Merchant Service Agreement

virtualCART® is a provider of shopping cart functionality for websites engaging in e-commerce. User shopping cart accounts on our Internet servers are subject to compliance with the terms and conditions set forth below. Under the terms of this agreement, your creation and usage of any account on virtualCART® shopping cart servers is an acknowledgement that you have read and understood this agreement, and that you agree to be bound by the terms and conditions below. If you do not wish to be bound by these terms and conditions, you should not proceed to create an account on virtualCART®'s servers or to use our services in any way. By proceeding to create or reconfigure an account, and clicking the "I agree to the terms of service and wish to create or update my account" button on the virtualCART® account creation/reconfiguration web page, or by accepting an internet consumer's order facilitated via virtualCART®, you agree to the terms and conditions below.

1. USER CONDUCT

virtualCART® shopping cart service accounts may only be used for lawful purposes. Any use of these services which violates any local, state, federal, or international laws which may apply to virtualCART®, your local jurisdiction, or any jurisdiction that you, your site, or your sales area may be subject to is strictly prohibited.

While using the service, you may not:

  1. Restrict or inhibit any other user from using and enjoying the Internet;
  2. Post or transmit any unlawful, threatening, abusive, libelous, defamatory, obscene, offensive, indecent, pornographic, profane, or otherwise objectionable information of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, federal or international law, including without limitation the U.S. export control laws and regulations, and laws protecting intellectual property including copyright, trademark, trade secret, misappropriation and anti-dilution laws;
  3. Post, publish, transmit, reproduce or distribute any information or software which contains a virus or other harmful component;
  4. Post, publish, transmit, reproduce, distribute or in any way exploit any information, software, or other material obtained through the service for commercial purposes (other than as expressly permitted by the provider of such information, software, or other material);
  5. Use your virtualCART® account to facilitate the sale of any information, software, hardware, product, or other material which violates any local, state, federal, or international laws which may apply to virtualCART®, your local jurisdiction, the jurisdiction of the consumer purchasing from you, or any jurisdiction that you or your site may be subject to;
  6. Use your virtualCART® account to gather sensitive payment information from any internet consumer including but not limited to credit card information for any purpose other than the ethical use of such information to obtain payment in exchange for goods and service provided to said consumers;
  7. Post, publish, transmit, reproduce or distribute internet consumer credit card information in such a manner as to readily expose such information to those who would use such information for criminal purpose;

While using the virtualCART® service, you agree to the following minimum standards for internet "e-commerce":

  1. Resolve your customer order fulfillment complaints against you in a reasonable and timely manner such that virtualCART® does not receive a significant number of complaints against you;
  2. Provide your customers reasonable access to contact information for your business such that they can contact you when orders they place are not received;

2. INDEMNIFICATION

You agree to indemnify, defend, and hold harmless virtualCART® from any and all liability, penalties, losses, damages, costs, expenses, attorneys' fees, causes of action or claims caused by or resulting indirectly from your use of the service which damages either you, virtualCART®, or any other party or parties without limitation or exception. This indemnification and hold harmless agreement extends to all issues associated with your account.

3. REFUSAL OR DISCONTINUANCE OF SERVICE

virtualCART® reserves the right to refuse or discontinue service to anyone at virtualCART®'s sole discretion. virtualCART® may deny you access to all or part of the service without notice if you engage in any conduct or activities that virtualCART® in its sole discretion believes violates any of the terms and conditions in this agreement. virtualCART® shall have no responsibility to notify any third-party providers of services, merchandise, or information, nor any responsibility for any consequences resulting from such discontinuance or lack of notification. You agree that virtualCART® has the right to monitor the service electronically from time to time and to disclose any information as necessary to satisfy the law, or to protect itself, its subscribers, or consumers of products or services sold via the shopping cart service. virtualCART® reserves the right to refuse to facilitate sales of any information or materials, in whole or in part, that, in its sole discretion, are unacceptable, undesirable, or in violation of this agreement.

4. NO WARRANTIES

virtualCART® makes no warranties or representations of any kind for the services being offered. The service is provided on an "as is" and "as available" basis without warranties of any kind, either express or implied, including but not limited to warranties of title, noninfringement, or implied warranties of merchantability or fitness for a particular purpose. No advice or information given by virtualCART® or its agents or employees shall create a warranty. virtualCART® provides no warranty that the service will be uninterrupted or error free or that any information, software or other material accessible on or via the service is free from viruses or other harmful components. Under no circumstances shall virtualCART® be liable for any direct, indirect, special, punitive, or consequential damages that result in any way from your use of or inability to use the service, or for third parties' use of the service to access your Web space, Shopping Cart Service, any other service we supply or are associated with, to access the Internet or any part thereof, or your or any third parties' reliance on or use of information, services, or merchandise provided on or through the service, or that result from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation or transmission, or any failure of performance. If you are dissatisfied with virtualCART® service or any of its terms, conditions, rules, policies, guidelines, or practices, your sole and exclusive remedy is to discontinue using the service.

You understand that by placing information on virtualCART® servers, including but not limited to uploads done by you to facilitate usage of the virtualCART® Product Search Engine, that such information becomes available to all Internet users and that virtualCART® has no way of limiting or restricting access to such information or protecting such information from copyright infringement. You assume total responsibility and risk for your use of virtualCART® servers and the Internet. It is solely your responsibility to evaluate the accuracy, completeness, and usefulness of all opinions, advice, services and other information, and the quality and merchantability of all merchandise provided through virtualCART® or on the Internet generally.

virtualCART® will provide you a reasonable amount of technical support to assist you in integration of the virtualCART® shopping cart service into your website. You understand that the level, duration, and hours of availability of the support provided is determined at the sole discretion of virtualCART®, and that providing any support does not constitute a warranty of any sort, nor does it warrant that you will successfully complete the integration of the virtualCART® shopping cart service into your website.

5. ECPA NOTICE

virtualCART® reserves the right to monitor any and all communications through or with our facilities. You agree that virtualCART® is not considered a "secure communications medium" for the purposes of the ECPA, and that no expectation of privacy is afforded.

6. IDENTIFICATION INFORMATION

You agree that you as the person legally responsible for use of this account, are at least 18 years of age. You agree to supply virtualCART® with a current and truthful name, postal address, email address and telephone number for our records, and you have a continued obligation to keep this information current. You also agree that you are an authorized user of any checks or credit card account that you supply to us and agree that we have an obligation to fully investigate any possible fraudulent payment acts.

You agree to inform virtualCART® in advance of any substantive changes in the nature of the commerce facilitated via your virtualCART®, and understand that implementing such changes may cause virtualCART® at its sole discretion to discontinue your service if such changes would cause violation of this agreement.

7. NO INTERFERENCE WITH OPERATION OF SYSTEM

You agree not to maliciously or intentionally interfere with the proper operation of the system, including but not limited to defeating identification procedures, obtaining access beyond that which you are authorized for, and impairing the availability, reliability, or quality of service for other customers. You further agree not to interfere with the proper operation of other systems reachable through the Internet, including any attempt at unauthorized access. You agree to follow the Acceptable Use Policy of any network or service you connect to.

You agree to adhere to system policies as published online by virtualCART®, including restrictions on account usage, services available with your account, restrictions on certain features, and all other policies designed to protect and enhance the quality and reliability of service at virtualCART®. You agree to abide by any and all future virtualCART® policy decisions.

8. SECURITY

You agree that the security of your account password is solely your own responsibility. You further agree that if you believe that your account password has been compromised in any way, you will notify virtualCART® immediately via email to This email address is being protected from spambots. You need JavaScript enabled to view it. and in writing by registered mail, return receipted, to Virtual Focus, Inc., 4613 E. Kellog Dr., Wichita, Kansas 67218. You shall be held fully responsible for any misuse or compromise to your account for which virtualCART® is not properly notified. You agree that if any security violations are believed to have occurred in association with your account, virtualCART® has the right to suspend all access to the account pending an investigation and resolution. You also agree that virtualCART® has the right to cooperate in any government or legal investigation regarding any aspect of our services, including services sold to you. Any use of our system to facilitate sales of pirated software, illegal products or information, or other violations of law will result in account suspension and be immediately reported to the appropriate authorities.

9. BACKUP OF DATA

Your use of the service is at your sole risk. virtualCART® is not responsible for order data or account configuration data residing on our servers. Any storage of such is strictly for your convenience, and you recognize your obligation to maintain your sales and order data on your own computer systems. You agree to securely retrieve via SSL encryption the final portion of order credit card numbers promptly after receiving emailed notification of orders, and to make daily checks of the virtualCART® webpage for retrieving secure data. If any orders are indicated on that page and you do not have all pertinent information stored on your own system, you agree to promptly take action to download or remail such data. You specifically agree that virtualCART® is not responsible for storage of order or sales data of any type whatsoever for any amount of time.

You further agree that virtualCART® has the right at its sole discretion to purge any and all order or sales data stored on virtualCART® servers without notice and to whatever degree deemed necessary by virtualCART® to free up space on our servers.

10. TRANSMITTAL OF MATERIALS

You agree not to transmit unsolicited or prohibited advertising or other harassing or illegal materials through electronic mail, Usenet postings, or other Internet media. The use of virtualCART® or any other service with reference to services obtained through virtualCART®, for unsolicited mass mailings, postings, or other activities considered an annoyance to others, commonly referred to as "spamming" is strictly prohibited and may cause your services to be terminated immediately and without warning and you will be held fully responsible for any damages to you, virtualCART®, or any other party or parties resulting from any such conduct.

11. PAYMENT

You agree to supply appropriate payment in advance for the services received from virtualCART®, in accordance with invoices received via email from virtualCART®, with the exception of the initial thirty day period which may be paid in arrears. You understand that failure to supply such payment in accordance with the instructions contained in the invoice will result in account suspension. You understand that virtualCART® at its sole discretion has the right to refuse to reinstate a suspended account regardless of subsequent payment attempts by you. Further, you understand that there may be fees associated with reinstatement of a suspended account.

You understand that invoices for virtualCART® service are sent out via email only, and that it is your responsibility to maintain working email addresses in your account configuration. You understand that your failure to receive these invoices for any reason does not alleviate your responsibility to keep your account current.

You agree that all subscription fees are non-refundable and understand the need to choose the subscription period carefully to meet your needs.

12. PRIOR AGREEMENTS

This agreement supersedes any written, electronic, or oral communication you may have had with virtualCART® or any agent or representative thereof, and constitutes the complete and total agreement between the parties.

13. SEVERABILITY

If any provision of this agreement is determined to be invalid or unenforceable, all other provisions shall remain in full force and effect and said provision shall be reformed only to the extent necessary to make it enforceable.

14. TERMINATION OF AGREEMENT

The provisions of Section 2 (INDEMNIFICATION) and Section 4 (NO WARRANTIES) shall survive any termination of this agreement.

15. APPLICABLE LAW, JURISDICTION, AND SERVICE

This agreement shall be governed by the applicable laws of the State of Kansas, USA ("Kansas") and the United States of America. Customer agrees that all services provided by virtualCART® shall be deemed to have been requested and provided in Sedgwick County, Kansas. Customer further agrees that the General Court Of Justice of Sedgwick County, Kansas, shall have personal jurisdiction over Customer and exclusive subject matter jurisdiction over any and all controversies or claims arising from or relating to this agreement or the services provided by virtualCART®. Customer agrees to accept service of process related to this agreement by ordinary mail, postage prepaid, to the most recent address provided by Customer.

16. ACKNOWLEDGEMENT

By creation of an account, or continuing to maintain an account on virtualCART® servers you are stating and acknowledging that you have read the aforementioned terms and conditions and that you understand such terms and conditions and agree to be bound by them.

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OTHER INFORMATION

This is our account service contract. Although it may sound strict, rest assured that we have nothing but good intentions towards our customers. The contract is designed to maximize the efficiency and quality of our service for all customers. Please note that the contract can not be modified


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