This agreement is made between each merchant member of SHOP.AOL.CA ("Merchant Member" or "you") and AOL Canada Inc. ("AOL" or "AOL Canada"), a wholly-owned subsidiary of America Online, Inc.
Please read this Agreement carefully. You agree that any of your agents, representatives, employees, or any person or entity acting on your behalf with respect to the use of the AOL Canada Merchant Member site, shall be bound by, and shall abide by, these terms and conditions. You further agree that you are bound by these terms and conditions whether you are acting on your own behalf or on behalf of a third party, including another merchant. This Agreement includes by reference AOL's User Guidelines - available at http://canada.aol.com/portal/misc/UserConduct.adp.
PARTICULARS OF SERVICE
All web sites submitted to AOL Canada must meet the following minimum criteria:
Companies, firms and organizations must:
- be a Canadian company or have a physical point of presence in Canada;
- have an Internet presence with their own Internet address;
- be offering merchandising or selling products;
- have a completed and professional looking webpage;
- have an Internet Site that is suitable for family viewing.
- clearly display contact information on their site.
We do not accept:
- Websites that hot-link or simply promote other retail sites on a commission basis;
- Multi-level Marketing or sites of Independent Distributors;
- On-line casinos;
- Websites selling guns and other similar products and services;
- Companies selling and/or promoting alcohol or tobacco products.
These criteria are minimum requirements only, and AOL Canada, in its sole discretion, may consider other criteria before accepting, rejecting or removing a site at any time if there is a breach of these conditions or other criteria reasonably determined by AOL Canada to be relevant.
Site and Product Placement
AOL Canada reserves the right to decide whether, where, and how a site or a product is listed in the AOL Canada network. If AOL Canada accepts Merchant Member's site for inclusion, AOL Canada will consider Merchant Member's preferences, but reserves the right to list Merchant Member's site in any category or sub-category as AOL Canada deems appropriate, in its sole discretion. AOL Canada reserves the right not to include any specific keywords, comments, or annotations with the listing of a site in our network.
AOL Canada also reserves the right, in its sole discretion, to remove Merchant Member's site from our network, move the listing to a different category or subcategory, and change or remove any keywords, comments, or annotations at any time, for any reason, including but not limited to, a change in the nature, business, goods, or services or content available throughout our site.
Access
Merchant Member will enter on the registration form a user name and password. Merchant Member is authorized to access the Merchant Interface solely to manage its accounts and is responsible for maintaining the confidentiality of Merchant Member's user name and password, and is fully responsible for all activities that occur under Merchant Member's user name and password that is associated with Merchant Member's listing. You agree that you will not use the site or any content therein for any other purpose and that you will not disseminate or distribute any of this information. Merchant Member agrees to (a) immediately notify AOL Canada of any unauthorized use of Merchant Member's password or account or any other breach of security, and (b) ensure that Merchant Member exits from Merchant Member's account at the end of each session. AOL Canada cannot and will not be liable for any loss or damage arising from Merchant Member's failure to comply with this Section.
Your right to access your account with AOL Canada Merchant Member Site is personal to you and non-assignable and is subject to any limits established by AOL Canada. You agree that you will not use any automated means, including, without limitation, agents, robots, scripts, or spiders, to access your account with AOL Canada or to monitor or copy AOL Canada Site or the content contained therein except those automated means expressly made available by AOL Canada, if any, or authorized in advance and in writing by AOL Canada. The AOL Canada Merchant Member Site contains or may contain robot exclusion headers and you agree that you will not use any device, software or routine to bypass our robot exclusion headers, or to interfere or attempt to interfere with the proper working of the AOL Canada Merchant Member Site. Without limitation to the foregoing, you further agree that you will not take any action that imposes an unreasonable or disproportionately large load on AOL Canada's infrastructure (as determined by AOL Canada in its sole discretion).
Confirmation of Receipt
AOL Canada will send an e-mail to all companies that are accepted into our database for Service. Only companies applying for Community, Regional and National membership will be advised if their application is rejected.
Once a site is accepted, its business purpose and substance must remain unchanged. Any such significant changes to the site will warrant a new membership and acceptation by AOL Canada. AOL Canada reserves the right to charge a handling fee of $150 CDN for each instance where an accepted site's substance was altered after being accepted and where AOL Canada was not notified in writing of such a change.
Merchant Member Badge
A company may display the AOL Canada Merchant Member Badge on its site only after the company has been approved and qualifies as an AOL Canada Merchant Member. If for any reason AOL Canada terminates SHOP.AOL.CA Merchant Membership the right to display the AOL Canada Merchant Member Badge is also revoked.
TERM
The term of this Agreement is for 12 months commencing on the day that AOL Canada accepts your application to become a SHOP.AOL.CA Merchant Member. After the end of the initial term, this Agreement shall renew for successive one month terms unless otherwise terminated in accordance with the terms herein or unless one month's notice of termination is given to the other party.
TERMINATION OF SERVICE
Merchant Member agrees that AOL Canada, at its sole discretion, may terminate Merchant Member's listing, or use of the SHOP.AOL.CA service (the "
Service"), and remove and discard any content within the Service, for any reason, including, without limitation, if AOL Canada believes that Merchant Member has violated or acted inconsistently with the letter or spirit of this Agreement. AOL Canada may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. Merchant Member agrees that any termination of Merchant Member's access to the Service may take place without prior notice, and acknowledges and agrees that AOL Canada may immediately deactivate or delete Merchant Member's account. Further, Merchant Member agrees that AOL Canada shall not be liable to Merchant Member or any third-party for any termination of Merchant Member's access to the Service.
If Merchant Member wishes to terminate participation in the AOL Canada network, Merchant Member must send a notice to AOL Canada as set forth in the Notices section.
Once AOL Canada receives such notification from Merchant Member, Merchant Member's participation in the AOL Canada network will cease and Merchant Member's listing will be removed immediately. If Merchant Member requests that Merchant Member's listing be removed before the end of a year for which Merchant Member has pre-paid a Community, Regional or National membership fee, Merchant Member agrees that AOL Canada will refund the portion associated with the remainder of the term.
Either party may terminate this Agreement upon written notice to the other party in the event of a material breach of this Agreement by the other party that remains uncured after thirty (30) days written notice thereof; provided that the cure period in connection with your failure to make any payment to AOL required shall be ten (10) days rather than thirty days. AOL may terminate this Agreement immediately following written notice to you if you (i) cease to do business in the normal course, (ii) become or are declared insolvent or bankrupt, (iii) are the subject of any proceeding related to its liquidation or insolvency (whether voluntary or involuntary) which is not dismissed within ninety (90) calendar days or (iv) make an assignment for the benefit of creditors. Additionally, in the event of a change of control of Merchant Member, AOL may terminate this Agreement upon thirty (30) days prior written notice to Merchant Member.
REPRESENTATIONS AND CONVENANTS
Merchant Member represents and warrants that the site Merchant Member is submitting for consideration does not and will not infringe the rights of any third party, including without limitation any intellectual property rights, rights of publicity, rights of personality, rights of privacy, rights to payment of royalties, or any other rights of third parties not specifically identified in this Section. If any third party makes a claim against AOL Canada based on Merchant Member's site, AOL Canada will forward such claim to Merchant Member for resolution.
Further, Merchant Member warrants and represents that all aspects of the site submitted for consideration comply with (1) the AOL User Guidelines and all applicable laws and regulations; (2) all Merchant Member Content shall be accurate; (3) Merchant Member shall be responsible for offering and selling its products and services featured on the AOL network sites, including without limitation, order taking and fulfillment, shipping, transaction processing, invoicing, product returns or replacement, customer service, and payment of any taxes and charges; (4) Merchant Member is duly organized, validly existing and in good standing; (5) Merchant Member is duly qualified and licensed to conduct its business, and has full power and authority to enter into, and perform under, this Agreement; (6) Merchant's performance hereunder and delivery to AOL Network sites of the Merchant Member Content will not violate any agreement; (7) to the extent that pharmaceuticals, drugs, health products or services, medical advice and/or medical devices are offered, sold or promoted on Merchant's Member site, Merchant Member is a licensed health care provider or is otherwise fully authorized to advise, prescribe, distribute or otherwise deal in such products and services in the jurisdictions in which they are offered or sold; and (8) the Merchant Content shall not contain matter that is libelous, obscene, objectionable or illegal.
PAYMENT
Introductory Membership at AOL Canada is free of charge. Community, Regional and National memberships are a fee-based service. All registration applications are subject to a review by a member of the AOL Canada team. Inclusion in the AOL Canada database is not guaranteed. AOL Canada in its sole discretion, reserves the right to accept or reject any application.
Companies applying for a Community, Regional and National memberships will be asked to submit a valid credit card number as part of the registration form. If Merchant Member's site is not accepted into the AOL Canada database Merchant Member's payment will be fully refunded directly to its credit card. Otherwise payments will be charged to your credit card upon approval and once a year thereafter.
You agree to pay AOL Canada all applicable charges to your account in CANADIAN DOLLARS, in accordance with the terms of your credit card arrangement and the terms of the membership plan you selected, including, if any, all applicable taxes, in accordance with billing terms in effect at the time the fee becomes payable. You will also be charged for each Marketing Service you elect according to the prices in effect from time to time and posted on the AOL Canada Merchant Member Site.
AOL Canada accepts the following credit cards: VISA, MASTERCARD and AMEX.
PROPRIETARY RIGHTS.
Merchant understands and agrees that AOL Canada is the exclusive owner of the web site and its related technology, including, without limitation, any and all intellectual property or proprietary rights therein. AOL Canada does not grant to Merchant any right or license, express or implied, in the web site and its related technology.
CONFIDENTIALITY
"
Confidential Information" means any information disclosed to you by AOL Canada or to AOL Canada by you, either directly or indirectly, in writing, orally, by inspection of tangible objects or by data feed or other electronic means, other than information that the disclosing party can establish (i) was publicly known and made generally available in the public domain prior to the time of disclosure to you by AOL Canada or to AOL Canada by you; (ii) becomes publicly known and made generally available after disclosure to you by AOL Canada or to AOL Canada by you other than through action or inaction; (iii) is in the disclosing party's possession, without confidentiality restrictions, at the time of disclosure by AOL Canada or by you as shown by files and records immediately prior to the time of disclosure; or (iv) consists of solely of data aggregated with data which is not Confidential Information, provided that the aggregated data are presented in a manner that makes it impossible to identify the party or parties to whom the data relate. Neither AOL Canada nor you shall at any time (a) disclose, sell, license, transfer or otherwise make available to any person or entity any Confidential Information it receives from the other party; (b) use any Confidential Information received from the other party; or (c) reproduce or otherwise copy any Confidential Information received from the other party, except as necessary in connection with the purpose for which such Confidential Information is disclosed to the other party or as required by applicable law. Each party agrees to take all reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information. All Confidential Information shall at all times remain the personal property of the disclosing party and all documents, electronic media and other tangible items containing or relating to any Confidential Information shall be delivered to the disclosing party immediately upon the disclosing party's request.
DISCLAIMER OF WARRANTIES AND LIABILITIES
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 MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER THIS AGREEMENT NOR ANY DOCUMENTATION FURNISHED UNDER IT IS INTENDED TO EXPRESS OR IMPLY ANY WARRANTY THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, OR ERROR-FREE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES, SO SOME OF THESE EXCLUSIONS MAY NOT APPLY TO MERCHANT MEMBER.
AOL CANADA, AND ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AND AGENTS, SHALL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES OR LEGAL OR EQUITABLE 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 AOL CANADA IS AWARE OF THE RISK OF SUCH DAMAGES, THAT RESULT IN ANY WAY FROM MERCHANT MEMBER'S USE OF OR INABILITY TO USE THIS SERVICE, AOL CANADA'S ACCEPTANCE OR REJECTION OF A SUGGESTED SITE, OR AOL CANADA's CONTINUED LISTING OF A SITE IN THE DIRECTORY.
AOL CANADA'S LIABILITY TO MERCHANT MEMBER SHALL NOT, FOR ANY REASON, EXCEED THE AMOUNT ACTUALLY PAID BY MERCHANT MEMBER TO AOL CANADA FOR SERVICE UNDER THIS AGREEMENT.
INDEMNITY
Merchant Member agrees to indemnify, defend, and hold harmless AOL Canada, and its officers, directors, shareholders, employees, and agents, for all losses and costs related to any claim or demand, including reasonable attorney's fees, made by any third party due to or arising out of Merchant Member's use of or listing in the Service, the acceptance or rejection of Merchant Member's suggested site, any alleged violation of this Agreement, or any alleged violation of any rights of others. AOL Canada reserves the right, at its own expense, to assume the sole and exclusive defense and control of any matter subject to indemnification by Merchant Member, which shall not excuse Merchant Member's indemnity obligations.
FORCE MAJEURE
AOL Canada is not liable for any delay or failure in performance under the Agreement resulting directly or indirectly from STRIKES, SHORTAGES, RIOTS, ACTS OF TERRORISM, INSURRECTION, FIRES, FLOOD, STORM, EXPLOSIONS, EARTHQUAKES, INTERNET OUTAGES, COMPUTER VIRUS, ACTS OF GOD, WAR, GOVERNMENTAL ACTION, OR ANY OTHER CAUSE THAT IS BEYOND AOL CANADA'S REASONABLE CONTROL.
NOTICES
Any notices or communications under the Agreement 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 AOL Canada, such notices shall be addressed to
MerchantHelpCA@aol.com or to AOL Canada, 55 S.Clair Avenue West, 7th Floor, Toronto, Ontario, Canada, M4V 2Y7. If to Merchant Member, such notices shall be addressed to the electronic or mailing address specified in Merchant Member's registration form, or such other address as either party may give the other by notice as provided in this Section. It is the Merchant Member's responsibility to provide an accurate address and to ensure that AOL Canada is notified of any changes to Merchant Member's address as specified in this Section.
ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties with respect to the Service and supersedes all previous or contemporaneous proposals, both oral and written, representations, writings, and all other communications between the parties with respect to such subject matter.
GOVERNING LAW AND ARBITRATION
The Agreement and the relationship between Merchant Member and AOL CANADA are governed by the laws of the Province of Ontario, Canada.
DATA PRIVACY & PROTECTION
AOL Canada maintains information about Merchant Member on AOL Canada servers, including but not limited to Merchant Member's registration information, and Merchant Member accepts such information retention. AOL Canada will not disclose administrative contact information to a third party.
AOL Canada may contact Merchant Member from time to time to advising them about what's new at AOL Canada, new opportunities AOL Canada may offer, or other pertinent information.