SearchFit Inc. Service Agreement - Shopping Cart Software

PLEASE READ THIS AGREEMENT CAREFULLY. IF YOU DO NOT AGREE TO THE TERMS HEREIN, SEARCHFIT IS UNWILLING TO PROVIDE SOFTWARE AND HOSTING SERVICES TO YOU.

SearchFit Web Hosting Agreement

This WEB HOSTING AGREEMENT (the “Agreement”) contains the complete terms and conditions that will apply between you (“Customer”) and SearchFit, Inc. (“SearchFit”), a Nevada corporation located at 3638 North Rancho Drive, Suite 6-S, Las Vegas NV 89130.

By clicking “I Agree to the Web Hosting Agreement” you agree to be bound to the terms of this Agreement and any additional terms and conditions selected by you in the sign-up process. This Agreement shall become effective on the date that the Customer signs up for the Services, as defined below (the “Effective Date”).

RECITALS

A. SearchFit has developed, owns and markets proprietary, Internet-based, e-commerce solutions and offers web site hosting services on the Internet; and

B. Customer wishes to make use of the e-commerce solutions and retain the web site hosting services of SearchFit.

NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements herein contained, SearchFit and Customer agree as follows:

AGREEMENT

1. Definitions:

a. “Customer’s Content” means any and all material developed, purchased, or otherwise acquired by Customer that is published, made available or otherwise used in conjunction with Customer’s Site. Customer’s Content includes, but is not limited to, end user data collected by Customer, and information regarding merchandise or services sold by Customer through its Site.

b. “Services” means the services as set forth in Section 2(a) of this Agreement.

c. “SearchFit’s Content” means any and all material developed by SearchFit and made available for use by Customer, including any designing of Customer’s Site, and templates prepared by SearchFit for use by Customer.

d. “Site” means an individual’s Internet presence identified by the domain name.

e. “Software” means the SearchFit eCommerce software, current release version, including any updates provided by SearchFit, and SearchFit’s proprietary technology and source code.

2. Services.

a. Services. The Customer shall select its desired level of service from one of the following: (i) Web Hosting Standard; (ii) Web Hosting Bronze; (iii) Web Hosting Silver; and (iv) Web Hosting Gold. SearchFit shall provide the services selected by Customer in the sign-up process. Customer may change the level of service it requests by only providing SearchFit at least thirty (30) days advanced written notice. Service Levels and descriptions are located at http://www.searchfit.com/shopping-cart-pricing-signup.htm.

b. Network Availability. SearchFit guarantees that the network will be available ninety nine percent (99%) of the time. Upon experiencing network downtime less than the 99% availability, SearchFit will refund Customer 5% of the monthly Fee for each 30 minutes of downtime; provided, however, that such refund shall not to exceed 100% of Customer’s monthly Fee. Network downtime exists when Customer is unable to transmit and receive data and SearchFit is able to confirm said downtime through reasonable investigation. Network downtime is measured from the time the Customer is unable to transmit and receive data to the time the network is once again able to transmit and receive data. In the event Customer experiences network downtime, Customer must notify SearchFit of the downtime by calling ______________ during normal business hours or sending an email to support@searchfit.com. SearchFit will investigate the claim to determine if Customer is eligible for a refund. SearchFit shall not be liable for unavailability of the network due to any of the following: (i) factors outside of SearchFit’s reasonable control; (ii) third party software malfunctions; (iii) any actions or inactions of Customer or any third parties not affiliated with SearchFit; (iv) interruption in internet connectivity; (v) failure resulting from Customer’s equipment and/or third party equipment; or (vi) scheduled maintenance for purposes of maintaining or updating the Site or the Software. If Customer fails to comply with this requirement, Customer forfeits its right to a receive a refund.

3. Fees.

a. Fees. In consideration of the Services, Customer will pay to SearchFit all fees due according to the prices and terms listed on the invoice according to the payment terms set forth below in Section 3(d) (the “Fees”). All sales are final and SearchFit offers no partial or full refunds of any kind on any purchase, except as set forth below in section 3(c).

b. Change in Fees. SearchFit may change its fee schedule upon sixty (60) days notice by postal mail, electronic mail, or by posting the change on the SearchFit Site. The current fee schedule is located at http://www.searchfit.com/shopping-cart-pricing-signup.htm. Upon such notice, Customer shall have thirty (30) calendar days prior to the effective date of the fee schedule to notify SearchFit by certified postal mail should Customer not agree to such rate increase and that Customer wishes to terminate this Agreement.

c. 30-day Money Back Guarantee. Customer is entitled to a refund of all Fees paid, excluding set-up Fees, within thirty (30) days of the Effective Date. Customer must notify SearchFit in writing of Customer’s intent to cancel Customer’s account within the thirty (30) day period to receive a refund. Any request for a refund beyond the thirty (30) day period will not be processed.

d. Payment. SearchFit will invoice Customer once a month and all payments are due within thirty (30) calendar days after Customer receives the invoice. If a payment is returned or rejected, or incurs additional costs for SearchFit for any reason, then Customer shall pay a fee of $40 and reimburse all collection fees and costs incurred by SearchFit. SearchFit reserves the right to interrupt or terminate the Services in the event the Customer’s account has not been paid in full within thirty (30) calendar days following receipt of an invoice. Any interruption does not relieve Customer from the obligation to pay all Fees due to SearchFit, including the monthly account charge. Accounts and all amounts in default are subject to a late payment charge of 1.5% per month, or the maximum amount permitted by law, whichever is less, until fully paid. If Customer defaults, Customer agrees to pay SearchFit its reasonable expenses, including attorney and collection agency fees, incurred in enforcing its rights.

e. Taxes. Customer will pay or reimburse SearchFit for all sales, use, transfer, privilege, excise and all other taxes and all duties, whether international, national, state or local, however designated, which are levied or imposed by reason of the performance by SearchFit under this Agreement, excluding, however, income taxes or gross receipts taxes which may be levied against SearchFit. Such taxes may be reflected on Customer invoices.

4. Sublicense. Customer may not sublicense or resell any of SearchFit’s Software or Services to any third party without the prior written consent of SearchFit. Any attempts to do so is a material breach of this Agreement and grounds for termination as set forth in Section 6 of this Agreement.

5. License. SearchFit hereby agrees to provide Customer with a non-exclusive, royalty-free, irrevocable, non-supported license to use SearchFit’s trade name, trademarks, and service marks (collectively, “SearchFit’s Marks”) in advertising and publicity in conjunction with the offering of Customer’s Content, provided that Customer shall submit copy to SearchFit for its prior written approval, and provided further that under no circumstances shall such use imply that SearchFit endorses, sponsors, certifies, approves or is responsible for Customer’s Content. Notwithstanding the foregoing, Customer need not obtain SearchFit’s prior written approval where use of SearchFit’s Marks is limited to inclusion in a list of systems via which Customer’s Content is available. Customer agrees to maintain a text hyperlink to "http://www.SearchFit.com" at the footer/bottom of the Customer’s Site. The link must be standard html, contain no javascript, and be approved by SearchFit. Customer hereby grants SearchFit a non-exclusive right and license to use Customer’s name and such of Customer’s trade names, trademarks, and service marks (collectively, “Customer’s Marks”) as are listed on Customer’s Content or otherwise provided to SearchFit in connection with this Agreement: (i) in printed and online advertising, publicity, directories, newsletters, and updates describing SearchFit’s Services; (ii) on SearchFit Sites; and (iii) in applications reasonably necessary and ancillary to the foregoing.

6. Term and Termination.

a. Term. The term of this Agreement shall begin on the Effective Date and shall continue according to the term selected by Customer in the sign-up process. In the event Customer desires to terminate this Agreement prior to the end of the term, Customer must provide thirty (30) days prior written notice of its election to terminate this Agreement to SearchFit. If Customer has pre-paid for the Services, Customer shall not be entitled to a refund for any of the fees paid.

b. Termination For Breach. The parties shall have the right to terminate this Agreement upon ten (10) days prior written notice if the other party is in material breach of any term of this Agreement, including, but not limited to, payment of Fees, and the breaching party fails to remedy such breach within ten (10) calendar days.

7. Terms of Use and Privacy Policy

a. Terms of Use and Privacy Policy. SearchFit maintains on its Site SearchFit’s current Terms of Use and Privacy Policy. The Terms of Use is located at [insert hyperlink]. The Privacy Policy is located at [insert hyperlink]. Customer agrees to abide by the Terms of Use and Privacy Policy. SearchFit may modify its Terms of Use and Privacy Policy at any time and shall post the revised Terms of Use and Privacy Policy on SearchFit’s Site which will be effective upon posting.

b. End Users to Comply with Terms of Use and Privacy Policy. Customer acknowledges that SearchFit may terminate an end user’s access to Customer’s Site for noncompliance with SearchFit’s Terms of Use and Privacy Policy, regardless of whether or not the end user complies with Customer’s Terms of Use and Privacy Policy. SearchFit acknowledges that Customer may terminate an end user’s access to Customer’s Content for noncompliance with Customer’s Terms of Use and Privacy Policy.

8. Security. SearchFit may, at its own discretion, temporarily suspend all Services for the purpose of repair, maintenance or improvement of any of SearchFit's systems which may temporarily interrupt operation of the Customer’s Site. SearchFit shall, however, provide Customer with prior notice where it is reasonably practicable under the circumstances and shall restore operation of Customer’s Site as soon as is reasonably practicable. Customer shall not be entitled to any setoff, discount, refund or other credit, in case of any service outage which is beyond SearchFit's control or which is reasonable in duration. The parties expressly recognize that it is impossible to maintain flawless security, but SearchFit shall take reasonable steps to prevent security breaches on the Customer’s Site.

9. Ownership of Content. SearchFit acknowledges and agrees that: (i) as between Customer on the one hand, and SearchFit and its affiliates on the other, Customer owns all right, title and interest in Customer’s Content; and (ii) nothing in this Agreement confers in SearchFit or its affiliates any right of ownership in Customer’s Content. Customer acknowledges and agrees that: (i) as between Customer on the one hand, and SearchFit and its affiliates on the other, SearchFit or its affiliates own all right, title and interest in and to SearchFit’s Content; and (b) nothing in this Agreement confers in Customer any right of ownership in SearchFit’s Content. The parties expressly recognize that the Customer Site is not a “work made for hire,'' that SearchFit is an independent contractor, and that SearchFit is not an employee, partner, joint author or joint venturer of Customer. Customer acknowledges and agrees that Customer is solely responsible for ensuring the integrity of Customer’s Content. Although SearchFit provides data backup services, Customer is advised that SearchFit in no way is responsible for any damages resulting from the loss of Customer’s Content, regardless of the reason for such loss. Customer is solely responsible for backing-up/archiving Customer’s Content.

10. Point of Contact. Customer shall designate a single point of contact when signing up for the Services (the “Point of Contact”). Customer's Point of Contact shall have full authority to enter into agreements and make binding decisions on behalf of Customer. Customer agrees that SearchFit may rely on representations made by Customer's Point of Contact. Customer may change its Point of Contact at any time by giving written notice to SearchFit in accordance with Section 18 of this Agreement. SearchFit is under no obligation to accept instructions from anyone other than the Point of Contact.

11. Prohibited Practices. SearchFit shall have no duty or obligation to monitor Customer's Content or any other Content provided or distributed by others, and SearchFit shall not edit or otherwise exercise any control over Customer's Content. Nevertheless, SearchFit may, in its sole discretion, at any time, without notice to Customer and without liability to Customer, remove from public view, disconnect, or terminate the hosting of any of Customer's Content or other Content for any one or more of the following reasons: (i) the content is in violation or allegedly violates the law, rules or regulations of any state, country or subdivision thereof; (ii) contains illegal or sexually explicit content or activities; (iii) the content constitutes harassment of users; (iv) Customer's noncompliance with or material breach of the Terms of Use, Privacy Policy or this Agreement; or (v) claims made by third parties against SearchFit that Customer or any of its end users has engaged in one or more of the above practices.

12. Indemnification. Customer shall indemnify and hold harmless SearchFit, its stockholders, officers, directors, employees, agents, attorneys, successors, assigns, predecessors and affiliates and other related entities, from and against any and all claims, demands, actions, causes of action, suits, proceedings, losses, damages, costs, and expenses, including reasonable attorneys fees, arising from or relating to Customer's, or an end user's use, of Customer's Content, Customer’s breach of this Agreement, or any act, error, or omission of Customer in connection therewith, including but not limited to matters relating to incorrect, incomplete, or misleading information, libel, invasion of privacy, infringement of a copyright, trade name, trademark, service mark, or other intellectual property or other right; or violation of any applicable law.

13. Warranties.

a. Customer Warranties. Customer represents and warrants to SearchFit that (i) Customer has the authority to enter into this Agreement; (ii) Customer has the right to grant all of the rights Customer is granting to SearchFit pursuant to this Agreement; and (iii) Customer’s Content as provided by Customer to SearchFit does not and will not contain any libelous, defamatory, obscene or slanderous material, and will comply with all applicable law.

b. SearchFit Warranties. SearchFit represents and warrants that: (i) it has the full right, power and authority to enter into this Agreement, to grant all rights granted herein, and to perform all of SearchFit’s obligations hereunder; and (ii) SearchFit’s performance of its obligations hereunder will not violate the rights of any party.

14. Disclaimer of Warranties. THE FOREGOING WARRANTIES OF SEARCHFIT ARE MADE IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. THE SOFTWARE AND SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND SEARCHFIT NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR SEARCHFIT ANY OTHER LIABILITY IN CONNECTION WITH ANY SOFTWARE OR SERVICES PROVIDED UNDER THIS AGREEMENT.

15. Limitation of Liability. SEARCHFIT ASSUMES NO RESPONSIBILITY WITH RESPECT TO CUSTOMER'S OR AN END USER'S USE OF THE SOFTWARE OR SERVICES AND SHALL NOT BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, AND SPECIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF USE, BUSINESS INTERRUPTIONS, AND LOSS OF PROFITS, OR INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, EVEN IF SEARCHFIT IS AWARE OF THE POSSIBILITY THEREOF. SEARCHFIT SHALL IN NO EVENT BE LIABLE FOR MORE THAN THE TOTAL FEES ACTUALLY RECEIVED BY SEARCHFIT FROM CUSTOMER FOR THE SERVICES DURING ANY 12-MONTH PERIOD.

16. Assignment. Customer may not assign this Agreement without the prior written consent of SearchFit, which SearchFit may refuse in its sole discretion. Any attempt by Customer to assign this Agreement without prior written consent shall be deemed null and void and shall constitute a breach of this Agreement. SearchFit may assign this Agreement, which shall be effective upon written notice provided to Customer.

17. Payment Card Data Security. In the event a Customer selects to view credit card information, Customer agrees that Customer assumes all liability for Customer’s actions and the inherent risk associated with viewing credit card information. SearchFit will not be responsible for any such risk or liability regardless of the security settings. If a merchant chooses to view credit card information, they are certifying that they understand and are following all guidelines promulgated by the Payment Card Industry Security Standards Council (the “PCI Guidelines”) for viewing credit card information. If a merchant does not follow all of the PCI Guidelines when viewing credit card information, that merchant is in breach of this Agreement. At its discretion, SearchFit reserves the right to change the security settings of any merchant at any time with or without warning.

18. Notices of Trademark and Copyright Infringement. Customer agrees to comply with the requirements of the Digital Millennium Copyright Act (the "DMCA") and acknowledges that SearchFit is a "service provider" under the DMCA and is therefore immune from liability under the DMCA, including 17 U.S.C. § 512. Customer agrees to reimburse SearchFit for any fees incurred by SearchFit in complying with a trademark or copyright infringement claim that is received from a legitimate trademark or copyright holder. SearchFit reserves the right to close any Customer Site that, upon notification, fails to comply with a legitimate infringement claim within the specified time.

19. Notice. All notices, requests and other communications called for by this Agreement shall be deemed to have been given immediately if made by facsimile or electronic mail (confirmed by concurrent written notice sent first class U.S. mail, postage prepaid), if sent to SearchFit at _____________, Fax: ____________, Attention: __________ (e-mail: ___________), and if to Customer at the physical and electronic mail addresses submitted by Customer upon entering into this Agreement. Notice by any other means shall be deemed made when actually received by the party to which notice is provided.

20. Miscellaneous. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to conflicts of law provisions contained therein. The parties hereby expressly consent to the personal jurisdiction of the state and federal courts located in San Diego County, California for any lawsuit filed there arising from or related to this Agreement. If any action or proceeding relating to this Agreement or the enforcement of any provision of this Agreement is brought against any party hereto, the prevailing party shall be entitled to recover reasonable attorneys’ fees, costs and disbursements (in addition to any other relief to which the prevailing party may be entitled). If any provision of this Agreement is found invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in force. Neither this Agreement, nor any terms and conditions contained herein may be construed as creating or constituting a partnership, joint venture or agency relationship between the parties. A waiver by either party of a breach or violation of any provision of this Agreement will not constitute or be construed as a waiver of any subsequent breach or violation of that provision or as a waiver of any breach or violation of any other provision of this Agreement. This Agreement and any additional terms and conditions selected by Customer in the sign-up process are the complete and exclusive agreement between the parties with respect to the subject matter hereof, superseding and replacing any and all prior agreements, communications, and understandings, both written and oral, regarding such subject matter.. This Agreement may only be modified, or any rights under it waived, by a written document executed by both parties. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute a single instrument. Execution and delivery of this Agreement may be evidenced by facsimile transmission. Customer hereby represents and warrants that in executing this Agreement Customer has relied solely upon Customer’s own judgment, belief and knowledge, and the advice and recommendations of Customer’s own independently selected counsel, concerning the nature, extent and duration or Customer’s rights and obligations under this Agreement.