1.1 Quander Labs LLC, doing business as Agile Merchant, (“Agile Merchant” or “we”) provides its Service (as defined below) to you through a variety of services based on access you grant to your website, data, accounts with sales sites and vendors, and other access you grant and information you provide, subject to this Terms of Service agreement (“TOS”). You agree to this TOS by executing the Agile Merchant Consulting Agreement, and acknowledge that you have read, understood, and agree to be bound by this TOS. If you agree to this TOS on behalf of a company, business or other legal entity, you represent that you have the authority to bind such entity and its affiliates to this TOS, in which case the terms “you” or “your” shall refer to such entity and its affiliates. If you do not have such authority, or if you do not agree with this TOS, you must not execute the associated Consulting Agreement.
1.2 Agile Merchant may change this TOS from time to time by posting a notice on the Agile Merchant Site. You can review the most current version of this TOS at any time at www.agilemerchant.com. The revised terms and conditions will become effective thirty (30) days after we post such changes, and unless you notify Agile Merchant prior to 30 days after the posting date, you accept the revised terms and conditions.
The “Service” includes (a) the Site, (b) Agile Merchant’s consulting and data analysis services (“Services”) as described in the Consulting Contract.
3.1 Subject to the terms and conditions of this TOS, you shall not (a) sublicense, resell, rent, lease, transfer, assign, time share or otherwise commercially exploit or make the Services available to any third party; (b) use the Service in any unlawful manner (including without limitation in violation of any data, privacy or export control laws) or in any manner that interferes with or disrupts the integrity or performance of any sales site or its components, or (c) modify, adapt or attempt to gain unauthorized access to a sales site or its related systems or networks.
3.2 Any Services or data analysis results that may be made available by Agile Merchant in connection with the Consulting Contract contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Subject to the terms and conditions of this TOS, Agile Merchant hereby grants you a non-transferable, non-sublicensable and non-exclusive license to use the Services solely in connection with your organization, provided that you shall not (and shall not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code or sell, assign, sublicense or otherwise transfer any right in any Services or data analysis techniques or results. Any rights not expressly granted herein are reserved and no license or right to use any trademark of Agile Merchant.
3.3 You are solely responsible for all data, information, feedback, suggestions, text, content and other materials that you make available, deliver, grant access to, provide or otherwise share with Agile Merchant in connection with or relating to the Service.
3.4 You are responsible for maintaining the confidentiality of your login, password and account information for all accounts assigned or made available by you to Agile Merchant. Agile Merchant reserves the right to access your accounts that have been shared with or granted access to Agile Merchant in order to analyze data, investigate issues, or otherwise provide Services under the Consulting Contract, as well as respond to your requests for Services. Agile Merchant has the right, but not the obligation, to monitor the Service, Content, or Your Content. You further agree that Agile Merchant may discontinue accessing your account(s) for any reasons or for no reason at all.
3.5 You understand that the operation of the Service, including Your Content, requires you grant Agile Merchant access to one or more of your accounts with sales site(s) and other services. Accordingly, you acknowledge that you bear sole responsibility for adequate security, protection and backup of Your Content. Agile Merchant shall use industry standard procedures to protect and deny unauthorized access or use of any of Your Content, or any corruption, deletion, destruction or loss of any of Your Content.
3.6 You shall be responsible for obtaining and maintaining any ancillary services needed by Agile Merchant to provide the Services, including, without limitation, adequate storage space, accurate information, securing appropriate levels of service, and the like. You shall be responsible for ensuring that securing such ancillary services is critical to the ability of Agile Merchant to provide Services under the Consulting Contract. You shall also be responsible for maintaining the security of your Account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of your Account or the ancillary services with or without your knowledge or consent.
3.7 The failure of Agile Merchant to exercise or enforce any right or provision of this TOS shall not be a waiver of that right. You acknowledge that this TOS is a contract between you and Agile Merchant, even though it may be electronic and is not physically signed by you and Agile Merchant, and it governs your use of the Service.
3.8 Agile Merchant reserves the right to use your name and/or Agile Merchant name as a reference for marketing or promotional purposes on Agile Merchant’s website and in other communication with existing or potential Agile Merchant customers. To decline Agile Merchant this right you need to communicat in writing a clear statement specifying that you do not wish to be used as a reference.
3.9 Subject to the terms hereof, Agile Merchant may (but has no obligation to) provide technical support services, through email in accordance with our standard practice.
You represent and warrant to Agile Merchant that (i) you have full power and authority to enter into this TOS; (ii) you own all Your Content and all permissions, releases, rights or licenses shared with Agile Merchant (and allow Agile Merchant to perform its obligations) in connection with the Services without obtaining any further releases or consents; (iii) Your Content and other activities in connection with the Service, and Agile Merchant’s exercise of all rights and license granted by you herein, do not and will not violate, infringe, or misappropriate any third party’s copyright, trademark, right of privacy or publicity, or other personal or proprietary right, nor does Your Content contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing; and (iv) you are eighteen (18) years of age or older.
You have the right to terminate your account(s) or service(s) at any time by logging into your account(s) and cancelling, and shall notify Agile Merchant immediately should such cancelation effect the ability of Agile Merchant to provide Services, in which case such an event shall constitute termination of the Consulting Contract. In addition to any other remedies we may have, Agile Merchant may also terminate this TOS upon ten (10) days in the case of nonpayment, or upon thirty (30) days’ notice (or), if you breach any of the terms or conditions of this TOS. Agile Merchant reserves the right to modify or discontinue providing, temporarily or permanently, the Services or any part thereof. There will be no refunds or credits for partial months of the Services. However, all accrued rights to payment and the terms of Section 4-12 shall survive termination of this TOS.
The Services may be temporarily unavailable or delayed due to scheduled maintenance or for unscheduled emergency maintenance, either by the sales site(s) or by third-party providers, or because of other causes beyond our reasonable control, but Agile Merchant shall use reasonable efforts to provide advance notice in writing or by email of any delay or disruption in providing Services. HOWEVER, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND AGILE MERCHANT EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT AGILE MERCHANT DOES NOT WARRANT THAT THE SERVICES WILL BE DELIVERED WITHOUT INTERRUPTION, WILL BE TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES, AND NO INFORMATION, ADVICE OR SERVICES OBTAINED BY YOU FROM AGILE MERCHANT OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS TOS.
7.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL AGILE MERCHANT BE LIABLE TO YOU OR ANY THIRD PARTY FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, OR (B) FOR ANY DIRECT DAMAGES, COSTS, LOSSES OR LIABILITIES IN EXCESS OF THE FEES ACTUALLY PAID BY YOU IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE to YOUR CLAIM or, IF NO FEES APPLY, one hundred ($100) U.S. dollars. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS TOS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS TOS.
You shall defend, indemnify, and hold harmless Agile Merchant from and against any claims, actions or demands, including without limitation reasonable legal and accounting fees, arising or resulting from your breach of this TOS, any of Your Content, or your other access, contribution to, use or misuse of the Service. Agile Merchant shall provide notice to you of any such claim, suit or demand. Agile Merchant reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting Agile Merchant’s defense of such matter.
You may not remove or export from the United States or allow the export or re-export of the Services or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the software and documentation installed by Agile Merchant on your Equipment (if applicable) are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this TOS and will be prohibited except to the extent expressly permitted by the terms of this TOS.
You may not assign this TOS without the prior written consent of Agile Merchant, but Agile Merchant may assign or transfer this TOS, in whole or in part, without restriction.
If any provision of this TOS is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this TOS will otherwise remain in full force and effect and enforceable. Both parties agree that this TOS is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this TOS, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this TOS and you do not have any authority of any kind to bind Agile Merchant in any respect whatsoever.
This TOS shall be governed by the laws of the State of Colorado without regard to the principles of conflicts of law. Unless otherwise elected by Agile Merchant in a particular instance, you hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts of the State of Colorado for the purpose of resolving any dispute relating to your access to or use of the Service.
Please visit https://www.AgileMerchant.com/ to understand how Agile Merchant collects and uses personal information.