X-Shops Merchant User Agreement

THIS AGREEMENT is made this %DAY% day of %MONTH% , %YEAR% by and between Qualiteam Corp ("Service Provider") and you, the user, together with a company %COMPANY_NAME% or other business entity you are representing, if any (collectively, "You").

Service Provider provides software programs ("Software") that enable merchants to build online stores through which they can sell their products and services online. Service Provider also provides merchants services, including hosting of the online store, site design, email services, marketing services, domain name registration, and other related services as may be offered from time to time (collectively, "Services").

This Agreement is effective upon Your acceptance in registration. By accepting this Agreement and subject to the terms and conditions of this Agreement, including those terms and conditions that are set forth on the website located at www.x-shops.com ("X-Shops Site") that are incorporated herein by reference and may be accessed through links in this Agreement, Service Provider will provide You with a limited license to use the Software and receive the Services.

By accepting this Agreement, You further agree to be bound by any amendments to the terms and conditions of this Agreement or to such terms and conditions as are incorporated herein by reference. Except as stated below, all amended terms shall automatically be effective thirty (30) days after they are initially posted on the X-Shops Site.

Notwithstanding anything contained in the foregoing, this Agreement will not bind Service Provider unless You meet the eligibility criteria for entering into this Agreement as set forth in Section 1 of this Agreement.

1. Eligibility criteria

The Software license and Services are available only to, and may only be used by individuals who can form legally binding contracts under applicable law. Without limiting the foregoing, the Software and Services are not available to children (persons under the age of 18). If You are registering as a business entity, You represent that You have the authority to bind the entity to this Agreement. Service Provider uses many techniques to verify the accuracy of the information You provide when You register on the X-Shops Site. If for any reason, Service Provider, in its sole discretion, believes such information to be incorrect, it reserves the right, without provision of any notice to You, to revoke any and all licenses under this Agreement or to refuse to provide the Software license and Services under this Agreement to You.

2. Software ownership and licenses

2.1 Software ownership

Except for the limited access right granted to You in this Agreement, all right, title and interest in and to the Software (including any and all modifications as a result of any implementation services rendered) are and shall remain the exclusive property of Service Provider and its licensors.

2.2 Software license

Subject to the terms and conditions of this Agreement, Service Provider grants to You a non-exclusive, non-transferable, revocable, limited license to remotely access and use the Software on servers operated by or for Service Provider ("X-Shops Servers") through the X-Shops Site solely for the purpose of building and maintaining an interactive store hosted by the X-Shops Servers on which You offer Your or a third party's products or services ("Your Store").

2.3 Software license restrictions

Pursuant to this Agreement, you may: a) use the Software on X-Shops Servers only, for purposes of running one e-commerce store only. b) modify the Software and/or merge it into another program.

Except as expressly set forth in this Agreement, you have no right to use, make, sublicense, modify, transfer or copy either the original or any copies of the Software or to permit anyone else to do so. You may not allow any third party to have access to the source code of the Software. It is illegal to copy the Software and install that single program for simultaneous use on multiple machines.

2.4 Software Proprietary Notices & Confidentiality

You may not remove, disable, modify, or tamper with any copyright, trademark or other proprietary notices and legends contained within the code of the Software.

The Software and the templates contain valuable trade secrets and proprietary information belonging to Service Provider and it's licensors. You must keep confidential and protect from unauthorized disclosure all such program code, all templates and all information that Service Provider expressly designates as confidential or that you reasonably should understand to be confidential or proprietary.

3. Services

Upon activation of Your account and subject to the payment of applicable fees, Service Provider will provide certain hosting, support and other miscellaneous Services for the Software licensed by You under this Agreement and Your Store during the term of this Agreement as published on the X-Shops Site. Your Store shall be hosted on a X-Shops Server on which several merchants may share the resources and network capacity of that X-Shops Server.

4. Your Store & content control

4.1 Control of Your Store

You will be solely responsible for the development, operation and maintenance of Your Store, including the operation of Your Store, accepting, processing and filing customer orders generated through Your Store, and handling any customer inquiries, complaints, or disputes arising from orders or sales generated through Your Store. You agree that Service Provider has no obligation to back-up any data related to Your Store's operations and you should independently take appropriate steps to maintain such data in accordance with Your needs and requirements.

4.2 Control of Your Store's content

You will be solely responsible for creating, managing, editing, reviewing, deleting and otherwise controlling the content on Your Store including all descriptions of the products and services You offer to customers of Your Store and user-generated content on and related to Your Store. As a conduit, Service Provider will give You complete discretion over Your content provided it is compatible and interoperable with the Software and Services provided by Service Provider under this Agreement. You retain all rights, title and interest in and to all intellectual property rights embodied in Your content, exclusive of any content provided by Service Provider. Notwithstanding anything contained in the foregoing, if You breach any of the covenants in Section 5.1 of this Agreement, Service Provider is entitled to suspend or terminate Your Store and/or any access to information or data related to Your account and the Software in accordance with Section 12 of this Agreement.

4.3 Passive conduit

You acknowledge that, by only providing You with the ability to publish and distribute Your own or third party products, services or content, Service Provider and its Software are acting only as passive conduits for the distribution and/ or publishing of such products, services or content on the Store. Service Provider has no obligation to You or any third party, and undertakes no responsibility, to review Your Store, the products or services listed therein or any other content, including but not limited to user-generated content, published and/or distributed on Your Store to determine whether any such product, service or content may incur liability to third parties. Notwithstanding anything to the contrary herein, if Service Provider believes in its sole discretion (as applicable) that Your Store or any products, services, content or other materials in the Store or on Service Provider Servers may create liability for Service Provider, You agree that Service Provider may take any actions with respect to the content or materials or Your Store that Service Provider believes are prudent or necessary to minimize or eliminate Service Provider's potential liability. Service Provider shall, as applicable, be the sole judge of what content or materials may create liability for Service Provider.

4.4 Content license

During the period that Service Provider provides Services to You pursuant to Section 3 of this Agreement, You hereby grant to Service Provider and its subcontractors a non-exclusive, irrevocable, non-sublicenseable, royalty-free, worldwide license to reproduce, distribute, create derivative works of, transmit, publicly perform, publicly display and digitally perform Your content solely for the purposes provided in this Agreement.

4.5 No cardholder data collecting or storage

You agree not to use Your Store and Service Provider Servers for collecting or storage sensitive cardholder data as defined in PCI-DSS standard; an appropriate third party payment processing services should be used instead. You agree to configure and use the Software in accordance with Service Provider's PCI-DSS implementation manuals available at http://help.qtmsoft.com.

5. Covenants

5.1 Covenants by You

You covenant that any products, services, or content published and distributed on Your Store and Your related activities shall not violate the X-Shops Acceptable Use Policy that is incorporated herein by reference and as it may be amended from time to time, nor shall they :

(i) be false, inaccurate or misleading;

(ii) be fraudulent or involve the sale of counterfeit or stolen items;

(iii) infringe or misappropriates any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy;

(iv) violate any law, statute, ordinance or regulation (including, but not limited to, those governing privacy, publicity, export control, consumer protection, unfair competition, antidiscrimination or false advertising);

(v) be defamatory, trade libelous, unlawfully threatening or harassing, or advocating, promoting or providing assistance involving violence, significant risk of death or injury, or other unlawful activities;

(vi) be obscene or contain child pornography;

(vii) contain any viruses, Trojan horses, worms, time bombs, cancelbots, easter eggs or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information;

(viii) involve the transmission of any unsolicited commercial or bulk email (known as "spamming") and You shall not use Your account or Your Store as a return address for unsolicited commercial mail originating elsewhere or participate in any activities related to so-called pyramid or ponzi schemes;

(ix) involve the collection or attempt to collect personally identifiable information of any person or entity, except with the express written consent of that person or entity and of which consent You shall maintain a written record for a period of three (3) years after any termination of this Agreement;

(x) be harmful or potentially harmful to the X-Shops Server structure as determined in Service Provider's sole discretion, including without limitation overloading the Service Provider technical infrastructure;

(xi) involve subleasing Your account or offering "free space" on or other access to Your account or Your Store to third parties;

(xii) create liability for Service Provider and its subcontractors or expose them to undue risk or otherwise engage in activities that Service Provider, in its sole discretion, determines to be harmful to Service Provider's affiliates, operations, reputation, or goodwill ; and

(xiii) link directly or indirectly to or include descriptions of goods or services that violate any applicable law, statute, ordinance or regulation, or that violate Service Provider's Prohibited and Restricted Items that is incorporated herein by reference and may be amended from time to time.

Furthermore, You agree to display and adhere to a terms of use or other user-type agreement, as well as a privacy policy, governing Your operation of Your Store and Your conduct with Your Store's customers.

5.2 Breach of covenant

Your failure to comply with the covenants set forth in Section 5.1 of this Agreement will amount to a breach of this Agreement and is cause for immediate suspension and/or termination under Section 12 of this Agreement.

6. Fees & Taxes

6.1 Fees

You shall pay the fees set forth for the Software license and Services purchased by You in accordance with Service Provider's Pricing that is incorporated into this Agreement by reference. Service Provider may change its Pricing and the fees for its Services from time to time. Service Provider's changes to the policy are effective after Service Provider provides You with at least fourteen (14) days' notice of the changes by posting the changes on the X-Shops Site.

6.2 Payment terms

Service Provider will invoice You once a month, and all payments are due within five (5) days after Service Provider submits its invoice. If You fail to pay in full by the tenth (10) day after Service Provider submits its invoice Your Account may be suspended or terminated under Section 12.2 of this Agreement, but any suspension does not relieve You from the obligation to pay all fees due to Service Provider, including the monthly charge.

6.3 Taxes

All fees under this Agreement exclude all applicable sales, use, and other taxes and government charges, whether federal, state or foreign, and You will be responsible for payment of all such taxes (other than taxes based on Service Provider's income), fees, duties, and charges, and any related penalties and interest, arising from the payment of any and all fees under this Agreement including the access to or license of the Software and performance of the Services hereunder.

7. Disclaimer of warranties

SERVICE PROVIDER, ITS SUPPLIERS AND SERVICE PROVIDERS, PROVIDE THE SOFTWARE, ADDITIONAL SOFTWARE, AND SERVICES, ON AN "AS IS" BASIS AND EXPRESSLY DISCLAIM ANY AND ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, TITLE, NON-INFRINGEMENT, AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE ARE EXCLUDED. SERVICE PROVIDER, ITS SUPPLIERS AND SERVICE PROVIDERS, DO NOT WARRANT THAT THE SOFTWARE, ADDITIONAL SOFTWARE, OR SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED AND MAKE NO REPRESENTATIONS REGARDING UPTIME, USE, DATA SECURITY, ACCURACY AND RELIABILITY OF THEIR SERVICES. YOU ACKNOWLEDGE AND AGREE THAT THIS SECTION 7 IS REASONABLE AND AN ESSENTIAL ELEMENT OF THIS AGREEMENT AND THAT IN ITS ABSENCE, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.

8. Limitation of liability

IN NO EVENT SHALL SERVICE PROVIDER, ITS SUPPLIERS, OR SERVICE PROVIDERS, OR THEIR OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS OR AGENTS BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE, THE ADDITIONAL SOFTWARE, THE SERVICES OR THIS AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE). SERVICE PROVIDER'S, ITS SUPPLIERS', AND SERVICE PROVIDERS', CUMULATIVE LIABILITY, AND THE LIABILITY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS AND AGENTS TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO [THE GREATER OF (A)] THE AMOUNT OF FEES YOU PAY TO SERVICE PROVIDER FOR (I) THE SOFTWARE LICENSE AND (II) THE SERVICES IN THE ONE (1) MONTH IMMEDIATELY PRECEDING THE MONTH IN WHICH THE ACTION GIVING RISE TO THE LIABILITY FIRST AROSE, AND (B) ONE HUNDRED U.S. DOLLARS (U.S. $100).

9. Indemnity

You agree to indemnify and hold Service Provider, its suppliers, and service providers, and their officers, directors, agents, and employees, harmless from any and all losses, costs, liabilities or expenses (including without limitation reasonable attorneys' and expert witnesses' fees) incurred or arising from: (a) any breach of the covenants in Section 5.1 of this Agreement, (b) any content provided by You or generated by users of Your Store, (c) any claims arising from the sale or license of goods or services in Your Store, or (d) any breach of this Agreement or the documents it incorporates by reference. Service Provider's, its suppliers' and service providers' indemnity rights shall not be limited or offset by any contributory negligence by Service Provider.

10. Customer data, Your data & privacy policy

As between Service Provider and You, You shall own all data disclosed by or collected about (a) an individual or entity that accesses Your Store to browse or shop ("Customer Data"), and (b) You ("Your Data"). Service Provider does not sell or rent Your Data to third parties for marketing purposes without Your explicit consent and Service Provider only uses and disclose Your Data as described in the Service Provider Privacy Policy, that is incorporated herein by reference and as it may be amended from time to time.

Service Provider shall collect, store and process Customer Data and Your Data on computers located in the United States that are protected by physical as well as technological security devices. If You object to Customer Data or Your Data being collected, stored or processed in this way, please do not use the Software or Services.

You shall maintain all Customer Data that is collected by or disclosed to You in trust and confidence and use and disclose such information solely in accordance with Your privacy policy. You must post, maintain and adhere to Your privacy policy that informs Your Store customers what Customer Data is collected, how it is used, the effective date of Your privacy policy and how customers of Your Stores can learn of changes to Your privacy policy. You shall include a hyperlink to Your privacy policy on the home page of Your Store and on all pages where You collect Customer Data. In addition, You must prominently include within Your posted privacy policy a statement notifying Your customers that Your Store is hosted by Service Provider and that Service Provider has access to aggregated information about customers of Your Store in order for Service Provider to analyze performance and make improvements to Service Provider products.

11. Breach

Without limiting other remedies, Service Provider may limit Your activity, issue a warning, temporarily suspend, indefinitely suspend or terminate Your account or Your Store, in whole or in part, and refuse to provide some or all of the Software functionality or Services to You if: (a) You fail to pay any fees in accordance with Section 6 of this Agreement and the Price Policy; (b) You breach the covenants in Section 5.1 of this Agreement; (c) You breach this Agreement or the documents it incorporates by reference in any other manner; (d) Service Provider is unable to verify or authenticate any information You provide to Service Provider; or (e) Service Provider believes that Your actions may cause financial loss or legal liability for You, Your Store customers, or Service Provider.

12. Suspension and termination

12.1 Suspension

At the discretion of Service Provider and for any reason set forth in Section 12 of this Agreement, Service Provider may suspend Your account by deactivating any access by You or by Your customers to any information contained on the X-Shops Servers related to Your account while maintaining the information and data related to Your account upon the X-Shops Servers. Suspension shall specifically include the disabling of Your Store and/or any access to information or data related to Your account. In the event of any such suspension You will be notified and given an opportunity to correct such breach. In the event that such breach is not corrected within ten (10) days of the receipt of such notice the account may be terminated under Section 12.2 of this Agreement. Fees under this Agreement will continue to accrue on suspended accounts as if they were not suspended. You will remain responsible for the payment of any such fees during any such period of suspension.

12.2 Termination

This Agreement and all of its terms shall remain in full force and effect until it is terminated in accordance with the terms of this Agreement. This Agreement may be terminated either by Service Provider (a) immediately as provided in this Agreement, (b) after a period of suspension as set forth in Section 12.1 of this Agreement, or (c) upon thirty (30) days written notice for any reason.

12.3 Rights upon termination

In the event of expiration or termination for any reason, the licenses granted under Section 2 of this Agreement shall automatically and immediately cease and You shall destroy all copies of the Software in Your possession, if any. Upon termination, there will be no refund provided to You except as set forth in the Moneyback Policy, that is incorporated herein by reference, and all outstanding fees owed by You shall become immediately due and payable. Termination shall not affect the rights of Service Provider to recover from You losses, damages, indemnity, defense costs, expert costs, collection costs and/or attorneys fees or expert witnesses' cost or other costs of any kind under this Agreement.

14. General

14.1 Governing law

This Agreement is governed by English law. Any dispute arising out or in connection with this agreement including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the Rules of the London Court of International Arbitration ("LCIA") which Rules are deemed to be incorporated by reference into this clause. The place of arbitration shall be London, England.

14.2 Legal compliance

You shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding Your use of the Software, the Services, and Your listing and sale of products and services on Your Store.

14.3 Force majeure

Except for the payment of any fees due and payable under this Agreement, neither party's delay in the performance of any duties or obligations under this Agreement will be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, failures in electric power or telecommunications services, or any other event beyond the control of the party.

14.4 Notices

Except as explicitly stated otherwise, any notification or written communication required by or contemplated under the terms of this Agreement shall be in writing and shall be deemed to be delivered via Support Helpdesk (https://secure.qtmsoft.com/).

14.5 Assignment

You shall not assign, transfer or delegate this Agreement or any rights or obligations hereunder. Any assignment, transfer or delegation in contravention of the foregoing provision shall be null and void. You agree that this Agreement may be assigned by Service Provider, in Service Provider's sole discretion.

14.6 No third party beneficiary

You acknowledge and agree that nothing herein, express or implied, is intended to nor shall be construed to confer upon or give to any person, other than the parties, any interests, rights, remedies or other benefits with respect to or in connection with any agreement or provision contained herein or contemplated hereby.

14.7 Severability; waiver

If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. Service Provider's failure to act with respect to a breach by You or others does not waive Service Provider's right to act with respect to subsequent or similar breaches.

14.8 Additional terms

The following policies are incorporated into this Agreement by reference and provide additional terms and conditions related to the Services offered by Service Provider:

(a) X-Shops Prohibited Items Policy
(b) X-Shops Privacy Policy
(c) Service Provider's Pricing
(d) Moneyback Policy

14.9 Entire agreement

This Agreement sets forth the entire understanding and agreement between You and Service Provider with respect to the subject matter hereof.