WHEREAS KCENTRIC offers a turnkey ecommerce solution (also called k-eCommerce)
WHEREAS KCENTRIC has developed, owns and markets proprietary, Web-based, e-commerce solutions and offers web site hosting services on the Internet; and
WHEREAS the CUSTOMER wishes to make use of the e-commerce solutions and retain the web site hosting services of KCENTRIC; and
WHEREAS in consideration of the premises and the mutual covenants and agreements herein contained;
THE PARTIES (KCENTRIC AND THE CUSTOMER) AGREE AS FOLLOWS:
1. DEFINITIONS
A. “CUSTOMER’s Content” means any and all material developed, purchased, or otherwise acquired by CUSTOMER that is published, made available or otherwise used in conjunction with CUSTOMER’s Web Site. CUSTOMER’s Content includes, but is not limited to, end user data collected by CUSTOMER, and information regarding merchandise or services sold by CUSTOMER through its Web Site;
B. “Hosting” means providing storage for the Software, and content of CUSTOMER’s Web Site and make it available for end-users to access;
C. “Software” means the KCENTRIC eCommerce software, also called k-eCommerce, current release version, including any updates provided by KCENTRIC, and KCENTRIC’s proprietary technology and source code;
D. “KCENTRIC’s Content” means any and all material developed by KCENTRIC and made available for use by CUSTOMER, including any designing of CUSTOMER’s Web Site, and templates prepared by KCENTRIC for use by CUSTOMER;
E. “Web Site” means CUSTOMER’s Internet presence, identified by the domain name provided by CUSTOMER and owned by the CUSTOMER;
2. KCENTRIC OBLIGATIONSKCENTRIC is committed to providing the CUSTOMER with an e-commerce solution and providing storage for the Software, and content of CUSTOMER’s Web Site and make it available for end-users to access.
Except for the provision found in paragraph 13, KCENTRIC guarantees that the network will be available 99.93% of the time in a given month in return for the price indicated in paragraph 4.
3. TERMS AND TERMINATIONThe term of this k-eCommerce Service Contract shall begin on the Effective Date, and shall continue on a month to month basis, unless either Party gives the non-terminating Party Thirty (30) days notice of its election to terminate this Agreement.
In that case, the CUSTOMER request must be received in writing by email, mail or by fax to KCENTRIC with proof of reception.
4. FEES
A. Fees. In consideration of the Hosting services and k-eCommerce solution, CUSTOMER will pay to KCENTRIC all fees due according to the prices and terms published at www.k-ecommerce.com, as well as all taxes when applicable.
B. Extra Support fees. Since part of the solution can run on the CUSTOMER’s site (link to ERP, or Accounting solution), and KCENTRIC has no control over CUSTOMER setup, KCENTRIC can charge an hourly rate of $100 for each support call that is linked to the CUSTOMER setup. The KCENTRIC technician will inform the CUSTOMER if a fee applies or not before proceeding with the work
C. Change in Fees. KCENTRIC may change its fee schedules with sixty (60) days notice by postal mail, electronic mail, or by posting the information on KCENTRIC’s Web Site. Upon such notice, CUSTOMER shall have sixty (60) calendar days prior to the effective date of the fee schedule to notify KCENTRIC by certified postal mail should it not agree to such rate increase or that the CUSTOMER wishes to terminate this Agreement. No answer from the CUSTOMER is regarded as acceptance of the new fee schedule.
D. Invoicing and Payment: KCENTRIC will invoice CUSTOMER on a monthly basis for fees related to the use of the k-eCommerce solution, to hosting services and to support fees starting 30 days after presentation of the first draft of the web site design. All payments are due within fifteen (15) days after KCENTRIC submits its invoice (unless paid by credit card)). If a payment is returned or rejected by KCENTRIC’s bank, or incurs additional costs for KCENTRIC (e.g., bank fees) for any reason, then CUSTOMER shall pay a service fee of $50 and reimburse all such fees and costs incurred by KCENTRIC, and CUSTOMER shall be immediately deemed to be in default of this Agreement. Accounts not paid in full 30 days after KCENTRIC submits its invoice may have their service interrupted or terminated, but any interruption does not relieve CUSTOMER from the obligation to pay all fees due to KCENTRIC, including the monthly account charge. Accounts and all amounts in default are subject to a late payment charge of 2% per month, or the maximum amount permitted by law, whichever is less, until fully paid. If CUSTOMER defaults, CUSTOMER agrees to pay KCENTRIC its reasonable expenses, including attorney and collection agency fees, incurred in enforcing its rights
E. Taxes : All fees charged by KCENTRIC for the k-eCommerce solution and the Hosting Services are exclusive of all taxes. The CUSTOMER must pay any sales tax that applies to the k-eCommerce solution or the Hosting Services.
5. SUBLICENCECUSTOMER may not sublicense or resell any of KCENTRIC’s Software or Hosting Services to any third parties. CUSTOMER may not alienate, transfer and/or grant to any person or entity, all or part of their rights, duties or obligations under the present contract. Any attempts to do so would be considered a material breach and grounds for termination of this Contract.
Should the case arise, the CUSTOMER must pay KCENTRIC, as compensation, an amount equal to the CUSTOMER’s current monthly support fee multiplied by the number of months the contract has been in effect.
6. USE OF CUSTOMER’S NAME AND TRADEMARKS CUSTOMER hereby grants KCENTRIC a non-exclusive right to use CUSTOMER’s name and such of CUSTOMER’s trade names, trademarks, and service marks (collectively, “CUSTOMER’s Marks”) as are listed on CUSTOMER’s Content or otherwise provided to KCENTRIC in connection with this Agreement (a) on KCENTRIC’s own Web Sites, (b) in printed and online advertising, publicity, directories, newsletters, and updates describing KCENTRIC’s Services, and, (c) in applications reasonably necessary and ancillary to the foregoing. KCENTRIC will warn CUSTOMER prior to using the CUSTOMER’s Marks.
CUSTOMER may use KCENTRIC’s trade name, trademarks, and service marks (collectively, “KCENTRIC’s Marks”) in advertising and publicity in conjunction with the offering of CUSTOMER’s Content via KCENTRIC, provided that CUSTOMER shall submit copy to KCENTRIC for its prior written approval, and provided further that under no circumstances shall such use imply that KCENTRIC endorses, sponsors, certifies, approves or is responsible for CUSTOMER’s Content. Notwithstanding the foregoing, CUSTOMER need not obtain KCENTRIC’s prior written approval where use of KCENTRIC’s Marks is limited to inclusion in a list of systems via which CUSTOMER’s Content is available.
If the CUSTOMER DOES NOT grant KCENTRIC the right to use CUSTOMER’s Marks as are listed on CUSTOMER’s Content or otherwise provided to KCENTRIC in connection with this Agreement (a) on KCENTRIC’s own Web Sites, (b) in printed and online advertising, publicity, directories, newsletters, and updates describing KCENTRIC’s Services, and, (c) in applications reasonably necessary and ancillary to the foregoing, an additional monthly fee will be charged (based upon request).
7. ACCEPTABLE USE POLICIES (AUP)
A. Email policy. KCENTRIC has a Zero Tolerance Spam Policy.
B. Adult or law prohibited content. No adult content or law prohibited content should be copied on our servers.
C. In case of non-respect of the AUP. If the CUSTOMER is caught not respecting the AUP section, it will terminate this Agreement. Termination fees will apply based on the paragraph 5.
8. SECURITY CUSTOMER acknowledges that the Internet is not a secure or completely reliable system, and that the purpose of the Hosting Services is to allow end users easy access to CUSTOMER’s Content. KCENTRIC will take those precautions KCENTRIC deems reasonable in its sole discretion to secure CUSTOMER’s Web Site from attack, but KCENTRIC makes no warranty that there will be no outages or interruptions of service, or that CUSTOMER’s Content will be secure against attack of any form by end users or other third parties
9. CUSTOMER’S CONTENT A. Ownership of Content. CUSTOMER acknowledges and agrees that (a) unless expressly stated elsewhere, KCENTRIC has no proprietary, financial, or other interest in CUSTOMER’s Content; (b) KCENTRIC does not, by virtue of offering or hosting CUSTOMER’s Content, edit, distribute, market, sublicense, publish, or otherwise provide CUSTOMER’s Content to end users; and (c) CUSTOMER is solely responsible for the information, data, graphics, text, quality, performance, and all other aspects of its Content. CUSTOMER warrants that it owns or has the right to use and offer the Content in connection with CUSTOMER’s Marks in the manner in which such Content is offered and will be offered by CUSTOMER during the term of this Agreement.
B. Protection of Content. CUSTOMER acknowledges and agrees that CUSTOMER is solely responsible for ensuring the integrity of its Content. Although KCENTRIC provides data backup services, CUSTOMER is advised that KCENTRIC in no way is responsible for any damages resulting from the loss of CUSTOMER’s Content, regardless of the reason for such loss. CUSTOMER is solely responsible for backing-up/archiving CUSTOMER’s Content.
10. KCENTRIC CONTENT Upon payment of any fees charged for the development of KCENTRIC’s Content, KCENTRIC hereby provides CUSTOMER with a non-exclusive, royalty-free, irrevocable, non-supported license to use KCENTRIC’s Content as part of CUSTOMER’s Web Site. CUSTOMER agrees to maintain a hyperlink to "http://www.k-ecommerce.com" at the bottom of the website.
If the CUSTOMER does not agree to maintain a hyperlink to "http://www.k-ecommerce.com" at the bottom of the website, an additional monthly fee will be charged (based upon request).
KCENTRIC owns the intellectual property of the solution. However, the CUSTOMER can request KCENTRIC sign an agreement that places the k-eCommerce source codes in trust at Notaire-Direct Inc.. CUSTOMER will pay all fees associated to the trust, including those of KCENTRIC.
11. CUSTOMER'S INDEMNIFICATION CUSTOMER shall indemnify and hold harmless KCENTRIC from and against any and all claims, demands, actions, causes of action, suits, proceedings, losses, damages, costs, and expenses, including reasonable attorneys fees, arising from or relating to CUSTOMER's provision, or an end user's use, of CUSTOMER's Content, or any act, error, or omission of CUSTOMER in connection therewith, including but not limited to matters relating to incorrect, incomplete, or misleading information; libel; invasion of privacy; infringement of a copyright, trade name, trademark, service mark, or other intellectual property or other right; or violation of any applicable law.
12. DISCLAIMER OF WARRANTIES THE FOREGOING WARRANTIES ARE MADE IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. THE SOFTWARE AND HOSTING SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND KCENTRIC NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR KCENTRIC ANY OTHER LIABILITY IN CONNECTION WITH ANY SOFTWARE OR HOSTING SERVICES PROVIDED UNDER THIS AGREEMENT.
13. LIMITATION OF LIABILITY KCENTRIC ASSUMES NO RESPONSIBILITY WITH RESPECT TO CUSTOMER'S OR END USER'S USE OF THE SOFTWARE OR HOSTING SERVICES AND SHALL NOT BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, AND SPECIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF USE, BUSINESS INTERRUPTIONS, AND LOSS OF PROFITS, OR INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, EVEN IF KCENTRIC IS AWARE OF THE POSSIBILITY THEREOF. KCENTRIC SHALL IN NO EVENT BE LIABLE FOR MORE THAN THE TOTAL FEES ACTUALLY RECEIVED BY IT FROM CUSTOMER FOR THE SERVICES DURING ANY 1-MONTH PERIOD.
14. MISCELLANEOUS The laws of the Province of Quebec shall govern the validity and construction of this Agreement.