Terms & Conditions
Software and Service License Agreement
Important Please Read Carefully
These Terms & Conditions along with all materials referenced herein (“Agreement”) constitutute a legal agreement between an entity (“Customer” or “You”) and Bikesoft Corporation d/b/a MerchantOS (“MerchantOS”, “We”, or “Us”) permitting Customer to access and use, subject to the terms of this Agreement, (i) MerchantOS’s software identified on the license agreement page, [www.merchantos.com]/terms/ and accompanying documentation provided electronically (“Software”) and (ii) services relating to Customer’s access and use of the Software, including the provision of a web site, content therein and software relating thereto ((i) and (ii) together, the “Services”). CUSTOMER MUST READ THIS AGREEMENT CAREFULLY BEFORE INDICATING ACCEPTANCE AT THE END BY CLICKING THE “I ACCEPT” BUTTON CREATING AN ACCOUNT WITH MERCHANTOS. IF CUSTOMER DOES NOT AGREE TO ANY OF THE TERMS OF THIS AGREEMENT, CLICK ON THE “I DO NOT ACCEPT” BUTTON AT THE END OF THIS AGREEMENT DO NOT CREATE AN ACCOUNT AND CUSTOMER WILL NOT BE PERMITTED TO ACCESS AND USE THE SOFTWARE AND SERVICES. BY USING THE SERVICES, YOU ARE AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
ALL OF THE MERCHANTOS SERVICES ARE AVAILABLE ONLY FOR INDIVIDUALS AGED 13 YEARS OR OLDER. IF YOU ARE 13 OR OLDER BUT UNDER THE AGE OF 18, THEN YOU AGREE TO REVIEW THIS AGREEMENT WITH YOUR PARENT OR GUARDIAN TO MAKE SURE THAT BOTH YOU AND YOUR PARENT OR GUARDIAN UNDERSTAND AND AGREE TO THESE TERMS AND CONDITIONS. YOU AGREE TO HAVE YOUR PARENT OR GUARDIAN REVIEW AND ACCEPT THIS AGREEMENT ON YOUR BEHALF. IF YOU ARE A PARENT OR GUARDIAN ENTERING INTO THIS AGREEMENT FOR THE BENEFIT OF A CHILD OVER 13, THEN YOU AGREE TO AND ACCEPT FULL RESPONSIBILITY FOR THAT CHILD'S USE OF THE SERVICES, INCLUDING ALL FINANCIAL CHARGES AND LEGAL LIABILITY THAT HE OR SHE MAY INCUR.
If a parent or guardian becomes aware that his or her child has provided us with information without their consent, he or she should contact us at [email@example.com]
MerchantOS reserves the right, with or without notice to you, to change the terms of this Agreement for any reason. If the alterations constitute a material change to the Agreement, MerchantOS may attempt to notify you during your next use of MerchantOS and/or by email, to the email address(es) in your account; provided, however, that MerchantOS is under no obligation to notify you of any change, material or otherwise. What constitutes a "material change" will be determined at MerchantOS's sole discretion. Your continued use of the Services after such amendment will be deemed evidence of your agreement to the amended Terms and Conditions.
Terms and Conditions
1. License Grant
1.1 Subject to the terms of this Agreement, MerchantOS grants Customer a limited, nonexclusive, nontransferable license to access and use the Software and Services for internal business purposes only, without the right to sublicense such rights, provided Customer unconditionally agrees to access and use the Software and Services in accordance with this Agreement (“License”). Under the License, Customer may print out, or otherwise make, printed copies (“Copies”) of the reports, numeric results, and other information or materials generated from Customer’s access and use of the Software and Services for business purposes only. Any updates, modifications, enhancements or new versions of the Software and Services provided or made available to Customer by MerchantOS, shall be considered Software and Services subject to this Agreement. MerchantOS may at any time and for any reason elect to modify, discontinue, delete or restrict any aspect or feature of the Software and Services without notice to Customer or any liability to MerchantOS or any MerchantOS Party.
2. Registered and Licensed Users
3. Term, Renewal, and Termination
3.1 The Effective Date of this Agreement shall be the first day in which Customers “user profiles” are activated and made available for usage on the MerchantOS Services and shall continue in full force and effect so long as Customer continues to use the Services. Customer may terminate its access to the Services at any time by phone or email. Cancellation requests submitted will become effective at the end of customers current billing period. However, we may retain your data after you leave. If you require data deletion or export, please contact MerchantOS and we will attempt to accommodate you at our discretion.
3.2 Merchant OS reserves the right to refuse service to anyone, for any reason, at any time.
4.1 One-time setup fees (if any are due) are to be paid upon submission of an Order.
4.2 Charges set forth in the Order shall be charged monthly and other charges due for the Services performed under this Agreement shall be invoiced the month immediately following the use of the Services by Customer. Charges invoiced are due and payable upon receipt. If charges are not paid within sixty (60) days of the invoice date, a one and one half percent (1.5%) per month interest charge shall be assessed until date of payment., MerchantOS retains the right to disable Customer account and access to the Services to prevent further use until payments for all charges on account have been received. Accounts with outstanding balances over ninety (90) days in arrears may be referred for legal collection action.
4.3 Customer is required to keep a valid credit card on file with MerchantOS to pay for recurring monthly service charges.
4.4 All charges are exclusive of all taxes. Taxes imposed by Government agencies, whether based upon the software, its use, or the Agreement, shall be paid by Customer.
4.5 Any new software program or services, other than those contracted for by Customer on the Effective Date of this Agreement, may be obtained by Customer at the current price. Charges set forth in the Order may be modified by MerchantOS upon posting of changed pricing to the Website at [http://www.merchantos.com/plans-pricing/] and becoming effective on the next monthly billing.
5.1 The Services are available to Customer when connectivity is available through established telecommunication providers and the MerchantOS Services are fully operational. The Services are subject to interruption when telecommunication service is subject to transmission limitation and/or interruptions including access to the public Internet. MerchantOS and the MerchantOS Parties do not make any commitments with respect to the availability of the Software or Services.
6. Hardware and Service Requirements
6.1 Customer is solely responsible for acquiring, servicing, maintaining, and updating all equipment, computers, software and communications services (such as long distance service) not owned or operated by or on behalf of MerchantOS, that allow Customer to access and use the Software and Services, and for all expenses relating thereto (plus any applicable taxes). Customer agrees to access and use the Software and Services in accordance with any and all operating instructions or procedures that may be issued by MerchantOS, and amended by MerchantOS from time to time. MerchantOS and the MerchantOS Parties do not make any commitments with respect to use or performance of the Software and Services.
7. Training and Support
7.1 Unless Customer and MerchantOS enter into a separate agreement, MerchantOS will not provide any training or on-site support to Customer relating to the Software and Services. MerchantOS will provide Customer with (a) commercially reasonable telephone and email support for the Software and Services during normal business hours; and (b) updates and enhancements for the Software and Services, to the extent that MerchantOS generally makes such updates and enhancements available to Customers without a separate charge.
8. Customer Support
8.1 Customer support services will be available via telephone at (866) 554-2453 during the regular business hours of Monday – Friday, 9:00am-4:00pm, PST. Email support response is generally available within 24hours. Please submit messages to firstname.lastname@example.org.
9. Authorized Usage
9.1 Customer acknowledges that it has been advised by MerchantOS that the Software and Services and any related documentation, or service delivery methods deployed or developed by MerchantOS contain valuable trade secrets or proprietary information and products. Customer agrees to preserve the confidential nature of the software by retaining and using the Software and Services in trust and confidence, solely for its own internal use and not permitting the use of the the Software and Services or disclosure of information relating to the software to unauthorized persons.
9.2 MerchantOS reserves the right to interrupt or restrict the Software and Service without notice to Customer if fraudulent or abusive activity is suspected. Customer agrees to cooperate with MerchantOS in any fraud investigation and to use any fraud prevention measures we prescribe within reason. Failure to cooperate will result in Customer’s liability for all fraudulent usage.
10. Confidentiality and Proprietary Nature of Data
10.1 The specified “billing entity” and “administrative contact” for any subscription Order acknowledge that they are authorized to financially commit the subscribing organization to these services. Further, the specified “billing entity” and “administrative contact” for any subscription Order becomes the “owner” of any data in the file system managed by that entity. MerchantOS has no ability to provide access to parties other than those assigned by the “administrative contact” of the “billing entity”. The “billing entity” is the sole owner and authority governing data sets and Licensed User access rights provided. MerchantOS cannot provide access to or copies of any data sets other than as communicated in writing by the designated “administrative contact” for the “billing entity”.
10.3 While MerchantOS’s Services uses encryption technology, and the law generally prohibits third parties from monitoring transmission, we cannot guarantee security with respect to the connection to the Services.
10.4 Subject to the terms and conditions of this Agreement, MerchantOS shall store and otherwise maintain Data, reports and numeric results, and MerchantOS shall follow the same archival procedures for Customer’s Data, reports and numeric results as MerchantOS employs for its own data, as modified from time to time at MerchantOS’s discretion. In the event of any loss or damage to Customer’s Data, reports or numeric results, Customer’s sole and exclusive remedy shall be for MerchantOS to use commercially reasonable efforts to replace or restore the lost or damaged data from the latest backup of such Data, reports or numeric results which MerchantOS has maintained in accordance with its standard archival procedures.
10.5 MerchantOS, both the word and mark, are the trademarks of MerchantOS. You agree not to display or use, in any manner, the MerchantOS trademarks, without MerchantOS's express prior written consent. You acknowledge and agree that MerchantOS is and shall remain the exclusive owner of all right, title and interest in and to the Services, including without limitation all patent, copyright, trade secret, trademark and other intellectual property rights therein, including any optimizations, enhancements, modifications or additional features added from time to time by MerchantOS, whether in connection with your use or feedback or otherwise. Except for the right to use the Services strictly in accordance with these Terms, as amended or modified from time to time, no license or conveyance of any such proprietary rights to you is granted or implied under these Terms.
The Services are protected to the maximum extent permitted by copyright laws and international treaties. Content displayed on or through the Services is protected by copyright as a collective work and/or compilation, pursuant to copyrights laws, and international conventions. Any reproduction, modification, creation of derivative works from or redistribution of the site or the collective work, and/or copying or reproducing the sites or any portion thereof to any other server or location for further reproduction or redistribution is prohibited without the express written consent of MerchantOS. You further agree not to reproduce, duplicate or copy Content from the Services without the express written consent of MerchantOS, and agree to abide by any and all copyright notices displayed on the Services. You may not decompile or disassemble, reverse engineer or otherwise attempt to discover any source code contained in the Services. Without limiting the foregoing, you agree not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes, any aspect of the Services, without the express written consent of MerchantOS.
11. Customer Responsibilities
11.1 Customer shall obtain and maintain, at its sole expense, equipment and appropriate telecommunication service adaptable to, compatible with, and suitable for communication with MerchantOS’s network specifications.
11.2 Customer agrees to be responsible for the accuracy and adequacy of the data which it furnishes or transmits to MerchantOS for processing or storage.
11.3 Customer is solely responsible for its conduct and activities (and those of its Licensed Users) on and relating to MerchantOS and any and all data, information, usernames, graphics, images, photographs, profiles, audio, video, items, and links (together, "Content") that Customer or its Licensed Users submit, post, display and authorize to be on MerchantOS—including Content originally posted by other people (such as MerchantOS employees, affiliates and contractors). As a condition to Customer’s use of the Services, Customer agrees that Customer and Licensed Users will not, directly or indirectly, take any of the following actions:
- defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others, including MerchantOS staff members;
- upload, post, email or transmit or otherwise make available any inappropriate, defamatory, infringing, obscene, or unlawful Content;
- upload, post, email or transmit or otherwise make available any Content that infringes any patent, trademark, copyright, trade secret or other proprietary right of any party, unless such party is the owner of such rights or has the permission of the owner to post such Content;
- upload, post, email or transmit or otherwise make available messages that promote pyramid schemes, chain letters or disruptive commercial messages or advertisements, or anything else prohibited by law, these Terms and Conditions or any applicable policies or guidelines.
- download any file posted by another that such downloader knows, or reasonably should know, cannot be legally distributed in such manner;
- impersonate another person or entity, or falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material;
- restrict or inhibit any other user from using and enjoying MerchantOS Services;
- use MerchantOS services for any illegal or unauthorized purpose;
- remove any copyright, trademark or other proprietary rights notices contained in or on MerchantOS services;
- interfere with, disrupt or diminish the quality of MerchantOS services or servers or networks connected to MerchantOS services, or disobey any requirements, procedures, policies or regulations of networks connected to MerchantOS services;
- use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of MerchantOS services or collect information about users for any unauthorized purpose;
- submit Content that falsely expresses or implies that such Content is sponsored or endorsed by MerchantOS;
- create user accounts by automated means or under false or fraudulent pretenses;
- promote or provide instructional information about illegal activities or promote physical harm or injury against any group or individual; or
- transmit any viruses, worms, defects, Trojan horses, or any items of a destructive nature;
- submit Content that includes personal or identifying information about another person without that person's explicit consent;
- submit Content that is false, deceptive, misleading, deceitful, misinformative, or constitutes "bait and switch";
- submit Content that constitutes or contains any form of advertising or solicitation if posted in areas of the MerchantOS Services which are not designated for such purposes or send such Content to MerchantOS users who have not indicated in writing that it is ok to contact them about other services, products or commercial interests; and
- submit Content that includes links to commercial services or web sites, except in areas of the MerchantOS Services which are designated for such purposes.
11.4 In the event that Customer access the Services via a third party site, Customer may be subject to the terms of service of that third party site. Please check with the website of the applicable third party site for further details. Links to third party sites may appear within the Services. Any linked sites are not controlled by MerchantOS and may collect data or solicit personal information from Customer. MerchantOS is not responsible for such linked sites, their Content, business practices, goods and services or privacy policies, or for the collection, use or disclosure of any information by those sites. MerchantOS provides such linked sites only as a matter of convenience and the inclusion of any link does not imply an endorsement by MerchantOS of such linked sites.
11.5 DMCA Compliance. Customer agrees not to post, publish, display, reproduce, or transmit in absolutely any manner any copyrighted Content, copyrighted material, trademarks, intellectual property, or other proprietary information without first having obtained prior consent of the owner of the rights to such proprietary information. If Customer believes that someone or some entity has copied or posted Customer’s work or proprietary information on the Company’s site or its Services, or in association with the Company and its Services, in an unauthorized manner that constitutes infringement of copyright, please give our Copyright Agent the following information:
- A physical or electronic signature of the individual or entity who owns the copyright;
- A description of and url link to the copyrighted work on Company that Customer believes has been infringed upon;
- Customer’s postal mailing address;
- Customer’s telephone number;
- Customer’s email address;
- A written statement by Customer that Customer believes, in good faith, that the usage of the work is not authorize or consented upon by the rightful copyright owner; and
- A written statement made by Customer, under penalty of perjury, that the information in Customer’s copyright claim is completely accurate and that Customer is in fact the rightful copyright owner, or that Customer has authorized consent to act on the copyright owner's behalf.
Send claims to:
Attn: Copyright Agent
[88 S. 3rd St., #271]
[San Jose, CA 95113]
All questions, comments or notices concerning this Agreement shall be submitted to MerchantOS by Customer via email at email@example.com or via mail at: MerchantOS Corporation, Attention: Customer Support, 641 Clauser Dr., Milpitas, CA 95035. All notices to be given under this Agreement to Customer shall be submitted by MerchantOS via email at the account Customer provided to MerchantOS pursuant to Section 2 or to Customer upon accessing the Software and Services.
13.1 MerchantOS retains the right to subcontract without Customer’s consent the Services contracted for in this Agreement to third parties; however, no subcontract will relieve MerchantOS of its obligations hereunder. Except as provided in the preceding sentence, neither this Agreement nor any rights hereunder may be assigned or otherwise transferred by either party, except to any corporation controlled by or under common control with the assigning party, or in connection with the acquisition of, or the sale of substantially all of, the assets of the business to which this Agreement pertains.
13.2 This Agreement is the complete and exclusive statement of the agreement between Customer and MerchantOS, and supersedes any proposal or prior agreement, oral or written, and any other communications between the parties relating to the subject matter of this Agreement.
13.3 Force Majeure. MerchantOS will not be responsible for any failure to perform its obligations hereunder due to causes beyond its reasonable control, including, acts of God, acts of terrorism, war, riot, embargoes, acts of civil or military authorities, national disasters, strikes and the like.
13.4 This Agreement shall be governed by the laws of the State of California, and exclusive jurisdiction for any legal proceeding regarding this Agreement shall be in the State of California.
13.5 Nothing contained in this Agreement is intended to confer upon any person other than the parties hereto and their respective successors and permitted assigns, any benefit, right or remedy under or by reason of this Agreement, except with respect MerchantOS Parties who shall be deemed third party beneficiaries under this Agreement but solely with respect to those terms that specifically reference an MerchantOS Party or the MerchantOS Parties.
14.1 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, (A) THE SOFTWARE AND SERVICES ARE PROVIDED “AS-IS” AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MerchantOS AND ITS DIRECTORS, OFFICERS, LICENSORS, SUBCONTRACTORS AND AGENTS (“MerchantOS PARTIES”) DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE SOFTWARE AND SERVICES OR OTHERWISE RELATING TO THIS AGREEMENT, INCLUDING WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT AND ACCURACY; (B) NEITHER MERCHANTOS NOR ANY MERCHANTOS PARTY WARRANTS THAT THE SOFTWARE AND SERVICES ARE OR WILL BE ACCURATE, COMPLETE, UNINTERRUPTED, WITHOUT ERROR, OR FREE OF VIRUSES, WORMS, OTHER HARMFUL COMPONENTS, OR OTHER PROGRAM LIMITATIONS; (C) CUSTOMER ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION OF PROBLEMS CAUSED BY VIRUSES OR OTHER HARMFUL COMPONENTS, UNLESS SUCH ERRORS OR VIRUSES ARE THE DIRECT RESULT OF MERCHANTOS’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; (D) EACH OF MERCHANTOS AND THE MERCHANTOS PARTIES DISCLAIM AND MAKE NO WARRANTIES OR REPRESENTATIONS AS TO THE ACCURACY, QUALITY, RELIABILITY, SUITABILITY, COMPLETENESS, TRUTHFULNESS, USEFULNESS, OR EFFECTIVENESS OF THE REPORTS, DATA, SCORES, RESULTS OR OTHER INFORMATION OBTAINED, GENERATED OR OTHERWISE RECEIVED BY CUSTOMER FROM ACCESSING AND/OR USING THE SOFTWARE AND/OR SERVICES OR OTHERWISE RESULTING FROM THIS AGREEMENT, AND (E) USE OF THE SOFTWARE, SERVICES AND REPORTS IS ENTIRELY AT CUSTOMER’S OWN RISK AND MERCHANTOS AND EACH OF MERCHANTOS PARTIES SHALL HAVE NO LIABILITY OR RESPONSIBILITY THEREFOR.
15. Limitations on Liability
THE TOTAL LIABILITY OF MERCHANTOS AND THE MERCHANTOS PARTIES IN THE AGGREGATE TO CUSTOMER OR ANY THIRD PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SOFTWARE AND SERVICES WILL BE LIMITED TO THE PAYMENTS RECEIVED FROM CUSTOMER UNDER THIS AGREEMENT. MERCHANTOS AND THE MERCHANTOS PARTIES SHALL NOT BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY TYPE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SOFTWARE AND/OR SERVICES, WHETHER OR NOT MERCHANTOS AND ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER BASED UPON BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE).
MERCHANTOS AND THE MERCHANTOS PARTIES SHALL HAVE NO LIABILITY FOR ANY DAMAGES RESULTING FROM ALTERATION, DESTRUCTION OR LOSS OF ANY DATA OR INFORMATION INPUT, GENERATED OR OBTAINED FROM ACCESS AND/OR USE OF THE SOFTWARE AND SERVICES, INCLUDING ANY REPORTS OR NUMERIC RESULTS, WHETHER OR NOT MERCHANTOS AND THE MERCHANTOS PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE LIMITATIONS OF DAMAGES AND LIABILITIES SET FORTH IN THIS AGREEMENT ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN MERCHANTOS AND CUSTOMER, AND THE PRICING FOR THE LICENSE REFLECTS SUCH LIMITATIONS. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR DAMAGES (SUCH AS CONSEQUENTIAL OR INCIDENTAL DAMAGES), OR THE EXCLUSION OF IMPLIED WARRANTIES AND LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER.
16.2 Customer elects to allow MerchantOS to share non-personal statistical or demographic information in anonymous form with third-parties for research purposes.
17. Customer Representations and Warranties
17.1 Customer represents and warrants to MerchantOS that this Agreement shall be binding on Customer, and, unless Customer is an individual, Customer represents and warrants that this Agreement was executed by an authorized agent of Customer with the authority to enter into binding agreements on behalf of Customer.
You agree that you are an authorized representative for your organization and wish to execute a services Agreement with MerchantOS according to the terms and conditions as stated above. If you have any questions about this Agreement, please contact us at [firstname.lastname@example.org]