TERMS OF SERVICE
Last revision: May, 24th 2018
IMPORTANT — READ CAREFULLY: These terms of service (“terms”) govern your use of www.sellerengine.com (the “site”), and the services offered via the site (the “services”). By accessing the site and the service, you accept and agree to be bound and abide by these terms of service. If you register for a free trial of our service, these terms will also govern that free trial.
ACCEPTANCE OF TERMS
1. SellerEngine, Inc. (“SellerEngine,” “We” or “Our”), includes our website, services, and applications and is collectively referred to as the “Service”, and is subject to these terms.The Agreement will also be applicable to the use of the Service on a trial basis. If You do not agree with the terms of this Agreement, do not use the Service.
3. These Terms of Service are a legal agreement between You and SellerEngine an Oregon Corporation, for use of the SellerEngine Service. “You” refers to any individual who creates an account on the Service, or, if the Service is being used on behalf of an entity by an individual authorized to agree to such terms on behalf of such entity, then “You” refers to such entity.
4. These Terms of Service may be updated by us in our sole discretion from time to time without notice to you. You agree that your continued use of the Service after such update will constitute your acceptance of and agreement to be bound by the updated Terms.
DESCRIPTION OF SERVICES
The “Service” includes (a) the Site, (b) the SellerEngine software, tools and SellerEngine API, and (c) the other services provided to You through the Site, including all software, data, text, images, sounds, videos, and other content made available through the Site, or developed via the SellerEngine API (collectively, “Content”). Any new features added to or augmenting the Service are also subject to these Terms.
The Service may also include support and activities required to maintain the security and availability of the Service. SellerEngine does its very best to make the Service available as detailed in the Service plan, except for: (a) planned downtime (of which You will be notified in advance), or (b) any unavailability caused by circumstances beyond Our reasonable control, such as, but not limited to, acts of God, acts of government, acts of terror or civil unrest, or technical failures beyond Our control.
GENERAL CONDITIONS/ACCESS AND USE OF THE SERVICE
1. Subject to the terms and conditions of these Terms, You agree to access and use the Service only for Your internal business purposes as contemplated by these Terms. Subject only to Your limited right to access and use the Service as expressly granted to You here, all rights, title and interest in and to the Service and its components, including all related intellectual property rights, will remain with and belong exclusively to SellerEngine and its third-party vendors.
2. You agree not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than as expressly permitted by these Terms; (b) use the Service to process data on behalf of any third party, (c) modify, adapt or hack the Service to falsely imply any sponsorship or association with SellerEngine, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks; (d) use the Service in any unlawful manner, including but not limited to violation of any persons privacy rights, infringing any person’s intellectual property rights, or sending spam or otherwise duplicative or unsolicited messages in violation of applicable law, (e) use the Service in any manner that interferes with or disrupts the integrity or performance of the Service and its components; (f) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any software making up the Service, (g) use the Service to knowingly post, upload, link to, send or store any content that is unlawful, racist, hateful, obscene, discriminatory, or contains any viruses, malware, Trojan horses, time bombs, or any other similar harmful software, or (h) try to use, or use the Service in violation of these Terms.
3. You acknowledge and agree that the SellerEngine Service and any necessary software used in connection with the Service contain proprietary and confidential information that is protected by applicable intellectual property and other laws. Except as expressly authorized by SellerEngine, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Service, in whole or in part. You acknowledge and agree that you will not (and will not allow any third party to) copy, modify, create a derivative work from, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the SellerEngine Service and Software. You agree not to access the Service by any means other than through the interface that is provided by SellerEngine for use in accessing the Service. All text, graphics, user interfaces, visual interfaces, photographs, trademarks, logos, sounds, music, artwork and computer code (collectively, “Content”), including but not limited to the design, structure, selection, coordination, expression, “look and feel” and arrangement of such Content, contained on the Site is owned, controlled or licensed by or to SellerEngine, and is protected by trade dress, copyright, patent and trademark laws, and various other intellectual property rights and unfair competition laws.
4. You are responsible for all information, data, text, messages or other materials that You post or is otherwise transmitted via the Service. You are responsible for maintaining the confidentiality of Your login and account and are fully responsible for any and all activities that occur under Your login or account.
5. SellerEngine’s failure to enforce at any time any provision of these Terms does not constitute a waiver of that provision or of any other provision of these Terms.
CONDITIONS/ACCESS AND USE OF SOFTWARE (SELLERY, SEPlus, PROFIT BANDIT)
1. OWNERSHIP – The Software is solely owned by SellerEngine. The Software is licensed, not sold. The Software is protected by U.S. and international copyright laws and treaties, as well as other intellectual property laws and treaties. All right, title, and interest in the Software, including any updates or revisions thereto, is and shall remain the sole and exclusive property of SellerEngine and its successors and assigns. Other than the limited license explicitly set forth in this Agreement, no interest in or rights or licenses to the Software are granted to you, and no interest in or rights or licenses to the Software shall inure in or accrue to you, whether by implication, estoppel, or otherwise. All rights of any kind in the Software that are not expressly granted in this Agreement are entirely and exclusively reserved to and by SellerEngine and its successors and assigns.
2. SUBSCRIPTION – Subject to the terms of this Agreement and payment of the applicable subscription fee, SellerEngine hereby grants you a limited, non exclusive, personal, and non transferable license for use of the Software (in object code form only). One license must be obtained for each Amazon account with which the software is used.
3. PAYMENT – Your license begins when you confirm your payment, not when you download or install the Software or accept this Agreement. Your license is billed on a monthly subscription basis and automatically renewed monthly. Your license terminates immediately upon termination of your subscription, and you will lose the ability to use the Software, regardless of the time remaining in the service period. No refund will be issued.
4. CONFIDENTIALITY AND LIMITATIONS OF USE – The Software constitutes trade secrets and confidential information of SellerEngine. You may not under any circumstances:
(a) Use the software for any Amazon account for which it is not licensed
(b) Sublicense, distribute, modify, adapt, translate, reverse engineer, decompile, disassemble, or prepare derivative works based on the Software;
(c) Use or allow use of the Software after the termination or expiration of this Agreement (except pursuant to another valid license);
(d) Allow others to use, copy, or access the Software in connection with a service bureau, application service provider, public computer bulletin board, shareware or timeshare process, or any similar business or service;
(e) Access, use, or disclose the Software source code;
(f) Remove or alter any copyright or other proprietary rights notices included in or affixed to the Software;
(g) Sell, license, disclose, or distribute any product designed or intended for use with the Software;
(h) Publish or disclose the results of any benchmark tests relating to the Software; or
(i) Use the Software in applications or systems when failure of the Software to perform could reasonably be expected to result in serious physical injury, loss of life, or material damage to property.
4. UPDATES AND SUPPORT – SellerEngine is not obligated to provide any updates, revisions, new versions, bug fixes, maintenance, or support for the Software. Any such materials or services must be obtained pursuant to a separate agreement.
DATA PRIVACY AND SECURITY
By registering with or using SellerEngine Services, you consent to the collection and use of your personal information and the transfer of this information to the United States or other countries for processing and storage by SellerEngine.
1. In providing You the Service We shall maintain appropriate administrative, physical and technical safeguards to protect the security, confidentiality and integrity of Your data. These safeguards include encryption of Your data in transmission (using SSL or similar technologies).
THIRD PARTY SERVICES
1. EXTERNAL SITES – The Service may contain links to, or otherwise may allow You to connect to and use certain marketplaces, third party products, services or software under separate terms and conditions (collectively, “Other Services”) in conjunction with Our Service. If You decide to access and use such Other Services, be advised that Your use is governed solely by the terms and conditions of such Other Services, and We do not endorse, are not responsible for, and make no representations as to such Other Services, their content or the manner in which they handle Your data. SellerEngine is not liable for any damage or loss caused or alleged to be caused by or in connection with Your access or use of any such Other Services, or Your reliance on the privacy practices or other policies of such Other Services.
2. INTEGRATION – The Service may contain features that enable various Other Services to be directly integrated into your SellerEngine experience. To take advantage of these features, You will be required to register for or log into such Other Services on their respective websites. By enabling third party services within the Service, You are allowing SellerEngine to pass Your login information to these Other Services for this purpose.
3. THIRD-PARTY FEEDS/API’s. – SellerEngine uses third-party feeds and API’s to send and receive information on Your behalf. It is not uncommon for API’s to experience slowdowns and cause delays in processing Your changes. Under no circumstances will SellerEngine be held responsible for any issues or delays caused by third-party feeds or API’s.
BILLING, PLAN MODIFICATIONS AND PAYMENTS
1. BILLING AND PAYMENTS. The Service is made available on a pay-as-you go basis and You are billed at the beginning of each month based on the usage of the previous month. If You do not provide Your credit card or other payment information to SellerEngine before the expiration of any free trial period, Your account will be suspended until payment information and charge authorization are provided. You will be promptly billed and, if applicable, any trial period will terminate. After any free trial period, Your subscription will automatically renew each calendar month. You will be billed at the beginning of the month and Payment is due immediately upon invoice. Customer shall make all payments hereunder in US dollars by Credit Card payment or such other payment method as agreed by the parties. The account owner will receive a receipt upon each payment received, or they may request a receipt from the SellerEngine’s accounting department or help team.
2. LATE PAYMENTS. If You do not pay Your monthly invoice within two weeks of receipt of Your invoice, your subscription may be suspended. If Your invoice continues unpaid for two weeks after the end of the month in which you receive Your invoice, Your account will be cancelled and all content stored will be deleted.
4. TAXES. Unless otherwise stated, Our charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes accessible by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). You are responsible for paying Taxes except those assessable against SellerEngine based on its income. We will invoice You for such Taxes if we believe we have a legal obligation to do so.
5. PRICE CHANGES. SellerEngine reserves the right to change prices without prior notification as long as current accounts remain at the rates that were active at the time of subscription. Changes to the rates affecting existing accounts will be made only after timely notification has been sent. Such notifications will be sent via email to the email address each customer has provided during registration.
CANCELLATION AND TERMINATION
1. You may cancel your subscription by giving notice at any time. If You choose to cancel Your plan during Your subscription period, You will be charged for a full month for any partial month in which You received the Services. There are no refunds or credits for partial months of Service.
You are responsible for canceling Your account, and can cancel Your account by clicking on the Subscription tab under Settings. There are no other means of canceling Your account. Once You cancel Your account You will lose access to all of Your content, and We preserve the right to delete all such content in the normal course of operation. This content cannot be recovered once Your account is cancelled. If You cancel the Service before the end of your subscription month, you will be billed for that month’s usage in full.
2. SellerEngine reserves the right to (i) modify or discontinue, temporarily or permanently, the Service (or any part thereof) and (ii) refuse any/all current and future use of the Service, suspend or terminate your account or any part thereof (or Your use of the Service), and remove and discard any of Your content within the Service if We believe that You have violated these Terms. SellerEngine will use all reasonable efforts to contact You directly via email to warn You prior to suspension or termination of Your account, however SellerEngine reserves the right to modify or discontinue any Service or Your account, in our sole discretion without notice. Any suspected fraudulent, abusive, or illegal activity may be grounds for immediate termination of Your use of Service, and may be referred to law enforcement authorities. SellerEngine shall not be liable to You or any third party for any modification, suspension or discontinuation of the Service.
INTELLECTUAL PROPERTY RIGHTS
1. Each of us shall maintain all rights, title and interest in and to all our respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”). The rights granted to You to use the Service under these Terms do not convey any additional rights in the Service, or in any Intellectual Property Rights associated therewith. SellerEngine shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Service or otherwise use any suggestions, enhancement requests, recommendations or other feedback We receive from You. SellerEngine®, and SellerEngine’s other product and service names, and logos used or displayed on the Service are registered or unregistered trademarks of SellerEngine (collectively, “Marks”), and You may only use such Marks to identify yourself as a customer and user of the Service; provided You do not attempt, now or in the future, to claim any rights in the Marks, degrade the distinctiveness of the Marks, or use the Marks to disparage or misrepresent SellerEngine, its services or products.
2. The website and any downloadable software associated with the Service are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties.
DISCLAIMER OF WARRANTIES
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE, INCLUDING THE SITE AND CONTENT, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, NEITHER SELLERENGINE NOR ANY OF THEIR EMPLOYEES, MANAGERS, OFFICERS OR AGENTS (“SELLERENGINE PARTIES”) MAKE ANY REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO: THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT SELLERENGINE DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM SELLERENGINE OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
LIMITATION OF LIABILITY
1. NO CONSEQUENTIAL DAMAGES. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THESE TERMS, OR SUCH PARTY’S AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION OR ANY OTHER LOSS INCURRED BY SUCH PARTY IN CONNECTION WITH THESE TERMS OR THE SERVICE, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
2. LIMITS ON MONETARY DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, SELLERENGINE’S (INCLUDING ANY OF ITS AFFILIATES) AGGREGATE LIABILITY, FOR DAMAGES (MONETARY OR OTHERWISE) UNDER THESE TERMS CLAIMED BY YOU OR ANY THIRD PARTY ARISING FROM OUR SERVICE, SHALL BE LIMITED TO THE LESSER OF (I) ACTUAL DAMAGES INCURRED, OR (II) PAYMENTS MADE BY YOU FOR THE SERVICE DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 10.2 IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT THEIR POTENTIAL LIABILITY GIVEN THE FEES CHARGED UNDER THIS AGREEMENT, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF SELLERENGINE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS.
3. Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to You. IN THESE STATES, SELLERENGINE’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
1. You agree to defend, indemnify, and hold harmless SellerEngine from and against any claims, actions or demands, including, without limitation, reasonable legal and professional services fees, arising or resulting from Your breach of these Terms, or Your access to, use, misuse or illegal use of the Service. SellerEngine will provide You notice of any such claim, suit, or proceeding. SellerEngine reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section, in which case You agree to cooperate with any reasonable requests to assist SellerEngine’s defense of such matter.
ASSIGNMENT; ENTIRE AGREEMENT; REVISIONS
You shall not assign or otherwise transfer any of Your rights or delegate or otherwise transfer any of Your obligations under these Terms, whether voluntarily, involuntarily, by operation of law or otherwise, without SellerEngine’s prior written consents, which consent shall not be unreasonably withheld. SellerEngine may assign or transfer these Terms, in whole or in part, without restriction, provided the assignee agree to be fully bound by these Terms. These Terms supersede prior versions of these Terms, or any other discussions, agreements or understandings by or among the parties (other than written agreements expressly accepted and executed by both parties). We may amend these Terms from time to time, in which case the new Terms will supersede prior versions.
The failure of SellerEngine to exercise or enforce any right or provision of the Terms shall not constitute a waiver of such right or provision. If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and to construe such provision to the maximum extent permitted by law so as to render that provision valid and enforceable, and the other provisions of the Terms remain in full force and effect. YOU AND SELLERENGINE AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SITE OR SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
EXPORT COMPLIANCE AND USE RESTRICTIONS
Certain Content and software components of the Service may be subject to U.S. export control and economic sanctions laws. If You are subject to U.S. laws, You agree to comply with all such laws and regulations as they relate to such software and Content, and access and use of the Service. You shall not, and shall not permit any third party to, export, re-export or release, directly or indirectly the Service to any country or jurisdiction to which the export, re-export or release of the Service (a) is prohibited by applicable law or (b) without first completing all required undertakings (including obtaining any necessary export license or other governmental approval).
RELATIONSHIP OF THE PARTIES
The parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.
Sections 3 (General Conditions/Access and Use of the Service), 5 (Intellectual Property Rights), 7 (Billing, Plan Modifications and Payments), 8 Cancellation and Termination), 9 (Disclaimer of Warranties), 10 (Limitation of Liability), 11 (Indemnification), 12 (Assignment; Entire Agreement; Revisions), 13 (Severability), 14 (Export Compliance and Use Restrictions), 15 (Relationship of the Parties) and 17 (Governing Law) will survive any termination of these Terms.
These Terms shall be governed by the laws of the State of Oregon without regard to conflict of laws principles. You hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts of the State of Oregon, located in the city of Portland, County of Multnomah, for the purpose of resolving any dispute relating to Your access to or use of the Service.
WAIVER OF JURY TRIAL
EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, AND APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION, (B) IT HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) IT MAKES THIS WAIVER KNOWINGLY AND VOLUNTARILY, AND (D) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to these Terms, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.
LOCATION OF SERVICE AND TERRITORIAL RESTRICTIONS
The information provided within the Service is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject SellerEngine to any registration requirement within such jurisdiction or country. We reserve the right to limit the availability of the Service or any portion of the Service, to any person, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the service or other features provided by SellerEngine. SellerEngine controls and operates the Service and Website from its offices located in the United States and makes no representations or warranties that the information, products or services contained on the Site are appropriate for use or access in other locations. Anyone using or accessing a Site from other locations does so on their own initiative and are responsible for compliance with United States’, and local laws regarding online conduct and acceptable content, if and to the extent such local laws are applicable. We reserve the right to limit the availability of our Site or any portion of our Site to any person, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any such content, program, product, service or other feature that we provide.
Recognizing the global nature of the Internet, you agree to comply with all your local laws regarding online conduct and acceptable Content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.