If you visit at snapretail.com, or any other website managed by SnapRetail and/or any of its Affiliates or any successor or replacement of such website (collectively, the "Site"), you accept all terms and conditions hereof. In addition, when you visit any vendor or manufacturer affiliated with SnapRetail, whether or not included in the Site, you shall also be subject to the terms and conditions applicable to such vendor or manufacturer.
If you do not agree to all of the terms and conditions set forth herein, please refrain from using the Site and/or any additional services of SnapRetail.
SnapRetail provides the following products and services (i) an E-Marketing Platform (formerly TrafficBuilder), (ii) Online Product Offers (formerly SnapFinds), (iii) SnapAdvantage, and (iv) Sponsor-Driven Marketing (collectively, the "Services"). General terms and conditions that are applicable to all of SnapRetail's products and services are set forth below, followed by specific service terms applicable to each of the Services.
A. GENERAL TERMS AND CONDITIONS
1. Certain Definitions. Certain capitalized terms are defined above and in the body hereof. Certain other capitalized terms are set forth below. As used herein, "we," "us," and "SnapRetail" means SnapRetail, LLC.
"Affiliate" means with respect to any entity, any other entity that directly or indirectly controls, is controlled by, or is under common control with such entity. As used herein, "control" shall mean the ability to direct more than 50% of the voting shares/equity units of an entity.
"Content" means content, text, templates, images, video and audio, multimedia, notes, ideas, suggestions, concepts or other material including, without limitation, copyrightable works under applicable Law.
"Online Product Offers" means the interactive online service operated by SnapRetail on the Internet, consisting of information services, content and transaction capabilities facilitated through SnapRetail, Vendors, Retailers and certain affiliates or partners of SnapRetail offering vouchers for sale which may be exchanged for goods or services at Retailers and other third parties, formerly known as the SnapFinds Service.
"Effective Date" means the earlier date of when (i) Retailer enters into this Agreement by providing assent via the appropriate click-through action on the Site, or (ii) the date of Seller's initial registration for a Seller account on the Site.
"Intellectual Property Right" means any patent, copyright, Trademark, moral right or trade secret right and any other intellectual property right arising under any Laws and all ancillary and related rights, including all rights of registration and renewal and causes of action for violation, misappropriation or infringement of any of the foregoing.
"Law" means any law, ordinance, rule, regulation, order, license, permit, judgment, decision or other requirement, now or hereafter in effect, of any governmental authority (federal, state, or provincial level, as applicable) of competent jurisdiction.
"Person" means any individual, corporation, partnership, limited liability company, governmental authority, association, joint venture, division or other entity, whether or not having distinct legal existence.
"Product" means any product that is made available for listing for sale, offered for sale, marketed and/or sold by a third party to you through the eMarketing Platform, Online Product Offers, SnapAdvantage, Sponsor-Driven Marketing and/or other Services.
"Promotional Codes" mean any promotional code offered by SnapRetail to reflect discounted fees for a Service, which Retailer shall receive through marketing materials distributed through SnapRetail.
"Service Terms" means the service terms specific to each Service and made a part hereof upon the date you elect to register for the Service and any subsequent modifications thereof.
"Online Product Offers Site" means that website used to offer and participate in Online Product Offers, the primary home page of which is www.snapfinds.com (and any successor or replacement of such website).
"SnapRetail Site" means that website, the primary home page of which is www.snapretail.com (and any successor or replacement of such website).
"Technology" means any (a) ideas, procedures, processes, systems, methods of operation, concepts, principles and discoveries protected or protectable under the Laws of any jurisdiction, (b) interfaces, protocols, glossaries, libraries, structured XML formats, specifications, grammars, data formats, or other similar materials, and (c) software, hardware, code, technology or other functional item.
"Trademark" means any trademark, service mark, trade dress (including any proprietary "look and feel"), trade name, other proprietary logo or insignia or other source or business identifier, protected or protectable under any Laws.
"Your Materials" means all Technology, your Trademarks, Content, Product information, data, materials, and other items provided or made available by you or your affiliates to SnapRetail or its Affiliates.
"Your Product" means any product that is marketed by you through, the E-Marketing Platform and/or other Services.
"Your Taxes" means any and all sales, goods and services, use, excise, import, export, value added, consumption and other taxes and duties assessed, incurred or required to be collected or paid for any reason in connection with any advertisement, offer or sale of Products by you on or through or in connection with the Services, or otherwise in connection with any action, inaction or omission of you or your affiliates or their respective employees, agents, contractors or representatives.
"Your Trademarks" means Trademarks of yours that you provide to us (a) in non-text form for branding purposes, and (b) separate from (and not embedded or otherwise incorporated in) any product specific information or materials.
2. Authority; Registration Information; Password Security. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity hereto, in which case "you" or "your" shall refer to such entity.
SnapRetail makes its service available only if you have paid a fee and created a SnapRetail ID and password or other log-in ID and password ("Log-In Information").
To register as a SnapRetail.com "Retailer", you must complete the registration process for the Site and any additional Services to which you would like to subscribe. We reserve the right at any time to modify or cease providing some or all of the Services at our sole discretion and without notice.
Any password which you provide or we provide to you may be used only during the Term to access the Site to use the Services. You are solely responsible for maintaining the security of your Log-In Information. You may not disclose your Log-In Information to any third party and are responsible for any use of or action taken under your Log-In Information. If your Log-In Information is compromised, you must immediately notify us and change your password. Third parties with knowledge of your Log-In Information can gain access to your account information on the Site and may make purchases and take other actions for which you shall be held accountable and liable. SnapRetail is entitled to, and shall, assume that any person using the Site and Services under your Log-In Information is you and you are liable and responsible for all purchases, statements, uses and actions made under your Log-In Information. SnapRetail shall NOT be responsible whatsoever if your Log-In Information is used by an unauthorized entity or misappropriated by a third party. SnapRetail reserves the right to terminate accounts, refuse to provide services, remove or edit Content, or cancel orders in its sole discretion.
For purposes of identification and billing, you agree to provide SnapRetail with accurate, complete, and updated information required by the Site registration ("Registration Data"), including your legal name, address, telephone number(s), working e-mail account information, and applicable payment data (if any). You may check, following help instructions, to determine whether your Registration Data is current and accurate, and, if not, to correct or update your Registration Data. Failure to comply with this provision (including, without limitation, falsification of any Registration Data) may, in SnapRetail's sole discretion, result in immediate suspension or termination of your right to use the Services. If you provide any information that is untrue, inaccurate, not current or incomplete, SnapRetail has the right to suspend or terminate your account and refuse any and all current or future use of the Site (or any portion thereof).
3. Service Fee Payments. SnapRetail and Retailer may from time to time detail additional terms specific to a Service or a specific use, or period of use, of a Service in separate writing (an "Offer Agreement") which shall be considered part hereof. Such Offer Agreement may detail specifically, without limitation, product information, pricing, fees, costs, discounts, special promotion terms, quantities, minimums, maximums, items, sizes, colors, deadlines, restrictions, inclusions, exclusions, conditions of sale, and/or return policies, etc. If there is any conflict between the terms and conditions contained in any Offer Agreement and the terms and conditions contained herein (including all applicable Service Terms), the terms and conditions herein will govern and control, unless such Offer Agreement specifically refers to amending or superseding this Agreement by name in such conflicting language.
3.1. Fees. You are responsible for the fees set forth in the applicable Service Terms and/or Offer Agreement, subject to any discounts available through applicable Promotion Codes. You are responsible for all of your costs and expenses in connection herewith, unless the applicable Service Terms provide otherwise. You shall pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. You shall provide SnapRetail with a valid credit card as a condition to signing up for any Service.
3.2. Billing and Renewal. SnapRetail charges and collects in advance for use of certain Services, and may at SnapRetail's sole discretion, offer promotional periods from time to time. Following the expiration of any promotional periods, if applicable, SnapRetail shall automatically renew and bill your credit card at the beginning of each recurring period for such payment, or as otherwise mutually agreed. The renewal charge shall be equal to the fees in effect during the prior period, unless SnapRetail has given you at least 30 days prior written notice of a fee increase, which shall be effective upon renewal and thereafter, or if a change in Service necessitates a different renewal charge. Fees for other Services shall be charged on an as-quoted basis. You agree that if we are unable to collect the fees you owe us, we may take any other steps we deem necessary to collect such fees from you, and that you shall be responsible for all costs and expenses incurred by us in connection with such collection activity, including collection fees, court costs and attorneys' fees. Any amounts not paid when due shall bear interest at the rate of 1.5% per month, or the maximum legal rate, if less. SnapRetail shall be entitled to withhold performance and discontinue services until all amounts due are paid in full. SnapRetail's fees are exclusive of all taxes, levies or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States taxes based solely on SnapRetail's income. You agree to provide SnapRetail with complete and accurate billing and contact information. This information includes your legal company name, street address, e-mail address and name and telephone number of an authorized billing contact. You agree to update this information within 30 days of any change to it. If the contact information you have provided is false or fraudulent, SnapRetail may terminate your access to the Service in addition to any other legal remedies.
3.3. Cancellation; Refunds. Retailer may cancel a Service at any time after the Initial Subscription Period has expired. For purposes hereof, the "Initial Subscription Period" shall mean the subscription package chosen by Retailer when they subscribe to a SnapRetail Service. No refunds will be given for fees related to the Initial Subscription Period, except in the event that SnapRetail, in its sole discretion, has offered a money back guarantee for such Initial Subscription Period. If SnapRetail offers a money back guarantee, then SnapRetail will issue a refund within 60 days of when the subscription cancellation request is processed. If SnapRetail chooses to offer a money back guarantee, from time to time, the terms of the same shall be set forth in the FAQ section of the SnapRetail website. No partial refunds will be given if a Retailer choses to cancel a subscription during a term that has already been paid for.
5. Electronic Communications. When you visit this Site or send e-mails to us, you are communicating with us electronically. You consent to receive communications from us electronically. We shall communicate with you by e-mail or by posting notices on this Site. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. If we send information and/or notices by e-mail, we shall use the e-mail addresses you designated for notifications and updates in "My Account," or by any other means then specified by SnapRetail. You may change your e-mail address by logging in to your account and clicking on "Change Account Info." You shall update your e-mail address (as well as your legal name, address and telephone number) as often as necessary to ensure that they are accurate. You must send all notices and other communications relating to SnapRetail to email@example.com
6. Site Content. Both (i) the Content included on the Site ("Our Content"), as well as (ii) our Technology are (1) copyrighted by us and/or our licensors under United States and international copyright laws, (2) subject to other Intellectual Property Rights and proprietary rights and laws, and (3) owned by us or our licensors. Neither Our Content nor our Technology may be copied, modified, reproduced, republished, posted, transmitted, sold, offered for sale, displayed, publicly performed, distributed or redistributed in any way without our prior written permission and the prior written permission of our applicable licensors. You must abide by all copyright notices, information, or restrictions contained in or attached to any of Our Content or our Technology. Nothing herein grants you any right to receive delivery of a copy of our Technology or to obtain access to our Technology except as generally and ordinarily permitted through the Site according hereto.
7. SnapRetail Trademarks. SnapRetail, SnapFinds, SnapRetail.com, SnapFinds.com, and logos for SnapRetail, SnapFinds, SnapRetail.com, SnapFinds.com, and other marks included on the Site are trademarks and/or service marks of SnapRetail. SnapRetail's trademarks may not be used in connection with any product or service that is not SnapRetail's, in any manner that is likely to cause confusion, or in any manner that disparages or discredits SnapRetail. All trademarks, service marks, and logos that are not owned by SnapRetail and appear on this Site are the property of their respective owners.
8. Reviews, Comments and Other Retailer-Provided Content. You may submit and/or post reviews, comments, information, images, photographs, suggestions, ideas, comments, questions, or other Content; provided, that such Content is not illegal, obscene, threatening, defamatory, invasive of privacy, infringing of intellectual property rights, or otherwise injurious to third parties or objectionable, and does not consist of, or contain, software viruses, political campaigning, commercial solicitation, chain letters, mass mailings, or any form of "spam." You may not use a false e-mail address, impersonate any person or entity, or otherwise mislead as to the origin of the Content. We reserve the right (but not the obligation) to remove or edit any such Content, but do not regularly review user-provided Content.
If you do submit and/or post Content, and unless we indicate otherwise, you grant SnapRetail a nonexclusive, royalty-free, perpetual, irrevocable, and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display such Content throughout the world in any media. You grant SnapRetail and its sublicensees the right, at SnapRetail's or its sublicensees' option, to use the name that you submit in connection with such Content. You represent and warrant that: (i) you own or otherwise control all of the rights to the Content that you provide; (ii) the Content that you provide is accurate; (iii) use of the Content you provide does not violate this policy and shall not cause injury to any person or entity; and (iv) you shall indemnify SnapRetail for all claims arising from Content that you provide. SnapRetail has the right (but not the obligation) to monitor and edit or remove any activity or Content. SnapRetail takes no responsibility, and assumes no liability, for any Content provided by you or any third party.
9. Links to Third Party Sites. We may make available a link from the Site to a third party's web site. These links permit you to leave this Site. The linked sites are not under our control and we are not responsible for the contents of any linked site or any link contained in a linked site, or any changes or updates to such sites. You should carefully review the privacy statements and other terms and conditions of use of all linked sites you visit.
10. Our Address. All Notices for SnapRetail or any Affiliate unless otherwise expressly noted with respect to an individual Service below shall be sent to the following address:
2840 Liberty Avenue,
Pittsburgh, PA 15222
11. Your Materials and Conduct
11.1. License. You grant us a fully paid, royalty-free, non-exclusive, worldwide, perpetual, irrevocable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all of Your Materials, and to sublicense the foregoing rights to our affiliates and service providers; provided, that we shall not alter any of Your Trademarks from the form provided by you (except to re-size trademarks to the extent necessary for presentation, so long as the relative proportions of such trademarks remain the same) and shall comply with your removal requests as to specific uses of Your Trademarks; provided further, that nothing herein shall prevent or impair our right to use Your Materials without your consent to the extent that such use is allowable without a license from you or your affiliates under applicable law (e.g., fair use under United States copyright law, referential use under trademark law, or valid license from a third party).
11.2. Content and Conduct.
(a) Content. You represent and warrant that none of Your Materials shall (a) infringe any copyright, trademark, or patent, (b) misappropriate any trade secret, (c) be deceptive, misleading, inaccurate, defamatory, obscene, pornographic, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable, (d) contain any viruses, worms or other malicious computer programming codes able to damage the Service or other data of the Service, or (e) otherwise violate the rights of any third party.
(b) Conduct. You agree not to use, or encourage or permit others to use, the Service to (a) stalk and/or harass another, (b) harm minors in any way, (c) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity; (d) forge headers or otherwise manipulate identifiers to disguise the origin of any Content posted on or transmitted through the Service, (e) use the Site, Service or Content such that it shall mislead a third party into believing that he or she is interacting directly with SnapRetail or the Service, (f) engage in any chain letters contests, junk e-mail, pyramid schemes, spamming, surveys or other duplicative or unsolicited messages (commercial or otherwise), (g) use any SnapRetail domain name as a pseudonymous return e-mail address, or (h) access or use the Service in any manner that could damage, disable, overburden or impair any SnapRetail server or the networks connected to any SnapRetail server.
11.3. Content Loss. You represent and warrant that you shall keep and maintain your own copy of all of Your Materials that are provided to the Service and SnapRetail. Except as set forth below, SnapRetail is not obligated to back up any of Your Materials that are posted through the Service. SnapRetail therefore recommends that you create backup copies of any of Your Materials posted through the Service at your sole cost and expense. You agree that any use of the Services contrary to or in violation of your representations and warranties in this section constitutes improper and unauthorized use of the Service. You agree that SnapRetail may (but has no obligation to), in SnapRetail's sole discretion, remove or modify any of Your Materials which it deems to violate your representations and warranties herein. In the event of a loss of Your Materials caused by SnapRetail, SnapRetail shall use commercially reasonable efforts to recover Your Materials within 96 hours of notification of loss. If SnapRetail performs recovery services for a loss of Your Materials not caused by SnapRetail, you agree to pay SnapRetail's then-current time and materials rate to recover Your Materials. The foregoing constitutes your sole and exclusive remedy for any loss of Your Materials.
11.4. Access to Your Materials On Termination. If your access to the Services is terminated (other than by reason of your breach), SnapRetail shall make available to you a file of Your Materials if requested in writing by you within 30 days after such termination. You agree and acknowledge that SnapRetail has no obligation to retain Your Materials, and may delete Your Materials, at any time on or after the 31st day following termination. SnapRetail reserves the right to withhold, remove and/or discard Your Materials, without notice, for any breach including, without limitation, your non-payment. Upon termination for cause, your right to access or use Your Materials shall immediately cease, and SnapRetail shall have no obligation to maintain or provide any of Your Materials.
11.5. Effect of Termination. After this Agreement is terminated, we shall have a reasonable period of time to remove Your Materials from the Site and/or the Services, such period not to exceed 30 days, after which we shall cease using Your Materials. However, you agree that we shall own all modifications and enhancements that we make to Your Materials, as well as all related Intellectual Property Rights, and that we may use the same without any limitation. If, following termination, and despite the good faith and reasonable efforts of SnapRetail to remove all of Your Materials, some of Your Materials are still available on or through the Site or Services, you may not assert any claim against SnapRetail arising from the continued availability of Your Materials until you have identified with particularity and in writing the location and access points for any such content and given us at least one week following our receipt of such notice to remove access to such of Your Materials.
12. Indemnification. You release us and agree to indemnify, defend and hold us harmless (and our officers, directors, employees, and agents) against any claim, loss, damage, settlement, cost, expense or other liability (including, without limitation, attorneys' fees) (each, a "Claim") arising from or related to (a) your actual or alleged breach of any obligations herein, (b) any sales channels owned or operated by you, (c) Your Products (including issues arising out of the offer, sale, fulfillment, defect, damage, warranty claims regarding, and claims regarding false or deceptive advertising of Your Products), Your Materials, any actual or alleged infringement of any Intellectual Property Rights by any of the foregoing, and any product liability, personal injury, death or property damage related thereto, or (d) Your Taxes. You shall use counsel reasonably satisfactory to us to defend each indemnified Claim. If at any time we reasonably determine that any indemnified Claim might adversely affect us, we may take control of the defense at our expense. You may not consent to the entry of any judgment or enter into any settlement of a Claim without our prior written consent, which may not be unreasonably withheld.
13. SnapRetail Use of Information; Privacy.
13.3. Copyright Policy. You may not post, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information unless you have the right to do so. We respect the intellectual property of others, and we ask you to do the same. If you believe that your copyrighted work has been copied in a way that constitutes infringement, please provide our "Copyright Agent" with the following information:
14. Disclaimer and General Release. THE SITE AND THE SERVICES, INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS AND INFORMATION MADE AVAILABLE ON OR PROVIDED IN CONNECTION WITH THE SERVICES, ARE PROVIDED "AS-IS." AS A USER OF THE SERVICES, YOU USE THESITE AND THE SERVICES AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, WE AND OUR AFFILIATES WAIVE AND DISCLAIM (1) ANY REPRESENTATIONS OR WARRANTIES REGARDING THIS AGREEMENT, THE SERVICES OR THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, (2) IMPLIED WARRANTIES ARISING OUT OF COURSE OF OFFERING, COURSE OF PERFORMANCE OR USAGE OF TRADE, AND (3) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM OUR NEGLIGENCE. WE DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SITE AND THE SERVICES SHALL MEET YOUR REQUIREMENTS OR BE AVAILABLE, TIMELY, SECURE, ACCURATE, UNINTERRUPTED OR ERROR FREE, AND WE SHALL NOT BE LIABLE FOR ANY SERVICE INTERRUPTIONS INCLUDING, WITHOUT LIMITATION, SYSTEM FAILURES OR OTHER INTERRUPTIONS THAT MAY AFFECT THE AVAILABILITY, RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION OR SETTLEMENT OF ANY TRANSACTIONS.
SNAPRETAIL IS NOT A PARTY TO TRANSACTIONS BETWEEN YOU AND EITHER VENDORS OR CONSUMERS, OR OTHER PARTICIPANT OFFERINGS. YOU ACKNOWLEDGE THAT SNAPRETAIL IS NOT THE MANUFACTURER, SUPPLIER, VENDOR OR SELLER OF THE PRODUCT NOR AN AGENT OF THE MANUFACTURER, SUPPLIER, VENDOR OR SELLER. YOU AGREE THAT SNAPRETAIL HAS NOT MADE AND DOES NOT MAKE ANY WARRANTY OR REPRESENTATION WHATSOEVER, EXPRESS OR IMPLIED, AS TO A PRODUCT, ANY VENDOR OR SUCH VENDOR'S SERVICES INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OR REPRESENTATION AS TO (i) THE DESCRIPTION, CONDITION, DESIGN, QUALITY OR PERFORMANCE OF THE PROPERTY OR QUALITY OR CAPACITY OF MATERIALS OR WORKMANSHIP IN THE PROPERTY, (ii) ITS MERCHANTABILITY OR FITNESS OR SUITABILITY FOR A PARTICULAR PURPOSE WHETHER OR NOT DISCLOSED TO SNAPRETAIL, AND (iii) DELIVERY OF PRODUCT FREE OF THE RIGHTFUL CLAIM OF ANY PERSON BY WAY OF LIEN, INFRINGEMENT OR THE LIKE. SNAPRETAIL EXPRESSLY DISCLAIMS ALL SUCH WARRANTIES. IF A PRODUCT IS NOT PROPERLY DELIVERED, DOES NOT APPEAR OR FUNCTION AS REPRESENTED OR WARRANTED BY MANUFACTURER, SUPPLIER, VENDOR OR SELLER, OR IS UNSATISFACTORY FOR ANY REASON, YOU SHALL MAKE ANY CLAIM ON ACCOUNT THEREOF SOLELY AGAINST THE MANUFACTURER, SUPPLIER, VENDOR OR SELLER (AS APPLICABLE), AND YOU HEREBY WAIVE THE RIGHT TO MAKE ANY SUCH CLAIMS AGAINST SNAPRETAIL. SNAPRETAIL SHALL NOT BE LIABLE TO YOU OR ANY OTHER RETAILER FOR ANY LOSS, DAMAGE OR EXPENSE OF ANY KIND OR NATURE CAUSED, DIRECTLY OR INDIRECTLY, BY ANY PRODUCT MARKETED BY OR THROUGH A SNAPRETAIL SERVICE OR THE USE, POSSESSION OR MAINTENANCE THEREOF, OR THE REPAIR, SERVICE OR ADJUSTMENT THEREOF, OR BY ANY DELAY OR FAILURE TO DELIVER OR PROVIDE THE PRODUCT OR ANY SUCH MAINTENANCE, REPAIR, SERVICE OR ADJUSTMENT, OR ANY INTERRUPTION OF SERVICE OR LOSS OF USE THEREOF (INCLUDING WITHOUT LIMITATION, YOUR USE OF OR RIGHT TO USE ANY PRODUCT) FOR ANY LOSS OF BUSINESS HOWSOEVER CAUSED. IF A DISPUTE ARISES BETWEEN YOU AND OTHER PARTICIPANTS, YOU HEREBY RELEASE SNAPRETAIL (AND ITS AGENTS AND EMPLOYEES) FROM CLAIMS, DEMANDS, AND DAMAGES (DIRECT AND INDIRECT, ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
The Service may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. SnapRetail is not responsible for any delays, delivery failures or other damages resulting from such problems.
15. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE SHALL NOT BE LIABLE (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR OTHER THEORY) OR OTHERWISE) TO YOU OR ANY OTHER PERSON FOR COST OF COVER, RECOVERY OR RECOUPMENT OF ANY INVESTMENT MADE BY YOU OR YOUR AFFILIATES IN CONNECTION HEREWITH, THE COST OF PROCURING SUBSTITUTE GOODS OR SERVICES, DAMAGES FOR THE INABILITY TO USE EQUIPMENT OR ACCESS DATA, BUSINESS INTERRUPTION, OR FOR ANY LOSS OF PROFIT, REVENUE, BUSINESS, OR DATA OR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING HERETO, EVEN IF SNAPRETAIL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY SHALL NOT EXCEED AT ANY TIME THE GREATER OF (i) THE TOTAL AMOUNTS DURING THE PRIOR SIX MONTH PERIOD PAID BY YOU TO SNAPRETAIL IN CONNECTION WITH THE PARTICULAR SERVICE GIVING RISE TO THE CLAIM OR (ii) $100.
16. Confidentiality. During the course of your use of the Services, you may receive information relating to us or to the Services including, without limitation, SnapRetail transaction information, that is not known to the general public ("Confidential Information"). You agree that (a) all Confidential Information shall remain SnapRetail's exclusive property, (b) you shall use the Confidential Information only as is reasonably necessary for your participation in the Services, (c) you shall not otherwise disclose Confidential Information to any individual, company, or other third party except to the extent required by Law (provided you provide us prompt written notice of such requirement and allow us to seek an injunction to prevent or limit such disclosure), and (d) you shall take all reasonable measures to protect the Confidential Information against any access, use or disclosure that is not expressly permitted herein. You may not issue any press release or make any public statement related to the Services, or use our name, trademarks or logo, in any way (including in promotional material) without our advance written permission, or misrepresent or embellish the relationship between us in any way.
17. Force Majeure. We shall not be liable for any delay or failure to perform any of our obligations hereunder by reasons, events or other matters beyond our reasonable control.
18. Relationship of Parties. You and SnapRetail are independent contractors, and nothing herein shall create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between us. You shall have no authority to make or to accept any offers or representations on our behalf. You shall not make any statement, whether on your site or otherwise, that would contradict anything in this section. This Agreement shall not create an exclusive relationship between you and us. Nothing expressed or mentioned in or implied herefrom is intended or shall be construed to give to any person other than the parties hereto any legal or equitable right, remedy, or claim under or in respect hereto. This Agreement and all of the representations, warranties, covenants, conditions, and provisions hereof are intended to be and are for the sole and exclusive benefit of SnapRetail, you, and relying Consumers or sales representatives.
19. Third Party Materials. Material (including Technology, Trademarks, Content, Product information, data, materials, and other items) from other users of the Site, retailers, and other third parties ("Third-Party Material") is made available to you through the Site, and may include feedback and advertising and information about third-party products or services. Because we do not control Third-Party Material, you agree that we (i) are not responsible for any Third-Party Material, and (ii) make no representations or guarantees about the accuracy, currency, suitability, or quality of Third-Party Material. We do not endorse any Third-Party Materials or any opinion, recommendation, or advice expressed therein. You acknowledge that SnapRetail may or may not pre-screen Third-Party Materials, but that SnapRetail shall at all times have the right (but not the obligation) in its sole discretion to pre-screen, refuse, edit, move, delete or remove any Third-Party Materials submitted for any or no reason, including Third-Party Materials that, in the sole judgment of SnapRetail, violates this Agreement, or which might be offensive, illegal, or that may violate the rights, harm, or threaten the safety of users or others. Without limiting the foregoing, we assume no responsibility for objectionable, inaccurate, misleading, or unlawful Third-Party Material. Our provision of a link to any other website or location is for your convenience and does not signify our endorsement of such other site or location or its contents. We have no control over, do not review, and cannot be responsible for, these outside websites or their content. Access to any other websites linked to the Site is at your own risk. When leaving the Site, you should carefully review the applicable terms and policies, including privacy and data gathering practices, of that third-party website. WE SHALL NOT BE LIABLE FOR ANY INFORMATION, SOFTWARE, OR LINKS FOUND AT ANY OTHER WEBSITE, INTERNET LOCATION, OR SOURCE OF INFORMATION, NOR FOR YOUR USE OF SUCH INFORMATION, SOFTWARE OR LINKS, NOR FOR THE ACTS OR OMISSIONS OF ANY SUCH WEBSITES OR THEIR RESPECTIVE OPERATORS.
20. Feedback. SnapRetail may send you questionnaires or surveys on a periodic basis about the Services. You acknowledge and agree that any comments, ideas and/or reports provided to SnapRetail, whether in such questionnaires or otherwise (collectively, "Feedback"), shall be considered SnapRetail's proprietary and confidential information, and you hereby irrevocably transfer and assign (and agree to cause your employee(s) to irrevocably transfer and assign) to SnapRetail all intellectual property rights embodied in or arising in connection with such Feedback, and any other rights or claims that you may have with respect to any such Feedback.
21. Changes. Any material changes hereto shall be effective upon 30 calendar days following our posting of notice of the changes on the Site. Such changes shall be effective immediately for new users of the Site or Services. SnapRetail may require you to provide consent to the updated Agreement in a specified manner before further use of the Site and/or Services is permitted. Otherwise, your continued use of the Site or Services constitutes your acceptance of the changes. Please regularly check the Site to view the then-current Agreement.
22. Miscellaneous. The Site is operated by SnapRetail from the Commonwealth of Pennsylvania, USA. SnapRetail makes no representation that materials available through the Site are appropriate or available for use in locations outside of the United States, and access to them from territories where any of the Services or contents of this Site are illegal is prohibited. Those who choose to access this Site from other locations do so of their own volition and are responsible for compliance with applicable local laws. The laws of the Commonwealth of Pennsylvania shall govern this Agreement, without reference to rules governing choice of laws or the United Nations Convention on Contracts for the International Sale of Goods. Any dispute with SnapRetail or its affiliates relating in any way hereto or your use of the Services shall be adjudicated in the courts located in Allegheny County, Pennsylvania, and you consent to exclusive jurisdiction and venue in the state and federal courts located in Allegheny County, Pennsylvania. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement shall be binding on, inure to, and be enforceable against the parties and their respective successors and assigns. We may perform any of our obligations or exercise any of our rights hereunder through one or more of our Affiliates. Our failure to enforce your strict performance of any provision hereof shall not constitute a waiver of our right to enforce such provision or any other provision hereof subsequently.
SnapRetail retains the right to immediately halt any transaction, prevent or restrict access to the Services or take any other action to restrict access to or availability of any inaccurate listing, any inappropriately categorized items, any unlawful items, or any items otherwise prohibited by the applicable program policies.
This Agreement incorporates and you hereby accept the applicable Service Terms set forth below, which SnapRetail may modify from time to time. If any provision hereof shall be deemed unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable herefrom and shall not affect the validity and enforceability of any remaining provisions. This Agreement represents the entire agreement between the parties with respect to the Services and related subject matter described herein and supersedes any previous or contemporaneous oral or written agreements and understandings.
B. EMARKETING PLATFORM (FORMERLY TRAFFICBUILDER) - SERVICE TERMS AND CONDITIONS
SnapRetail's eMarketing Platform("eMarketing Platform"), which was formerly known as SnapRetail's TrafficBuilder Service, is a Service that provides you, an independent Retailer, with access to customized social media and marketing tools to enable you to send personalized and targeted messages to your Consumers and to create an integrated marketing system to help you market your products. All capitalized terms have the meanings assigned to such terms in Section A hereof, unless otherwise defined herein.
1. Templates. Any templates provided by SnapRetail through the eMarketing Platform ("SnapRetail Templates") are the exclusive property of SnapRetail and/or its licensors and protected by U.S. and international copyright laws. At your option, you are granted, subject to these terms and conditions, a limited, non-transferable, non-sublicenseable right to use SnapRetail Templates for the limited purpose of creating communications to be with your Consumers as part of the eMarketing Platform. You may not distribute, copy, reproduce, modify, remove, delete, augment, add to, publish, transmit, participate in the transfer or sale of, create derivative works from, in any way exploit, or otherwise use the SnapRetail Templates outside of the eMarketing Platform, without the express prior written consent of SnapRetail. This Section B-1 shall survive termination of this Agreement.
2. E-mail Use and Requirements. In connection with the eMarketing Platform, you shall provide us with individual and groups of e-mail addresses to be used in connection with the eMarketing Platform Service. We shall not use this information for any purpose other than to provide the eMarketing Platform Services to you pursuant hereto.You are prohibited from providing, uploading, collecting or using e-mail addresses, screen names or other identifiers without the consent of the person identified (including, without limitation, engaging in such activities as phishing, Internet scamming, password robbery, spidering, and harvesting).
You agree to comply with the CAN-SPAM Act of 2003 and all other laws and regulations applicable to commercial e-mail. Your commercial e-mail must meet the following requirements:
3. Social Media Sites. In using the eMarketing Platform, you may authorize us to act on your behalf to access and interact with other social media sites such as Facebook, Pinterest, and Twitter (any such site, a "Social Media Site") to retrieve information from, and submit information to, such Social Media Sites at your request. For any Social Media Site that you wish us to access as part of the eMarketing Platform, you shall be required to grant us access to your account details, your information and, the ability to update your status. We shall not collect your username and password to these Social Media Sites, and we shall instead store the unique authorization code (or a "token") provided to us by the Social Media Site to access such site on your behalf. You can revoke our access to such site(s) at any time by amending the appropriate settings from within your account settings on the applicable Social Media Site. If you provide us with your user name and password for any Social Media Site in connection with a request for marketing assistance and/or consultation, you thereby, upon providing such information, authorize us to make changes to your account for marketing purposes. Notwithstanding the same, you understand, acknowledge and agree that you are solely responsible for all statements, uses and actions made under your account information and you further understand and agree that you are solely responsible for changing your password to any such Social Media Sites following the completion of the marketing assistance.
4. Unsolicited Communications. You may not use the eMarketing Platform to send e-mail or any other communications to any person who has indicated that they do not wish to receive it.
5. Fees. You shall pay us (a) the periodic recurring and non-refundable SnapRetail eMarketing Platform Retailer Subscription Fees in advance, (b) the Additional eMarketing Platform Retailer Usage Fees, if any, provided to you and c) the eMarketing Platform Support Fees for technical support services, if any, provided to you. "SnapRetail eMarketing Platform Retailer Subscription Fee" or the "Retailer Subscription Fee" means the fee specified as such on the SnapRetail website at the time such fee is payable. The "Additional eMarketing Platform Usage Fees" or "Retailer Additional Fee" mean the fees specified as such on the SnapRetail website at the time you incur additional fees in accordance with this Agreement and pricing that is provided on the SnapRetail website. "eMarketing Platform Support Fees" mean the fees specified as such on the SnapRetail website at the time the eMarketing Platform support services are provided. This Section B-5 shall survive termination of this Agreement.
6. Limitations on Email Sends. You agree that you may incur a Retailer Additional Fee when you send more than the following numbers of emails (the "Email Send Limit") based the terms of your your Retailer Subscription Fee. The Retailer Additional Fee shall be as on the SnapRetail website, and SnapRetail shall have the right, in its sole discretion, to alter the Retailer Additional Fee for exceeding the Email Send Limit. SnapRetail, in its sole discretion, shall have the right to modify the Email Send Limit from time to time.
If you have any questions about the Email Send Limit or the Retailer Additional Fee, you agree that you shall speak to a SnapRetail representative and that any agreed-upon variations will be documented via email or written correspondence.
C. ONLINE PRODUCT OFFERS (FORMERLY SNAPFINDS) - SERVICE TERMS AND CONDITIONS
SnapRetail works with product manufacturers and distributors ("Vendors") and retail sellers ("Retailers") of products or services to design voucher programs ("Voucher Programs") for sales of such products or services to customers of such Retailers ("Consumers") using SnapFinds' website and certain proprietary technologies of SnapRetail (collectively, "Online Product Offers Technology").
The Site provides an interactive online service operated by SnapRetail on the Internet, consisting of information services, content and transaction capabilities facilitated through SnapRetail, Vendors, Retailers and certain affiliates or partners of SnapRetail offering vouchers for sale which may be exchanged for goods or services at Retailers and other third parties (individually, a "Voucher").
1. Certain Definitions. Unless otherwise defined in this Section C, all capitalized terms have the meanings assigned to such terms in Section A hereof.
"Compensation Amount" means the amount SnapRetail is required to pay Retailer for each Voucher purchased by Consumers which met the Volume Threshold and the Volume Threshold Deadline. The Compensation Amount shall be the sum of (i) Retailer's share of the Voucher price (as specified on the applicable Voucher Program Specification), plus (ii) the amount due as sales and use taxes related to the goods and services sold in connection with the Retailer Offering (the "Tax Amount").
"Information" means information submitted by individuals or entities through the SnapFinds website and the Online Product Offers Technology or any other website or in any other way, and may include, without limitation, name, address(es), telephone number(s), e-mail address(es), credit card information, etc. of Consumers, Retailers or Vendors.
"Retailer Offering" means the goods or services to be provided by Retailer in connection with the applicable Voucher Program, as specified on the applicable Voucher Program Specification.
"Online Product Offers Account" means Retailer's Online Product Offers account and the password-protected pages containing account information and account control options, accessible via the Site.
"Special Instructions" means the special instructions, if any, applicable to a Voucher Program and/or Voucher, as specified on the applicable Voucher Program Specification.
"Unit Price" means the amount SnapRetail is required to charge for each Voucher in a Voucher Program, as specified on the applicable Voucher Program Specification.
"Vendor Offer" means a Voucher Program collaboratively designed and created by SnapRetail and a Vendor for any of Retailer's goods or services purchased or to be purchased from that particular Vendor.
"Volume Threshold" means the number of Vouchers in a Voucher Program that must be sold, as specified on the applicable Voucher Program Specification.
"Volume Threshold Deadline" means the date and time by which the Volume Threshold must be met, as specified on the applicable Voucher Program Specification.
"Voucher Expiration Date" means ninety (90) days from the date of purchase of a Voucher.
"Voucher Number" means the number on each Voucher, which shall be used to identify Consumers.
"Voucher Program Page" means the page(s) accessible via Retailer's Online Product Offers Account that enables Retailer to specify the details of a Voucher Program.
"Voucher Program Specification" means the page(s) accessible via Retailer's Online Product Offers Account that reflect the details of the applicable Voucher Program, as approved by SnapRetail.
2. Retailer Accounts. Retailer must register for an Account with SnapRetail and provide certain information as prompted by the registration form. Retailer represents and warrants that (a) all required registration information submitted is complete and accurate, and (b) Retailer shall maintain the accuracy of such information. Retailer is responsible for maintaining the confidentiality of Retailer's Online Product Offers Account login information and is fully responsible for all activities that occur under the Online Product Offers Account. Retailer agrees to immediately notify SnapRetail of any unauthorized use, or suspected unauthorized use of the Online Product Offers Account or any other breach of security. SnapRetail shall not be liable for any loss or damage arising from Retailer's failure to comply with the requirements described above.
3. Voucher Programs. Retailer may, from time to time, accept a Vendor Offer using the Voucher Program Page in the Retailer's Online Product Offers Account. Once Retailer has accepted a prospective Vendor Offer, which shall be deemed to be an offer to SnapRetail, SnapRetail shall have the right to accept or reject the Voucher Program with respect to such Retailer. Retailer's receipt of an electronic or other form of Voucher Program confirmation shall signify SnapRetail' acceptance of Retailer's Voucher Program. SnapRetail shall not have any obligations with respect to any Vouchers related to any Voucher Program that has not been accepted by SnapRetail as described in this Section. Despite any acceptance or approval of any Voucher Program with respect to Retailer, SnapRetail shall have the right to terminate any Voucher Program at any time for any reason in SnapRetail' sole discretion (including, without limitation, if such Voucher Program is related to any unlawful activity or is not consistent with SnapRetail' brand identity).
4. Accepted Voucher Programs.
4.1. Voucher Information. SnapRetail shall promote each Voucher in accordance with the provisions set forth in Section 4.2 below. Retailer is the seller of the goods and services described in the Voucher. The Voucher itself shall be sent to the Consumer electronically. Consumer shall then redeem the Voucher from Retailer.
(a) Retailer is making the Retailer Offering available pursuant to the Vouchers.
(b) Retailer's obligations hereunder (and with respect to any Voucher) are contingent upon selling the Volume Threshold by the Volume Threshold Deadline.
(c) SnapRetail may offer the Voucher (i) through its feature Offer-of-the-day, (ii) through its various side Offers, or (iii) through its affiliate network. All of these formats may be offered to part or all of SnapRetail' subscriber base, or the communities associated with SnapRetail' Affiliates.
(d) Each Voucher shall be subject to no restrictions other than as provided herein and therein. Each Voucher shall expire on the Voucher Expiration Date. However, after the Voucher Expiration Date, Retailer shall, for the amount of time required by applicable law: (i) continue to allow unredeemed Vouchers to be redeemed for the product or service specified on the Voucher, or (ii) allow the Voucher to be redeemed to purchase goods or services from Retailer for up to the amount the Consumer paid for the Voucher. Retailer is aware and acknowledges that the law may require Retailer to redeem Vouchers beyond their stated expiration dates, and Retailer agrees to do so (to the extent applicable law requires). Further, after the amount of time required by applicable law, Retailer to the extent required by applicable law, shall remit the goods or the cash amount required by law to the applicable state's department of unclaimed property (or such state agency or department which is responsible for such matters in that jurisdiction).
(e) If a Consumer redeems a Voucher for less than its face value, Retailer shall be responsible for issuing a credit or cash equal to the difference between the face value and the amount redeemed if required by law.
(f) Retailer agrees that in providing the goods or services that are the subject of the Voucher, it shall not impose any extra or additional fees or charges that contradict the terms set forth on the face of the Voucher.
(g) Retailer shall comply with the Special Instructions (if any).
(h) Retailer hereby agrees that Retailer shall not promote any online offer with respect to any products or services offered in connection with any Voucher Program hereunder for any similar or lower price or for any similar or preferred terms for a period of at least 90 days after the Effective Date, plus at least 90 days after the Run Date.
4.2. Voucher Sale. Retailer authorizes SnapRetail to offer, facilitate the sale of, and distribute Vouchers, in accordance herewith and subject to the restrictions set forth herein. Retailer acknowledges that SnapRetail may terminate the publication or promotion of the Voucher at any time. SnapRetail reserves the right to increase the Volume Threshold at its sole discretion.
4.3. Voucher Publication and Delivery. Vouchers shall be published on the Site in accordance with Section 4.1. SnapRetail shall display Vouchers on its Site on dates in its discretion. If there is a Maximum Number of Vouchers designated, SnapRetail shall use reasonable efforts to cease publishing the Voucher after it has received offers to buy that number of Vouchers equal to the Maximum Number of Vouchers. The last date on which SnapRetail publishes the Voucher to be sold to its users shall be considered the "Run Date". The Vouchers shall be "Activated" (which means capable of being used for purchases with Retailer in accordance with the terms of the Voucher) only when the Volume Threshold of Consumers has been met prior to the Volume Threshold Deadline. At the time that the Volume Threshold has been met, SnapRetail shall electronically deliver the Voucher to the Consumer. After a Voucher is Activated and delivered to the Consumer, Retailer shall be solely responsible for all Consumer service in connection with the Voucher and for supplying all goods and services specified in the Voucher. SnapRetail further reserves the continuing right, but shall not be obligated, to reject, revise, or discontinue publishing any Voucher and to require Retailer to edit or modify the same for any reason including, without limitation, to conform the Voucher to SnapRetail specifications or applicable Laws (as defined below).
4.4. Payment. SnapRetail shall remit payment to Retailer according to the schedule and terms set forth in this Section. After any applicable trial period, SnapRetail shall pay Retailer the Compensation Amount for each Voucher properly Activated for which a Consumer has fully paid SnapRetail and for which Retailer has provided associated goods and/or services to Consumer. Retailer shall record the Voucher Number for each Voucher that is redeemed. No Compensation Amount shall be due the Retailer during any trial period. It is Retailer's responsibility to provide SnapRetail with a Voucher Number each time a good or service is delivered to Consumer and only upon provision of such Voucher Number shall SnapRetail be required to pay Retailer any Compensation Amounts. Unless otherwise required by applicable law, funds held by SnapRetail that are not ever payable to Retailer shall be retained by SnapRetail to offset SnapRetail' software development and Consumer care expenses. Upon receipt of the Voucher Numbers, which serve as proof of delivery of goods and services to Consumers, SnapRetail shall forward an amount of the then-collected Compensation Amount Total to Retailer in proportion to the goods and services Retailer has provided Consumers to that point in time (i.e., the percentage of Vouchers that have been redeemed). These payments shall be sent at the end of the calendar month following the receipt of the Voucher Numbers as long as the balance due to Retailer is in excess of $50. For Vendor Offers, amounts retained by SnapRetail are (i) compensation to SnapRetail for the service of advertising and facilitating the sale of the Vouchers for Retailer, (ii) compensation to Vendors for the goods (as specified on the applicable Voucher Program Specification), and (iii) the applicable credit card processing fee. Retailer must be registered for sales and use tax collection purposes and must remit sales or use tax obligations (the "Tax Amount") to the appropriate taxing authority as required under applicable law.
If, in SnapRetail's determination, Retailer has not provided goods or services consistent with the Voucher Program Specification, SnapRetail shall have the right to (i) not pay any Compensation Amount in connection with any applicable Vouchers, and (ii) refund any Consumer of a Voucher or all Consumers of Vouchers in the relevant Voucher Program. Any such refund(s) may be offset against other amounts due and owing, or which become due and owing, from SnapRetail to Retailer.
4.5 Deposit. Retailer acknowledges that by virtue hereof Retailer may effectively receive funds that have been remitted to SnapRetail by Consumers which effectively amount to prepaid Consumer deposits that Retailer shall be holding onto until such time as the goods and/or services are delivered to, or picked up by, such Consumers. Retailer shall insure that at all times these funds remain available to be returned to SnapRetail and/or Consumers if Retailer is either unable or unwilling to perform its obligations hereunder. The obligation to keep these funds intact applies to both Retailer and the authorized agents or executors hereof. SnapRetail shall have uncontested title and ownership on all amounts that have been paid by SnapRetail to Retailer until such time as Retailer fulfills its obligations under the terms hereof and delivers the end goods or services as defined herein. Furthermore, Retailer acknowledges that in the event of a bankruptcy proceeding or other liquidation, any funds which are being held by Retailer for goods or services not delivered shall be immediately returned to SnapRetail, and no third party shall have any right or claim to these funds which are being held by Retailer but which solely belong to SnapRetail and Consumers. If the amount of the Deposit exceeds $50,000 in the aggregate, SnapRetail reserves the right to review Retailer's credit history prior to advancing any funds.
4.6. License. Retailer grants to SnapRetail a non-exclusive worldwide license and right to use, reproduce, license, display, distribute and transmit Retailer's name, logo and any trademarks ("Retailer Marks") and any photographs, graphics, artwork, text and other content provided or specified by Retailer ("Content") in connection with the marketing, promotion, sale or distribution of Vouchers, in any and all media or formats in which such Vouchers are marketed, promoted, transmitted, sold, or distributed including, without limitation, on the Site. Retailer shall not upload, post or otherwise make available in a Voucher, Voucher Program, or otherwise on the Site any material protected by copyright, trademark or other proprietary right without the express written permission of the owner of the copyright, trademark or other proprietary right. Retailer represents and warrants with regard to all material Retailer submits to SnapRetail in creating a Voucher Program that Retailer has obtained the appropriate permission or license to use the name, logo, any trademarks, and Content owned by others as included and used in such materials for all goods included by Seller in the Voucher Program.
6. Term and Termination. This Agreement shall continue in effect until terminated by Retailer or SnapRetail with 30 days prior written notice, provided that the Agreement shall not expire until the last date when a Consumer of SnapRetail redeems a Voucher purchased from Retailer through SnapRetail. Retailer agrees upon giving or receiving such notice to not create any new Voucher Programs. In addition, SnapRetail may immediately terminate this Agreement and close the Retailer's Account for any copyright or trademark infringement activity, or for any activity by Retailer which constitutes a breach hereof, or is prohibited under or violates the applicable SnapRetail Terms and Conditions then in existence, or for any activity of Retailer which is in violation of any Laws, by giving Retailer written notice of such termination. The expiration of the Term shall not in any way affect any Consumer's usage of a Voucher, or Retailer's obligation for redemption of any Voucher.
Any Sections relating to any claims for payments due to either party hereto, and Sections 4.6, 5, 6, 7, 8, 9,10, 11 and 12 shall survive any expiration or termination hereof.
7. Certain Retailer Representations and Warranties. Retailer represents and warrants throughout the Term that (a) Retailer has the right, power and authority to enter into this Agreement, (b) the terms and conditions of the Voucher, including any discounts or goods and services offered there under, comply with all, and do not and shall not violate any, local, state or federal law, statute, rule, regulation, or order ("Laws") including, without limitation, any Laws governing vouchers, gift cards, coupons, and/or gift certificates, (c) Retailer is registered for sales and use tax collection purposes in all states in which Retailer's goods and services shall be provided pursuant to the terms and presentation of the Voucher and Retailer shall pay all such taxes when due, (d) the Voucher, upon being Activated and delivered by SnapRetail shall be available immediately for redemption by the Consumer, (e) Retailer owns all rights, title and interests in the Retailer Marks and Content and has the right to grant the licenses in the Retailer Marks and Content stated herein, (f) the Vouchers and any advertising or promotion of Retailer's products and services relating thereto shall not constitute false, deceptive or unfair advertising or disparagement under any applicable Laws, and (g) the Retailer Marks and the Content do not and shall not violate any copyright, trademark, or other intellectual property right or right of privacy or publicity of any third party or any Laws.
8. Retailer Indemnity. Retailer agrees to defend, indemnify and hold SnapRetail, its affiliated and related entities, and any of their officers, directors, agents and employees, harmless from and against any claims, lawsuits, investigations, penalties, damages, losses or expenses (including, without limitation, attorney's fees and costs) arising out of or relating to any of the following (a) any breach or alleged breach by Retailer hereof or of the representations and warranties stated herein, (b) any claim for any Tax Amount arising from the sale and subsequent redemption of a Voucher, (c) any claim by any local, state or federal governmental entity for unredeemed Vouchers or unredeemed cash values of Vouchers or any other amounts under any applicable abandoned or unclaimed property or escheat law including, without limitation, any claims for penalties and interest ("Abandoned Property Claims"), (d) any claim arising out of or relating to the products and services provided by Retailer including, without limitation, any claims for false advertising, product defects, personal injury, death, or property damages, (e) any monies owed to any party, as well as all attorneys' fees, related to any action against, or determinations against, SnapRetail related to any action to pursue SnapRetail for Tax Amounts or Abandoned Property Claims, or (f) any failure to pay any Tax Amount or any other taxes due hereunder.
9. Compliance with Gift Card, Gift Certificate and Abandoned Property Laws. Retailer agrees to comply with the Voucher terms and conditions as set forth on the Site, and to ensure that the Vouchers comply with any and all Laws that govern vouchers, gift cards, coupons, and/or gift certificates including, without limitation, the Credit Card Act of 2009 and any state or local Laws governing the imposition of expiration dates, service charges, dormancy fees or other terms and conditions of the Voucher. Retailer shall allow the Consumer to redeem the Voucher with Seller for the amount paid by Consumer for the Voucher (i.e. the cash or redemption value of the Voucher) for the applicable term specified under applicable state or federal Laws and shall allow the cash redemption of the Vouchers as required by applicable state or federal Laws. To the extent required by applicable escheat or abandoned or unclaimed property Laws, Retailer shall be solely responsible for and agrees to report and pay over to the applicable local, state or federal governmental agency any unredeemed cash value of any Voucher issued hereunder. Retailer is responsible for keeping track of the cash amount paid by each Consumer for each Voucher and any unredeemed balance of that cash amount to ensure compliance with this Section. Retailer agrees that so long as an appointment is made for the redemption of a Voucher before the expiration date, the Voucher shall be fully honored without restriction even though the services may be fulfilled after the redemption date.
10. Intellectual Property Rights. Retailer agrees and acknowledges that SnapRetail owns all right, title, and interest in the Online Product Offers Technology, the Site, SnapRetail Trademarks, and any software, technology or tools used by SnapRetail to promote, market, sell, generate, or distribute the Vouchers (collectively, the "Online Product Offers IP"). Retailer shall not rent, lease, sublicense, distribute, transfer, copy, reproduce, download, display, modify or timeshare the Online Product Offers IP or any portion thereof, or use such Online Product Offers IP as a component of or a base for products or services prepared for commercial sale, sublicense, lease, access or distribution. Retailer shall not prepare any derivative work based on the Online Product Offers IP. Retailer shall not translate, reverse engineer, decompile or disassemble the Online Product Offers IP.
11. Warranty Disclaimer. IN ADDITION TO THOSE CERTAIN WARRANTY DISCLAIMERS SET FORTH IN OTHER SECTIONS HEREOF, EXCEPT AS EXPRESSLY SET FORTH HEREIN, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF SELLERABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. SNAPRETAIL DOES NOT WARRANT OR GUARANTEE THAT THE SITE SHALL BE UNINTERRUPTED OR ERROR-FREE, THAT THE VOUCHERS SHALL BE ERROR-FREE OR THAT ANY ERRORS, OMISSIONS OR MISPLACEMENTS IN THE VOUCHER SHALL BE CORRECTED, OR THAT VOUCHERS SHALL RESULT IN ANY REVENUE OR PROFIT FOR RETAILER.
12. Limitation of Liability. IN ADDITION TO THE LIMITATION OF LIABILITY SET FORTH IN OTHER SECTIONS HEREOF, EXCEPT FOR INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT SHALL (A) EITHER PARTY BE LIABLE OR OBLIGATED TO THE OTHER PARTY OR ANY THIRD PARTY IN ANY MANNER FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE, OR INDIRECT DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGES IN ADVANCE, (B) SNAPRETAIL'S LIABILITY TO RETAILER FOR ANY CLAIMS ARISING OUT OF OR RELATING TO ANY VOUCHER PROGRAM EXCEED THE TOTAL AMOUNT PAYABLE TO SNAPRETAIL IN CONNECTION WITH SUCH VOUCHER PROGRAM, OR (C) SNAPRETAIL'S AGGREGATE LIABILITY TO RETAILER FOR ANY CLAIMS ARISING OUT OF OR RELATING HERETO EXCEED AN AMOUNT EQUAL TO THE TOTAL AMOUNTS PAID TO SNAPRETAIL IN CONNECTION WITH THE APPLICABLE VOUCHER PROGRAM. THIS LIMITATION OF LIABILITY SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF ANY LIMITED REMEDY.
Any claim arising out of or relating to any error or omission in a Voucher must be made within one year of first publication of the Voucher. Otherwise, the claim shall be deemed irrevocably waived by Retailer.
D. SPONSORED MARKETING - SERVICE TERMS AND CONDITIONS
SnapRetail's Sponsored Marketing ("Sponsored Marketing") is a Service that provides you, an independent Retailer, with access to one or more of SnapRetail's Services, in whole or in part, through a Partner sponsorship such as a product vendor (previously SnapAdvantage). If you previously accepted an Offer for the SnapAdvantage Service, that the terms of Sponsored Marketing shall replace and supersede all prior SnapAdvantage terms and conditions as of August 1, 2012. For purposes of Sponsored Marketing, "Partner Sponsor" shall mean that certain Partner paying for a Service of a portion of a Service on Retailer's behalf. Upon receipt of a sponsorship request from a Partner Sponsor, SnapRetail shall e-mail you an offer, setting forth certain information including, without limitation, the name of the Partner Sponsor, and the Service for which you have received a sponsorship offer, any limitations to the scope of the Service being offered, including any exclusivity provisions with respect to the Partner Sponsor (the "Offer"). In the event you accept an Offer, such acceptance will not prevent you from becoming associated through the use of Snap Services with other Partners who may be participating in the Service during your sponsorship period.
By accessing or using the Service, you acknowledge and agree that you have accepted the Offer including, without limitation, any and all restrictions and limitations to the scope of the Services offered, and this Agreement.