Last edited on JUNE 10, 2016
DEFINITIONS
The following capitalized terms, when used in this Agreement, have the following meanings:
"Agreement" or "Terms of Service" means this document, titled "CommerscaleTM Terms of Service."
"You", "User", or "Customer" mean any business, person or organization that has accepted these Terms of Service for the purpose of using the Service.
"Service" means, but is not limited to, the Service described on the CommerscaleTM site.
"CommerscaleTM" or "DotMedias" means "9276-2491 QUEBEC INC", a company organized under the laws of the province of Quebec, Canada.
"Account", "Website" or "Store" means the business relationship established between You and CommerscaleTM upon Your acceptance of these Terms of Service.
"Site" refers to the website hosted at domain http://www.commerscale.com and all associated subdomains.
"Privacy Policy" means the CommerscaleTM Privacy Policy described at http://www.commerscale.com/legal/privacy-policy.
ACCEPTABLE USE POLICY
You may not use the Service to do something illegal, violating any law, displaying, performing, sending, receiving or storing any content that is obscene, inappropriate, offensive, or otherwise objectionable, even if the material or its dissemination is lawful;
You may not use the Service for harassing any person or advocating or encouraging violence of any kind against any person, entity or government;
You may not use the Service for obtaining unauthorized access to, or interfering by any means with, any user, system, network, service, or account, including evasion of filters or violation of the security or integrity of any network or system;
You may not use the Service for infringing, violating or misappropriating another’s rights;
1. INTRODUCTION
Please read these Terms of Service carefully before using CommerscaleTM Service.
This Agreement sets forth the legally binding terms and conditions for use of the Service, the Site, and any other websites or services provided by CommerscaleTM.
2. ACCEPTANCE OF TERMS
By using the CommerscaleTM Service in any manner You agree to be bound by this Agreement, including those additional terms and conditions and policies
referenced herein and/or available by hyperlink.
If You are entering into this agreement on behalf of a company or other legal entity, You represent that You have the authority to bind such entity,
its affiliates, and all users who access the CommerscaleTM Service through Your account to these Terms of Service.
3. ACCOUNT ACTIVATION
You understand that in order to explore the Service through a CommerscaleTM Account, You will need to provide a Website Name and login credentials.
However, in order to accept live payment transactions through the Service, You will need to complete the following:
- Provide a description of Your business and how You are charging payers. The description consists of all informations necessary to identify accurately your business (complete address, phone number, tax id, etc.);
- Provide CommerscaleTM with your valid credit card billing information so that CommerscaleTM may charge You its fees for use of the Service;
- Activate a live Stripe or PayPal account and provide CommerscaleTM with the necessary informations needed to process live payments (and be bound to the Stripe’s or PayPal's Terms of Service).
4. SECURITY
CommerscaleTM maintains commercially reasonable administrative, technical and physical procedures to protect Your information from unauthorized access and accidental loss or modification.
However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use such personal information for improper purposes.
You acknowledge that You provide this personal information regarding You and Your payers at Your own risk.
We recommend You review our Privacy Policy, which will help You understand how we collect, use and safeguard the information You provide to us.
You are responsible for maintaining the security of Your CommerscaleTM, Stripe and PayPal login credentials. CommerscaleTM is not liable for any loss or damage
from Your failure to maintain the security of these credentials.
4. COPYRIGHT AND CONTENT OWNERSHIP
The Service itself, including the use of the CommerscaleTM name, logos, domain (or subdomain) names and other distinctive brand features are protected by copyright
and other laws. You may not duplicate, copy, or reuse any portion of the code (HTML/CSS/Javascript) or visual design elements.
You retain Your rights to any content You submit, post or display on or through the Service. By submitting, posting or displaying content on or through
the Service, You grant CommerscaleTM a worldwide, non-exclusive, royalty-free license to use, adapt, modify, publish, and display the content in any and all
media or distribution methods (now known or later developed).
5. TAXES
You are responsible for determining any and all taxes assessed, incurred, or required to be collected, paid, or withheld for any reason in connection
with your use of the Service. You also are solely responsible for collecting, withholding, reporting, and remitting correct taxes to the appropriate tax authority.
We are not obligated to, nor will we determine whether taxes apply, or calculate, collect, report, or remit any taxes to any tax authority arising from any transaction.
For your convenience, we may setup tax calculation uppon account activation but we will never be responsible in any matter of this calculation and the collected tax amounts, as stated above.
6. CUSTOMER SERVICE
You are solely responsible for all customer service issues relating to your goods, services, or donations, including pricing, order fulfillment,
order cancellation by you or customer, returns, refunds and adjustments, rebates, coupons, promotions, functionality and warranty, technical support
and feedback concerning experiences with your personnel, policies or processes. In performing customer service, you will always present yourself as a
separate entity from us. As between you and us, we are solely responsible for customer service issues relating to any CommerscaleTM Account and Store.
7. THIRD PARTY SERVICES
You acknowledge and understand that CommerscaleTM uses third party vendors to provide the necessary hardware, software, networking, storage
and related technology (such as load balancing, anti-ddos, data replication and backup) required to run the Service. CommerscaleTM reserves the right to change
Service providers at any time without prior notice of information. CommerscaleTM is not responsible for any interruptions in the Service as a result of these
third party vendors or its integration with them.
CommerscaleTM offers a Service Level Agreement (SLA) to cover interruptions in the Service under certain circumstances. Please read the appropriate section to learn more.
Payment processors like Stripe and PayPal are third party services privately owned and operated and are in any way partners of CommerscaleTM. CommerscaleTM shall not be held
responsible for any payment-related issue caused by any payment processor like Stripe or PayPal.
8. DATA BACKUP
You acknowledge and understand that CommerscaleTM may never be held responsible for data loss in any way, whatever the cause is and the amount of data loss. Even if CommerscaleTM backups all the data of all the clients on a regular basis, You
are the sole responsible of your data, for example but not limited to, products list, files, pictures, theme customizations, customers list, orders history, tax information.
9. PRIVACY POLICY
As a condition to using the Service, You agree to the terms of Commerscale's Privacy Policy.
The Privacy Policy may be updated from time to time without notice, and is hereby incorporated by reference. The most current version of the Privacy Policy may
be found at http://www.commerscale.com/legal/privacy-policy.
10. RULES AND CONDUCT
As a condition of use, You promise not to use the Service for any purpose that is prohibited by these Terms of Service.
By way of example, and not as a limitation, You agree not to take any action (and/or shall not permit any third party to take any action) on or through the Service that:
- Infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity or violates any law or contractual duty;
- You know is false, misleading, untruthful or inaccurate;
- Is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane;
- Contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of Commerscale or any third party;
- Impersonates any person or entity, including any employee or representative of CommerscaleTM.
Additionally, You agree that You will not:
- Take any action that imposes or may impose (as determined by CommerscaleTM in its sole discretion) an unreasonable or disproportionately large load on CommerscaleTM’s (or its third party providers’) infrastructure or the Service;
- Interfere or attempt to interfere with the proper working of the Service or any activities conducted using the Service;
- Bypass any measures CommerscaleTM may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service);
- Run Maillist, Listserv, any form of auto-responder or "spam" on the Service; or
- Use manual or automated software, devices, or other processes to "crawl" or "spider" any page of the Site;
- Disable or remove any of the features or design on the Service.
You also agree that You will not (directly or indirectly):
- Decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Service, except to the limited extent applicable laws specifically prohibit such restriction,
- Modify, translate, or otherwise create derivative works of any part of the Service, or
- Rent, lease, distribute, or otherwise transfer any of the rights that You receive hereunder, and that it, he, or she will, in the course of using the Service, abide by all applicable local, state, national and international laws and regulations.
11. FEES
You agree to pay the fees assessed by CommerscaleTM to You for providing the Service. These fees will be calculated pursuant to the Fee Schedule linked to here: http://www.commerscale.com/pricing. We reserve the right to revise our Fees at any time, subject to a thirty (30) day notice period to You.
12. TRANSACTION HISTORY
Except as required by law, You are solely responsible for compiling and retaining permanent records of all transactions and other data associated with Your CommerscaleTM Account, Your Stripe Account, Your PayPal Account, Your Transaction History in either Service (Commerscale, Stripe or PayPal) and Your use of the Commerscale Service.
13. YOUR LICENSE
CommerscaleTM grants You a personal, limited, non-exclusive, revocable, non-transferable license, without the right to sublicense, to electronically access
and use the Service solely to build a Website than can (or not) accept and receive payments. The Service includes our website, any software, programs,
documentation, tools, internet-based Services, components, and any updates (including software maintenance, Service information, help content, bug fixes or maintenance releases)
thereto provided to You by CommerscaleTM.
14. OWNERSHIP
The Service is licensed and not sold. We reserve all rights not expressly granted to You in this Agreement. The Service is protected by copyright, trade secret and other intellectual property laws. We own the title, domains, subdmains, copyright and other worldwide Intellectual Property Rights (as defined below) in the Service and all copies of the Service. This Agreement does not grant You any rights to our trademarks or Service marks.
For the purposes of this Agreement, "Intellectual Property Rights" means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and Service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
15. TERM
The Agreement is effective upon the date You agree to it (by electronically indicating acceptance) and continues so long as You use the Service or until terminated by CommerscaleTM.
16. MODIFICATION OF TERMS OF SERVICE
CommerscaleTM reserves the right, acting in its sole discretion, to modify or replace any of the Terms of Service, or change, suspend, or discontinue the Service (including without limitation, the availability of any feature, database, or content) at any time by posting a notice on the Site or by sending an email to You. Commerscale may also impose limits on certain features and Services or restrict Your access to parts or all of the Service without notice or liability.
You are responsible to check these Terms of Service periodically for changes, and Your continued use of the Service after the posting of any changes to the Terms of Service constitutes acceptance of those changes.
17. TERMINATION
You may terminate this Agreement by closing Your CommerscaleTM Account. We may terminate this Agreement and close Your Account at any time for any reason stipulated explicitly or implicitly in these Terms of Service.
18. NO WARRANTY
COMMERSCALETM AND ITS SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AND SUPPLIERS PROVIDE THE SITE AND THE SERVICE "AS IS," AND WITHOUT ANY WARRANTY,
EXPRESS, IMPLIED, OR STATUTORY. COMMERSCALETM’S SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AND SUPPLIERS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE,
MERCHANTABILITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. IN ADDITION, NO ADVICE OR INFORMATION (ORAL OR WRITTEN) OBTAINED BY YOU FROM
COMMERSCALETM SHALL CREATE ANY WARRANTY. SOME COUNTRIES, STATES OR PROVINCES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THE FOREGOING DISCLAIMER MAY NOT APPLY TO YOU.
THIS WARRANTY GIVE YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE OR COUNTY BY COUNTRY.
19. LIABILITY LIMIT
IN NO EVENT SHALL COMMERSCALETM, AND (AS APPLICABLE) COMMERSCALETM’S SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, OR SUPPLIERS BE LIABLE FOR ANY DAMAGES WHATSOEVER,
WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, AND/OR INCIDENTAL, ARISING OUT OF OR RELATING TO YOUR CONDUCT IN CONNECTION WITH THE
USE OF THE SERVICE, OR THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOST PROFITS, BODILY INJURY, EMOTIONAL DISTRESS, OR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL
DAMAGES. COMMERSCALETM’S LIABILITY, AND (AS APPLICABLE) THE LIABILITY OF COMMERSCALETM’S SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AND SUPPLIERS, TO ANY USER,
CLIENT NONPROFIT, OR THIRD PARTY IN ANY CIRCUMSTANCE IS LIMITED TO THE LESSER OF (A) THE AMOUNT OF FEES PAID BY THE CLAIMANT TO COMMERSCALETM IN THE 12 MONTHS
PRIOR TO THE ACT GIVING RISE TO LIABILITY, OR (B) $100. SOME COUNTRIES, STATES OR PROVINCES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES,
SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
20. INDEMNITY
You agree to indemnify and hold CommerscaleTM and (as applicable) any parent, subsidiaries, affiliates, officers, directors, agents, and employees, harmless from
any claim or demand, including reasonable attorney’s fees, made by any third party due to or arising out of his, her, or its breach of this Agreement
(including any documents it incorporates by reference) or Your violation of any law or the rights of a third party.
21. FORCE MAJEURE
No party will be liable for delays in processing or other nonperformance caused by such events as fires, telecommunications failures, utility failures, power failures, equipment failures, labor strife, riots, war, terrorist attack, nonperformance of our vendors or suppliers, acts of God, or other causes over which the respective party has no reasonable control, except that nothing in this section will affect or excuse Your liabilities and obligations, including without limitation for reversals, chargebacks, claims, fines, fees, refunds or unfulfilled products and Services.
22. NO GUARANTEE
CommerscaleTM does not guarantee continuous, uninterrupted access to the Service, and operation of the Service. At any time the Service may be interfered with by numerous factors inside and outside Commerscale’s control. A Service Level Agreement (SLA) is available to cover the downtimes under some circumstances. Please refer to the appropriate section for more details.
If any provision of this Agreement is held unenforceable, then such provision will be disregarded, and all remaining provisions of this Agreement shall remain in full force and effect.
23. NO AGENCY
You agree that CommerscaleTM is an independent contractor, and no agency, partnership, joint venture, employee-employer, or franchiser-franchisee relationship is intended to be created by this Agreement.
24. CHOICE OF LAW AND VENUE
This Agreement shall in all respects be interpreted and construed with and by the laws of the Province of Quebec, Canada, excluding its conflicts of laws rules, and the Canada.
Any lawsuit or other action to resolve any dispute arising in connection with or on account of any breach or alleged breach of this Agreement shall be brought in a province or federal count in the Province of Quebec, Canada having jurisdiction and venue over the action. For this purpose, each User and Client Nonprofit waives any objection or defense based on lack of personal jurisdiction.
Service Level Agreement (SLA)
CommerscaleTM offers a Service Level Agreement (SLA). It adds a specific exception to the article #7.
CommerscaleTM guarentees a 99.9% uptime for all the Websites using our Service. The SLA is calculated on a yearly basis, which means that for a 365-days year, the Service may only be down for 8 hours and 45 minutes.
If the SLA is not respected (your Website is down for more than 8 hours and 45 minutes), CommerscaleTM calculates an indemnification of $0.10 USD per hour exceeding the 8 hours and 45 minutes until the maximum of $100.00 USD is reached.
An indemnification can only be sent to You if your Website has been live (and paid on time) during at least one (1) year. Only one indemnification per year per Website can be sent to You.
All SLA claims for indemnification must be sent to [email protected] and includes the necessary proof of SLA failure (IP from where the downtime has been detected, the duration of downtime, the Account affected, and any other relevant information).
Digital Millennium Copyright Act (DMCA)
Pursuant to Title II of the Digital Millennium Copyright Act (DMCA), all claims of copyright infringement for material that is believed to be residing on 3dcart's network or servers should be promptly sent in the form of written notice to the Designated Agent for DMCA Notices listed below:
How to Report A Claim of Infringement
If you believe a CommerscaleTM Client and/or end User has posted material that infringes your copyright, a notification of a claimed copyright infringement must be provided via email or regular mail to Commerscale and must include the following information (the list below comes substantially straight from the statute 17 U.S.C. Section 512(c)(3); if you do not understand the language please seek independent advice):
- A physical or electronic signature of the copyright owner, or a person authorized to act on behalf of the owner, of an exclusive copyright that has allegedly been infringed.
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works on that site.
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Commerscale to locate the material.
- Information reasonably sufficient to permit 3dcart to contact the Complaining Party, such as an address, telephone number, and, if available, an electronic mail address at which the Complaining Party may be contacted.
- A statement that the Complaining Party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
- A statement that the information in the notification is accurate, and under penalty of perjury, that the Complaining Party is the owner, or is authorized to act on behalf of the owner, of an exclusive right that is allegedly infringed.
- Failure to submit copyright infringement notification as described above will result in no legal notice or action on behalf of CommerscaleTM.
How to Make a Counter Notification
If you are a CommerscaleTM Client and/or end User, and you feel that material you have placed online that has been removed following an infringement complaint is in fact not an infringement, you may file a counter notification. 17 U.S.C. Section 512 (g)(3) requires that to be valid, the counter notification must be written and addressed to our agent (listed above) and must provide the following information (the list below comes straight from the statute; if you do not understand the language please seek independent advice):
- A physical or electronic signature of the subscriber.
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
- A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
- The subscriber's name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber's address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.
CommerscaleTM is not required to respond to counter notifications that do not meet the requirements above.
Our designated agent will present your counter notification to the Complaining Party. Once your counter notification has been delivered, CommerscaleTM is allowed under the provisions of 17 U.S.C. Section 512 to restore the removed material in no less than 10, nor more than 14, business days, unless the Complaining Party notifies us that it has filed an action seeking a court order to restrain you, the subscriber, from engaging in infringing activity related to the material on Commerscale’s system or network.