 MAINTENANCE AND SUPPORT
- 9.1 Merchant can obtain assistance with any technical difficulty
that may arise in connection with Merchant's utilization of the
Software or Online Store Services by requesting assistance by email to
techsupport@Amazia.com.
Amazia reserves the right to establish limitations on the extent of
such support, and the hours at which it is available.
- 9.2 Merchant is responsible for obtaining and maintaining all
telephone, computer hardware and other equipment needed for its access
to and use of the Software and Online Store Services and Merchant
shall be responsible for all charges related thereto.
10.0 INDEMNITY
Merchant agrees to indemnify and hold harmless Amazia, and its
parents, subsidiaries, affiliates, officers, directors, shareholders,
employees and agents, from any claim or demand, including reasonable
attorneys fees, made by any third party due to or arising out of
Merchants conduct, Merchants use of the Service, the goods or services
offered at Merchants Store, any alleged violation of the GCSA, or any
alleged violation of any rights of another, including but not limited
to Merchants use of any content, trademarks, service marks, trade
names, copyrighted or patented material, or other intellectual
property used in connection with Merchants Store. Amazia reserves the
right, at its own expense, to assume the exclusive defense and control
of any matter otherwise subject to indemnification by Merchant, but
doing so shall not excuse Merchants indemnity obligations.
Merchant further indemnifies and holds harmless Amazia, and its
parents, subsidiaries, affiliates, officers, directors, shareholders,
employees and agents, from any claim or demand, including reasonable
attorneys fees, made by any third party for any loss of revenues, earnings
or damages due to any interruptions in service or errors in software.
11.0 DISCLAIMER OF WARRANTIES AND LIABILITIES
THE SERVICE AND SOFTWARE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE"
BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. NEITHER THIS AGREEMENT
OR ANY DOCUMENTATION FURNISHED UNDER IT IS INTENDED TO EXPRESS OR
IMPLY ANY WARRANTY THAT THE ONLINE STORE SERVICES WILL BE
UNINTERRUPTED, TIMELY OR ERROR-FREE OR THAT THE SOFTWARE WILL PROVIDE
UNINTERRUPTED, TIMELY OR ERROR FREE SERVICE. THE SECURITY MECHANISM
INCORPORATED IN THE SOFTWARE HAS INHERENT LIMITATIONS AND MERCHANT
MUST DETERMINE THAT THE SOFTWARE ADEQUATELY MEETS ITS REQUIREMENTS.
MERCHANT ACKNOWLEDGES AND AGREES THAT ANY MATERIAL AND/OR DATA
DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS
DONE AT ITS OWN DISCRETION AND RISK AND THAT MERCHANT WILL BE SOLELY
RESPONSIBLE FOR ANY DAMAGES TO ITS COMPUTER SYSTEM OR LOSS OF DATA
THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA.
AMAZIA, AND ITS PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS,
DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS, SHALL NOT BE LIABLE,
UNDER ANY CIRCUMSTANCES OR LEGAL THEORIES WHATSOEVER, FOR ANY LOSS OF
BUSINESS, PROFITS OR GOODWILL, LOSS OF USE OR DATA, INTERRUPTION OF
BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL
DAMAGES OF ANY CHARACTER, EVEN IF Amazia IS AWARE OF THE RISK OF SUCH
DAMAGES, THAT RESULT IN ANY WAY FROM MERCHANTS USE OR INABILITY TO USE
THE ONLINE STORE SERVICES OR THE SOFTWARE, OR THAT RESULT FROM ERRORS,
DEFECTS, OMISSIONS, DELAYS IN OPERATION OR TRANSMISSION, OR ANY OTHER
FAILURE OF PERFORMANCE OF THE ONLINE STORE SERVICES OR THE SOFTWARE.
AMAZIA'S LIABILITY TO MERCHANT SHALL NOT, FOR ANY REASON, EXCEED THE
AGGREGATE PAYMENTS ACTUALLY MADE BY MERCHANT TO AMAZIA OVER THE COURSE
OF THE EXISTING TERM.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR
LIABILITIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
12.0 NO RESALE OR ASSIGNMENT OF SERVICE
Merchant agrees not to resell or assign or otherwise transfer its
rights or obligations under the GCSA without the express written
authorization of Amazia.
13.0 FORCE MAJEURE
Neither party shall be liable to the other for any delay or failure in
performance under the GCSA resulting directly or indirectly from acts
of nature or causes beyond its reasonable control.
14.0 NOTICES
Any notices or communications under the GCSA shall be by electronic
mail or in writing and shall be deemed delivered upon receipt to the
party to whom such communication is directed, at the addresses
specified below. If to Amazia, such notices shall be addressed to info@Amazia.com or
440 East Sample Road, Suite 205, Pompano Beach, FL 33064,
USA. If to Merchant, such notices shall be addressed to the
electronic or mailing address specified when Merchant opens an account
with Gift Certificate, or such other address as either party may give the
other by notice as provided above.
15.0 ENTIRE AGREEMENT
The GCSA constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes all previous
proposals, both oral and written, negotiations, representations,
writings and all other communications between the parties.
16.0 GENERAL
The GCSA and the relationship between Merchant and Amazia shall be
governed by the laws of the state of Florida without regard to its
conflict of law provisions. Merchant and Amazia agree to submit to
the personal and exclusive jurisdiction of the Superior Court of the
State of Florida for the Broward County. Amazia's
failure to exercise or enforce any right or provision of the GCSA
shall not constitute a waiver of such right or provision. If any
provision of the GCSA is found by a court of competent jurisdiction to
be invalid, the parties nevertheless agree that the court should
endeavor to give effect to the parties intentions as reflected in the
provision, and agree that the other provisions of the GCSA remain in
full force and effect. Merchant agrees that regardless of any statute
or law to the contrary, any claim or cause of action arising out of or
related to use of the Service or the GCSA must be filed within one (1)
year after such claim or cause of action arose, or be forever barred.
The section titles in the GCSA are for convenience only and have no
legal or contractual effect.
SPAM POLICY
Amazia's Gift Certificate Service License Agreement explicitly forbids spamming, or the sending of mass, unsolicited email. Any Amazia's Gift Certificate site that promotes itself by spamming will be shut down immediately.
Amazia's Gift Certificate Service defines spam as mass email sent to recipients who haven't requested email from you, and/or with a fake return address.
Amazia also reserves the right to apply a penalty to the spammers account. Such penalty amount can be minimum $250 with no maximum amount based on the damages suffered that jeopardizes Amazia operation.
If you're not sure if something constitutes spam, check with us first.
Spam is not just unethical. It is also very unintelligent. Professional marketers don't spam, because it doesn't work. Spamming merely labels your company as inexperienced and irresponsible. Who would order from a company like that?
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