Terms and Conditions - 2017

The following terms and conditions (the “Terms and Conditions”) govern the relationship between Gearhead Commerce, Inc (Gearhead, Gearhead Commerce, Us, We, E-dreamz, Edreamz, E-dreamz Inc). and Customer (Customer, Client, You, Your). Gearhead Commerce and Customer agree to be bound by the terms contained herein. In the event of a conflict between the Terms and Conditions and anything stated anywhere else, the following Terms and Conditions shall control. Accordingly, Gearhead Commerce and Customer, intending to be legally bound, agree as follows:

Gearhead Commerce runs as a Software for Service solution provider. The Gearhead Commerce platform is owned and operated by E-dreamz, Inc. Gearhead Commerce itself is owned and operated by E-dreamz, Inc. Gearhead Commerce is a sub division DBA part of E-dreamz, Inc. and will be referenced as Gearhead Commerce in the terms and conditions herein.

Client Contact Person. Customer will provide one (1) lead contact person who will serve as the Project manager to coordinate meetings and Customer interactions (the “Customer Contact”). The Customer Contact will be the key point of contact for all Customer approvals.

Content Entry. All content entry is the responsibility of the Customer. This includes all page content, blog posts, news items, products, categories and image content, etc. If requested Gearhead Commerce can assist in this process at our standard hourly rate of $120/hour (2017 Rate).

Payment Processing Services. E-dreamz requires Customer process credit cards and other payments via Stripe or PayPal Express Checkout.

Monthly Service Fees. First month and set up fee charges will begin upon initiation.

Invoicing and Payment. Customer hereby promises to pay to Gearhead Commerce the amounts under the acceptance agreement. Customer further agrees that if Customer requests additional changes or other work that is not covered by the acceptance agreement, Customer will be required and shall pay Gearhead Commerce additional fees. As noted in the Acceptance Agreement, payments for ongoing monthly services will be made by Customer via Credit Card, Automatic Billing via Credit Card or ACH. Any additional professional services requested outside of the monthly services will be billed accordingly. E-dreamz, Inc will be billing customer for any and all related Gearhead Commerce solutions and fees.

Deployment Process (or Echo RPM Process). Customer agrees to follow the Gearhead Commerce process for solution deployment. Gearhead Commerce does not manage domain names or DNS for any Customer. Customer is responsible for all domain and DNS changes.

Hourly Rate for additional Professional Services. Site updates, enhancements and support can be requested at any time during your term and relationship with Gearhead Commerce. We bill at a fixed hourly rate of $120* (2017 rate) per for all work for hire. Rate subject to change. Clients will be notified of any increase to the standard maintenance rate. Invoices for performed hourly work will be created at the next monthly billing cycle.

Hosting. Fully managed hosting is included with the monthly service rate.

Third Party Service Fees. Credit card gateway, merchant fees or other third party services are not included in the monthly terms or setup.

Direct Accounts with Third Parties. Customer shall be required to set-up certain direct billing relationships with all providers of extensions, plugins and third party services associated with the solution. Customer agrees and acknowledges that Gearhead Commerce will not and is not to be held responsible for any breaches or failures in functionality, compatibility, security and/or other warranties provided by such software and service providers

Suspension of Service. If any Customer account is thirty (30) days or more overdue Gearhead Commerce reserves the right to suspend or disable Services, after providing notice to Customer without liability to E-dreamz, until such account is paid in full.

Browser Optimization. All website design and development provided herein shall be built to be compatible with the most current desktop versions of Chrome, Firefox, Microsoft Edge, Safari, and Mobile editions of Safari and Chrome at the time of Project Kickoff.

Content management systems, administrative tools, and other “back end” items are not optimized for mobile use. Upgrades required for future browsers may require additional billable labor. Internet Explorer “Compatibility Mode” is not and will not be supported. Responsive websites will differ depending on browser version, font rendering, screen resolution, DPI, zoom level and more outside of our control.

Languages. Unless stated otherwise elsewhere, the Customer’s website will be provided in US, English speaking only.

Term of the Agreement. The Agreement commences on the date of execution of the signed Acceptance Agreement by Customer and continues until the agreement is mutually terminated by both parties.

Content. Customer is responsible for adding ALL content and product related data through the provided Website Administration System (Echo+ RPM), (i.e. pages, blogs, images, video, SKUs, options, categories, descriptions, images, pricing, media, etc.). Additional fees may apply for any requested direct product data imports, content entry or image manipulation.

No Storage of Sensitive or Private Information. Gearhead Commerce does not and will not store, warehouse or transmit sensitive information including, without limitation, Social Security Numbers, credit cards numbers, resumes, personal health information, classified documents, and other similarly sensitive information. Customer assures Gearhead Commerce that no information of that kind will be uploaded to the Gearhead Commerce servers, and accepts any and all risk and responsibility in doing so.

Printing. Gearhead Commerce cannot guarantee that all web pages will be considered ‘printer-friendly’. Printing is primarily a function of the user’s browser, user/security settings and printer set-up. Due to the vast array of browser types & versions, printer models and printer setting configurations, and other variables beyond Gearhead Commerce control, printed pages may not appear consistent from user to user.

License Rights. Gearhead Commerce retains all proprietary rights in, and to, its software and other proprietary materials such as copyrights, trademarks, trade secrets, patents and confidential information. Customer is only granted a non-exclusive license to use the Gearhead Commerce software and solution. Customer is not granted any rights in or to the software solutions that are proprietary to Gearhead Commerce. Upon any termination the Customer shall be prohibited from using the Gearhead Commerce software solution.

No Guarantee of Business Success. Many factors impact the success of a business. While Gearhead Commerce strives to provide a solution that will help further the goals and objectives of Customer’s business, Gearhead Commerce cannot guarantee that any venture for which it develops will ultimately be successful.

Use of Third Party Artwork. Subject to Customer’s prior approval, Gearhead Commerce may use third party art, photography or graphics in the Project. Any such use of fee-based artwork will be billed to the Customer.

No Liability for Third Party Acts. Customer acknowledges and agrees that Gearhead Commerce shall bear no liability for civil or criminal acts perpetrated by third parties.

Insurance. Customer shall carry proper technology / commerce business insurance to cover any and all civil and criminal acts perpetrated by third parties.

Limited Warranty. Gearhead Commerce warrants that the Deliverables will perform substantially. This limited warranty does not cover problems caused in whole or part by Customer, or that arise when Customer fails to follow Gearhead Commerce’s instructions and process, or that are caused by events beyond Gearhead Commerce’s’ control. This limited warranty starts on the date when the Deliverables are first delivered, and lasts for one year. Any supplements, updates, or other services that you may receive from Gearhead Commerce during that year are also covered, but only for the remainder of that one-year period or for 30 days, whichever is longer. Transferring the Deliverables will not extend the term of the limited warranty. Gearhead Commerce gives no other express warranties, guarantees, or conditions. GEARHEAD COMMERCE EXCLUDES ALL IMPLIED WARRANTIES, INCLUDING THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. IF APPLICABLE LAW DOES NOT ALLOW GEARHEAD COMMERCE’S EXCLUSION OF IMPLIED WARRANTIES, THEN ANY IMPLIED WARRANTIES, GUARANTEES, OR CONDITIONS LAST ONLY DURING THE TERM OF THE LIMITED WARRANTY AND ARE LIMITED AS MUCH AS APPLICABLE LAW ALLOWS. IF APPLICABLE LAW REQUIRES A LONGER LIMITED WARRANTY TERM, THEN THAT LONGER TERM WILL APPLY, BUT SHALL BE LIMITED ONLY TO THE REMEDIES THAT ARE DESCRIBED IN THIS AGREEMENT. IF CUSTOMER HAS ANY BASIS FOR RECOVERING DAMAGES FROM GEARHEAD COMMERCE, CUSTOMER MAY RECOVER ONLY DIRECT DAMAGES UP TO THE AMOUNT THAT CUSTOMER HAS PAID FOR THE SERVICE. CUSTOMER MAY NOT RECOVER ANY OTHER DAMAGES, INCLUDING CONSEQUENTIAL, LOST PROFITS, SPECIAL, INDIRECT, OR INCIDENTAL DAMAGES.

Representations and Warranties of Gearhead Commerce

  1. No Conflict. Gearhead Commerce represents and warrants that it is under no obligation or restriction that would in any way interfere or conflict with the work to be performed by Gearhead Commerce under the terms and conditions.
  2. Ownership Rights. E-dreamz owns and maintains ownership of its Echo RPM platform and Gearhead Commerce and all solutions provided. Customer is leasing the Echo RPM platform from E-dreamz and does not and will not own the Echo RPM platform.
    1. You retain the rights to your copyrighted content or information that you submit to Gearhead Commerce
    2. By submitting content to Gearhead Commerce, you grant us a royalty-free, perpetual, irrevocable, non-exclusive, unrestricted, worldwide license to reproduce, prepare derivative works, distribute copies, cache, archive, or display your content.
  3. Conformity, Performance, and Compliance. Gearhead Commerce represents and warrants that (1) all Deliverables shall be prepared in a workmanlike manner and with professional diligence and skill; (2) all Deliverables will function as represented herein; (3) all Deliverables will conform to the specifications and functions set forth in the agreement; and (4) Gearhead Commerce will perform all work in compliance with applicable laws. Gearhead Commerce will repair any Deliverable that does not meet this warranty within a reasonable period of time.
  4. Outside Software. Gearhead Commerce shall not be responsible for and makes no warranty of any type with respect to any programming code, software, material, sub-component or unit-piece supplied by another vendor and incorporated in the Site or Solution. Gearhead Commerce shall not be responsible for any damage or defect resulting from the installation or use of other vendors’ programming code, software, material, sub-component or unit-piece in conjunction with the website unless such installation or use has been approved by Gearhead Commerce beforehand.

Indemnification Independent Contractor. Gearhead Commerce and Customer are and shall be independent contractors to one another. The execution and delivery of this solution and service shall not be deemed to confer any rights or remedies upon, or obligate any of the parties hereto, to any person or entity other than as expressly stipulated herein. Nothing in these terms and conditions shall cause or be deemed to cause the parties to be partners or joint venturers with, or agents or employees of, each other. The parties are independent contractors, and neither party shall have any right or power to create any obligation or responsibility on behalf of the other party.

Jurisdiction and Choice of Venue. These terms and conditions shall be governed in accordance with the laws of the State of North Carolina. All disputes under this Proposal shall be resolved by litigation in the courts of the State of North Carolina, County of Mecklenburg including the federal courts therein and the Parties all consent to the jurisdiction of such courts, agree to accept service of process by mail, and hereby waive any jurisdictional or venue defenses otherwise available to it.

  1. By Customer. Customer agrees to indemnify, hold harmless and defend Gearhead Commerce and its directors, officers, shareholders, employees and agents from and against any action, claim, demand or liability, including reasonable attorney’s fees and costs, arising from or relating to: (i) Customer’s breach of these terms and conditions; (ii) the negligence or willful misconduct of Customer; or (iii) any allegation that the content provided by Customer infringes a third person’s copyright or trademark right, or misappropriates a third person’s trade secret. Customer agrees that Gearhead Commerce shall have the right to participate in and control the defense of any such claim through counsel of its own choosing.
  2. By Gearhead Commerce. Gearhead Commerce agrees to indemnify, hold harmless and defend Customer and its directors, officers, shareholders, employees and agents from and against any action, claim, demand or liability, including reasonable attorney’s fees and costs, arising from or relating to: (i) Gearhead Commerce’ breach of these terms and conditions; (ii) the negligence or willful misconduct of Gearhead Commerce; or (iii) any allegation that the Deliverables infringe a third person’s copyright or trademark right, or misappropriates a third person’s trade secret. Gearhead Commerce agrees that Customer shall have the right to participate in and control the defense of any such claim through counsel of its own choosing.

Right To Develop For Others. Nothing in these terms and conditions or acceptance agreement will impair the right of Gearhead Commerce to acquire, license, develop, manufacture, sell or distribute for itself or others similar technology performing the same or similar functions as the technology contemplated by these terms and conditions.

Marketing Collateral. Samples of work, logos, etc. can be used in collateral for Gearhead Commerce marketing materials as well as any future news releases or media interviews. All customer sites will be labeled as made and developed by Gearhead Commerce with similar text or graphic noting such with a link to the Gearhead Commerce website.

Limitation of Liability. Gearhead Commerce’s obligation under this warranty is limited exclusively and solely to replacing, repairing, or issuing credit for the Customer solution. Gearhead Commerce shall satisfy its obligation to the Customer within a reasonable time, not to exceed fifteen (15) business days of Gearhead Commerce’s receipt from Customer of written notice of failure to satisfy the specifications. Customer shall cooperate with Gearhead Commerce in its efforts to determine whether a defect in the Customer's solution exists and to repair the Customer's solution. Either party against the other party may bring no action under this agreement more than one (6 months) after the cause of action arises. In no event shall either Party be liable to the other Party or any other person for any indirect, incidental, consequential or punitive damages, including loss of profit or goodwill, for any matter arising out of or relating to these terms and conditions and/or its subject matter, whether such liability is asserted on the basis of contract, tort or otherwise even if the Party sought to be held liable has been advised of the possibility of such damages. Either Party’s total liability for damages shall be limited to the total fees paid by Customer to Gearhead Commerce hereunder.

Waiver. No waiver by either party of any default shall be deemed as a waiver of prior or subsequent default of the same or other provisions.

Right of Termination. Gearhead Commerce’s obligation to perform services under these terms and conditions may be terminated by Gearhead Commerce: (i) if the Customer breaches any material term or condition and fails to cure such breach within fifteen (15) days after receipt of written notice of the same; (ii) in the event the Customer makes a general assignment for the benefit of creditors, files a voluntary petition in bankruptcy or for reorganization or arrangement under the bankruptcy laws, if a petition in bankruptcy is filed against the Customer, or if a receiver or trustee is appointed for all or any part of the property or assets of the Customer; (iii) if the Customer becomes unresponsive, overly combative, or fails to adhere to the Deployment Process described herein, and fails to cure such within fifteen (15) days after receipt of written notice of the same; or (iv) at any time for any reason during the project process. In the event the agreement is terminated, Customer shall pay Gearhead Commerce for all services and/or work undertaken in performance of its obligations hereunder up to the date of termination. Such payment is due upon Gearhead Commerce’s submission of an invoice that reasonably documents the extent to which performance of such services were completed through such date of termination.

Termination of the Agreement. This agreement and any services may be terminated by either party for cause: (a) upon thirty (30) days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (b) if either party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

Cancellation of Subscription. If Customer wishes to cancel the subscription a written 30 day written notice shall be due and payable within thirty (30) days of the effective date of cancellation. No subsequent monthly service fees will be charged.

Severability. If a court of competent jurisdiction hereof holds any term, clause or provision invalid or unenforceable, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed.

Service Levels. Gearhead Commerce will use commercially reasonable efforts to minimize service disruptions and outages. In the event of service disruptions or outages, Customer’s sole remedy, and Gearhead Commerce’s sole obligation, shall be to provide the service level credits and/or remedies for the applicable service in accordance with the Service Level Agreement set forth on Gearhead Commerce web site at: https://www.gearheadcommerce.com/SLA. Gearhead Commerce may update the Service Level Agreement from time to time.

Force Majeure. Neither party will be liable for any failure or delay in its performance under the agreement, due to any cause beyond its reasonable control, including any act of war, act of God, earthquake, flood, embargo, riot, sabotage, terrorist attack, cyber-attack (hacking and DDOS), acts of public enemies, civil disturbances or general restraint or arrest of government and people, boycott, strike (including a general strike), lockout or other similar industrial disturbance, service interruption by a telecommunications services provider, or connectivity delays with internet providers outside of Gearhead Commerce reasonable control, provided that the delayed party (a) gives the other party prompt notice of such cause and (b) uses reasonable commercial efforts to correct promptly such failure or delay in performance.

Changes to Terms and Conditions. Gearhead Commerce reserves the right at any time to modify these Terms and Conditions and to impose new or additional terms or conditions. Such modifications and additional terms and conditions will be effective immediately and incorporated as such. The customer continued use of the Gearhead Commerce solutions and services will be deemed acceptance of such.