Ashop Shopping Cart Software Terms and Conditions
(Address updated 18 July 2012)
This Agreement is between Ashop PTY LTD (ACN 111 256 896) of Level 10, 17-19 Bridge Street Sydney NSW 2000 Australia, (“Ashop”) and you (“Merchant”).
RESTRICTIONS ON USE OF MATERIALS
This service is owned and operated by Ashop. No material from www.ashop.com.au, www.ashopcommerce.com, www.ashopcommerce.co.uk, www.ashop.com.au, www.ashopcommerce.net or any Web Site owned, operated, licensed or controlled by Ashop PTY LTD may be copied, reproduced, republished, uploaded, posted, transmitted or distributed in any way unless permission has been expressly granted by Ashop.
By accepting the Terms and Conditions of this agreement, the Merchant: (a) represents and warrants that he or she is 18 years old or older; (b) agrees to provide true, accurate, current and complete information about the Merchant as prompted by the Account Registration Form; and (c) agrees to maintain and update this information to keep it true, accurate, current and complete. If any information provided by the Merchant is untrue, inaccurate, not current or incomplete, Ashop has the right to terminate the Merchant's account and refuse any and all current or future use of the Service.
DISCLAIMER OF WARRANTIES AND LIABILITIES
The Service and Software are provided on an 'as is' and 'as available' basis without warranties of any kind, either express or implied, including but not limited to warranties and conditions of merchantability, fitness for a particular purpose and non-infringement. Neither this agreement or any documentation furnished under it is intended to express or imply any warranty, condition or representation that the online store services will be uninterrupted, timely or error-free or that the software will provide uninterrupted, timely or error free service. The security mechanism is the latest and highest incorporated in the software but can have inherent limitations and Merchant must determine that the Software adequately meets its requirements. Merchant acknowledges and agrees that any material and/or data downloaded or otherwise obtained through the use of the service is done at its own discretion and risk and that Merchant will be solely responsible for any damages to its computer system or loss of data that results from the download of such material and/or data. Ashop and its parents, subsidiaries, affiliates, officers, directors, shareholders, employees and agents, shall not be liable, under any circumstances or legal theories whatsoever, for any loss of business, profits or goodwill, loss of use or data, interruption of business, or for any indirect, special, incidental or consequential damages of any character, even if Ashop is aware of the risk of such damages, that result in any way from Merchant's use or inability to use the online store services or the software, or that result from errors, defects, omissions, delays in operation or transmission, or any other failure of performance of the online store services or the software. Ashop's liability to Merchant shall not, for any reason, exceed the aggregate payments actually made by Merchant to Ashop over the course of the existing Term. Some jurisdictions do not allow the exclusion of certain warranties or liabilities, so some of the exclusions may not apply to you.
Ashop uses an external resource for multiple currency conversions available to most stores as an optional function. Ashop is not responsible for variations or fluctuations displayed through this currency converter or purchases derived from prices displayed through this currency converter. By using the currency conversion function the merchant accepts the full responsibility of the order and customer.
Should the merchant or any person accessing this Web Site respond with information, feedback, data, questions, comments, suggestions or the like regarding the content of (a) any document in this or any other Ashop Web Site or (b) any Ashop Software product, any such response shall be deemed not to be confidential and Ashop shall be free to reproduce, use, disclose and distribute the response to others without limitation. The merchant agrees that Ashop shall be free to use any ideas, concepts or techniques contained in the merchants response for any purpose whatsoever including, but not limited to, developing, manufacturing and marketing products incorporating such ideas, concepts or techniques.
2. No Compete Agreement
By using this Web Site the merchant is gaining knowledge of Ashop product concepts, and therefore the merchant is agreeing that he/she will not compete with Ashop products in any way, the merchant is agreeing that he/she will not develop, and have not developed a competing product or similar product to Ashop products and services. More specifically, the merchant is agreeing that he/she have not developed, and will not develop an Internet/Intranet commerce software product such as the shopping cart system.
3.1 Payments to Ashop are required on 1) A monthly basis or 2) A yearly payment according to the payment option the merchant has chosen. Non-refundable fixed payments same calendar day as the initial purchase date (after 15 day free trial has ended) for each month or year following and paid in advance at the time of sign up or renewal. Any accrued charges will be due starting from the same calendar day as the initial purchase date of the second calendar month and will be added to the fixed amount due. Monthly and yearly fees are subject to change at any time with notice from Ashop.
3.2 The Merchant is billed under clause 3.1 above to the credit card number given to Ashop at the time of registration or to such other credit card number which Merchant shall so designate, any changes to credit cards must be provided to Ashop before the payment date. AMEX and Diners card attract a 3% surcharge on all fees. The owner of the credit card charged is deemed the owner of the account and therefore responsible for payment and access. The Merchant agrees to pay the fee if it uses the services of Ashop. Fees are deducted automatically from the merchants credit card unless a full thirty (30) days written notice is given to cancel, yearly account fees are automatically renewed and charged unless Ashop is provided with thirty (30) days written notice.
3.3Application and Use Fee. Merchant shall pay any applications fees, user fees, including but not limited to monthly fees, any taxes according to the Ashop's then-applicable fee schedule. Merchant shall pay all amounts due to Ashop on the same calendar day of the due date each month. If this payment can not be made within the applicable due date, contact Ashop and we will decide the action to be taken on the merits of each case in accordance with clause 3.4.
3.4 Late Payments. If Merchant fails to pay any fees by the applicable due date, Ashop will have the right to: (a) assess late charges in an amount equal to the greater of five percent (5%) per month or the maximum allowable under applicable law; and/or (b) suspend access to any or all of the Ashop services and/or performance of the services provided by Ashop hereunder and/or terminate this agreement. Access to the merchants store will be suspended automatically ten (10) days from the due date if the merchant fails to correct fees due to Ashop. Any such suspension or termination will not relieve Merchant from paying any outstanding fees plus interest and late charges. Merchant will be responsible for any costs associated with collecting such fees including, without limitation, legal costs, attorneys fees, court costs and collection agency fees.
3.5 Taxes. Merchant will pay or reimburse Ashop 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 Ashop under this agreement, excluding, however, income taxes or gross receipts taxes which may be levied against Ashop. Such taxes may be reflected on Merchant invoices.
3.6 Ten day free trial period. Ashop offers a no obligation to purchase 10 day free trial account on a basic package. If within the initial 10 calendar days free trial period with Ashop, the merchant reserves the right to cancel his/her store at any time without consequence. Ashop will not ask for or receive credit card or payment information from the merchant to set up a free trial account, however, the merchant can at any time enter credit card payment information to start membership with Ashop, at this time the merchants monthly billing period will begin.
3.7 Ashop is an International company based in Australia . All transactions are therefore charged in Australian dollars. Due to the constant fluctuation in exchange rates, this may result in some very small variations in the dollar value that is charged to the customer. Ashop cannot be held responsible for any variations in International exchange rates that may be imposed by a customer's banking institution including additional fees.
3.8 Ashop does allow upgrading and downgrading between packages, excluding our smallest package 'light'. To use the 'light' package clients must open a new store and pay all associated fees including the set up fee. Ashop also do not allow downgrading of any package on a yearly paid plan.
4.1 Unless otherwise expressly stated, all prices or other sums payable or consideration to be provided under this agreement are exclusive of GST for outside Australia and inclusive of GST within Australia.
4.2 In this clause the expressions “consideration”, “GST”, “input tax credit”, “recipient”, “supply” and “tax invoice” have the meanings given to those expressions in the A New Tax System (Goods and Services Tax) Act 1999.
4.3 If GST is payable by the supplier on any supply made under this Agreement the recipient will pay to the supplier an amount equal to the GST payable on the supply. That amount will be paid at the same time that the consideration for the supply is payable under the Agreement and will be paid in addition to the consideration. The supplier shall upon receiving that amount from the recipient provide the recipient with a tax invoice in respect of the supply.
4.4If at any time an adjustment event arises in respect of any supply made by the supplier under this Agreement, a corresponding adjustment will be made between the supplier and the recipient in respect of any amount paid to the supplier by the recipient under this clause and payments to give effect to the adjustment will be made.
4.5 Where the recipient is required is to pay for or reimburse an expense or outgoing of the supplier, the amount to be paid by the recipient is the amount of the expense or outgoing less any input tax credit in respect of such expense or outgoing that the supplier is entitled to.
5. Delivery of Software
Ashop is not required to deliver a hard copy of any software. Ashop provides an access code and password to it's internet server and does not require any software downloads. Within 48 hours of a successful purchase (successful credit card payment), excluding Saturdays, Sundays and bank observed holidays, the Merchant will have access to create and manage the Ashop online store in accordance with Ashop's Terms and Conditions
6. Term and Termination
6.1 This agreement will commence on the date you or a representative on your permission 'checks' the 'I ACCEPT' box to agree to the terms and conditions and shall continue thereafter on either a month to month basis or a yearly basis depending on the contract term the merchant signed up to.
6.2 Termination by Ashop. Ashop shall have the right, upon notice to Merchant, to terminate this Agreement.
6.3 Termination by Merchant. The merchant can cancel without notice or consequence at any time within the 15 day free trial period. Once the merchant has commenced with Ashop on a paid basis, the merchant will have the right, (via the provided store closure process under the 'my account' section in the admin), to terminate this for any reason at any time. The remaining monthly or yearly payment will be forfeited by the merchant in full and used to keep the store open for the remaining period paid for. No refunds will be given unless an incorrect amount has been charged based on the chosen plan by customer. If you are unsure if your store has successfully closed without further payments to be taken, please contact a representative to confirm this. We do not take responsibility for unsuccessful closures if the full process was not undertaken by the customer via the admin.
6.4 Obligations upon Termination or Expiration and Non-Renewal. Upon the expiration and non-renewal or termination of this Agreement for any reason, except for non-payment: (a) Merchant's access to, and use of, the Ashop Services will terminate; (b) Ashop will make available to Merchant all Merchant documents and other materials stored by Merchant on the Ashop Server; and (c) each party shall return any and all Confidential Information in its possession to the party that disclosed such Confidential Information and provide written verification of same.
6.5Deletion of Information. Upon termination, Ashop reserves the right to delete from its servers, after offering to return information, any and all information contained in Merchant's account, including but not limited to order processing information, mailing lists, and any Web pages generated by the Software, without liability for any loss, costs, expense or damage suffered by Merchant
7. Merchant Obligations
7.1 The Merchant acknowledges and agrees that it shall be responsible for all goods and services offered at the Merchant's Store, all materials used or displayed at the Store, and all acts or omissions that occur at the Store or in connection with the Merchant's account or password. Certain Stores may be subject to additional requirements.
7.2 The Merchant agrees to display in the Store the Merchant's contact information, including but not limited to Merchant's company name, address, telephone number, fax number and e-mail address. The Merchant also agrees to update such information to keep it true, accurate, current and complete. Ashop will not be held responsible for incorrect billing information issued due to the Merchants inaccurate information supplied to Ashop.
7.3The Merchant represents and warrants that it has full power and authority under all relevant laws and regulations:
(a) to offer and sell the goods and services offered at the Store, including but not limited to holding all necessary licenses from all necessary jurisdictions to engage in the advertising and sale of the goods or services offered at the Store;
(b) The Merchant represents and warrants that it will accurately describe all goods and services it is proposing to sell in it's Store.
(c) To provide for credit card payment or any othe offered payment method and delivery of goods or services as specified at the Store
7.4 The Merchant represents and warrants that it will not engage in any activities:
(a) that constitute or encourage a violation of any applicable law or regulation, including but not limited to the sale of illegal goods or the violation of export controls or obscenity laws;
(b) that defame, impersonate or invade the privacy of any third party or entity;
(c)that infringe the rights of any third party, including but not limited to the intellectual property, business, contractual, or fiduciary rights of others; and,
(d) that are in any way connected with the transmission of 'junk mail', 'spam' or the unsolicited mass distribution of e-mail, or with any unethical marketing practices. If the merchant is found to be connected in the transmission of 'spam' and/or 'junk mail' using Ashop's email accounts and mail server, Ashop will take legal action against the merchant and heavy fines will be applied.
(e) Due to Ashop's restrictions on the content of material displayed, the merchant agrees not to display any form of adult material (pornography)
7.5Ashop reserves the right to refuse to host or continue to host any Store which it believes, in its sole discretion: (1) offers for sale goods or services, or uses or displays materials, that are illegal, obscene, vulgar, offensive, dangerous, or are otherwise inappropriate; (2) has substantially changed its goods or services or other material aspects of the Store from the time it was accepted; (3) has received a significant number of complaints for failing to be reasonably accessible to Customer or timely fulfil customer orders or adequately deal with customers' warranty or service requirements; (4) has become the subject of a government complaint or investigation; or (5) has violated or threatens to violate the provisions or intent of Ashop.
7.6 Non-solicitation. Customer acknowledges and agrees that the employees and consultants of Ashop are a valuable asset to Ashop and difficult to replace. Accordingly, Customer agrees that, during the term of this Agreement and for a period of twelve (12) months after the expiration and non-renewal or termination of this Agreement, Customer will not solicit or attempt to solicit any employee or consultant of Ashop.
8. Ashop Will;
1. Keep all information received from the customer in its possession and treat all information as confidential regardless of when disclosed.
2. Not use the information in any way adverse to the customer’s wishes or employ any of the customer’s information in any way which would be harmful to or against the interest of the customer.
3. Not sell the customer’s information for any purpose or reason.
4. Limit access of the customer’s information to the employees and legal and financial advisors of Ashop and will require all employees and advisors given access to the customer’s information to sign a written binder of secrecy and non use.
5. Not be responsible for any breach of the above terms and conditions through no fault of its own or through matters that are outside of its control (as, for example, but not limited to, “hacking” by third parties) and in this respect the customer
(i) releases Ashop, its directors, officers and employees from any claims, losses, damages, expenses and liabilities arising out of (directly or indirectly) or in connection with the said breaches and
(ii) indemnifies Ashop, its directors, officers and employees in respect of all claims, losses, damages, expenses and liabilities which arise as a consequence of or in connection with the said breaches.
6. To the best of it's ability, provide a working software to the merchant under the chosen plan with features included in chosen plan. The software is not bug free and new bugs may appear at times. Once Ashop has been made aware of a bug, it will attempt to rectify and correct the bug to the best of its ability. Ashop can not place a time frame on bug fixes or confirm that it is possible to be fixed. All bugs will be listed in order of priority and will be worked through in that order. Priority is given to bugs related to affecting sales
9. Proprietary Rights
9.1 Software License. Ashop hereby grants Merchant a non-exclusive, non-transferable licence to use the Software in object code form only on a server controlled by Ashop for the sole purpose of creating and maintaining Stores on such server. Merchant is not being granted any right to copy the Software or to use it on computers other than a server controlled by Ashop. Merchant may not use Web pages or parts of Web pages generated by means of the Software, other than content that originates from and is proprietary to the Merchant, on any server other than the servers controlled by Ashop without Ashop's express written agreement. The Merchant also acknowledges and agrees that the Software is intended for access and use by means of web browsing software, and that Ashop does not commit to support any particular browsing platform. Ashop reserves the right at any time to revise and modify the Software, release subsequent versions thereof and to alter features, specifications, capabilities, functions, and other characteristics of the Software, without notice to the Merchant. If any revision or modification to the Software materially changes Merchant's ability to conduct business, Merchant's sole remedy is to elect to not renew the Ashop account.
9.2 Ashop Intellectual Property. The Merchant acknowledges and agrees that content available from Ashop or the Service, including but not limited to text, software, music, sound, logos, trade marks, service marks, photographs, graphics, or video, is protected by copyright, trade mark, patent, or other proprietary rights and laws, and may not be used in any manner other than on the same restricted basis as specified for the Software in Section 7.1 above and for the purposes of this Agreement.
9.3 Ashop maintains control of the H1 tag on all storefronts/accounts as part of the template. The H1 tag advertising Ashop is delivered as part of the service and cannot be removed or hidden. The H1 Tag will remain for the full term of an active account.
10. Maintenance and Support
10.1 Merchant can obtain assistance with any technical difficulty that may arise in connection with Merchant's utilisation of the Software or Online Store Services by requesting assistance by email via our contact us page or calling Ashop's technical team. Ashop reserves the right to establish limitations on the extent of such support, and the hours at which it is available.
10.2Merchant is responsible for obtaining and maintaining all telephone, computer hardware and other equipment needed for its access to and use of the Software and online Store Services and Merchant shall be responsible for all charges related thereto.
10.3 Ashop makes all attempt to keep software up to date with all integrations, however, as external companies can make changes at any time, Ashop will not be held responsible for updating integrations in a timely manner although all attempts will be made to shedule upgrades at earliest convenience.
11. Changes to this Agreement
Ashop will occasionally update this agreement. When we do, we will also revise the 'last updated' date at the top of the Agreement statement.
This agreement constitutes the entire agreement between the parties as to its subject matter to the exclusion of any prior agreement whether written or oral express or in any way implied.
The construction, validity and performance of this agreement shall be governed in all respects by the law of New South Wales Australia and the parties agree to submit to the exclusive jurisdiction of the Courts of New South Wales Australia.
If any provision of this agreement is held to be invalid or unenforceable for any reason it shall be severable and shall not affect the remaining provisions of this agreement.
References to any party to this agreement shall be deemed to be references to or include as appropriate there respective successors and permitted assigns.
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