Terms of Service
BEFORE YOU USE THE SERVICE SUBJECT TO THESE TERMS OF SERVICE (THE "AGREEMENT"), PLEASE READ THIS DOCUMENT CAREFULLY. THIS IS A LEGAL AGREEMENT BETWEEN NICE TOMATO, LLC. ("OUR", "US", "WE", THE "COMPANY" OR "NICE TOMATO"), AND YOU ("YOU", "YOUR" OR "YOURSELF") WHICH GOVERNS YOUR USE OF OUR INTERNET-BASED ECOMMERCE SERVICE. YOUR USE OF THE SERVICE (AS DEFINED BELOW) IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. BY USING THE SERVICES IN ANY MANNER (AS APPLICABLE) (I) YOU OR THE ENTITY THAT YOU REPRESENT ("YOU", "YOUR", OR "CUSTOMER") AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY AND A PARTY TO THESE TERMS OF SERVICE (TOGETHER WITH ANY ADDITIONAL TERMS ON SUCH ORDER FORM, THE "AGREEMENT") TO THE EXCLUSION OF ALL OTHER TERMS, AND (II) YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND CUSTOMER.
1. NICE TOMATO Service
A. You are granted a nonexclusive right during the Term (as defined below) to use the NICE TOMATO Service (the "Service") subject to the terms, conditions and restrictions set forth in this Agreement and any other restrictions stipulated to you by us in writing.
B. You agree to pay for the Service in accordance with our service fees, as further set forth below.
C. NICE TOMATO may revise its fees upon 30 days prior notice.
D. NICE TOMATO uses a 3rd party service named Stripe to store a protected copy of credit card numbers of your users. This billing data belongs to you and by utilizing the Service, you grant NICE TOMATO a license to use this data for the purposes of fulfilling our Service obligations to you and NICE TOMATO shall otherwise use commercially reasonable efforts to keep such information confidential and secure in accordance with general industry standards. NICE TOMATO has and will continue to use PCI compliant processing provided by Stripe.
E. Following any termination or expiration of this Agreement or your NICE TOMATO account, NICE TOMATO will retain a copy of your billing data for a period of thirty (30) days. You acknowledge and agree that (i) you are solely responsible for exporting a copy of your billing data prior to any such termination or expiration, and (ii) if you require access to such data following any such termination or expiration, you may be required to pay professional service fees to NICE TOMATO to retrieve such data.
F. Certain product disclaimers. Warning: Choking / abrasion hazard - small parts. Not for children under 3 years. You acknowledge that the products are not designed, manufactured or intended for use by children under the age of three (3) and may contain small parts, such as caps and staples. In addition to all other limitations and disclaimers in this agreement, NICE TOMATO shall not be liable to you or any third party, in whole or in part, for any claims, liability, damages, loss or costs arising from such use.
2. Term and Termination
The term of this Agreement (the "Term") shall commence as of the date you first register for, access or use of the Service, and shall continue until terminated as set forth below. You may terminate this Agreement at any time by notifying NICE TOMATO that you wish to terminate your account. NICE TOMATO may terminate this Agreement at any time, for any reason or no reason (including, without limitation, for your breach of this Agreement, violation of applicable law, or violation of card association rules or regulations). Upon any termination of this Agreement, any amounts owed to NICE TOMATO which accrued prior to such termination will become immediately due and payable.
3. Modifications to Agreement or Service
NICE TOMATO reserves the right to amend or modify this Agreement at any time, but if we do, we will bring it to your attention by placing a notice on the Service, by sending you an email and/or by some other means. If you don’t agree with the amended or modified Agreement, you are free to reject it; but you will no longer be able to use the Services. If you use the Services in any way after a change to this Agreement is effective, that means you agree to all of the changes.
NICE TOMATO may change, suspend, or discontinue all or any part of the Service at any time, with or without reason (including, without limitation, for any nonpayment of any fees due hereunder). You acknowledge that the operation of the Service may from time to time encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors and NICE TOMATO shall not be responsible to you or others for any such interruptions, errors or problems or an outright discontinuance of the Service. NICE TOMATO has no obligation to continue producing or releasing new versions of the Service.
4. Service Use and Limitations.
A. We will make reasonable efforts to keep the Service operational 24 hours a day/7 days a week, except for: (i) planned downtime (of which we will use reasonable efforts to provide at least 72 hours prior notice); or (ii) any unavailability caused by circumstances beyond our control, including but not limited to, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems or Internet service provider failures or delays.
5. Third Party Products & Services (Stripe - https://stripe.com/us/terms)
The Service may provide you with access to, be integrated with, or contain links or references to, products, services, data, information, sites or other materials which are provided or operated by third parties (collectively, "Third Party Products or Services”). Third Party Products are not under NICE TOMATO’s control, and you acknowledge that NICE TOMATO is not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such Third Party Products. You shall comply with all Third Party Terms, and shall indemnify and hold NICE TOMATO harmless from all damages, costs, settlements, attorneys’ fees and expenses arising from or related to your breach of any Third Party Terms. Any provision by NICE TOMATO of Third Party Products, and any exchange of data between you and any third-party provider of a Third Party Product, is solely between you and the applicable third-party provider.
7. Proprietary Rights
A. The Service contains content of NICE TOMATO that is protected by copyright, trademark, and other laws. As between the parties, NICE TOMATO owns all intellectual property and other proprietary rights to the Service, including but not limited to the design, artwork, logos, functionality, and documentation relating thereto (collectively, the "NICE TOMATO Property"). You may not: (i) copy, modify, or reverse engineer any part of the Service or any NICE TOMATO Property (except to the extent such restriction is prohibited by applicable law); (ii) rent, sell, lease, distribute, provide on a service bureau basis, or otherwise use the Service for the benefit of any third party; or (iii) remove or otherwise alter any proprietary notices or labels from the Service or any portion thereof. The names, logos or trademarks of any third party companies and products mentioned on the Service (including, without limitation, NICE TOMATO Partners and Partner Sites) may be the trademarks of their respective owners.
B. Subject to the terms and conditions hereof, NICE TOMATO hereby grants you a limited, revocable, nonsublicensable license to display the NICE TOMATO Property (excluding any software code) solely for personal, non-commercial use in connection with viewing the Service or other uses which are expressly permitted by NICE TOMATO in writing. Notwithstanding such permitted uses and license, you acknowledge that all derivative designs and artwork which utilize the Service’s logo or other NICE TOMATO Property (collectively, "Derivative Works") are the sole property of NICE TOMATO. No other rights are granted to you with respect to the NICE TOMATO Property other than those rights granted explicitly herein, including with respect to any Derivative Works.
C. Any text, images, or other audiovisual information posted on the Service by a user (collectively, "User Content") shall belong to the user that posted such User Content. You may use any User Content posted by you in any other way without restriction. You may only use User Content posted by others in the ways described in this Agreement.
D. In order to operate the Service, NICE TOMATO needs the right to make certain uses of your publicly posted User Content (for example, you may provide NICE TOMATO with User Content to enable us to send communications regarding your subscription billing). Therefore, when you post User Content on the Service, you agree that NICE TOMATO may use and make available such User Content, solely as reasonably necessary to provide the Service to you. By posting User Content to the Service, you hereby represent and warrant that you have the right to post that User Content and to grant the foregoing rights to NICE TOMATO. In addition, you agree that NICE TOMATO may use your name and logo to identify you as a NICE TOMATO customer on its website or in other sales or marketing materials (provided that NICE TOMATO will not issue any press release regarding your use of the Service without your prior consent). In addition, you acknowledge that NICE TOMATO may (i) internally use (but not disclose) information and data collected by NICE TOMATO regarding your use of the Service to create Aggregated Anonymous Data (as defined below), and (ii) may freely use and make available Aggregated Anonymous Data. "Aggregated Anonymous Data" means merchant-level information and data that is in an aggregated, anonymized form, and which can in no way be specifically linked to you or to any of your customers.
E. NICE TOMATO reserves the right to remove any content (including, without limitation, User Content) from the service, at its sole discretion.
F. NICE TOMATO respects the intellectual property of others. It may, in appropriate circumstances and at its discretion, disable and/or terminate the accounts of users who repeatedly infringe others' rights. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide the following information to NICE TOMATO's copyright agent:
an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
a description of the copyrighted work or other intellectual property that you claim has been infringed;
description of where the material that you claim is infringing is located on the site;
your address, telephone number, and email address;
a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or are authorized to act on the copyright or intellectual property owner's behalf.
NICE TOMATO's agent for notice of claims of copyright or other intellectual property infringement can be reached as follows:
8. Disclaimer of Warranties
YOU EXPRESSLY UNDERSTAND AND AGREE THAT: YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. NICE TOMATO AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
NICE TOMATO MAKES NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (II) THAT YOUR ACCESS TO OR USE OF THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE, (III) THAT ANY DEFECTS IN THE SERVICE WILL BE CORRECTED, OR (IV) THAT THE SERVICE OR ANY SERVER THROUGH WHICH YOU ACCESS THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
YOU UNDERSTAND THAT IN USING THE SERVICE, SENSITIVE INFORMATION WILL TRAVEL THROUGH THIRD PARTY INFRASTRUCTURES WHICH ARE NOT UNDER NICE TOMATO’S CONTROL (SUCH AS A THIRD PARTY SERVERS). NICE TOMATO MAKES NO WARRANTY WITH RESPECT TO THE SECURITY OF SUCH THIRD PARTY INFRASTRUCTURES.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM NICE TOMATO OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
NICE TOMATO shall defend, indemnify and hold you harmless from any amounts paid or due to unaffiliated third parties (including reasonable attorney’s fees) which result from a third party claim that the Service infringes any United States patent, copyright, or trademark, or misappropriates any trade secret, provided that you provide NICE TOMATO with (a) prompt written notice of such claim, (b) the option to assume sole control over the defense and settlement of such claim, and (c) reasonable assistance in connection with such defense and settlement (at NICE TOMATO’s expense). Without limiting the foregoing, NICE TOMATO will not be responsible for any settlement it does not approve. The foregoing obligations do not apply with respect to the Service or portions or components thereof to the extent (i) not created by NICE TOMATO, (ii) made in whole or in part in accordance to your specifications, (iii) modified after delivery by NICE TOMATO, (iv) combined with other products, services, processes or materials where the alleged infringement relates to such combination, (v) where you continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where your use of the Service is not strictly in accordance with this Agreement. You will indemnify and hold NICE TOMATO harmless from all damages, costs, settlements, attorneys’ fees and expenses arising from or related to the exclusions set forth in the preceding sentence.
10. Limitation of Liability
EXCEPT FOR ANY INDEMNIFICATION OBLIGATIONS OF THE PARTIES SET OUT HEREIN, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY ON ACCOUNT OF ANY CLAIM (WHETHER BASED UPON PRINCIPLES OF CONTRACT, WARRANTY, NEGLIGENCE OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, THE FAILURE OF ANY LIMITED REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, OR OTHERWISE) FOR (I) ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (II) ANY AMOUNTS IN EXCESS (IN THE AGGREGATE) OF THE FEES PAID (OR PAYABLE) BY YOU UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING ANY CLAIM. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
NICE TOMATO may assign these Terms of Service in whole or part at any time.
Any notice required or permitted in this Agreement shall be sent via email (and shall be deemed to have been duly given upon receipt), (i) if to Company, at firstname.lastname@example.org or (ii) if to you, at the email address that you provide when registering your account. Either party may update its email address for notice purposes via a notice delivered in accordance with this paragraph.
Neither party may assign or transfer its rights or obligations under this Agreement without the other party’s prior written consent; provided that either party may assign or transfer all of its rights and obligations under this Agreement without such consent to a successor-in-interest to all or substantially all of such party’s assets, business or equity interests relating to this Agreement (whether effected by merger, acquisition, sale of assets, change of control, or otherwise). NICE TOMATO may subcontract its obligations hereunder (provided that NICE TOMATO shall at all times remain fully responsible for the performance of any subcontractor).
This Agreement and the relationship between you and NICE TOMATO shall be governed by the laws of the State of Washington without regard to its conflict of law provisions. You and NICE TOMATO agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Seattle, Washington.
The provisions of this Agreement are intended for the benefit of, and are enforceable solely by, the parties hereto, and nothing in this Agreement shall be construed as giving any other person any right, remedy or claim under or in respect of this Agreement or any provision hereof.
The parties shall be independent contractors under this Agreement, and nothing herein shall constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.
Any failure of NICE TOMATO to enforce or exercise a right provided in these terms is not a waiver of that right.
Should any provision of these terms be found invalid or unenforceable, such provision shall be limited or deleted to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.