Merchant User Agreement
This Merchant User Agreement ("Agreement") is between you, the user, together with any company or other business entity you are representing, if any (collectively, "You"), and Neowave Solutions Sdn Bhd. ("Neowave"), the company providing e-commerce software programs branded as webShaper ("webShaper") that enable merchants to build online stores through which they can sell their products and services online.
This Agreement explains the terms and conditions governing your use of the webShaper solution, technology and any other content available during your sign-up period. By clicking on the 'I agree' checkbox on the registration page, you have chosen to accept these terms and conditions and acknowledge that the webShaper solution during this sign-up period is governed by the rules set forth below. If you do not wish to accept this agreement, do not proceed with the sign-up.
By accepting this Agreement, You further agree to be bound by any amendments to the terms and conditions of this Agreement or to such terms and conditions as are incorporated herein by reference. Except as stated below, all amended terms shall automatically be effective thirty (30) days after they are initially posted on the website.
The Software license and Services are available only to, and may only be used by individuals who can form legally binding contracts under applicable law. Without limiting the foregoing, the Software and Services are not available to children (persons under the age of 18). If You are registering as a business entity, You represent that You have the authority to bind the entity to this Agreement. Neowave uses many techniques to verify the accuracy of the information You provide when You register on the webShaper website. If for any reason, Neowave, in its sole discretion, believes such information to be incorrect, it reserves the right, without provision of any notice to You, to revoke any and all licenses under this Agreement or to refuse to provide the Software license and Services under this Agreement to You.
Your webShaper solution will include the full e-commerce store features, (excluding any payment gateway services) as listed on webShaper website in accordance to the package you subscribe to.
2. Restrictions and Prohibitions
2.1 You are not to use the webShaper solution, the selection of web address for your member site, the solution, or the Merchant site to, including, but not limited to:
- Be false, inaccurate or misleading.
- Be fraudulent or involve the sale of counterfeit or stolen items.
- Infringe or misappropriates any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; Neowave may, in appropriate circumstances and at its sole discretion, disable and/or terminate the accounts of users who may be repeat infringers.
- Violate any law, statute, ordinance or regulation (including, but not limited to, those governing privacy, publicity, export control, consumer protection, unfair competition, antidiscrimination or false advertising).
- Be defamatory, trade libelous, unlawfully threatening or harassing, or advocating, promoting or providing assistance involving violence, significant risk of death or injury, or other unlawful activities.
- Display material containing pornographic material of any kind.
- Access illegally or without authorization any computers, servers, accounts or networks of webShaper or any webShaper merchant, or attempt to "hack" into webShaper security systems, having webShaper host or distribute any Internet viruses, other harmful code, pinging, flooding, mail bombing, or denial-of-service attacks or disrupting others of effectively using the webShaper solution.
- Involve the transmission of any unsolicited commercial or bulk email (known as "spamming") and You shall not use Your account or Your Store as a return address for unsolicited commercial mail originating elsewhere or participate in any activities related to so-called pyramid or ponzi schemes.
- Be harmful or potentially harmful to the webShaper solution's server structure as determined in Neowave's sole discretion, including without limitation overloading the webShaper solution's server technical infrastructure.
- Involve subleasing Your account or offering "free space" on or other access to Your account or Your Store to third parties;
- Create liability for Neowave and its subcontractors or expose them to undue risk or otherwise engage in activities that Neowave, in its sole discretion, determines to be harmful to Neowave's affiliates, operations, reputation, or goodwill.
- Post or disclose any personally identifying information or private information about children or any third parties without their consent or the parent's consent, in a case for minor.
- Post or display of any materials that exploits or otherwise exploits children under age of 18 years.
- Post any content that advocates, promotes, or otherwise encourages violence against any governments, organizations, groups or individuals or activities that leads to cruelty towards animal or in providing instruction/information or assistance in carrying out such violence.
- Conduct activities such as gambling, sweepstakes, raffles and lotteries.
2.2. You agree that without express consent of Neowave (and showing proof of the appropriate licenses where necessary or appropriate), you will never provide, sell or offer to sell the following products or contents (or services related to the same) on the Merchant site you create:
- Pharmaceutical or any other controlled substances.
- Illegal drugs and illegal drug contraband.
- Firearms and weapons.
- Pirated computer programs.
- Pornography or illicitly pornographic products.
- Computer software viruses or software designed to create a virus.
- Any goods which are (or Instructions on how to make) harmful, dangerous or illegal.
2.3 You agree that you will not (and will not allow any third party to) participate in any of the following actions such as reverse engineering, reverse compiling or otherwise deriving the underlying source code or structure or sequence of any webShaper solution or technology; individual passwording of Merchant sites; deleting or altering author attributes or copyright notices (unless expressly permitted in writing by the author or owner), and/or fail to obtain all required permissions when using the webShaper solution to receive, upload, display, distribute, or execute programs or perform other works protected by intellectual-property laws, including copyright and patent laws.
4. Our Rights and Obligations
4.1 Merchant Site Content Changes
Neowave reserve the right to make changes to your site if you breach any of the provisions of this Agreement with sufficient notice and reasonable time period provided to you, to rectify the infringing content (as determined by Neowave's sole discretion). If you fail to conform to Neowave's satisfaction, then Neowave may make changes to the Merchant site to bring it in compliance with this Agreement. Merchant is not to hold Neowave liable for any foreseeable, unforeseeable, direct, indirect consequences that may result from the changes made by our Support team to Merchant site in response to a Merchant site that breaches this Agreement. Neowave's decision is final and binding. Notwithstanding the above, Neowave also reserves the right to discontinue the provision of any or all aspects of the webShaper solution to any member for any breach of this agreement.
4.2 Informing Merchants on Changes
Neowave reserves the right to inform all Merchants regardless of their email subscription on important information such as service outages, material changes or modifications to the solution, latest development as well as changes to the Mercahnt User Agreement.
Neowave reserves the right to discontinue any or all aspects of the webShaper solution or restrict your use of the solution in whole or in part for any breach of this Agreement by you at any time without prior notice; or if Neowave determines in its sole and exclusive discretion that terminating your use of the webShaper solution is necessary for security reasons, for proper continued operation of webShaper or for whatsoever reasons deemed appropriate by Neowave; or if your use of webShaper solution is not for a legitimate business purpose, violating any rules or regulations; or if Neowave receives information that the use of webShaper solution (or any part thereof) may violate any third party right.
Neowave may at any time, with thirty (30) days notice to you, modify or discontinue any or all aspects of the webShaper solution or restrict your use of the solution in whole or in part for Neowave's convenience.
If, at any time, the credit card number that you provided to Neowave expires, or if we are unable to charge valid charges to that credit card number, or if you fail to make payments due to Neowave hereunder after a ten (10) days notice, then Neowave reserves the right to modify or discontinue any or all aspects of the webShaper solution.
All rights granted to you, the Merchant, under this Agreement would be terminated upon termination of this agreement. Following such termination or suspension, you agree not to reregister for or otherwise access the webShaper solution without Neowave's written approval. Upon termination of this Agreement, Neowave reserves the right to delete any data files associated with your use of the webShaper solution. However, you are still liable for the full charge for the period during which we terminate or suspend your webShaper solution.
6. Variations to the Terms and Conditions
Neowave may at any time, with notice of not less than thirty (30) days, change its fees and the terms of this Agreement. With regards to the changes in fees and charges, they will be posted clearly on the 'Home' page on our website. Neowave will also be sending you an email or even send you a letter informing you of the change. If you find any change unacceptable, you are free to terminate this agreement. Your continued use of the webShaper solution after the effective date of a change constitutes your continued acceptance of the new terms and conditions of this Agreement, the webShaper solution as well as its fee schedule.
You agree to indemnify and hold Neowave, its suppliers, advertising and promotional partners, and service providers, and their officers, directors, agents, and employees, harmless from any and all losses, costs, liabilities or expenses (including without limitation reasonable attorneys' and expert witnesses' fees) incurred or arising from:
- Your misuse of the webShaper solution (or any other Neowave services) contrary to, prohibited and restricted under this Agreement.
- Infringement of any copyright, trademark, intellectual property, or other right or patent by any material you post or use on your Merchant site.
- Any Content generated by users of Your Store.
- Breach of this Agreement.
- Any obscene or libelous material posted on your Merchant site.
- Any claims arising from the sale or license of goods or services in Your Store.
8. Third Party Rights Violations
If complaints of a violation of third party rights arise with regards to your Merchant site, then Neowave will have to investigate on the validity of the complaints. If the complaint is valid, then the issue will have to be dealt with accordingly and it will be considered a breach of this Agreement.
9. Proprietary Rights
As between the parties, Neowave acknowledges that it claims no proprietary rights in Merchant's information or any intellectual property right contained therein. As between parties, you, the Merchant, acknowledge and agree that Neowave and its licensors own all right, title and interest in:
- The webShaper solution
- Any other Neowave's solution
- The technology available on the webShaper solution
- And all content, including but not limited to text, software, music, photographs, video, graphics, or other material contained or maintained on the webShaper solution, excluding all Merchant information.
You agree also that the content and technology behind the webShaper solution is protected by international copyrights, trademarks, service marks, patent, or other proprietary rights and laws; which means that you are only allowed to use webShaper content and technology only as expressly authorized by Neowave and its licensors. You should understand and agree that the compilation, collection, selection, arrangement, assembly and coordination of all content available on the webShaper solution are exclusive property of Neowave and its licensors and it is rights protected. Therefore, unless expressly authorized by Neowave, you may strictly only use it for your internal business and data-gathering purposes.
10. Disclaimer of Warranties
NEOWAVE, ITS SUPPLIERS AND SERVICE PROVIDERS, PROVIDE THE SOFTWARE, ADDITIONAL SOFTWARE, AND SERVICES, ON AN "AS IS" BASIS AND EXPRESSLY DISCLAIM ANY AND ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, TITLE, NON-INFRINGEMENT, AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE ARE EXCLUDED. NEOWAVE, ITS SUPPLIERS AND SERVICE PROVIDERS, DO NOT WARRANT THAT THE SOFTWARE, ADDITIONAL SOFTWARE, OR SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED AND MAKE NO REPRESENTATIONS REGARDING UPTIME, USE, DATA SECURITY, ACCURACY AND RELIABILITY OF THEIR SERVICES. YOU ACKNOWLEDGE AND AGREE THAT THIS SECTION 10 IS REASONABLE AND AN ESSENTIAL ELEMENT OF THIS AGREEMENT AND THAT IN ITS ABSENCE, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.
11. Limitation of Liability
IN NO EVENT SHALL NEOWAVE, ITS SUPPLIERS, ADVERTISING AND PROMOTIONAL PARTNERS, OR SERVICE PROVIDERS, OR THEIR OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS OR AGENTS BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE, THE ADDITIONAL SOFTWARE, THE SERVICES OR THIS AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE). NEOWAVE'S, ITS SUPPLIERS', ADVERTISING AND PROMOTIONAL PARTNERS', AND SERVICE PROVIDERS', CUMULATIVE LIABILITY, AND THE LIABILITY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS AND AGENTS TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF (A) THE AMOUNT OF FEES YOU PAY TO NEOWAVE FOR (I) THE SOFTWARE LICENSE AND (II) THE SERVICES IN THE ONE (1) MONTH IMMEDIATELY PRECEDING THE MONTH IN WHICH THE ACTION GIVING RISE TO THE LIABILITY FIRST AROSE, AND (B) ONE HUNDRED RINGGIT MALAYSIA (MYR 100).
Neowave and the Merchant are two (2) separate entities; therefore opinions and views expressed in any Merchant site do not reflect that of Neowave. We do not verify, vouch, review or otherwise endorse the content on any Merchant site. The Merchant is solely responsible for the content and everything else contained on their own site. Merchants may be held legally liable for the contents of their site should the content contain any defamatory comments or material protected by copyright, trademark, patent or trade secret or other laws without the permission of the author or owner.
Neowave is not responsible for the delivery or quality of any goods or services sold or advertised through the Merchant site.
Neowave and its licensors makes no other warranties or representations of any kind with respect to the webShaper solution. No warranty is given that the webShaper solution or technology is error-free. Neowave and its licensors disclaim any warranty of title or any other warranties for any third party's offering(s) or product(s).
Neowave does not guarantee that its security procedures taken will prevent the loss of, alteration of, or improper access to your information. Neowave and its licensors are in no way responsible for invalid destinations and transmission errors in, corruption of, or the security of your information carried over inter exchange carriers', local exchange carriers, or other providers' facilities.
The content (text and graphics) appearing on webShaper website may include technical inaccuracies, typographical errors and out-of-date information; therefore you expressly assume all risk for such use of the webShaper solution and technology.
webShaper website may provide links to other websites or resources. You acknowledge and agree that Neowave is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products or other materials on or available from such sites and resources. You also agree that Neowave shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused or in connection with use of or reliance on any such content, goods or services available on such external third-party sites.
13. Use of Paypal
14. Use of Resources
Each webShaper stores (mini, soho, biz) will utilize system and server resources such as memory, CPU, bandwidth etc. For standard plan there is a maximum memory utilization strictly up to 200MB per webShaper store.
The services hereunder are offered by Neowave Solutions Sdn Bhd, located at 44-5, Jln 5/101C, Cheras Commercial Centre, Cheras, 56100, Kuala Lumpur, Malaysia.
You shall not assign, transfer or delegate this Agreement or any rights or obligations hereunder. Any assignment, transfer or delegation in contravention of the foregoing provision shall be null and void. You agree that this Agreement may be assigned by Neowave, in Neowave's sole discretion.
17. Governing Law
In the event of a dispute, Neowave agrees to a friendly mediation to resolve it. If mediation is not successful, then we agree to binding arbitration to be conducted in Kuala Lumpur, Malaysia. This agreement shall be governed by and construed according to the laws and jurisdiction of the country of Malaysia.
18. Legal Compliance
You shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding Your use of the Software, the Services, Your Content, and Your listing and sale of products and services on Your Store.
19. No Agency
You and Neowave are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
20. Force Majeure
Except for the payment of any fees due and payable under this Agreement, neither party's delay in the performance of any duties or obligations under this Agreement will be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, failures in electric power or telecommunications services, or any other event beyond the control of the party.
This agreement represents the complete agreement concerning this license between the parties and supersedes all prior agreements and representations between them. If any provision of this agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable.