Giganto™License Agreement

Giganto™ License Agreement

NANO service (“NANO“ or the “Service”), owned and operated NANO WEB GROUP, 129 W. 29th Street, 5th Fl., New York, New York 10001, United States of America is provided to you under the terms and conditions of this Agreement, and any amendments thereto and any operating rules or policies (collectively, the “License” or “Agreement”). NANO reserves the right, in its sole discretion, to change, modify, add or remove all or part of the License at any time. Merchant will receive notice of such changes and/or modifications pursuant to this Agreement. Latest license terms can be found on our website nanowebgroup.com/giganto.
By accepting the terms and conditions of the License, Merchant (a) represents and warrants that he or she is 18 years old or older; (b) agrees to provide true, accurate, current and complete information about Merchant }; and (c) agrees to maintain and update this information to keep it true, accurate, current and complete. If any information provided by Merchant is untrue, inaccurate, not current or incomplete, NANO has the right to terminate Merchant’s account and refuse any and all current or future use of the Service.
BY installing software application created by NANOWEBGROUP, YOU AGREE TO BE BOUND BY THIS LICENSE ONLY. If these terms and conditions or any future changes are unacceptable to you, you may cancel your account pursuant to the terms of this Agreement.
DESCRIPTION OF GIGANTO™
Giganto™ (“Software”) is a standalone mobile extension designed by e-commerce specialists specifically for Magento stores (“Stores”). Giganto™ may be personalized with your own logo, banners and featured categories. Highlight new or special products. Reflect your brand with your own color skins for backgrounds, text, and buttons. Any content changes you make on your website to the products, categories, or content pages automatically reflect on your mobile app, subject to certain limitations or restrictions.
The NANO Services are limited to the features, services and offers as listed and described on www.nanowebgroup.com. Any further features or requirements must be agreed separately and are not part of this License.
MERCHANT’S OBLIGATION
Merchant acknowledges and agrees that it shall be responsible for all goods and services offered at Merchant’s Store, all materials used or displayed at the Store, and all acts or omissions that occur at the Store or in connection with Merchant’s account or password. You agree that your use of the Service and your Store will be in compliance with the any applicable laws and regulations at all times.
Merchant represents and warrants that it has full power and authority under all relevant laws and regulations:
• to offer and sell the goods and services offered at the Store, including but not limited to holding all necessary licenses from all necessary jurisdictions to engage in the advertising and sale of the goods or services offered at the Store;
• to copy and display the materials used or displayed at the Store; and,
• to provide for credit card payment and delivery of goods or services as specified at the Store.
Merchant represents and warrants that it will not engage in any activities:
• that defame, impersonate or invade the privacy of any third party or entity;
• that infringe the rights of any third party, including but not limited to the intellectual property, business, contractual, or fiduciary rights of others; and,
• that are in any way connected with the transmission of “junk mail” “spam” or the unsolicited mass distribution of e-mail, or with any unethical marketing practices, such as posting multiple submissions in public forums that are identical.
You agree to comply with the export, re-export, and import laws and regulations of the United States and other applicable countries where you operate or do business, including but not limited to the United States Export Administration Regulations, the antiboycott rules, and the Office of Foreign Assets Control regulations. Specifically, but without limitation, you represent and warrant that you:
• will not use the Service to directly or indirectly conduct, promote, or facilitate business in countries and with nationals that are prohibited by U.S. embargoes or trade sanctions;
• are not a party identified on any government export exclusion lists nor using the Service to conduct business with a party identified on such lists, including but not limited to the U.S. Denied Persons, Entity, and Specially Designated Nationals Lists;
• will not use the Service to export items, Content, or materials to or for military, nuclear, missile, chemical, or biological weaponry end users or end uses; and
• will defend, indemnify, and hold NANO harmless against any liability (including attorneys fees) arising out of or related to your failure to comply with applicable export, re-export, and import laws and regulations.
You agree to comply with all applicable U.S. and non-U.S. laws, rules, regulations, and orders, including, but not limited to, tax and intellectual property, including copyright, content, sales, mail-order, commerce, and ecommerce laws and regulations. You shall be responsible for determining which laws or regulations are applicable to Your use of the Services. You shall, upon the request of NANO, provide NANO assurance of Your compliance with those laws. You acknowledge that NANO exercises no control whatsoever over the content of the information passing through Your site(s) and that it is Your sole responsibility to ensure that the information You and Your users transmit and receive complies with all applicable laws and regulations and the NANO Policies.
NANO reserves the right to refuse to license or continue to license any Store which it believes, in its sole discretion: (1) offers for sale goods or services, or uses or displays materials, that are illegal, obscene, vulgar, offensive, dangerous, or are otherwise inappropriate; (2) has substantially changed its Store from the time it was accepted; (3) has received a significant number of complaints for failing to be reasonably accessible to customers or timely fulfill customer orders; (4) has become the subject of a government complaint or investigation; (5) has violated or threatens to violate the letter or spirit of the License; or (6) has failed to provide payment.
Software License

NANO hereby grants Merchant a non-exclusive, non-transferable license to use the software in object code form only on a single domain for the sole purpose of creating and maintaining stores on such a server. Any other domains operated by Merchant must attain a separate license. Merchant is not being granted any right to copy the software. Merchant also acknowledges and agrees that the Software is intended for access and use by means of web browsing software, and that NANO does not commit to support any particular browsing platform. NANO reserves the right at any time to revise and modify the software, release subsequent versions thereof and to alter features, specifications, capabilities, functions, and other characteristics of the software, without notice to merchant. If any revision or modification to the software materially changes the merchant’s ability to conduct business, merchant’s sole remedy is to terminate the License pursuant the non-renewal of service section of this Agreement.

NANO Intellectual Property

Merchant acknowledges and agrees that content available from NANO or the service, including but not limited to text, software, music, sound, logos, trademarks, service marks, photographs, graphics, or video, is protected by copyright, trademark, patent, or other proprietary rights and laws, and may not be used in any manner other than as specified herein.

Merchant’s Property

The Merchant agrees that by using the service, the Merchant grants NANO, and its successors and assigns, a non-exclusive, worldwide, royalty-free, perpetual, non-revocable license under Merchant’s copyrights and other intellectual property rights, if any, in all material and content displayed in the Merchant’s store to use, distribute, display, reproduce, and create derivative works from such material in any and all media and display in any manner and on any NANO property the results of search queries and comparisons conducted on NANO, including, without limitation, searches conducted on or within NANO shops and the Service. Merchant also grants NANO the right to maintain such content on NANO’s servers during the term of the License and to authorize the downloading and printing of such material, or any portion thereof, by end users for their personal use.

Abusive User Behavior

NANO uses certain confidential internal and third-party tools and techniques to protect users from abusive and other harmful behavior on the internet and on the NANO servers. NANO reserves the right to take any action it deems necessary at its sole discretion, including, without limitation, account termination or suspension, to protect against such abusive or harmful behavior. NANO updates these tools, techniques, and practices from time to time as the abusive practices and industry standards change. You agree that NANO shall not be responsible or liable for any loss or damage of any sort incurred by you, or any third party, as the result of NANO taking or not taking any actions in response to any actual or perceived abusive user behavior.

Unauthorized Access

Merchant shall not attempt to gain unauthorized access to any servers controlled by NANO.

FEES AND PAYMENT

Fees

In consideration of the Services, Customer will pay to NANO all fees due according to the prices and terms listed on the website http://www.NANOWEBGROUP.com/giganto. All sales are final and NANO offers no partial or full refunds of any kind on any purchase unless otherwise expressly noted, even if your Services are suspended, terminated or transferred before the end of the Services. NANO expressly reserves the right to change or modify its prices and fees at any time, and such changes or modifications shall be posted online at this Site and effective immediately without need for further notice to you. If you have purchased Services for a period of months or years, changes or modifications in prices and fees shall be effective when the Services in question come up for renewal.

Payment

All payments are due upon signup, the Services will not begin until payment is received. All recurring charges will be due on the monthly anniversary date of your initial signup. It is Customer’s obligation to review all monthly charges for accuracy. Failure to dispute a charge within six (6) months following such charge shall constitute Customer’s agreement that all charges are valid and Customer agrees to waive any claims it may have had regarding such charge. If a payment is returned or rejected by NANO’s bank, or incurs additional costs for NANO (e.g., bank fees) for any reason, then Customer may be charged a service fee of $40 and be required reimburse all such fees and costs incurred by NANO, and Customer shall be immediately deemed to be in default of this Agreement. Accounts and all amounts in default are subject to a late payment charge of 1.5% per month, or the maximum amount permitted by law, whichever is greater, until fully paid. If Customer defaults, Customer agrees to pay NANO its reasonable expenses, including attorney, in house legal expenses and collection agency fees, incurred in enforcing its rights.

Billing Policies and Cycles

Generally, we offer billing via PayPal or credit card. All initial fees must be paid prior to service setup. These fees may include service setup fees and yearly or monthly service charge. Our billing cycle begins on the day we setup your account, and is due on that day each month thereafter. NANO attempts to automatically charge the credit card on file for any past due invoice for current, suspended and cancelled accounts. Accounts suspended and reactivated must pay all past due and current amounts. Accounts past due over 30 days cannot be reactivated. You must sign up for new service and pay the full setup fees associated with the plan you choose. To cancel your account, you must follow the procedure as set forth herein. To ensure that you are not billed for another month of service, you must cancel your account before your billing cycle due date. Note: All billing correspondence (invoices, notifications, etc.) is done via email. It is crucial that you maintain a current email address with us.

Taxes

All fees stated on http://www.NANOWEBGROUP.com/giganto for the Services are exclusive of all taxes, VAT and similar fees now in force or enacted in the future imposed on the transaction and/or the delivery of Services, all of which Customer will be responsible for and will pay in full, except for taxes based on NANO’s net income. If NANO is required to pay directly any such taxes, Customer will, upon receipt of NANO’s invoice, promptly reimburse NANO for any such taxes paid by NANO.

TERMS

Term

The term of the License shall be 1 month commencing on the date that Merchant opens an account for Merchant’s Store (the ‘Start Date’). The term shall automatically renew for successive months at renewal rates applicable at the time, unless notice of non-renewal is provided in accordance herewith; provided, however, that to qualify for each renewal, the Merchant must at the time of renewal be in substantial compliance with the material terms and conditions of the License. NANO shall have the right, but not the obligation, to review any Store for compliance with the License as part of the renewal process, or at any time.

Non-Renewal

Either party, in its sole and absolute discretion, may give notice of non-renewal with or without cause and without stating any reason therefore. Any notice of non-renewal must be given at least thirty (30) days prior to the end of the current monthly period in order for the License to expire on the last day of that monthly period; otherwise, the License will expire on the last day of the following monthly period (i.e., if the start date were September 10, and Merchant were to provide NANO with notice of non-renewal on October 10 of the same year, then the License would expire on November 10th of the same year). All notices under this Section must be given in the manner described as set forth herein.

TERMINATION

Termination

Either party may terminate the LICENSE on ninety (90) days’ notice in case of a yearly or bi-yearly contract period, if the other party has materially breached or is otherwise not in compliance with any provision of the License, and such breach or noncompliance is not cured within a twenty (20) day period. NANO reserves the right to immediately suspend any customer access to the store until such breach or noncompliance is cured.

Termination for Illegal or Other Activity

Notwithstanding the foregoing, NANO may, but has no duty to, immediately terminate Merchant and remove the license it from NANO servers if NANO in its sole discretion concludes that Merchant is engaged in illegal activities or the sale of illegal or harmful goods or services, or is engaged in activities or sales that may damage the rights of NANO or others. Any termination under this Section shall take effect immediately and Merchant expressly agrees that it shall not have any opportunity to cure.

Waiver

Merchant expressly waives any statutory or other legal protection in conflict with the provisions of this Termination Section.

Deletion of Information

Upon termination, NANO reserves the right to delete from its servers any and all information contained in Merchant’s account, including but not limited to order processing information, mailing lists, and any web pages generated by the software.

Survival

The provisions of Section, Merchant Information, Indemnity, and Disclaimer of Warranties and Liabilities of this Agreement shall survive any termination of the Agreement.

MERCHANT PRIVACY
Merchant Information
NANO maintains information about the Merchant and the Store on its NANO servers, including but not limited to Merchant’s account registration information, Merchant’s customer order information, sales information, and clickstream data (“Merchant Information”). Merchant grants to NANO a non-exclusive, worldwide, royalty-free, perpetual license to use Merchant Information in aggregate form (i.e., in a form that is not individually attributable to the Merchant) for research, marketing and other promotional purposes.
Merchant agrees that NANO may disclose Merchant Information in the good faith belief that such action is reasonably necessary: (a) to comply with the law; (b) to comply with legal process; (c) to enforce the License; (d) to respond to claims that the Merchant or Store is engaged in activities that violate the rights of third parties; or (e) to protect the rights or interests of NANO, NANO or others; provided, however, that nothing in this section shall impose a duty on NANO to make any such disclosures.
Merchant agrees that NANO may delete customer credit card information from NANO servers 14 days after Merchant retrieves such information, and may delete all other Merchant information from NANO servers at the end of each calendar year.
Password
Merchant shall receive a password from NANO to provide access to and use of the Software and Online Store Services. Merchant is entirely responsible for any and all activities which occur under Merchant’s account and password. Merchant agrees to keep its password confidential, to allow no other person or company to use its account, and to notify NANO promptly if Merchant has any reason to believe that the security of its account has been compromised.
Technical Access for Support Purposes
Merchant acknowledges and agrees that technical processing of Merchant information is and may be required: (a) for the service to function; (b) to conform to the technical requirements of connecting networks; (c) to conform to the technical requirements of the service; or (d) to conform to other, similar technical requirements. Merchant also acknowledges and agrees that NANO may access Merchant’s account and its contents as necessary to identify or resolve technical problems or respond to complaints about the Service.
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MAINTENANCE AND SUPPORT
Merchant can obtain assistance with any technical difficulty that may arise in connection with Merchant’s utilization of the Software by contacting customer care. NANO reserves the right to establish limitations on the extent of such support, and the hours at which it is available.
Merchant is responsible for obtaining and maintaining all telephone, computer hardware and other equipment needed for its access to and use of the software and online store services and Merchant shall be responsible for all charges related thereto.
INDEMNITY
Merchant agrees to indemnify and hold harmless NANO, and its parents, subsidiaries, affiliates, officers, directors, shareholders, employees and agents, from any claim or demand, including reasonable attorneys fees, made by any third party due to or arising out of the Merchant’s conduct, Merchant’s use of the Service, the goods or services offered at Merchant’s Store, any alleged violation of the License, or any alleged violation of any rights of another, including but not limited to the Merchant’s use of any content, trademarks, service marks, trade names, copyrighted or patented material, or other intellectual property used in connection with Merchant’s Store. NANO reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Merchant, but doing so shall not excuse Merchant’s indemnity obligations.
DISCLAIMER OF WARRANTIES AND LIABILITIES
THE SERVICE AND SOFTWARE ARE 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 MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. NEITHER THIS AGREEMENT OR ANY DOCUMENTATION FURNISHED UNDER IT IS INTENDED TO EXPRESS OR IMPLY ANY WARRANTY THAT THE ONLINE STORE SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE OR THAT THE SOFTWARE WILL PROVIDE UNINTERRUPTED, TIMELY OR ERROR FREE SERVICE. THE SECURITY MECHANISM INCORPORATED IN THE SOFTWARE HAS INHERENT LIMITATIONS AND MERCHANT MUST DETERMINE THAT THE SOFTWARE ADEQUATELY MEETS ITS REQUIREMENTS. MERCHANT ACKNOWLEDGES AND AGREES THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT ITS OWN DISCRETION AND RISK AND THAT MERCHANT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO ITS COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. NANO, AND ITS PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS, SHALL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES OR LEGAL THEORIES WHATSOEVER, FOR ANY LOSS OF BUSINESS, PROFITS OR GOODWILL, LOSS OF USE OR DATA, INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER, EVEN IF NANO IS AWARE OF THE RISK OF SUCH DAMAGES, THAT RESULT IN ANY WAY FROM MERCHANT’S USE OR INABILITY TO USE THE ONLINE STORE SERVICES OR THE SOFTWARE, OR THAT RESULT FROM ERRORS, DEFECTS, OMISSIONS, DELAYS IN OPERATION OR TRANSMISSION, OR ANY OTHER FAILURE OF PERFORMANCE OF THE ONLINE STORE SERVICES OR THE SOFTWARE. NANO’S LIABILITY TO MERCHANT SHALL NOT, FOR ANY REASON, EXCEED THE AGGREGATE PAYMENTS ACTUALLY MADE BY MERCHANT TO NANO OVER THE COURSE OF THE EXISTING TERM. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR LIABILITIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
NO RESALE OR ASSIGNMENT OF SERVICE
Merchant agrees not to resell or assign or otherwise transfer its rights or obligations under the License without the express written authorization of NANO.
FORCE MAJEURE
Neither party shall be liable to the other for any delay or failure in performance under the License resulting directly or indirectly from acts of nature or causes beyond its reasonable control.
NOTICES
Any notices or communications under the License shall be by electronic mail or in writing and shall be deemed delivered upon receipt to the party to whom such communication is directed, at the addresses specified below. If to NANO, such notices shall be addressed to NANO WEB GROUP. 151 W. 25th Street, 7th Fl., New York, New York 10001. If to Merchant, such notices shall be addressed to the electronic or mailing address specified when Merchant opens an account with NANO, or such other address as either party may give the other by notice as provided above.
ENTIRE AGREEMENT
The License constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all previous proposals, both oral and written, negotiations, representations, writings and all other communications between the parties.
GENERAL
The License and the relationship between Merchant and NANO shall be governed by the laws of the state of New York without regard to its conflict of law provisions. Merchant and NANO agree to submit to the personal and exclusive jurisdiction of the Superior Court of the State of New York for the County of New York. NANO’s failure to exercise or enforce any right or provision of the License shall not constitute a waiver of such right or provision. If any provision of the License 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 agree that the other provisions of the License remain in full force and effect. Merchant agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the License must be filed within one (1) year after such claim or cause of action arose, or be forever barred. The section titles in the License are for convenience only and have no legal or contractual effect.
Last Updated March 2016

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