User Agreement

This User Agreement ("Agreement") is an agreement between FinestShops Inc. ("Finestshops") and the party set forth in the related order form incorporated herein by reference (together with any subsequent order forms submitted by Customer, the "Order Form"), and applies to the purchase of all services (collectively, the "Services") ordered by Customer. Such party is referred to in this Agreement as "Customer". 

PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING ON THE BUTTON ON THE ORDER FORM, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE IN THIS AGREEMENT, INCLUDING FINESTSHOPS'S ACCEPTABLE USE POLICY. YOUR USE OF THE SERVICES CONSTITUTES ACCEPTANCE OF THIS AGREEMENT.

FinestShops reserves the right to reject this Agreement for any reason or no reason, prior to acceptance thereof by FinestShops. Activation of the Services shall indicate FinestShops's acceptance of this Agreement. Subject to the terms and conditions of this Agreement, FinestShops will provide to Customer the Services selected by Customer set forth on the Order Form.

1. Usage Policy.
Under this Agreement, Customer shall comply with FinestShops's current "Acceptable Use Policy" (AUP), as amended, modified or updated from time to time by FinestShops, which currently can be viewed at http://www.finestshops.com/aup.php, and which is incorporated in this Agreement by reference. Customer hereby acknowledges that it has reviewed the AUP and that the terms of the AUP are incorporated herein by reference. In the event of any inconsistencies between this Agreement and the AUP, the terms of the AUP shall govern. FinestShops does not intend to systematically monitor the content which is submitted to, stored on or distributed or disseminated by Customer via the Service (the "Customer Content"). Customer Content includes content of Customer's customers and/or users of Customer's website. Accordingly, under this Agreement, you will be responsible for your customers content and activities on your website. Notwithstanding anything to the contrary contained in this Agreement, FinestShops may immediately take corrective action, including removal of all or a portion of the Customer Content, disconnection or discontinuance of any and all Services, or termination of this Agreement in the event of notice of possible violation by Customer of the AUP. In the event FinestShops takes corrective action due to a violation of the AUP, FinestShops shall not refund to Customer any fees paid in advance of such corrective action. Customer hereby agrees that FinestShops shall have no liability to Customer or any of Customer's customers due to any corrective action that FinestShops may take (including, without limitation, disconnection of Services).

FinestShops reserves the right to suspend or cancel a customer's access to any or all services provided by FinestShops when FinestShops decides that the account has been inappropriately used.

If you are unsure whether any contemplated use or action is permitted, please send an e-mail to: support@FinestShops and we will assist you.

1.a. Software license agreement
Before using the store you must agree to the Software Terms and Conditions of Use which is located here: http://www.finestshops.com/software_license_agreement.html

2. Amendment.
FinestShops may amend, modify or update this Agreement or the AUP at any time in its sole discretion, and Customer shall be bound by any such amendment, modification or update. FinestShops may, but is under no obligation to, provide notice of any amendment, modification or update of this Agreement or the AUP. Any modification is effective on the earlier of two days after posting on FinestShops's website or two days after the sending of a notice by FinestShops to Customer by e-mail or conventional mail. If any material modification to this Agreement or the AUP is unacceptable to you, you may terminate your subscription as provided in Section 3. However, if you do not terminate the Agreement, or if you continue to use the Services following effectiveness of the modification, your continued use will mean that you have accepted that modification. FinestShops reserves the right to amend its service offerings and add, delete, suspend or modify the terms and conditions of the Services, at any time and from time to time, and to determine whether and when any such changes apply to both existing and future customers.

3. Term; Termination; Cancellation Policy.
The initial term of this Agreement shall be as set forth in the Order Form (the "Initial Term"). The Initial Term shall begin upon commencement of the Services to Customer. After the Initial Term, this Agreement shall automatically renew for successive terms of equal length as the Initial Term, unless terminated or cancelled by either party as provided in this section. The Initial Term and all successive renewal periods shall be referred to, collectively, as the "Term".

This Agreement may be terminated (i) by either party by giving the other party 5 days prior written notice, (ii) by FinestShops, at any time, without notice, in the event of nonpayment by Customer, and(iii) by FinestShops, at any time, without notice, if, in FinestShops's judgment, Customer is in violation of any term or condition of the AUP or Customer's use of the Service disrupts or, in FinestShops's judgment, could disrupt, FinestShops's business operations.

Customer may cancel this Agreement prior to the end of the Term through email request to support@FinestShops.com at least 5 days before account renewal date. This must be done by the credit card holder. The account will be cancelled at the end of the current billing period, unless a later date of cancellation is specified. If Customer cancels this Agreement, (i) Customer shall be obligated to pay all fees and charges accrued prior to the effectiveness of such cancellation, (ii) FinestShops shall refund to you all pre-paid fees for hosting services for the full months remaining after effectiveness of cancellation (i.e., no partial month fees or prorated fees shall be refunded), less any setup fees and any discount applied for prepayment, (iii) Account Setup Fees, if any, are not refundable, (iv) Payments for any customizations, add-ons, templates and other extra services and products are not refundable, (v) if new Customer cancels account within first 30 days, FinestShops shall refund the first month hosting fee; the total setup fee (even if it was waived during the signup process) will be held from any refunds due. This also applies to any free domain specials, if account is canceled within 30 days, the domain ownership fee of $30.00 will be held from any refunds due. 30 days refund offer applies to new customers only who did not previously have any stores or accounts with FinestShops.

FinestShops may cancel this Agreement prior to the end of the Term through email notification to Customer. If FinestShops cancels this Agreement prior to the end of the Term, (i) all fees paid in advance of cancellation will be pro-rated and paid by FinestShops if FinestShops institutes its right of cancellation, (ii) Refunds will be issued within 2 billing cycles on the same credit card used at signup, (iii) and Customer shall be obligated to pay all fees and charges accrued prior to the effectiveness of such cancellation. If cancellation is caused by Customers violation of AUP, then no refund will be disbursed. 

4. Billing and Payment.
All fees for the Services shall be in accordance with FinestShops's fee schedule then in effect, the terms of which are incorporated herein by reference, and shall be due at the times provided therein. FinestShops may, with 30 days notice to Customer, amend the Services and/or the rates and fees it charges for the Services. In the event that any amount due FinestShops remains unpaid five (5) days after such payment is due, FinestShops, in its sole discretion, may immediately terminate this Agreement, and/or withhold or suspend Services. There will be a $50.00 charge to reinstate accounts that have been suspended or terminated. All taxes, fees and governmental charges relating to the Services provided hereunder (other than income taxes of FinestShops) shall be paid by Customer.

{*} Accounts will be automatically billed, on a monthly basis, to the card number on file unless notified otherwise.

{*} FinestShops may run a transaction at least 5 days in advance to anticipate a declined credit card. This will give the customer at least 4 days from the due date to run the transaction. If the transaction is run at least 3 times, and the client fails to update the credit card, the account will be suspended and/or terminated without further notice. 

{*} In some cases if a problem arises with the account, the user will be notified via e-mail.

{*} All accounts are billed monthly on the anniversary date of the account being setup.

{*} All accounts are set up on a prepay basis. Setup fees, if any, are charged for all new accounts and major account changes and are non-refundable. 

{*} Any cancellations or modifications in services included in a Special invalidates the Special price. 

{*} All services including custom development and imports are on a prepay basis and are non-refundable.

{*} Credit card orders that are on a 'monthly' basis will be charged automatically to the card number on file. If for any reason the card does not clear with the bank on three attempts, the account is subject to suspension. Any account not brought current within a week of e-mail notice or exceeding this time frame in any way is subject to suspension. If a bank 'charge back' is processed against our account, the account in question will be terminated immediately.

{*} Service fees do accrue during any period of suspension.

{*} No bills or invoices will be sent by regular mail. 

{*} The customer is responsible to keep the credit card on file up to date, which includes the expiration date, and sufficient funds to cover account fees. All credit cards declined for any reason and account suspended are charged a $50 reactivation fee to continue hosting with FinestShops. FinestShops accepts Visa and MasterCard cards.

{*} E-Mail notification may at FinestShops's discretion be sent 5 days prior to payment due date. All credit card payments will be billed on the date due, the email notification is solely a courtesy email.

{*} In the event the credit card does not clear with the bank, the customer will be notified by e-mail. Past due accounts that are not brought current within 5 days of the e-mail notice are subject to suspension and possible account termination.

{*} At no time will FinestShops allow a website to be operational past the last day of the prepaid date of services. If user fails to update the account information, FinestShops will suspend the account without further notice and consider the account closed.

5. IP Address Ownership.
If FinestShops assigns Customer an Internet Protocol address for Customer's use, the right to use that Internet Protocol address shall belong only to FinestShops, and Customer shall have no right to use that Internet Protocol address except as permitted by FinestShops in its sole discretion in connection with the Services, during the term of this Agreement. FinestShops shall maintain and control ownership of all Internet Protocol numbers and addresses that may be assigned to Customer by FinestShops, and FinestShops reserves the right to change or remove any and all such Internet Protocol numbers and addresses, in its sole and absolute discretion.

6. Caching.
Customer expressly (i) grants to FinestShops a license to cache the entirety of the Customer Content and Customer's web site, including content supplied by third parties, hosted by FinestShops under this Agreement and (ii) agrees that such caching is not an infringement of any of Customer's intellectual property rights or any third party's intellectual property rights.

7. High Resource Usage.
Any site that is deemed as impairing the performance of our servers either by high disk utilization, high bandwidth usage, CGI ABUSE, or high CPU usage will be entered into our "High Resource Customer" program. High Resource sites are sites that use an excessive amount of system resources such as bandwidth, storage or CPU utilization. It is FinestShops's sole discretion to decide which sites are "High Resource" sites. The FinestShops Gold plan includes (i) bandwidth limited to 15 Gigabytes per month of transfer, (ii) archive storage limited to 1000 MB per website, and (iii) email, FTP, HTTP, Database and archive storage are all included against clients' total usage and storage. Customers with sites that have been deemed as a "High Resource" site will be subject to corrective action by FinestShops including, assessment of additional charges, immediate disconnection or discontinuance of any and all Service, or termination of this Agreement, which actions may be taken in FinestShops's sole and absolute discretion. If FinestShops takes any corrective action under this section, Customer shall not be entitled to a refund of any fees paid in advance prior to such action. 

"What does FinestShops consider "CGI ABUSE?"
{*}Any site whose CGI programs are using excessive amounts of system resources. "Excessive amounts" is defined as any amount that results in substantial degradation of server performance. FinestShops is the sole determinant of what constitutes degraded server performance.

8. Traffic and Storage Policies.
FinestShops allocates a set amount of storage and bandwidth per customer. Customer agrees that bandwidth and disk usage shall not exceed the number of megabytes per month for the Services ordered by Customer on the Order Form (the "Agreed Usage"). FinestShops will monitor Customer's bandwidth and disk usage. FinestShops shall have the right to take corrective action if Customer's bandwidth or disk usage exceeds the Agreed Usage. Such corrective action may include the assessment of additional charges, disconnection or discontinuance of any and all Services, or termination of this Agreement, which actions may be taken in FinestShops's sole and absolute discretion. If FinestShops takes any corrective action under this section, Customer shall not be entitled to a refund of any fees paid in advance prior to such action.

9. E-Mail Policy.
FinestShops strictly prohibits harassment, whether through language, frequency, or size of messages. Forging of header information is not permitted. FinestShops does not allow unsolicited mail (UCE). This includes "Spamming" and "Bulk Mail" sent to persons who have otherwise not requested to receive such mail. The reason for this is that not only is it generally frowned upon by the Internet community, but it also demands extra bandwidth to handle the effects of such mail. Websites found to be sending UCE will be terminated without notice. Read our Spamming Policy for a more detailed description of our e-mail policy.

10. Property Rights.
FinestShops Inc. owns all right, title and interest in and to the Services and FinestShops Inc.'s and FinestShops's trade names, trademarks, service marks, inventions, copyrights, trade secrets, patents, know-how and other intellectual property rights relating to the design, function, marketing, promotion, sale and provision of the Services and the related hardware, software and systems ("Marks"). Noting in this Agreement constitutes a license to Customer to use or resell the Marks.

11. Code and Templates Customizations.
FinestShops Inc. owns all templates, graphics and codes developed for customer's store or website by FinestShops Inc. and reserves the rights to use parts or complete code of customizations and modifications in other projects or to sell them as add-on for less than customer paid during initial development.

12. Customer Web Site; E-Commerce; Customer Warranties.
Customer shall be solely responsible for all products and services offered by Customer or appearing online and for all contents and materials appearing online or on Customer's products, including, without limitation (i) the accuracy and appropriateness of the Customer Content and content and material appearing in its store or on its products, (ii) ensuring that the Customer Content and content and materials appearing in its store or on its products do not violate or infringe upon the rights of any person, and (iii) ensuring that the Customer Content and the content and materials appearing in its store or on its products are not defamatory or otherwise illegal. Customer shall be solely responsible for accepting, processing and filling customer orders and for handling customer inquiries or complaints. Customer shall be solely responsible for the payment or satisfaction of any and all taxes associated with its web site and online store.

Customer shall be responsible for the security and confidentiality of any customer information (including, without limitation, credit card numbers) that Customer may receive as a result of its web site or online store.

Customer represents and warrants to FinestShops that Customer owns or has the right to use the Customer Content and material contained therein, including all text, graphics, sound, music, video, programming, scripts and applets, and the use, reproduction, distribution and transmission of the Customer Content and any information and materials contained therein does not, and will not, (i) infringe or misappropriate any copyright, patent, trademark, trade secret or any other proprietary right of a third party, (ii) violate any criminal laws or (iii) constitute false advertising, unfair competition, defamation, an invasion of privacy, violate a right of publicity or violate any other law or regulation. Customer grants FinestShops the right to reproduce, copy, use and distribute all and any portion of the Customer Content to the extent needed to provide and operate the Services.

13. Disclaimer of Warranty.
Customer agrees to use all Services and any information obtained through or from FinestShops, at Customer's own risk. Customer acknowledges and agrees that FinestShops exercises no control over, and accepts no responsibility for, the content of the information passing through FinestShops's and it's partners' host computers, network hubs and points of presence or the Internet. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN AS IS, AS AVAILABLE BASIS. NONE OF FINESTSHOPS, ITS PARENT, SUBSIDIARY OR AFFILIATED CORPORATIONS, OR ANY OF THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, AFFILIATES, AGENTS, SUPPLIERS, THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS, LICENSORS OR THE LIKE (EACH, AN "FINESTSHOPS PERSON") MAKE ANY WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, FOR THE SERVICES OR ANY EQUIPMENT FINESTSHOPS PROVIDES. NO FINESTSHOPS PERSON MAKES ANY WARRANTIES THAT THE SERVICES WILL NOT BE INTERRUPTED OR ERROR FREE; NOR DO ANY OF THEM MAKE ANY WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICES OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH THE SERVICES. FINESTSHOPS IS NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM CUSTOMER OR STORED BY CUSTOMER OR ANY OF CUSTOMER'S CUSTOMERS VIA THE SERVICES PROVIDED BY FINESTSHOPS. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY ANY FINESTSHOPS PERSON, WILL CREATE A WARRANTY; NOR MAY YOU RELY ON ANY SUCH INFORMATION OR ADVICE. The terms of this section shall survive any termination of this Agreement.

14. Indemnification.
Customer agrees to indemnify, defend and hold harmless FinestShops and its parent, subsidiary and affiliated companies, and each of their respective officers, directors, employees, shareholders and agents (each an "indemnified party" and, collectively, "indemnified parties") from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable attorney's fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of or relating to (i) Customer's use of the Services, (ii) any violation by Customer of the Usage Policy, (iii) any breach of any representation, warranty or covenant of Customer contained in this Agreement or (iv) any acts or omissions of Customer. The terms of this section shall survive any termination of this Agreement.

15. Limitation of Liability.
Customer agrees that no FinestShops Person, under any circumstances, shall be held responsible or liable for situations where the Services are accessed by third parties through illegal or illicit means, including situations where such data is accessed through the exploitation of security gaps, weaknesses or flaws (whether known or unknown to FinestShops at the time) which may exist in the Services or FinestShops's equipment and software used to provide the Services.

Under no circumstances, including negligence, shall any FinestShops Person be liable for any indirect, incidental, special, consequential or punitive damages, or loss of profits, revenue, data or use by Customer, any of its customers, any Reseller Customer or any other third party, whether in an action in contract or tort or strict liability or other legal theory, even if FinestShops has been advised of the possibility of such damages. No FinestShops Person shall be liable to Customer, any of its customers, any Reseller Customer or any other third party, for any loss or damages that result or are alleged to have resulted from the use of or inability to use the Services, or that results from mistakes, omissions, interruptions, deletion of files, loss of data, errors, viruses, defects, delays in operations, or transmission or any failure of performance, whether or not limited to acts of God, communications failure, theft, destruction or unauthorized access to FinestShops's records, programs, equipment or services.

Notwithstanding anything to the contrary in this Agreement, FinestShops's maximum liability under this Agreement for all damages, losses, costs and causes of actions from any and all claims (whether in contract, tort, including negligence, quasi-contract, statutory or otherwise) shall not exceed the actual dollar amount paid by Customer for the Services which gave rise to such damages, losses and causes of actions during the 1-month period prior to the date the damage or loss occurred or the cause of action arose.

Customer understands, acknowledges and agrees that if FinestShops takes any corrective action under this Agreement because of an action of Customer or one if its customer or a Reseller Customer, that corrective action may adversely affect other customers of Customer, and Customer agrees that FinestShops shall have no liability to Customer, any of its customers or any Reseller Customer due to such corrective action by FinestShops.

This limitation of liability reflects an informed, voluntary allocation between the parties of the risks (known and unknown) that may exist in connection with this Agreement. The terms of this section shall survive any termination of this Agreement.

16. Force Majeure.
FinestShops shall not be liable for failure or delay in performing it obligations hereunder if such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of, interruption or delay in telecommunications or third party services (including DNS propagation), failure of third party software or hardware or inability to obtain raw materials, supplies or power used in or equipment needed for provision of the Services.

17. Governing Law; Jurisdiction; Arbitration.
This Agreement shall be governed in all respects by Ontario law without regard to the conflict of law provisions thereof. Both parties submit to personal jurisdiction in Ontario. Any controversy or claim arising out of, relating to or in connection with this Agreement, or the breach thereof, shall be subject to arbitration administered by the Canadian Arbitration Association ("CAA") in accordance with its then existing Commercial Arbitration Rules (collectively, the "CAA Rules") and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The place of arbitration shall be Toronto, Ontario, or any other place selected by mutual agreement of the parties. An award rendered in connection with an arbitration pursuant to this Section shall be final and binding upon the parties and the parties agree and consent that the arbitral award shall be conclusive proof of the validity of the determinations of the arbitrations set forth in the award, and any judgment upon such an award may be entered and enforced in any court of competent jurisdiction. The parties agree that the award of the arbitral tribunal will be the sole and exclusive remedy between them regarding any and all claims and counterclaims between them with respect to the subject matter of the arbitrated dispute. The parties hereby waive all in personam jurisdictional defenses in connection with any arbitration hereunder or the enforcement of an order or award rendered pursuant thereto. In any legal action, the prevailing party will be entitled to recover all legal expenses incurred in connection with the action, including but not limited to its costs, both taxable and non-taxable, and reasonable attorney's fees. The terms of this section shall survive any termination of this Agreement.

18. Assignment.
Customer shall not have the right to assign this Agreement without the prior written consent of FinestShops. This Agreement shall be binding upon and inure to the benefit of Customer and FinestShops and their successors and permitted assigns.

19. Entire Agreement; Severability.
This Agreement, together with the Order Form and any other documents or agreements specifically identified in this Agreement, represents the entire agreement between the parties, and supercedes all previous representations, understandings or agreements. If any provision of this Agreement shall be held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this Agreement shall remain in full force and effect.

Customer hereby represents that he, she or it is either, an individual entering this Agreement for his or her personal use and is over 18 years of age, or a corporation, limited partnership or other legal entity, duly organized, validly existing and in good standing under the laws of the state of its organization and the person acting on behalf of Customer is duly authorized to accept, execute and deliver this Agreement on behalf of Customer.