Welcome to Magellan Commerce. By activating or using our Service, you agree to accept these Terms and Conditions ("T&Cs"). They affect your legal rights by, among other things, requiring mandatory arbitration of disputes and charging an early cancellation fee. If you do not agree to these T&Cs, do not activate or use the Service.
These T&Cs and your Service Agreement (if any) constitute your agreement with E-Harbor, Inc. DBA Magellan Commerce (hereinafter referred to as MC) and its affiliates (together, "MC", "we", or "us") for any services or products that you purchase or obtain from us or use with the Service ("Products"), and any applications or services that you purchase, obtain, or use that are provided through or with the Service, or billed to your MC account ("Third-Party Services") (MC Services and Third-Party Service together, the "Service"). These T&Cs supersede all earlier versions. Rate plan and feature information for the Services you select or use are available to you when you purchase the Service on our Web site, and are a part of our agreement and are incorporated by reference into these T&Cs (the T&Cs, your Service Agreement, and the rate plan information together are referred to as the "Agreement"). You acknowledge that no employee or other agent is authorized to make any representation or warranty (other than as described in the Agreement or our current materials) with respect to the Agreement, Service, Products, or rate plans and offerings, or to waive or modify any terms or provisions of the Agreement.
1. Acceptance of Agreement. You accept this Agreement by: (a) activating or using the Service; (b) signing, orally or electronically accepting the Agreement; or (c) are deemed to accept the Agreement, whichever occurs first. You must activate the website within 30 days after purchase. If you don't active your website within 30 days, you are deemed to accept the Agreement, and you agree to pay Service charges for the Term according to your plan.
2. Term; Cancellation of Service. If you select a Service plan with a fixed term longer than 1 month, then this Agreement will continue for the full number of months selected ("Term"). For any monthly term, you may cancel Service for any reason by providing us with notice (we may require up to 10 days), which cancellation will take effect on or before the beginning of the next billing cycle after the notice period. All cancellation requests must be either mailed to us at Magellan Commerce RE: Cancellation Request, 1323 Research Way, Bldg K, Suite 1100, Orem, Utah, 84097 or emailed to support@magellancommerce.com. We may suspend or terminate your Service for any reason upon 3 days notice (unless a longer period is required by law). If you breach the Agreement, we may suspend or terminate your Service immediately without prior notice (except to the extent prohibited by law) and do the same for any other service you receive under any other agreement with us. You breach the Agreement by: (a) failing to pay any sum when due; (b) failing to comply with any provision in this Agreement or any other agreement between us; (c) becoming the subject of any proceedings under the Bankruptcy Code; (d) becoming insolvent; or (e) your financial institution dishonoring or returning for insufficient funds your check or credit card. In the event of cancellation, you are responsible for payment of all charges (including any cancellation fee) due to us under the Agreement, which charges will be immediately due and payable. If we reinstate Service to you after discontinuing Service, you may be subject to pay reactivation charges or deposits.
3. Use of Service. You may not use, or attempt to use, the Service or the website for any fraudulent, unlawful, improper, harassing, excessive, harmful, or abusive purpose ("Improper Uses"), or so as to adversely or negatively impact our customers, employees, business, ability to provide quality service, reputation, or network, or any other person. We may determine on a case-by-case basis what constitutes Improper Uses. If we suspect a violation of this provision, we may: (i) begin legal action; (ii) suspend or terminate Service immediately and without prior notice; (iii) suspend or terminate service provided to you under any other agreement with us; and (iv) cooperate with law enforcement in prosecuting offenders. You agree to cooperate with us in investigating suspected violations. We may terminate your Service or change your rate plan at any time, with notice, if we determine, in our sole discretion, that your use of the Service is excessive, unusually burdensome, or unprofitable to us. MC websites are database driven using proprietary code and must be hosted by MC servers. Upon cancellation of Service, you cannot transfer the hosting of your MC website. MC may include a domain name as a part of your Service. Domain names purchased by us are owned and managed by MC, however MC can release ownership of a domain name to you; a fee of up to $199 may apply. If you request to use a domain name owned by you, you are solely responsible for the renewal and maintenance of that domain name. MC is in no way responsible for any service interruption due to a problem with a domain name owned and maintained by you.
4. Billing and Charges. You will be charged for Service and other features on a monthly and/or annual billing cycle basis and we may change your monthly billing cycle at any time. You agree to timely pay in full each month all charges and fees associated with the Service, including without limit, monthly recurring Service charges, and you remain liable for payment even if a third party agrees to pay your charges. A setup fee will be charged by MC unless otherwise stated. MC will provide ongoing service, and automatically bill your credit card per your selected Service billing cycle on an ongoing basis until you provide a written notice of cancellation. The Service will then terminate on the last day of the billing cycle that you selected. You understand that service and billing begin on the day you subscribe to the Service unless otherwise stated and your credit card will be billed the day your Service begins and such credit card billing will be automatically continued and renewed in monthly or annual billing cycles as designated thereafter until the end of the period in which written notice of cancellation is received. You understand and agree that you are responsible for all charges incurred relating to the service until the last day of the current billing cycle in which the notice of cancellation is received by MC. All payments to MC are non-refundable. This includes any applicable setup fees and subsequent charges regardless of usage.
5. Incorrect Charges. If you believe your bill contains an incorrect charge, you have 60 days from the date of the first bill that contains the charge to notify us or you waive any right to dispute the charge. To notify us, please contact our Support Department at support@magellancommerce.com or 1-800-338-3712. We may require you to describe the dispute in writing. If your financial institution dishonors or returns for insufficient funds your check or credit card, it is a breach of this Agreement and we may (a) charge you a fee of $20.00 or such amount as may be permitted by law, (b) stop accepting checks, credit card or other similar payment methods from you, and (c) immediately suspend or cancel your Service. We may use a collection agency and charge you for their fees billed to us for trying to collect what you owe us. Late Fees. You agree to pay 1.5% or $5.00 per month (or portion of a month), whichever is greater, on any past due balances until paid, subject to the highest amount permitted by law. Except to the extent prohibited by law, this late fee may be charged regardless of any disputes you may have raised regarding your invoiced charges.
6. Limitation of Liability. You understand that MC uses our best ability to provide service in a timely, accurate manner, but you also understand and agree not to hold MC liable for any unintentional errors, misrepresentations, or inaccurate information. It is your responsibility to regularly check your email for status updates and other pertinent information regarding your Service from MC. Failure to check these emails and/or act upon updates and requests by MC can and will hinder our ability to properly render Service. Failure to comply fully negates MC from any and all responsibility, promised, assumed or otherwise, to fulfill Services for you. You are responsible to ensure you are receiving all email correspondences from MC. If spam filters are in place and may be blocking our emails, you must make an alternate means to receive this communication (i.e. alternate email, removing spam filters, adding our domain @magellancommerce.com to a safe list etc...). MC will not be held responsible for any lack of communication due to email problems on your side. Further, you understand that because of matters outside of MC’s reasonable control including, without limitation, labor disturbances; acts of God (including without limitation severe weather); failure of a communications carrier to provide lines or service; governmental regulations or interference; accidents; fires; explosions; or from any other similar or dissimilar cause beyond the reasonable control of MC ("Force Majeure"). MC shall not be liable to any person, parties, or entity for any claims, causes of action, loss or damage in any way arising out of, or related to, such Force Majeure or suspension of such party's obligations hereunder. You shall indemnify, hold harmless and defend MC and its respective employees, officers and directors from and against any and all damages, losses, liabilities, actions, proceedings (whether legal or administrative), demands and expenses (including but not limited to reasonable attorneys fees) threatened, asserted or filed by a third party against MC, relating to your account and/or your relations with MC.
7. Mandatory Arbitration of Disputes. This Agreement constitutes the entire understanding between the parties hereto and supersedes all negotiations, representations, prior discussions and preliminary agreements between the parties hereto. This Agreement shall be construed as though all parties had drafted it. This Agreement may not be modified except by a written instrument signed by me and by MC officers or its signatory to this Agreement. All warranties, representations, indemnities, covenants and other agreements of the parties hereto shall survive the execution, delivery and termination of this Agreement. This Agreement shall inure to and bind the successors and assigns of the respective parties hereto. Should any terms of this Agreement become or be declared to be invalid or void by any court, such determination shall have no effect on the other terms of this Agreement, which shall remain in full force and effect. Any dispute, claim or controversy concerning duties under this Agreement shall first be mediated in Utah County, Utah. In the event that mediation is unsuccessful, the case shall be directed to binding arbitration administered by, and pursuant to the rules of, the American Arbitration Association ("AAA") and shall take place in Utah County, Utah. Each party shall bear the expense of his own attorney's fees and its prosecution of its claims/defenses. The parties shall share equally all other costs and expenses associated with such arbitration. Failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent action in the event of future breaches.
8. Privacy. MC reserves the right to collect and use data generated through the use of the site(s). However, MC will never allow your data to be used by your competitors. If you feel that there has been a lacuna in this policy, please contact MC immediately and we will take prompt action to insure either that no problem exists, or that it is promptly corrected.
Oct 2008
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