Connexity, Inc. Merchant Program Agreement

(Effective January 20, 2017)

Connexity, Inc. is pleased to provide you the opportunity to participate as a "Merchant" in our Merchant Listings service (the "Marketplace") and any other Merchant products or services we may provide you (collectively, the "Merchant Program"). Participation in the Merchant Program is subject to this Connexity Merchant Program Participation Agreement (the "Agreement").

This Agreement explains our respective obligations under the Merchant Program. By completing and submitting your Merchant Registration or otherwise participating in our Merchant Program, you agree to the terms of this Agreement.

  1. Marketplace Specific Terms.

    1. Search Listing Advertisements. We provide an online shopping search engine that assists consumers in shopping for products and services offered by Merchants. Consumer searches generally return relevant listings, advertising or other content containing links to locations for Merchant’s products – e.g., links to your Website (defined below), coupon or deal content, etc. (collectively, "Listings"). The Marketplace permits you to advertise on the Connexity Network (defined below) and bid for click-throughs to such links and/or click-throughs to your Website (defined below) generated from the Connexity Network ("Clicks"). Listings may include text and graphics, as well as information about product characteristics, availability and price, and other content in accordance with our policies, which we may update from time-to-time. We make no representations regarding the rank, location and prominence of any Listing and have the sole right to determine whether and where a Listing will be displayed in response to a given search and within the Connexity Network. We may refuse, edit or remove any Listing for violation of the letter or spirit of these terms, or for any other lawful reason. However, we have no obligations to monitor, refuse, edit or remove any Listing for violation of these terms or other reasons.

    2. License to Your Content. You grant Connexity a royalty-free, transferrable, irrevocable, sublicensable, worldwide right and license to use, display, reproduce, compile, edit, and distribute any of your Listings (or any part of a Listing), any other related data and information you provide Connexity or that is generated from your Listing, and any data or information you allow us to directly obtain from a website owned or controlled by you (your "Website"), throughout or in connection with the Connexity Network. The “Connexity Network” includes www.shopzilla.com, www.become.com, www.pricegrabber.com, www.bizrate.com, www.tada.com, www.beso.com and equivalent domains in the United Kingdom, Germany and France, all other websites we operate or control, websites we provide comparison-shopping content to, email newsletters or other email, or other media or services we offer to consumers from time-to-time.

    3. Advertising Charges and Payment. You will be charged, and agree to pay, for all Clicks. You agree that charges will be based on the total number of Clicks multiplied by the amount you have bid for each Click. We may adjust our minimum bids or other bidding requirements from time-to-time on reasonable prior notice to you. You agree to pay all applicable charges for your participation in the Marketplace in U.S. dollars (or local currency, as applicable to the country primarily served by the relevant Connexity website) in accordance with your agreed to payment plan and billing terms, including any applicable sales, use VAT or other similar taxes which are billed and/or owed in addition to the payment plan charges (together "Plan") — click here to access Plan information. You hereby authorize Connexity to charge/withdraw from your credit card or bank account amounts consistent with the terms of your Plan. Any disputes regarding any charge or invoice must be raised with us in writing within sixty (60) days after the date of such charge or invoice. Charges or invoices not disputed within this time period will be considered final and accepted by you, and will not be eligible for any refund, credit or other billing adjustment.

    4. Your Obligations. You agree to follow all rules and guidelines for our Marketplace, as may be updated from time-to-time. You represent and warrant that:

      1. Neither the content on your Website(s), in any Listings you provide us nor other materials you provide us will: (i) violate any federal, state or local law or regulation; (ii) infringe in any manner any copyright, patent, trademark, trade secret or other intellectual property right of any third party; (iii) breach any duty toward or violate the rights of any person or entity including, without limitation, rights of publicity or privacy, and or will result in any consumer fraud, product liability, tort, breach of contract, injury, damage or harm of any kind to any person or entity; and (iv) is false, misleading, defamatory, libelous, slanderous or threatening.

      2. Each of the Listings you provide us reflect products and services that you are able and willing to offer customers, and that you will make any necessary changes if any information is not current or accurate; and

      3. Notwithstanding anything in this Agreement to the contrary, unless Connexity expressly agrees in writing to take on additional responsibilities, you shall at all times be responsible for offering and selling products featured on your Website(s) or in your Listings including, without limitation, taking orders, fulfillment of orders, shipping, invoicing, product returns, replacement of products, customer service and payment of any and all taxes and other government charges.

  2. General Merchant Program Terms and Conditions. The following terms apply to our Merchant Program and any other Merchant products or services we may provide you.

    1. Accurate Information. You represent that all information you provide or direct us to about your business, products, services or otherwise, including without limitation, via our Merchant Program registration process, order forms and your Listings, is accurate, complete and current.

    2. Merchant Account. To participate in our Merchant Program you will be required to set up and maintain a Merchant Account (your "Account").

      1. Setup. We may impose any lawful restrictions on your ability to establish an account. YOU ARE RESPONSIBLE FOR KEEPING ANY ID AND PASSWORD, AND OTHER ACCOUNT INFORMATION, CONFIDENTIAL AND ARE FULLY RESPONSIBLE FOR ALL ACTIVITIES THAT OCCUR UNDER YOUR ACCOUNT (INCLUDING THE ACTIONS OF YOUR AGENTS, EMPLOYEES, REPRESENTATIVES), WHETHER OR NOT YOU AUTHORIZED SUCH ACTIVITIES. You agree to notify us immediately of any breach of security or unauthorized use of your account or ID and/or password by email to support@connexity.com.

      2. Balances/Inactive Accounts. You may be required to fund your Account to pay for Clicks and other charges associated with our Merchant Program. It is your responsibility to keep your Account active and to terminate your account in the event you no longer wish to participate in the Merchant Program. If you have not had a Click and have not made any payment to your Account for a period of at least twelve (12) months, Connexity reserves the right to assess a monthly $25 account administrative fee (“Administrative Fee”) against the balance of your Account.

      3. Refunds. If we terminate your Account, we will refund you what is left in your account as of the effective date of the termination. If you terminate your Account, termination is effective one (1) business day after we receive such notice (consistent with the terms below) and we will refund you what is left in your account as of that date.

    3. Intellectual Property Rights.

      1. Our Merchant Program, the Connexity Network, and our products, services and content (and any derivative works or enhancements of the same) including, but not limited to, all text, illustrations, files, images, computer programs, software, scripts, graphics, photos, sounds, music, videos, information, content, materials, products, services, URLs, technology, documentation and interactive features (collectively, “Connexity Content”) and all intellectual property rights to the same are owned by us, our licensors, or both. Additionally, all trademarks, service marks, trade names and trade dress that may appear in connection with the Merchant Program or Connexity Network (including the service marks "Connexity", “Shopzilla” and “BizRate.com”) are owned by us, our licensors, or both (“Company Marks”). You do not acquire any right, title or interest in any Connexity Content or Company Marks and shall not use any of the same except as expressly permitted under this Agreement. We reserve any rights in and to the Connexity Content or Company Marks not expressly granted in this Agreement.

      2. We acknowledge your right, title, and interest in and to your trademarks, service marks, trade names and content on your Website(s) (“Merchant Marks”). You reserve any rights in and to Merchant Marks not expressly granted in this Agreement.

      3. Subject to the terms and conditions herein and for the term of this Agreement: (i) you grant Connexity a nonexclusive, nontransferable, revocable and royalty-free right and license to use the Merchant Marks in connection with the Merchant Program, the content license in Section A(2) above, and for associated publicity and related purposes; and (ii) we grant you a nonexclusive, nontransferable, revocable and royalty-free right and license to use the Company Marks solely in connection with the Merchant Program and subject to guidelines Connexity may offer from time-to-time. Each party acknowledges and agrees that its use of the other's marks will not create in such party any right, title or interest in such marks and that all such use of the marks of the other party and the goodwill generated thereby will inure to the benefit of the other party.

    4. Data. Connexity may, in connection with Connexity Network, any Listings and/or Connexity Content you place on your Website (e.g., medals, icons, etc.), collect certain non-personally identifiable information from you and/or users (“Analytics Data”). We may use, display, reproduce, compile, edit, sell and/or distribute Analytics Data in connection with our business. For avoidance of doubt and notwithstanding anything in this or other agreements between the parties, Analytics Data is not considered your confidential or proprietary information.

    5. Indemnification. You hereby agree to defend, indemnify and hold harmless Connexity and its affiliates, licensees, vendors, contractors, agents, and employees (collectively, “Agents”), from any and all liabilities, costs and expenses, including, without limitation, reasonable attorney's fees and costs, that may arise from your participation in the Merchant Program or any other Connexity services, your breach of the terms of this Agreement, any content or materials that you provide us, any consumer's use of your Website(s), or purchase or attempted purchase and/or use of any of your products or services.

    6. Warranty Disclaimers. YOU EXPRESSLY AGREE THAT YOUR PARTICIPATION IN THE MERCHANT PROGRAM IS AT YOUR OWN RISK. THE SERVICES OFFERED IN THE MERCHANT PROGRAM ARE AVAILABLE ON AN “AS IS” BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. NEITHER CONNEXITY NOR ANY OF ITS AGENTS MAKES ANY WARRANTY OR REPRESENTATION WHATSOEVER REGARDING THE MERCHANT PROGRAM, ANY INFORMATION, PRODUCTS OR SERVICES AVAILABLE THROUGH OR IN CONNECTION WITH THE MERCHANT PROGRAM OR ANY OTHER CONNEXITY PRODUCT OR SERVICE, OR ANY RESULTS OBTAINED THROUGH THE USE THEREOF. CONNEXITY HEREBY DISCLAIMS ON BEHALF OF ITSELF AND ITS AGENTS ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION: (I) ANY WARRANTIES AS TO THE AVAILABILITY, ACCURACY OR CONTENT OF THE MERCHANT PROGRAM, OR ANY INFORMATION, PRODUCTS OR SERVICES AVAILABLE THROUGH OR IN CONNECTION WITH THE MERCHANT PROGRAM OR ANY OTHER CONNEXITY SERVICE, OR AS TO THE CUSTOMERS, CLICKS, TRAFFIC OR OTHER BENEFITS TO BE GENERATED BY THE MERCHANT PROGRAM, OR THAT THE SAME WILL BE UNINTERRUPTED OR ERROR-FREE; AND (II) ANY WARRANTIES OF TITLE OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

    7. LIABILITY LIMITATIONS. ANY LIABILITY OF CONNEXITY OR ANY OF ITS AGENTS, INCLUDING, WITHOUT LIMITATION, ANY LIABILITY FOR DAMAGES CAUSED OR ALLEGEDLY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION OR DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR UNLAWFUL USE OF RECORDS, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION, SHALL BE STRICTLY LIMITED TO AN AGGREGATE AMOUNT EQUAL TO THE AMOUNT YOU HAVE PAID TO CONNEXITY FOR YOUR PARTICIPATION IN THE MERCHANT PROGRAM IN THE PRIOR SIX (6) MONTH PERIOD. IN NO EVENT SHALL CONNEXITY OR ANY OF ITS AGENTS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR REVENUES, LOSS OF GOODWILL, DEFAMATION OR LOSS OR DAMAGE TO DATA THAT ARISE FROM ANY ASPECT OF YOUR PARTICIPATION IN THE MERCHANT PROGRAM OR ANY BREACH OR ERROR BY CONNEXITY, WHETHER OR NOT CONNEXITY HAS BEEN APPRISED OF THE POSSIBILITY OF SUCH DAMAGES. This limitation on such damages shall apply whether or not Connexity is able to correct any problem or error, and whether or not Connexity has breached any warranty or obligation, or failure of the essential purpose of any other remedy, it being the intention of the parties to allocate the risk of such damages as provided herein in all circumstances, and you acknowledge that Connexity would not have entered into this Agreement but for this limitation on such damages.

    8. Termination. This Agreement will remain in effect until terminated by either party. If you are dissatisfied with the Merchant Program or with any of the terms and conditions contained herein, your sole and exclusive remedy is to terminate your participation in the Merchant Program by giving us written notice as provided below. Notwithstanding anything contained in this Agreement to the contrary, we may, in our sole discretion, suspend or terminate your account and/or discontinue your participation in the Merchant Program or any other Connexity service or product at any time. All decisions made by us in this matter will be final and you agree that we shall have no liability to you or anyone else with respect to such decisions. No Merchant shall have any vested right or enforceable interest to participate in the Merchant Program.

    9. Notices. We may give general notices to participating Merchants by postings on the Business Services portion of www.connexity.com and/or www.BizRate.com (using commercially reasonable efforts to notify you via email of any such postings), and you agree to be bound thereby. Notices specific to you will be sent, if possible, by electronic mail to your email address, or otherwise by U.S. mail, overnight delivery service or in person. You may give notice to us by email to support@connexity.com, or otherwise by U.S. mail, overnight delivery service or in person.

    10. MANDATORY ARBITRATION and Dispute Resolution.

      1. In the event of any dispute between the parties arising from or in any way related to this Agreement, appropriate representatives of each party shall meet, within thirty (30) days after the written request of either party, and attempt to negotiate or mediate a mutually-agreeable resolution before either party shall commence any arbitration proceeding or other legal action (as may be permitted by this Agreement). If such negotiation or mediation does not resolve the issue to the mutual satisfaction of the parties within sixty (60) days after such written request, then all disputes arising out of, relating to or connected with this Agreement will be exclusively resolved under confidential binding arbitration by the American Arbitration Association (AAA) held in Los Angeles County, California pursuant to the applicable AAA commercial rules for arbitration.

      2. Any arbitrator's award may be enforced by a federal or state court located in Los Angeles, California. No arbitration proceeding or other legal action may be commenced regarding any disputes arising out of, relating to or connected with this Agreement more than one (1) year after the date that the alleged breach or other grounds for dispute originally occurred.

    11. Amendment; Additional Terms.

      1. In certain instances it may be necessary to update or modify this Agreement to reflect updates to our business practices and policies, and for other reasons. We also may, in some instances, need to provide you with operating rules, guidelines, policies or additional terms that govern your participation in our Merchant Program (“Additional Terms”). You agree that we may at any time provide you with Additional Terms, or update or modify this Agreement, as appropriate or necessary. To the extent any Additional Terms conflict with this Agreement, the Additional Terms will control.

      2. In the event we modify this Agreement or any Additional Terms, we will send notice to you at the email address we have on file and by posting notice of such modifications in the Business Services portion of www.connexity.com. Unless you notify us within ten (10) days of the day we send the email notice to you or post the modifications consistent with this Agreement, whichever occurs last, you will be deemed to have accepted the new terms. Notwithstanding the foregoing, your continued participation in the Merchant Program after the posting of modifications to this Agreement and/or any Additional Terms will signify your assent to and acceptance of the new terms.

    12. Choice of Law/Venue. This Agreement shall be governed by and construed under the laws of the State of California. Subject to the requirements in Section 10 (“MANDATORY ARBITRATION and Dispute Resolution”), the sole and exclusive jurisdiction and venue for any dispute under this Agreement shall be the appropriate state or federal court sitting in Los Angeles County, California. We each irrevocably submit to the personal jurisdiction of such courts.

    13. No Trial by Jury/Class Action. We each hereby irrevocably waive any right to a trial by jury or to join claims with those of others in the form of a class action or similar procedural device for any dispute arising under this Agreement, whether brought in court or arbitration. If for any reason any court or arbitrator holds that the class action restriction set forth in his Section is unconscionable or unenforceable, then the terms of Section 10 (“MANDATORY ARBITRATION and Dispute Resolution”) shall not apply and the classwide dispute must be brought in court.

    14. Independent Contractor. Nothing in this Agreement is intended or should be construed to create a joint venture, partnership, franchise, agency or similar legal arrangement between Connexity and you or any other Merchant. We each operate as independent contractors under this Agreement.

    15. Miscellaneous. If there is any conflict between the English version of this Agreement and any translated version we may provide, we each agree that the English version will control in all instances. No waiver by either of us of any breach or default under this Agreement shall be deemed a waiver of any other breach or default. Neither the course of conduct between any member nor trade practices shall act to modify any provision of this Agreement. The section headings used in this Agreement are for convenience only and shall not be given any legal import. If any part of this Agreement is deemed unlawful or unenforceable for any reason, we agree that only that part of the Agreement shall be stricken and that the remaining terms in this Agreement shall not be affected. You may not assign this Agreement or assign any rights or delegate any obligations hereunder, in whole or in part, without our prior written consent. This Agreement (including any Additional Terms incorporated by reference) constitutes the entire agreement, and supersedes all previous written or oral agreements, between you and Connexity in connection with the Merchant Program.



© 2017 Connexity, Inc.