TERMS & CONDITIONS
Current Version: December 26, 2017
TopWhale.com (“Site”) provides an online marketplace dedicated to finding and sharing the best possible deals on products and services for older adults. These Merchant Terms and Conditions (the “Terms and Conditions”) govern and are incorporated into the Merchant Services Agreement between AideDirect, LLC, (“AD” “we” “us” or “our”), and Merchant (collectively, the “Agreement”).
We may amend these Terms and Conditions in our sole discretion and at any time. The most recent version of the Terms and Conditions (as may be amended by us from time to time) will be available in our Merchant Center. Merchant agrees that this notification method constitutes adequate notice to inform Merchant of any amendments to the Agreement and Merchant further agrees to be bound by any such amendments to the Agreement upon such notification.
“MERCHANT OFFER” means the goods and/or services to be provided by the Merchant, stated on the Merchant Offer as presented by AD. Values determined by Merchant.
“MAXIMUM NUMBER OF MERCHANT OFFERS” means the maximum number of Merchant Offers we are authorized to administer the sale of on behalf of the Merchant.
“MONTHLY MAXIMUM NUMBER OF MERCHANT OFFERS” means the maximum number of Merchant Offers we are authorized to administer the sale of on behalf of Merchant each month after the Maximum Number of Merchant Offers have been sold.
“FULL OFFER VALUE” means the Amount Paid plus the Promotional Value.
“AMOUNT PAID” means the amount a purchaser pays for each Merchant Offer.
“PROMOTIONAL VALUE” means the Full Offer Value less the Amount Paid.
“PROMOTIONAL VALUE EXPIRATION DATE” means the date stated on the Merchant Offer when the Promotional Value expires.
“REMITTANCE AMOUNT” means the amount we shall remit to Merchant for each Merchant Offer, subject to the payment terms.
“FINE PRINT” means the conditions and restrictions concerning Merchant Offer redemption and the Merchant Offering stated on the Website and Merchant Offer.
A. Merchant Offers
1. We are authorized to promote and sell Merchant Offers on Merchant’s behalf subject to the terms of this Agreement and the “Terms of Sale” of our Site. The Merchant Offer will be sent to the purchaser electronically once payment is received. The purchaser will then redeem the Merchant Offer with the Merchant by presenting the Merchant Offer in paper or electronic form. Merchant is the issuer of Merchant Offers and seller of Merchant Offers. If there is a conflict between this Agreement and the Terms of Sale, the Agreement controls.
2. We are authorized to promote and sell Merchant Offers on Merchant’s behalf through any platform, including our Site, affiliates, social media, email marketing, marketplace, or referral network. The Merchant Offers may be offered to all or part of our subscriber base or its affiliate subscriber base or referral network and segmented by various variables including gender, age, location, and consumer preferences. The features may be offered through a variety of distribution channels, including, the internet, our Site, affiliate websites, business partner network, email, mobile applications, other types of electronic offerings and other platforms or distribution channels owned, controlled, or operated by us, and our affiliates or business partners. In addition, in connection with our promotion of a Merchant Offer, Merchant authorizes us to shorten or extend the Promotional Value Expiration Date.
3. For appointment based Merchant Offers, we may require that Merchant provide us with a calendar of available appointment times and allow purchasers to schedule appointments with the Merchant through us and any third party service we may use. Wen may audit Merchant response times using various methods, including but not limited to, auto-dialers, call forwarding and pre-recorded calls. If we, in our sole discretion, determine Merchant response times or the quality of service provided to purchasers is unsatisfactory, we may terminate the Agreement and return the Amount Paid to purchasers for unredeemed Merchant Offers.
4. We reserve the continuing right to reject, revise, or discontinue any Merchant Offer, at any time and for any reason in our sole discretion, and to terminate the Merchant Offer and to remove all references to the Merchant Offer from our Site; and redirect or delete any URL used in connection with the Merchant Offer.
5. Merchant shall honor Merchant Offers through the Promotional Value Expiration Date. After the Promotional Value Expiration Date, MERCHANT AGREES TO REDEEM MERCHANT OFFERS FOR THE AMOUNT PAID INDEFINITELY.
6. After the Promotional Value Expiration Date, Merchant must always allow the purchaser to redeem the Merchant Offer for the Amount Paid toward the Merchant Offer. If the goods and services constituting the Merchant Offer and stated on the Merchant Offer are no longer available, the Merchant must always allow the purchaser to redeem the Merchant Offer toward any goods or services then offered by the Merchant equivalent to at least the Amount Paid.
7. Partial redemptions: If applicable, and if a purchaser redeems a Merchant Offer for less than the Amount Paid, the Merchant is responsible for handling any unredeemed value as required by applicable law.
8. Merchant agrees that in providing the Merchant Offer, Merchant will not inflate prices or impose any additional fees, charges, conditions or restrictions that contradict or are inconsistent with the terms stated on the Merchant Offer, including the Fine Print. Unless disclosed in the Fine Print, Merchant further agrees not to impose different terms or a different cancellation policy than what is imposed on its non-AD customers.
9. Merchant agrees that so long as an appointment or reservation is made to redeem a Merchant Offer, or purchaser has made an attempt to make an appointment, before the Merchant Offer’s Promotional Value Expiration Date, the Merchant Offer will be honored for the Full Offer Value without restriction, even though the services may be provided after the Promotional Value Expiration Date.
10. For any seasonal Merchant Offer(s), following the initial Promotional Value Expiration Date specified in our Merchant Services Agreement the: (i) Promotional Value Expiration Date will reset to be the end of the immediately following season specified by Merchant; and (ii) Maximum Number of Merchant Offers will reset for the immediately following season. Throughout the Term (as defined herein), the Promotional Value Expiration Date and the Maximum Number of Merchant Offers for the seasonal Merchant Offer(s) will continue to reset after each season.
11. Merchant is responsible for all customer service in connection with the Merchant Offer and for supplying all goods and services stated in the Merchant Offer. Merchant is also responsible for any customer loyalty programs associated with the Merchant Offer.
12. If applicable, Merchant will hold the Merchant Offer for pick-up by each purchaser at the Redemption Site. The “Redemption Site” is the complete and accurate address provided by Merchant to AD where purchasers are able to redeem the Voucher to pick-up the Merchant Offer. Merchant also agrees to provide us with the hours and dates of operation, complete with any exceptions, and a valid phone number for the Redemption Site. If any of the information related to a Redemption Site changes, Merchant agrees to notify AD immediately of such change.
13. Merchant agrees to accept returns of the Merchant Offer in compliance with applicable laws and the Fine Print, but in any event: (i) will accept returns of a defective Merchant Offer or nonconforming items in or a part of any Merchant Offer at all times and pay (or reimburse a purchaser for) any and all costs associated with the return of such Merchant Offer; and (ii) will not impose a more restrictive return policy on purchasers than Merchant’s regular return policy as applied to Merchant’s purchaser in the ordinary course of Merchant’s business.
1. Amounts retained by AD from the proceeds of Merchant Offers are compensation to AD for marketing, promoting, and advertising the Merchant Offer and distributing the Merchant Offers on behalf of Merchant. Merchant shall retain the Remittance Amount in trust for the benefit of purchasers holding unredeemed Merchant Offers until Merchant delivers the Merchant Offer, refunds the holder of any unredeemed Merchant Offer or escheats the amount required to a taxing authority, if applicable. The funds held in trust shall be returned to AD upon demand for refunds to purchasers. AD is authorized to review Merchant’s credit history, which may include a soft credit check.
2. AD is authorized to initiate ACH credit transaction entries to Merchant’s depository account at the depository financial institution named in this Agreement or as otherwise provided to AD by Merchant in writing (“Merchant Bank Account”). Only in the event of an error, AD is authorized to initiate debit entry adjustments to the Merchant Bank Account to correct any error. Merchant hereby acknowledges that our origination of all ACH transactions to Merchant Bank Account must comply with provisions of U.S. law. ACH payments take up to five (5) business days to become available in the Merchant Bank Account after processing.
3. Merchant will not attempt to bill or collect reimbursement from any third-party payor (“Third-Party Payor”), for any of Merchant’s services. Merchant will accept the amounts received from AD as payment in full for all services provided by Merchant delivered pursuant to the Merchant Offer. Merchant is solely responsible for complying with any contractual requirements imposed by its contracts, if any, with Third-Party Payors, including but not limited to requirements related to offering discounted services.
4. Tax Levy. In the event AD receives written notice of a validly issued state or federal tax levy relating to past-due taxes owed by Merchant, AD may, in accordance with applicable law, deduct any such amounts from payments due to Merchant.
5. Taxes Generally. It is Merchant’s responsibility to determine what, if any, taxes apply to the payments Merchant makes or receives, and it is Merchant’s responsibility to collect, report and remit the correct tax to the appropriate tax authority. AD is not responsible for determining whether taxes apply to Merchant’s transaction with either purchasers or AD, or for collecting, reporting or remitting any taxes arising from any transaction with or by Merchant and purchaser. Merchant may be asked to provide AD with a valid Tax Identification Number for tax reporting purposes. An IRS Form 1099 may be issued in Merchant’s name for the value of payments made. Notwithstanding anything else in this Agreement, Merchant shall be, and will remain, registered for sales, use and other similar tax collection purposes in all states and localities in which Merchant is required to be so registered in connection with the Merchant Offer and pursuant to the terms and redemption of any Merchant Offer, and shall be responsible for paying any and all sales, use or any other taxes related to the Merchant Offer or the goods and services.
6. Transaction Taxes. Merchant bears sole financial responsibility for any and all sales, use, excise, general, GST, or other similar taxes, including any interest penalties and additions related thereto, imposed on or arising from the transactions contemplated by this Agreement between AD and Merchant (“Transaction Taxes”), if any. AD shall apply the applicable Transaction Tax to the amounts it retains and/or other fees remitted to AD pursuant this Agreement. Transaction Taxes are calculated using the Merchant’s billing address and will be included on invoices. Tax rates are subject to change. If applied, Transaction Taxes will be calculated at the time of each payment using the rates in effect under current law.
7. Withholding Taxes. AD may be required by tax authorities to withhold taxes on behalf of Merchant. AD reserves the right to deduct any such taxes from amounts due to Merchant and to remit them to the appropriate tax authority. AD may also be required to report the withholding tax payments to the tax authorities. AD shall provide evidence of payment of withholding taxes to Merchant no later than 60 days after payment of the withholding taxes.
8. Notwithstanding anything to the contrary, AD will have no obligation to advance amounts that have been paid to AD by a purchaser until Merchant has complied with Merchant’s obligations under this Agreement. If AD reasonably believes that Merchant has breached any provision of this Agreement, AD may offset, delay, withhold, or suspend future payments to Merchant, in AD’s sole discretion. In addition, if Merchant is unwilling to, or in AD’s reasonable discretion appears unable to, perform its obligations under this Agreement, AD is authorized to offset, delay, withhold, or suspend future payments to Merchant in addition to such other remedies as may be available under this Agreement or at law, to secure payment from Merchant for any refunds and/or other amounts payable by Merchant under this Agreement.
C. Customer Data Restrictions
1. “Customer Data” means all identifiable information about purchasers generated or collected by AD or Merchant, including, but not limited to, purchasers’ name, shipping addresses, email addresses, phone numbers, purchaser preferences and tendencies, and financial transaction data.
4. Merchant shall immediately notify AD if Merchant becomes aware of or suspects any unauthorized access to or use of Customer Data or any confidential information of AD, and shall cooperate with AD in the investigation of such breach and the mitigation of any damages. Merchant will bear all associated expenses incurred by AD to comply with applicable laws (including, but not limited to, any data breach laws) or arising from any unauthorized access or acquisition of Customer Data while such data is in Merchant’s reasonable possession or control. Upon termination or expiration of this Agreement, Merchant shall, as directed by AD, destroy or return to AD all the Customer Data in Merchant’s or any agent of Merchant’s possession.
D. Term and Termination
This Agreement will continue in effect until terminated by either party in accordance with this Section (“Term”). AD is authorized to terminate this Agreement, at any time for any reason, upon written notice to Merchant. Merchant is authorized to terminate this Agreement upon seven (7) business days prior written notice to AD. Termination of this Agreement will not in any way affect Merchant’s obligation to redeem any Merchant Offers according to the terms of this Agreement, including the obligation to honor any merchant Offers for the Amount Paid after the Promotional Value Expiration Date. Provisions in this Agreement that are intended to survive termination will continue in full force and effect after the Term.
E. Compliance with Gift Card, Gift Certificate and Abandoned Property Laws
AD and its business partners may communicate with Merchant with regard to products, promotions, and other services that may be of interest to Merchant. This may include email or other communications. AD may also solicit Merchant’s opinion for market research purposes.
G. Intellectual Property Rights
1. Merchant grants to AD a non-exclusive, worldwide, royalty free, paid-up, perpetual, irrevocable, transferable and sub-licensable license and right to use, modify, reproduce, sublicense, publicly display, distribute, broadcast, transmit, stream, publish and publicly perform: (a) Merchant’s name, logos, trademarks, service marks, domain names, and any audiovisual content, video recordings, audio recordings, photographs, graphics, artwork, text and any other content provided, specified, recommended, directed, authorized or approved to use by Merchant (collectively, “Merchant IP”); and (b) any third party’s name, logos, trademarks, service marks, domain names, audiovisual recordings, video recordings, audio recordings, photographs, graphics, artwork, text and any other content provided, specified, recommended, directed, authorized or approved for use by Merchant (collectively, “Third Party IP”), in each case in connection with the promotion and resale of the goods and services in all media or formats now known or hereinafter developed (“License”). Any use of the Merchant IP or Third Party IP as contemplated in this Agreement is within AD’s sole discretion.
2. Merchant acknowledges and agrees that, as between the parties, AD owns all interest in and to the Website, Customer Data, AD trade names, logos, trademarks, service marks, domain names, social media identifiers, all data collected through or from the Website, all audiovisual content, video recordings, audio recordings, photographs, graphics, artwork, text or any other content created by AD or at AD’s direction, or assigned to AD, and any materials, software, technology or tools used or provided by AD to promote, resell or distribute the goods and services and conduct its business in connection therewith (collectively “AD IP”). Merchant shall not use, sell, rent, lease, sublicense, distribute, broadcast, transmit, stream, place shift, transfer, copy, reproduce, download, time shift, display, perform, modify or timeshare the AD IP or any portion thereof, or use such AD IP as a component of or a base for products or services prepared for commercial use, sale, sublicense, lease, access or distribution, except that AD grants Merchant a limited, non-exclusive, revocable, non-transferable, non-sub licensable license during the Term to use one copy of AD’s mobile merchant software application on a single mobile computer, tablet computer, or other device, solely for the purposes permitted by that software, and to make one copy of the software for back-up purposes. Merchant shall keep the AD IP confidential, and shall not prepare any derivative work based on the AD IP or translate, reverse engineer, decompile or disassemble the AD IP. Merchant shall not take any action to challenge or object to the validity of AD’s rights in the AD IP or AD’s ownership or registration thereof. Except as specifically provided in this Agreement, Merchant and any third party assisting Merchant with its obligations in this Agreement, are not authorized to use AD IP in any medium without prior written approval from an authorized representative of AD. Merchant shall not include any trade name, trademark, service mark, domain name, social media identifier, of AD or its affiliates, or any variant or misspelling thereof, in any trademark, domain name, email address, social network identifier, metadata or search engine keyword. Merchant shall not use or display any AD IP in a manner that could reasonably imply an endorsement, relationship, affiliation with, or sponsorship between Merchant or a third party and AD. All rights to the AD IP not expressly granted in this Agreement are reserved by AD.
3. If Merchant provides AD or any of its affiliates with feedback, suggestions, reviews, modifications, data, images, text, or other information or content about an AD product or service or otherwise in connection with this Agreement, any AD IP, or Merchant’s participation in the Merchant Offering or Voucher, (collectively, “Feedback”), Merchant irrevocably assigns to AD all right, title, and interest in and to Feedback. In the event your assignment to AD is invalid for any reason, you hereby irrevocably grant AD and its affiliates a perpetual, paid-up, royalty-free, nonexclusive, worldwide, irrevocable, freely transferable right and license to (i) use, reproduce, perform, display, and distribute Feedback; (ii) adapt, modify, re-format, and create derivative works of Feedback for any purpose and sublicense the foregoing rights to any other person or entity. Merchant warrants that: (A) Feedback is Merchant’s original work, or Merchant obtained Feedback in a lawful manner; and (B) AD and its sublicensees’ exercise of rights under the license above will not violate any person’s or entity’s rights, including any copyright rights. Merchant agrees to provide AD such assistance as AD might require to document, perfect, or maintain AD’s rights in and to Feedback.
H. Representations and Warranties
Merchant represents and warrants that: (a) Merchant has the right, power and authority to enter into this Agreement; (b) Merchant, if required by applicable law, is registered for sales and use tax collection purposes in all jurisdictions where Merchant’s goods and services will be provided; (c) the Merchant Offer, upon being delivered by AD, will be available immediately for redemption and Merchant will have sufficient goods and/or services available for redemption through the Promotional Value Expiration Date (i.e., a number of goods and/or services sufficient to fulfill its redemption obligations in connection with the applicable Maximum Number of Merchant Offers); (d) the terms and conditions of the Merchant Offer, including any discounts or goods and services offered thereunder do not and will not violate any, local, state, provincial, territorial or federal law, statute, rule, regulation, or order, including but not limited to, any law or regulation governing the use, sale, and distribution of alcohol and any laws governing vouchers, gift cards, coupons, and gift certificates; (e) the Merchant’s redemption of the Merchant Offer will result in the bona fide provision of goods and/or services by Merchant to the purchaser; (f) Merchant owns all interest in and to the Merchant IP and has licensing rights in (with the right to sublicense to AD) the Third Party IP, and has the right to grant the License stated in this Agreement; (g) the Merchant IP and the Third Party IP, the Merchant Offering, AD’s use and promotion thereof, and the results of such Merchant Offer, will not infringe, dilute, misappropriate, or otherwise violate, anywhere in the world, any patent, copyright, logo, trademark, service mark, trade name, rights in designs, or other intellectual property right or right of privacy or publicity of any third party or any applicable law, and does not and will not result from the misappropriation of any trade secret or the breach of any confidentiality obligations to any person or entity; (h) the Merchant IP and Third Party IP does not include any material that is unlawful, threatening, abusive, defamatory, vulgar, obscene, profane or otherwise objectionable, or that encourages conduct that constitutes a criminal offense, gives rise to civil liability or otherwise violates any law; (i) the Vouchers and any advertising or promotion of Merchant’s goods and services relating thereto will not constitute false, deceptive or unfair advertising or disparagement under any applicable law; (j) Merchant and its employees, contractors and agents have had the proper education and training and hold all required and up-to-date regulatory authorization, licenses and certifications relating to any Merchant Offer to provide the goods or services described in this Agreement; (k) Merchant’s business information and direct deposit details as provided in this Agreement, indicating where payments should be forwarded are accurate and Merchant is the authorized entity to receive the funds forwarded by AD; (l) Merchant is not authorized to resell, broker or otherwise disclose any Customer Data (as defined in this Agreement) to any third party, in whole or in part, for any purpose, and Merchant is not authorized to copy or otherwise reproduce any Customer Data other than for the purpose of redeeming or verifying the validity of Merchant Offers in connection with this Agreement and (m) the Merchant Offer is: (i) free from defects in workmanship, materials and design, (ii) merchantable and suitable for the purposes, if any, stated in the Agreement, and (iii) genuine, bona fide products, as described herein and does not violate the rights of any third party.
To the extent allowed under applicable law, Merchant agrees to defend, indemnify and hold AD, its affiliated and related entities, and any of its respective officers, directors, agents and employees, harmless from and against any claims, lawsuits, investigations, penalties, damages, losses or expenses (including but not limited to reasonable attorneys’ fees and costs) arising out of or relating to any of the following: (a) any breach or alleged breach by Merchant of this Agreement, or the representations and warranties made in this Agreement; (b) any claim for state sales, use, or similar tax obligations of Merchant arising from the sale and redemption of a Merchant Offer; (c) any claim by any local, state, provincial, territorial or federal governmental entity for unredeemed Merchant Offers or unredeemed cash values of Merchant Offers or any other amounts under any applicable abandoned or unclaimed property or escheat law, including but not limited to any claims for penalties and interest; (d) any claim arising out of a violation of any law or regulation by Merchant or governing Merchant’s goods and/or services;
(e) any claim arising out of Merchant’s violation of law or regulation governing the use, sale, and distribution of alcohol; (f) any claim by a purchaser or anyone else arising out of or relating to the goods and services provided by Merchant and/or pick up of the goods and services at the Redemption Site, including but not limited to, any claims for false advertising, product defects, personal injury, death, or property damages; (g) any claim by a purchaser for the Amount Paid; (h) any claim arising out of Merchant’s misuse of Customer Data, or any violation of an applicable data privacy or security law; and (i) any claim arising out of Merchant’s negligence, fraud or willful misconduct. AD maintains the right to control its own defense and to choose and appoint its own defense counsel, regardless of the presence or absence of a conflict of interest between AD and Merchant. Merchant’s duty to defend and indemnify AD includes the duty to pay AD’s reasonable attorneys’ fees and costs, including any expert fees.
J. Dispute Resolution
All disputes arising out of, or relating in any way to this Agreement, shall be resolved pursuant to this Section.
1. Binding Arbitration
EXCEPT AS SPECIFICALLY STATED HEREIN, ANY DISPUTE OR CLAIM BETWEEN MERCHANT AND AD ARISING OUT OF, OR RELATING IN ANY WAY TO, THIS AGREEMENT (“DISPUTES”) SHALL BE RESOLVED EXCLUSIVELY BY FINAL, BINDING ARBITRATION. BY VIRTUE OF THE AGREEMENT IN THIS SECTION TO ARBITRATE, MERCHANT AND AD ARE EACH GIVING UP THE RIGHT TO GO TO COURT AND HAVE A DISPUTE HEARD BY A JUDGE OR JURY (EXCEPT AS OTHERWISE SET FORTH IN THIS SECTION J). The provisions of this Section shall constitute Merchant’s and AD’s written agreement to arbitrate Disputes under the Federal Arbitration Act. The arbitration will be administered by the American Arbitration Association (“AAA”) and conducted before a single arbitrator pursuant to its applicable rules, including those applicable to Commercial Disputes, available at http://www.adr.org or by calling 800-778-7879. The arbitrator will apply and be bound by this Agreement, apply applicable law and the facts, and issue a reasoned award.
2. To begin an arbitration proceeding, Merchant or AD must submit the Dispute by making a demand for arbitration as detailed at http://www.adr.org. If Merchant demands arbitration, it shall simultaneously send a copy of the completed demand to AD’s address of record. If AD demands arbitration, it shall simultaneously send a copy of the completed demand to the Merchant’s address of record. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. AD will reimburse those fees for Disputes totaling less than $10,000 if Merchant is the prevailing party in such arbitration. AD will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines that a Merchant Dispute is frivolous. The arbitration will be conducted based upon written submissions unless Merchant requests and/or the arbitrator determines that a telephone or in-person hearing is necessary. If the arbitrator grants the request or determines an in-person hearing is necessary, the hearing will proceed in Chicago, Illinois, unless the arbitrator determines or we agree that the matter should proceed in the county of Merchant’s principal place of business.
3. Class Action Waiver
WE EACH AGREE THAT WE SHALL BRING ANY DISPUTE AGAINST THE OTHER IN OUR RESPECTIVE INDIVIDUAL CAPACITIES AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE PROCEEDING OR AS AN ASSOCIATION. IN ADDITION, WE EACH AGREE THAT DISPUTES SHALL BE ARBITRATED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. THE ARBITRATOR DOES NOT HAVE THE POWER TO VARY THESE PROVISIONS.
4. Choice of Law/No Jury Trial
If for any reason a Dispute proceeds in court: (i) Merchant and AD agree that any such Dispute may only be instituted in a state or federal court in Montgomery County, Pennsylvania; (ii) Merchant and AD irrevocably consent and submit to the exclusive personal jurisdiction and venue of such courts for resolution of such Disputes; (iii) Merchant and AD agree that the Federal Arbitration Act, the AAA rules, applicable federal law and the laws of the Commonwealth of Pennsylvania, without regard to principles of conflicts of law, will govern this Agreement and any Disputes; and (iv) MERCHANT AND AD AGREE TO WAIVE ANY RIGHT TO A TRIAL BY JURY.
5. Injunctive Relief/Attorneys’ Fees
Notwithstanding anything to the contrary in this Agreement, either party may bring suit in court seeking an injunction or other equitable relief arising out of or relating to claims that the other party’s conduct may cause the other irreparable injury.
In the event AD is the prevailing party in any Dispute, subject to any exceptions in this Section 14, Merchant shall pay to AD all reasonable attorneys’ fees and costs incurred by AD in connection with any Dispute.
1. The parties are independent contractors. Nothing in this Agreement is to be construed to create a joint venture, partnership, franchise, or an agency relationship between the parties. Neither party has the authority, without the other party’s prior written approval, to bind or commit the other in any way.
2. This Agreement constitutes the entire agreement between the parties relating to its subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter.
3. Merchant is not authorized to transfer or assign its rights or obligations under this Agreement, whether by operation of law or otherwise, without AD’s prior written consent. Any waiver must be in writing and signed by an authorized signatory of AD. AD is authorized to transfer or assign this Agreement to a present or future affiliate or pursuant to a merger, consolidation, reorganization or sale of all or substantially all of the assets or business, or by operation of law, without notice to Merchant.
4. If any provision of this Agreement should be held to be invalid or unenforceable, the validity and enforceability of the remaining provisions of this Agreement are not affected.
5. AD MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTIES AS TO THE FUNCTIONALITY, PERFORMANCE OR RESPONSE TIMES OF THE SITE. MERCHANT EXPRESSLY UNDERSTANDS AND AGREES THAT AD WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COMPENSATORY, CONSEQUENTIAL OR EXEMPLARY DAMAGES (EVEN IF AD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) (COLLECTIVELY, “DAMAGES”), RESULTING FROM: (A) THE USE OR INABILITY TO USE THE SITE; (B) THE COST OF ANY GOODS AND/OR SERVICES PURCHASED OR OBTAINED AS A RESULT OF THE USE OF THE SITE; (C) DISCLOSURE OF, UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR INFORMATION OR SERVICE PROVIDER CONTENT; (D) SERVICE PROVIDER CONTENT THE COMPANY MAY SUBMIT, RECEIVE, ACCESS, TRANSMIT OR OTHERWISE CONVEY THROUGH THE SERVICES OR THIS AGREEMENT; (E) STATEMENTS OR CONDUCT OF ANY CONSUMER OR OTHER THIRD PARTY THROUGH THE SITE; (F) ANY OTHER MATTER RELATING TO THE SITES; (G) ANY BREACH OF THE PARTIES MERCHANT SERVICES AGREEMENT OR THESE TERMS AND CONDITIONS; (H) ANY CONSUMER CONTENT POSTED ON THE SITE. THESE LIMITATIONS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. In some jurisdictions, limitations of liability are not permitted. In such jurisdictions, some of the foregoing limitations may not apply to Merchant.
7. Merchant grants AD permission to advertise the fact that it is a Merchant on AD’s Site in any press release or other AD publicity materials.