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Master Subscription Agreement
In consideration of the following promises and covenants you (Client) and Nexternal Solutions Inc. (NSI) hereby agree as follows:
1. NSI Product
Subject to the terms and conditions described herein, NSI shall provide to Client a web-based electronic commerce application (the "Product") that will permit Client to display and sell products online. Notwithstanding NSI's right to make upgrades and changes to the Product at its sole discretion, Client agrees to accept the Product "as is", and no section of this Agreement shall be contingent upon any upgrade or change to the Product. Furthermore, notwithstanding NSI's support obligations of Section 3, Client is responsible for understanding the features, capabilities, and limitations of the Product, and no section of this Agreement shall be contingent upon Client's understanding of the Product, or lack thereof. All software and hardware comprising the Product shall be provided by NSI at a location of its choice. The Product is deemed created on the date this Agreement is accepted by Client.
2. Term of Agreement
Notwithstanding the provisions of Sections 8 and 11, this Agreement shall continue indefinitely until it is terminated by either or both parties. This Agreement may be terminated, without cause, at any time by NSI upon sixty (60) days' written notice to Client. Client may terminate this Agreement at any time by executing NSI's Account Termination Agreement, to be provided by NSI to Client upon request. Notwithstanding the termination of this Agreement by either party, all fees earned by NSI pursuant to this Agreement shall remain due and payable by Client through the date of termination.
NSI has designed the Product to require minimal support of Client personnel to operate, maintain, and modify the Product. Should Client personnel require assistance in regards to the Product, they may pose such questions via the electronic help desk in the Product or by calling an NSI representative for telephone support.
4. Proprietary Intellectual Property
5. Security of Transactions
NSI has made a substantial effort (and will continue to make such efforts) to provide Client with a Product that will maintain Client's data integrity and privacy as well as the privacy and other rights of Client's consumers and other purchasers by, among other things, using Secure Socket Layer technology. NSI is responsible for the security of Cardholder Information in compliance with the PCI DSS that NSI possesses, controls or otherwise stores, processes or transmits on behalf of Client using the Product. "CARDHOLDER INFORMATION" MEANS individual numbers used to identify credit and debit card accounts and other personally identifiable information relating to the use of such credit and debit card accounts to purchase Client products using the Products. "PCI DSS" means the Payment Card Industry Data Security Standard promulgated by the PCI Security Standards Council.
Client acknowledges that conducting business on the internet through use of the Product poses certain security risks, known and unknown, that are beyond the control of NSI. Client acknowledges and agrees to hold NSI harmless from and against any and all liability occasioned by the criminal or other tortuous actions of third parties against Client, NSI, the Product, or the data maintained by the Product.
6. Client Representations
Client warrants, at all times during the performance of this Agreement, that:
a. Client is solely responsible for the content of the merchandise catalog, customer list, and order information, including any input errors in introducing any data to the Product;
b. All merchandise sold by using the Product is the legal property of Client, does not infringe upon the intellectual property or other rights of any third party, and is legal to sell to each customer and in each jurisdiction in which such merchandise is sold or delivered;
c. All fonts used on Client's website are being used pursuant to a valid paid subscription or other written permission if required by law. Such font use does not infringe upon the intellectual property or other rights of any third party, and Client has the right to grant permission to NSI to use all such fonts on its servers as a part of a site sync for Client (such permission to be granted by implication when Client presents a site for sync that contains fonts which require third-party permission for use);
d. Client is solely responsible for determining the applicability of state and local sales taxes, tariffs, and import/export fees to each sales transaction;
e. Client will, at all times, accurately track the status of all orders with the Product, and mark as shipped all merchandise actually shipped to, delivered to, or otherwise received by a purchaser within two (2) business days of the date of shipment, delivery, or receipt (whichever is earlier);
f. Client will, at all times, comply with all applicable laws and regulations with respect to its activities under this agreement including without limitation the sale of its products and services using the Product; and
g. Client will, at all times, obtain and maintain all necessary licenses, consents, and permissions necessary for Client, its contractors and agents to perform their obligations under this agreement or required to conduct its business activities, including without limitation the sale and distribution of its products and processing of related transactions utilizing the Product.
Client agrees to indemnify and save/hold NSI harmless from and against any and all losses, damages, costs, claims, attorney fees and liabilities of whatever nature resulting from or arising out of or in connection with Client's breach of any of the warranties set forth in this Section 6.
7. Limitation of Liability
NSI has made a substantial effort (and will continue to make such efforts) to provide a stable, functioning Product for use by Client. Despite NSI's efforts, certain disruptions in the provision of the Product to Client may occur due to third party acts, hardware or software failure, or acts of God. Client agrees to indemnify and save/hold NSI harmless from and against any and all losses, damages, costs, claims, attorney fees and liabilities of whatever nature, and specifically including lost profits, resulting from or arising out of or in connection with the performance or nonperformance of any obligation of NSI, including the Product. It is understood that this indemnity provision will apply even if such indemnified claims were caused in whole or in part by any act, omission, negligence, or product defect (arising from negligence) of any type occasioned by NSI or any third party. It is the intention of Client and NSI that this indemnity shall survive the execution of this Agreement and shall not require payment as condition precedent to recovery.
An Event of Default is defined as the occurrence of one or more of the following: (a) Client fails to pay the Setup Fee within thirty (30) days of the due date, (b) Client fails to pay any other fee due NSI within sixty (60) days of the due date, (c) Client breaches the terms and/or conditions of the Agreement, (d) Client expresses a clear and unambiguous intent to violate the terms and/or conditions of this Agreement (including, but not limited to, an express refusal to pay any fee due NSI under this Agreement) or otherwise exhibits bad faith with respect to this Agreement, (e) it is determined by NSI or Client that the person who accepted the agreement on behalf of Client was not authorized to do so as outlined in Section 14, or (f) Client becomes a debtor in a bankruptcy proceeding or has all or substantially all of its assets seized by creditors. Should an Event of Default occur, NSI, at its sole option, may immediately terminate this Agreement, with cause, and may opt to turn Client debt over to a collection agency if permitted by law.
NSI reserves the right to limit Client's access to the Product or take other reasonable measures to collect payment should any fee due NSI remain unpaid past the due date, even if an Event of Default has not occurred.
9. Enforcement of Agreement
This Agreement shall be governed by and construed in accordance with the laws of the state of California without regard to its conflict of law principles. Should either party hereto, or any heir, personal representative or assign of either party hereto, resort to legal proceedings in connection with either this Agreement or in any other manner concerning NSI's relationship with Client, the party prevailing in such legal proceedings shall be entitled, in addition to such other relief as may be granted, to recover its reasonable attorney's fees and costs. Additionally, Jurisdiction and venue shall be solely in the State or Federal Courts situated in the Courts of San Diego County or the Southern District of California. By this Agreement, Client expressly consents to personal jurisdiction in said courts.
10. Entire Agreement
Notwithstanding the provisions of Section 11, this Agreement contains the entire agreement and understanding between the parties hereto and supersedes any prior or contemporaneous written or oral agreements, representations and warranties between them respecting the subject matter hereof. If any terms, provisions, covenants or conditions of this Agreement, or the application thereof to any person, place or circumstance, shall be deemed to be invalid, unenforceable or void, the remainder of this Agreement and such terms, provisions, covenants or conditions as applied to other persons, places and circumstances shall remain in full force and effect.
NSI retains the sole right to issue Amendments to this Agreement upon thirty (30) days' written notice to Client. Such Amendments shall become part of this Agreement, in full force and effect. upon expiration of the thirty (30) day notice period.
12. Confidential Information
NSI hereby acknowledges that it may receive confidential or proprietary information of Client, including, without limitation, information relating to Consumers, sales, pricing, advertising, business information (sales and marketing research, materials, plans and the like) and other information obtained from or relating to Client or Consumers ("Confidential Information"). Confidential Information does not, however, include: (i) information already known or independently developed by NSI; (ii) information in the public domain through no wrongful act of NSI; or (iii) information received by NSI from a third party other than Client who was free to disclose such information. NSI hereby agrees that during the term of this Agreement and at all times thereafter it shall maintain such Confidential information in confidence and shall not use, commercialize, publish, transfer, report or disclose such Confidential Information to any person or entity, except: (i) as required by law; (ii) to its own employees having a "need to know" (and who are themselves bound by similar nondisclosure restrictions), and (iii) to such other recipients as Client may approve in writing; provided that all such other recipients shall have first executed a confidentiality Agreement in a form acceptable to Client. NSI shall use at least the same degree of care in safeguarding Client's Confidential Information as it uses in safeguarding its own confidential information.
NSI has designed the Product to provide various means for Client to send electronic mail messages. Client warrants, at all times, that it will not utilize Product to engage in abusive tactics or unethical behavior with regard to electronic mail ("Spamming"), including, but not limited to, the following types of conduct:
a. transmitting data in any manner that violates a State or Federal law, rule, or regulation against Spamming or other prohibited communications, regardless of how such law defines Spamming or other such prohibited activity;
b. sending electronic mail messages that threaten harm to person or property, or which result in harassment of the recipient;
c. sending electronic mail messages to recipients who did not voluntarily provide an electronic mail address to Client;
d. falsifying or forging electronic mail header information.
14. Authorized Representative
The person accepting this agreement attests that he or she is authorized to do so on behalf of Client. Should it be determined that he/she has accepted the agreement without authorization, he/she shall be personally liable for any and all outstanding fees, and such determination shall be considered an Event of Default as defined in Section 8.