MANUFACTURER/BRAND TERMS OF SERVICE Last Updated:
1. Authority to accept Manufacturer/Brand Terms of Service.
By indicating your acceptance of these Manufacturer/Brand Terms of Service (the “Agreement”), you are acting on behalf of your employer or another entity (“Manufacturer”) and represent that you have full legal authority to bind your employer to this Agreement. If you do not have the legal authority to bind, please ensure that an authorized person for your entity consents to and accepts this Agreement. This Agreement is entered into on the date that it is initially accepted on behalf of Manufacturer (the “Effective Date”), between Deals Media, LLC, a Delaware limited liability company (“Deals Media”) with offices at 25 Catoctin Circle SE #2932 Leesburg, VA 20177, and Manufacturer, on behalf of itself and its Administrator and each User.
Deals Media is the owner of certain intellectual property and provides professional services and solutions designed to connect Manufacturers, Brands, Retailers and Consumers. Deals Media is engaged in the business of providing licenses to its intellectual property to allow Manufacturers and customers to utilize Deals Media’s professional services in the United States. Manufacturer makes, provides or represents certain products and services and sells those products and services through distributors, retailers, online, and other channels through Retailers or direct to consumers. Manufacturer desires Deals Media to license certain intellectual property owned by Deals Media and to make such products available to Manufacturer in order to allow Manufacturer to utilize Deals Media’s professional services. The parties therefore agree as follows:
In addition to any terms defined within the body of this agreement, the following definitions apply: “Administrator” means a single User that is responsible for providing access to the Software to other Users, through the Interface. “Brand” means a single Consumer-facing trade name, trademark or brand. Manufacturers with multiple Brands may manage their Brands via a unified Interface or individual Brand-based Interfaces. If multiple Brand Interfaces are sponsored by a Manufacturer, each must have an Administrator and must comply with the requirements of this agreement, including individual Reserve and Credit Accounts. “Contests” means Consumer-facing promotions, giveaways, sweepstakes, etc. explicitly incorporated into the Interface and Software and available to Retailers and Manufacturers from within the Interface. “Consumer” means a customer of a Retailer or Manufacturer that has subscribed to the Consumer version of the Software. “Input” means all information entered into the Software by or on behalf of Manufacturer, including images, text, audio, video, logos and creative designs. “Interface” means Deals Media’s online portal that allows Manufacturer to interact with the Software, use the Services and make payment. “Intellectual Property” shall mean all of Deals Media’s patents, copyrights, Software (including routines and subroutines), trademarks, trade names, service marks, logos, and all applications and registrations for any of the foregoing, trade secrets, Confidential Information, compilations, designs, diagrams, layouts, Interactive Data, Interface, ideas, improvements, inventions, formulas, key words, know-how, methods, phone numbers, processes, research and development, systems, technical information, techniques, URLs, workflow management systems and all other proprietary rights and privileges, together with all improvements, modifications and derivative works from all users of the Software. All Interactive Data is Deals Media Intellectual Property. “Redeemed Coupon Charge" – means the aggregate of the total coupon value to be reimbursed to Retailer, an $0.08 Retailer Redemption Fee, and a $1.00 transaction fee to Deals Media. In the example of a $5 coupon, the Redeemed Coupon Charge would be $6.08. “Retailer” means a brick-and-mortar retail store or ecommerce entity that purchases products and services from a Manufacturer, Distributor, or other source, whose primary focus is selling an inventory of products to Consumers and that has subscribed to the Retailer version of the Software. “Services” consist of: (i) Deals Media licensing the Software for its intended use; (ii) Deals Media providing the Software to interact with Deals Media’s Software Application Cloud (SAC) that contains marketing offers from Manufacturers; (iii) Manufacturer licensing Input to Deals Media; (iv) Users populating the Software with Input; (v) and Retailers creation of content; (vi) coupon redemption process; (vii) additional brand-loyalty programs, including but not limited to contests, promotions, rewards programs, frequent buyer programs or other marketing campaigns for Manufacturers; (viii) analysis and use of the related data. “Software” means Deals Media’s marketing software, currently branded as Petz, on a Software as a Service (“SaaS”) Subscription basis, as modified by any Updates. “Updates” means additions, deletions, modifications, enhancements, improvements, patches, new versions, and other derivative works. “Users” means employees and/or agents of Manufacturer who are authorized to use the Software and have been provided login credentials (i.e., user identifications and passwords).
4. Deals Media Obligations.
Deals Media shall: (a) Receive Input from Manufacturer; (b) Inform Manufacturer, within a commercially reasonable time, of any notice it receives, that any portion of the Input may be inaccurate or incomplete; (c) Provide Manufacturer with access to the Interface; (d) Make reasonable efforts to perform all Services in a competent and workmanlike manner; and (e) Provide personnel possessing the skill, experience, and abilities to perform the Services.
5. Obligations of Manufacturer, Administrator and User.
Manufacturer (including Administrator and Users where specified below) shall: (a) Pay all fees for the Services; (b) Provide Input that complies with the standards established by Deals Media and with all applicable laws within the time periods reasonably established by Deals Media, and verify the accuracy of such Input; (c) Utilize reasonable efforts to timely correct and update inaccurate or obsolete Input; (d) Designate one Administrator to be responsible for providing access to the Interface to each User. Prior to an Administrator or User being granted access to the Interface, each Administrator and User shall accept Deals Media’s current license terms. Once provided with access, the Administrator and Users will be provided with a unique username and shall create a unique password to access the Interface. Administrator and Users shall not share their usernames and passwords with any other employee of Manufacturer or any third party, regardless of whether such third party is an employee of Manufacturer. Manufacturer shall delete any Administrator’s or User’s account information within five (5) days of any such person’s termination of employment with Manufacturer; (e) Manufacturer, Administrator and Users shall agree to and execute all Deals Media’s end user license agreements, privacy policies and updates to this Agreement; (f) Manufacturer, Administrator and Users shall comply with all terms, conditions and policies contained within the Interface; (g) Manufacturer, Administrator and Users shall not run any contest, promotion or sweepstake via their Input other than those Contests officially sanctioned by Deals Media and available within the Interface. (h) Manufacturer, Administrator and Users shall not give access to the Interface to any other third party for any purpose without the express written consent of Deals Media. The following terms and conditions apply to any third party acting as an Administrator or User: (i) Deals Media may reject any third party for any reason or for no reason; (ii) Deals Media will not be responsible for the quality of third party’s services; and (iii) Manufacturer and third party will be jointly and severally liable for any damages to Deals Media resulting from third party services. References to Administrator and Users shall include any third party authorized by Deals Media pursuant to this section; (i) Assume responsibility for all activity occurring under User accounts and abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with Manufacturer use of the Services, including those related to data privacy, international communications, and the transmission of technical or personal information. Manufacturer shall: (1) notify Deals Media immediately of any unauthorized use of any password or account or other known or suspected breach of security; (2) immediately report to Deals Media any unauthorized copying or distribution of Deals Media Intellectual Property of which it becomes aware and use reasonable efforts to immediately stop any such activity; and (3) not impersonate any third party or provide false identifying information to gain access or use of the Services; and (j) Ensure that all Input contains only valid characters, as specified within the Interface, and comply with all other specifications as defined within the Interface.
(a) License to Input. Manufacturer hereby grants Deals Media a perpetual, irrevocable, nonexclusive, worldwide, royalty-free license to: copy, distribute, license, sublicense, modify, create derivative works based upon, publicly perform, publicly display and otherwise use Manufacturer’s Input. Deals Media will own all rights to any modifications, improvements, and derivative works that it creates using Manufacturer’s Input. (b) License to Trademarks and Logo. During the term of this agreement, Manufacturer grants to Deals Media a non-exclusive, royalty free, worldwide license to use Manufacturer’s logo, trademark, trade name, and any other identifying label both on Deals Media’s website, and in any reasonable manner necessary for Deals Media to comply with its obligations set forth in this agreement. (c) License to Software. Deals Media shall grant Manufacturers, Administrators and Users a license to the Software as provided in Deals Media’s licensing agreement through the Interface. Administrators and Users shall, by accepting the terms of Deals Media’s licensing agreement, accept on Manufacturer’s behalf. (d) License to Data. Deals Media shall grant Manufacturers, Administrators and Users a license to consumer or market data provided in the Interface for the limited purpose of Manufacturers’ use of the Software. The types of consumer or market data provided in the interface may change from time to time. Additional consumer or market data may be obtained from Deals Media via separate agreement. Market data provided through the interface shall not be provided to any third party without the express consent of Deals Media. (d) Reservation of Rights. Except for the licenses granted in this section, Manufacturer or its licensors retain any rights in the Input. Deals Media hereby retains all right, title and interest to Intellectual Property including all copies, versions, and derivatives thereof. Manufacturer shall not permit any third party to translate, reverse engineer, decompile, recompile, update, or modify all or any part of Deals Media’s Intellectual Property. This agreement does not limit the rights and permissible uses that either party would have independent of this agreement, including rights under the US Copyright Act or other applicable intellectual property laws.
7. Inaccurate Input.
Deals Media may remove any Input that it believes to be inaccurate or incomplete without incurring any liability to the Manufacturer. Deals Media may verify all or portions of the Input to ensure that it is compliant with Deals Media’s standards, provided that Deals Media will not be liable in any manner for any inaccurate or incomplete Input.
8. Billing, Charges and Payment.
Manufacturer shall pay Deals Media all applicable fees and Redeemed Coupon Charges for its Services, in U.S. dollars, including any applicable taxes, in accordance with Deals Media’s billing policies in effect at the time the fees become payable. Different services offered by Deals Media may involve additional or varied fees as disclosed within the Interface. Payments due from Manufacturers are paid first from a Reserve Account and then from a Credit Account, consistent with this Agreement. (a) Reserve Account. To facilitate use of the Services provided by Deals Media, Manufacturer acknowledges and agrees to initially fund a Reserve Account with a minimum deposit of $1,000.00 (USD) (the “Minimum Reserve”). Reserve accounts are the primary funding mechanism for Services under this Agreement and may be funded by ACH, company check or credit card. Manufacturers that fund a Reserve Account via ACH or Credit Card agree and authorize Deals Media to automatically replenish the Reserve Account anytime the balance falls below a refresh trigger of $500.00 (USD) (the “Refresh Trigger”). Deals Media reserves the right to adjust the Manufacturer’s Minimum Reserve or Refresh Trigger (i) to reflect average weekly usage of the Services, (ii) in relation to a specific coupon, contest, campaign, reward program, Brand loyalty program or similar Service or (iii) per agreement with the Manufacturer for the convenience of both parties. Any amounts owed by a Manufacturer in excess of the amount of Reserve Account shall immediately transfer to a Credit Account under the terms herein. (b) Credit Account. If a Manufacturer owes more than is held in the Reserve Account, those amounts owing shall immediately be transferred by Deals Media to a Credit Account. On a weekly basis Deals Media shall notify Manufacturer of new amounts due and owing on a Credit Account. Such invoice shall include an 8% administrative fee. Manufacturer shall have up to thirty (30) days after receipt of an invoice to timely pay. After thirty (30) days, a late payment charge of three percent (3%) will be charged monthly on any outstanding invoices. A Credit Account shall remain active for a manufacturer so long as (i) there are outstanding unpaid invoices or (ii) the Reserve Account has not been replenished to the Minimum Reserve level. (c) Any Manufacturer that uses a credit card to pay an invoice, fund a Reserve Account, or sets up automatic replenishment of a Reserve Account with a credit card shall be charged a 3% processing fee on each credit card transaction. (d) Manufacturer will pay a fee of $35.00 or the maximum amount permitted by law for any returned payments due to insufficient funds or any credit card payments that are charged back or denied. (e) Reserve and Credit Accounts are maintained by Deals Media in United States dollars (“USD”). Payments on Reserve and Credits accounts should be made in USD. Payments made by a Manufacturer in any other currency will be converted to USD at prevailing market rates and less any applicable transaction fees and then applied to the Manufacturer’s Reserve and/or Credit Accounts. (f) If Manufacturer fails to pay fees when due, Deals Media may: (i) immediately suspend or terminate Manufacturer’s access to the Interface; (ii) remove or nullify Input; (iii) immediately suspend or terminate a manufacturer’s current Services, including open offers, reward programs, loyalty programs or Contests and (iv) terminate this agreement, in whole or in part. Manufacturer represents that all information provided for purposes of payment will be accurate, complete, and current. (g) Manufacturer acknowledges that certain payment methods may require Deals Media to share personal information contained within such payment methods with one or more third parties for the limited purpose of processing payment. (h) Manufacturer shall submit any fee disputes to Deals Media in writing within thirty (30) days of the charge or such dispute will be deemed waived and not subject to challenge. Manufacturer shall pay all reasonable expenses (including attorneys’ fees) incurred by Deals Media in the collection of fees for Services.
9. Term and Termination.
The Agreement will remain in effect for an initial term of one (1) year commencing from the date of Manufacturer’s enrollment (“Initial Term”). This Agreement will automatically renew for one (1) year on the annual anniversary of the Initial Term. Either party may terminate this Agreement by written notification served on the other party and such termination will become effective thirty (30) days after receipt of such notice. Upon termination by either party, with respect to Reserve Accounts, Deals Media shall refund any unused funds in such account. In addition, Manufacturer shall immediately return all of Deals Media’s Intellectual Property, including all copies thereof, to Deals Media. Under no circumstances shall Manufacturer retain any of Deals Media’s Intellectual Property beyond the period of three (3) days following termination.
10. Manufacturer Representations and Warranties.
Manufacturer represents and warrants that: (i) it has all necessary rights and interests in and to the Input; (ii) Manufacturer has full power and authority to enter into and perform under this agreement; (iii) neither the Input nor the products or services offered by Manufacturer violate any state or federal regulation, rule, statute or law; (iv) all Input is accurate and contains only valid characters; (v) it will offer any products and services relating to Input for sale and take all necessary actions relating thereto; (vi) Manufacturer is duly organized, qualified, licensed, validly existing and in good standing in each jurisdiction where it transacts business, (vii) Manufacturer’s performance hereunder and delivery of the Input to Deals Media will not violate any other agreement or third party rights; and (viii) the Input will not contain any subject matter or material that is libelous, obscene, objectionable or illegal.
11. Deals Media Representations, Warranties and Disclaimer.
(a) Deals Media represents and warrants that: (i) the Services Deals Media provides to Manufacturer pursuant to this agreement will be performed in accordance with generally accepted industry standards; and (ii) Deals Media has the authority to grant the licenses contained in Section 4(a) and (c). (b) DEALS MEDIA HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING NONINFRINGEMENT, TITLE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. DEALS MEDIA MAKES NO REPRESENTATIONS, WARRANTIES OR CLAIMS THAT: (i) THE SERVICES WILL MEET MANUFACTURER’S REQUIREMENTS; (ii) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, OR ERROR FREE; (iii) MANUFACTURER’S USE OF THE SERVICES WILL INCREASE MANUFACTURER’S SALES OR PROFIT; (iv) DISTRIBUTORS WILL SELECT INPUT FOR ANY RETAILERS OR THAT RETAILERS WILL SELECT INPUT FOR USE; AND (v) ANY ERRORS IN THE INPUT WILL BE CORRECTED. NO ORAL STATEMENTS BY DEALS MEDIA WILL BE CONSIDERED REPRESENTATIONS OR WARRANTIES. MANUFACTURER MAY ONLY RELY UPON EXPRESS WARRANTIES AND REPRESENTATIONS MADE WITHIN THIS AGREEMENT.
12. Limitation of Liability.
EXCEPT FOR (i) EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 13; (ii) BREACHES OF CONFIDENTIALITY UNDER SECTION 14; AND (iii) BREACH OF INTELLECTUAL PROPERTY RIGHTS UNDER SECTION 6: NEITHER PARTY (INCLUDING SUCH PARTY’S OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR AFFILIATES) WILL BE LIABLE FOR ANY SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES, OF ANY KIND, INCLUDING LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS OPPORTUNITY, OR GOODWILL, OCCASIONED BY THE BREACH OF ANY OBLIGATION UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, WHETHER FORESEEABLE OR NOT, ON ANY THEORY OF LIABILITY EVEN IF SUCH PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE, AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY SPECIFIED IN THIS AGREEMENT. NOTWITHSTANDING THE ABOVE, THE LIABILITY OF DEALS MEDIA WILL IN NO EVENT EXCEED $1,000 (USD).
Each party shall indemnify, defend and hold the other harmless, including such party’s current and former officers, directors, employees, and agents from any loss, claim or damage arising from or related to a breach of such party’s obligations, representations and warranties under this agreement. Supplier shall indemnify, defend and hold Deals Media and its respective affiliates, partners, licensees, and sub- licensees harmless from any loss, claim or damage relating to: (i) the Input or the products and services related to such Input; (ii) an Administrator or User disclosing their usernames and passwords; (iii) an Administrator or User disclosing any Confidential Information or Deals Media Intellectual Property; and (iv) a User’s breach of this agreement or any end user license agreement entered into by such User, regardless of whether such User is an employee or agent. Any indemnification under this section will include reasonable attorney’s fees and costs.
14. Confidential Information and Injunctive Relief.
(a) Definition. “Confidential Information” means tangible and intangible information disclosed by one party to the other party under this agreement that is: (a) designated or marked as confidential; or (b) would normally under the circumstances be considered Confidential Information of the disclosing party. In the case of Deals Media, Confidential Information includes business logic; Interactive Data; Interface; technical and business information; research and development; trade secrets; know-how; and other Intellectual Property or proprietary information. Further, certain Confidential Information, including Interactive Data and Interface in the case of Deals Media, fall within the definition of trade secrets under the Uniform Trade Secrets Act or other applicable federal and state law. Notwithstanding the foregoing, Confidential Information does not include any information that the recipient already knew, that is public or becomes public through no fault of the recipient, that was independently developed by the recipient without any use of the discloser’s Confidential Information, that is published or is otherwise available online, or that was rightly given to the recipient by another party without breach of any obligation to the disclosure. (b) Confidentiality Obligations. The recipient (including Administrator and Users) shall not disclose Confidential Information except to employees and agents who need to know it and have agreed in writing to keep it confidential consistent with the confidentiality provisions of this agreement. The recipient may use Confidential Information only to exercise its rights and fulfill obligations under this agreement while using reasonable care to protect it. The parties acknowledge that Deals Media’s distribution of Input as permitted under this agreement will not be considered a breach of confidentiality obligations. The obligations of each party to maintain the confidentiality of the other party’s Confidential Information apply during the term of this agreement and for an indefinite period thereafter, until such Confidential Information becomes available to the general public without restriction.
15. No Partnership or Joint Venture.
Manufacturer and Deals Media are separate legal entities and this agreement establishes Deals Media as an independent contractor. Nothing contained in this agreement will be deemed or construed by the parties, or any third party, as creating any partnership or joint venture relationship between the parties. Nothing in this agreement will constitute or permit either party to execute any contract or other document on behalf of the other, or to bind or otherwise obligate the other party.
16. Dispute Resolution.
In the event of a dispute, the parties shall first engage in a good faith effort to resolve the dispute by exchanging relevant information and negotiating in good faith. If such dispute is not resolved within thirty (30) days to the mutual satisfaction of the parties, upon a written request by a party, the dispute may be settled by binding arbitration in front of a panel of three arbitrators, conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”), as such rules may be amended from time to time. The parties are not obligated to employ the services of the AAA to conduct the arbitration but may do so upon the agreement of the parties. The arbitration will be conducted in or near Leesburg, Virginia, and will commence within sixty (60) days of the request for arbitration by a party. The party that substantially prevails shall be entitled to its reasonable attorneys’ fees and costs.
17. No Waiver.
Neither the failure nor any delay on the part of either party to exercise any right, remedy, power, or privilege under this agreement will operate as a waiver thereof, nor will any single or partial exercise of any right, remedy, power or privilege preclude any other or further exercise of the same or any other right, remedy, power or privilege, nor will any waiver of any right, remedy, power, or privilege with respect to any occurrence be construed as a waiver of such right, remedy, power or privilege with respect to any other occurrence. No waiver will be effective unless it is in writing and signed by the party asserted to have granted the waiver.
18. Entire Agreement.
Either party may assign this agreement upon reasonable notice to the other party, provided however that such assignment will not relieve either party of its obligations hereunder. This agreement will inure to the benefit of, and be binding upon and enforceable by, the parties hereto and their respective successors and assigns.
20. Choice of Law and Manner of Execution.
This agreement will be governed by and construed in accordance with the laws of the Commonwealth of Virginia without reference to any choice of law principles or rules. This agreement may be executed either in hard copy or by indicating acceptance in electronic format (check box), either of which will constitute a legal, binding and enforceable contract between the parties.
21. Rules of Construction.
References to the singular include the plural and references to the plural include the singular.
The provisions of this agreement are independent of each other, and no provision will be affected or rendered invalid or unenforceable by virtue of any other provision being held invalid or unenforceable in whole or part.
Any terms or obligations of this Agreement that would, by their nature, survive the termination hereof will so survive, including Section 6 (Licenses), Section 9 (Term and Termination), Section 10 (Manufacturer Warranties), Section 12 (Limitation of Liability), Section 13 (Indemnification), Section 14 (Confidential Information and Injunctive Relief) and Section 16 (Dispute Resolution).
24. Force Majeure.
Except for failure to make payments when due, neither party will be liable to the other by reason of any failure in performances of this agreement if the failure arises out of the unavailability of third party communication facilities or energy sources, acts of God, acts of the other party, acts of governmental authority, fires, flood, explosions, internet outages, computer viruses, strikes, shortages, delays in transportation, riots, war, terrorism, insurrection, or any other cause beyond the reasonable control of that party.
All notices, requests, demands and other communication required or permitted under this agreement shall be in writing and shall be deemed to have been duly given, made and received at Manufacturer’s postal or electronic mail address on file with Deals Media or at Deals Media’s address set forth below: (a) when delivered, if made by hand delivery; (b) two (2) business days following deposit with a reputable overnight courier service; (c) when sent by e-mail from Deals Media to Manufacturer with confirmation of receipt; (d) upon online notice and acceptance by Manufacturer within the Product Registry or Deals Media enrollment website or; (e) six (6) days after deposit in the United States Mail, certified or registered, postage prepaid, return receipt requested. Notices to Deals Media shall be sent to: Deals Media, LLC Attention: Legal 25 Catoctin Circle SE #2932 Leesburg, VA 20177
26. Statute of Limitations.
Regardless of any statute or law to the contrary, Manufacturer shall bring any claim or cause of action arising out of or related to the terms of this agreement within one (1) year after such claim or cause of action arose and/or became known to Manufacturer, or such claim or cause of action will be barred forever.
28. Updates to the Services or Software, and Changes to These Terms.
Deals Media may change these terms and conditions at any time and will provide Manufacturer notice of such changes. Using the services after the changes become effective means you agree to the new terms and conditions. If you don’t agree to the new terms, you must stop using the services