These General Terms and Conditions of Use together with the Order Confirmation and Special Terms (as defined in the Order Confirmation), if any, constitute the entire “Agreement” between the Parties. The “Parties” are the “Company” and the “Customer,” collectively, or a “Party” separately, and are defined as follows: (a) the “Company” or “Ecommercialise” refers to and describes Magnificent Identities Ltd (T/A Ecommercialise). and/or Ecommercialise, and (b) the “Customer” refers to and describes the customer/subscriber accessing, having the ability to access, or otherwise has the Company’s permission, authorization, or confirmation to access Company’s Ecommercialise subscription or otherwise its services, products, and/or content. “Ecommercialise” refers to and describes any Ecommercialise product and/or service, as well as any other product and/or service affiliated with or otherwise connected to the Ecommercialise product and/or service, including but not limited to, Ecommercialise Enterprise. The “Order Confirmation” refers to and describes the approval, authorization, or otherwise the confirmation received upon subscribing to or agreeing to be subscribed to Ecommercialise. This Agreement shall govern Customer’s access to and use of Ecommercialise and the Company’s products and services purchased by Customer as listed in the Order Confirmation (collectively, “Ecommercialise”). Ecommercialise is a subscription provided by Company and its third party providers, as applicable, on and through the domain and sub-domains of Company. To the extent of any inconsistency between the General Terms and Conditions, Special Terms, and the Order Confirmation, the Special Terms shall control, followed by the General Terms and Conditions and then the Order Confirmation, unless otherwise agreed by the Parties in writing.
Right of Use
2.2 Customers who are any type of agency, entity, business, or company that provides any range of marketing or consulting services to their clients, customers, or otherwise may use Ecommercialise on behalf of their client(s) but only if all of the following conditions are met: (i) Customer agrees that Company and its licensors and/or providers are not parties to the agreement between Customer and its client(s); (ii) Customer’s payment obligations pursuant to this Agreement are not dependent upon receiving payment from Customer’s clients nor are they dependent on the Customer and/or client(s) otherwise complying with the agreement between the two; (iii) Customer must obtain client’s credentials for authorizing Customer to provide client information as necessary for Company to perform under this Agreement; (iv) the agreement between Customer and its client(s) is at least as restrictive and protective of Company’s and its licensors’ and/or its providers’ rights as this Agreement. Customer shall be solely responsible for and shall comply with all laws, rules, regulations and directives in delivering and providing the Customer’s agency services, including but not limited to, any laws regarding privacy and the use and disclosure of personal data and any advertising and/or marketing laws.
Customer shall be responsible for obtaining and maintaining all hardware, software, communications equipment and network infrastructures required to access and use Ecommercialise and for paying all third-party fees and access charges incurred while using Ecommercialise.
Account and Password
Customer will receive credentials to log in to Ecommercialise. Customer shall have sole responsibility for all activities relating to such Customer’s subscription account and shall immediately inform Company of any unauthorized use of the Customer’s subscription account.
Third Party Data Sources
Ecommercialise includes links to third party data sources. Customer is responsible for evaluating whether to access or use a Third Party Data Source and agrees to be bound by any applicable terms found therein. Company does not screen, audit or endorse any Third Party Data Source. Customer agrees it will not copy, reproduce, distribute, transmit, broadcast, modify, display, sell, license or otherwise exploit Third Party Data Sources except in strict compliance with the rights, if any, granted to Customer by any third party. Customer warrants that all content uploaded and distributed via Ecommercialise by Customer shall comply with all applicable law. Company will terminate the account of any Customer, and block access of any user, who infringes any Company’s or third party intellectual property right(s). Company or otherwise Ecommercialise does not support the use or assure performance when using automated tools to access the Ecommercialise system, including but not limited to, unauthorized API access or browser automations.
Term & Fees
6.1 Customer agrees to a annual subscription term, unless otherwise specified in the Agreement, as well as agrees to the monthly price of such subscription, effective upon the Customer’s signing, acknowledging, agreeing to, or otherwise subscribing to Ecommercialise, whether such signing, acknowledging, agreeing to, subscribing or otherwise was completed via hand signature, electronic signature, checking a box, clicking a button, entering a hyperlink, receiving the Order Confirmation, or otherwise.
6.2 When the subscription is effective, as referenced in Section 6.1, you are expressly agreeing that Company is permitted to bill you the applicable fees, any applicable tax and any other charges you may incur with the Company in connection with your subscription and that the fees will be billed to the credit card you provide in accordance
with the billing terms in effect at the time a fee or charge is due and payable. Subscription fees are payable in U.S. Dollars and based on the terms of your subscription not on actual usage. You will provide Company with valid and updated credit card information and you authorize Company to charge such credit card for all subscriptions and renewals. Refer to table for monthly subscription fee schedule.
6.3 Unless otherwise stated, Company’s monthly subscription fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales and use, or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). If, under relevant law, Company has the legal obligation to pay or collect Taxes for which Customer is responsible, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Company with a valid tax exemption certificate from the appropriate taxing authority.
6.4 If Customer is in breach of this Section, Company shall be entitled to charge default interest on the outstanding fees in the maximum amount allowable by law and/or suspend or terminate Customer’s access to Ecommercialise at Company’s sole option, with or without notice to Customer. Additional claims for payment default remain reserved.
6.6 Automatic Renewal
The Ecommercialise subscription will automatically renew for additional, successive subscription periods, for the period of the original initial term, unless Customer terminates its subscription prior to the next renewal period. Customer acknowledges and agrees that Company will automatically charge its credit card on record with Company for the then-current subscription period upon the commencement of any renewal period. Customer materially breaches this Agreement if it cancels or otherwise causes its credit card on record to prohibit, prevent, or avoid charges during any term and during any renewal. Customer’s subscription will terminate following the full duration of its subscription term, so long as within at least thirty (30) days prior to the automatic renewal, the Customer provided written notice to Company of such termination.
Subject to applicable law, the content of Ecommercialise, except for the content created by users and third parties if any, including without limitation, software, code, forms, text and other materials, trademarks, service marks or logos contained therein (“Marks”), are owned by or licensed to Company. Customer’s use of Ecommercialise is limited to the rights granted to Customer under this Agreement and Company reserves all rights not expressly granted herein.
Liability and Warranty
8.1 To the maximum extent permitted by applicable law, either Party’s total, aggregate liability arising out of or in connection with this Agreement shall in no event exceed the total amount of payments due by Customer to Company during the initial term or the then applicable renewal term of the Agreement.
8.2 To the maximum extent permitted by applicable law, in no event shall either Party be liable for any, indirect, incidental, special, consequential or exemplary damages, however caused and under any theory of liability arising out of or in connection with this Agreement. This shall include, but not be limited to, any loss of; profit, goodwill or business reputation, any loss of data suffered, cost of procurement of substitute goods or services, or other intangible loss.
8.3 Company warrants that it has the legal power and authority to enter into this Agreement. Except as provided herein, Company provides Ecommercialise “as is” without any warranty or condition of any kind, express or implied. Company does not guarantee uninterrupted, secure or error-free operation of Ecommercialise. Company makes no representation or warranty as to the accuracy, timeliness, quality, completeness, suitability or reliability of any information or data accessed on or through Ecommercialise. No information obtained from Company or through Ecommercialise, whether oral or written, shall create any warranty not expressly stated in this Agreement.
Operating Hours and System Maintenance
Company shall use commercially reasonable efforts to ensure that the Customer receives uninterrupted and continuing service throughout the term of the Agreement, and renewals if any. Company may need to carry out routine maintenance or urgent maintenance or Ecommercialise may become unavailable for reasons not within Company’s control. In such case, Company shall use commercially reasonable efforts to inform the Customer of any downtime and restore Ecommercialise as soon as reasonably practicable.
10.1 This Agreement is governed by and interpreted in accordance with the laws of the state of North Carolina. In any dispute, action, litigation, or proceeding arising from or relating to this Agreement or the Customer’s subscription, the Parties expressly agree as follows: (a) neither Party shall be considered the “drafter” of this Agreement; (b) venue for any dispute, action, litigation, or proceeding arising hereunder shall lie solely and exclusively in Mecklenburg County, North Carolina and each of the Parties hereto expressly waives any right to contest such venue for any reason whatsoever, (c) North Carolina law shall govern such dispute, action, litigation, or proceeding, and (d) each Party consents to personal jurisdiction in any dispute, action, litigation, or proceeding brought in the state or federal court located in Mecklenburg County, North Carolina with respect to any dispute, claim, or controversy arising out of or in relation to or in connection with this Agreement or the Customer’s subscription (including any claims made in contract, tort, or otherwise relating to this Agreement, the Customer’s subscription, or the transactions contemplated hereby).To the extent allowed by law, Customers located or residing outside the United Kingdom, or otherwise not subject to the laws or jurisdiction of this Country, irrevocably agree all disputes arising out of or in connection with this Agreement shall be finally settled by binding arbitration under the Rules of Arbitration of the International Chamber of Commerce by one arbitrator appointed in accordance with the said Rules.The language of the arbitral proceedings shall be English (or as determined between the Parties). Judgment upon any award(s) rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitrator is authorized to include in the award an allocation to any Party of such costs and expenses, including reasonable attorneys’ fees, as the arbitrator shall deem reasonable.
10.2 A Party’s waiver of a breach or default by the other Party of any provision of the Agreement shall not be construed as a waiver of any succeeding breach or default by the other Party, nor shall a Party’s failure to exercise or enforce any right or provision of the Agreement be deemed to be a waiver of such right or provision.
10.3 Invalidity of any specific provision of this Agreement shall not affect the validity of the remaining provisions. Any invalid provision shall be replaced by a valid provision, which comes as close as possible to the intent of the invalid provision.
10.4 Neither this Agreement nor any obligation or right hereunder may be assigned or transferred by the Customer without the prior written consent of the Company, which consent shall not be unreasonably withheld; provided, however, that both Parties may assign this Agreement in whole without the other Party’s prior consent to a successor in interest in connection with a merger, acquisition or sale of all or substantially all of its assets to which this Agreement relates on condition that such successor in interest agrees in writing to comply with all terms and conditions of this Agreement.
10.5 Both Parties acknowledge and agree that this Agreement constitutes the entire agreement between the Parties in regards to the subject matter herein. Any other terms and conditions, including, without limitation, terms and conditions on or attached to a purchase order, vendor registration documents, tenders or request for proposals are void and shall be of no force and effect regardless of whether they are delivered to Company prior to, concurrently, or after the execution of this Agreement. Performance by Company with respect to Ecommercialise shall not constitute acceptance of any additional or alternative terms and conditions nor shall a failure to act on said additional terms and conditions constitute acceptance of the provisions contained therein.
10.6 Any term or provision, including but not limited to the contract term or subscription price, contained in the Order Confirmation and/or Special Terms, if any, may be amended in a writing signed by an authorized representative of both Parties.
10.7 Customer and Company agree that notices may be sent by electronic mail, to the electronic mail address indicated on the Order Confirmation, or then-current electronic mail address provided by a Party to the other Party and designated as the proper electronic mail address, and agree that notices are deemed received forty-eight (48) hours after transmission. Each Party agrees that any electronic communication will satisfy any legal communication requirements, including all such communication required by applicable laws to be in writing and/or signed.