1. Introduction. Capitalized terms not defined in these Terms of Service shall have the meanings ascribed to them in the Merchant Agreement. These Terms of Service, together with the Merchant Agreement, constitutes the entire agreement between Street Savings and Merchant pertaining to the Services (collectively, this "Agreement"). The Merchant Agreement will govern in the event of a conflict with any of the provisions of these Terms of Service.
2. Services.
2.1. Merchant Account; Password. Street Savings will provide Merchant with a password (the "Merchant Password") and an account (the "Merchant Account") to access the "Merchants" area of the Street Savings website located at www.streetsavings.com (the "Site"). Merchant is solely responsible for maintaining the confidentiality of the Merchant Password and Merchant Account, and for all activities that occur through the use of the Merchant Account. Merchant shall immediately notify Street Savings of any unauthorized use of the Merchant Password or Merchant Account. During the Term, Merchant will have access to the Site to create Programs offers that will be displayed on the Landing Page with the Merchant Brand Features. Merchant may select a variety of Programs to provide to Customers or may develop its own Programs.
2.2. Submission of Customer Information. Merchant will submit all Customer Information to Street Savings. Street Savings will only provide the Services to Customers for whom Street Savings has received accurate and complete Customer Information. Merchant must train its employees and contractors to properly submit Customer Information to Street Savings.
2.3. Program Fulfillment. During the Term, Merchant shall honor all discounts, incentives, coupons and other offers that it provides to Customers through the Services.
3. Payments and Statements.
3.1. Fees. Merchant shall pay Street Savings the full amount of monthly Fees regardless of the number of days remaining in the calendar month at the beginning or the end of the Term. Fees are non-refundable and shall not be pro-rated for partial months.
3.2. Statements. For each payment period following the Effective Date, Street Savings shall send Merchant a statement of the Fees for informational purposes only. Street Savings may withdraw from the Merchant Billing Account the applicable amount of Fees whether or not an invoice for such Fees has been delivered to Merchant.
4. Confidentiality. Merchant may obtain information relating to Street Savings' business, products and/or services which is confidential including, without limitation, the Merchant Account, Merchant Password and the Site ("Proprietary Information"). Merchant shall, at all times, keep in confidence all Proprietary Information and Merchant shall not use any Proprietary Information outside of this Agreement, nor shall Merchant disclose any Proprietary Information to any third party without Street Savings' prior written consent. The obligations in this Section 4 shall apply to Merchant's employees, contractors and agents. The foregoing obligations shall not apply with respect to information that (a) has entered or enters the public domain other than due to a breach by Merchant of this Section 4, or (b) is lawfully received by Merchant without restriction from a third party with the right to disclose it.
5. License; Ownership.
5.1. Merchant Brand Features License. Merchant grants to Street Savings a worldwide, non-exclusive, sublicensable right and license during the Term to use, reproduce and display the Merchant Brand Features (a) on or in connection with the Landing Page and Street Savings' performance of the Services; and (b) in connection with Street Savings' marketing and promotional activities and materials of Street Savings' business including, without limitation, displaying the Merchant Brand Features on a "partners" page of the Site.
5.2. Ownership. As between the parties: (a) Street Savings is the owner of the Proprietary Information and any and all modifications, derivative works and improvements to the Proprietary Information, and (b) Merchant is the owner of the Merchant Brand Features. Street Savings does not grant any licenses of any kind to the Proprietary Information to Merchant. Except as set forth in Section 5.1 above, Merchant does not grant any other licenses of any kind to the Merchant Brand Features.
5.3. Customer Information. At no time shall Merchant take any action or induce or encourage others to take any action to limit, interfere with, restrict or hinder Street Savings' use and exploitation of any Customer Information obtained by Street Savings.
6. Representations and Warranties.
6.1. Mutual Representations and Warranties. Each Party represents and warrants that: (a) it has the full right and authority to enter into this Agreement and to perform all of its obligations set forth herein; (b) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization; and (c) the execution, delivery and performance of this Agreement does not and will not conflict with or violate its organizational documents or the terms of any agreement with another party.
6.2. Merchant Representations and Warranties. Without limiting the generality of Section 6.1 above, Merchant represents and warrants to Street Savings that: (a) Merchant will provide the Programs to Customers in an ethical manner, in accordance with the terms of this Agreement, and in strict compliance with all applicable laws, rules and regulations; (b) the Merchant Brand Features do not infringe any copyright, trademark, trade dress, trade secret or other intellectual property rights of any third party; and (c) Merchant will not engage or participate in any unlawful, misleading, deceptive or fraudulent practices in connection with the Programs.
6.3. Warranty Disclaimer. STREET SAVINGS DOES NOT MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROPRIETARY INFORMATION OR THE SERVICES, AND DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, STREET SAVINGS MAKES NO REPRESENTATION THAT THE SERVICES WILL MEET MERCHANT'S REQUIREMENTS, THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, AND THAT THE SERVICES WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
7. Indemnification.
7.1. Merchant Indemnification. Merchant shall indemnify, defend, and hold Street Savings, and its subsidiaries and their respective officers, directors, agents and employees, harmless from any and all claims, damages, judgments, losses, liabilities, causes of action, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) arising out of: (a) any act, error or omission by Merchant, its employees, agents or contractors; (b) any of Merchant's products or services; or (c) the Merchant Brand Features and/or Programs.
7.2. Street Savings Indemnification. Street Savings shall indemnify, defend, and hold Merchant, and its subsidiaries and their respective officers, directors, agents and employees, harmless from any and all claims, damages, judgments, losses, liabilities, causes of action, costs and expenses (including, without limitation, reasonable attorneys' fees and court costs) arising out of the performance by Street Savings of the Services.
8. Limitation of Liability. TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, EXCEPT FOR THE OBLIGATIONS IN SECTION 7, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY SHALL STREET SAVINGS BE LIABLE FOR (I) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF STREET SAVINGS WAS AWARE OF THE POSSIBILITY OF SUCH DAMAGES; (II) FOR ANY AMOUNT IN EXCESS OF THE TOTAL AMOUNT PAID BY MERCHANT TO STREET SAVINGS UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD PRIOR TO THE DATE ON WHICH THE CLAIM GIVING RISE TO LIABILITY AROSE; OR (III) THE COST OR PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES.
9. Term and Termination.
9.1. Term. The term of this Agreement shall commence on the Effective Date and continue in effect for the duration of the Term, unless terminated earlier in accordance with Section 9.2.
9.2. Termination. Either Party may terminate this Agreement: (a) immediately in the event the other Party (i) commits a material breach of this Agreement which is not cured within fifteen (15) days following notice by the non-breaching Party, (ii) becomes insolvent, makes an assignment for the benefit of creditors, or files, or has filed against it, a petition in bankruptcy; or (iii) ceases to do business; or (b) upon forty-five (45) days written notice to the other Party.
9.3. Effect of Termination. Upon the termination or expiration of this Agreement: (a) Street Savings shall (i) have no further obligation to provide the Services, and (ii) cease charging the Fees to the Merchant Billing Account; (b) the Merchant Password and Merchant Account shall terminate; and (c) Merchant shall cease all use of the Landing Page, including without limitation, providing a link to the Landing Page from Merchant's website. Sections 1, 4, 5.2, 5.3, 6, 7, 8, 9.3, 10 and 11 shall survive expiration or any termination of this Agreement.
10. General. This Agreement shall be governed by and interpreted under California law, without regard to conflicts of laws principles. All disputes arising under this Agreement or relating to a Party's performance will be brought exclusively in the state or federal courts located in Orange County, California and the Parties hereby consent to the personal jurisdiction and venue of such courts. Merchant shall not assign this Agreement without the prior written approval of Street Savings and any attempted assignment without such approval shall be null and void. All legal notices shall be given in writing addressed to the respective Parties and shall either be (a) personally delivered, (b) transmitted by certified mail, return receipt requested, or (c) transmitted by nationally recognized private express courier, and shall be deemed to have been given on the date of receipt if delivered personally, or three (3) days after deposit in mail or one (1) day after deposit with express courier. Either Party may change its address for receipt of notices by providing written notice to the other Party in accordance with the foregoing. A waiver by either Party of any breach of this Agreement by the other Party will not waive any subsequent breach. The Parties are independent contractors and not agents, partners or joint venturers. If any provision of this Agreement is held to be unenforceable, such provision shall be revised only to the extent necessary to make it enforceable, and the other provisions of this Agreement will remain in full force and effect.
11. Definitions.
"Agreement" means, collectively, these Terms of Service and the Merchant Agreement.
"Customer" means a customer that registers for the Services.
"Customer Information" means the cell phone number and other information relating to a Customer or to Customer Purchases collected by Merchant in connection with the Customer's participation in a Program.
"Customer Purchases" means purchases made by a Customer of goods or services from Merchant in which that Customer receives a benefit from Merchant.
"Landing Page" means a Web page hosted by Street Savings where a Customer may input Customer Information for the purpose of registering for a Program.
"Merchant Agreement" means the Street Savings Merchant Marketing and Services Agreement executed by Merchant.
"Merchant Brand Features" means Merchant's trademarks, trade names, service marks, service names and logos.
"Party(ies)" means either Street Savings or Merchant or, collectively, Street Savings and Merchant.
"Program(s)" means mobile-based rewards and loyalty programs that Merchant makes available to its customers.
"Services" means the mobile-based advertising and incentive program services provided by Street Savings.
"Term" means the time period specified on the first page of the Merchant Agreement.