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ShopnGive Merchant Agreement


1. General


During the length of the Merchant Agreement, ShopnGive will provide the ShopnGive services and/or programs (collectively, "SNP Programs") described in the Merchant Agreement separately executed by you, together with all exhibits attached thereto (the "Merchant Agreement"). In the event of any inconsistency among terms and conditions of the Merchant Agreement and these Terms and Conditions (collectively, sometimes referred to herein as the "Agreement"), the order of control shall be: (i) these Terms and Conditions, (ii) the Merchant Agreement, and (iii) any other exhibits, addenda or attachments to these Terms and Conditions including any links contained in the Merchant Agreement or these Terms and Conditions, which are incorporated by reference herein. Any capitalized terms that are not defined in these Terms and Conditions have the meanings ascribed to them in the Merchant Agreement. For purposes of clarity, these Terms and Conditions are incorporated by reference into the Merchant Agreement executed by you, and, together with the Merchant Agreement and all attachments thereto, govern your use of all SNP Programs and services.

2. Intellectual Property Rights


(i) SNP is the sole and exclusive owner of all right, title and interest in and to any data provided to SNP by your customers or any end user to SNP in connection with the SNP Programs, including without limitation all e-mail and/or other contact information ("Customer Data"). As such, you shall not, unless the applicable customer has separately taken all steps necessary to opt in to provide contact information to you, be provided with or otherwise have access to the Customer Data.

(ii) SNP owns all right, title and interest in and to the SNP Programs including, without limitation, any intellectual property rights and any improvements, modifications, enhancements or refinements thereto. Except as set forth in the Agreement, all rights not expressly granted to you are reserved. You agree not to decipher, decompile, disassemble, reconstruct, translate, reverse engineer, or discover any of the SNP Programs, intellectual property or ideas, algorithms, file formats, programming, or interoperability interfaces underlying or such intellectual property.

(iii) SNP hereby grants to you a limited, non-transferable, non-exclusive, revocable license to access and use SNP’s Web Merchant Center (the “Merchant Center”) for internal business purposes so long as your account with SNP remains current and active. If SNP provides you with a password to access the Merchant Center, you are solely responsible for protecting the password and for any authorized or unauthorized use made of the password. The Merchant Center, and all source code, copyrights and other intellectual property associated therewith, are and shall remain the sole and exclusive property of SNP. You shall refrain from permitting any third party to use your password or otherwise access the Merchant Center. SNP shall have the right to terminate the license granted hereby immediately in the event that you have breached any terms or conditions set forth in the Agreement or your SNP account is otherwise terminated for any reason.

(iv) SNP provides standard installation of its SNP Programs, however, in the event of a complex installation (including those that may require third party or outside technical support to complete the installation), SNP will provide up to one hour of such technical support. Technical support exceeding one hour will be billed at cost to the Merchant.

3. Restrictions


You: (i) will use the SNP Programs solely for your internal business purposes; and (ii) will not, for yourself, any of your affiliates or any third party (a) sell, rent, lease, license or sublicense, assign, distribute, or transfer the SNP Programs, (b) modify, change, alter, create derivative works of, decipher, decompile, disassemble, reconstruct, translate, reverse engineer, or discover any source code of the underlying ideas, algorithms, file formats, programming, or interoperability interfaces of the SNP Programs, (c) copy any tangible versions of the SNP Programs, or (d) remove from any of the SNP Programs any language or designation indicating the confidential nature thereof or the proprietary rights of SNP. In addition, you will not export, re-export or permit any third party to export or re-export, directly or indirectly, the SNP Programs where such export or re-export is prohibited by applicable law without appropriate licenses and clearances. SNP retains the right, in its sole discretion; to approve, modify or refuse any SNP related communications or proposed communications or messages to your customers or any SNP end users.

4. Fees; Pricing and Payment Terms; Taxes


(i) SNP’s current fees for the SNP Programs and its services are set forth in the Merchant Subscription selected by Merchant on SNP web site. SNP reserves the right to amend the fees payable for the SNP Programs at any time upon thirty (30) days’ prior notice to you; provided, however, that such amendment to the fees will not be applicable until the beginning of the next Subscription Period.

(ii) When you provide your payment information to SNP, you are providing SNP with an authorization to process any and all payments as outlined in this Agreement. In certain instances, the payment processing may not occur immediately, and your payment may show as "pending" during this time period. In addition, SNP may request an authorization for the amount of your anticipated transaction in advance and may estimate the final value of the transaction, which may be more than the amount of the actual transaction. SNP will release any funds authorized in excess of the amount of the actual transaction at the time the transaction settles.

(iii) You will be responsible for any sales, use, value-added or import taxes, customs duties or similar taxes assessed in accordance with applicable law with respect to the provision of the SNP Programs.

(iv) Notwithstanding anything herein to the contrary, SNP, in its sole discretion, may suspend or terminate the Agreement and corresponding access and right to use all or any portion of the SNP Programs, at any time, upon electronic or other notice to you, if you have not paid all amounts due on or before the payment due date, or for any other breaches of the Merchant Agreement, these Terms and Conditions, or any other exhibits, addenda or attachments to these Terms and Conditions including any links contained in the Merchant Agreement or these Terms and Conditions, which are incorporated by reference herein. You are responsible for amounts that remain outstanding as of the date of such termination including early cancellation fees. You agree to pay reasonable attorneys’ fees and court costs incurred by SNP to collect any unpaid amounts owed by you.

(v) SNP provides standard installation of its SNP Programs, however, in the event of a complex installation (including those that may require third party or outside technical support to complete the installation), SNP will provide up to one hour of such technical support. Technical support exceeding one hour will be billed at cost to the Merchant.

(vi) SNP Programs include Full and Partial Reward Cards, Free Samples, Check-ins. Additionally, SNP Programs may include Merchant Gift Cards which requires a separate agreement. Merchants may qualify for all of the above SNP Programs upon approval by SNP. Additional fees may be added to the month-to-month subscription fee depending on selected SNP Program.

5. Terms; Termination; Survival


The Agreement will remain in full force specified in the Merchant Agreement. At the end of any Subscription Plan, unless you select a new Subscription Plan, your Subscription Plan will automatically convert to a month-to-month Subscription Plan. Each party shall have the right to terminate the Agreement upon written notice to the other party: (i) upon the institution of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of debts of the other party that is not otherwise dismissed within sixty (60) days of such institution; (ii) upon the making of an assignment for the benefit of creditors by the other party; or (iii) upon the dissolution of the other party. Notwithstanding the foregoing, SNP may terminate the Agreement and/or your access to one or all SNP Programs in the event you fail to remain current in all fees due and owing to SNP or in the event you breach any of your obligations under the Agreement. You may be required to fill out an exit survey in order to complete any cancellation request. Any provision of the Agreement which contemplates performance or observance subsequent to any termination or expiration of the Agreement shall survive any termination or expiration of the Agreement and continue in full force and effect.

6. Representations and Warranties; Disclaimer


(i) SNP warrants that SNP has the authority to enter into this Agreement.

(ii) You represent, warrant and covenant to SNP that: (a) you have the authority to enter into this Agreement; (b) you will take proper care of the SNP equipment if provided with one and/or all equipment provided by SNP to you and maintain all such equipment in good working order; and (c) you will only use the SNP Programs for lawful purposes and will not violate any law of any country or the intellectual property rights of any third party.

(iii) EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 6, EACH PARTY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF QUALITY, ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN ADDITION, SNP DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AS TO THE RESULTS THAT YOU MAY ACHIEVE ON ACCOUNT USING ANY SNP PROGRAM OR SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU EXPRESSLY AGREE THAT THE USE OF SNP PROGRAMS OR SERVICES AND THE INTERNET IS AT YOUR SOLE RISK. SNP PROGRAMS AND SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. YOU HEREBY ACKNOWLEDGE THAT YOU ARE SOLELY RESPONSIBLE FOR OBTAINING AND/OR PROVIDING INTERNET SERVICE TO ALL LOCATIONS IN WHICH THE SNP PROGRAMS ARE TO OPERATE.

7. Confidential Information


Any information that a receiving party knows or has reason to know (either because such information is marked or otherwise identified by the disclosing party orally or in writing as confidential or proprietary, has commercial value, or because it is not generally known in the relevant trade or industry) is "Confidential Information" of the disclosing party and will remain the sole property of the disclosing party. Such Confidential Information includes but is not limited to data, information (including personally identifiable information), ideas, materials, specifications, procedures, schedules, software, technical processes and formulas, source code, product designs, sales, cost and other unpublished financial information, product and business plans, advertising revenues, usage rates, advertising relationships, projections, marketing data and other similar information provided by a party. For avoidance of doubt, Customer Data shall be deemed Confidential Information of SNP. Each party agrees that it will not disclose, use, modify, copy, reproduce or otherwise divulge such Confidential Information to any third party without the prior written approval of the disclosing party except that the receiving party shall have the right to disclose such Confidential Information to the extent required by applicable law or to the directors, officers or employees of the receiving party who have a need to know such Confidential Information in order to perform its obligations under the Agreement and to the extent such directors, officers or employees are subject to obligations of confidentiality and non-disclosure that are substantially similar to the obligations set forth in the Agreement. The prohibitions contained in this Section will not apply to information (i) already lawfully known to the receiving party prior to such disclosure by the disclosing party; (ii) independently developed by the receiving party without access to or use of the disclosing party’s Confidential Information; (iii) disclosed in published materials; (iv) generally known to the public; or (v) lawfully obtained from any third party. In addition, a party will not be considered to have breached its obligations under the Agreement to the extent Confidential Information is required to be disclosed by any governmental authority, provided that, to the extent legally practicable, the receiving party advises the disclosing party prior to making such disclosure in order that the disclosing party may object to such disclosure, take action to ensure confidential treatment of the Confidential Information, or take such other action as it considers appropriate to protect the Confidential Information.

8. Dispute Resolution; Governing Law


In the event of a reward dispute or mistake between a Merchant and User, SNP may in its sole discretion unilaterally make adjustments to User reward points or stamps. To the extent any disputes arise under the Agreement or otherwise between the parties, the parties will first attempt in good faith to resolve their dispute informally. This Agreement is governed by the State of Washington and you expressly agree to the exclusive jurisdiction for any claim or dispute with SNP in the federal and state courts within the jurisdiction of the United States District Court for the King County of Bellevue. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the Agreement.

9. Indemnification


You will defend, indemnify, and hold SNP and its affiliates and their respective directors, officers, employees, agents and representatives harmless from and against any third party suit, proceeding, assertion against any damages, judgments, liability, costs and expenses (including without limitation any reasonable attorneys’ fees) incurred arising from your breach of this Agreement, your unauthorized use or misuse of the SNP Programs or any unauthorized combination of any SNP Program with any hardware, software, products, data or other materials not specified or provided by SNP.

10. Limitation of Liability


SNP’s aggregate liability for all claims (including claims for indemnification of third party damages) arising out of the Agreement, whether in contract, tort or otherwise, will not exceed the amount of fees paid by you to SNP under the Agreement during the six (6) months preceding the date on which the claim occurred. To the maximum extent permitted by applicable law, in no event will SNP be liable for any loss of business profits, business interruption, loss of data or any special, indirect, exemplary, incidental or consequential damages arising from or in relation to the Agreement or the use of the Services, however caused and regardless of theory of liability. In addition, SNP will not be liable for damage (physical or otherwise) incurred by you upon any asset or property from the installation or removal of any SNP product or add-on in-store and will not be responsible for replacement or cost of repair if damages occur. This limitation will apply even if such damages were foreseeable and you have been advised or are aware of the possibility of such damages.

11. Notice


Except where explicitly provided otherwise herein, any notice required or permitted hereunder will be delivered to the contact person listed on the Order Information as follows (with notice deemed given as indicated): (i) by personal delivery when delivered personally; (ii) by established overnight courier upon written verification of receipt; (iii) by facsimile transmission when receipt is confirmed orally; (iv) by certified or registered mail, return receipt requested, upon verification of receipt; or (v) by electronic delivery when receipt is confirmed orally.

12. Assignment


You may not, without the prior written consent of SNP, assign the Agreement, in whole or in part, either voluntarily or by operation of law, and any attempt to do so will be a material default of the Agreement and will be void. The Agreement will be binding upon and will inure to the benefit of the respective parties hereto, their respective successors in interest, legal representatives, heirs and assigns.

13. No Third Party Beneficiaries


The Agreement is solely for the benefit of the parties and their successors and permitted assigns, and does not confer any rights or remedies on any other person or entity.

14. Amendment; Waiver


This Agreement may be changed only by written agreement signed by both SNP and you. The failure of either party to exercise or enforce any of its rights under the Agreement will not act as a waiver of subsequent breaches and the waiver of any breach will not act as a waiver of subsequent breaches.

15. Severability


If any provision of the Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be enforced to the maximum extent permissible under applicable law and the other provisions of the Agreement will remain in full force and effect.

16. Force Majeure


Neither party shall be liable to the other if such party is prevented from performing any of its obligations under the Agreement (excluding fee payment obligations) due to any cause beyond the party’s reasonable control including, without limitation, an act of God, fire, flood, explosion, terrorism, war, embargo, government regulation, civil or military authority, acts or omissions of carriers, transmitters, providers, or acts of vandals, or hackers. The time for that party’s performance will be extended for the period of the delay or failure to perform due to such occurrence, except that you will not be excused from the payment of any sums of money owed by you to SNP provided prior to the force majeure event.

17. Independent Contractor


The Agreement will not be construed as creating or constituting a partnership, joint venture, or agency relationship between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.

18. Compliance with Laws


Each party will comply with all applicable laws, regulations, and ordinances relating to their performance hereunder.

19. Entire Agreement


The Agreement will constitute the entire agreement between SNP and you with respect to the subject matter hereof and all prior oral or written agreements, representations or statements with respect to such subject matter are superseded hereby.

20. Rewards Campaign Terms of Use


The following terms shall, in addition to all of the other terms set forth in this Agreement, govern your use of SNP's "Rewards" platform (the "Rewards Campaign Platform"), which, at a general level, allows you to communicate with SNP members.

General Rules


You shall, as a condition to making any use of the Rewards Campaign Platform, be required to follow these rules:

1. You won’t send Spam! While you are responsible for making yourself of aware of current anti-SPAM and similar regulations that may be in effect from time to time, as a general rule, you should assume that if you send people mass email without their permission, you’re spamming.

2. You won’t violate SNP’s Acceptable Use guidelines, established below, as it may be in effect from time to time, which is part of this Agreement. If you violate any of these rules, SNP, in addition to any other remedies that SNP may have hereunder or otherwise, may suspend or terminate your account.

Compliance with Laws


You represent and warrant that your use of the Campaign Platform will comply with all applicable laws and regulations. You’re responsible for determining whether SNP’s services are suitable for you to use in light of any regulations such HIPAA, GLB, EU Data Privacy Laws and/or other laws. If you are subject to regulations (such as HIPAA) and you use the Rewards Campaign Platform or any other SNP service, then SNP will not be liable if any such service does not meet those requirements.

Acceptable Use


You shall refrain from using the Rewards Campaign Platform to send anything offensive, to promote anything illegal, or to harass anyone. Not in limitation of the foregoing, you may not send:

1. Pornography or other sexually explicit Emails

2. Emails offering to sell illegal goods or services

3. Emails that violate CAN-SPAM Laws or any other applicable laws or regulations

Acceptable Use - Prohibited Actions


SNP works hard to keep its system clean, but SNP also counts on its customers to pitch in. As such, you may not:

1. Send Spam (as noted above).

2. Share your password.

3. Use any of the Rewards Campaign Platform to create a competing product.

4. Import or incorporate personally identifiable information into any lists, emails or uploads to our servers: Social Security numbers, passwords, security credentials, or sensitive personal information of any kind.

5. Send any messages through the Rewards Campaign Platform that are not appropriate for its intended use.

6. Use an outside unsubscribe process.