Terms of Service

1 Agreement to Terms

Welcome to FBCommerce! These Terms of Service ("Terms," "Agreement") constitute a legally binding agreement between you ("User," "you," "your") and FBCommerce, a service company of FIFTHBOSTON HOLDINGS ("FBCommerce," "Company," "we," "us," "our"), governing your access to and use of the FBCommerce platform, including our website located at fbcommerce.fifthboston.com, our application programming interfaces (APIs), and all related services (collectively, the "Service").

If you are entering into this Agreement on behalf of a company, organization, or other legal entity, you represent and warrant that you have the authority to bind such entity to these Terms, in which case "you" and "your" shall refer to such entity.

2 Service Description

2.1 Platform Overview

FBCommerce is a software-as-a-service (SaaS) e-commerce platform that enables businesses to create, manage, and operate online stores. Our platform provides:

• Multi-store management capabilities
• Product catalog and inventory management
• Order processing and fulfillment tools
• Payment processing integrations
• Customer relationship management features
• Analytics and reporting dashboards
• API access for custom integrations
• Headless commerce architecture support
• Marketing and SEO tools
• Theme customization and design tools

2.2 Eligibility

To use the Service, you must:

• Be at least 18 years of age or the age of legal majority in your jurisdiction
• Have the legal capacity to enter into a binding contract
• Not be prohibited from using the Service under applicable laws
• Not have been previously suspended or removed from the Service
• If representing a business, have the authority to bind that business to these Terms

2.3 Service Availability

While we strive to maintain continuous availability of the Service, we do not guarantee uninterrupted access. The Service may be temporarily unavailable due to scheduled maintenance, updates, or circumstances beyond our control. We will make reasonable efforts to provide advance notice of planned maintenance.

3 Account Registration & Responsibilities

3.1 Account Creation

To access certain features of the Service, you must register for an account. During registration, you agree to:

• Provide accurate, current, and complete information
• Maintain and promptly update your account information
• Keep your login credentials secure and confidential
• Accept responsibility for all activities under your account
• Notify us immediately of any unauthorized use

3.2 Account Security

You are solely responsible for maintaining the confidentiality of your account credentials and for all activities that occur under your account. FBCommerce will not be liable for any loss or damage arising from your failure to maintain the security of your account credentials.

3.3 Account Restrictions

You may not:

• Share your account credentials with third parties
• Allow others to access your account
• Create multiple accounts for abusive purposes
• Use another person's account without permission
• Sell, transfer, or sublicense your account

3.4 Business Accounts

If you create an account for a business, you represent that you have the authority to act on behalf of that business and bind it to these Terms. The business accepts these Terms and will be responsible for all actions taken through the account.

4 Subscription Terms, Billing & Payment

4.1 Subscription Plans

FBCommerce offers the following subscription tiers:

4.2 Billing Cycle

Subscription fees are billed monthly in advance on the same calendar day as your initial subscription date. If your billing date falls on a day not contained in a given month, you will be billed on the last day of that month.

4.3 Payment Methods

We accept major credit cards, debit cards, and other payment methods as displayed during checkout. You authorize us to charge your selected payment method for all applicable fees. You are responsible for maintaining valid payment information.

4.4 Automatic Renewal

Your subscription will automatically renew at the end of each billing period unless you cancel before the renewal date. You authorize us to charge the applicable subscription fee to your payment method upon each renewal.

4.5 Price Changes

We may change our subscription prices at any time. Price changes will not affect your current billing period but will apply to subsequent renewals. We will provide at least 30 days' notice of any price increase.

4.6 Taxes

All fees are exclusive of applicable taxes, levies, or duties imposed by taxing authorities. You are responsible for paying all such taxes, except for taxes based on FBCommerce's net income.

4.7 Failed Payments

If we are unable to process your payment, we will attempt to notify you and may retry the charge. If payment remains unsuccessful after reasonable attempts, we may suspend or terminate your access to the Service.

4.8 Refunds

Subscription fees are non-refundable except as expressly stated in these Terms or as required by applicable law. If you believe you are entitled to a refund, please contact us at hello.commerce@fifthboston.com.

4.9 Cancellation

You may cancel your subscription at any time through your account settings or by contacting us. Cancellation will take effect at the end of your current billing period. You will retain access to the Service until then. No partial refunds will be provided for unused portions of a billing period.

4.10 Plan Changes

You may upgrade or downgrade your subscription plan at any time. Upgrades take effect immediately, and you will be charged a prorated amount. Downgrades take effect at the start of your next billing period.

5 Free Trial Terms

5.1 Trial Period

FBCommerce offers a 14-day free trial for new users. During the trial period, you will have access to the features of the Starter plan without charge.

5.2 Trial Eligibility

Free trials are available only to new FBCommerce users who have not previously had an account or used a free trial. We reserve the right to determine trial eligibility and may refuse or revoke trials for suspected abuse.

5.3 Trial Limitations

Free trial accounts may be subject to certain limitations on features, storage, or bandwidth. These limitations will be clearly disclosed during the trial signup process.

5.4 Conversion to Paid Subscription

At the end of your free trial, your account will not automatically convert to a paid subscription. You must actively select a subscription plan and provide payment information to continue using the Service. If you do not subscribe, your account access will be limited or suspended.

5.5 Data Retention After Trial

If you do not convert to a paid subscription, we will retain your data for 30 days after the trial ends, during which time you may still subscribe and recover your data. After 30 days, we may delete your data in accordance with our data retention policies.

6 Acceptable Use Policy

Your use of the Service is subject to our Acceptable Use Policy (AUP), which is incorporated into these Terms by reference. By using the Service, you agree to comply with the AUP.

6.1 Prohibited Activities

You agree not to use the Service to:

• Violate any applicable laws, regulations, or third-party rights
• Sell or distribute illegal products or services
• Engage in fraud, deception, or misleading practices
• Infringe on intellectual property rights
• Distribute malware, viruses, or harmful code
• Attempt to gain unauthorized access to systems or data
• Harass, abuse, or harm others
• Send spam or unsolicited communications
• Interfere with the proper functioning of the Service
• Circumvent security measures or access restrictions
• Use automated means to scrape or access the Service without authorization
• Resell or redistribute the Service without authorization

6.2 Prohibited Products and Services

You may not use FBCommerce to sell products or services that are:

• Illegal in any jurisdiction where you operate
• Counterfeit, stolen, or fraudulent
• Weapons, explosives, or dangerous materials
• Controlled substances or drug paraphernalia (except as legally permitted)
• Adult content (unless properly disclosed and legally permitted)
• Products that infringe intellectual property rights
• Items subject to trade restrictions or sanctions

6.3 Compliance

You are responsible for ensuring that your use of the Service, including the products and services you sell, complies with all applicable laws and regulations in your jurisdiction and the jurisdictions of your customers.

6.4 Enforcement

We reserve the right to investigate potential violations and take appropriate action, including suspending or terminating accounts, removing content, and cooperating with law enforcement authorities.

7 Intellectual Property Rights

7.1 FBCommerce Intellectual Property

The Service, including all software, algorithms, interfaces, designs, text, graphics, logos, icons, images, audio clips, and the compilation thereof, is owned by FBCommerce or its licensors and is protected by copyright, trademark, and other intellectual property laws.

7.2 License to Use the Service

Subject to your compliance with these Terms, FBCommerce grants you a limited, non-exclusive, non-transferable, revocable license to access and use the Service solely for your internal business purposes during the term of your subscription.

7.3 Restrictions

You may not:

• Copy, modify, or distribute the Service or its components
• Reverse engineer, decompile, or disassemble the Service
• Remove or alter any proprietary notices or labels
• Use the Service to develop competing products
• Sublicense, sell, or transfer your rights to the Service
• Use FBCommerce trademarks without prior written consent

7.4 Feedback

If you provide feedback, suggestions, or ideas about the Service ("Feedback"), you grant FBCommerce a perpetual, irrevocable, worldwide, royalty-free license to use, modify, and incorporate such Feedback into the Service without any obligation to you.

7.5 API Usage

Access to and use of our APIs is subject to these Terms and any additional API documentation or guidelines we may provide. You may use our APIs only to develop applications that integrate with the Service for your own use.

8 User Content & Data Ownership

8.1 Your Content

"User Content" means any content, data, information, materials, products, or other items that you upload, submit, store, or transmit through the Service, including but not limited to product listings, images, descriptions, customer data, and store configurations.

8.2 Ownership of User Content

You retain all ownership rights to your User Content. FBCommerce does not claim ownership of any User Content you provide. Your product data, customer information, and store content remain your property.

8.3 License to FBCommerce

By uploading User Content to the Service, you grant FBCommerce a non-exclusive, worldwide, royalty-free license to use, copy, store, transmit, and display your User Content solely as necessary to provide the Service to you. This license terminates when you remove your User Content or terminate your account, except for content that has been shared with others who have not deleted it.

8.4 User Content Representations

You represent and warrant that:

• You own or have the necessary rights to your User Content
• Your User Content does not violate any third-party rights
• Your User Content complies with all applicable laws
• Your User Content does not contain viruses or harmful code

8.5 Data Export

You may export your User Content at any time through the Service's export features. We recommend maintaining regular backups of your data.

8.6 Data Processing

Our collection and use of personal information in connection with the Service is described in our Privacy Policy, which is incorporated into these Terms by reference.

8.7 Customer Data

You are responsible for obtaining all necessary consents from your customers for the collection and processing of their data through your use of the Service. You agree to comply with all applicable data protection laws regarding your customers' personal information.

9 Limitation of Liability

9.1 Exclusion of Certain Damages

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL FBCOMMERCE, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, OR SERVICE PROVIDERS BE LIABLE FOR:

• Any indirect, incidental, special, consequential, or punitive damages
• Loss of profits, revenue, data, or business opportunities
• Cost of substitute goods or services
• Business interruption or loss of goodwill
• Any damages arising from unauthorized access to or alteration of your data

WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9.2 Cap on Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL LIABILITY OF FBCOMMERCE AND ITS AFFILIATES ARISING OUT OF OR RELATING TO THESE TERMS OR THE SERVICE SHALL NOT EXCEED THE GREATER OF:

• The amounts paid by you to FBCommerce during the twelve (12) months prior to the claim, or
• One Hundred U.S. Dollars ($100.00)

9.3 Basis of the Bargain

The limitations in this section reflect the allocation of risk between the parties. The limitations specified in this section will survive and apply even if any limited remedy specified in these Terms is found to have failed of its essential purpose.

9.4 Jurisdictional Limitations

Some jurisdictions do not allow the exclusion or limitation of certain damages. If these laws apply to you, some or all of the above exclusions or limitations may not apply, and you may have additional rights.

10 Disclaimer of Warranties

10.1 "As Is" Provision

THE SERVICE IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

10.2 No Guarantee

FBCOMMERCE DOES NOT WARRANT THAT:

• The Service will be uninterrupted, timely, secure, or error-free
• The results obtained from the Service will be accurate or reliable
• The quality of any products, services, or information obtained through the Service will meet your expectations
• Any errors in the Service will be corrected

10.3 Third-Party Services

We do not control and are not responsible for any third-party services, content, or products that may be accessed through or integrated with the Service. Your use of third-party services is at your own risk and subject to the terms of those third parties.

10.4 No Professional Advice

The Service does not constitute legal, tax, financial, or other professional advice. You should consult with appropriate professionals regarding your specific circumstances.

10.5 Beta Features

We may offer beta or experimental features that are not yet generally available. These features are provided "as is" and may be modified or discontinued at any time without notice.

11 Indemnification

11.1 Your Indemnification Obligations

You agree to indemnify, defend, and hold harmless FBCommerce, its parent company FIFTHBOSTON HOLDINGS, and their respective officers, directors, employees, agents, licensors, and service providers from and against any and all claims, liabilities, damages, losses, costs, expenses, and fees (including reasonable attorneys' fees) arising out of or relating to:

• Your use of the Service
• Your User Content
• Your violation of these Terms
• Your violation of any rights of a third party
• Your violation of any applicable laws or regulations
• The products or services you sell through the Service
• Any disputes between you and your customers

11.2 Indemnification Procedure

FBCommerce will promptly notify you of any claim subject to indemnification and will provide reasonable cooperation at your expense. FBCommerce reserves the right, at your expense, to assume the exclusive defense and control of any matter subject to indemnification, and you agree not to settle any such matter without our prior written consent.

12 Termination

12.1 Termination by You

You may terminate your account at any time by:

• Using the account cancellation feature in your account settings
• Contacting us at hello.commerce@fifthboston.com

Termination will be effective at the end of your current billing period.

12.2 Termination by FBCommerce

FBCommerce may suspend or terminate your account and access to the Service at any time, with or without cause, and with or without notice, including but not limited to situations where:

• You breach these Terms or any applicable policies
• You engage in fraudulent or illegal activities
• Your account has been inactive for an extended period
• We are required to do so by law
• We discontinue the Service

12.3 Effect of Termination

Upon termination:

• Your right to access and use the Service immediately ceases
• You remain responsible for all fees incurred prior to termination
• We may delete your User Content after a reasonable retention period (typically 30 days)
• Provisions that by their nature should survive will remain in effect

12.4 Data Export Before Termination

We recommend exporting your User Content before terminating your account. After termination, we are under no obligation to retain or provide access to your data.

12.5 Survival

The following sections shall survive termination: Intellectual Property, User Content & Data (regarding ownership), Limitation of Liability, Disclaimer of Warranties, Indemnification, Dispute Resolution, Governing Law, and General Provisions.

13 Dispute Resolution & Arbitration

13.1 Informal Resolution

Before initiating any formal dispute resolution proceeding, you agree to first contact us at hello.commerce@fifthboston.com to attempt to resolve the dispute informally. We will attempt to resolve the dispute through good-faith negotiations for at least 30 days.

13.2 Binding Arbitration

If we cannot resolve the dispute informally, you and FBCommerce agree that any dispute, claim, or controversy arising out of or relating to these Terms or the Service (collectively, "Disputes") will be resolved exclusively through binding individual arbitration rather than in court, except that either party may seek injunctive or other equitable relief in court to protect intellectual property rights.

13.3 Arbitration Rules

The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with its Commercial Arbitration Rules. The arbitration will be conducted in the English language and will take place in Wilmington, Delaware, unless the parties agree otherwise or the arbitrator determines that an alternative location is more appropriate.

13.4 Arbitrator Authority

The arbitrator will have exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this arbitration agreement, including the formation, scope, and waiver of any provision hereof.

13.5 Class Action Waiver

YOU AND FBCOMMERCE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. The arbitrator may not consolidate more than one person's claims and may not preside over any form of representative or class proceeding.

13.6 Arbitration Fees

Payment of arbitration fees will be governed by the AAA's rules. If you demonstrate that arbitration costs are prohibitive compared to litigation costs, FBCommerce will pay as much of your arbitration fees as the arbitrator deems necessary to prevent arbitration from being cost-prohibitive.

13.7 Opt-Out

You may opt out of this arbitration agreement by sending written notice to hello.commerce@fifthboston.com within 30 days of first accepting these Terms. Your notice must include your name, address, account email, and a clear statement that you wish to opt out of arbitration.

13.8 Small Claims Court

Notwithstanding the foregoing, either party may bring an individual action in small claims court for disputes within the court's jurisdiction.

14 Governing Law & Jurisdiction

14.1 Governing Law

These Terms and any Disputes arising out of or related to these Terms or the Service shall be governed by and construed in accordance with the laws of the State of Delaware, United States, without regard to its conflict of law principles.

14.2 Jurisdiction

Subject to the arbitration provisions above, you agree that any legal action or proceeding relating to these Terms or the Service shall be brought exclusively in the state or federal courts located in New Castle County, Delaware. You consent to the personal jurisdiction and venue of such courts and waive any objection based on inconvenient forum.

14.3 Compliance with Local Laws

You are responsible for compliance with all local laws applicable to your use of the Service. We make no representation that the Service is appropriate or available for use in all locations.

15 Modification of Terms

15.1 Right to Modify

FBCommerce reserves the right to modify these Terms at any time. We will provide notice of material changes by:

• Posting the updated Terms on our website
• Updating the "Last Updated" date at the top of these Terms
• Sending an email to the address associated with your account
• Providing notice through the Service

15.2 Effective Date of Changes

Material changes will become effective 30 days after posting or such later date as specified in the notice. Non-material changes may become effective immediately upon posting.

15.3 Your Acceptance of Changes

Your continued use of the Service after the effective date of any changes constitutes your acceptance of the modified Terms. If you do not agree to the modified Terms, you must stop using the Service and may terminate your account.

15.4 Prior Versions

Prior versions of these Terms may be available upon request for reference purposes.

16 General Provisions

16.1 Entire Agreement

These Terms, together with the Privacy Policy, Acceptable Use Policy, and any other policies or agreements referenced herein, constitute the entire agreement between you and FBCommerce regarding the Service and supersede all prior agreements, negotiations, and understandings.

16.2 Severability

If any provision of these Terms is found to be invalid, illegal, or unenforceable, the remaining provisions shall continue in full force and effect. The invalid provision shall be modified to the minimum extent necessary to make it valid and enforceable while preserving its original intent.

16.3 Waiver

The failure of FBCommerce to enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. Any waiver must be in writing and signed by an authorized representative of FBCommerce.

16.4 Assignment

You may not assign or transfer these Terms or your rights hereunder without our prior written consent. FBCommerce may assign these Terms without restriction. Any attempted assignment in violation of this section shall be void.

16.5 Force Majeure

FBCommerce shall not be liable for any failure or delay in performance due to circumstances beyond our reasonable control, including but not limited to acts of God, natural disasters, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, pandemic, strikes, or shortages of transportation, facilities, fuel, energy, labor, or materials.

16.6 No Third-Party Beneficiaries

These Terms do not create any third-party beneficiary rights except as expressly provided herein.

16.7 Relationship of the Parties

Nothing in these Terms creates a partnership, joint venture, agency, or employment relationship between you and FBCommerce. Neither party has authority to bind the other or incur obligations on behalf of the other.

16.8 Notices

Notices to FBCommerce must be sent to hello.commerce@fifthboston.com or to our mailing address. Notices to you will be sent to the email address associated with your account.

16.9 Headings

The section headings in these Terms are for convenience only and have no legal or contractual effect.

16.10 Language

These Terms were drafted in English. If these Terms are translated into another language, the English version shall control in the event of any conflict.

16.11 Export Compliance

You agree to comply with all applicable export laws and regulations. You may not use or export the Service in violation of U.S. export laws or the laws of any other applicable jurisdiction.

16.12 U.S. Government Users

If you are a U.S. government end user, the Service is a "commercial item" as defined in 48 C.F.R. §2.101, consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable.

17 Contact Information

If you have any questions, concerns, or feedback regarding these Terms of Service, please contact us:

Thank you for choosing FBCommerce. We look forward to powering your e-commerce success.