The QuickCart service (" Store" or the "Service"), owned and operated by
Online Corporation of America (D.B.A.: QuickCart) is provided to you ("you"
or "Merchant") under the terms and conditions of this QuickCart Merchant
Service Agreement and any amendments thereto and any operating rules or
policies (collectively, the "MSA" or "Agreement"). QuickCart reserves the
right, in its sole discretion, to change, modify, add or remove all or part
of the MSA 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 MSA, 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,
QuickCart has the right to terminate Merchant's 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 MSA. Nothing in this agreement obligates
QuickCart or the Service to list, link to, accept or otherwise host any online
store anywhere on the QuickCart 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 QUICKCART SERVICE
QuickCart hosts interactive online stores ("Store") on the World Wide Web
and may provide Merchants with, among other things, (i) access to its QuickCart
Software ("Software") to facilitate the creation and maintenance of Stores
for the sale of goods and services.
3.0 MERCHANT'S OBLIGATIONS
3.1 Merchant acknowledges and agrees that it shall be responsible for all
goods and services offered at Merchant's 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
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 agrees that any and all press releases and other public announcements
related to this Agreement and subsequent transactions between QuickCart and
Merchant, including the method and timing of such announcements, must be
approved in advance by QuickCart in writing. QuickCart reserves the right
to withhold approval of any public announcement in its sole discretion.
Without limitation, any breach of Merchant's obligation regarding public
announcements shall be a material breach of the MSA.
3.1.3 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
* 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.
3.1.4 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
3.2 QuickCart 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) has 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 MSA.
4.0 PROPRIETARY RIGHTS
4.1 Software License. QuickCart hereby grants Merchant a non-exclusive,
nontransferable license to use the Software in object code form only on
a server controlled by QuickCart 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 QuickCart.
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 QuickCart
without QuickCart'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 QuickCart does not commit to support any
particular browsing platform. QuickCart 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 Merchant's ability to conduct business,
Merchant's sole remedy is to terminate the MSA pursuant to Section 7.1 regarding
termination of service.
4.2 QuickCart Intellectual Property. Merchant acknowledges and agrees that
content available from QuickCart 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 QuickCart, and its successors and assigns, a non-exclusive, worldwide,
royalty-free, perpetual, non-revocable license under Merchant's copyrights
and other intellectual property rights, if any, in all material and content
displayed in Merchant's Store to use, distribute, display, reproduce, and
create derivative works from such material in any and all media and display
in any manner and on any QuickCart property the results of search queries
and comparisons conducted on QuickCart, including, without limitation, searches
conducted on QuickCart Shopping and the Service. Merchant also grants QuickCart
the right to maintain such content on QuickCart's servers during the term
of the MSA 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 QuickCart.
5.1 Merchant shall pay QuickCart a fee as setforth in the QuickCart fee
schedule. All such fees are payable in U.S. dollars to QuickCart and shall
be charged on the first day of each month to the credit card number given
to QuickCart at the time of registration or to such other credit card number
which Merchant shall so designate. QuickCart may also, up on 30 days prior
notice to Merchant, alter its fee schedules and terms of the MSA.
5.2 All fees are payable in U.S. dollars. Late payments shall bear interest
at the rate of fifteen percent (15%) per month (or the highest rate permitted
by law, if less). In the event of any failure by Merchant to make payment,
Merchant shall be responsible for all reasonable expenses (including attorneys
fees) incurred by QuickCart in collecting such amounts.
6.1 Term. The term of the MSA shall be 90, 180 and 365 days commencing on
the date that Merchant opens an account for Merchant's Store. The term shall
be renewed by the Merchant for successive monthly periods at renewal rates
applicable at the time, 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 MSA. QuickCart shall have the right, but not
the obligation, to review any Store for compliance with the MSA as part
of the renewal process, or at any time.
7.1 Termination. Either party may terminate the MSA on thirty (30) days
notice if the other party has materially breached or is otherwise not in
compliance with any provision of the MSA, and such breach or noncompliance
is not cured within such thirty (30) day period. QuickCart 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,
QuickCart may, but has no duty to, immediately terminate Merchant and remove
it from QuickCart servers if QuickCart 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 QuickCart 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, QuickCart reserves the right
to delete from its servers any and all information contained in Merchant's
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.
8.0 MERCHANT PRIVACY
8.1 Merchant Information. QuickCart maintains information about Merchant
and the Store on QuickCart servers, including but not limited to Merchant's
account registration information, Merchant's customer order information,
sales information, and clickstream data ("Merchant Information"). Merchant
agrees that QuickCart may use Merchant Information in aggregate form (i.e.,
Merchant Information is not individually attributable to the Merchant) for
marketing or other promotional purposes.
8.1.1 Merchant agrees that QuickCart 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 MSA;
(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 QuickCart, QuickCart or others; provided, however, that nothing
in this section shall impose a duty on QuickCart to make any such disclosures.
8.1.2 Merchant agrees that QuickCart will not collect any customer credit
card information and may delete all other Merchant Information from QuickCart
servers one month after service is terminated.
8.2 Password. Merchant shall receive a password from QuickCart 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 Merchant's
account and password. Merchant agrees to keep its password confidential,
to allow no other person or company to use its account, and to notify QuickCart
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 QuickCart may access Merchant's account and its contents as necessary
to identify or resolve technical problems or respond to complaints about
in its Merchant Store that, at a minimum, discloses any and all uses of
personal information collected from users by Merchant; (b) to include in
describes QuickCart's collection and use of Merchant's customer information,
page of the Merchant Store and on all pages where Merchant collects personal
information from users [including, but not limited to, all check out pages];
and (d) to use personal information only as expressly permitted by Merchant's
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 firstname.lastname@example.org
QuickCart 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.
Merchant agrees to indemnify and hold harmless QuickCart, 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 Merchant's conduct, Merchant's
use of the Service, the goods or services offered at Merchant's Store, any
alleged violation of the MSA, or any alleged violation of any rights of
another, including but not limited to Merchant's use of any content, trademarks,
service marks, trade names, copyrighted or patented material, or other intellectual
property used in connection with Merchant's Store. QuickCart 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 Merchant's indemnity obligations.
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. QuickCart, 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 QuickCart IS AWARE OF THE RISK OF SUCH DAMAGES, THAT RESULT IN ANY
WAY FROM MERCHANT's 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. QuickCart's LIABILITY TO MERCHANT SHALL NOT,
FOR ANY REASON, EXCEED THE AGGREGATE PAYMENTS ACTUALLY MADE BY MERCHANT
TO QuickCart 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 MSA without the express written authorization of
13.0 FORCE MAJEURE
Neither party shall be liable to the other for any delay or failure in performance
under the MSA resulting directly or indirectly from acts of nature or causes
beyond its reasonable control.
Any notices or communications under the MSA 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 QuickCart, such notices shall be addressed to email@example.com or
If to Merchant, such notices shall be addressed to the electronic or mailing
address specified when Merchant opens an account with QuickCart, or such
other address as either party may give the other by notice as provided above.
15.0 ENTIRE AGREEMENT
The MSA 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.
The MSA and the relationship between Merchant and QuickCart shall be governed
by the laws of the state of Pennsylvania without regard to its conflict
of law provisions. Merchant and QuickCart agree to submit to the personal
and exclusive jurisdiction of the Superior Court of the State of Pennsylvania..
QuickCart's failure to exercise or enforce any right or provision of the
MSA shall not constitute a waiver of such right or provision. If any provision
of the MSA 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 MSA 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
MSA must be filed within one (1) year after such claim or cause of action
arose, or be forever barred. The section titles in the MSA are for convenience
only and have no legal or contractual effect.