Win-Cart Terms of Service
This Service Agreement (the “Agreement”) is made and entered into as of the date of purchase between Palm Beach Software Design, Inc., a Florida corporation with its principal place of business at 4095 S. State Road 7, Suite L-207 and the Client.
WHEREAS, the Company desires to provide the Client with a SaaS shopping cart with scheduled Nivoda inventory feed updates to inventory, hosting, backup services, and maintenance services (the “Services”); and
WHEREAS, the Client desires to engage the Company to provide the Services.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties agree as follows:
The Company agrees to provide the Client with the following Services:
- A SaaS shopping cart
- Hosting for the shopping cart
- Maintenance for the shopping cart and related systems
- Implementation of the Nivoda data feed to update inventory on a scheduled basis
The WooCommerce cart itself will be implemented within the existing website, using the existing theme, content, and imagery.
The Client agrees to pay the Company a monthly fee of $299 for the Standard Cart Services. (See Attachment “A”: Win-Cart pricing.)
The fee will be paid via credit card, recurring on the 1rst of the month. There will be a 5-day grace period before the system is temporarily disabled when payment has not been received.
- Term and Termination
This Agreement shall commence on the Effective Date and shall continue in full force and effect for a period of 12 months (the “Initial Term”), and thereafter shall automatically renew for successive 12 month periods (each a “Renewal Term”), unless either party provides written notice of termination to the other party at least [Notice Period] days prior to the end of the then-current Initial Term or Renewal Term.
Either party may terminate this Agreement for cause upon 30 days’ written notice to the other party if the other party materially breaches any of its obligations under this Agreement and fails to cure such breach within [Cure Period] days after written notice thereof.
The Client agrees to indemnify and hold harmless the Company, its officers, directors, employees, agents, and representatives from and against any and all losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or in connection with any claim, demand, or action brought against the Company, its officers, directors, employees, agents, or representatives by any third party arising out of or in connection with the Client’s use of the Services, the Client’s breach of any of its obligations under this Agreement, or the Client’s negligence or willful misconduct.
- Limitation of Liability
THE COMPANY’S TOTAL LIABILITY FOR ANY AND ALL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE BASIS FOR THE CLAIM, SHALL BE LIMITED TO THE AMOUNT OF THE MONTHLY FEE PAID BY THE CLIENT FOR THE MONTH IN WHICH THE DAMAGES AROSE. IN NO EVENT SHALL THE COMPANY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Force Majeure
The Company shall not be liable for any delay or failure to perform its obligations under this Agreement if such delay or failure is caused by an event beyond the Company’s reasonable control, including but not limited to acts of God, war, terrorism, labor strikes, or governmental regulations.
- Entire Agreement
This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous communications, representations, or agreements, whether oral or written.
This Agreement may be amended only by a writing signed by both parties.
- Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the State of [State].
No waiver of any provision of this Agreement shall be effective unless in writing and signed by both parties.
If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck from this Agreement and the remaining provisions shall remain in full force and effect.
All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered in person, upon the first business day following deposit in the United States mail, postage prepaid, certified or registered, return receipt requested, addressed as follows:
If to the Company:
Palm Beach Software Design, Inc.
4095 S. State Road 7, Suite L-207
Wellington, FL 33449
Attention: Mark Turkel
- Governing Law and Venue. This Agreement will be governed by and interpreted in accordance with the laws of the State of Florida, without giving effect to the principles of conflicts of law of such state. The Parties hereby agree that any action arising out of this Agreement will be brought solely in any state or federal court located in Palm Beach County, Florida. Both Parties hereby submit to the exclusive jurisdiction and venue of any such court. THE PARTIES FURTHER AGREE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TO WAIVE ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM, COUNTERCLAIM OR ACTION ARISING FROM THE TERMS OF THIS AGREEMENT.
- Dispute Resolution. The parties agree to attempt to settle any claim or controversy arising out of this Agreement through consultation and negotiation in good faith and spirit of mutual cooperation. When a dispute arises, the dispute will be submitted in writing to the other party for resolution. If the parties are unable to resolve the dispute within fifteen (15) days, either party may refer the dispute to mediation, the cost of which will be shared equally by the parties, except that each party will pay its own attorney’s fees. Within fifteen (15) days after written notice demanding mediation, the parties will choose a mutually acceptable mediator. Neither party will unreasonably withhold consent to the selection of the mediator. If the dispute cannot be resolved through mediation within forty-five (45) days, either party may submit the dispute to a state or federal court of competent jurisdiction in the State of Florida, U.S.A. Use of any dispute resolution procedure will not be construed under the doctrines of laches, waiver, or estoppel to adversely affect the rights of either party. Nothing herein prevents either party from resorting to judicial proceedings if the dispute is with respect to Intellectual Property Rights, or interim relief from a court is necessary to prevent serious and irreparable injury to a party or others.
- If any legal action or proceeding is brought in connection with this Agreement, the prevailing party shall be entitled to recover reasonable attorney’s fees, expert fees, collection and other related costs, expenses, and fees, through and including appellate litigation, incurred in that action or proceeding;
- If any provision of this Agreement shall be held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be impaired thereby;