Last Updated: December 20, 2017
Agreement To Be Bound
The following Terms of Service, together with the relevant information set out on the Web site and/or provided via the Services, including any features and services available, such as RSS feeds, podcasts, video and photographs, publications, and other materials are subject to the Terms and Conditions set forth below. Please read them carefully as any of use of this Web site and our Services constitutes an agreement, without acceptance, to be bound thereby by the User. By using the Web site and our Services you represent that you are at least eighteen (18) years old, have read and understand the Terms of Service, and that you agree to be bound by these Terms of Service as set forth below.
SECTION I: DEFINITIONS
As used herein, the following terms shall have the following definitions:
1. References to “Customer” mean a registered User of the Services.
2. References to “Dispute” mean any claim, conflict, controversy, disagreement between the Parties arising out of, or related in any way to, these Terms (or any Terms, supplement or amendment contemplated by these Terms,) including, without limitation, any action in tort, contract or otherwise, at equity or at law, or any alleged breach, including, without limitation, any matter with respect to the meaning, effect, validity, performance, termination, interpretation or enforcement of these Terms or any Terms contemplated by the Terms.
3. References to “Effective Date” mean the date the User places an order for Services, whether as a Free or Paid Plan.
4. References to “Material Breach” mean any breach of these Terms upon the occurrence of which a reasonable person in the position of the non-breaching Party would wish to immediately terminate these Terms because of that breach.
5. References to an “Order Form” mean an Order Form completed online via the Web site by Customer.
6. References to the “Services” mean any and all services offered by Service Provider, including but not limited to drop-shipping automation services.
7. References to the “Terms” and/or “Agreement,” mean this, these Terms of Service as set forth herein.
8. References to “Service Provider” and/or “Dropified,” mean Bowers Enterprises, LLC, d/b/a Dropified, and its subsidiaries, parents and affiliates.
9. References to the “Web site” mean the Web sites bearing the URLs www.challenge.dropified.com and app.challenge.dropified.com as well as any other Web site owned and/or operated by Service Provider related to the Services.
10. References to “Product Catalog” mean the websites that the Service Provider offers functionality for allowing users to import a product to their Store from.
SECTION II: GENERAL PROVISIONS
2.1. About the Services. Service Provider provides an online tool which allows Users to perform a number of functions to help automate or semi-automate their drop-shipping businesses. A current list of the Services provided via the Dropified can be found online at https://www.challenge.dropified.com and is subject to change from time-to-time, without notice, and pursuant to Dropified’s sole and exclusive discretion.
2.2. Reliance on the Services; Assumption of the Risk. Customer acknowledges that the Services are provided for general information only and should not be relied upon or used as the sole basis for making shipment decisions or processing shipments without consulting primary, more accurate, more complete or more timely sources of information. In no event should a Customer rely on automation of business processes without checking such automation. Customer acknowledges further that any reliance on the Services is at Customer’s own risk.
2.3. Success, Compliance Not Guaranteed. Customer agrees and acknowledges that, due to the nature of the Services, Service Provider cannot guarantee an increase in Customer’s drop-shipping sales or an increased efficiency in Customer’s drop-shipping processes.
2.4. Restrictions and Responsibilities. In addition to the other restrictions on use set forth herein, Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Service Provider or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels. Further, Customer may not remove or export from the United States or any other authorized territory or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, the EU embargoed countries list set forth by the E.U. Common Foreign and Security Policy, or any other United States or European Union or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227‑7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement. Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Service Provider’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
2.5. System Updates. The Services will include all updates and new versions of the Software. However, Dropified may release new services, products or modules which are not covered in this Agreement and which may be subject to additional fees.
2.6. Technical Support. Service Provider will provide Technical Support to Customer via email, secure message, and instant chat on weekdays during the hours of 8:00 am through 5:00 pm U.S. Central time, with the exclusion of U.S. Federal Holidays (“Support Hours.”) Customers may initiate a helpdesk ticket during Support Hours by visiting emailing email@example.com or by messaging us via dropifiedusers.slack.com. Customers may also send us a message at any time via our support ticket system on Customers’ Account dashboards or via the form available at https://www.challenge.dropified.com/support. Service Provider will use commercially reasonable efforts to respond to all Helpdesk tickets within one (1) business day.
2.7. Modifications and Changes to the Services. We may modify, add to, suspend, or delete any aspect of the Services offered by us, in whole or in part, at our sole discretion at any time, with such modifications, additions or deletions being immediately effective. Such modifications, additions or deletions may include but are not limited to content offered, hours of availability, and equipment needed for access or use.
2.8. General Prohibited Uses of Web site and Services. In addition to the other restrictions on use set forth herein, you agree and acknowledge that you shall not use the Web site and Services: (a) for any unlawful purpose; (b) to solicit Users to perform or participate in any unlawful acts or to engage in acts that are unrelated to the purpose(s) of the Web site ro the Services; (c) to violate any international, governmental, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Web site or the Services; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of the Web site or the Services. We reserve the right to terminate your use of the Web site and the Services for violating any of the prohibited uses or for any other reason in our sole and exclusive decision.
SECTION III: ACCOUNTS, USE OF THE SERVICES
3.2. Multiple Accounts, Transfer Prohibited. Customer shall not have more than one (1) Account and shall not sell, trade or transfer that Account to any other person or entity.
3.3. Right to Monitor. Service Provider shall have the right to monitor Customer’s Account in Service Provider’s sole and exclusive discretion.
3.4. Customer Responsibilities. Customer shall ensure that the Customer’s ecommerce stores are compatible with the Service Provider’s tools. Customer must use the most current version of Chrome.
3.5. Free Plans. Customers who elect to use our Free Plan will receive those services set forth in the Free Plan description found online at https://www.challenge.dropified.com/pricing and subject to change in our sole and exclusive discretion.
3.6. Paid Plans. Customers who elect to sign up for a paid service plan, (“Paid Plan,”) can do so via an Order Form and shall be entitled to receive the services compatible with the Paid Plan selected. Such services are listed via the Web site, available at https://www.challenge.dropified.com/pricing, and are subject to change in our sole and exclusive discretion.
3.8. Service Levels. The Services shall be available Ninety-Nine Percent (99.9%,) measured monthly, excluding holidays and weekends and scheduled maintenance. If Customer requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance. Further, any downtime resulting from outages of third party connections or utilities or other reasons beyond Service Provider’s control will also be excluded from any such calculation. Service Provider does not warrant that the Services will be free of downtime and cannot be held liable therefore.
3.9. Termination. Customers may terminate their Accounts and use of the Services at any time via their Account settings dashboard.
3.10. Right of Refusal, Limitation, Discontinuation, and Termination. We reserve the right to refuse to provide access to the Services for any reason at any time in our sole and exclusive discretion.
SECTION IV: FEES; TERMS OF PAYMENT; REFUNDS
4.1. Service Fee. Use of our Free Plan is truly free; however, Customers who sign up for or upgrade to Paid Plans shall pay a fee, (a “Service Fee,”) in a pre-paid amount as set forth in the Order Form and as reflected on the Web site at https://www.challenge.dropified.com/pricing at the time of plan selection. Payment of the first (1st) Service Fee shall be due and owing as set forth in Section 4.3, infra. Service Provider reserves the right to change the Service Fees, or any other applicable fees and charges and to institute new charges and Service Fees at the end of the initial Billing Cycle upon thirty (30) days prior notice to Customer (which may be sent by email).
4.2. Free Trial. All new Users shall receive a 14-day free trial of the Paid Plan of their choice. In the event a User does not register for a Paid Plan prior to the end of the free trial period, all Customer data will be deleted at the end of the free trial period. Customers are eligible to receive one free trial per Paid Plan per lifetime. In the event a Customer provides billing information at the time of registration for a free trial, Customer understands and agrees that Customer shall be automatically billed the entire fee associated with the selected Paid Plan on the first (1st) calendar day following the end of the free trial period unless Customer cancels such free trial prior to the end of the free trial period.
4.3. Billing. All Service Fees as set forth herein shall be automatically pre-paid, in full, on a monthly or annual basis, (the “Billing Cycle,”) as selected upon registration by Customer, on the first (1st) day of the Billing Cycle, where the first (1st) day of the first (1st) Billing Cycle shall commence as of the date the Customer registers for a Paid Plan, (the “Effective Date.”) Payment shall be due and owing, in full, within thirty (30) calendar days of the Billing Date.
4.4. Form of Payment. Payment shall be made by a reoccurring charge to your provided credit/debit card via our payment processor, which is currently Stripe. To learn more about Stripe, please visit https://stripe.com.
4.5. Taxes. Customer is not responsible to collect or withhold any such taxes, including income tax withholding and social security contributions, for Service Provider as a result of Customer’s payment of any and all fees. Any and all taxes, interest, or penalties, including any federal, state, or local withholding or employment taxes, imposed, assessed, or levied as a result of these Terms shall be paid or withheld by Service Provider.
4.6. Suspension of Services. In the event a balance remains unpaid by Customer five (5) business days following the first (1st) day of the Billing Cycle for the Service Fee associated with the Paid Plan selected by Customer, Customer agrees and acknowledges that the Services shall be automatically suspended, without notice, until such payments are made, in arrears.
4.7. Late Fees. Unpaid amounts are subject to a finance charge of One-and-a-Half Percent (1.5%) per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Payments returned for insufficient funds are subject to a charge of Thirty-Five U.S. Dollars and No/Cents ($35.00) per returned item.
4.8. Refunds. Users who terminate the use of their Accounts and the Services prior to the end of a Billing Cycle shall be entitled to receive a pro-rated refund of the Service Fees pre-paid by them for such Billing Cycle.
SECTION V: DISCLAIMERS; LIMITATIONS OF LIABILITY; INDEMNIFICATION
5.1. DISCLAIMER OF WARRANTY. Service Provider shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Service Provider or by third-party providers, or because of other causes beyond Service Provider’s reasonable control, but Service Provider shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, SERVICE PROVIDER DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND SERVICE PROVIDER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
5.3. INDEMNIFICATION. CUSTOMER AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS SERVICE PROVIDER AND ITS DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, SUBSIDIARIES, PARENTS, AGENTS, PARTNERS, THIRD-PARTY CONTENT PROVIDERS, AND VENDORS FROM AND AGAINST ALL CLAIMS, SUITS, AND EXPENSES, INCLUDING ATTORNEYS’ FEES, ARISING OUT OF OR RELATED TO (A) CUSTOMER’S USE OF THE SERVICES; (B) CUSTOMER’S NONCOMPLIANCE WITH OR BREACH OF THIS AGREEMENT; (C) CUSTOMER’S VIOLATIONS OF ANY THIRD-PARTY RIGHTS, INCLUDING THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS; OR (D) THE UNAUTHORIZED USE OF THE SERVICES BY ANY OTHER PERSON USING CUSTOMER’S INFORMATION.
5.4 PRODUCT CATALOGS DISCLAIMER. SERVICE PROVIDER ADDS THE ABILITY TO IMPORT PRODUCTS FROM PRODUCT CATALOGS BASED ON REQUESTS BY USERS AND DOES NOT ENDORSE THE USE OF CATALOGS OR ANY PRODUCTS ON THE SITE. CUSTOMER AGREES TO CONTACT THE PRODUCT CATALOG OR PRODUCT OWNER BEFORE IMPORTING, SELLING OR ADVERTISING THE PRODUCT. SERVICE PROVIDER DOES NOT PROMOTE THE ILLEGAL USE OR SELLING OF PRODUCTS. CUSTOMER AGREES TO MAKE SURE ALL LAWS ARE FOLLOWED AND ACKNOWLEDGES THAT SERVICE PROVIDER DOES NOT PROMOTE OR ENDORSE THE USE OF ANY PRODUCTS ON CUSTOMER’S STORE.
SECTION VI: GOVERNING LAW; ARBITRATION
6.1. Governing Law. These Terms shall be governed and construed in accordance with the laws of the state of Alabama without regard to its conflicts of law provisions. Customer agrees to submit to the personal jurisdiction of the courts located in Jefferson County, Alabama, and any cause of action that relates to or arises from these Terms and/or the Services must be filed therein unless subject to the binding arbitration provisions of Section 6.2, infra.
6.2. Arbitration. The Parties agree that any dispute concerning, relating, or referring to these Terms and/or the Services shall be resolved exclusively by binding arbitration in accordance with the substantive laws of the state of Alabama and shall be brought for arbitration in Jefferson County, Alabama, pursuant to the rules of the American Arbitration Association. The arbitrator and not any federal, state, or local court or agency shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, conscionability, or formation of this contract, including but not limited to any claim that all or any part of this contract is void or voidable. Nothing herein prevents either Party from seeking any interim injunction it deems necessary in order to preserve the status quo prior to the resolution of any dispute, in any jurisdiction.
SECTION VII: INTELLECTUAL PROPERTY
7.1. Ownership. All proprietary software, third party licensed software, software libraries, services, methodologies, techniques, algorithms, tools, materials, products, ideas, designs, and know-how used by Dropified in providing the Services (including all reports and their copies, enhancements, modifications, revisions, and derivative works of any of the foregoing) and deliverables (whether oral or written) are, and shall remain, the sole and exclusive property of Dropified. Nothing herein shall cause or imply any sale, license, or other transfer of proprietary rights of or in any third party software or products from Dropified to Customer.
7.2. Grant of License. Service Provider reserves the right to reference Customer on public customer lists and to use Customer’s name and logo on the Service Provider’s Web site for marketing purposes. Additionally, Service Provider may request the use of Customer’s name and/or logo in press releases, advertising material and other promotional material. Service Provider may, subject to Customer’s written approval also publish a case study outlining the success of the Project, provided that it does not disclose any confidential information. Any such intent for use of Customer marks will be presented to the Customer in advance.
SECTION VIII: MISCELLANEOUS
8.2. Authority. Each Party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such Party and enforceable in accordance with its Terms.
8.3. Waiver. Any waiver of a right under these Terms of Service shall only be effective if agreed or declared in writing. A delay in exercising a right or the non-exercise of a right shall not be deemed a waiver and shall not prevent a Party from exercising that right in the future. The rights and remedies herein provided are cumulative and not exclusive of any rights and remedies provided by law.
8.4. Force Majeure. Service Provider shall not be bound to meet any obligation if prevented from doing so as a consequence of acts of God or force majeure, including but not limited to measures taken or imposed by any government or public authority or in case of any other event beyond the control of us, including but not limited to natural disasters (such as storm, hurricane, fire, flood, earthquake), war, civil unrest, terrorist activities, states of emergency, government sanctions, embargos, nationalizations, strikes and breakdowns of public utilities (such as of electricity or telecommunication services). Service Provider shall use all reasonable efforts to notify Customer of the circumstances causing the delay and to resume performance as soon as possible, both without undue delay.
8.5. Assignment. Service Provider shall have the right to assign and/or transfer these Terms of Service and Service Provider’s rights and obligations hereunder to any Third Party after notifying Customer as provided for herein. Customer agrees and acknowledges that Customer shall not assign or transfer its rights or sub-contract or delegate the performance of any of its obligations under these Terms of Service without Service Provider’s prior written consent in Service Provider’s sole and exclusive discretion.
8.6. Rights of Third Parties. These Terms do not give any right to any Third Party unless explicitly stated herein.
8.7. Relationship of the Parties. The Parties are independent contractors under these Terms, and nothing herein shall be construed to create a partnership, joint venture or agency relationship between them. Neither Party has authority to enter into Terms of any kind in the name of the other Party.
8.8. Severability. If any part of this Agreement is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
8.9. Notices. Except as explicitly stated otherwise, any notices shall be given by postal mail to the address first set forth above, as amended from time-to-time.
8.10. Publicity. Customer grants a perpetual and irrevocable license to Service Provider to reference Customer on public customer lists and to use Customer’s name and logo on the Service Provider’s Web site, in press releases, advertising material and other promotional material. Service Provider may, subject to Customer’s written approval also publish a case study outlining the success of the Project, provided that it does not disclose any confidential information.
8.10. Entire Agreement. This Agreement represents the complete and exclusive statement of the Agreement between the Parties as to the provision of the Services. No other Agreements, covenants, representations or warranties, express or implied, oral or written, have been made by the Parties concerning this Agreement.