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INKSOFT.COM TERMS OF USE

(Last Revised: October 1, 2018)

  1. YOUR ACCEPTANCE

Please read these Terms of Use (“Terms”), including the binding arbitration provision contained in Section 15, carefully before accessing or using any part of any of the websites of InkSoft, Inc. (“InkSoft”, “we”, “us”, or “our”). By accessing, browsing, or using this website, or any websites located via stores.inksoft.com, you acknowledge that you have read, understood, and agree to be bound by these Terms, as amended from time to time, as well as our Privacy Policy and Shop User Agreement, if applicable to you (which are incorporated herein by reference). If you do not agree with these Terms, you are not authorized to use this website or any website located via stores.inksoft.com (each, a “Shop Site” and collectively the “Website”). These Terms govern your use of the Website, any content (such as information, software, text, displays, data, images, and audio content) that InkSoft may make available through the Website (“Content”) and any services that InkSoft may provide through the Website (the “Services”). The Website, Content, and Services shall be referred to collectively as the “Site” or the “InkSoft Site”.   The terms Site and Inksoft Site include any “Shop Site”, which means any website or other medium generated by the Services in order to facilitate the Services, including any Site to which content may be uploaded or created by Users.  

This Site provides information about InkSoft and our products and services, and/or the means to use our Services. If you are dissatisfied with the Site, your sole and exclusive remedy is to discontinue use of the Site.  

These Terms apply to (i) those users who browse any of our Sites (“Browsing Users”), (ii) print shops or other creators of customized goods whom have purchased the right to use our software and services (“Shop Users”), (iii) organizations, other groups or any individual that creates an InkSoft Shop Site through one of the Shop Users (“Organizational Users”), and (iv) those individuals who view one or more specific Shop Sites created by an Organizational User (“Purchaser Users”, and collectively with the Browsing Users, Shop Users, and Organizational Users, the “Users”).   Unless expressly provided herein, these Terms apply to all Users.   In addition to these Terms, the terms of the Shop User Agreement located in Exhibit A applies to all Shop Users.

InkSoft is a provider of Software and Services.  Any products you purchase through any Site will be made pursuant and subject to one or more agreements with a Shop User and/or Organizational User.  

We reserve the right to revise these Terms or change or remove features of the Site at any time. For example, we may add or remove functionality or features, and we may suspend or stop a particular feature altogether.  We also reserve the right to charge a fee  or increase an existing fee for any of our features at any time.  If you do not approve of any such changes, you can stop using the Site at any time.  We will notify you of any material change to these Terms by updating the “Last Revised” date at the top of this page. Your continued use of the Site means that you accept and agree to be bound by the revised Terms.

Additional or different terms, conditions, or notices may apply to services offered through the Site or to specific materials, information, products, or software available through the Site. In general, additional terms will supplement these Terms.  In the event of any conflict, such additional or different terms, conditions, and notices will prevail over these Terms.

  1. GRANT OF RIGHTS

InkSoft hereby grants you a limited, non-exclusive and revocable license to use the Site as set forth in these Terms (the “License”), provided that (a) you will not copy or distribute any part of any Site in any medium without InkSoft’s prior written consent; (b) you will not alter or modify any part of any Site except and permitted by and only as may be reasonably necessary to use the Site for its intended purpose; and (c) you will otherwise comply with all of the provisions of these Terms.  InkSoft reserves all rights not expressly granted by these Terms.

In the event that InkSoft provides for the download of any InkSoft software (“InkSoft Software”) it will be provided under the License and not sold to you even if you install it on any mobile or other computing device (“Devices”). Any third party or open source software (“Third Party Software”) provided to you or included in the Site is protected by the applicable copyright, patent, or other intellectual property rights of the third party licensor and any use of such Third Party Software is subject to the terms of the applicable terms of use and privacy policies.

  1. ACCOUNTS

You may be required to create an account and specify a password in order to use certain services or features on the Site, including but not limited to purchasing a license to use our software as a Shop User.  To create an account, you must be at least 18 years old and you must provide truthful, accurate and complete information about yourself.  You must only create an account for yourself and not for any other individual.  If your information changes at any time, please update your account with the different or additional information.  If we suspect that your account information may be untrue, incomplete or inaccurate, or that you have otherwise violated these Terms, your account may be subject to suspension or termination, and you may be barred from using any or all Sites.

You may not share your account with anyone else.  Please keep your password confidential, secure and unique (not used on other websites).  If you believe your account has been compromised at any time, please notify InkSoft and/or your system administrator, if any.

You are solely responsible for the activity that occurs on your account, including the activities of others and regardless of whether such activities are authorized.  

  1. PERMITTED USE; RESTRICTIONS ON USE

You agree to use the Site only for lawful purposes. The Site is made available for your personal, non-commercial use, except as otherwise expressly authorized by InkSoft in writing. You agree to abide by any posted limitations relating to use, reproduction, or dissemination of the Site. Any use of the Site in any way not expressly permitted by these Terms or otherwise in a writing signed by InkSoft is prohibited, and may be actionable under the law.

The Site is controlled within the United States of America. Those who choose to access the Site from locations outside of the United States do so on their own initiative, and are responsible for compliance with local laws if and to the extent local laws are applicable. InkSoft does not represent that the use of the Site is appropriate outside the United States of America. InkSoft reserves the right to limit the availability of the Site for any person, geographic area, or jurisdiction at any time, in its sole discretion.  See also Section 9 of these Terms regarding Users located in and/or personal data originating in the European Union.

In consideration of your use of the Site, you represent that you are of an age to form a legal binding contract and you are not prohibited from receiving the Services under the laws of the United States or any other applicable jurisdiction.  The Site is directed to persons 18 years of age or older. InkSoft and the Site do not knowingly collect information from children under age 18. If you are under age 13, you are not permitted to use the Site or to submit any personally identifiable information to the Site. If you provide information to InkSoft through the Site, you represent and warrant that you are 18 years of age or older. If you are between 13 and 17 years of age, you may visit, browse, and use the information on the Site, but you may not submit any personal information to the Site, and you represent and warrant to InkSoft that you have the permission of your parent or guardian to use the Site and that your parent or guardian agrees to these Terms on your behalf.

You agree not to do any of the following: (1) upload to or transmit on the Site any defamatory, indecent, obscene, harassing, violent, or otherwise objectionable material, or any material that is, or may be, protected by copyright, without appropriate permission from the copyright owner; (2) use the Site to violate the legal rights (including the rights of publicity and privacy) of others or to violate the laws of any jurisdiction; (3) intercept or attempt to intercept any electronic message not intended for you; (4) misrepresent an affiliation with any person or organization; (5) upload to or transmit on the Site any advertisements or solicitations of business; (6) restrict or inhibit use of the Site by others; (7) upload or otherwise transmit files that contain a virus or corrupted data; (8) collect information about others (including email addresses and other personally identifiable information) without their consent; (9) download a file or software or include in a message any software, files, or links that you know, or have reason to believe, cannot be distributed legally over the Site or that you have a contractual obligation to keep confidential (notwithstanding its availability on the Site); (10) post “spam”, transmit chain letters, or engage in other similar activities; or (11) engage in any other conduct that restricts or inhibits anyone’s use of the Site, or which, as determined by InkSoft, may harm InkSoft, Users or expose them to liability.

Any content, art work, images, other material and/or opinions uploaded, expressed, or submitted to any publicly available section of the Site (including password-protected areas), and all articles and responses to questions in such publicly available sections of the Site (collectively, “Content”), other than the content provided by InkSoft, are solely the Content, opinions, and responsibility of the person or entity submitting them and do not necessarily reflect the opinions of InkSoft. You understand and acknowledge that you are responsible for whatever Content you submit, and you, not InkSoft, have full responsibility for such Content, including its legality, reliability, and appropriateness.

By uploading or otherwise transmitting Content to InkSoft in any manner, including posting to a publicly available area of the InkSoft Site, you warrant the Content either (i) is your own; (ii) is in the public domain, (iii) you have the right to use such Content; or (iv) the Content is otherwise free of proprietary or other intellectual property restrictions of any kind; and that you have the right to submit it or post it to the InkSoft Site and grant InkSoft the rights set forth herein.

You understand that any postings, or Content submitted for posting, to publicly available portions of the InkSoft Site are non-confidential for all purposes. Except as otherwise specified by InkSoft at the time of submission, you grant to InkSoft, as well as Inksoft’s agents, licensees, and assigns an irrevocable, perpetual, transferable, royalty-free, sublicensable, non-exclusive right, license and permission to use, reproduce, encode, store, copy, transmit, publish, post, broadcast, display, publicly perform, adapt, and/or display  all Content submitted to InkSoft in any manner InkSoft chooses, in any format whatsoever, including incorporating it into other material or making a derivative work based on it.  You further agree that InkSoft may sell such Content for the benefit of Shop Users, make modifications to such Content, and Shop Users may legally make and sell merchandise containing your Content without making payment to you or any other party or obtaining permission from you or any other party.  You also grant us the right to display your Content as an example on our own Website.  Without those rights, we couldn’t offer our Services.  Please be advised that the license and rights hereby granted to InkSoft continues even if you stop using our Site.  

You agree to indemnify, release and hold InkSoft harmless from any and all liability, claims, actions, loss, harm, damage, injury, cost or expense arising out of any Content you post (collectively, “Content Claims”).  In addition, Shop Users agree to indemnify, release and hold InkSoft harmless from any Content Claims arising from the actions of Organizational Users that use a Shop Site or the Services generally.

InkSoft reserves the right, but does not assume any responsibility, to (1) remove any material posted on the Site that InkSoft, in its sole discretion, deems inconsistent with the foregoing commitments, including any material InkSoft has been notified, or has reason to believe, constitutes a copyright or trademark infringement; and (2) terminate any User’s access to all or part of the Site. However, InkSoft can neither review all material before it is posted on the Site nor ensure prompt removal of objectionable material after it has been posted. Accordingly, InkSoft assumes no liability for any action or inaction regarding transmissions, communications, or content provided by third parties. InkSoft reserves the right to take any action it deems necessary to protect the personal safety of Users of this Site and the public; however, InkSoft has no liability or responsibility to anyone for performance or nonperformance of the activities described in this paragraph.

We are not responsible for, and do not endorse, Content posted by any other Person.   Accordingly, we may not be held liable, directly or indirectly, for any loss or damage caused to you in connection with any Content posted by a third party.  

Your failure to comply with the provisions above may result in the termination of your access to the InkSoft Site and may expose you to civil and/or criminal liability.

  1. INTELLECTUAL PROPERTY

At Inksoft, we respect the intellectual property rights of others and we expect our Users to do the same.  If you believe any Content infringes upon your copyrights, please follow the steps outlined in Inksoft’s DMCA Policy.

  1. COPYRIGHT RESTRICTIONS; USE OF CONTENT

The entire contents of the Site (including all Content) and the design, selection, and arrangement thereof, are proprietary to InkSoft or its licensors and are protected by United States and international laws regarding copyrights, trademarks, trade secrets, and other proprietary rights. You are authorized only to use the content on the InkSoft Site for personal use or legitimate business purposes. You may not copy, modify, create derivative works of, publicly display or perform, republish, store, transmit, or distribute any of the material on this site, except as necessary to view the Site or with the prior written consent of InkSoft. InkSoft reserves all right, title, and interest in and to any of its information, material, Content, Software, or Services on this Site. Except as expressly authorized by InkSoft in writing, you may not reproduce, sell, or exploit for any commercial purposes (a) any part of this Site, (b) access to this Site, or (c) use of this Site or of any Services, Software, or Content available through this Site.

  1. TRADEMARKS

INKSOFT® is a registered trademark of InkSoft. The term “InkSoft”, the InkSoft logo, and all related names, logos, product and service names, designs and slogans are service marks of InkSoft. You may not use such marks without the prior written permission of InkSoft for any purpose, including, without limitation, in any advertising or publicity, or otherwise to indicate InkSoft’s sponsorship of or affiliation with any product or service. All other names, brands, and marks are used for identification purposes only and may be the service marks, trademarks, or registered trademarks of their respective owners.

  1. ONLINE TRANSACTIONS/STRIPE

Any transaction engaged in by any User through the Site is governed by these Terms and the specific terms and conditions for such transaction, as specified by InkSoft.

We may add or change processors at any time.  Currently, InkSoft uses Stripe as its third-party payment processor.  Your use of the payment services provided by Stripe are subject to the Stripe Checkout User Terms of Service (“Stripe Terms”), which can be found here: https://stripe.com/us/checkout/legal.  You understand that all monetary transactions made through your use of the Service are subject to any fees Stripe may charge.

  1. UNITED STATES BASED CUSTOMERS

The Site is intended for the User’s located in the United States.  You represent and warrant that you are not located in the European Union, will not cause InkSoft to process personal data or monitor behavior which originates in the European Union, and will not otherwise subject InkSoft to regulation under the General Data Protection Regulation of the European Union (“GDPR”).  

  1. LINKS TO OTHER SITES; DEALINGS WITH THIRD PARTIES

Links to third party web sites are provided solely for your convenience. InkSoft is not responsible for; does not control; does not endorse the content, products, services, or practices of; and does not make any representations regarding the quality, content, or accuracy of any third party web sites. Your use of third party web sites is at your own risk and subject to the terms and conditions of use and privacy policies for such web sites.

 If you choose to correspond, participate in a promotion, or engage in transactions with any other organization or business found on or through this Site, including, without limitation, any of our partners and/or affiliates, or any Shop User or Organizational User, you acknowledge and agree that InkSoft is not a party to, and will not be responsible for, your interaction with such organization or business, including its treatment of your information and the terms and conditions applicable to any transaction between you and such third party. The terms of your interaction with any third party are solely between you and such third party. You agree that InkSoft will have no responsibility or liability for any loss or damage of any kind that you may suffer as the result of any such interaction or the presence of such organizations or businesses on this Site.

  1. LIABILITY OF INKSOFT AND ITS TRUSTEES

InkSoft and its officers, directors, employees, and agents do not assume any liability for Content on or available through the Site. Reliance on the Content is solely at your own risk. InkSoft and its officers, directors, employees, and agents disclaim any liability for injury or damages resulting from the use of any Content.

THE SITE, CONTENT, SERVICES, AND PRODUCTS PROVIDED ON OR AVAILABLE THROUGH THIS SITE OR OTHERWISE THROUGH INKSOFT OR ANY SHOP USER ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. NEITHER INKSOFT NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, NOR ANY PERSON ASSOCIATED WITH INKSOFT OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE QUALITY, ACCURACY, OR AVAILABILITY OF THE SITE, CONTENT, OR SERVICES. SPECIFICALLY, BUT WITHOUT LIMITING THE FOREGOING, NEITHER INKSOFT, NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, NOR ANY PERSON ASSOCIATED WITH INKSOFT OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, WARRANTS OR REPRESENTS THAT THE SITE, CONTENT, OR SERVICES WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; THAT THE SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR THAT THE SITE, CONTENT OR SERVICES WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS. INKSOFT DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.

IN PARTICULAR AND WITHOUT LIMITING THE FOREGOING OR THE FOLLOWING, INKSOFT DOES NOT REPRESENT OR WARRANT THAT ANY COLORS, FONTS, OR OTHER DEPICTION OR IMAGE ON ANY SITE OR ANY INPUT WILL BE IDENTICAL OR SIMILAR TO END PRODUCTS/OUTPUTS CREATED BY ANY SHOP USER.   USERS ARE HEREBY CAUTIONED THAT THE APPEARANCE OF PRODUCTS ON THE SITES MAY DIFFER, SOMETIMES SIGNIFICANTLY, FROM ACTUAL PRODUCTS PRODUCED AND/OR RECEIVED.  

INKSOFT MAKES NO REPRESENTATIONS OF WARRANTY AS TO THE PRODUCTS OF ANY SHOP USERS, OR THAT SHOP USERS WILL BE ABLE TO CREATE OR PRINT ANY PARTICULAR CONTENT UPLOADED ONTO ANY SITE.  

IN NO EVENT WILL INKSOFT OR ITS LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS OR ANY PERSON ASSOCIATED THEREWITH, BE LIABLE FOR ANY DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF, OR INABILITY TO USE, THE SITE, CONTENT, SERVICES OR ANY LINKED SITE, INCLUDING ANY:

  • DIRECT,
  • INDIRECT,
  • INCIDENTAL,
  • SPECIAL,
  • CONSEQUENTIAL, OR
  • PUNITIVE DAMAGES,

INCLUDING, BUT NOT LIMITED TO, THOSE ARISING FROM ANY PERSONAL INJURY, LOST PROFITS, OR DAMAGES RESULTING FROM:

  • DELAY,
  • COMPUTER FAILURE,
  • INTERRUPTION IN SERVICE,
  • LOSS OF DATA,
  • VIRUSES,
  • DELETION OF FILES OR ELECTRONIC COMMUNICATIONS, OR ERRORS, OMISSIONS OR OTHER INACCURACIES IN THE SITE, CONTENT, OR SERVICES,
  • DAMAGE FROM ANY SECURITY BREACH OR ANY OTHER SECURITY INTRUSION OF ANY OF INKSOFT, THIRD PARTY VENDOR SUCH AS STRIPE, OR ANY USER;
  • ACTS OR OMISSIONS OF ANY THIRD PARTY (INCLUDING ANY THIRD PARTY VENDOR SUCH AS STRIPE OR OTHER USER); OR
  • VIOLATION OF YOUR RIGHTS BY ANY THIRD PARTY (INCLUDING ANY OTHER USER).

WHETHER OR NOT, IN ANY CASE, THERE IS NEGLIGENCE BY INKSOFT OR ITS LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, AND WHETHER OR NOT INKSOFT OR ITS LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS HAVE BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES.

IN NO EVENT WILL INKSOFT’S TOTAL LIABILITY UNDER THESE TERMS AND ANY SHOP USER AGREEMENT, IF APPLICABLE, EXCEED $100.

Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for certain damages. If, for this reason, any of the above disclaimers or limitations of liability do not apply to you, the scope and duration or any such warranty and the extent of InkSoft’s liability to you shall be the minimum permitted under applicable law.

  1. INDEMNIFICATION

In addition to the indemnification provisions provided for in Section 4 regarding Content Claims, you agree to indemnify, defend, and hold harmless InkSoft and its officers, directors, employees, agents, affiliates, licensors, subsidiaries, service providers, and other acting in concert with it from and against any and all claims, losses, liabilities, expenses, damages, and costs, including, but not limited to, reasonable attorneys’ fees, fines, penalties, or taxes arising from your (or anyone using your account, computer, or software) (i) use of the Site, Content, Services, Software, or any products, services, or information obtained from this Site, (ii) violation of these Terms, including without limitation any claims or fines resulting from your unauthorized subjection of InkSoft to the GDPR;  (iii) other violation of the intellectual property rights of InkSoft or any third party; (iv) any violation of the Stripe Terms or other liability incurred by us as a result of your use of the services provided by Stripe or other third party vendor used as part of the Services; or (v) violation of any applicable, law or regulation.

  1. PRIVACY; PROTECTION OF PERSONAL INFORMATION

InkSoft’s use of your personal information and your responsibilities in connection with protecting your privacy are described in the InkSoft Privacy Policy which is incorporated by reference into these Terms.

  1. CONTACT

Please contact contact@inksoft.com if you become aware of any content that may infringe the copyright of a third party or that you believe to be in violation of these Terms.

  1. GENERAL

PLEASE READ THIS SECTION CAREFULLY.  IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND INKSOFT HAVE AGAINST EACH OTHER ARE RESOLVED.

Arbitration. YOU AGREE THAT ALL DISPUTES BETWEEN YOU AND US (WHETHER OR NOT SUCH DISPUTE INVOLVES A THIRD PARTY) WITH REGARD TO YOUR RELATIONSHIP WITH US, INCLUDING WITHOUT LIMITATION DISPUTES RELATED TO THESE TERMS, YOUR USE OF THE SITE OR SERVICES, AND/OR RIGHTS OF PRIVACY AND/OR PUBLICITY, WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION UNDER THE AMERICAN ARBITRATION ASSOCIATION’S RULES FOR ARBITRATION OF CONSUMER-RELATED DISPUTES FOR DISPUTES WITH ALL USERS OTHER THAN SHOP USERS, AND UNDER THE AMERICAN ARBITRATION ASSOCIATION’S RULES FOR ARBITRATION OF COMMERCIAL DISPUTES WITH RESPECT TO DISPUTES WITH SHOP USERS,  AND YOU AND WE HEREBY EXPRESSLY WAIVE TRIAL BY JURY. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER RIGHTS THAT YOU AND WE WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION. Neither you nor we will participate in a class action or class-wide arbitration for any claims covered by this agreement to arbitrate. YOU ARE GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST US INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if we are a party to the proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act and not by any state law concerning arbitration. In the event the American Arbitration Association is unwilling or unable to set a hearing date within one hundred and sixty (160) days of filing the case, then either we or you can elect to have the arbitration administered instead by the Judicial Arbitration and Mediation Services. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with these Terms.

Governing Law and Jurisdiction. These Terms and the relationship between you and InkSoft shall be governed by the laws of the State of Arizona as they are applied to agreements made, entered into, and intended to be performed entirely in Arizona by Arizona residents, regardless of any conflict of law rules.  Without waiving the foregoing arbitration clause, you agree that any dispute arising from or relating to the subject matter of these Terms shall be governed by the exclusive jurisdiction and venue of the state and Federal courts of Maricopa County, Arizona, except where the jurisdiction and venue are mandated by applicable law.

Severability. If any provision or provisions of these Terms shall be held to be invalid, illegal or unenforceable for any reason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of these Terms (including, without limitation, each portion of any section, paragraph or sentence of these Terms containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby and shall remain enforceable to the fullest extent permitted by law; (b) such provision or provisions shall be deemed reformed to the extent necessary to conform to applicable law and to give the maximum effect to the intent of Inksoft and you; and (c) to the fullest extent possible, the provisions of these Terms (including, without limitation, each portion of any section, paragraph or sentence of these Terms containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested thereby.  

The invalidity of a provision, section, paragraph or sentence of these Terms in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by InkSoft without restriction. The United Nations Convention on Contracts for the International Sale of Goods is specifically disclaimed.

EXHIBIT A

SHOP USER AGREEMENT

THE TERMS OF THIS SHOP USER AGREEMENT (“SUA”) SHALL, IN COMBINATION WITH THE INKSOFT TERMS (WHICH ARE INCORPORATED HEREIN AND REFERENCES TO THE TERMS WILL INCLUDE THIS SUA), GOVERN YOUR USE OF THE SOFTWARE AND WEB-BASED SERVICES (“COLLECTIVELY, THE “SERVICES”) PROVIDED BY INKSOFT, INC. (“INKSOFT”).  IN THIS SUA, “YOU” MEANS THE CUSTOMER NAMED ON THE INITIAL INVOICE TO WHICH THIS SUA IS ATTACHED AND EACH USER OF THE SERVICES (each such individual or entity are also referred to herein and in the Terms as a “Shop User”). The Terms of Use (“Terms”) to which this SUA is Exhibit A, including all definitions, representations, warranties, covenants, and indemnities relating to Your use of the Services are incorporated herein by this reference and any reference to the Terms will include this SUA if You are a Shop User.  This SUA is intended to supplement and not to limit the Terms, and the Terms are intended to supplement and not limit this SUA.  

Before You use the Services, You must agree to and accept this SUA and the InkSoft Website Terms of Use. Please read this SUA and the Terms of Use carefully. By proceeding to access or use the Software, You indicate that You (1) understand and agree to this SUA and InkSoft’s Terms of Use; (2) understand and agree to InkSoft’s billing and payment policies; (3) are authorized to make this purchase and bind the Customer named above to the terms of this SUA; and (4) affirmatively state that You have read, understand, and agree to be bound by the terms and conditions of this SUA and the InkSoft Terms of Use.

The Terms contain a binding arbitration provision which governs this SUA, and other provisions that will affect Your rights in the event of a dispute.  

1. DEFINITIONS  The defined terms in the InkSoft Terms of Use are incorporated herein by this reference.

a. Activation Fee means a one-time Fee for setting up Your account, provisioning resources on InkSoft’s servers, and initiating Your License.

b. API means a Feature consisting of an application program interface that allows interoperability between Your website and the Services.

c. Art means the art, designs, clip-art, photography, graphics, other materials provided by InkSoft, or derivative works of any of the foregoing included in the Services.

d. Buyer means the end customer to whom You sell or give customized or semi-customized goods or apparel for their personal use or their distribution to other individuals for personal use. Buyer includes individuals or entities/organizations who use the Services to create customized or semi-customized goods or apparel, and as well as those individuals or entities/organizations who purchase goods or apparel customized or semi-customized by another Buyer using the Services.

e. Connection Fee means the non-refundable portion of the Activation Fee.

f. Documentation means all documentation provided to You by InkSoft relating to the Services, as revised or supplemented from time to time by InkSoft, and which may include manuals, operation instructions, guides, release notes, and on-line help files regarding the use of the Services.

g. Enterprise Customer means any company that (1) is publicly traded or affiliated with a publicly traded company; (2) has more than one hundred (100) employees; (3) has 5 or more physical locations; or (4) whose monthly volume constantly compares to that expected of an Enterprise Customer, in InkSoft’s sole and absolute discretion Enterprise Customers are not eligible for the License and instead must enter into a customized and scaled Enterprise License with InkSoft.

h. Enterprise License means a customized, scaled, enterprise-grade solution individually created for each Enterprise Customer.

i. Features any additional options or features offered by InkSoft, that may or may not be bundled as part of a plan, and purchased by You that work with, modify, or enhance the Services and are listed, described, or otherwise identified in Your Initial Invoice (or an amendment thereof).

 j. Fees means any Activation Fee, Monthly Fee, re-activation fee, and all other fees described on the Initial Invoice or subsequent invoice to which this SUA is attached or otherwise due to InkSoft under this SUA, the License granted herein, or an Enterprise License granted to You.

k. Fonts means the fonts provided by InkSoft as part of the font library included in the Software and any derivative works thereof.

l. Initial Invoice means the first invoice sent to You by InkSoft describing the Services that You purchased or licensed, the associated Fees, and that references and incorporates this SUA.

m. Intellectual Property means all worldwide intellectual property rights, including, without limitation, copyrights, trademarks, service marks, patents, patent applications, trade secrets, know-how, inventions, moral rights, and all other proprietary rights, whether registered or unregistered.

n. License means the license granted in Section 3.a below

o. Monthly Fee means the recurring, monthly fee payable to InkSoft by You for hosting the Services, which is billed one month prior to the Services being provided and is non-refundable.

p. Payment Form means a current, valid, accepted method of payment provided by You to InkSoft for payment of Fees.

q. Services means the Software and any of InkSoft’s web-based services that You have licensed or purchased and that are described on the Initial Invoice.

r.  Shop Site means any website or other medium generated by the Services in order to facilitate the Services, including any Site to which content may be uploaded or created by Your Buyers.  

s. Software means the InkSoft software, including the Online Design Studio, the Design and Clip Art library, the Art, the font library, the Fonts, and any Features, all of which are made available for Your use pursuant to this SUA by InkSoft.

t. Term means the duration of the License, commencing upon Your acceptance of this SUA and the Terms of Use and terminating upon termination of this SUA according to the terms herein.

v. Your Data means registration information and other information relating to You, and information relating to Your Buyers, contacts, business, marketing, and finances, and any similar data that You submit to the Services.

2. GENERAL 

The Services contains material that is protected by copyright and other applicable intellectual property laws in the U.S. and other territories and by international treaty provisions.

The rights granted under the terms of this SUA include any software upgrades that replace and/or supplement the original Software.

InkSoft reserves the right, from time to time, to change the terms of this SUA in its sole and absolute discretion.  We will provide notice to You of any such changes via email at the email address You provide to us when registering Your account.  Once such notice is sent, Your continued use of the Services shall indicate Your assent to the revised terms of the SUA.  You undertake to update Your contact information, including Your email address, to the extent it changes.  The most current version of this SUA (which can be found at https://www.inksoft.com/about-us/policies-terms-of-use/) supersedes all prior versions. Your use of the Services after changes are made to this SUA means that You agree to be bound by such changes. As such, You should review the SUA frequently.

You must be 18 years of age, or the age of majority in Your state, province, country, or territory to use the Services. If You are older than 13 and younger than 18 (or the applicable age of majority for Your geographic location), You may use the Services only with the permission and involvement of a parent or legal guardian, under such person’s account, and otherwise subject to this SUA. If You are younger than 13, You are prohibited from using the Services.

3. PERMITTED USE AND RESTRICTIONS

a. License Grant. Subject to the terms and conditions of this SUA, the Documentation, any other limitations set forth in the Initial Invoice, and to Your payment of all applicable Fees, InkSoft hereby grants to You (and, if You are a company, any of Your employees whose principal place of employment is the address stated on the Initial Invoice) a non-transferable, non-exclusive, revocable, limited License to access and use the Services for Your internal business purposes to decorate and customize apparel and other goods by affixing, embroidering, or printing the Arts and Fonts on such apparel and goods for resale or distribution in fulfilling orders placed by Your Buyers.  The License will contain the Features indicated in the invoice You receive when You purchase the License and activate Your account.

InkSoft reserves the right to limit Your usage or require You to upgrade Your License if, at any time, Your average monthly usage of the Software or Services exceeds InkSoft’s expected usage at Your current License level. InkSoft will provide You with notice if You exceed Your expected usage level.  This may include the requirement that You negotiate and enter into an Enterprise License with InkSoft or otherwise increase Your License level.  Your failure to comply with requests that You upgrade Your License may result in the suspension or termination of Your License.

b. Ownership. The Software and Documentation, and all copies thereof, improvements, modifications, enhancements, derivative works thereof, and all Intellectual Property rights associated therewith, are and shall remain the sole and exclusive property of InkSoft and its licensors. You have no ownership rights in any Software or Documentation. You have a limited License to use the Services as long as this SUA is in effect. Your rights to use the Software, Services and Documentation shall be limited to those expressly granted in this SUA. No other rights with respect to the Services or any related Intellectual Property rights are implied. You are not authorized to use or to permit any third party to use the Services or Documentation except as expressly authorized herein.

c. Restrictions. You acknowledge and agree that the Software, Features, Documentation, Services, and all associated Intellectual Property are proprietary and confidential to InkSoft and/or its licensor and are valuable assets thereof. Except as expressly permitted herein or in a writing signed by InkSoft, You may NOT (and may NOT allow or assist any third party to):

i. download or use Art or Fonts, except for the express purpose of fulfilling a current order placed by Your Buyer;

ii. copy or re-use Art or Fonts that You previously downloaded;

iii. publish, disclose, display, rent, sell, lease, loan, license, modify, distribute or create derivative works based on the Software, Documentation, any part thereof, or any Intellectual Property related thereto;

iv. save, store, host, database, or distribute any Art, Fonts, image previews, product images, other materials provided by InkSoft, or derivative works thereof outside of the Services;

v. copy, decompile, reverse assemble, reverse engineer, disassemble, translate, adapt, decompress, un-minify, un-obfuscate, or otherwise reduce the Software to human-readable form;

vi. attempt to derive the source code from the object code of the Software;

vii. transmit or make the Software available in a manner where it could be used to run or as part of a service bureau, outsourced, or managed services arrangement;

viii. make any third-party software contained in the Software a standalone product;

ix. take any action that infringes on the Intellectual Property or other proprietary rights of InkSoft or its licensors;

x. use the Software, Documentation, or Services in any way that violates any law, regulation, or the Intellectual Property or other rights of any third party;

xi. circumvent, remove, alter, deactivate, degrade, or thwart any of the content protections or access controls for InkSoft’s Software or Services;

xii. use any robot, spider, scraper, or other automated means to access the InkSoft Software or Services;

xiii. permit any third party to use or access the Software or use the Software on behalf of or for the benefit of any third party;

xiv. remove any proprietary, product identification, copyright or other markings, identification, watermarks, or notices contained in the Services;

xv. share the Services or Art, Fonts, image previews, product images, other materials provided by InkSoft, or derivative works thereof with any other person or entity;

xvi. use any Feature, including the API, for which You have not purchased a license;

xvii. sublicense, grant a security interest in, or assign the Services, Documentation, any part thereof, or any Intellectual Property related thereto; or

xviii. exceed Your License’s expected usage level, including causing amounts of traffic on our Servers in excess of the expected amount of traffic which corresponds to Your License level –  Inksoft may monitor Your compliance with these limits. If it detects overuse, InkSoft may require that you upgrade to the appropriate License level, including, potentially, an Enterprise License; and

xix.  cause undue strain or stress on the InkSoft network from Your use of the Services through excessive API calls, traffic, data storage or other non-standard use.  

InkSoft may monitor Your use and use technologies to verify Your compliance with the License granted herein and restrictions thereto.

d. Modification. InkSoft continuously updates and modifies its Services, including the Art and Font libraries. InkSoft may also test certain Software, Services, Features, website features, and other aspects of the Services from time to time. InkSoft reserves the right to include or exclude You from these tests without notice.

InkSoft reserves the right in its sole and absolute discretion to modify the Services at any time for any reason or no reason. For the avoidance of doubt, this may include adding or removing available art or fonts from its libraries, adding or removing features from the Design Studio, modifying or deleting available website templates, or replacing or modifying the Services in its entirety. InkSoft shall endeavor to notify You of any material modifications to the Software or Services, at the time of such modification, but is under no obligation to do so. In addition, InkSoft may increase Your Monthly Fee if Your usage rates of the Services exceed standard usage rates, in InkSoft’s determination; however, in this case, InkSoft will provide You with 30 days advance notice of any Monthly Fee increase.  Your only recourse, in the event that You are dissatisfied with the modified Software or Services, or any change in the Monthly Fee, shall be termination of the SUA under Section 4.c below.

e. Services. If You have selected additional Services to be provided by InkSoft, InkSoft shall provide those Services subject to the terms and conditions of this SUA and any separate services agreement entered into between You and InkSoft.

f.  Ownership of Your Data. As between You and InkSoft, Your Data is and will remain Your property. You grant to InkSoft a non-exclusive right to use, copy, distribute and display Your Data solely in connection with InkSoft’s operation of the Services on Your behalf. You, not InkSoft, have sole responsibility for the accuracy, integrity, and reliability of Your Data, and InkSoft will not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any of Your Data.

g.  EU Personal Data. As of May 25, 2018, if You have not executed the InkSoft Data Processing Addendum (“DPA”), You are prohibited from using the Services to process data regulated by the General Data Protection Regulation of the European Union (“GDPR”).

h. Notification of Decreased Protection Standards Event. InkSoft agrees to promptly notify You if InkSoft becomes unable to satisfy its obligations under this Article 3 on Data Protection or Article 10 on Confidentiality.

i.  Representations By Your Buyers.  Prior to Your Buyers being permitted to access the Services to create customized apparel or other goods for purchase through You (should the Initial Invoice provide for this option), Your Buyers shall be required to accept the InkSoft Terms of Use via Click-Wrap acceptance or other valid form of assent acceptable to InkSoft in its sole discretion.

4. TERMINATION 

a. Termination for Cause. InkSoft may terminate this SUA in its entirety effective immediately upon written notice to You if (1) You breach any provision of this SUA and fail to cure such breach within ten (10) days of receiving notice from InkSoft of such breach; (2) You fail to pay any portion of the Fees due to InkSoft under this SUA or any other agreement into which You enter with InkSoft within ten (10) days of receiving notice from InkSoft that such Fees are past due; (3) You breach any portion of Section 3 above; (4) You commit a material breach of this SUA or the Terms that is not capable of being cured; (5) Your failure to immediately cease and permanently desist, after verbal or written notice, Your abusive, threatening or otherwise inappropriate behavior during interactions of any kind with or towards any InkSoft employee or independent contractor; or (6) we believe, in our sole discretion, that You are engaged in illegal or improper use of the Services.  In the event of termination of this SUA and Your License/Account for Cause, no Fees shall be refunded to you.  

b. Termination for Convenience. You may terminate this SUA in its entirety for any reason upon thirty (30) days written notice to InkSoft for any reason. Such termination shall be effective on the last day of the month in which the thirtieth (30th) day of the notice period occurs. InkSoft may terminate this SUA and the License granted herein effective immediately for any reason or no reason, in its sole discretion.  If this SUA and the License granted herein is terminated by InkSoft after fifteen (15) days from the activation of Your Account, no refund of any Fees will be given.  

c. Termination for Modification of Software or Services or Fee Changes. In the event that InkSoft modifies the Software or Services under Section 3.d above and You are dissatisfied with the modification or InkSoft notifies You of any increase in the Fees, You may terminate this SUA effective immediately upon written notice to InkSoft.

d. Termination for Insolvency. InkSoft may terminate this SUA in its entirety effective immediately upon written notice to You if You (1) terminate or suspend Your business; (2) become insolvent, admit in writing Your inability to pay Your debts as they mature, make an

assignment for the benefit of creditors, or become subject to control of a trustee, receiver or similar authority; or (3) become subject to any bankruptcy or insolvency proceeding.

e. Effect of Termination. Upon termination of the SUA for any reason, (1) all rights and licenses granted to You under this SUA shall immediately be terminated and cease to exist; (2) Your account and password shall be deactivated and any further attempt by You to access the Software or Services shall be deemed a material breach of this agreement and copyright infringement; (3) all information, files, and content associated with Your account shall be removed; and (4) You must immediately discontinue all use of the Software, Documentation, Services, and related Intellectual Property and destroy all copies of Software and Documentation. InkSoft has no obligation or responsibility to retain any information or content related to Your account or use of the Services after termination of this SUA. InkSoft shall not be liable to You or any third party for any termination of Your account or Your access to the Services hereunder.

5. FEES AND PAYMENTS 

a. Fees and Fee Changes. The Initial Invoice shall set forth all Fees, including the Activation Fee, the Monthly Fee, and any other applicable fees. InkSoft reserves the right to adjust the Fees for the Services or any components thereof in any manner and at any time as InkSoft may determine in its sole and absolute discretion. Except as otherwise expressly provided for in this SUA, any Fee changes will become effective after You are notified of the change by email. Your sole remedy in the event that You object to any increase in Fees is to terminate this SUA under Section 4.c above.

b. Recurring Billing. By accepting this SUA and providing a Payment Form, You authorize InkSoft to charge the then-current Monthly Fee and any other charges You may incur in connection with Your use of the Services to Your Payment Form. You acknowledge that the amount billed each month may vary for reasons that include changes that You initiate to Your Services selection and changes to the Fees charged by InkSoft. You authorize us to charge Your Payment Form for such varying amounts. You acknowledge that the Monthly Fee is billed and charged one month prior to the Services being provided and that the Monthly Fee is fully earned upon payment and non-refundable, except as otherwise provided herein or in another writing signed by InkSoft.

c. Billing Cycle. On the Initial Invoice, You will be billed pro-rated Fees for the remainder of the current month and all Fees for the next month of Services. InkSoft automatically bills Your Payment Form on the first day of each month for the Monthly Fee for the following month and will continue to do so until this SUA is terminated. InkSoft reserves the right to change the timing of billing, in particular, as indicated below, if Your Payment Form has not successfully settled. As used in this SUA, “billing” shall indicate a charge, debit, or other payment clearance, as applicable, against Your Payment Form. Unless otherwise stated, “month” or “monthly” shall refer to a calendar month.

d. Delinquent Accounts.

i. If a payment is not successfully settled, due to expiration of Your Payment Form, insufficient funds, or otherwise, and You do not edit Your Payment Form information or terminate this SUA, You remain responsible for any uncollected amounts and authorize InkSoft to continue to attempt to bill Your Payment Form until payment is successfully collected. This may result in a change to Your payment billing date.

ii. For certain Payment Forms, the issuer of Your Payment Form may charge You a foreign transaction fee or other charges. Check with Your Payment Form service provider for details.

iii. In the event that any undisputed Fee is more than fourteen (14) days past due and InkSoft is unable to bill Your Payment Form for the Fees, InkSoft may suspend Your account. If Your Monthly Fee remains past due on the last billing day of the month, an automatic suspension of Your account will occur.  During suspension, Your License to use the Services is also suspended and You will be unable to access the Services, utilize the Services, or access or view any of Your stored content. For the avoidance of doubt, while Your account is suspended, even if You are technologically able to access the Services, You do not have permission to do so. If Your account is suspended for ninety (90) or more days, Your content and data will be deleted permanently. You will be required to pay a re-activation fee in addition to all outstanding Fees due before Your account will be re-activated and the suspension of Your License lifted.

e. Suspension of Account by You. If, at any time, You wish to suspend Your account, You may do so by contacting InkSoft Support at 1.800.410.3048 Ext. 1. Suspension requests cannot be made via email, voicemail, or any other means. If Your account is suspended for ninety (90) or more days, Your content and data will be deleted permanently. You will be required to pay the re-activation fee in addition to all outstanding Fees due before Your account will be reactivated and the suspension lifted.

f.  Suspension Policy.  Once Your account has been suspended You will have until the last day of the calendar month in which the suspension occurred to obtain any information from the account before it is no longer accessible (reports, customer lists, invoices, etc.). After Your account has been suspended for more than 90 days the data will be permanently deleted from our system.  You are eligible to reactivate Your account at any time unless we have terminated this SUA for cause or for convenience.  

g. Re-Activation Fee. If Your account is suspended for any reason and You wish to re-activate it, You will be charged a re-activation fee of $499, regardless of the amount of time elapsed between suspension and reactivation. Upon reactivation, Your account level will be the equivalent of the most comparable level available on the date of reactivation.  InkSoft may amend the amount of this reactivation fee at any time effective immediately without notice to You.  The re-activation fee will not be refundable under any circumstances.

h. Chargebacks and Returned Check Fees. In the event that You initiate a chargeback on Your Payment Form, InkSoft may assess a processing fee in the amount of $50.00 per chargeback. InkSoft may assess a fee in the amount of $50.00 for each returned check. InkSoft may amend the amount of the chargeback and returned check fees at any time effective immediately without notice to You.

i. Refunds. If You cancel Your Services and terminate this SUA within fifteen (15) days of payment of the Activation Fee, we will issue You a refund of all Fees paid less the Monthly Fee for the first month of Services and the Connection Fee. CONNECTION FEES AND REACTIVATION FEES ARE NON-REFUNDABLE.

j. Payment Forms. You may modify Your Payment Form information at any time by contacting InkSoft Support at 1.800.410.3048 Ext. 1 or by logging in to Your account and updating Your billing information. InkSoft does not accept modification of Payment Form by email.

k. Cancellation/Refund Policy.   If we receive notification from You that You wish to cancel Your account WITHIN 15 days of the date of Your account activation, we will issue a refund of all Fees paid less $499, which represents the non-refundable Connection Fee portion of the One-Time Activation Fee.   If You elect to cancel Your License and/or account or Your License or Account is terminated 15 or more days from the date of Your Account’s activation, all One-Time Activation Fees, Connection Fees, Reactivation Fees and previously paid Monthly Fees are non-refundable.  

6. DISCLAIMER OF WARRANTIES. THE SERVICES, DOCUMENTATION, AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS AND INKSOFT MAKES NO WARRANTIES, EXPRESS OR IMPLIED, BY STATUTE OR OTHERWISE, WHETHER ARISING BY COURSE OF DEALING OR PERFORMANCE, CUSTOM, USAGE IN THE TRADE OR PROFESSION OR OTHERWISE, WITH RESPECT TO ANY SOFTWARE, DOCUMENTATION, SERVICES, PRODUCTS, TECHNOLOGY, INTELLECTUAL PROPERTY, MATERIALS, OR INFORMATION PROVIDED HEREUNDER, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSES. ALL SUCH WARRANTIES ARE HEREBY DISCLAIMED. INKSOFT MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE COMPATIBILITY OF THE SOFTWARE AND SERVICES WITH YOUR COMPANIES HARDWARE, SOFTWARE OR OTHER SYSTEMS AND/OR CAPABILITIES.  YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE RELIED ON NO REPRESENTATIONS OR WARRANTIES AND THAT NO OTHER REPRESENTATIONS OR WARRANTIES HAVE FORMED THE BASIS OF YOUR BARGAIN HEREUNDER.

IN ADDITION, TO THE FULLEST EXTENT PERMITTED BY LAW, INKSOFT DISCLAIMS ANY WARRANTIES FOR THE SECURITY, ACCURACY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THIS SOFTWARE, DOCUMENTATION, OR SERVICES. YOU UNDERSTAND AND AGREE THAT THE USE OF THE SOFTWARE, DOCUMENTATION, AND SERVICES IS AT YOUR OWN DISCRETION AND RISK AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY LOSS OR DAMAGE TO YOUR CONTENT OR DATA OR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT MAY RESULT FROM THE USE OF THE SOFTWARE, DOCUMENTATION, AND SERVICES BY YOU AND THE DOWNLOAD OR UPLOAD OF ANY MATERIAL OR DATA. YOU ARE SOLELY RESPONSIBLE FOR CREATING BACK-UPS OF ANY DIGITAL CONTENT. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION.

7. LIMITATION OF LIABILITY.

In addition to the limitations of liability contained in Section 11 of the Terms,

  1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL INKSOFT OR ITS LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, COVER, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOST DATA, LOST PROFITS, LOST BUSINESS OPPORTUNITIES, LOST TIME, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, OR DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE PRECEDING LIMITATION MAY NOT APPLY TO YOU.
  2. INKSOFT SHALL NOT BE LIABLE TO ANY OF YOUR BUYERS FOR ANY LOSSES OR DAMAGES INCURRED IN THEIR USE OF THE SOFTWARE OR SERVICES, OR IN WITH INTERACTIONS OR DEALINGS WITH YOU.  
  3. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER INKSOFT OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
  4. Third Party Software. Software provided under this SUA may be distributed with certain freeware, open source, or other third party components. INKSOFT PROVIDES SUCH THIRD PARTY SOFTWARE ON AN “AS IS” AND “WITH ALL FAULTS” BASIS WITHOUT ANY WARRANTY WHATSOEVER AND HEREBY EXPRESSLY DISCLAIMS WITH RESPECT TO ANY THIRD PARTY SOFTWARE AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (1) ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT; AND (2) ALL LIABILITY FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, COVER, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST DATA OR LOST PROFITS, HOWEVER ARISING, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, OR ANY OTHER LEGAL THEORY, EVEN WHERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
  5. You may not bring a claim under this SUA more than eighteen (18) months after the cause of action arises.

8. INDEMNIFICATION. In addition to the indemnification provisions contained in Sections 4 and 12 of the Terms, You shall indemnify, defend, and hold InkSoft and its officers, agents, affiliates, and employees harmless from and against any and all actual or threatened losses, liabilities, expenses, damages, claims, demands, proceedings, and causes of action (including without limitation, reasonable attorneys’ fees and expenses) (“Claims”) based on, arising out of, concerning, resulting from or relating to:

  1. Your breach of any of the terms or provisions of this SUA, including without limitation any Claims resulting from Your unauthorized subjection of InkSoft to the GDPR;  
  2. Your or Your Buyer’s unauthorized use or Your or Your Buyer’s misuse of the Software or Services;
  3. Any Claims made by Your Buyers against InkSoft as a result of their use of the Software or Services or as a result of their dealings or interactions with You; and
  4. Any violation by Your Buyers of the Terms, including any infringement of any third party’s copyright or other intellectual property resulting from Your Buyer’s use of the Services.

 InkSoft shall provide prompt notification to You of any such Claims.

9. CONFIDENTIAL INFORMATION AND PRIVACY 

a. Confidential Information. In connection with this SUA, each party (as the “Disclosing Party“) may disclose or make available Confidential Information to the other party (as the “Receiving Party“). “Confidential Information” means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party identifies as confidential or proprietary or which the Receiving Party should reasonably expect to be confidential or proprietary based on its nature, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations. Without limiting the foregoing, (a) any information that a Receiving Party collects, receives, or obtains, from or on behalf of the Disclosing Party that does or can identify a specific individual or by or from which a specific individual may be identified, contacted or located, such as the individual’s name, address, social security number, credit card information, etc., and any other information relating to an identified or identifiable individual (collectively, “Personal Information”) is and will remain the Confidential Information of the Disclosing Party and (b) the Services are and will remain the Confidential Information of InkSoft.

b. Exclusions. Confidential Information does not include information that: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this SUA; (b) was or becomes generally known by the public other than by the Receiving Party’s non-compliance with this SUA; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party’s knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) was or is independently developed by the Receiving Party without use of any Confidential Information.

c. Confidentiality and Use. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:

  1. not access or use, or permit the access or use of, Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this SUA;
  2. except as may be permitted by and subject to its compliance with Section 10.d below, not disclose or permit access to Confidential Information other than to its attorneys, accountants, and other representatives who: (1) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this SUA; (2) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this SUA; and (3) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this SUA; and
  3.  safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its own sensitive information and, in no event, less than a reasonable degree of care.

d. Compelled Disclosures. If the Receiving Party or any of its representatives is compelled by applicable law to disclose any Confidential Information then, to the extent permitted by applicable law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy, or waive its rights related thereto; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure.

e. Return or Destruction of Confidential Information. Upon termination of this SUA and at the request of the Disclosing Party, the Receiving Party shall return or destroy all copies of the Confidential Information of the Disclosing Party in its possession or control as the Disclosing Party may request and certify that it has complied with the requirements of this section.

f. Data Privacy. You agree that InkSoft may collect and process information and statistics regarding Your use of the Services, including Your internet protocol address, hardware identification, operating system, application software, peripheral hardware, and personally identifiable information and that InkSoft may anonymize and use this data to provide the Services, to improve the Services, to develop new software and services, and in any other way it sees fit.  

g. Privacy Policy. Personally identifying information is subject to InkSoft’s Privacy Policy, the terms of which are incorporated herein. Please review the Privacy Policy to understand our practices.

10.  Payment Solutions

a. Payment Solutions. The Services may include access to a payment solution, which assists you with accepting and processing payments from Users, and which is provided by one of InkSoft’s third party service providers, such as Stripe or other payment processing services or platforms, on behalf of InkSoft. The payment solution is made available to Shop Users in good standing, and at the sole discretion of InkSoft and Stripe (or other third party vendor). InkSoft reserves the right to collect certain additional information from Shop Users in order to provide this service. Payment fees are set forth on the Website or as otherwise agreed from time to time. We reserve the right to revise our fees at any time, subject to a fourteen (14) day notice period to you.

b.  Stripe Connected Account Agreement.  In order to use the payment service provided through Stripe, you must first agree to the Stripe Connected Account Agreement and the Stripe Services Agreement, which you can review here: https://stripe.com/CA/CONNECT-ACCOUNT/LEGAL, and which are hereby incorporate by reference into this SUA and our Terms.  By using the Services, you hereby represent and warrant that you have read the Stripe Connected Account Agreement and agree to be bound by its terms.

c.  No Liability for Third Party Services. The Stripe Connected Account Agreement is between Stripe and You, and InkSoft shall not have any liability or responsibility for any breach of the Stripe Connected Account Agreement, or any losses, damages, expenses costs or other injuries incurred by You in connection with such agreement.

d.  User Covenants. You hereby covenant, represent and warrant that you will not use Stripe’s payment services for any illegal, deceptive or fraudulent activity, including for any illegal businesses, including, without limitation, the Stripe Prohibited Business list, found here: https://stripe.com/ca/prohibited-businesses. InkSoft hereby reserves the right, in its sole discretion, at any time, to suspend or terminate Your account if InkSoft has a good faith reason to believe You or any end user has engaged in any fraudulent or illegal activities, or are engaging in prohibited business activity, and to provide any relevant information to the applicable authorities in connection with any investigation of the same.

e.  InkSoft limitation of Liability. Because the payments feature is provided and hosted by a third party service provider, we are not responsible for, and expressly disclaim all direct and indirect, incidental, consequential, punitive, exemplary, special or other damages in connection with (i) any technical issues, errors, unavailability or failures, losses, damages, loss of data, lost profits or other losses or claims originating from or arising in connection with the Stripe Connected Account Platform; (ii) any unauthorized access, hacking, tampering with or to your account or the Stripe services by third parties; or (iii) any software, bugs, viruses, Trojan horses, or other harmful and malicious code that may be transmitted via the Stripe platform. In certain circumstances detailed in the Stripe Services Agreement, located at https://stripe.com/us/legal, (which is incorporated by reference into the Stripe Connected Account Agreement), Stripe may withhold or delay processing transfers and transactions and InkSoft shall not be responsible in any way for any such action taken by Stripe.

11. MISCELLANEOUS TERMS

a. Entire Agreement. This SUA, the Initial Invoice and any amendments thereto, and our Privacy Policy and Terms the entire agreement of the parties with respect to the subject matter of this SUA and supersede all previous or contemporaneous communications, representations, proposals, commitments, understandings and agreements, whether written or oral, between the parties regarding the subject matter hereof. All of the provisions of the Terms, including without limit those provisions related to governing law, disputes, transferability and severability of provisions are expressly included in this SUA by reference.   In the event of a conflict between this SUA, the Initial Invoice, or the Website Terms of Use, the terms of this SUA shall control.  

b. Notices. Any notice delivered by InkSoft to You under this SUA will be delivered via email, mail, or fax to the last email address, mailing address, or fax number that You provided to InkSoft. It is Your responsibility to update InkSoft as to any changes in Your contact information.

c. Waiver. The waiver of a breach of any provision of this SUA shall not constitute a waiver of any other provision or any subsequent breach.

d. Compliance with Laws and Regulations; Export Controls. You shall comply with all applicable international, national, state, regional, and local laws and regulations, including, without limitation, any applicable import, export, and use restrictions. You acknowledge that the Services are of United States origin and may be subject to the export controls administered by the United States and/or other countries. Diversion contrary to U.S. law is strictly prohibited. Export, re-export, or import of certain product may require action on Your behalf prior to purchase. By accessing or using the Software, Documentation, or Services, You agree to the foregoing and to comply with all applicable export control laws.

e. Headings. The headings used in this SUA are for convenience and shall not affect the interpretation or construction of any provision. No representations or statements of any kind made by any party that are not expressly stated herein shall be binding on such party.

f. Assignment. This SUA, the Initial Invoice, the Services, and Your rights and obligations under this SUA may not be assigned, subcontracted, or transferred by You, in whole or in part, whether voluntary, by operation of law, contract, or otherwise, without the prior written consent of InkSoft. Any attempted assignment or transfer in violation of this SUA shall be null and void. Subject to the foregoing, this SUA will be binding upon and inure to the benefit of the parties and their respective successors and assigns.

g. Force Majeure. Under no circumstances shall InkSoft be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond its reasonable control, including, without limitation, Internet failures, computer equipment failure, telecommunication failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God, war, acts of terrorism, governmental actions, orders of domestic or foreign courts or tribunals, or non-performance.

h. Survival. The following Sections of this SUA shall survive its termination: Sections 1, 2, 3.b, 3.e, 5, 6, 7, 8, 9, 10, 11 and any other Section that by its terms should survive. The following Sections of the Terms shall survive the termination of the SUA and the Terms:  1, 3, 4, 6,7,9, 10, 11, 12 ,13, and 15, and any other Section that by its terms should survive.

k. Authorization. The individual signing below represents and warrants that s/he has all necessary right, power, and authority to enter into this SUA on Your behalf and that You have all right, power, and authority to perform the acts required hereunder.

 

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