Software Developers, LLC, dba SellerCloud
@ www.sellercloud.com
Terms of Use Dated as of May 4, 2016

1. Introduction

Welcome to the www.sellercloud.com website (the “Site”) of Software Developers, LLC, a New Jersey limited liability company doing business as SellerCloud (“SellerCloud,” also referred to herein as “us,” “we” and “our”). Thank you for your interest in using the products and services offered by SellerCloud on the Site (collectively, “Offerings”). Our services may include online use of our proprietary software, equipment, and support, and other services (collectively, “Services”). Our products may include limited licenses to use our proprietary software, and other products (collectively, “Products”).

2. Binding Agreement

We provide to you, whether personally or as an authorized agent on behalf of a separate entity (“you,” “your” or “Customer”), access to our Site and Offerings, subject to these Terms of Use, our Privacy Policy, and any other linked policies of ours, as they may be amended from time to time (collectively, the“Agreement”). By using our Site or any of our Offerings, you are offering to comply with all of the terms of this Agreement without limitation or qualification. By allowing any such use, we are accepting your offer, subject and restricted to all of the terms of this Agreement. PLEASE THEREFORE CAREFULLY READ THIS AGREEMENT BEFORE YOU REGISTER OR USE ANY OFFERINGS. IF YOU DO NOT AGREE WITH THIS AGREEMENT IN ITS ENTIRETY, YOU MAY NOT REGISTER OR USE ANY OFFERINGS, AND DOING SO WOULD BE UNAUTHORIZED, CONSTITUTE A TRESPASS, AND VIOLATE APPLICABLE LAW. Any acceptance of your offer, and the provision of our Offerings will occur at our offices in New Jersey, the location of our principal places of business.

3. Changes to Agreement

We reserve the right, in our sole discretion, to change this Agreement at any time with or without notice, effective thirty days after posting of the revised Agreement on the Site. Your continued use of the Site or any Offerings after such posting or notification means you accept the modifications. If you do not agree to any changes to this Agreement, you must terminate this Agreement pursuant to the termination provisions below, and discontinue your use of this Site and any Services. Except solely as provided in this paragraph and the severability provision of this Agreement, this Agreement may not be changed without the handwritten (non-electronic) signature of an authorized person at SellerCloud.

4. Registration

To use restricted portions of the Site or request or receive certain Offerings, you will need to create an account initially by registering with us online and then logging into the Site. In creating an account, you must provide us with a unique (as to us) email address and username, along with other accurate and complete registration information, as prompted in the registration form. You shall be solely responsible for the use of your user name and password, including their safekeeping so they are not disclosed to or used by any unauthorized third party. You agree that each person listed in your registration or account information is your agent with full authority to act on your behalf with respect to access to and use of the Site and Offerings in accordance with any permissions we may grant you, and that your administrative contact for your account has the authority, without limitation, to subscribe to all Offerings ordered, and to terminate and modify any such orders and your account information.

When you click on the “I Accept” button, register, or use any our Offerings: (i) you represent and warrant that (a) you have the authority to bind all users whom you allow to use the Site or any Offerings, and (b) the registration information you provide is complete and accurate, and (ii) you and all such users consent to be bound by, and become parties to this Agreement. If you do not agree to (or cannot comply with) all of the terms of this Agreement, (a) click the “I Decline” button, (b) do not use the Site or any Offerings, and (c) you will not be authorized to use or have any license or right to any Offerings.

We reserve the right, where reasonable [burden on customer to show unreasonable], to deny you and others access to the Site, refuse service, terminate accounts, or remove or edit content at any time, either temporarily or permanently, for any reason in our sole discretion, including without limitation our determination that you have failed to abide by the terms of this Agreement or appear likely to us to do so. By granting you access at any time, we do not obligate ourselves to maintain the Site in any form, and we expressly reserve the right to modify, suspend, or terminate your access privileges. You agree and understand that we may, in our sole discretion and without any prior notice, close the Site and delete any files which you may maintain at the Site and any information which you may choose to post. You should keep a copy of any material which you post to or maintain at the Site because we will not undertake to retain copies of any material which we or others may delete from the Site. Our goal is to generally provide you at least thirty days’ notice before we deny you access to the Site (other than regularly scheduled maintenance), terminate your account, remove or edit content.

5. Hosting and Support; Service Levels.

If the SellerCloud Services and corresponding order and registration information provide for SellerCloud to host your Portal (defined below), subject to the other terms of this Agreement, during the applicable subscription period for the applicable SellerCloud Services,0 SellerCloud agrees to configure, install, house, maintain, modify and operate the computer equipment, server software, network equipment and components and high-speed bandwidth/connectivity necessary to host your Portal. For purposes of this Schedule A, “Portal” means the internet site or network of sites created and hosted by SellerCloud for you and for which SellerCloud’s Service Fees (defined in Section 7, below) and any customization fees have been paid.

You agree that from time to time the Portal may be inaccessible or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs that SellerCloud may undertake from time to time; or (iii) causes beyond the control of SellerCloud or that are not reasonably foreseeable by SellerCloud, including, without limitation, a Force Majeure event (defined in Section 15, below), interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures. You agree that SellerCloud has no control of availability of your Portal on a continuous or uninterrupted basis. You acknowledge and agree that you are solely responsible for all acts, omissions and use under and charges incurred with your account or password or in connection with your Portal. You are solely responsible for migrating your own existing documents into your Portal. SellerCloud may provide migration and/or upgrade services for a fee. You are solely responsible for data conversion, data entry, and verification of data.

AT ALL TIMES, YOU SHALL BEAR THE RISK OF LOSS AND OR DAMAGE TO ANY OR ALL OF YOUR PORTAL DATA, INFORMATION, IMAGES, DOCUMENTS, AND OTHER CONTENT. SellerCloud may establish and maintain during the term of your License an information security program. Notwithstanding anything in this Agreement to the contrary, SellerCloud’s information security program is intended to, but SellerCloud is not making any representations or warranties or undertaking any obligations that it will: (i)provide a measure of confidentiality to your Customer Data (defined in Section 6 of Schedule A, below); and (ii) protect against anticipated threats or hazards to the security or integrity of your Customer Data. You shall be solely responsible for undertaking measures to: (i) prevent any loss or damage to your content or Customer Data; (ii) maintain independent archival and backup copies of your content and Customer Data; and (iii) ensure the security, confidentiality and integrity of your content and Customer Data transmitted through or stored on SellerCloud’s servers. SellerCloud’s servers and services are not an archive and SellerCloud shall have no liability to you or any other person for loss, damage or destruction of any of your content or Customer Data unless such loss, damage or destruction was caused by SellerCloud’s intentional misconduct. In the event this Agreement, your License, or your use of the Portal is terminated, moving your content or Customer Data off of SellerCloud’s servers is your responsibility.

SellerCloud’s service level objective is to provide the Services without Service Level Failures (defined below) on a twenty-four (24) hours a day, seven (7) days a week basis throughout the term of your License (“Service Level Objective”). A service level failure period begins upon receipt of an email by us from you of a detailed report of an incident and verification by us that the Service for which you have subscribed and your account is current has been interrupted, suspended or otherwise unavailable due to an Error (defined in Section 6, below), and ends when the affected Service is operational or an Error Correction (defined below) or reasonably acceptable workaround has been provided (“Service Level Failure”). Notwithstanding the foregoing, a Service Level Failure shall not include, and no Service Level Credits will be given for, a service failure:

• due to the Customer’s or any of its authorized user’s action or failure to act
• due to causes beyond the control of SellerCloud or not reasonably foreseeable by SellerCloud, including, without limitation, a Force Majeure event, interruption or failure of telecommunication or digital transmission links, hostile network attacks, a failure of hardware or software or services or products by one of our suppliers or licensors, network congestion or other third party causes
• that which is part of a planned service interruption for maintenance in accordance with the Agreement, or results from implementation of a Customer order.

Provided that you agree to provide us with notice of any suspected Service Level Failure in accordance with the Error reporting procedure described in Section 6, below, we will apply to your account a credit in an amount equal to five percent (5%) of the net Services Fees for the applicable Services for each full hour of Service Level Failure (“Service Level Credit”). An applicable Service Level Credit will appear on your invoice following processing. Service Level Credits will not have any cash value at the end of your subscription or License term or otherwise. Service Level Credits will be calculated as a credit to the Services Fees only for the applicable Services that experienced the Service Level Failures. The maximum total credit for all Service Level Failures to meet their Facility Service Objectives is limited to the total Services Fees for such Services for the month in which the Service Level Failures occur. You must be a SellerCloud Customer in good standing to receive any Service Level Credits. No Service Level Credits will be applied to accounts that are past-due or for accounts that are canceled before the conditions for application of the Service Level Credit is met. Upon cancellation of your account, any outstanding orpreviously accrued Service Level Credits will be forfeited. Service Level Credits will not be applied against past due balances.

THE FOREGOING SERVICE LEVEL CREDITS REPRESENT CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY SERVICE LEVEL FAILURES, ERRORS, OR BREACHES OF WARRANTY. Customer waives its rights to all other remedies or recourse for any deficiency or failure by us to meet our SERVICE LEVEL OBJECTIVES

6. Support and Disaster Recovery

The following provisions of this Section 6 shall apply during any period for which we have agreed to provide Hosting Services and you have paid the required hosting fee and are not in breach of the Agreement. During such time, SellerCloud shall provide to you: (i) all upgrades, modifications, improvements, enhancements, extensions, and other changes to the Services which are generally made available at no cost to other customers of those Services; (ii) Error Correction as described herein; (iii) Email support as described herein; and (iii) access to SellerCloud’s Site for registered users containing features, technical tips, and techniques

Subject to Section 5, above, your designated site administrator may email SellerCloud Technical Support at the email support address provided by SellerCloud with questions or problems on a particular topic related to the Services. Each such separate inquiry relating to one specific feature, function, action, or facet of the Services, or one aspect of its operation or performance shall be considered, in SellerCloud’s discretion, as a separate technical support incident, and will be assigned a separate reference number.

The definition of an incident may be expanded to include accompanying occurrences, or events that arise as a consequence of, or are dependent on it. SellerCloud shall determine, in its sole discretion, the limits of the technical support, if any, to be provided with respect to any specific incident.

SellerCloud shall provide up to one-hundred fifty (150) email technical support incidents/tickets to you annually. Check SellerCloud’s website for additional fees for support packs covering additional email technical support incidents reported by you. SellerCloud technical support shall make reasonable efforts to respond to technical support incidents promptly (within 24 hours) from receipt of the email support request, and to do any of the following as it deems appropriate:

• Answer the question(s) posed
• Provide an Error Correction
• Provide a reasonable work-around or other solution to the issue
• Determine that the issue is an enhancement request and forward the request to SellerCloudProduct Management for future consideration
• Escalate to SellerCloud Engineering for review.

SellerCloud Technical Support will make reasonable efforts to resolve the issue but SellerCloud cannot guarantee that every issue will be resolved.

When you report a suspected Error (defined below) in the SellerCloud Services to SellerCloud using the SellerCloud email support address, you must provide SellerCloud with sufficient information to be able to diagnose and/or reproduce the Error on SellerCloud’s equipment, your technical and User contacts, and such other information as SellerCloud may reasonably request. SellerCloud shall attempt, based upon information provided by you, to recreate the suspected Error. An “Error” means a material failure of the SellerCloud Services to operate substantially in accordance with the applicable user guides and reference manuals. Errors do not include your inability to fully use the SellerCloud Services due to features, functionality or limitations of other software or hardware with which the SellerCloud Services is not designed or optimized to work, including but not limited to your use of hardware or software not meeting system requirements. If the Error is confirmed, SellerCloud shall use commercially reasonable efforts to provide a Correction. A “Correction” includes, without limitation, workarounds, support releases, updates, component replacements, patches and/or documentation changes, as SellerCloud deems appropriate.

At SellerCloud, we store and back-up customer data as part of our disaster recovery planning. SellerCloud has a data replication goal of every 15 minutes. We currently store customer data onsite at multiple recovery points throughout the day. Those snapshots are also locked and archived offsite at another location in the United States. To reduce inaccessibility due to internet interruptions, an alternate internet gateway is available in the event that there is an internet outage to the datacenter. By navigating to "www.sellercloud.co" instead of www.sellercloud.com, the user can utilize that alternate gateway. If the domain hosting fails for sellercloud.com and is not resolving to our IP address, you should also generally still be able to navigate to www.sellercloud.net, which is registered with another domain registrar.

SellerCloud shall not be obligated to: (i) provide telephone assistance or consulting time relating to problems, errors or malfunctions caused by (a) malfunction of the computer system and communications network on which you have installed and are using the Services, (b) use of third-party software or software not licensed pursuant to this Agreement, (c) any use of the Services in disregard of any known adverse consequences, including without limitation the failure of a Customer to make appropriate backups, or heed warning messages or other written instructions, or (d) any other cause not attributable to SellerCloud; or (ii) perform any other support services not otherwise expressly agreed to herein. If, after SellerCloud notifies you that a problem, error or malfunction as to which you have requested telephone or other support is not covered by this Agreement and you request and SellerCloud agrees to provide telephone assistance or consulting services to correct the problem, error or malfunction anyway, you agree to pay SellerCloud at its standard hourly rates for the time relating to such assistance and services, and any other consulting services that you may request.

You agree that SellerCloud and its affiliates may collect and use technical information gathered as part of the support services provided to you, if any, related to the Services, and as between the parties SellerCloud exclusively shall own all right, title and interest in and to all such information. SellerCloud may use this information to improve its products or to provide customized services or technologies to you and will not disclose this information in a form that personally identifies you.

7. Fees and Payment

You must have Internet access and a valid Payment Method (defined below) to subscribe to, or license or purchase any Offerings. All Offerings are subject to change or discontinuance at any time without prior notice. All fees for Services and Product licenses, and prices for Product purchases are listed in U.S.dollars and are valid until altered by us. We may charge you a non-refundable setup fee which may vary according to the Offerings purchased.

We currently accept Visa®, MasterCard®, and American Express® credit cards, and cashier’s and business checks (collectively, “Payment Methods”). We reserve the right to change the Payment Methods we accept at any time without notice. We may terminate your SellerCloud Services or your order for Products, withhold upgrades to the Services, and take such other action as we may deem appropriate in our sole and absolute discretion if we are unable to process your Payment Method and you do not provide an alternative Payment Method.

By requesting any SellerCloud Services, you are expressly agreeing that we are authorized to charge you the applicable Services fee(s) in accordance with and at then current rates in the applicable pricing plan for which you have subscribed (“Pricing Plan”), plus any applicable tax, and any other charges you may incur in connection with your use of the SellerCloud Services (collectively, “Service Fees”) to the Payment Method you provided in your order (or to a different Payment Method if you change your Account information or we change Payment Methods)

We currently offer a number of Pricing Plans, including flat fee, revenue sharing, and per transaction fee, as described on the Site. We may offer special promotional plans, bundled plans, premium services, and subscriptions with different limitations. WE RESERVE THE RIGHT TO MODIFY, TERMINATE OR OTHERWISE AMEND OUR OFFERED PRICING PLANS AT ANY TIME. Except for prices for subscriptions, which shall not be changed during the then current applicable subscription period (i.e., not including renewals), we may change the fees and charges in effect, or add new fees and charges from time to time, but we will give you advance notice of these changes by email. Such notices to you shall be deemed to have been given upon transmission to the most recent email address we have for you. We will bill your Payment Method for Service Fees corresponding to your order at the time of your order. For non-flat fee Pricing Plans, we will continue to bill your Payment Method on the applicable periodic basis (generally monthly) for your subscription thereafter, including any renewal periods, unless and until you cancel your subscription. Click the “your account” link at the top of the Site for cancellation instructions. Service Fees are fully earned when due. UNUSED SUBSCRIPTION FEES ARE NON-REFUNDABLE.

We may offer Products or Services featured on the Website only in countries allowed under applicable law and where your Payment Method is accepted. The site is displayed solely for purposes of providing Offerings entirely from or to such countries

• Services

  These Terms of Use and those set forth in Schedule A hereto shall form a part of this Agreement applicable to your purchases of any Services from the Site (“Service Terms”). Your License(defined in Section 1 of Schedule A, below) to use the SellerCloud Services is expressly conditioned upon timely payment of all Service Fees. Other than as specifically provided in any separate written (non-electronic) agreement between you and SellerCloud physically signed by us, the Service Terms may not be altered, supplemented, or amended by the use of any document of yours, such as purchase orders, and all sales of Services are expressly conditioned upon your agreement to the Service Terms. In the event of a conflict between the Service Terms and the other provisions of this Agreement, the Service Terms shall control.

• Products

  These Terms of Use and those set forth in Schedule B hereto shall form a part of this Agreement applicable to your purchases of any Products from the Site (

  “Terms of Sale”

  ). Other than as specifically provided in any separate written (non-electronic) agreement between you and SellerCloud physically signed by us, the Terms of Sale may not be altered, supplemented, or amended by the use of any document of yours, such as purchase orders, and all sales of Products are expressly conditioned upon your agreement to these Terms of Sale. In the event of a conflict between these Terms of Sale and the other provisions of this Agreement, these Terms of Sale shall control.

8. Ownership

As between the parties and except as expressly and unambiguously licensed herein, all right, title and interest in and to all: (i) Offerings; (ii) Site content; (iii) patentable ideas, inventions, and improvements; (iv) works of authorship, forms, images, audiovisual displays, text, software, graphics, designs, (v) trademarks, service marks, trade names, and trade dress, and (vi) trade secrets and SellerCloud confidential and proprietary information, including all related patent rights, trademarks, copyrights and trade secret rights, moral rights, sui generis database rights and all other intellectual property, proprietary rights or other rights related to intangible property which are used, developed, comprising, embodied in,or practiced in connection with any of the Offerings (collectively, "SellerCloud IP") are owned by SellerCloud or its suppliers or licensors, and you agree to make no claim of interest in or ownership of any SellerCloud IP. You acknowledge that no title to any SellerCloud IP is transferred to you, and that you do not obtain any rights, express or implied, in the SellerCloud Services, whether provided by SellerCloud or any of its suppliers or licensors. To the extent that you create any work that is based upon one or more preexisting versions of an Offering provided to you, such as an enhancement or modification, revision, translation, abridgement, condensation, expansion, collection, compilation or any other form in which such preexisting works may be recast, transformed or adapted (“Derivative Work”), as between the parties such Derivative Works shall be owned exclusively by SellerCloud and all right, title and interest in and to each such Derivative Work and its related SellerCloud IP shall automatically vest exclusively in SellerCloud. You agree that SellerCloud may list you as a client of ours, may display your logo(s) toward this purpose and may publish quotations and testimonials from you or your directors, partners, officers or employees. We agree to promptly cease any such use of your name or logo(s) upon your written request. As between the parties, all right, title and interest in and to all: (i) registered and unregistered trademarks, service marks, trade names, logos, and trade dress; and (ii) trade secrets, proprietary information, and know-how which are used, developed, comprising, embodied in, or practiced in connection with any of the Offerings are owned by SellerCloud.

9. DISCLAIMER OF WARRANTIES

THE OFFERINGS ARE PROVIDED “AS IS” AND "AS AVAILABLE," WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, CAPACITY, OR TITLE, AND ANY EXPRESS WARRANTIES BY DESCRIPTION, REPRESENTATION OR OTHER AFFIRMATION OF FACT, SAMPLE, OR ILLUSTRATION, WHETHER ORAL, WRITTEN, OR CONTAINED IN ANY LETTER, BROCHURE, WEBSITE, PHOTOGRAPH, OR OTHER MEDIUM. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF ANY OFFERINGS IS WITH YOU AND ALL CUSTOMERS. SELLERCLOUD AND ITS SUPPLIERS AND LICENSORS DO NOT WARRANT THAT THE OPERATION OR ANY OTHER ASPECTS OF ANY OFFERINGS: WILL BE UNINTERRUPTED OR ERROR-FREE; WILL MEET ALL OF YOUR NEEDS, REQUIREMENTS OR SATISFACTION; OR WILL CAUSE YOU OR ANY THIRD PARTY TO BE IN COMPLIANCE WITH APPLICABLE LAWS OR REGULATIONS. SELLERCLOUD DOES NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS OF USING ANY OFFERINGS.

10. LIMITATION OF LIABILITY; TIME LIMITATION ON FILING ANY CLAIM

YOU AGREE THAT OUR ENTIRE LIABILITY, AND YOUR EXCLUSIVE REMEDY, IN LAW OR EQUITY OR OTHERWISE, WITH RESPECT TO THIS SITE AND ANY OFFERINGS PROVIDED UNDER THIS AGREEMENT AND/OR FOR ANY BREACH OF THIS AGREEMENT IS SOLELY LIMITED TO THE AMOUNT YOU PAID FOR SUCH OFFERINGS WITHIN THE PRECEDING TWELVE MONTHS. IN NO EVENT SHALL SELLERCLOUD OR ITS SUPPLIERS OR LICENSORS BE LIABLE FOR ANY LOST REVENUE, LOST PROFITS, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE, ARISING OUT OF THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF PURPOSE OF ANY LIMITED REMEDY. ADDITIONALLY, IN NO EVENT SHALL SELLERCLOUD OR ITS SUPPLIERS OR LICENSORS BE RESPONSIBLE FOR ANY LOSS OF DATA OR RECORDS (WHETHER YOURS, YOUR CLIENTS, OR OTHER THIRD PARTIES), IT BEING UNDERSTOOD THAT YOU SHALL BE RESPONSIBLE FOR ENSURING PROPER AND ADEQUATE BACK-UP AND STORAGE OF ALL SUCH DATA AT ALL TIMES. YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY OF OUR OFFERINGS MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR SUCH CLAIM SHALL BE FOREVER BARRED. THE TERMS OF ANY OF THESE LIMITATIONS DO NOT LIMIT OR EXCLUDE ANY LIABILITY FOR ITS SOLE GROSS NEGLIGENC EOR INTENTIONAL DAMAGE, OR TO THE EXTENT NOT PERMITTED BY APPLICABLE LAW.

11. Indemnification

Subject to the terms of this Agreement, You agree to defend, release, indemnify, and hold harmless SellerCloud and our licensors, suppliers, contractors, agents, employees, officers, directors, members, affiliates, assigns, and successors (“Indemnified Persons”) from all liabilities, claims, demands,damages, losses, costs and expenses, including costs and attorneys’ fees, relating to or arising out of (i) this Agreement or the breach of your warranties, representations or obligations under this Agreement, (ii) your access to or use of the Site or any Offerings, the violation of this Agreement by you, or infringement, misappropriation or dilution by you or any third party using your account, (iii) any intellectual property orother right of any person or entity, (iv) a violation of any of our operating rules or policies relating to the Offerings, or (v) any information or data you supply to SellerCloud, including, without limitation, any misrepresentation in your application or registration, if applicable (collectively, “Claim”). You shall have sole responsibility to defend the involved Indemnified Person with counsel of such Indemnified Person’schoice against any Claim, but you may not settle, compromise, or in any other manner dispose of any Claim without the consent of the respective Indemnified Person.

Subject to the terms of this Agreement, SellerCloud agrees to defend, indemnify, and hold You harmless from and against any third-party suits and judgments against You for damages, including costs and attorneys’ fees, to the extent caused by (i) our breach of our representations and warranties under this Agreement, (ii) our intentional infringement, misappropriation or dilution of the intellectual property rights of such third party, or (iii) our violation of any of our operating rules or policies relating to the Offerings (collectively, “Claim”). We shall have the exclusive authority to defend You with counsel of our choice against any Claim, but may not settle, compromise, or in any other manner dispose of any Claim without Your consent, which consent may not be unreasonably withheld.

12. Electronic Communications

You consent to receive communications from us electronically, either by email or through the Site, and agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. You agree that the use of your user name and password or email address, and any other use by you of the Site constitutes your electronic signature and authenticates your communications to us or third-parties using the Site, and otherwise satisfies any legal requirement that such communications be in writing.

13. Termination

You may terminate this Agreement or any Services upon written notice to SellerCloud for any reason. You may cancel any Product purchases or licenses at any time prior to checkout; all Product purchases and licenses are non-refundable. We may terminate this Agreement or any Offerings at any time for any reason. Notice of cancelation will be sent 30 days prior to account termination. Except as otherwise expressly set forth herein or on our Site, we will not charge you for any monthly Service Fees after the effective termination date, but may make appropriate adjustments, and may charge for Products purchased or licensed prior to but not shipped until, after the termination date. Unless otherwise specified in writing by us, you will not receive any refund for payments already made by you as of the date of termination. If termination of this Agreement is due to your default hereunder, you shall bear all costs of such termination, including all reasonable costs SellerCloud incurs in closing your account.

Upon termination, you shall immediately return or destroy any copy of Products licensed to you hereunder and referenced herein. You agree that upon termination or discontinuance for any reason, we may delete all information and data related to you in connection with any SellerCloud Offerings, if applicable. In addition to the terms set forth herein, certain SellerCloud Offerings may have additional terms regarding termination, which are set forth in the applicable Schedule. Any unsatisfied payment obligation of yours and Sections 2-3, and 7-16 of these Terms of Use shall survive termination of this Agreement.

In addition to the terms set forth above, if you subscribe to Services which are sold together as part of a "bundled" package of services, any termination of Services relating to such bundle may terminate all Services included in such bundle. Upon the effective date of termination, SellerCloud will no longer provide the bundled services to you, any licenses granted you shall immediately terminate, and you shall cease using such Services immediately; provided, however, that we may, in our sole discretion and subject to your agreeing to be bound by the applicable agreement(s) and to pay the applicable fees(possibly at a higher, unbundled pricing), allow you to convert certain services included in the bundled services to stand alone services.

14. Representations, Warranties and Covenants

You represent, warrant, and covenant that: (i) neither your registration nor use of the any of the Offerings will directly or indirectly infringe, misappropriate or violate the legal rights or property of a third party; (ii) you have all requisite power and authority to execute this Agreement and to perform your obligations hereunder; (iii) you are at least eighteen years of age; (iv) you shall comply with all applicable laws and regulations; (v) you will provide and keep current complete and accurate registration information for you and your users; (vi) you will be responsible for the compliance at all times of all of your users’ with this Agreement and any SellerCloud usage policy posted on the Site, as amended from time to time (the "Policy"); and (vii) you will use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify SellerCloud promptly of any suspected or known unauthorized access or use.

You further represent, warrant and covenant that you will not use any Services to: (i) infringe, misappropriate or violate any patent, trademark, trade secret, copyright, right of publicity or other right of any party; (ii) attempt to or actually disrupt, interfere with, or damage the Site or Offerings or any web sites linked to the Site, including, without limitation, by using viruses, cancel bots, Trojan horses, harmful code, flood pings, denial of service attacks, packet or IP spoofing, forged routing or electronic mail address information or other methods or technology; (iii) attempt to use another user’s account, impersonate another person or entity (e.g., pretexting or spoofing); (iv) attempt to obtain unauthorized access to the Site or portions of the Site that are restricted from general access or otherwise restricted to you; (v) engage, directly or indirectly, in transmission of “spam,” chain letters, junk mail or any other type of unsolicited solicitation; (vi) collect, manually or through automated processes, information about otherusers (without their express consent) or other information relating to the Site or the Offerings; (vii) use any meta tags or other “hidden text” utilizing our name, trademarks, service marks, or trade dress, or those of permitted suppliers or other sponsors of web pages or Offerings on the Site; (viii) link (including “deeplinking”) to the Site without our prior express written permission specifying you by name; (ix) engage in any activity that interferes with a third party’s ability to use or enjoy the Site or Offerings; (x) place or attempt to place unreasonable or disproportionately large loads on the Site or system infrastructure; (xi) assist any third party in engaging in an activity prohibited by this Agreement; (xii) make any Offerings available to anyone other than authorized users; (xiii) sell, resell, rent or lease any Offerings; or (xiv) use the Site or any Offerings to store or transmit libelous or otherwise unlawful or tortious material, or to store, use or transmit material in violation of third-party privacy rights. SellerCloud, in its sole and exclusive discretion, may immediately take corrective action, including, but not limited to, suspension and/or termination of any Services, in the event of any suspected violation of these terms by you or your end users. You agree that SellerCloud will have no liability to you or any of your end users due to any such corrective action and that you will not be entitled to a refund of any fees paid in advance prior to the corrective action.

15. General

You may not assign or transfer your rights or obligations under this Agreement without the prior written consent of SellerCloud. Any such attempted assignment or transfer shall be void and without effect. Except for an obligation to pay money, SellerCloud shall be excused from responsibility for any delay, interruption, error, or malfunction resulting from natural disaster; transportation problems; defects, or malfeasance of third-party software, hardware, communications, or power supplies; interruption or failure of telecommunication or digital transmission links; hostile network attacks; network congestion or other failures; acts of government; flood, fire, earthquakes, and other Acts of God; strikes or other labor problems (other than those involving SellerCloud employees); Internet service provider failures or delays; actual or threatened war (whether or not declared); civil unrest; riots; actual or threatened or suspected terrorist acts; acts or omissions of persons not hired, retained, or supervised by SellerCloud; and other acts, events, or circumstances beyond its reasonable control, whether or not foreseeable or identified (collectively, “Force Majeure” events).

This Agreement shall be governed and construed in all respects in accordance with the substantive laws of the United States and the State of New Jersey without regard to the United Nations Convention on Contracts for the International Sale of Goods. You agree that our Site operates solely in Cranbury, New Jersey ("Place of Performance"), and that you are using the Internet as your own agent to access and use our Site from the local Internet point of presence (POP) here at our Place of Performance to take delivery of any information or Offerings at our Place of Performance. This means all operations, services, deliveries, performance and contacts of our Site occur solely at Place of Performance. Our Site does not submit to personal jurisdiction anywhere else and you irrevocably waive any claim to the contrary. Unless otherwise elected by SellerCloud in writing for a particular instance (which we may do at our option in our sole discretion), the exclusive jurisdiction and forum for actions related to the subject matter of this Agreement shall be the appropriate state and U.S. federal courts having within their jurisdiction the location of SellerCloud’s principal place of business. If any provision of this Agreement is found by any court of competent jurisdiction to be invalid or unenforceable, the invalidity of such provision shall not affect the other provisions of this Agreement, and all provisions not affected by such invalidity shall remain in full force and effect to the fullest extent possible consistent with the intent of the parties. To the extent European Union law is applicable, any restriction in the Agreement or any Schedule attached hereto on disassembly, decompilation and reverse engineering is limited so that it prohibits such activity only to the maximum extent such activity may be prohibited without violating the EEC Directive on the legal protection of computer programs. If SellerCloud takes legal action reasonably necessary to enforce this Agreement, it shall be awarded its reasonable attorneys’ fees, costs and expenses in addition to any other relief to which it may be entitled.

No waiver of any provision of this Agreement shall be effective unless it is in writing and signed by an authorized representative of SellerCloud. The remedies of SellerCloud under this Agreement shall be cumulative and not alternative, and the election of one remedy for a breach shall not preclude pursuit of other remedies. The failure of SellerCloud, at any time or from time to time, to require performance of any of your obligations shall not affect its right to enforce any provision of this Agreement at a subsequent time, and SellerCloud’s waiver of any rights arising out of any breach shall not be construed as a waiver of any rights arising out of any prior or subsequent breach by you.

The section headings appearing in this Agreement and any Schedules are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section. You agree that no term or condition of this Agreement shall be strictly interpreted in favor of or against either of us, and expressly waive any rule to the contrary.

Neither party nor their employees, consultants, contractors or agents are agents, employees or joint ventures of the other party, and they do not have any authority to bind the other party by contract or otherwise to any obligation. Each party shall ensure that the foregoing persons shall not represent to the contrary, either expressly, implicitly, by appearance or otherwise.

These Terms of Use, including the Schedules referenced herein, our Privacy Policy, any other of our linked policies, and all third-party terms and conditions of use which are incorporated herein, contain the entire understanding and agreement of you and us regarding such subject matter, and supersedes all prior and contemporaneous agreements and understandings between us regarding such subject matter.

16. Offering Specific Terms

The Schedules that follow apply in addition to Sections 1 through 14 to the extent you have subscribed to or licensed the particular Offerings described (Schedule A) or purchased the SellerCloud Products described (Schedule B).

17. Contact Us

In the event of any dispute or for any other information concerning these Terms of Use or our Privacy Policy - please contact us via US mail or email at:
SellerCloud
8 South River Road
Cranbury, NJ 08512
United States of America

Email Address: support@sellercloud.com

Copyright Policy and Copyright Agent

We respect the intellectual property rights of others, and we expect our users to do the same. In appropriate circumstances, and in our sole discretion, we may but are not required to terminate the rights of any user to use the Site (or any part thereof) who infringes the intellectual property rights of others. Subject to the foregoing, it is our policy to terminate in appropriate circumstances users who are repeat infringers. If you believe that a user of the Site or Offerings has infringed the intellectual property rights of another, please provide the following information to the Copyright Agent specified below.

• An electronic or physical signature of the person authorized to act on behalf of the owner of the intellectual property interest;
• A description of the intellectual property interest that you claim has been infringed upon;
• A detailed description of where the material that you claim is infringing is located on the Site,including the URL where the infringing material appears or is evident;
• Your address, telephone number and email address;
• A statement that you have a good faith belief that the disputed use is not authorized by the intellectual property rights owner, its agent, and or the law;
• A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the owner of the intellectual property rights involved, or are authorized to act on behalf of such owner

You may send any notices, including notices of copyright infringement under the Digital Millennium Copyright Act, to SellerCloud’s designated agent for notice of claims of copyright infringement on the Site at the following addresses:

Copyright Agent
SellerCloud
8 South River Road
Cranbury, NJ 08512
United States of America
Tel: +1 (888) 315-6652
Email: support@sellercloud.com

Courier Address:
Copyright Agent
8 South River Road
Cranbury, NJ 08512
United States of America

Please note that this procedure is exclusively for notifying us that intellectual property rights have been infringed. This policy is intended to comply fully with the requirements of the Online Copyright Infringement Liability Limitation Act.