BradsDeals Widgets Terms and Conditions
This Subscriber Agreement ("Agreement") is made and entered into by and between Shop Smart, Inc., a Delaware corporation located at 7195 Commerce Dr. Mentor, OH 44060, and the person or entity (the "Subscriber") specified during the sign-up process, effective upon the date of acceptance. In consideration of the premises and the mutual covenants set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are acknowledged, BradsDeals and Subscriber agree as follows:
1. The Content
BradsDeals makes available electronically, to its subscribers, certain content regarding coupons and other special offers that are posted or made available by third-party merchants to consumers over the Internet (the "Content"). BradsDeals will provide or make the Content available to Subscriber, on such periodic or recurring basis, in such form and format, and by such method, as is then generally offered or made available by BradsDeals, with the details of the specific Content to be provided to Subscriber, and of the frequency, form, format, and method of delivery of such Content, to be as mutually agreed to by the parties from time to time. To the extent of BradsDeals' rights in the Content, BradsDeals grants to Subscriber a limited, non-exclusive, non-transferable, worldwide, royalty-free license (without the right to sublicense) to use, display, and make the Content, as provided by BradsDeals to Subscriber hereunder, available to consumers on or through Subscriber's Web site that is identified in the signature block of this Agreement (or such other Web sites as are mutually agreed upon by the parties in writing from time to time). For the avoidance of doubt, while there may be overlap and similarities, the Content does not mean the coupons and offers posted, at any given time, on www.bradsdeals.com.
2. Responsibilities of Subscriber
Subscriber shall be exclusively responsible for procuring and maintaining appropriate network and Internet connectivity, as required to receive, use, display, and make the Content available on or through Subscriber's Web site. Subscriber shall comply with any policies and procedures regarding the Content and the use and display thereof that are provided or made available by BradsDeals from time to time, including, but not limited to, any policies or procedures that pertain to contacting BradsDeals for questions or support regarding the Content. Subscriber may not archive or otherwise retain any copies of any Content for more than thirty (30) days after such Content was provided or made available by BradsDeals.
b. Acceptable Use.
Subscriber may not use, display, or make the Content available: (i) on any Web site that contains excessive profanity, nudity, or obscene, pornographic, racist, hateful, or otherwise objectionable material, or that offers, promotes, engages in, or provides instruction in illegal activities; or (ii) in any manner that is defamatory, libelous, slanderous, invasive of personal privacy, threatening, false, or misleading, that otherwise violates any rights of others, or that presents or portrays BradsDeals or any merchant to which the Content pertains in other than a professional, non-disparaging manner. Subscriber shall indemnify, defend, and hold BradsDeals harmless from and against any claims, actions, liabilities, losses, and damages, and shall pay all costs and expenses (including attorneys' fees), arising out of any third-party claim regarding Subscriber's Web site or the use or display of the Content on or through Subscriber's Web site.
c. Prohibited Activities.
Except as expressly permitted by this Agreement, Subscriber shall not: (i) modify, adapt, translate, reverse engineer, decompile, disassemble, or create derivative works of any Content; (ii) intentionally interfere with, disrupt, interrupt, restrict, prevent, or disable BradsDeals' distribution of the Content to others; or (iii) resell, assign, lease, rent, license, or sublicense any Content to any third parties. Subscriber acknowledges and agrees that any breach by it, or by any of its agents, employees, or representatives, of this Section shall cause irreparable injury to BradsDeals and that, in such an event, in addition to any other remedies that may be available, in law, in equity, or otherwise, BradsDeals shall be entitled to seek and obtain injunctive relief against any threatened or continuing such breach.
3. Term and Termination
This Agreement shall take force and effect as of the Effective Date and shall continue in force and effect until terminated in accordance with Section 4b.
Either party may terminate this Agreement for convenience upon providing the other party with thirty (30) days' prior written notice thereof. Either party may terminate this Agreement for cause upon providing the other party with written notice thereof if the other party materially breaches any provision of this Agreement and fails to cure such breach within thirty (30) days after being provided with written notice reasonably describing the breach by the non-breaching party. In addition, Subscriber acknowledges and agrees that, if Subscriber fails to comply in any material respect with the terms of this Agreement, BradsDeals may, in its sole discretion, immediately suspend Subscriber's right to receive, use, display, and make available the Content.
c. Effects of Termination.
Upon any termination of this Agreement, Subscriber shall immediately cease to use, display, and make the Content available on or through its Web site.
4. Proprietary Rights
The logos, trademarks, service marks, trade names, trade dress, and similar marks and materials of each party are and shall remain the exclusive property and proprietary material of such party. Subscriber acknowledges and agrees that the selection, arrangement, and compilation of the Content, and certain other rights to the Content, are the valuable proprietary and intellectual property of BradsDeals, and that the Content contains valuable proprietary and intellectual property (including, but not limited to, trademarks, service marks, trade names, logos, etc.) of third parties. BradsDeals and the applicable third parties are and shall remain the exclusive owners of the Content and all intellectual property and proprietary rights pertaining thereto. BradsDeals and the applicable third parties expressly reserve and retain all rights to the Content that are not expressly granted in this Agreement, and no implied license to, or interest in, any such rights shall arise as a result of or in connection with this Agreement. BradsDeals makes no representations, warranties, or other commitments of any kind with respect to any rights of any third parties in or to the Content or any portion thereof.
Subscriber and BradsDeals each acknowledge and agree that certain Confidential Information of each of them will be used and disclosed in connection with this Agreement. As used in this Agreement, "Confidential Information" means, with respect to either party, materials or information relating to the business or operations of such party that are not generally known to others in the same industry, including, but not limited to, know-how, trade secrets, technical data, drawings, designs, processes, procedures, models, manuals and documentation, trading-related data, financial data, business data, marketing and product-related data, future plans, customer and supplier lists, personnel-related information, and the like. Subscriber and BradsDeals shall each maintain the Confidential Information of the other in strict confidence, using the same care as they respectively exercise with regard to their own confidential information of a similar nature, but at least a reasonable standard of care. Without the prior written consent of the other party, neither Subscriber nor BradsDeals shall use or disclose, or permit to be used or disclosed, any Confidential Information of the other party, except as necessary and appropriate for performance hereunder or as required by law or legal process. Notwithstanding the foregoing provisions of this Section, Confidential Information shall not include information to the extent that such information: (i) is already known to the applicable party free of any obligation of confidentiality at the time it is obtained from or disclosed by the other party hereunder; (ii) is or becomes publicly known or available through no wrongful act or breach of this Agreement; or (iii) is rightfully received by the applicable party from a third party without obligation of confidentiality. The parties agree that any breach by either party of this Section shall cause irreparable injury to the other party, and, in such an event, in addition to any other remedies that may be available, in law, in equity or otherwise, the non-breaching party shall be entitled to seek injunctive relief against any threatened or continuing such breach, without the necessity of proving actual damages or posting bond. The obligations of confidentiality set forth in this Section shall remain in force and effect at all times during the term of this Agreement and: (i) with respect to Confidential Information that constitutes a trade secret under applicable law, for so long as such trade secrets status is maintained; and (ii) with respect to Confidential Information that does not constitute a trade secret, for five (5) years after termination or expiration of this Agreement (or for the maximum amount of time permitted under applicable law, if shorter than five (5) years). Upon any termination of this Agreement, each party shall promptly return, or, in the sole discretion of the other party, destroy, any Confidential Information of the other party then in such party's possession or control.
a. Disclaimer of Warranties.
BRADSDEALS MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THIS AGREEMENT OR THE CONTENT OR ANY OTHER MATERIALS OR SERVICES PROVIDED OR MADE AVAILABLE BY BRADSDEALS IN CONNECTION WITH THIS AGREEMENT, AND ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE (INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT), WITH RESPECT TO THE CONTENT, ANY OTHER MATERIALS OR SERVICES PROVIDED OR MADE AVAILABLE BY BRADSDEALS, OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT ARE EXPRESSLY DISCLAIMED AND EXCLUDED. THE CONTENT AND ANY OTHER MATERIALS AND SERVICES PROVIDED OR MADE AVAILABLE BY BRADSDEALS IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED AND MADE AVAILABLE "AS IS" AND "WITH ALL FAULTS," WITHOUT WARRANTIES OF ANY KIND. WITHOUT LIMITING THE FOREGOING, BRADSDEALS EXPRESSLY DOES NOT REPRESENT, WARRANT, OR COVENANT THAT THE CONTENT OR ANY OTHER MATERIALS AND SERVICES PROVIDED OR MADE AVAILABLE BY BRADSDEALS IN CONNECTION WITH THIS AGREEMENT SHALL BE ACCURATE, CURRENT, COMPLETE, RELIABLE, OR APPROPRIATE FOR ANY PARTICULAR USE OR PURPOSE TO WHICH SUBSCRIBER OR ANY THIRD PARTY MAY CHOOSE TO PUT THEM, THAT THEY SHALL BE PROVIDED OR MADE AVAILABLE ON AN UNINTERRUPTED OR ERROR-FREE BASIS, THAT ERRORS OR DEFECTS WILL BE CORRECTED, OR THAT THE CONTENT OR ANY THIRD-PARTY WEB SITES TO WHICH THE CONTENT PROVIDES LINKS SHALL BE FREE OF VIRUSES OR OTHER DISABLING DEVICES OR HARMFUL COMPONENTS, AND BRADSDEALS SHALL HAVE NO OBLIGATION OR LIABILITY WITH RESPECT TO ANY OF THE FOREGOING.
b. Third-Party Sites and Materials.
SUBSCRIBER ACKNOWLEDGES AND AGREES THAT THE CONTENT MAY PROVIDE LINKS TO THIRD-PARTY WEB SITES THAT ARE NOT UNDER THE CONTROL OF BRADSDEALS AND THAT BRADSDEALS SHALL NOT BE RESPONSIBLE OR LIABLE IN ANY WAY FOR SUCH WEB SITES OR USE THEREOF. BRADSDEALS IS NOT RESPONSIBLE OR LIABLE FOR THE RESULTS OBTAINED THROUGH THE USE OF THE CONTENT, AND NOTHING IN THE CONTENT OR IN THIS AGREEMENT SHOULD BE CONSTRUED AS ADVICE, RECOMMENDATIONS, OR ENDORSEMENTS OF ANY THIRD PARTY, OR OF ANY THIRD-PARTY PRODUCTS, GOODS, OR SERVICES, BY BRADSDEALS. BRADSDEALS DISCLAIMS ALL LIABILITY, AND MAKES NO REPRESENTATIONS OR WARRANTIES, WITH RESPECT TO ANY PRODUCTS, GOODS, OR SERVICES MADE AVAILABLE, SOLD, OR PROVIDED BY ANY THIRD PARTY. SUBSCRIBER AGREES THAT IT WILL BRING NO SUIT OR CLAIM AGAINST BRADSDEALS ARISING FROM OR BASED UPON THE USE OF THE CONTENT OR UPON ANY THIRD-PARTY PRODUCTS, GOODS, OR SERVICES. REFERENCES TO THIRD PARTIES, OR TO THIRD-PARTY PRODUCTS, GOODS, OR SERVICES, IN THE CONTENT DO NOT IMPLY THAT: (A) BRADSDEALS IS AFFILIATED OR ASSOCIATED WITH ANY SUCH THIRD PARTY; OR (B) BRADSDEALS IS LEGALLY AUTHORIZED TO USE ANY TRADEMARK, TRADE NAME, LOGO, OR COPYRIGHTED SYMBOL OR MATERIAL OF ANY SUCH THIRD PARTY.
7. Limitations of Liability
TO THE FULLEST EXTENT PERMITTED BY AND CONSISTENT WITH APPLICABLE LAW: (A) BRADSDEALS SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, INDIRECT, OR SIMILAR DAMAGES, OR FOR ANY DIRECT DAMAGES, IN CONNECTION WITH CLAIMS AND ACTIONS ARISING UNDER OR RELATING TO THIS AGREEMENT, NOTWITHSTANDING THE FORM IN WHICH BROUGHT, EVEN IF BRADSDEALS WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) IN THE EVENT BRADSDEALS IS FOUND OR HELD LIABLE FOR ANY DAMAGES IN CONNECTION WITH THIS AGREEMENT NOTWITHSTANDING THE FOREGOING CLAUSE (A), THE MAXIMUM, CUMULATIVE, AND AGGREGATE AMOUNT OF SUCH LIABILITY SHALL IN NO EVENT EXCEED $100.
This Agreement constitutes the entire understanding between the parties with respect to the subject matter hereof. In the event any provision of this Agreement shall for any reason by held to be invalid, illegal, or unenforceable, the remaining provisions of this Agreement shall remain valid and enforceable and of full force and effect. Any provisions of this Agreement that impose continuing obligations upon a party or, by their nature or terms, would be reasonably understood to have been intended to survive and continue in force and effect after expiration or termination of this Agreement, shall remain in force and effect after such expiration or termination for so long as intended. No failure by either party to enforce any right or remedy under this Agreement shall be construed as a waiver of such party's right to enforce any provision of this Agreement in the future. Subscriber may not assign or otherwise transfer this Agreement or its rights or obligations hereunder without the prior written consent of BradsDeals. The parties are independent contractors with respect to each other and this Agreement, and nothing in this Agreement shall be construed to constitute either party as a partner, joint venturer, employee, agent, or representative of the other.
b. Applicable Law; Jurisdiction.
This Agreement and all performance hereunder shall be governed by and construed in accordance with the substantive laws of the United States of America and State of Illinois, without regard to conflicts of laws provisions. Any claim, suit, action or proceeding arising out of or relating to this Agreement shall be brought in the state or federal courts located in Chicago, Illinois, and each party hereto irrevocably submits to the jurisdiction and venue of such courts.
c. Force Majeure.
BradsDeals shall not be liable for delays or failures in performance caused by acts or events beyond its reasonable control (e.g., acts of God, war, terrorism, or delays, interruptions, or unavailability of third-party services or materials, e.g., utilities and telecommunications resources).
By accepting this agreement, Subscriber acknowledges and agrees that they have read and understand the terms of this Agreement and agree to be bound thereby as of the Date of acceptance.