1. The Service
The service licensed to qualified Retailer by Company under this Agreement (the "Service") consists of (a) proprietary software and access via Internet to the Company's proprietary system and network of software applications, mobile applications, databases, and design for POP-Market Account (the "System"); (b) a secure environment within the System for Retailer's use to browse collections and easily search, view and shop products by brand, category, look, delivery or price point. With this free private account, registered Retail Buyers can easily assort picks, make style notes, and place and manage orders online. Registered Buyers can also access regular in season, new style updates from their selected favorite brands.In this and subsequent paragraphs, "Use" means, in relation to the software or the documentation, its loading, displaying, running, transmission or storage for the purpose of processing the instructions contained in the software or (as the case may be) the documentation.
2. This Agreement
This Agreement governs use of the Service, unless otherwise stated herein.
Under the terms of this agreement, Company grants Retailer one non-cancelable, non-transferable, non-exclusive license to use the Service for the specified time period, unless otherwise terminated or amended in accordance with these terms of service, the respective License Agreement, or the Terms and Conditions.
This service is free to qualified and registered buyers.
5. Ownership and rights
All information and materials supplied by Company in connection with this Agreement, including without limitation the Company's software and technology, databases, data, design tools, authoring tools, search engines, documentation, computer languages, source code, object code, methods, methodologies, algorithms, graphics, text, images, and other information, data, content, materials, and services, and all rights, title, and interests in all copyrights, trademarks, patents, trade secret rights, and other intellectual and proprietary rights relating to the Service, shall at all times be and remain the property of Company and its successors and assigns. Company shall be the sole owner of all copyrights, trademarks, patents, trade secret rights, and other intellectual and proprietary rights in and to any invention, development or innovation conceived or developed independently by Company during the Term of this Agreement and in the performance of the Service, and any and all derivative works, enhancements, or modifications to any of the above.
6. Certain Obligations
(a) Retailer agrees that the information and materials made accessible to it through the use of the Service are intended for Retailer's sole use and that, without the prior written permission of the Company, such information and materials may not be redistributed or published in any form outside Retailer's organization. In connection therewith, Retailer may view, display, and download information for use subject to the terms of this Agreement, provided all copyright and other proprietary notices are kept intact. Any other use of the materials or information in connection with the Service is prohibited without the prior written permission of Company. Retailer may not modify, publish, transmit, participate in the transfer or sale of, reproduce, create derivative works from, distribute, perform, display, incorporate into another website, or in any other way exploit any of the materials or information provided in connection with the Service, in whole or in part. Retailer further agrees that any person within its organization who receives any information derived or attributed to the Service shall be informed of all restrictions hereunder.
(b) Retailer acknowledges that Retailer proprietary information that the Retailer introduces into the system will be used throughout the system to effectuate the purpose of the service. If Retailer introduces proprietary information into the system it will only be used at the direction of the Retailer. Retailer shall retain sole ownership of the underlying information uploaded or otherwise provided to Company in connection with the Service, including without limitation all recognized intellectual property rights therein, provided, however, that Retailer acknowledges that it has no rights in or ownership of any proprietary software, assets, or intellectual property of Company. Company shall not reuse or resell any of Retailer's information that is confidential to Retailer and not generally available for third party use or disclosure, without Retailer's written consent. Retailer is in agreement that Company will generate and collect certain Retailer user activity tracking information for the use of reporting user activity to the Retailer and for improving the Company product/service. Customers that use the Service are solely responsible for the accuracy of all style and collection information submitted by them for inclusion in the Service.
(c) Retailer shall use any software provided by Company only in accordance with the proper use requirements set forth in the applicable documentation and licenses. Retailer is responsible for obtaining any and all necessary software licenses required to use the Service. Company shall not be responsible for any delay in, or inability to perform, the Service that is the direct result of Retailer's failure or delay in the performance of its obligations.
(d) While we try to offer reliable data, Company does not control, is not responsible for and makes no representations or warranties with respect to any brand's content. Brands that use the Service are solely responsible for the accuracy of all style and collection information submitted by them for inclusion in the Service.
7. ID and Password Procedures
(a) Company shall provide Retailer with a unique identification code ("ID") for its authorized user (the "User"). User is simply required to register and create their own password; If User wishes to change their password, they may request a temporary password, which they may then change to a new password of their choice. Company shall have no responsibility for controlling or monitoring the use of such Passwords and no liability for any use of such Passwords. Retailer shall be solely responsible for maintaining the accuracy of the information provided to Company as to authorized User.
(b) Retailer shall take such actions as are necessary to maintain the confidentiality of, and prevent the unauthorized use of ID and Password. Retailer agrees to notify Company immediately if it determines, or has reason to believe, that an unauthorized party has gained access to an ID or a Password.
(c) Retailer hereby authorizes Company and any party claiming through Company, including without limitation its Customers and other third parties, to rely upon any information and/or instructions set forth in any data transmission using the assigned ID and Password, and of the information regarding the User provided to the Company, without making further investigation or inquiry, and regardless of the actual identity of the individual transmitting the same, in connection with the operation of the Service. Use of the assigned ID or Password, whether or not authorized by Retailer, shall be solely its responsibility, and Retailer shall bear the full risk of any loss in connection therewith.
(d) Retailer hereby assumes sole responsibility and liability for the accuracy and adequacy of information entered on the Service using both an ID and a Password assigned to User, and for all actions taken in connection with the Service. If Retailer notifies Company of an unauthorized use of its ID and Password, Company will make reasonable efforts to assist Retailer to try to cancel or correct the results of any such unauthorized actions; provided, however, that that Company shall have no liability for any failure to cancel or correct the results of any such unauthorized actions.
8. Lawful Use
(a) Retailer shall not post or transmit into the System any unlawful, threatening, abusive, libelous, defamatory, obscene, pornographic, profane, or otherwise objectionable information of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, federal or foreign law;
(b) Retailer shall not knowingly post or transmit into the System any information or software which contains a virus, cancelbot, Trojan horse, worm or other harmful component.
(c) Retailer shall not knowingly upload, post, publish, or transmit into the System any information which is protected by copyright, or other proprietary right, or derivative works with respect thereto, without the permission of the copyright owner or rights holder.
(d) Retailer shall comply with all federal, state, local, and foreign laws, rules, and regulations in connection with the subject matter of this Agreement. Retailer assumes full responsibility for monitoring whether its transactions using the Service are in compliance with all such laws, rules, and regulations.
(a) Company warrants to Retailer that the service (i) shall perform in all material respects as described in the applicable documentation, (ii) does not contain any virus or any other contaminant that may alter, disrupt or otherwise interfere with Retailer's use of the service or any other software, data, or information, and (iii) shall be provided in a manner consistent with professional and industry standards by personnel with the required training, background, and experience to provide such service.
(b) The warranties above are exclusive and in lieu of and company disclaims all other warranties, whether express or implied, including the implied warranties of merchantability and fitness for a particular purpose. Company does not warrant that the applications will operate in combinations other than as specified in the documentation or that the operation of the applications will be uninterrupted or error-free. The company expressly does not warrant the use or operation of any software, hardware, or other product, good, or service manufactured, developed, or provided by any third party.
(c) From time to time, Company may provide Retailer with information from third party information, content, or service providers, and may provide referrals or Internet links to service providers. Such information, referrals, and Internet links are provided only for Retailer's information and convenience, and Retailer acknowledges and agrees that Company is not responsible for any such information, content, or service. A link to another website does not constitute an endorsement of that site nor of any product or service on such site. Company makes no representation and disclaims any warranty that any such Information, content, or descriptions of service is true, complete, or accurate. All such Information, content, and services are provided on an "AS IS" basis without any warranty of any kind.
10. Term and Termination
(a) The Agreement shall remain in effect, unless terminated as provided herein.
(b) Company may, at its sole election, terminate the Agreement and/or temporarily suspend Retailer's rights or license to access the Service or the System in the event Retailer breaches or violates any material obligation described herein.
(c) Retailer may terminate the Agreement and stop using the Service or the System at any time at its sole election
(d) Upon any termination or expiration of the Agreement, each party shall return to the other all papers, materials, and other properties of the other party then in its possession, including but not limited to Confidential Information. Company reserves the right to add to, delete or change this Agreement at any time. As such, you should check this Agreement online from time to time for such changes.
12. If you register for these Services, you agree to do so in accordance with Company's online License Agreement as well as any other hard-copy License Agreement executed by both parties.
13. Representations: Retailer represents to Company that you have the full power and authority to enter into and perform under this Terms of Service Agreement.
14. Limitation of Liability
(a) Neither party shall be liable to the other party for any consequential, special, incidental, punitive, exemplary, or indirect damages, arising out of or related to the agreement,.
(b) Retailer hereby acknowledges and agrees to accept the risk that the Service, the System, and any information of Retailer or any other party on the System, from time to time may contain inaccuracies and may be adversely affected by incorrect information or system malfunctions or shut-downs; provided, however, that Company shall use commercially reasonable efforts to correct any inaccuracies expressly made known to it and to correct system malfunctions and shut-downs that are within its control. Company shall not be liable for any liability, loss, damage, cost or expense caused from error, omission, interruption, deletion, defect, delay in operation or transmission, communication or line failure, or destruction, flood, fire, earthquake, power outage, Acts of God, or any accident or incident that is not the result of actions by Company or its other users (a "Force Majeure Event"). In any such Force Majeure Event, Company shall continue to perform all Services to the extent commercially reasonable under the circumstances. Company shall immediately notify Retailer of a Force Majeure Event.
(a) Company shall defend, indemnify and hold Retailer and its respective officers, directors, agents and employees (the "Indemnified Parties") harmless, from any proceeding brought against an Indemnified Party by a third party for any violation of a legally protected right of such third party, arising out of the assignment of or use by Retailer of the System and Services. Such indemnification shall be conditioned upon (i) Company having sole control of the defense of any such action, claim or demand and of all negotiations for its settlement or compromise provided that any settlement or compromise which requires contribution from the Indemnified Parties or any use or mention of the Indemnified Parties' name must be approved by the Indemnified Parties (such approval not to be unreasonably withheld); and that (ii) the Indemnified Parties shall cooperate with Company in a reasonable way to facilitate the settlement or defense of such claim or demand. Notwithstanding the above, Company shall have no obligation to indemnify the Indemnified Parties to the extent that such claim is Retailer's responsibility as specified below.
(b) Retailer hereby agrees to indemnify, hold harmless at Retailer's expense and defend Company and its officers, directors, agents and employees from and against any and all claims asserted against Company by a third party to the extent such claims allege infringement of such third party's intellectual property rights by Company as a result of Company's hosting of Retailer provided data and materials on the System if there would be no infringement but for the use of such Retailer provided data and materials.
All notices, requests, demands, waivers, and other communications required or permitted to be given under the Agreement shall be in writing and shall be deemed to have been duly given if delivered personally or mailed, certified, or registered mail with postage prepaid, or sent by facsimile, or sent via an internationally recognized overnight courier services to the respective executors of this agreement.
17. Entire Agreement
This Agreement contains the entire understanding and agreement among the parties hereto with respect to the subject matter hereof and supersedes any prior or contemporaneous understandings, agreements, negotiations, and discussions, whether oral or written, between the parties. Each party hereto acknowledges and warrants to the other party that no promise, representation, or inducement not expressly contained herein has been made or offered, and that the Agreement is executed without reliance on any promise, representation, or warranty not expressly contained herein.
18. The Agreement shall not be modified in any other way except by a written agreement signed by the parties hereto.
No term or condition of the Agreement shall be waived except by a writing signed by all parties hereto. Failure to enforce any provision of the Agreement by a party shall not constitute a waiver of any term or condition hereof by such party. Waiver of any one provision of the Agreement shall not constitute a waiver of any other provision herein.
If any term, provision, covenant or restriction of the Agreement is held by a court of competent jurisdiction or other authority to be invalid, void, or unenforceable, the remainder of the Agreement shall remain in full force and effect and shall in no way be affected, impaired, or invalidated.
21. Unless otherwise specified, all documentation, whether hard-copy or electronic will be in English only. The original of the Agreement has been written in English and the governing language of the Agreement shall be English.
22. Company and Retailer expressly agree that any and all disputes, claims or litigation arising from or related in any way to the Agreement shall be resolved exclusively by the courts of the State of California, USA.
(END OF TERMS OF SERVICE)