Website Shopping Cart Software, Ecommerce Software

FORTUNE3™ Ecommerce Shopping Cart Software and Online Store Solutions Services
E-Commerce Web hosting - Retail ( B2C ) / Wholesale ( B2B ) Storefront Web Sites

SERVICE AGREEMENT

1.1 By accepting the terms and conditions of the F3ECSA, Merchant (a) represents and warrants that he or she is 18 years old or older; (b) agrees to provide true, accurate, current and complete information about Merchant as prompted by the Account Registration Form; and (c) agrees to maintain and update this information to keep it true, accurate, current and complete. If any information provided by Merchant is untrue, inaccurate, not current or incomplete, Fortune3 has the right to terminate Merchant’s account and refuse any and all current or future use of the Service.

1.2 BY COMPLETING THE ACCOUNT REGISTRATION PROCESS AND CLICKING THE "I ACCEPT" BUTTON, YOU AGREE TO BE BOUND BY THE F3ECSA. Nothing in this agreement obligates Fortune3 or the Service to list, link to, accept or otherwise host any Ecommerce Website anywhere on the Fortune3™ Web servers. If these terms and conditions or any future changes are unacceptable to you, you may cancel your account pursuant to Section 6.2 regarding non-renewal of service.

2.0 DESCRIPTION OF 'FORTUNE3™ E-COMMERCE SHOPPING CART' SOFTWARE & SERVICE. Fortune3™ hosts Web pages and interactive Ecommerce Websites ("E-Commerce Web site"), online stores and Website shopping carts on the World Wide Web to provide Merchants with, among other things, (i) access to the 'Fortune3™ Online Store Builder' ("Wizard Software") to facilitate the design, creation, and maintenance of E-Commerce Web sites for the sale of goods and services; and (ii) the listing of such Ecommerce Websites and Web pages in the 'Fortune3™ Merchant directory located at the Fortune3.com Website.

3.0 MERCHANT'S OBLIGATIONS

3.1 Merchant acknowledges and agrees that it shall be responsible for all goods and services offered at Merchant’s E-Commerce Website, all materials used or displayed at the Ecommerce Web site, and all acts or omissions that occur at the E-Commerce Website or in connection with Merchant's account or password. Certain Ecommerce Web sites may be subject to additional requirements.

3.1.1 Merchant agrees to display in the E-Commerce Website Merchant's contact information, including but not limited to Merchant's company name, address, telephone number, fax number and e-mail address. Merchant also agrees to update such information to keep it true, accurate, current and complete.

3.1.2 Merchant agrees that any and all press releases and other public announcements related to this Agreement and subsequent transactions between Fortune3™ and Merchant, including the method and timing of such announcements, must be approved in advance by Fortune3™ in writing. Fortune3™ reserves the right to withhold approval of any public announcement in its sole discretion. Without limitation, any breach of Merchant's obligation regarding public announcements shall be a material breach of the F3ECSA.

3.2 Fortune3™ reserves the right to refuse to host or discontinue to host any Ecommerce Website which it believes, in its sole discretion: (1) offers popular goods or services at unreal prices which may be intended to attract and defraud online shoppers, or displays materials, products or services that are illegal, obscene, vulgar, offensive, dangerous, or are otherwise inappropriate; (2) has substantially changed its E-Commerce Web site from the time it was accepted or the Website displays inaccurate contact information; (3) has received a significant number of complaints for failing to be reasonably accessible to customers or failing to fulfill customer orders timely; (4) has become the subject of a government complaint or investigation; or (5) has violated or threatens to violate the letter or spirit of the F3ECSA.

4.0 PROPRIETARY RIGHTS

4.1 Online Store Builder - Wizard Software License. Fortune3™ hereby grants Merchant a non-exclusive, non-transferable license to use the Wizard Software in object code form on a single PC for online connection to upload to Web servers controlled by Fortune3™ for the sole purpose of creating and maintaining online stores and Ecommerce Websites comprised by Web pages and online shopping carts to function on such Web servers. Merchant is not being granted any right to copy the Wizard Software or to use it on computers other than one single PC. Merchant may not use Web pages or parts of Web pages generated by means of the Fortune3™ Software without Fortune3’s express written agreement. Merchant also acknowledges and agrees that the Wizard software is intended for a PC, and that Fortune3™ does not commit to support any particular browsing platform. Fortune3™ reserves the right at any time to revise and modify the Online Store builder and the Shopping Cart Software, release subsequent versions thereof and to alter features, specifications, capabilities, functions, and other characteristics of the such Software, without notice to Merchant. If any revision or modification to the Software materially changes Merchant’s ability to conduct business, Merchant’s sole remedy is to terminate the F3ECSA pursuant to Section 6.2 regarding non-renewal of service.

4.2 Fortune3™ Intellectual Property. Merchant acknowledges and agrees that content available from Fortune3™ or the Service, including but not limited to text, software, music, sound, logos, trademarks, service marks, photographs, graphics, or video, 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 4.1 above.

4.3 Merchant's Property. Merchant agrees that by using the Service, Merchant grants Fortune3™, and its successors and assigns, a non-exclusive, worldwide, royalty-free, perpetual, non-revocable license under Merchant’s copyrights and other intellectual property rights, if any, in all material and content displayed in Merchant's E-Commerce Web site to use, distribute, display, reproduce, and create derivative works from such material in any and all media and display in any manner and on any Fortune3™ property the results of search queries and comparisons conducted on Fortune3™, including, without limitation, searches conducted on Fortune3™ Shopping and the Service. Merchant also grants Fortune3™ the right to maintain such content on Fortune3's servers during the term of the F3ECSA and to authorize the downloading and printing of such material, or any portion thereof, by end users for their personal use.

4.4 Unauthorized Access. Merchant shall not attempt to gain unauthorized access to any servers controlled by Fortune3™.

5.0 TRANSACTIONS AND FEES

5.1 'Ecommerce Shopping Cart' Service Fees (Web Pages + Online Store + E-Commerce Website). Merchant has a variety of Ecommerce Service plans to choose from: There are six (6) plans to choose from when Merchant wants to host their E-Commerce Website with Fortune3™. The six plans are the Basic Plan, the Silver Plan, the Gold Plan, the Platinum Plan, the Diamond Plan, and the Infinity Plan, each of which is detailed in sections 5.2, 5.3, 5.4, 5.5, 5.6 of the F3ECSA. Merchant shall pay their Setup Fees during the sign-up process, and their Monthly Fees according to their selected plan on the first (1st) day of each month period before the applicable calendar (e.g., if the Start Date were January 5th, then the first payment of the monthly fees would be due on the 5th day of January, and then every month period thereafter the month of January on the 5th day of the corresponding month period). Merchant shall pay their Transaction Fee according to their selected plan on the first (1st) day of each month period after the applicable calendar (e.g., if the Start Date were January 5th, then payments of the transaction fee would be due on the 5th day of February and then every month period thereafter the month of February on the 5th day after the corresponding month period).

5.2 E-Commerce Hosting Plans and Fees.

5.2.1 Shopping Cart Solution 'BASIC PLAN'. The 'Ecommerce Basic Plan' is perfect for 30 products / services or less to be available on an Ecommerce Web site. It comprises Ecommerce Web Hosting services for the Web pages and the Online Store Solution provided by the Fortune3™ Shopping Cart Software; Checkout System Integration with PayPal payment direct and Google Checkout, automated order processing ( excluding credit card processing and gateways ); automated shipping cost calculation and shipping consolidation, E-Mail order notification, order and shipping administration, and other automated services provided by Fortune3's E-Commerce & Shopping Cart Software and Web Store Administration Interface. When choosing the Basic Plan, Merchant agrees to pay Fortune3™ a one-time non-refundable Setup Fee of US$99.95 and a non-refundable amount of US$29.95 to be paid in advanced for every month of service with payments due on the same day of the month in which the Merchant signed up for the service (e.g. if service was ordered on January first, then the first payment of the Monthly Fee would be made on January 1st, and every payment for every month thereafter would be billed on the 1st day of every consecutive month).
Transaction Fee: Every billing date after the first month of service Fortune3 shall collect from Merchant the Transaction Fee as a percentage of the total amount of sales made on the previous month based on the invoices recorded in Merchant's Web Store database -. Merchant agrees to pay Fortune3™ the corresponding Transaction Fee in U.S. dollars (or equivalent) according to the percentage schedule established in section 5.6 of the F3ECSA. The Transaction Fee is due on the first day of the month following the month of service (e.g. if service was ordered on January 1st, then the first payment of the Transaction Fee would be made on February 1st for orders placed during the previous month, and every month thereafter in the same fashion).
OPTIONAL (CREDIT CARD PROCESSING FEES): If Merchant chooses the Basic Plan and also chooses to use Fortune3's Credit Card Processing System, Merchant agrees to pay to Fortune3™ an additional one-time Setup Fee of $150.00 U.S., Merchant also agrees to pay to Fortune3™ an additional Gateway Monthly Fee of $19.50 with payments due on the same day that the service was ordered every month thereafter (e.g. if service was ordered on January first, then the first payment of the Monthly Fee would be made on January 1st, and every payment for every month thereafter would be due on the 1st day of every month).

5.2.2 Shopping Cart Solution 'SILVER PLAN'. The 'E-Commerce Silver Plan' is for 100 products / services or less listed on an E-Commerce Website. It comprises E-Commerce Web Hosting services for the Web pages and the Shopping Cart Solution provided by the Fortune3™ Online Store Software; Checkout System Integration with PayPal payment direct and Google Checkout, automated order processing ( excluding credit card processing and gateways ); automated shipping cost calculation and shipping consolidation, Email order notification, order and shipping administration, and other automated services provided by Fortune3's Ecommerce Shopping Cart Software and Online Store Administration Interface. When choosing the Silver Plan, Merchant agrees to pay Fortune3™ a one-time non-refundable Setup Fee of US$99.95 and a non-refundable amount of US$44.95 to be paid in advanced for every month of service with payments due on the same day of the month in which the Merchant signed up for the service (e.g. if service was ordered on March 5th, then the first payment of the Monthly Fee would be made on March 5th, and every payment for every month thereafter would be billed on the 5th day of every consecutive month).
Transaction Fee: Every billing date after the first month of service Fortune3 shall collect from Merchant the Transaction Fee as a percentage of the total amount of sales made on the previous month based on the invoices recorded in Merchant's Online Store database -. Merchant agrees to pay Fortune3™ the corresponding Transaction Fee in U.S. dollars (or equivalent) according to the percentage schedule established in section 5.6 of the F3ECSA. The Transaction Fee is due on the first day of the month following the month of service (e.g. if service was ordered on March 5th, then the first payment of the Transaction Fee would be made on April 5th for orders placed during the previous month, and every month thereafter in the same fashion).
OPTIONAL (CREDIT CARD PROCESSING FEES): If Merchant chooses the Silver Plan and also chooses to use Fortune3's Credit Card Processing System, Merchant agrees to pay to Fortune3™ an additional one-time Setup Fee of $150.00 U.S., Merchant also agrees to pay to Fortune3™ an additional Gateway Monthly Fee of $19.50 with payments due on the same day that the service was ordered every month thereafter (e.g. if service was ordered on March 5th, then the first payment of the Monthly Fee would be made on March 5th, and every payment for every month thereafter would be due on the 5th day of every month).

5.2.3 Shopping Cart Solution 'GOLD PLAN'. The 'Ecommerce Gold Plan' is made for a Merchant with 1000 products / services or less listed on their E-Commerce Website. It comprises E-Commerce Web Hosting services for the Web pages and the Online Store Solution provided by the Fortune3™ Shopping Cart Software; Checkout System Integration with PayPal payment direct and Google Checkout, automated order processing ( excluding credit card processing and gateways ); automated shipping cost calculation and shipping consolidation, E-Mail order notification, order and shipping administration, and other automated services provided by Fortune3's Ecommerce & Shopping Cart Software and Web Store Administration Interface. When choosing the Gold Plan, Merchant agrees to pay Fortune3™ a one-time non-refundable Setup Fee of US$99.95 and a non-refundable amount of US$69.95 to be paid in advanced for every month of service with payments due on the same day of the month in which the Merchant signed up for the service (e.g. if service was ordered on June 12th, then the first payment of the Monthly Fee would be made on June 12th, and every payment for every month thereafter would be billed on the 12th day of every consecutive month).
Transaction Fee: Every billing date after the first month of service Fortune3 shall collect from Merchant the Transaction Fee as a percentage of the total amount of sales made on the previous month based on the invoices recorded in Merchant's Web Store database -. Merchant agrees to pay Fortune3™ the corresponding Transaction Fee in U.S. dollars (or equivalent) according to the percentage schedule established in section 5.6 of the F3ECSA. The Transaction Fee is due on the first day of the month following the month of service (e.g. if service was ordered on June 12th, then the first payment of the Transaction Fee would be made on July 12th for orders placed during the previous month, and every month thereafter in the same fashion).
OPTIONAL (CREDIT CARD PROCESSING FEES): If Merchant chooses the Gold Plan and also chooses to use Fortune3's Credit Card Processing System, Merchant agrees to pay to Fortune3™ an additional one-time Setup Fee of $150.00 U.S., Merchant also agrees to pay to Fortune3™ an additional Gateway Monthly Fee of $19.50 with payments due on the same day that the service was ordered every month thereafter (e.g. if service was ordered on June 12th, then the first payment of the Monthly Fee would be made on June 12th, and every payment for every month thereafter would be due on the 12th day of every month).

5.2.4 Shopping Cart Solution 'PLATINUM PLAN'. The 'E-Commerce Platinum Plan' is for Merchants with 5000 products / services or less listed on their Ecommerce Website. It comprises Ecommerce Web Hosting services for the Web pages and the Shopping Cart Solution provided by the Fortune3™ Online Store Software; Checkout System Integration with PayPal payment direct and Google Checkout, automated order processing ( excluding credit card processing and gateways ); automated shipping cost calculation and shipping consolidation, Email order notification, order and shipping administration, and other automated services provided by Fortune3's Ecommerce Shopping Cart Software and Online Store Administration Interface. When choosing the Platinum Plan, Merchant agrees to pay Fortune3™ a one-time non-refundable Setup Fee of US$129.95 and a non-refundable amount of US$79.95 to be paid in advanced for every month of service with payments due on the same day of the month in which the Merchant signed up for the service (e.g. if service was ordered on August 16th, then the first payment of the Monthly Fee would be made on August 16th, and every payment for every month thereafter would be billed on the 16th day of every consecutive month).
Transaction Fee: Every billing date after the first month of service Fortune3 shall collect from Merchant the Transaction Fee as a percentage of the total amount of sales made on the previous month based on the invoices recorded in Merchant's Online Store database -. Merchant agrees to pay Fortune3™ the corresponding Transaction Fee in U.S. dollars (or equivalent) according to the percentage schedule established in section 5.6 of the F3ECSA. The Transaction Fee is due on the first day of the month following the month of service (e.g. if service was ordered on August 16th, then the first payment of the Transaction Fee would be made on September 16th for orders placed during the previous month, and every month thereafter in the same fashion).
OPTIONAL (CREDIT CARD PROCESSING FEES): If Merchant chooses the Platinum Plan and also chooses to use Fortune3's Credit Card Processing System, Merchant agrees to pay to Fortune3™ an additional one-time Setup Fee of $150.00 U.S., Merchant also agrees to pay to Fortune3™ an additional Gateway Monthly Fee of $19.50 with payments due on the same day that the service was ordered every month thereafter (e.g. if service was ordered on August 16th, then the first payment of the Monthly Fee would be made on August 16th, and every payment for every month thereafter would be due on the 16th day of every month).

5.2.5 Shopping Cart Solution 'DIAMOND PLAN'. The 'Ecommerce Diamond Plan' is for Merchants with 10000 products / services or less listed on their E-Commerce Website. It comprises E-Commerce Web Hosting services for the Web pages and the Online Store Solution provided by the Fortune3™ Shopping Cart Software; Checkout System Integration with PayPal payment direct and Google Checkout, automated order processing ( excluding credit card processing and gateways ); automated shipping cost calculation and shipping consolidation, E-Mail order notification, order and shipping administration, and other automated services provided by Fortune3's Ecommerce Shopping Cart Software and Web Store Administration Interface. When choosing the Diamond Plan, Merchant agrees to pay Fortune3™ a one-time non-refundable Setup Fee of US$149.95 and a non-refundable amount of US$99.95 to be paid in advanced for every month of service with payments due on the same day of the month in which the Merchant signed up for the service (e.g. if service was ordered on November 20th, then the first payment of the Monthly Fee would be made on November 20th, and every payment for every month thereafter would be billed on the 20th day of every consecutive month).
Transaction Fee: Every billing date after the first month of service Fortune3 shall collect from Merchant the Transaction Fee as a percentage of the total amount of sales made on the previous month based on the invoices recorded in Merchant's Web Store database -. Merchant agrees to pay Fortune3™ the corresponding Transaction Fee in U.S. dollars (or equivalent) according to the percentage schedule established in section 5.6 of the F3ECSA. The Transaction Fee is due on the first day of the month following the month of service (e.g. if service was ordered on November 20th, then the first payment of the Transaction Fee would be made on December 20th for orders placed during the previous month, and every month thereafter in the same fashion).
OPTIONAL (CREDIT CARD PROCESSING FEES): If Merchant chooses the Diamond Plan and also chooses to use Fortune3's Credit Card Processing System, Merchant agrees to pay to Fortune3™ an additional one-time Setup Fee of $150.00 U.S., Merchant also agrees to pay to Fortune3™ an additional Gateway Monthly Fee of $19.50 with payments due on the same day that the service was ordered every month thereafter (e.g. if service was ordered on November 20th, then the first payment of the Monthly Fee would be made on November 20th, and every payment for every month thereafter would be due on the 20th day of every month).

5.2.6 Shopping Cart Solution 'INFINITY PLAN'. The 'E-Commerce Infinity Plan' is suitable for a Merchant with an unlimited number of products / services or less listed on their E-Commerce Website. It comprises E-Commerce Web Hosting services for the Web pages and the Shopping Cart Solution provided by the Fortune3™ Online Store Software; Checkout System Integration with PayPal payment direct and Google Checkout, automated order processing ( excluding credit card processing and gateways ); automated shipping cost calculation and shipping consolidation, Email order notification, order and shipping administration, and other automated services provided by Fortune3's E-Commerce Shopping Cart Software and Online Store Administration Interface. When choosing the Infinity Plan, Merchant agrees to pay Fortune3™ a one-time non-refundable Setup Fee of US$169.95 and a non-refundable amount of US$159.95 to be paid in advanced for every month of service with payments due on the same day of the month in which the Merchant signed up for the service (e.g. if service was ordered on January first, then the first payment of the Monthly Fee would be made on January 1st, and every payment for every month thereafter would be billed on the 1st day of every consecutive month).
Transaction Fee: Every billing date after the first month of service Fortune3 shall collect from Merchant the Transaction Fee as a percentage of the total amount of sales made on the previous month based on the invoices recorded in Merchant's Online Store database -. Merchant agrees to pay Fortune3™ the corresponding Transaction Fee in U.S. dollars (or equivalent) according to the percentage schedule established in section 5.6 of the F3ECSA. The Transaction Fee is due on the first day of the month following the month of service (e.g. if service was ordered on January 1st, then the first payment of the Transaction Fee would be made on February 1st for orders during the month of January, and every month thereafter in the same fashion).
OPTIONAL (CREDIT CARD PROCESSING FEES): If Merchant chooses the Infinity Plan and also chooses to use Fortune3's Credit Card Processing System, Merchant agrees to pay to Fortune3™ an additional one-time Setup Fee of $150.00 U.S., Merchant also agrees to pay to Fortune3™ an additional Gateway Monthly Fee of $19.50 with payments due on the same day that the service was ordered every month thereafter (e.g. if service was ordered on January first, then the first payment of the Monthly Fee would be made on January 1st, and every payment for every month thereafter would be due on the 1st day of every month).

5.3 Void Transaction Allowance: Eligibility, Reconciliation, and Auditing of Void Transactions for Consideration of Transaction Fees.
Merchant will be able to test the performance of their Web Pages, Online Store, Shopping Cart Software, and Payment System by entering up to 10 testing transactions during the setup period which can be voided. Thereafter Merchant will be limited to void only the unsuccessful transactions recorded through the Shopping Cart Software. An unsuccessful transaction is defined as that which sale was not successfully completed, or that which product(s) or service(s) sold were never shipped out or delivered to the buyer. Fortune3™ provides Merchant with a Web Browser Tool; the 'Online-Store Administration' for voiding their eligible unsuccessful transactions. Any unsuccessful transaction must be voided by Merchant within 30 days from the date on which the transaction was created. The 'Online Store Administration' Web-Tool allows Merchant voiding a transaction only when the number of accumulated voided transactions is yet below twenty percent (20%) of the total number of transactions processed through the Shopping Cart Software. The total number of transactions and the accumulated voided transactions will count from the starting date of Merchant's Online Store.
Fortune3™ shall be entitled to bill and collect from Merchant the Fees proceedings from all of the recorded Transactions according to the 'Monthly Transaction Fee Schedule' of section 5.6, and in accordance with sections 5.4 and 5.5 as well. Fortune3™ shall also be entitled to audit, at a mutually agreed time during normal business hours, those Merchant records relating to void transactions and otherwise to investigate these transactions, which might include contacting the buyer to confirm that the transaction at issue was not successful.

5.4 Mechanics. Fortune3™ does not refund or return money for Setup Fees, Monthly Fees, or Transaction Fees under any circumstances to companies or individuals that have signed up for any of the E-Commerce Hosting Plans. All fees are cumulative and payable in U.S. dollars. Fortune3™ shall calculate all fees and, in its discretion and on the applicable due date set forth herein, either (a) charge payments to the credit card number given to Fortune3™ at the time of registration or to any other credit card number that Merchant so designates, or (b) invoice payments to be paid by Merchant within ten (10) days after the invoice date. Late payments shall bear interest at the rate of one percent (1%) per month (or the highest rate permitted by law, if less). In the event of any failure by Merchant to make payment, Merchant shall be responsible for all reasonable expenses (including attorneys’ fees) incurred by Fortune3™ in collecting such amounts. Fortune3™ may, upon 30 days prior notice to Merchant, alter its fees under the F3ECSA.

5.5 Payment Schedule. Merchant agrees that Fortune3™ will securely hold the credit card information provided by the Merchant during the enrollment and first payment of the selected E-Commerce service plan to be provided by Fortune3™ to the Merchant. Once a term has expired, Fortune3™ will automatically charge that credit card for the total due amount (Monthly Fees and Transaction Fees) as specified in sections 5.1, 5.2, 5.2.1, 5.2.2, 5.2.3, 5.2.4, 5.2.5, 5.2.6, 5.3, 5.4, 5.5, 5.6 of the F3ECSA until the F3ECSA has been terminated according to the Sections 6.2 and 7.0.

5.6 Monthly Transaction Fee Schedule. Merchant agrees to pay Fortune3™ a Fee according to the Online Store Recorded Transactions:

6.0 TERMS

6.1 Term. The Merchant establishes the term of the F3ECSA in the Ecommerce Setup form available in the Fortune3™ Web site, which opens an account for Merchant’s E-Commerce Website commencing on that date (the “Start Date”). The term shall automatically renew for another term at renewal rates applicable at the time, unless notice of non-renewal is provided in accordance with Section 6.2, 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 F3ECSA. Fortune3™ shall have the right, but not the obligation, to review any Ecommerce Web site for compliance with the F3ECSA as part of the renewal process, or at any time.

6.2 Non-Renewal. Either party, in its sole and absolute discretion, may give notice of non-renewal with or without cause and without stating any reason therefor. Any notice of non-renewal must be given at least five (5) days prior to the end of the current monthly period in order for the F3ECSA to expire on the last day of that monthly period; otherwise, the F3ECSA will expire on the last day of the following monthly period (e.g., if the Start Date were September 10, and Merchant were to provide Fortune3™ with notice of non-renewal on October 7, then the F3ECSA would expire on November 10). All notices under this Section 6.2 must be given in the manner described in Section 14 regarding notice.

7.0 TERMINATION

7.1 Termination. Either party may terminate the F3ECSA on thirty (30) days notice if the other party has materially breached or is otherwise not in compliance with any provision of the F3ECSA, and such breach or noncompliance is not cured within such thirty (30) day period. Fortune3™ reserves the right to immediately suspend any Merchant access to the E-Commerce Website until such breach or noncompliance is cured.

7.2 Termination for Illegal, Fraudulent, or other Activity. Notwithstanding the foregoing, Fortune3™ may, but has no duty to, immediately terminate Merchant and remove their Online Store and Data from Fortune3™ servers if Fortune3™ in its sole 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 or the reputation of Fortune3™ or others, or has defrauded a consumer. Any termination under this Section 7.2 shall take effect immediately and Merchant expressly agrees that it shall not have any opportunity to cure.

7.3 Waiver. Merchant expressly waives any statutory or other legal protection in conflict with the provisions of this Section 7.

7.4 Deletion of Information. Upon termination, Fortune3™ reserves the right to delete from its servers any and all information contained in Merchant’s account, including but not limited to order processing information, mailing lists, and any Web pages generated by the Wizard Software.

7.5 Survival. The provisions of Section 4 (Proprietary Rights), Section 8.1 (Merchant Information), Section 10 (Indemnity), and Section 11 (Disclaimer of Warranties and Liabilities) of this Agreement shall survive any termination of the Agreement.

7.6 Termination prior to term's end. If Merchant signs up for one of Fortune3's Ecommerce service plans with a 12 month term or a 24 month term in order to receive a discount, the F3ECSA shall be effective for the full term's length (a 12 month contract shall be in effect for 12 months after the signup date, a 24 month contract shall be in effect for 24 months after the signup date). If Merchant decides to break this term contract before the term's length expires, Merchant shall pay Fortune3™ an Early Termination Fee for a total of $99.95. Merchant is also responsible for paying Fortune3™ all of the fees owed by Merchant for all of the services provided by Fortune3™ to Merchant prior to the termination of the services (section 5.0, 5.1, 5.2, 5.2.1, 5.2.2, 5.2.3, 5.2.4, 5.2.5, 5.2.6, 5.3, 5.4, 5.5, 5.6). Once the Early Termination Fee and the fees owed by Merchant has been paid to Fortune3™, Merchant will no longer be liable for paying Fortune3™ the Monthly E-Commerce Fees nor the Monthly Transaction Fees corresponding to their plan, and the terms of the F3ECSA will no longer be valid between Fortune3™ and that Merchant.

8.0 Merchant PRIVACY

8.1 Merchant Information. Fortune3™ maintains information about Merchant and the Ecommerce Web site on Fortune3™ servers, including but not limited to Merchant’s account registration information, Merchant's customer order information, sales information, and clickstream data ("Customer Information"). Merchant grants to Fortune3™ a non-exclusive, worldwide, royalty-free, perpetual license to use Merchant Information in aggregate form (i.e., in a form that is not individually attributable to the Merchant) for research, marketing and other promotional purposes.

8.1.1 Merchant agrees that Fortune3™ 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 F3ECSA; (d) to respond to claims that the Merchant or E-Commerce Website is engaged in activities that violate the rights of third parties; or (e) to protect the rights or interests of Fortune3™, 'Fortune3™ Ecommerce' or others; provided, however, that nothing in this section shall impose a duty on Fortune3™ to make any such disclosures.

8.1.2 Merchant agrees that Fortune3™ may delete customer credit card information from Fortune3™ servers 14 days after Merchant retrieves such information, and may delete all other Merchant Information from Fortune3™ servers at the end of each calendar year.

8.2 Password. Merchant shall receive a password from Fortune3™ to provide access to and use of the Wizard Software and Online E-Commerce Software and Services. Merchant is entirely responsible for any and all activities which occur under Merchant’s account and password. Merchant agrees to keep its password confidential, to allow no other person or company to use its account, and to notify Fortune3™ promptly if Merchant has any reason to believe that the security of its account has been compromised.

8.3 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 Fortune3™ may access Merchant's account and its contents as necessary to identify or resolve technical problems or respond to complaints about the Service.

8.4 Merchant Privacy Policy. Merchant agrees (a) to post a privacy policy in its Merchant Ecommerce Web site that, at a minimum, discloses any and all uses of personal information collected from users by Merchant; (b) to include in Merchant's privacy policy a paragraph provided or approved by Fortune3™ that describes Fortune3's collection and use of Merchant's customer information, (c) to provide a hypertext link to Merchant’s privacy policy on the home page of the Merchant E-Commerce Website and on all pages where Merchant collects personal information from users, including but not limited to all check out pages; and (d) to use personal information only as expressly permitted by Merchant’s privacy policy.

9.0 MAINTENANCE AND SUPPORT

9.1 Merchant can obtain assistance with any technical difficulty that may arise in connection with Merchant's utilization of the Wizard Software or Online Ecommerce Software and Services by requesting assistance by E-mail to support@fortune3.com. Fortune3™ reserves the right to establish limitations on the extent of such support, and the hours at which it is available.

9.2 Merchant is responsible for obtaining and maintaining its Internet connectivity either through telephone, cable, dsl, T1or otherwise, and also for the computer hardware and other equipment needed for its access to and use of the Wizard Software and Online E-Commerce Software and Services and Merchant shall be responsible for all charges related thereto.

10.0 INDEMNITY

Merchant agrees to indemnify and hold harmless Fortune3™, 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 Ecommerce Web site, any alleged violation of the F3ECSA, 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 E-Commerce Website. Fortune3™ 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.

11.0 DISCLAIMER OF WARRANTIES AND LIABILITIES

THE 'FORTUNE3™ ONLINE STORE BUILDER' ("WIZARD SOFTWARE") AND ALL OF THE WEB HOSTING SERVICES AND E-COMMERCE SHOPPING CART SOFTWARE AND SERVICES PROVIDED BY FORTUNE3™ THROUGH WEB SERVERS OPERATED BY FORTUNE3™ ARE OFFERED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANT ABILITY, 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 WIZARD SOFTWARE AND ONLINE E-COMMERCE SOFTWARE AND SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE OR THAT THE WIZARD SOFTWARE OR THE E-COMMERCE SHOPPING CART SOFTWARE OR THE WEB HOSTING SERVICES WILL PROVIDE UNINTERRUPTED, TIMELY OR ERROR FREE SERVICES. THE SECURITY MECHANISM INCORPORATED IN THE WIZARD SOFTWARE, THE E-COMMERCE SHOPPING CART SOFTWARE, AND THE WEB HOSTING SERVICES HAVE INHERENT LIMITATIONS AND MERCHANT MUST DETERMINE THAT THEY ADEQUATELY MEET ITS REQUIREMENTS. MERCHANT ACKNOWLEDGES AND AGREES THAT ANY MATERIAL AND/OR DATA UPLOADED, 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 UPLOAD OR DOWNLOAD OF SUCH MATERIAL AND/OR DATA. FORTUNE3™, 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 FORTUNE3™ IS AWARE OF THE RISK OF SUCH DAMAGES, THAT RESULT IN ANY WAY FROM MERCHANT’S USE OR INABILITY TO USE THE WIZARD SOFTWARE OR THE E-COMMERCE SHOPPING CART SOFTWARE OR THE WEB HOSTING SERVICES, OR THAT RESULT FROM ERRORS, DEFECTS, OMISSIONS, DELAYS IN OPERATION OR TRANSMISSION, OR ANY OTHER FAILURE OF PERFORMANCE OF THE ONLINE E-COMMERCE SERVICES OR THE WIZARD SOFTWARE. FORTUNE3™’S LIABILITY TO MERCHANT SHALL NOT, FOR ANY REASON, EXCEED MERCHANT'S PAYMENT LIABILITY TO FORTUNE3™ ACCOUNTED ONLY ON THE TIME DURATION OF THE SOFTWARE OR SERVICE DISFUNCTIONALITY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR LIABILITIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.

12.0 NO RESALE OR ASSIGNMENT OF SERVICE

Merchant agrees not to resell or assign or otherwise transfer its rights or obligations under the F3ECSA without the express written authorization of Fortune3™.

13.0 FORCE MAJEURE

Neither party shall be liable to the other for any delay or failure in performance under the F3ECSA resulting directly or indirectly from acts of nature or causes beyond its reasonable control.

14.0 NOTICES

Any notices or communications under the F3ECSA 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 Fortune3™, such notices shall be addressed to sales@fortune3.com or 3042 NW 82 AVE, Doral, FL 33122, USA. If to Merchant, such notices shall be addressed to the electronic or mailing address specified when Merchant opens an account with 'Fortune3™ Ecommerce', or such other address as either party may give the other by notice as provided above.

15.0 ENTIRE AGREEMENT

The F3ECSA 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.

16.0 GENERAL

The F3ECSA and the relationship between Merchant and Fortune3™ shall be governed by the laws of the state of Florida without regard to its conflict of law provisions. Merchant and Fortune3™ agree to submit to the personal and exclusive jurisdiction of the Superior Court of the State of Florida for the County of Dade or the United States District Court for the Southern District of Florida. Fortune3™’s failure to exercise or enforce any right or provision of the F3ECSA shall not constitute a waiver of such right or provision. If any provision of the F3ECSA 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 F3ECSA 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 F3ECSA must be filed within one (1) year after such claim or cause of action arose, or be forever barred. The section titles in the F3ECSA are for convenience only and have no legal or contractual effect.