STORE EXTENDER PROGRAM AGREEMENT
THANK YOU FOR PARTICIPATING IN THE STORE EXTENDER PROGRAM.
BY ACCEPTING THIS AGREEMENT, YOU ACKNOWLEDGE READING THIS AGREEMENT AND ENTERING INTO A LEGALLY BINDING CONTRACT WITH ELDORADO.
This Store Extender Program Agreement (the “Agreement”) is an Agreement between you (hereinafter referred to as the “Customer”) and Eldorado Trading Company II, Inc., a Colorado corporation (hereinafter referred to as “Eldorado”), regarding your participation in the Store Extender Program (both Customer and Eldorado are collectively referred to herein as the “Parties”).
ARTICLE I
STORE EXTENDER PROGRAM; WEBSITE
.1 STORE EXTENDER PROGRAM. Eldorado offers a Store Extender Program (the “Store Extender Program”) pursuant to which Eldorado provides customers with a platform through which customers can establish and operate a customized online retail website for the sale of products that are purchased and shipped exclusively through Eldorado. Customer desires to participate in the Store Extender Program pursuant to the terms and conditions of this Agreement for the purposes of creating an online retail website (the “Website”). Customer acknowledges and agrees that all products sold through Customer’s Website (the “Products”) shall be purchased and shipped exclusively through Eldorado or other third party vendors engaged by Eldorado.
.2 WEBSITE PLATFORM. Eldorado shall provide Customer with a template for establishing Customer’s Website.
.3 DOMAIN NAME. Customer acknowledges and agrees that it is Customer’s responsibility for procuring a domain name (the “Domain Name”) which Customer will then supply to Eldorado for purposes of establishing Customer’s Website. Customer shall own all right, title and interest in and to the Domain Name and all intellectual property rights related thereto.
.4 WEBSITE CONTENT. Eldorado will be responsible for providing all written text, data and images relating to the Products that will appear on Customer’s Website (collectively referred to as “Eldorado Content”). Customer has the option of uploading additional information, text, and images to Customer’s Website (collectively referred to as “Customer Content”). Customer is solely responsible for uploading the Customer Content directly to the Website. Customer is solely responsible for maintaining a complete and current copy of all Customer Content contained on Customer’s Website at a remote location. Eldorado will not make back-ups of Customer’s Website or Customer Content contained on Customer’s Website and shall have no liability for the loss of any Customer Content contained on Customer’s Website.
.5 HOSTING OF WEBSITE. Customer acknowledges and agrees that Eldorado is not hosting Customer’s Website, nor will Eldorado be providing any of the hosting hardware and software, including but not limited to, computers, networking equipment, or software, (all of which are collectively referred to as the “Hosting Hardware and Software”) necessary for hosting Customer’s Website. Customer acknowledges and agrees that an independent third party will serve as the host of Customer’s Website and will provide all of the requisite Hosting Hardware and Software necessary for providing such hosting services.
ARTICLE II
FEES
2.1 INITIAL SIGN UP FEE. Customer shall pay to Eldorado a non-refundable initial sign up fee for the right to participate in the Store Extender Program of $75 (the “Initial Sign Up Fee”). The Initial Sign Up Fee is due upon Customer’s acceptance of this Agreement.
2.2 MONTHLY SERVICE FEE. Customer shall pay to Eldorado a recurring monthly service fee of $99 (the “Monthly Service Fee”) for fees incurred by Eldorado as a result of Customer’s participation in the Store Extender Program. The Monthly Service Fee may be increased or decreased by Eldorado upon ten (10) days written notice to Customer. The recurring Monthly Service Fee shall be due each month on the date of the month in which the Customer was accepted by Eldorado into the Store Extender Program (the “Acceptance Date”). Pursuant to Section 2.4, Eldorado will charge Customer’s credit card number for payment of the Monthly Service Fee every month on the Acceptance Date.
2.3 CUSTOMER PROFIT. Eldorado will pay Customer the difference between the wholesale and retail price of merchandise sold through Customer’s Website and a four percent (4%) credit card processing fee (collectively referred to as the “Customer Profit”) on the fifteenth (15) day of the month following the month in which the Customer Profit accrues.
2.4 CREDIT CARD PAYMENTS. Customer hereby grants and authorizes Eldorado, at its discretion, the right to charge the credit card number that Customer supplied to Eldorado for the payment of the Initial Sign Up Fee and the Monthly Service Fee, and any other fees due pursuant to the terms of this Agreement.
ARTICLE III
TERM AND TERMINATION
3.1 TERM. The term of the Agreement shall commence on Customer’s acceptance of the Agreement, and will continue in effect for ninety (90) days (the “Term”). The Term shall automatically renew for successive one (1) month periods.
3.2 TERMINATION. Customer may terminate this Agreement for any reason upon thirty (30) days prior written notice to Eldorado. Eldorado may terminate this Agreement for any reason upon five (5) days prior written notice to Customer, or immediately should any of the following occur:
3.2.1 Customer’s credit card number is declined ; or
3.2.2 Customer fails to timely pay a fee due hereunder; or
3.2.3 Customer files for bankruptcy protection; or
3.2.4 Customer commits a material breach of this Agreement; or
3.2.5 Customer violates any foreign, federal, state or local law; or
3.2.6 Customer violates any of the representations or warranties Customer has made herein.
ARTICLE IV
INTELLECTUAL PROPERTY OWNERSHIP; LICENSE
4.1 CUSTOMER OWNERSHIP AND LICENSE. The Parties acknowledge and agree that Customer shall retain and be the sole owner of all right, title, and interest in and to Customer's Domain Name and all Customer Content. The Parties further acknowledge and agree that Eldorado shall retain and be the sole owner of all right, title, and interest in and to the Eldorado Content, and all the intellectual property rights related to the Store Extender Program, including, but not limited to, copyrights, trademarks, patents, and/or trade names (collectively the “Intellectual Property”). Customer does not and shall not at any time in the future, regardless of whether this Agreement has been terminated, assert any right of ownership of the Eldorado Content or the Intellectual Property and shall not represent to any third party that Customer owns any right, title, or interest in or to the Eldorado Content or the Intellectual Property.
4.2 LICENSE. Customer grants to Eldorado and the independent third party hosting Customer’s website, in conjunction with Customer's Website only, a nonexclusive, nontransferable royalty free, worldwide license to reproduce, distribute, publicly display, and digitally perform Customer Content and the tools and work product (such as the HTML, XML, Java applets, CGI scripts, and ActiveX controls) for Customer's Website. Customer grants Eldorado and the independent third party hosting Customer’s website, a nonexclusive, nontransferable, royalty free, worldwide license to use Customer’s Domain Name, trademarks, service marks, trade names, logos, or other commercial designation for purposes of creating content directories or indexes and for marketing and promoting the Website. The licensing rights granted hereunder will automatically terminate with the termination of this Agreement.
ARTICLE V
WARRANTIES; LIMITATION OF LIABILITY; INDEMNIFICATION
5.1 CUSTOMER WARRANTIES. Customer represents and warrants that:
5.1.1 this Agreement, when executed by Customer, will be valid, binding and enforceable with respect to Customer in accordance with its terms;
5.1.2 the execution of this Agreement and/or the performance of Customer’s obligations under this Agreement will not constitute a default, or an event which with the passage of time, the giving of notice, or both, would constitute a default, under any other agreement by which Customer is bound;
5.1.3 Customer is not and shall not be under any disability, restriction, or prohibition related to the execution of this Agreement and the performance of its obligations under this Agreement;
5.1.4 Customer will only participate in the Store Extender Program and utilize the services provided thereunder for lawful purposes;
5.1.5 Customer will not store or provide any Customer Content or link to any material that infringes upon any copyright, trademark rights or patent rights of any third party or violates foreign, federal, state or local law; and
5.1.6 Customer will monitor and supervise all third party activity on Customer’s Website. Any third party activity that that infringes upon any copyright, trademark rights or patent rights of any third party or violates foreign, federal, state or local law must be removed and stopped.
5.2 ELDORADO’S WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH HEREIN, ELDORADO EXPRESSLY DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
5.3 LIMITATION OF LIABILITY. TO THE FULLEST EXTENT AVAILABLE UNDER APPLICABLE LAW, ELDORADO’S ENTIRE AND CUMULATIVE LIABILITY TO customer OR ANY THIRD PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY TORT, SUCH AS NEGLIGENCE, SHALL NOT EXCEED AN AMOUNT EQUAL TO THE FEES PAID TO ELDORADO UNDER THIS AGREEMENT DURING THE ONE mOnth PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM ACCRUED. WITHOUT WAIVER OF THE LIMITATIONS SET FORTH IN THIS AGREEMENT, IN NO EVENT SHALL ELDORADO BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES OR LOST PROFITS, EVEN IF ELDORADO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
5.4 INDEMNITY. Customer will indemnify and hold harmless Eldorado, its officers, directors, employees, and licensees, from and against any and all claims, demands, liabilities, and actions, including the payment of all legal expenses, including reasonable attorneys’ fees and costs, arising out of or connected with any breach by Customer of any of the terms and conditions of this Agreement, including any breach of representation or warranty set forth in this Agreement, and any claim that Customer’s use of the Domain Name or any Customer Content infringes a patent, copyright, trade secret, trademark, or any intellectual property right of any third party. Eldorado shall have the right to control its own defense and engage legal counsel acceptable to Eldorado.
ARTICLE VI
GENERAL PROVISIONS
6.1 NOTICES. Any notices hereunder shall be deemed sufficiently given by one party to another only if in writing and if and when delivered or tendered by personal delivery or as of five (5) business days after deposit in the United States mail in a sealed envelope, registered or certified, with postage prepaid, twenty-four (24) hours after deposit with an overnight courier, or five (5) hours after confirmation of delivery by facsimile, addressed as follows: i) to Eldorado at 2325 W. Midway Blvd., Broomfield, CO 80020; and ii) to Customer at the address set forth in the Store Extender Sign-Up Sheet completed by Customer.
6.2 NO JOINT VENTURE. Nothing in this Agreement shall be construed to create a partnership or joint venture between Eldorado and Customer. No party shall be deemed to be the agent, partner, joint venturer, franchisor, franchisee, or employee of Eldorado.
6.3 AUTHORITY. The party signing on behalf of Customer represents and warrants that he or she is not required to obtain any consent, waiver, or authorization from any other person in connection with the execution, delivery and performance of this Agreement on behalf of Customer.
6.4 REPRESENTATION. The Parties hereto acknowledge that they and each of them have been represented and advised by counsel in entering into this Agreement; and, further, have not been influenced by any representation, promise, or undertaking, by any other party, into entering into this Agreement except as expressly set forth herein.
6.5 FURTHER ASSURANCES. The Parties agree, promptly upon request, to provide each other with documentation reasonably requested by the other to carry out the terms of this Agreement.
6.6 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure to the benefit of the Parties hereto, their respective officers, directors, agents, attorneys, employees, servants, personal representatives, heirs, estates, successors and assigns.
6.7 ENTIRE AGREEMENT AND AMENDMENT. This Agreement supersedes all prior agreements and understandings between the Parties with respect to the subject matter hereof. This Agreement may not be amended except in writing signed by Eldorado and Customer.
6.8 NO WAIVERS. The waiver by any party of, or the failure of either party to take action with respect to any breach of any term, covenant, or condition herein contained shall not be deemed to be a waiver of such term, covenant, or condition, or subsequent breach of the same, or any other term, covenant or condition contained in this Agreement.
6.9 SEVERABILITY. Any provision of this Agreement which is determined by a court of competent jurisdiction to be invalid or otherwise unenforceable shall not invalidate or make unenforceable any other provision of this Agreement.
6.10 GOVERNING LAW. This Agreement shall be construed and enforced in accordance with, and governed by, the laws of the State of Colorado, without regard to its conflict of laws provisions.
6.11 ATTORNEYS FEES. If any legal action, arbitration or other proceeding is brought for the enforcement of this Agreement, or because of any alleged dispute, breach, default or misrepresentation in connection with any of the provisions of this Agreement, the successful or prevailing party shall be entitled to recover reasonable attorneys' fees and other costs incurred therein, in addition to any other relief to which it or they may be entitled.
6.12 SECTION HEADINGS. The section headings used herein are inserted for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement.
