Wize Commerce

Terms of Use



Effective June 1, 2012

 

IMPORTANT:

Please read these Terms of Use (the “Agreement”) carefully. This Agreement governs your use of www.wizecommerce.com owned or operated by NexTag, Inc. (“Nextag”, “us” or “we”) (the “Website”) and the services, features, content and/or materials provided by Nextag through or in connection with the Website (the “Service(s)”). Each time you use the Service, you acknowledge that you have read and agree to be bound by the Agreement. If you do not agree to be bound by the Agreement, you may not use the Service.

Nextag is not liable for any delay, inaccuracy, error or omission with respect to information or the transmission or delivery of all or any part there of, for any damage arising therefrom or occasioned thereby, or for the results obtained from the use or inability to use the Website or Services. Nextag is not liable for any act or omission of any merchant or service provider on the Website. You assume the entire risk as to the accuracy, adequacy, completeness, currency, validity and quality of any information relating to the Website or Services.We may, in our sole discretion, alter, modify, amend, update, or otherwise change, any information displayed on the Website without notice and for any reason, including but not limited to effecting compliance with its then-existing policies.

LINKS

Nextag and its licensees and affiliates (“Partners”) may provide links to external websites or resources (which are not the Website) for your convenience and reference only. Nextag and its Partners do not control or endorse and are not responsible for the availability of or your experience on these external websites or resources or for any content, advertising, products, or other materials on or available from such external websites or resources. Your use of and dealings with the owners or operators of these external websites or resources are at your own risk. Once you link to an external website, you understand that you should read and understand that website’s privacy statement and other conditions of use. You cannot make any claim against Nextag (or its subsidiaries, affiliates, Partners or service providers, or each of their respective directors, officers, agents, and employees) arising out of your use of external websites or resources.

MEMBER REGISTRATION

The Website may allow you to register and/or submit basic contact information in which case you must provide certain current, complete, and accurate information about yourself (the “Registration Data”) when registering or updating your Registration Data. You agree not to misrepresent your identity. You agree to notify Nextag us immediately of any unauthorized use of your account or of any other breach of security known to you with respect to the Service.

OWNERSHIP

All of the material included on the Website or provided in the Service, including but not limited to trademarks, text, graphics, logos, service marks, and copyrights (collectively, the “Content”), is the property of Nextag and other parties. U.S. and international copyright laws protects all Content available on the Website. Your use of the Service and the Content does not transfer to you any ownership or other rights in the Service or the Content. You may download Content displayed on the Website for your personal, noncommercial use only, provided you also retain all copyright and other proprietary notices contained on the Content. You may not use, modify, copy, distribute, transmit, display, publish, sell, license, or create derivative works using any of the Content for commercial or public purposes.

LICENSE

Grant of License. The Website may allow you the option of posting content, comments, feedback or other Member Content (as defined below). You hereby grant to Nextag, on all media, whether now known or hereinafter devised, a non-exclusive, irrevocable, worldwide, perpetual, sublicensable, assignable, royalty-free license to: display, publish, use, translate, create derivative works from, reproduce, reformat, compile, archive, distribute, and transmit all materials provided by you to Nextag that are not clearly marked as confidential (“Member Content”) and display your name or user name, trademarks and service marks (as used in connection with Member Content). You may submit Member Content only in accordance with Nextag’s current content submission guidelines. Nextag shall have no obligation to post Member Content, may remove Member Content, or may change or discontinue the Website at any time in its sole discretion. Nextag has no obligation to monitor Member Content submitted by you or others in connection with the Website. Unless or until Nextag specifies another form of delivery of Member Content or another URL address, you may submit Member Content to Nextag at http://www.wizecommerce.com. As the sole consideration for the license and rights granted to Nextag under the Agreement, Nextag will consider posting Member Content on the Website. Nextag may, but is not required to, edit or modify any Member Content as appropriate to comply with Nextag’s policies.Ownership, Copyright and Trademarks. You retain all right, title and interest (subject to the license granted herein) in and to Member Content you submit to Nextag, and represent and warrant that such Member Content and the license granted herein (i) is factually accurate; (ii) does not violate any intellectual property rights; (iii) does not contain information which is obscene or defames, libels or otherwise injures or interferes with the privacy of others; and (iv) does not require the payment of any kind by Nextag to others.Ownership, Copyright and Trademarks. You retain all right, title and interest (subject to the license granted herein) in and to Member Content you submit to Nextag, and represent and warrant that such Member Content and the license granted herein (i) is factually accurate; (ii) does not violate any intellectual property rights; (iii) does not contain information which is obscene or defames, libels or otherwise injures or interferes with the privacy of others; and (iv) does not require the payment of any kind by Nextag to others.

ACCEPTABLE USE OF THE WEBSITE

Your use of the Service must be lawful and consistent with the security and reliability of the Service and the World Wide Web. In addition, the following rules apply to your use of the ServiceYou certify to Nextag that you are at least 18 years of age and that you are able to form legally binding agreements. You assume full responsibility for the use of the Service by any minors.Your use of the Service is subject to all applicable local, state, national and international laws and regulations. Your conduct is subject to Internet regulations, policies and procedures.

You are solely responsible for the content of your transmissions. You acknowledge and agree that Nextag does not endorse the actions, the contents of communications, or the products of any user, service provider or merchant.

You must abide by all of the then-current terms of Nextag’s Privacy Policy as set forth on the Website and as updated from time to time by Nextag in its sole discretion.

PROHIBITED CONDUCT

You must not: (i) use the Service for any illegal purpose or for the transmission of any material that is unlawful, harassing, libelous, invasive of another’s privacy, abusive, threatening, harmful, vulgar, obscene, tortious, or otherwise objectionable, or that infringes or may infringe the intellectual property or other rights of another, including the sale of pornography, firearms and ammunition, living creatures and parts of endangered species, stocks and other securities, drugs and drug paraphernalia, human body parts and remains; (ii) directly or indirectly interfere or attempt to interfere with the proper working of any of the Website, any account, or any communication or transaction being conducted on our Website; (iii) use any robot, spider, scraper, other automatic device, or manual process to monitor or copy our web pages or the Content for any purpose without our prior expressed written permission; (iv) take any action which imposes an unreasonable or disproportionately large load on our infrastructure, (v) use or disclose (to anyone except Nextag where legally permitted) any information you obtain about or from other users of the Service, or that you obtain from Nextag if such information is marked confidential, for any purpose, (vi) conduct fraud, hide or attempt to hide your identity, represent yourself as someone else, or manipulate or attempt to manipulate prices, compromise or attempt to compromise the security of any account, interfere or attempt to interfere with the proper working of the Service, (vii) send any unsolicited email or advertising to any known user or (viii) use the Services for any use other than personal, non-commercial purposes unless specifically approved in writing by Nextag, in its sole discretion.

REVIEWS AND OTHER CONTENT

The Website may provide you with the option to post content or view content posted by others on the Service. Nextag does not undertake any obligation to monitor such content and is not responsible for, and does not endorse, any content posted by any user.

PRIVACY POLICY

Please read Nextag’s Privacy Policy. By accepting the Agreement, and each time you use the Service, you consent to Nextag’s collection, use and disclosure of your information or Registration Data in accordance with the Privacy Policy without any further notice or any liability to you or any other person.

INDEMNIFICATION

You agree to indemnify and hold Nextag, its subsidiaries, affiliates, officers and employees, and service providers harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of (i) your use of the Service or the content therein, (ii) the violation of this Agreement by you, or (iii) the infringement by you, or other user of the Service using your computer, of any intellectual property or other right of any person or entity. Even though prohibited, users may provide information that is offensive, false, harmful, or deceptive. Nextag and its service providers assume no responsibility whatsoever for such content or actions.

DISCLAIMER OF WARRANTIES. NOTHING IN THESE TERMS OF USE SHALL AFFECT THE STATUTORY RIGHTS YOU ARE ENTITLED TO AS A CONSUMER TO THE EXTENT THAT SUCH RIGHTS CANNOT BE WAIVED OR ALTERED BY YOUR CONTRACTUAL AGREEMENT. YOU EXPRESSLY AGREE THAT USE OF THE SERVICE IS AT YOUR OWN RISK. NEXTAG PROVDIES THE SERVICE ON AN “AS IS” BASIS. NEXTAG AND ITS SERVICE PROVIDERS EXPRESSLY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, TERMS AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED (WHETHER BY STATUTE OR OTHERWISE), INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. NEXTAG AND ITS SERVICE PROVIDERS MAKE NO REPRESENTATION, WARRANTY, OR TERM OR OTHER CONDITION (i) THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; (ii) AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE, CONFIDENTIALITY OR PRIVACY OF ANY OF USER’S INFORMATION REGISTRATION DATA, OR ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICE. ANY MATERIAL OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL OR DATA. NEXTAG AND ITS SERVICE PROVIDERS MAKE NO REPRESENTATION, WARRANTY, TERM OR CONDITION REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE SERVICE AND ARE NOT RESPONSIBLE FOR ANY USE OF CONFIDENTIAL OR PRIVATE INFORMATION BY OTHER USERS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM NEXTAG OR THROUGH THE SERVICE, SHALL CREATE ANY REPRESENTATION, WARRANTY, TERM OR CONDITION NOT EXPRESSLY MADE HEREIN. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.WHILE NEXTAG TAKES REASONABLE STEPS TO SAFEGUARD AND TO PREVENT UNAUTHORIZED ACCESS TO YOUR INFORMATION AND REGISTRATION DATA, WE CANNOT BE RESPONSIBLE FOR THE ACTS OF THOSE WHO GAIN UNAUTHORIZED ACCESS, AND WE MAKE NO REPRESENTATION, WARRANTY, TERM, OR CONDITION, EXPRESS, IMPLIED OR OTHERWISE, THAT WE WILL PREVENT UNAUTHORIZED ACCESS TO YOUR PRIVATE INFORMATION. IN NO EVENT SHALL NEXTAG BE LIABLE FOR ANY DAMAGES (WHETHER CONSEQUENTIAL, DIRECT, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR OTHERWISE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, A THIRD PARTY’S UNAUTHORIZED ACCESS TO YOUR INFORMATION OR REGISTRATION DATA, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, STRICT LIABILITY, TORT OR OTHER THEORIES OF LIABILITY, AND ALSO REGARDLESS OF WHETHER NEXTAG WAS GIVEN ACTUAL OR CONSTRUCTIVE NOTICE THAT DAMAGES WERE POSSIBLE.

LIMITATION OF LIABILITY

NEXTAG AND ITS SERVICE PROVIDERS SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES OR RESULTING FROM THE USE OF OR INABILITY TO USE THE SERVICE, ANY GOODS OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED, OR UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLE, EVEN IF NEXTAG OR ITS SERVICE PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN NO EVENT WILL NEXTAG AND ITS SERVICE PROVIDERS EVER BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES, AND COSTS, WHETHER IN CONTRACT, TORT OR UNDER OTHER FAULT OR WRONGDOING BY NEXTAG OR ITS SERVICE PROVIDERS OR ANY PERSON FOR WHOM EITHER NEXTAG OR ITS SERVICE PROVIDERS ARE RESPONSIBLE, IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO NEXTAG FOR THE USE OF THE SERVICE WHICH IS THE SUBJECT OF THE CLAIM.

RELEASE

YOU HEREBY RELEASE, REMISE AND FOREVER DISCHARGE NEXTAG, ITS SUBSIDIARIES AND AFFILIATES, ITS SERVICE PROVIDERS AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, AGENTS, EMPLOYEES, INFORMATION PROVIDERS, SERVICE PROVIDERS, SUPPLIERS, LICENSORS AND LICENSEES, AND ALL OTHER RELATED, ASSOCIATED, OR CONNECTED PERSONS FROM ANY AND ALL MANNER OF RIGHTS, CLAIMS, COMPLAINTS, DEMANDS, CAUSES OF ACTION, PROCEEDINGS, LIABILITIES, OBLIGATIONS, LEGAL FEES, COSTS, AND DISBURSEMENTS OF ANY NATURE AND KIND WHATSOEVER AND HOWSOEVER ARISING, WHETHER KNOWN OR UNKNOWN, WHICH NOW OR HEREAFTER EXIST, WHICH ARISE FROM, RELATE TO, OR ARE CONNECTED WITH YOUR USE OF THE SERVICE. If you are a California resident, you waive California Civil Code 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor,” as well as any other statute or common law principle of similar effect.

TERMINATION

If you breach any provision of this Agreement, you may no longer use the Service. Nextag may, in its sole discretion, change, suspend, or terminate, temporarily or permanently, the Service or any part of it at any time, for any reason, without notice to you and without liability to you or any other person. If Nextag terminates this Agreement for any reason, it continues to apply and bind you with respect of your prior use of the Service, including payment of any charges accrued in connection with use of the Service. Upon termination, Nextag may remove from the Website and permanently delete and destroy any Member Content that you or others may have posted or submitted without any prior notice or liability to you or any other person.

DISPUTE RESOLUTION (The “Arbitration Clause”)

In the event of a dispute, you and Nextag agree to submit to binding arbitration. The arbitration will be held before one arbitrator on an individual basis and not as a class action. You waive any right you may have to arbitrate a Dispute as a class action. You may select any one of the following arbitration organizations and its applicable rules: the American Arbitration Association, 335 Madison Ave., Floor 10, New York, NY 10017-4605(http://www.adr.org), the National Arbitration Forum, Box 50191, Minneapolis, MN 55405-0191

(http://www.arb-forum.com), or JAMS, Two Embarcadero Center Suite 1100 San Francisco, CA 94111(http://www.jamsadr.com). You may obtain copy of the rules of each organization by contacting the organization.Arbitrators shall be attorneys or retired judges and shall be selected pursuant to the applicable rules. You and Nextag shall agree on one arbitrator to conduct the arbitration. The arbitrator shall apply governing substantive law in making an award. In any arbitration, Nextag will pay the filing, administration, service or case management fee, plus the costs associated with the first day of arbitration, with the remaining costs to be paid by the non-prevailing party. Nextag will pay additional arbitration expenses to the extent that the arbitrator determines that Nextag must in order to ensure the enforceability of this arbitration clause. Each party shall be responsible for its own attorney, expert and other fees, unless awarded by the arbitrator under applicable law.The arbitrator’s award is final and binding on all parties. The Federal Arbitration Act, and not any state arbitration law, governs all arbitration under this Arbitration Clause. Any court having jurisdiction may enter judgment on the arbitrator’s award. If any part of this Arbitration Clause, other than waivers of class action rights, is deemed or found to be unenforceable for any reason, the remainder remains enforceable.

THIS AGREEMENT PROVIDES THAT ALL DISPUTES BETWEEN YOU AND NEXTAG WILL BE RESOLVED BY BINDING ARBITRATION AND NOT IN COURT OR BY JURY TRIAL. IF A DISPUTE IS ARBITRATED, YOU GIVE UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST NEXTAG INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. WITHOUT LIMITATION, THIS INCLUDES GIVING UP YOUR RIGHTS TO BRING OR PARTICIPATE IN A CLASS ACTION AS SET FORTH IN THE WISCONSIN CONSUMER ACT, WIS. STATS. 426.110.

NOTICES

Except as stated otherwise, any notices shall be given by postal mail to Nextag, Inc., Attention: Legal Department, 2955 Campus Dr., 3rd Floor, San Mateo, California 94403.

ELECTRONIC COMMUNICATIONS

We provide our Service online, and you will interact with us electronically. You consent to receive communications from us electronically. We will communicate with you by email or by posting notices on the Website. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications and/or agreements be in writing.

GENERAL

The Agreement comprises the entire agreement between you and Nextag and supersedes all prior agreements regarding the subject matter contained herein. Nextag may amend the terms and conditions of this Agreement (the “amended terms”) from time to time. If you continue to use the Service after the amended terms become effective, you are deemed to have agreed to be bound by the amended terms. If you do not agree to the amended terms, then you agree not to use the Service. Your continued use of the Service constitutes an affirmative: (i) acknowledgment by you of this Agreement and its amended terms; and (ii) agreement by you to abide and be bound by the Agreement and its amended terms. This Agreement shall be governed by and construed in accordance with the laws of the State of California (without regard to conflict of laws provisions thereof). If any provision(s) of the Agreement is held contrary to law, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect. Nextag’s failure to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Nextag in writing. The section titles in the Agreement are used solely for the convenience of the parties and have no legal or contractual significance.A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. PLEASE PRINT AND RETAIN A COPY OF THIS AGREEMENT FOR YOUR RECORDS.