A. CompareBay.com hosts interactive online stores created using CompareBay SellSite, provides merchants access to its software to help merchants create and maintain online storefronts for the marketing and promotion of goods and services.
B. Merchant desires to use the software provided by CompareBay.com and create, or have created, an online store and/or portal.
C. Subject to the terms and conditions of this CompareBay.com Merchant Service Agreement and any amendments thereto and any operating rules or policies (collectively, the "Agreement"), Merchant is willing to purchase and CompareBay.com is willing to provide such Online Stores Services.

1. ACCEPTANCE OF AGREEMENT MERCHANT SHALL INDICATE ITS ACCEPTANCE OF, AND AGREEMENT TO BE BOUND TO, THE TERMS AND CONDITIONS OF THIS AGREEMENT BY COMPLETING THE ACCOUNT REGISTRATION PROCESS AND CLICKING THE "I ACCEPT" BUTTON BELOW.

2. MERCHANT REPRESENTATIONS AND WARRANTIES Merchant agrees to provide and maintain complete, current, and accurate information about Merchant. If an individual, Merchant represents and warrants that Merchant is at least 18 years of age.

3. MERCHANT'S OBLIGATIONS
3.1 Merchant shall be responsible for (1) all goods and services offered, (2) all materials used or displayed, and (3) all acts or omissions that occur at Merchant's storefront or in connection with Merchant's account or password. CompareBay.com reserves the right to require certain stores to meet additional conditions as determined by CompareBay.com at its sole and complete discretion.
3.2 Merchant shall display Merchant's company name, address, telephone number, fax number and e-mail address in Merchant's contact information. Merchant shall update such information as necessary so that such information is always current, complete and accurate.
3.3 Merchant represents and warrants that it has full power and authority under all relevant laws and regulations to (1) offer and sell the goods and services offered, (2) use and display the materials used or displayed, and (3) provide for credit card payment and delivery of goods or services as specified at the storefront.
3.4 Merchant represents and warrants that it will not engage in any activities that (1) constitute or encourage a violation of any applicable law or regulation, (2) infringe any third party rights, (3) constitute the transmission of unsolicited bulk e-mail ("spam"), or (4) that CompareBay.com, at its sole and complete discretion, considers to be unethical or inappropriate.

4. COMPAREBAY.COM'S RIGHTS
4.1 Nothing in this agreement obligates CompareBay.com to list, link to, accept or otherwise host any online store or portal on any of CompareBay.com's web sites.
4.2 CompareBay.com reserves the right to terminate Merchant's account and refuse any and all current or future use of the Service if any information provided by Merchant is not current, incomplete, inaccurate, or misleading.
4.3 CompareBay.com at its sole and complete discretion, may refuse to host or continue to host any storefront which CompareBay.com believes (1) offers for sale illegal, obscene, vulgar, offensive, dangerous, or inappropriate, as defined by CompareBay.com at its sole and complete discretion, goods or services, (2) uses or displays materials that are illegal, obscene, vulgar, offensive, dangerous, or inappropriate, as defined by CompareBay.com at its sole and complete discretion, (3) has been substantially altered from the time of its initial acceptance, (4) has received customer complaints for failing to be reasonably accessible or timely fulfill customer orders, or (5) has become the subject of a government complaint or investigation.

5. PROPRIETARY RIGHTS
5.1 CompareBay.com hereby grants Merchant a non-exclusive, non-transferable license to use the software in object code form only, on a server controlled by CompareBay.com, for the sole purpose of creating and maintaining storefronts on such server. Merchant shall not copy the software or to use it on computers other than a server controlled by CompareBay.com. Merchant shall not use web pages or parts of web pages generated by means of the software on any server not controlled by CompareBay.com. Merchant acknowledges and agrees that the software is intended for access and use by means of web browsing software, and that CompareBay.com does not commit to support any particular browsing platform. CompareBay.com reserves the right at any time, without notice of any type to Merchant, to revise and modify the software, release subsequent versions of the software, and to alter any and all features, specifications, capabilities, functions, and other characteristics of the software. Merchant's sole remedy is to terminate the agreement pursuant to Section 7.3 if any change to the software materially alters Merchant's ability to conduct business.
5.2 Merchant acknowledges and agrees that content available from CompareBay.com is protected by copyright, trademark, patent, or other proprietary rights and laws, and may not be used in any manner other than as specified in Section 5.1 above.
5.3 Merchant hereby grants to CompareBay.com, and its successors and assigns, a non-exclusive, worldwide, royalty-free, perpetual, non-revocable license under Merchant's copyrights or other intellectual property rights, if any, in such material to use, distribute, display, reproduce, and create derivative works from such material in any and all media, for purposes of promoting CompareBay.com, CompareBay SellSite or Merchant's storefront. Merchant also grants CompareBay.com the right to maintain such content on CompareBay.com's servers during the term of the Agreement and to authorize endusers to download and print any portion of such material for their own personal use.

6. FEES CompareBay.com agrees to waive monthly storefront fees for a period of at least sixty (60) days beginning on the date of the acceptance of this Agreement by Merchant. Merchant shall pay to CompareBay.com revenue derived from banner advertising on its storefront. CompareBay.com may also, upon 30 days prior notice to Merchant, alter its fee schedules and terms of the Agreement.

7. TERM AND TERMINATION
7.1 Term. The term of the Agreement shall begin on the date CompareBay.com lists the storefront on CompareBay.com and continue for sixty (60) days. The term shall automatically renew for successive sixty (60) day terms at renewal rates applicable at the time, unless notice of non-renewal is provided in accordance with Section 7.2, below; provided, however, that to qualify for each renewal Merchant must at the time of renewal be in substantial compliance with the material terms and conditions of the Agreement. CompareBay.com shall have the right, but not the obligation, to review any storefront for compliance with the Agreement as part of the renewal process, or at any time.
7.2 Non-Renewal. Either party may give notice of nonrenewal, without cause, at least thirty (30) days prior to the end of the term then in effect and in the manner described in Section 14 regarding notice.
7.3 Termination. Either party may terminate the Agreement on thirty (30) days notice if the other party has materially breached or is otherwise not in compliance with any provision of the Agreement, and such breach or noncompliance is not cured within such thirty (30) day period. CompareBay.com reserves the right to immediately suspend any customer access to the storefront until such breach or noncompliance is cured.
7.4 Termination for Illegal or Other Activity. Notwithstanding the foregoing, CompareBay.com may, but has no duty to, immediately terminate Merchant and remove it from CompareBay.com servers if CompareBay.com in its sole and complete 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 CompareBay.com or others. Any termination under this Section 7.4 shall take effect immediately and Merchant expressly agrees that it shall not have any opportunity to cure.
7.5 Waiver. Merchant expressly waives any statutory or other legal protection in conflict with the provisions of this Section 7.
7.6 Deletion of Information. Upon termination, CompareBay.com reserves the right to delete from its servers any and all information contained in Merchants account, including but not limited to order processing information, mailing lists, and any Web pages generated by the Software.
7.7 Survival of Provisions. The provisions of Section 5 (Proprietary Rights), Section 10 (Indemnity), and Section 11 (Disclaimer of Warranties and Liabilities) of this Agreement shall survive any termination of the Agreement.

8. MERCHANT INFORMATION AND PRIVACY
8.1 Merchant Information. Merchant agrees that CompareBay.com may use Merchant Information in aggregate form for marketing or other promotional purposes.
8.2 Disclosure of Merchant Information. Merchant agrees that CompareBay.com 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 Agreement; (d) to respond to claims that the Merchant or storefront is engaged in activities that violate the rights of third parties; or (e) to protect the rights or interests of CompareBay.com, CompareBay.com or others; provided, however, that nothing in this section shall impose a duty on CompareBay.com to make any such disclosures.
8.3 Deletion of Merchant Information. Merchant agrees that CompareBay.com may delete customer credit card information from CompareBay.com servers 14 days after Merchant retrieves such information, and may delete all other Merchant Information from CompareBay.com servers within 14 days from the end of each calendar year.
8.4 Password. CompareBay.com shall provide a password to Merchant to allow access to and use the Software and Online Store Services. Merchant is entirely responsible for any and all activities that occur under Merchants account and password. Merchant agrees to keep its password confidential, to allow no other person or company to use its account, and to notify CompareBay.com promptly if Merchant has any reason to believe that the security of its account has been compromised.
8.5 Technical Access. 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 CompareBay.com may access Merchant's account and its contents as necessary to identify or resolve technical problems or respond to complaints about the Service.

9. MAINTENANCE AND SUPPORT Merchant shall be responsible for obtaining and maintaining all telephone, computer hardware and other equipment needed for its access to and use of the software and online storefront services and Merchant shall be responsible for all charges related thereto.

10. INDEMNITY Merchant agrees to indemnify and hold harmless CompareBay.com, 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 Merchant's conduct, Merchant's use of the service, the goods or services offered at Merchant's Store, any alleged violation of the agreement, or any alleged violation of any rights of another, including but not limited to 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. CompareBay.com 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.

11. 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. COMPAREBAY.COM 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 COMPAREBAY.COM IS AWARE OF THE RISK OF SUCH DAMAGES, THAT RESULT IN ANY WAY FROM MERCHANTS 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. COMPAREBAY.COM'S LIABILITY TO MERCHANT SHALL NOT, FOR ANY REASON, EXCEED THE AGGREGATE PAYMENTS ACTUALLY MADE BY MERCHANT TO COMPAREBAY.COM 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.

12. NO RESALE OR ASSIGNMENT OF SERVICE Merchant agrees not to resell or assign or otherwise transfer its rights or obligations under the Agreement without the express written authorization of CompareBay.com.

13. FORCE MAJEURE Neither party shall be liable to the other for any delay or failure in performance under the Agreement resulting directly or indirectly from acts of nature or causes beyond its reasonable control.

14. 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 CompareBay.com, such notices shall be addressed to info@comparebay.com. If to Merchant, such notices shall be addressed to the electronic or mailing address specified when Merchant opens an account with CompareBay.com, or such other address as either party may give the other by notice as provided above.

15. ENTIRE AGREEMENT This Agreement 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.

16. GENERAL The Agreement and the relationship between Merchant and CompareBay.com shall be governed by the laws of the state of California without regard to its conflict of law provisions. Merchant and CompareBay.com agree to submit to the personal and exclusive jurisdiction of the Superior Court of the State of California for the County of Santa Clara or the United States District Court for the Northern District of California. CompareBay.com's failure to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. If any provision of the Agreement 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 Agreement 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 Agreement must be filed within one (1) year after such claim or cause of action arose, or be forever barred. The section titles in the Agreement are for convenience only and have no legal or contractual effect.