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TERMS AND CONDITIONS   printable version (Word Document)

APOLLO SOFTWARE TERMS AND CONDITIONS Service Capacity: Healthy Commerce Program which includes development of web site on Apollo Software, Inc. ecommerce platform, special tier 4 product pricing (per ApolloFulfillment.com fulfillment agreement), access and use of fully integrated set of web-based modules and implementation support to initiate such access and use, fully integrated and customized drop ship services (per ApolloFulfillment.com fulfillment agreement). Service Term: 12 months. Contract extends for additional 12 months terms automatically unless cancelled be either party. Program Option: 1. Healthy Commerce Program. $1,499 upfront payment and $100 per month hosting/platform/database maintenance fee. 2. Healthy Commerce Program with finance option. $299 deposit and 6 payments of $349 (includes 6 months hosting). Merchant Account: 1. Customer to provide and use their own credit card merchant account 2. Customer would like Apollo to set up a credit card merchant account for them ($99 set up fee) 3. Customer will use an Apollo merchant account Payment Method: 1. ACH (Automated Clearing House) direct debits from bank account (please complete attached authorization form) 2. Credit Card payments charged to a credit card (please complete attached authorization form) 1. SERVICES AND SUPPORT 1.1 Subject to the terms and conditions of this Agreement, Apollo will use reasonable efforts to provide the services described in the Services Agreement Cover Sheet (the "Services"). 1.2 Subject to the terms hereof, Apollo will use reasonable efforts to provide Customer with support services, through electronic mail or telephone, in accordance with Apollo's standard practice. 2. RESTRICTIONS AND RESPONSIBILITIES 2.1 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Apollo' standard policies then in effect as published in the Apollo web site or otherwise furnished to Customer (the "Policy") and all applicable laws (including but not limited to policies and laws related to spamming, privacy, obscenity or defamation). Customer hereby agrees to indemnify and hold harmless Apollo against any damages, losses, liabilities, settlements and expenses (including without limitation costs and reasonable attorneys' fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer's use of Services. Although Apollo has no obligation to monitor the content provided by Customer or Customer's use of the Services, Apollo may do so and may remove any such content or prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing. 3. CONFIDENTIALITY 3.1 Each undersigned party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose information relating to the Disclosing Party's business (hereinafter referred to as "Proprietary Information" of the Disclosing Party). Notwithstanding the foregoing, nothing will be considered "Proprietary Information" of the Disclosing Party unless either it is or was disclosed in tangible form and is conspicuously marked "Confidential", "Proprietary" or the like. 3.2 The Receiving Party agrees (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to divulge any such Proprietary Information to any third person. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after three years following the disclosure thereof or any information that the Receiving Party can document (i) is or becomes generally available to the public, or (ii) was in its possession or known by it prior to receipt from the Disclosing Party, or (iii) was rightfully disclosed to it by a third party, or (iv) was independently developed without use of any Proprietary Information of the Disclosing Party or (v) is required to be disclosed by law. 4. PAYMENT OF FEES 4.1 Customer will pay Apollo the then applicable fees for the Services within the Service Capacity specified in the Service Agreement Cover Sheet. The set up fee and the monthly fees will be billed and collected from the Customer per the payment method selected in the Service Agreement Cover Sheet. 4.2 Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding overdue balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. Services may also be immediately terminated if invoices are not paid when due. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Apollo' net income. 5. TERMINATION 5.1 Subject to earlier termination as provided below, this Service Agreement is for the initial Service Term as specified in the Service Agreement Cover Sheet, and shall be automatically renewed for additional periods of the same duration as the Service Term, unless either party requests termination at least thirty (30) days prior to the end of the then-current term. 5.2 In addition to any other remedies it may have, either party may also terminate this Service Agreement upon thirty (30) days' written notice (or ten (10) days in the case of nonpayment), if the other party breaches any of the terms or conditions of this Service Agreement and fails to cure such breach within the 30-day period. Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, Apollo will delete archived data within 30 days after the date of termination and Customer will immediately remove any and all content belonging to Apollo from its web site, email newsletters and anywhere else where Apollo content is being used. Apollo content is defined as Apollo's product database, article database, image database, email newsletters and any related articles and graphics that Apollo may have created on behalf of Customer. 5.3 All sections of this Service Agreement, which by their nature should survive termination, will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability. 6. WARRANTY AND DISCLAIMER Apollo shall use reasonable commercial efforts consistent with prevailing industry standards to maintain the Services in a manner, which minimizes errors, and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Apollo or by third-party providers, or because of other causes beyond Apollo' reasonable control, but Apollo shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, APOLLO DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. THE SERVICES ARE PROVIDED "AS IS" AND APOLLO DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. 7. LIMITATION OF LIABILITY Under no circumstances shall Apollo, its suppliers, officers, affiliates, representatives, contractors and employees be liable to Client or any other third party as a result of the services provided by Apollo under this Agreement or arising from any claim relating to this Agreement or the subject matter hereof. Such limitation of liability shall apply to prevent recovery of direct, indirect, incidental, consequential, special, exemplary, and punitive damages whether such claim is based on warranty, contract, tort (including negligence), or otherwise (even if Apollo has been advised of the possibility of such damages). Such limitation of liability shall apply notwithstanding a failure of essential purpose of any limited remedy and to the fullest extent permitted by law. 8. MISCELLANEOUS 8.1 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. 8.2 Neither party shall assign this Agreement in whole or in part without the prior written consent of the other party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, each party shall have the right to assign this Agreement, upon written notice to the other party, to any entity with which it merges or by which it is acquired, provided that the assignee entity agrees to be bound by the terms and conditions of this Agreement. Furthermore, Apollo shall have the right to assign its right to receive payments hereunder. 8.3 Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. 8.4 No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Apollo in any respect whatsoever. 8.5 In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover its costs and attorneys' fees. 8.6 All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. 8.7 This Agreement shall be governed by the laws of the State of Massachusetts without regard to its conflict of laws provisions. The Customer irrevocably submits to the exclusive jurisdiction of any federal or state court sitting in Massachusetts, over any suit, action or proceeding arising out of or related to this Service Agreement. The Customer irrevocably waives, to the fullest extent it may effectively do so under applicable law, any objection it may now or hereafter have to the laying of the venue of any suit, action or proceeding brought in any such court and any claim that the same has been brought in an inconvenient forum. Appendix A - Start Up and Ongoing Costs A) Start Up and Ongoing Costs Your initial investment and ongoing costs of this full e-commerce enabled business are as follows: Web Site Development and Account Set Up. $1,499. This fee includes complete development and account set up of a web site using the Apollo Software E-Commerce technology, branded with your own web site address (URL), POP email accounts and custom graphics. This development fee also includes 4 hours of technical support after your web site is completed. Additional technical support will be billed at our current tech support hourly rates. We also have a financing option available where you can pay $299 upfront and then make 6 monthly payments of $349 (which includes your first 6 months hosting fees). Ongoing Monthly Fees. You will be billed $100 per month for hosting and product database maintenance. If you are utilizing the financing option, this billing will start in the 7th month of the contract. Ongoing Website fees. In addition to the monthly hosting and product database maintenance fee (above), the following charges will be billed to you each month: Secure Payment Transactions: $0.10 per transaction Data Storage & Transfer: Your Healthy Commerce Online Store includes an unlimited number of web pages and product pages as well as 10 GB of Average Monthly Disk Storage + Total Monthly Data Transfer (which is more than enough for most web sites). To the extent that your Average Monthly Disk Storage + Total Monthly Data Transfer exceeds 10 GB, we charge you $2 per additional GB each month. Your Healthy Commerce Online Store utilizes the most advanced security systems for your online payment transactions, and this fee covers the costs related to securely passing payment information to and from your payment processing bank, and storing your customer's payment information in an encrypted, CISP Compliant data center. APOLLO FULFILLMENT TERMS AND CONDITIONS Service Capacity: Healthy Commerce Program fulfillment and product distribution services which includes special tier 4 product pricing and fully integrated and customized drop ship services. Service Term: 12 months. Contract extends for additional 12 months terms automatically unless cancelled be either party. Pricing Method: 1. Customer to provide and use their own credit card merchant account (and receive Wholesale Discount Pricing) 2. Customer will use an Apollo merchant account (and receive Retail Sales Commissions) Payment Method: 1. ACH (Automated Clearing House) direct debits from bank account 2. Credit Card payments charged to a credit card 1. SERVICES AND SUPPORT 1.1 Subject to the terms and conditions of this Agreement, Apollo will use reasonable efforts to provide the services described in the Services Agreement Cover Sheet (the "Services"). 1.2 Subject to the terms hereof, Apollo will use reasonable efforts to provide Customer with support services, through electronic mail or telephone, in accordance with Apollo's standard practice. 1.3 Return Policy - Customer will adopt Apollo return policy and both parties agree that to the extent that returns received from Customers' orders are deemed losses; Customer will bear the cost of those losses. To the extent that returns of unopened and resalable bottles are received in accordance with Apollo's return policy, Customer will be credited for these returns at the price that Customer was initially charged for such products. 2. RESTRICTIONS AND RESPONSIBILITIES 2.1 This is a contract for Drop Ship Services to be provided by Apollo to the Customer. As part of this contract, Apollo will provide Customer access to its product database, product images and other materials it deems appropriate to allow Customer to effectively market the products carried by Apollo. Customer will not, directly or indirectly use this information provided by Apollo for any other purpose other than selling products via its website or in its catalog. The Customer expressly agrees that it will not use such information for the benefit of a third party. 2.2 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Apollo' standard policies then in effect as published in the Apollo web site or otherwise furnished to Customer (the "Policy") and all applicable laws (including but not limited to policies and laws related to spamming, privacy, obscenity or defamation). Customer hereby agrees to indemnify and hold harmless Apollo against any damages, losses, liabilities, settlements and expenses (including without limitation costs and reasonable attorneys' fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer's use of Services. Although Apollo has no obligation to monitor the content provided by Customer or Customer's use of the Services, Apollo may do so and may remove any such content or prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing. 2.3 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, server, software, operating system, networking, web servers, long distance and local telephone service (collectively, "Equipment"). Customer shall be responsible for ensuring that such Equipment is compatible with the Services (and, to the extent applicable, the Software) and complies with all configurations and specifications set forth in Apollo' published policies then in effect. 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. 2.4 As part of this contract, Customer will provide Apollo access to its customer database and other materials it deems appropriate to allow Apollo to effectively fulfill Customer's orders. Apollo will not, directly or indirectly use this information provided by Customer for any other purpose other than fulfilling orders for Customer. Apollo expressly agrees that it will not use such information for the benefit of a third party. 3. CONFIDENTIALITY 3.1 Each undersigned party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose information relating to the Disclosing Party's business (hereinafter referred to as "Proprietary Information" of the Disclosing Party). Notwithstanding the foregoing, nothing will be considered "Proprietary Information" of the Disclosing Party unless either it is or was disclosed in tangible form and is conspicuously marked "Confidential", "Proprietary" or the like. 3.2 The Receiving Party agrees (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to divulge any such Proprietary Information to any third person. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after three years following the disclosure thereof or any information that the Receiving Party can document (i) is or becomes generally available to the public, or (ii) was in its possession or known by it prior to receipt from the Disclosing Party, or (iii) was rightfully disclosed to it by a third party, or (iv) was independently developed without use of any Proprietary Information of the Disclosing Party or (v) is required to be disclosed by law. 4. PAYMENT OF FEES 4.1 Customer will pay Apollo the then applicable fees for the Services within the Service Capacity specified in the Service Agreement Cover Sheet. Customer will charge customer's credit cards on its web site for orders placed. Apollo will invoice Customer for actual products shipped and shipping costs of those products on a weekly basis. Customer agrees to pay Apollo for services rendered and products shipped on a weekly basis utilizing an ACH (automated clearing house) or credit card payment each week without delay. 4.2 Apollo will invoice Customer weekly for the shipments for that week. Full payment for invoices will be collected via an ACH payment within 3 business days after Customer receipt of the invoice, or the Services may be terminated. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding overdue balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Apollo' net income. Note: If you choose to have us do the credit card processing for your orders using one of our merchant accounts then you will receive a monthly commission check. If your sales exceed $50,000 per month you will receive semi-monthly commission checks. 5. TERMINATION 5.1 Subject to earlier termination as provided below, this Service Agreement is for the initial Service Term as specified in the Service Agreement Cover Sheet, and shall be automatically renewed for additional periods of the same duration as the Service Term, unless either party requests termination at least thirty (30) days prior to the end of the then-current term. 5.2 In addition to any other remedies it may have, either party may also terminate this Service Agreement upon thirty (30) days' written notice (or ten (10) days in the case of nonpayment), if the other party breaches any of the terms or conditions of this Service Agreement and fails to cure such breach within the 30-day period. Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, Apollo will delete archived data within 30 days after the date of termination and Customer will immediately remove any and all content belonging to Apollo from its web site, email newsletters and anywhere else where Apollo content is being used. Apollo content is defined as Apollo's product database, article database, image database, email newsletters and any related articles and graphics that Apollo may have created on behalf of Customer. 5.3 All sections of this Service Agreement, which by their nature should survive termination, will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability. 6. WARRANTY AND DISCLAIMER Apollo shall use reasonable commercial efforts consistent with prevailing industry standards to maintain the Services in a manner, which minimizes errors, and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Apollo or by third-party providers, or because of other causes beyond Apollo' reasonable control, but Apollo shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, APOLLO DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. THE SERVICES ARE PROVIDED "AS IS" AND APOLLO DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. 7. LIMITATION OF LIABILITY Under no circumstances shall Apollo, its suppliers, officers, affiliates, representatives, contractors and employees be liable to Client or any other third party as a result of the services provided by Apollo under this Agreement or arising from any claim relating to this Agreement or the subject matter hereof. Such limitation of liability shall apply to prevent recovery of direct, indirect, incidental, consequential, special, exemplary, and punitive damages whether such claim is based on warranty, contract, tort (including negligence), or otherwise (even if Apollo has been advised of the possibility of such damages). Such limitation of liability shall apply notwithstanding a failure of essential purpose of any limited remedy and to the fullest extent permitted by law. 8. MISCELLANEOUS 8.1 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. 8.2 Neither party shall assign this Agreement in whole or in part without the prior written consent of the other party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, each party shall have the right to assign this Agreement, upon written notice to the other party, to any entity with which it merges or by which it is acquired, provided that the assignee entity agrees to be bound by the terms and conditions of this Agreement. Furthermore, Apollo shall have the right to assign its right to receive payments hereunder. 8.3 Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. 8.4 No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Apollo in any respect whatsoever. 8.5 In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover its costs and attorneys' fees. 8.6 All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. 8.7 This Agreement shall be governed by the laws of the State of Massachusetts without regard to its conflict of laws provisions. The Customer irrevocably submits to the exclusive jurisdiction of any federal or state court sitting in Massachusetts, over any suit, action or proceeding arising out of or related to this Service Agreement. The Customer irrevocably waives, to the fullest extent it may effectively do so under applicable law, any objection it may now or hereafter have to the laying of the venue of any suit, action or proceeding brought in any such court and any claim that the same has been brought in an inconvenient forum. Appendix A - Pricing Schedule A) Product Pricing Apollo currently carries 130 product lines and nearly 4,000 products that you can offer to your customers. You are offered two different methods of making money from the sales of products provided by Apollo: 1) Wholesale Discount Pricing and 2) Retail Sales Commissions. The details of these methods are as follows: 1) Wholesale Discount Pricing If you use your own Payment Processing Account (merchant account) to collect the funds from sales, then you will receive invoices from Apollo representing the Wholesale Discounted Price of each product sold, and you keep the difference between the Wholesale Discounted Prices and your Retail Sales Prices. You will receive an additional discount off of the published wholesale price of each product you sell based upon the "Tiered Discount Schedule" below, which offers additional discounts for higher sales volumes, as follows: Average Monthly Sales Tiered Discount* Tier 1 - Under $10,000 3% Tier 2 - $10,001-$25,000 5% Tier 3 - $25,001-$50,000 7% Tier 4 - $50,001-$100,000 10% (HCP participants receive this pricing automatically) Tier 5 - Over $100,000 13% * Represents the discount below our wholesale pricing that you will receive on all of the product lines that we offer (there are some exceptions to this where the pricing Apollo receives on certain product lines does not allow us to provide additional discounts). Any additional products lines that Apollo will provide for Customer as part of the startup OR from time to time will be added to this pricing schedule once these additional products have been identified and finalized. From time to time, price changes that may affect the discounts of contracted product lines may occur. These price changes will primarily relate to changes in discounts or changes in wholesale pricing that Apollo currently receives from manufacturers and distributors. In these cases, Apollo has the right to adjust the pricing schedule to reflect such changes. 2) Retail Sales Commissions If you choose to use Apollo's Payment Processing Account (merchant account) to collect the funds from sales, then you will receive monthly payments from Apollo representing Retail Sales Commission for each product sold based upon the "Tiered Commission Schedule" below (monthly net shipped product sales times commission rate) as follows: Monthly Sales Sales Commission Under $10,000 13% $10,001-$25,000 15% $25,001-$50,000 16% (HCP participants receive this commission automatically) $50,001-$100,000 17% Over $100,000 18% Important Note: You will generally earn slightly more overall profit by having your own credit card merchant account so you will have to decide if it worth having this when you launch your site (you also have the option of creating this at a later date). Appendix B - Shipping Options Shipping Options Apollo will work with you to set up a comprehensive shipping methodology on your web site that will give your customers many choices so they can choose the shipping method that is right for their particular needs. We recommend that you use a shipping method called Super Saver Shipping as your primary shipping method. Packages shipped using this method will be sent via US First Class, US Priority Mail or UPS Ground based on the weight of the package and the most inexpensive shipping cost (which is determined at the time we ship each order). We will re-bill you for these shipments based on the following rate table (plus a $1 per order fulfillment fee). Shipping Method Re-bill Rate US First Class Mail $4.25 US Priority Mail $5.50 UPS Ground UPS List Rate less 2% discount UPS shipping options are also available which provide complete tracking and email notification to your customers. For UPS shipments, we will re-bill you based on the actual UPS List rates less a discount that we receive from UPS based on our volume (see below) plus a $1 per order fulfillment fee. Shipping Method Discount UPS Ground 2% UPS 3-Day 15% UPS 2-Day 20% UPS Next Day 20% For Military Addresses, PO Boxes, Alaska, Hawaii & US Territories we will use US First Class Mail or US Priority Mail to ship these packages. For orders shipped to Military Addresses and PO Boxes in the 48 contiguous US States, we will re-bill you $6.95 for orders with 1 item, $8.95 for orders with 2 items, and $10.95 for orders with 3 or more items. For orders shipped to Alaska, Hawaii and US Territories we will re-bill you based on our current rate table for these destinations plus a $1 per order fulfillment fee. For international shipments, we use Deutsche Post which is a multi-national company that has an extensive international network. We re-bill you for these shipments based on our current rate table for each foreign region. We now ship your orders out of our East Coast, Mid West and West Coast warehouses. We currently stock all of the products we offer in our East Coast and Mid West warehouses and our 1,500 most popular products in our West Coast warehouse. Since we do not ship international orders from our Mid West and West Coast warehouses, our fulfillment system will automatically assign all international shipments to our East Coast warehouse. Note: In all cases, we will work with you to set up the proper shipping methodologies and rates on your web site. If you choose to have us do the credit card processing for your orders using one of our merchant accounts then you will not be re-billed for shipping charges (as we will have already collected these).