TERMS AND CONDITIONS FOR REPEATREWARDS® USE
THIS LOYALTY.REPEATREWARDS.COM (“SITE”) IS OWNED AND OPERATED BY PRO/PHASE MARKETING, LLC (“PPM”). THESE TERMS AND CONDITIONS GOVERN PARTICIPATION IN PPM’S REPEATREWARDS CUSTOMER LOYALTY PROGRAM (“PROGRAM”). THE ENTITY PARTICIPATING IN THE PROGRAM (“MERCHANT”) MUST CAREFULLY READ THESE TOC, THE PRIVACY POLICY AND THE TERMS AND CONDITIONS OF THE SITE (COLLECTIVELY, THE “AGREEMENT”). MERCHANT’S USE OF THE SITE AND/OR PARTICIPATION IN THE PROGRAM MEANS THAT MERCHANT HAS READ AND UNDERSTANDS THE AGREEMENT, AND HAS ENTERED INTO A BINDING LEGAL AGREEMENT WITH PPM. IF MERCHANT DOES NOT ACCEPT AND AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THE AGREEMENT DOCUMENTS MERCHANT SHOULD DISCONTINUE MERCHANT’S USE OF THE SITE AND PARTICIPATION IN THE PROGRAM. IN ADDITION, WHEN USING A PARTICULAR SERVICE AND/OR ACCESSING CERTAIN MATERIALS IN CONNECTION WITH THE PROGRAM, MERCHANT SHALL BE SUBJECT TO ANY POSTED TERMS OR RULES APPLICABLE TO SUCH SERVICES OR MATERIALS, WHICH ARE IN ADDITION TO THESE TOC. ALL SUCH TERMS OR RULES ARE HEREBY INCORPORATED BY REFERENCE INTO THESE TOC, AND IF MERCHANT DOES NOT AGREE WITH THEM MERCHANT SHOULD NOT USE THE SERVICE AND/OR MATERIALS.
1. Program Terms; Amendments. As noted above, the Agreement for the Program includes these TOC, the Privacy Policy, and the Site Terms and Conditions. In the event of a conflict between the Agreement documents, the terms of these TOC shall govern. PM reserves the right to change the terms and conditions of these TOC, the Privacy Policy and/or the Site Terms and Conditions, at any time in its sole discretion. PM shall notify Merchant of such changes by posting the changes on the Site. Merchant is responsible for regularly reviewing the Site and these TOC regarding such changes. Continued use of the Site, and/or continued participation in the Program, after any such changes have been posted shall constitute Merchant’s agreement to them.
2. Definitions.
2.1 “Affiliate” means, with respect to an entity, any other entity that, directly or indirectly, controls, is controlled by, or is under common control with such entity. For purposes of this definition, “control” means the power to direct the management and policies of an entity, directly or indirectly, whether through the ownership of voting securities, by contract, or otherwise.
2.2 “Authorized User(s)” means Merchant and its employees, consultants, contractors, and agents who are authorized to access and use the Site under the rights granted to Merchant pursuant to these TOC.
2.3 “Documentation” means any online user manuals and guides relating to the Program provided by PPM either electronically or in hard copy form, including end user documentation relating to the Program.
2.4 “Merchant Data” means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted or used by or on behalf of Merchant in connection with the Program.
3. Program.
3.1 Merchant may enroll in the Program through the completion of the online or physical application and order (collectively, “Order”). The Program is more fully described on the Site and in the Documentation, but includes access to the Site, various data analytics through the Site, PPM’s management of various gift card programs for Merchant, and other materials and services. The Program and its various components may be amended or modified by PPM at its sole discretion, provided that PPM shall not materially diminish or reduce and services or benefits of the Program without Merchant’s prior written consent, which shall not be unreasonably withheld.
3.2 Merchant is solely responsible for its gift card programs and any other customer loyalty programs offered by Merchant to its customer through or using the Program. Merchant shall comply with all applicable federal, state and local laws, statutes, rules and regulations applicable to Merchant, and to Merchant’s customer loyalty programs, and Merchant’s participation in the Program (“Laws”). In addition, Merchant will comply with all applicable card association, payment industry, and payment network rules, policies, procedures and requirements (“Rules”).
4. Grant of License to the Site.
4.1 Subject to Merchant’s compliance with the terms of these TOC, PPM grants Merchant and its Authorized Users a non-exclusive, non-transferable, non-sublicensable, license to access and use the Site and/or Documentation solely for the purpose of Merchant’s participation in the Program.
4.2 All rights not expressly granted to Merchant in these TOC are reserved by PPM, and Merchant may not use the Site, and/or Documentation in any manner not expressly authorized by these TOC. Merchant may use the Site and Documentation for its internal business operations only and not by, or for the benefit of, any affiliate, subsidiary, parent company or any other third party, nor may the Site be used for service bureau services.
4.3 Merchant shall not: remove or destroy any proprietary rights marks or legends on or in the Site, and/or Documentation and on authorized copies; modify, enhance, adapt, translate, or create derivative works of the Site, and/or Documentation; transfer, distribute, assign, sublicense, rent, lease, export or sell the Site, and/or Documentation; create an Internet “link” to the Site or “frame” or “mirror” the Site on any other server or Internet-based device; decompile, disassemble, or reverse engineer the Site; or make copies of the Site, and/or Documentation other than for archival and backup purposes.
4.4 Merchant acknowledges and agrees that PPM has the right to use its servers on which the Site and/or Merchant Data (defined below) are kept for any applications as PPM, in its sole discretion, may elect, including, without limitation, PPM’s right to use the servers to provide concurrent services to third parties. The Site is controlled and operated from facilities in the United States. PPM makes no representations that the Site is appropriate or available for use in other locations. Those who access or use the Site from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including export and import regulations.
4.5 PPM may make changes to the Site, at its discretion, provided that it does not materially reduce the features or functions of the Site. These TOC apply to any updates, upgrades, new releases, and other bug fixes, patches, or changes, enhancements, or modifications to the Site.
4.6 Merchant will be given one or more personal, non-transferable passwords to access the Site. Merchant is and will remain responsible for maintaining the confidentiality of that password(s), for all activities conducted on the Site that make use of that password(s), including any use that Merchant may subsequently contend was not unauthorized by Merchant.
5. Support Services for the Site.
5.1 Merchant may obtain technical support services subject to PPM’s then-current technical support services policies and procedures.
5.2 Technical support services include: (a) when and if available, any updates, releases and enhancements to the Site made generally available to all licensees for no charge; and (b) telephone and remote computer support as to the use and operation of the Site, and error and defect verification, analysis and correction for the Site.
5.3 Help-desk support does not include training, setup assistance, diagnosis of customer interface problems, or integration or programming services. Any such services are provided as agreed to by PPM.
5.4 PPM may be required to execute emergency maintenance in order to protect the security, performance, availability, or stability of the Site. Emergency maintenance may include program patching and/or core system maintenance as required. PPM works to minimize the use of emergency maintenance, and to the extent reasonable under the circumstances as determined by PPM, will work to provide twenty-four (24) hours prior notice for any emergency maintenance requiring a service interruption.
5.5 To help ensure continuous stability, availability, security and performance of the Site, PPM reserves the right to perform major changes to its hardware infrastructure, operating software, applications software and supporting application software under its control, typically no more than twice per calendar year. Each such major change event is considered scheduled maintenance and may cause the Site to be unavailable. Each such event is targeted to occur at the same time as the scheduled maintenance period. PPM will work to provide no less than sixty (60) days prior notice of a major maintenance change event.
6. Fees and Payments.
6.1 Merchant will pay all fees and expenses specified in the Order. Except as otherwise specified herein or in the Order payment obligations are non-cancelable and fees paid are non-refundable.
6.2 PPM will invoice Merchant in accordance with the Order. Unless otherwise stated in the Order, invoiced charges are due net thirty (30) days from the invoice date. Merchant is responsible for providing complete and accurate billing and contact information to PPM and notifying PPM of any changes to such information.
6.3 If any amount owing by Merchant under these TOC is thirty (30) or more days overdue, PPM may, without limiting PPM’s other rights and remedies: (a) charge Merchant a late fee at the rate of 1.0% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower; (b) accelerate Merchant’s unpaid fee obligations under these TOCs so that all such obligations become immediately due and payable; and/or (c) suspend Merchant’s access to the Site until such amounts are paid in full. PPM will give Merchant at least ten (10) days’ prior notice that Merchant’s account is overdue before suspending Merchant’s access to the Site.
6.4 PPM’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Merchant is responsible for paying all Taxes associated with Merchant’s participation in the Program. If PPM has the legal obligation to pay or collect Taxes for which Merchant is responsible under this Section, PPM will invoice Merchant and Merchant will pay that amount, unless Merchant provide PPM with a valid tax exemption certificate authorized by the appropriate taxing authority. PPM is solely responsible for taxes assessable against PPM based on PPM’s income, property and employees.
7. Merchant Responsibilities.
7.1 Merchant shall bear all costs and expenses associated with Merchant’s rights and obligations in connection with the Program and these TOC, including, but not limited to, all equipment, telephone lines, hardware, software, and other materials necessary for access to and use of the Site. Merchant is solely responsible for any and all activities that occur using Merchant’s password(s) for the Site, including inputting, maintaining, and managing accurate information and ensuring that Merchant exits or logs-off from the Site at the end of each session of use.
7.2 Merchant shall notify PPM immediately of any unauthorized use of Merchant’s password(s) for the Site, or any other breach of security that is known or suspected by Merchant. PPM shall not be responsible for any unauthorized access to, or alteration of, Merchant’s transmissions, data, or Merchant Data, or any material, information or data sent or received, regardless of whether the data is actually received by PPM, or any transactions entered into through the Site or failure to abide by these TOC. PPM shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Merchant Data, or for any actions or omissions which PPM takes in reliance upon Merchant Data.
7.3 Merchant agrees that Merchant’s enrollment in the Program is not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by PPM regarding future functionality or features.
7.4 Merchant warrants that it shall timely, completely and accurately perform all of its obligations and responsibilities under these TOC, the Order, and all SOWs, including, without limitation, the timely rendering of all required decisions and approvals. Should Merchant fail to comply with this warranty, PPM shall receive an appropriate extension of time to provide the KMS and/or Site under these TOC, shall not be held responsible or liable for any resulting delay.
8. Merchant Data.
8.1 Merchant represents and warrants that all Merchant Data provided, disclosed, or delivered by Merchant and/or its suppliers, customers and Authorized Users in connection with the Program are the property of Merchant, or that Merchant has the rights to disclose or deliver the Merchant Data and other materials to PPM, and that the Merchant Data and other materials do not infringe any copyright, trademark, trade secret, patent or other right, including privacy rights, of any third party.
8.2 PPM shall be entitled to rely on the accuracy, truthfulness, completeness and appropriateness of all Merchant Data. If Merchant and/or its Authorized Users submit Merchant Data in deviation from the agreed upon specifications or format, or which contain extraneous data, then PPM will notify Merchant of the deviation and Merchant will either (a) remedy the deviation at its cost; or (b) direct PPM to remedy the deviation, and Merchant will pay to PPM the applicable hourly rates for such services.
8.3 PPM shall have the right, but not obligation, to refuse to incorporate into the Site or to remove from the Site, at any time, without prior notice to Merchant, any Merchant Data that, in PPM’s sole opinion, is defamatory, threatening, obscene, indecent, patently offensive, violative of the proprietary rights of a third party or otherwise tortious; provided, however, that such right will not relieve the Merchant any of its indemnification obligations under these TOC.
9. Ownership.
9.1 Except for Merchant Data, PPM owns and shall retain all rights, title and interests, including all intellectual property rights, in and to the Program, Site, and Documentation, and other deliverables under these TOC, including, all modifications, enhancements, updates, upgrades, improvements, adaptations, and/or derivative works of the foregoing, whether made by PPM, Merchant, and/or the parties jointly (collectively, “PPM Materials”). No PPM Materials shall be, or are to be considered, “works made for hire” as that term is used in connection with the U.S. Copyright Act. To the extent that, by operation of law or otherwise, Merchant owns any intellectual property rights in such PPM Materials, Merchant hereby assigns to PPM all rights, title and interest, including all intellectual property rights, in such works. Merchant agrees to provide reasonable assistance to PPM, at no additional cost, in connection with PPM’s registration, recordation, and/or enforcement, of its intellectual property rights in PPM Materials.
9.2 Merchant owns and shall retain all rights, title and interests, including all intellectual property rights, in and to: (a) all Merchant Data provided by Merchant and/or its Authorized Users to PPM under these TOC, and (b) all Merchant Data generated by the KMS, Site and associated services, exclusive of PPM’s ownership rights in and to the manner in which the KMS and/or Site: (i) receives, stores, formats, displays, and organizes the Merchant Data; and/or (ii) permits Merchant to view, print, display, download, manipulate, analyze and reformat the Merchant Data. Merchant hereby grants PPM a non-exclusive, non-transferable license to copy, display, store, aggregate, modify, and otherwise use Merchant Data as necessary to perform its obligation under these TOC.
9.3 From time to time, Merchant may choose to submit comments, information, questions, data, ideas, description of processes, or other information to PPM, including any made in the course of receiving support services (“Feedback”). PPM shall own and retain all rights, title and interests, including all intellectual property rights, in and to the Feedback, and may freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. No Feedback will be considered Merchant’s Confidential Information, and nothing in these TOC limits PPM’s right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.
10. Warranties and Disclaimers.
10.1 PPM warrants that the Site will operate in substantial compliance with its applicable Documentation. If the Site fails to meet this warranty, PPM shall, at no additional charge to Merchant, use commercially reasonable efforts to correct such failure within a reasonable time. Merchant acknowledges that the Site may become inoperable for periods of time due to scheduled maintenance and due to causes beyond the reasonable control of PPM, such as denial of service attacks, virus infestations, and power or communications outages. To the extent that the cause of inoperability is within the reasonable control of PPM, the Site will be restored promptly following the cessation of such cause(s).
10.2 Site warranties apply only to the Site used in accordance with these TOC. If PPM investigates any nonconformance and such nonconformance is found to be caused by operator error, erroneous system configuration, modification, or other cause not inherent in the Site PPM reserves the right to charge for its services at its then-current professional service rates.
10.3 EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, THE PROGRAM AND SITE ARE PROVIDED “AS IS,” AND PPM AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY. LICENSOR SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF PPM.
11. Confidentiality.
11.1 During these TOC, each party may have access to information that is considered confidential by the other. This information may include, but is not limited to, the Site, Program, Documentation, Merchant Data, technical know-how, technical specifications, software object code and source code, protocols, processes, strategic business plans, results of testing, systems, financial information, product information, methods of operation, customer information, supplier information and compilations of data (“Confidential Information”).
11.2 Each party shall use the other party’s Confidential Information only for the purposes of these TOC. Each party shall maintain the confidentiality of the other party’s Confidential Information in the same manner in which it protects its own Confidential Information of like kind, but in no event shall either party take less than reasonable precautions to prevent the unauthorized disclosure or use of the other party’s Confidential Information.
11.3 Each party is permitted to disclose the other party’s Confidential Information to its employees, contractors and other third parties on a need to know basis only, provided that such employees, contractors and/or third parties have contractual or legal confidentiality obligations to that party no less stringent than those contained in these TOC. Each party shall be and remain fully liable and responsible for its employees’, contractors’ and/or other third parties’ unauthorized disclosure or use of the other party’s Confidential Information.
11.4 Each party is permitted to disclose the other party’s Confidential Information as legally required in response to a court order, subpoena, administrative proceeding and/or similar legal process; provided that it, to the extent legally permitted, gives the other party reasonable notice of the request, and an opportunity to defend and/or attempt to limit or prevent the disclosure of its Confidential Information.
11.5 The confidentiality provisions of these TOC do not apply to information that is or becomes generally available or known to the public through no act or omission of the receiving party; was received lawfully from a third party through no breach of any obligation of confidentiality owed to the disclosing party; or created by a party independently of its access to or use of the other party’s Confidential Information.
11.6 Upon termination of these TOC, each party shall return the other party’s Confidential Information and shall not use the other party’s Confidential Information for its own, or any third party’s, benefit. The provisions of this Section shall survive termination of these TOC for so long as the Confidential Information remains confidential.
12. Indemnification.
12.1 PPM shall defend, at its sole expense, any third party claim, demand or suit (“Claim”) against Merchant alleging that Merchant’s authorized use of the Site and/or Documentation infringes a third party’s U.S. patent, copyright, trademark, trade secret or other intellectual property right, and shall indemnify and hold Merchant harmless from and against any and all damages, fines, penalties, costs, expenses and/or fees (including reasonable attorneys’ fees) awarded or assessed against Merchant in association with the Claim, or reached through a negotiated settlement of the Claim.
12.2 This indemnification extends only to the Site and Program as delivered by PPM and does not extend to: (a) any modifications, enhancements or other changes to the Site, Program and/or Documentation created by or on behalf of Merchant (unless created by PPM); and/or (b) any Claim arising out of the combination of the Site, Program or Documentation with any other code, software, hardware or any other products, provided that such infringement would not have occurred but for such combination.
12.3 If any Site or Program infringe a third party’s U.S. patent, copyright, trademark, trade secret or other intellectual property right, or PPM reasonably believes that it is likely to infringe, then PPM shall, at its sole expense either (a) procure for Merchant the right to continue using the Site and Program; or (2) replace or modify the Site and/or Program so that it is non-infringing, but maintains substantially the same functionality. If neither of these options is reasonably practical for PPM, PPM may terminate Merchant’s right to use the Site and Program.
12.4 Except for claims that are PPM’s obligation under Sections 12.1, Merchant shall defend, at its sole expense, any Claim against PPM arising out of Merchant’s (a) participation in the Program, use of the Site and/or breach of these TOC by Merchant; (b) alleging that Merchant Data infringes the intellectual property rights, contract rights or other rights of a third party; (c) violation of any applicable Laws or Rules; and/or (d) any assertion that Merchant made false, misleading and/or otherwise deceptive statements with regard to the Program or Merchant’s customer loyalty program and shall indemnify and hold PPM harmless from and against any and all damages, fines, penalties, costs, expenses and/or fees (including reasonable attorneys’ fees) awarded or assessed against PPM in association with the Claim, or reached through a negotiated settlement of the Claim.
12.5 In order to receive indemnification under this Section, the party seeking indemnification must promptly notify the other party of the assertion of the Claim; allow the other party to retain sole and exclusive control over the defense and/or settlement of the Claim; and cooperate with the other party, at the other party’s expense, in the defense and/or settlement of the Claim. This Section sets forth each party’s sole indemnification obligations and indemnification remedies in association with the Claims described above.
13. Term and Termination.
13.1 These TOC is effective on the date last signed by the parties (the “Effective Date”) and continues for the period set forth in the applicable Order, unless earlier terminated in accordance with these TOC. These TOC shall automatically renew for successive one (1) year periods unless a party provides the other party with written notice of its intent not to renew, not less than ninety (90) days prior to the end of the then-current term.
13.2 Each party may terminate these TOC if (a) the other party commits a material breach of these TOC and fails to cure such breach within thirty (30) days after its receipt of written notice of such breach from the non-breaching party; or (b) the other party ceases to operate, declares bankruptcy, or becomes insolvent or is otherwise unable to meet its financial obligations.
13.3 Upon termination or non-renewal of these TOC:
(a) Merchant shall, within thirty (30) day of the effective date of termination or non-renewal (i) promptly discontinue all use of the Site and Documentation, (ii) promptly return the all copies of the Documentation and all other materials to PPM; and (iii) pay PPM all amounts owed under these TOC.
(b) PPM shall, at its then-current hourly rates, purge all Merchant Data from the Site and provide Merchant with an electronic copy of all of Merchant Data residing on the Site, in a format chosen by Merchant;
(c) each party shall return the other party’s Confidential Information and other materials.
13.4 All provisions of these TOC relating to confidentiality, ownership, indemnification, and limitations of liability shall survive termination or non-renewal of these TOC.
14. Limitation of Liability.
14.1 Except as provided below, in no event shall either party be liable to the other party in connection with these TOC and/or the Program, regardless of the form of action or theory of recovery, for any: (a) indirect, incidental, consequential, special, punitive or exemplary damages, regardless of whether that party is aware of their possibility; (b) lost profits, lost revenue, loss of data, lost business expectancy or business interruption losses; and/or (c) direct damages in an amount in excess of the fees paid by Merchant to PPM for the affected Program(s) under these TOC during the twelve (12) month period immediately preceding the event giving rise to the claim.
14.2 The limitations set forth in Section 14.1 do not apply to a party’s: (a) indemnification obligations under these TOC; (b) breach of its confidentiality obligations; (c) violation, misappropriation or infringement of the other party’s intellectual property rights; (d) gross negligence or willful misconduct; and/or (e) violation of applicable Laws or Rules.
14.3 Any claims relating to these TOC shall be brought within one (1) year after the party asserting the claim knew, or reasonably should have known, of the existence of the claim.
15. General.
15.1 These TOC, all Orders, and all amendments thereto contain the entire understanding of the parties with respect to the subject matter addressed herein and supersede, replace and merge all prior understandings, promises, representations and agreements, whether written or oral, relating thereto. These TOC may not be modified except by a writing signed by both parties. No terms or conditions of either party’s invoice, purchase order or other administrative document shall modify the terms and conditions of these TOC, regardless of the other party’s failure to object to such form. The remedies accorded PPM under these TOC are cumulative and in addition to those provided by law.
15.2 The relationship between PPM and Merchant is that of independent contractor. Nothing in these TOC shall be construed as creating a relationship between PPM and Merchant of joint venturers, partners, employer-employee, or agent. Neither party has the authority to create any obligations for the other, or to bind the other to any statement, representation or document.
15.3 PPM shall be permitted to use subcontractors to perform its obligations under these TOC, provided that no use of any subcontractors shall relieve PPM of its obligations under these TOC, and PPM shall remain liable for each subcontractor’s compliance with, or breach of, these TOC.
15.4 Any waiver of a party’s right or remedy related to these TOC must be in writing, signed by that party to be effective. No waiver shall be implied from a failure of either party to exercise a right or remedy. In addition, no waiver of a party’s right or remedy will effect the other provisions of these TOC.
15.5 All notices, requests, consents, claims, demands, waivers and other communication under these TOC will have legal effect only if in writing and addressed to a party as set forth in the Order (or to such other address or such other person that such addressee party may designate from time to time in accordance with this Section). Notices sent in accordance with this Section will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; and (c) on the seventh (7th) day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
15.6 Neither party shall be responsible or liable for any delay or failure in performing its obligations under these TOC if such delay or failure is the direct result of causes outside of that party’s reasonable control, including, without limitation, power outages, accidents, strikes, fires, war or acts of God, civil commotion, inability to obtain materials, third party communication system errors or downtime, delay or errors in the United States mail or change of laws or regulations; provided that such party uses best efforts to resume performance of its obligations as soon as practically possible.
15.7 These TOC shall be governed by the laws of the State of Delaware (exclusive of its choice of law rules), and the federal laws of the U.S. The parties agree that any litigation arising between the parties in relation to these TOC shall be initiated and maintained in the courts of the United States District Court of Wilmington, Delaware for the District of Delaware, and the parties hereby irrevocably submit to the exclusive jurisdiction and venue of such courts.
15.8 If any provision of these TOC is held by a court of competent jurisdiction to be invalid or unenforceable, such provision will be enforced to the fullest extent that it is valid and enforceable under applicable law. All other provisions of these TOC shall remain in full force and effect.
15.9 Merchant may not assign these TOC, in whole or in part, without PPM’s prior express written consent, which shall not be unreasonably withheld or delayed. Any attempted assignment without such written consent shall be void. Subject to the foregoing, these TOC will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.
WARRANTY, DISCLAIMER, ASSUMPTION OF RISK, AND INDEMNIFICATION OF SOFTWARE AND SERVICES FOR PRO/PHASE MARKETING, LLC
DEFINITION: The term “person” as used in this section includes not only a natural person but any entity, (including natural persons), who holds a copyright in, or published, developed, designed, modified, distributed, redistributed, or in any way contributed to this software or marketing program.
NO WARRANTIES: To the extent permitted by applicable law, neither Pro/Phase Marketing, LLC, nor any person, either expressly or implicitly, warrants any aspect of this software or marketing program, including any output or results of this software or marketing program. Direct Mail comes with risk. Pro/Phase Marketing, LLC does not guarantee results from a direct mail campaign. You, the Customer, acknowledges that Pro/Phase Marketing’s responsibility is limited to preparing mail pieces and completing delivery to the United States Postal Service®. Customer acknowledges that Pro/Phase Marketing, LLC shall not be liable for USPS performance failures or delivery delays. Unless agreed to in writing, this software and marketing program is being provided “As Is”, without any warranty of any type or nature, either express or implied, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose, and any warranty that this software or program is free from defects.
ASSUMPTION OF RISK: The risk of any and all loss, damage, or unsatisfactory performance of this software or marketing program rests with you as the user. To the extent permitted by law, neither Pro/Phase Marketing, LLC, nor any person either expressly or implicitly, makes any representation or warranty regarding the appropriateness of the use, output, or results of the use of this software or marketing program in terms of its correctness, accuracy, reliability, being current or otherwise. Nor do they have any obligation to correct errors, make changes, support this software or program, distribute updates, or provide notification of any error or defect, known or unknown. If you rely upon this software or marketing program, you do so at your own risk, and you assume the responsibility for the results. Should this software or marketing program prove defective, you assume the cost of all losses, including, but not limited to, any necessary servicing, repair or correction of any property involved.
DISCLAIMER: In no event, unless required by applicable law or agreed to in writing, shall Pro/Phase Marketing, LLC, or any person be liable for any loss, expense or damage, of any type or nature arising out of the use of, or inability to use this software or marketing program, including, but not limited to, claims, suits or causes of action involving alleged infringement of copyrights, patents, trademarks, trade secrets, or unfair competition.
INDEMNIFICATION: To the extent permitted by law through your usage, you, the user, agree to indemnify and hold harmless Pro/Phase Marketing, LLC, its officials and employees, and any person from and against all claims, liabilities, losses, causes of action, damages, judgments, and expenses, including the reasonable cost of attorneys’ fees and court costs, for injuries or damages to the person or property of third parties, including, without limitations, consequential damages and economic losses, that arise out of or in connection with your use, modification, or distribution of this software or program, its output, or any accompanying documentation.
