WebGear Stores

INTRODUCTION
WebGear. ("WebGear") welcomes you. WEBGEAR is in the business of providing electronic commerce services related to the sale, sourcing and distribution of consumer products over the internet. You seek to establish an electronic commerce website (the “WebStore”) to market and sell certain consumer products over the internet and to utilize WEBGEAR’s services to develop and manage the WebStore. WebGear provides its electronic commerce services to you, subject to the following WebStore Terms of Service ("WTERMS").
WEBSTORE.
WEBGEAR will develop, implement and maintain a WebStore for you with the purpose to sell various Products to your customers pursuant to the Service Plan that you have chosen.
1. The WebStore will be hosted on WEBGEAR’s secure servers and will either utilize a sub-domain owned by WebGear (USPTGear) or a domain provided by you. If the WebStore utilizes a sub-domain owned by WebGear, then WEBGEAR will be responsible for maintaining the WebStore’s registration, URL and security certificates. If you provide the domain, then you will be responsible for maintaining the WebStore’s registration, URL and security certificates.
2. WebGear will provide you with design services to customize the look and feel of your WebStore. The hours of design services available to you will be based on your Service Plan.
3. WEBGEAR shall provide you with its standard policies related to shipping charges, sales tax, fulfillment, returns and other matters, which you may modify prior to posting these policies on the WebStore.
4. You are responsible for obtaining access to the WebStore and that access may involve third party fees (such as Internet service provider or airtime charges). You are responsible for those fees as well as for all equipment you may need to access the WebStore.
5. From time to time, WebGear may offer new features that augment or enhance your WebStore, which shall be subject to the WTerms.
6. In consideration of your use of the WebStore, you represent that you are of legal age to form a binding contract and are not a person barred from receiving services under the laws of the United States or other applicable jurisdiction. You also agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the WebStore's registration form (such information being the "Registration Data") and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or WebGear has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, WebGear has the right to suspend or terminate your account and refuse any and all current or future use of the WebStore
PRODUCT CATALOG MANAGEMENT
1. You shall be responsible for the selection and purchase of all Products that will be offered on the WebStore.
ORDER PROCESSING, CUSTOMER SERVICE AND FULFILLMENT.
1. WEBGEAR shall be responsible for all aspects of online order taking and fully indemnifies you from any and all claims, obligations, suits, and other actions with respect to these activities.
2. You shall be responsible for all aspects of fulfillment, shipping, customer service, product returns and all other activities related to the WebStore and fully indemnify WEBGear from any and all claims, obligations, suits, and other actions with respect to these activities. You shall bear the risk of loss on any shipments to Client’s customers.
3. You shall maintain its own customer service telephone number for customer inquiries.
ACCESS TO WEBSTORE DATA.
WEBGEAR shall make available to you a real-time, password protected WebStore Administrative Site that will permit you to review and enter WebStore data including Product Names, Descriptions and Prices; Delivery Time Frame data by SKU; Order Status Information by Order Line Number; Sales data including information about the identity of purchasers, goods purchased, and amounts spent along with any other financial or managerial accounting information collected by WEBGEAR and requested by you. You are responsible for maintaining the confidentiality of your Administrative Account and Password and are fully responsible for all activities that occur under your account and password. You agree to (a) immediately notify WebGear of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. WebGear cannot and will not be liable for any loss or damage arising from your failure to comply with this provision.
SALES TAXES.
You shall be fully responsible for collecting all applicable state sales tax and remitting the same to the appropriate authorities and hereby indemnifies and holds harmless WEBGEAR from any tax claims or suits related to such collection and submission of taxation from the WebStore.
WEBGEAR FEES.
You shall pay WEBGEAR setup and transaction fees as indicated in the Service Plan you have selected. The transaction fees will be based on the net retail store sales (excluding shipping and sales tax), and shall be billed monthly. A minimum monthly transaction fee will apply based on your Service Plan.
TERM.
This Agreement shall continue for an Initial Period as defined in your Service Plan. Thereafter, the Agreement will automatically renew. After the Initial Period, either party may terminate this Agreement with 90 days advance written notice.
WEBGEAR PRIVACY POLICY.
Registration Data and certain other information about you is subject to our Privacy Policy. For more information, see our full privacy policy at http://www.webgearstores.com/_privacy.html. You understand that through your use of the WebStore you consent to the collection and use (as set forth in the Privacy Policy) of this information.
CONDUCT.
You understand that all information, data, text, software, photographs, graphics, messages or other materials ("Content") are the sole responsibility of the person from which such Content originated. This means that you, and not WebGear, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available via the WebStore. WebGear does not control the Content posted via the WebStore and, as such, does not guarantee the accuracy, integrity or quality of such Content. You agree to not use the WebStore to upload, post, email, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable or will harm minors in any way; or that you do not have a right to make available under any law or under contractual or fiduciary relationships; or any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; interfere with or disrupt the WebStore or servers or networks connected to the WebStore, or disobey any requirements, procedures, policies or regulations of networks connected to the WebStore; intentionally or unintentionally violate any applicable local, state, national or international law, and any regulations having the force of law; provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act. You acknowledge that WebGear may or may not pre-screen Content, but that WebGear shall have the right (but not the obligation) in its sole discretion to pre-screen, refuse, or move any Content that is available via the WebStore. Without limiting the foregoing, WebGear shall have the right to remove any Content that violates the WTerms or is otherwise objectionable. You acknowledge, consent and agree that WebGear may access, preserve, and disclose your account information and Content if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce the WTerms; (c) respond to claims that any Content violates the rights of third-parties; (d) respond to your requests for customer service; or (e) protect the rights, property, or personal safety of WebGear, its users and the public. You understand that the technical processing and transmission of the WebStore data, including your Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
INDEMNIFICATION.
You agree to indemnify and hold WebGear, and its subsidiaries, affiliates, officers, agents, partners, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of Content you submit, post, transmit or make available through the WebStore, your use of the WebStore, your connection to the WebStore, your violation of the WTerms, or your violation of any rights of another.
CONFIDENTIAL INFORMATION.
Any information that either party learns from the other about the other’s business or activities that is proprietary and confidential shall be treated confidentially and not disclosed to third parties without such other party’s permission. In addition, WEBGEAR shall not disclose your customer list to any third parties or sell such customer lists but WEBGEAR may disclose for marketing purposes its service relationship with you.
TERMINATION.
You agree that WebGear may, under certain circumstances and without prior notice, immediately terminate your WebStore, associated email addresses, and access to the WebStore. Cause for such termination shall include, but not be limited to, (a) breaches or violations of the WTerms or other incorporated agreements or guidelines, (b) requests by law enforcement or other government agencies, (c) a request by you (self-initiated account deletions), (d) unexpected technical or security issues or problems, (e) extended periods of inactivity, (f) you have engaged in fraudulent or illegal activities, and/or (g) nonpayment of any fees owed by you in connection with the WebStore. Termination of your WebGear account includes (a) removal of access to all offerings within the WebStore; (b) deletion of your Administrative Account and all related information, files and content associated with or inside your account (or any part thereof), and (c) barring further use of the WebStore. Further, you agree that all terminations for cause shall be made in WebGear's sole discretion and that WebGear shall not be liable to you or any third-party for any termination of your WebStore, any associated email address, or access to the WebStore.
DISCLAIMER OF WARRANTIES.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
1. YOUR USE OF THE WEBSTORE IS AT YOUR SOLE RISK. THE WEBSTORE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. WEBGEAR EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
2. WEBGEAR MAKES NO WARRANTY THAT (i) THE WEBSTORE WILL MEET YOUR REQUIREMENTS, (ii) THE WEBSTORE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WEBSTORE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, WEBSTORES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE WEBSTORE WILL MEET YOUR EXPECTATIONS, AND (V) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
3. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE WEBSTORE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
4. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM WEBGEAR OR THROUGH OR FROM THE WEBSTORE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE WTERMS.
LIMITATION OF LIABILITY.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT WEBGEAR SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WEBGEAR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE WEBSTORE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND WEBSTORES RESULTING FROM ANY GOODS, DATA, INFORMATION OR WEBSTORES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE WEBSTORE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE WEBSTORE; OR (v) ANY OTHER MATTER RELATING TO THE WEBSTORE.
APPLICABLE LAW.
The performance and construction of this Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia and any legal action or proceeding against it with respect to this Agreement shall be brought in the courts of the Commonwealth of Virginia. In the event of a dispute, the parties shall attempt to work together in good faith to resolve such dispute, and failing that, each party shall retain any rights they may have under existing, applicable law.
SEVERABILITY.
If any term, provision, or condition, or any part thereof, of this Agreement shall for any reason be found or held invalid or unenforceable by any court or governmental agency of competent jurisdiction, such invalidity or unenforceability shall not affect the remainder of such term, provision, or condition of this Agreement and this Agreement shall survive and be construed as if such invalid or unenforceable item, provision, or condition had not been contained herein.
NOTICE.
WebGear may provide you with notices, including those regarding changes to the WTerms, by either email, regular mail or fax based on your registration information.