myDealCompass will provide the following services ("Services") to Vendor:
- a) Vendor may post deals, coupons, or other money-saving offers (a "Vendor Deal") on myDealCompass on a monthly subscription fee basis ("Vendor Subscription"). Vendor Deals will be displayed on all myDealCompass Platforms, including the myDealCompass website and myDealCompass Mobile Apps. Each Vendor store location requires a separate Vendor Subscription. For each Vendor Subscription, Vendor may display one Vendor Deal. Vendor may reference only the Vendor location that is registered for each Vendor Subscription in each Vendor Deal.
- b) Vendor will have exclusive control over the Vendor Deal that is displayed for Vendor. Vendor may change the Vendor Deal at will, without prior notice to myDealCompass, and without additional cost. Changes to Vendor Deals will appear on myDealCompass Platforms in real time. Vendor Deals will continue to be displayed on myDealCompass during the term of this Agreement until Vendor changes the Vendor Deal. If Vendor changes a Vendor Deal, the deal posted immediately before the change will automatically expire at the end of the day the change was made, or, if applicable, on the expiration date posted on the prior Vendor Deal, whichever is later.
- c) Vendor may elect to highlight its deal, coupon, or money-saving offer as a Featured Deal that is prominently displayed on all myDealCompass Platforms. Vendors will purchase Featured Deal status on an additional daily fee basis.
- d) myDealCompass will provide Vendor with statistical information on how many views, redeems, and purchases Vendor receives through myDealCompass.
- e) Vendor may terminate any Vendor Subscription on five (5) days notice to myDealCompass. Any Vendor Subscription that is active for part of a month will be billed for the entire month.
- f) myDealCompass will provide Vendor with technical assistance emails for posting or changing the content for any Vendor Subscription.
During the term of this Agreement:
- a) Vendor will only post Vendor Deals that (i) are deals, coupons, or other money-saving offers; (ii) are redeemable at physical locations; (iii) do not contain offensive language; (iv) do not contain unauthorized trademarks, copyrights, or other proprietary items; (v) and do not contain adult or prohibited offers, including adult entertainment, escort services, or illegal drugs and paraphernalia. Vendor agrees that myDealCompass may refuse access to any Vendor or refuse to post any Vendor Deal for any reason.
- b) Vendor will honor and fulfill each Vendor Deal in accordance with the terms stated in the Vendor Deal.
- c) Vendor will post content on myDealcompass that is family-appropriate and does not violate any applicable rule, regulation or law. Vendor assumes full responsibility and liability for the content in its Vendor Deals and acknowledges that myDealCompass does not and will not monitor or supervise such content. Notwithstanding the foregoing, Vendor acknowledges that myDealCompass may remove any content that myDealCompass deems in its sole discretion to be in violation of this Agreement. myDealCompass will notify Vendor of any such removal and will have no obligation to Vendor by reason of such removal. Vendor may replace the removed content with other appropriate content.
- d) Vendor will comply with all state, local and national consumer or commercial laws concerning the offering and honoring of coupons and discounts and all other applicable rules, regulations and laws relating to the conduct of Vendor's business in each jurisdiction where it conducts business or is subject to such rules, regulations or laws. myDealCompass will have no obligation to advise Vendor with respect to the applicability of any such rules, regulations or laws.
- e) Vendor will not post any Vendor Deal that discriminates against any myDealCompass Subscriber on the basis of race, sex or gender preference, nationality, disability or age (unless the product by its nature is lawfully restricted to persons of a certain gender or age range) or which unlawfully restricts the persons or groups that may have the benefit of the coupon offer.
- f) Vendor will clearly state in all Vendor Deals any conditions or restrictions applicable to the Vendor Deal. In the absence of any stated limitations, myDealCompass Subscribers will have the right to assume that no restrictions apply to the Vendor Deal.
- g) Vendor will not post any Vendor Deal unless Vendor reasonably believes that it has sufficient supply of the product to fulfill the Vendor Deal.
- h) Vendor will be a "brick and mortar" retail establishment. Web-based businesses are not eligible.
myDealCompass may terminate this Agreement immediately if:
- a) Vendor violates any term or condition of this Agreement and fails to cure such violation within forty eight (48) hours after written notice to Vendor.
- b) Vendor fails to comply with payment terms within ten (10) days of the payment due date.
- c) Vendor engages in any conduct which is deemed in the sole discretion of myDealCompass to adversely affect the business or reputation of myDealCompass.
Trademark and Licensing.
- a) Vendor grants to myDealCompass a non-exclusive, worldwide, royalty-free license for the term of this Agreement to reproduce, display, and transmit the logos, trademarks, service marks, symbols, and/or trade names of Vendor and/or any of its parents, affiliates or subsidiaries that are provided to myDealCompass by Vendor (collectively, the Vendor Marks). myDealcompass may use Vendor Marks in connection with this Agreement and for general advertising and/or promotion of Vendor as a subscriber to myDealCompass. myDealCompass will not grant, sub-license, or otherwise authorize others to use the Vendor Marks without Vendor's prior written approval which will not be unreasonably withheld. All rights in the Vendor Marks will terminate upon the termination of this Agreement.
- b) myDealCompass hereby grants Vendor a non-exclusive, worldwide, royalty-free license to use, reproduce, display, distribute and transmit the logos, trademarks, service marks, symbols, and/or trade names of myDealCompass that are authorized by myDealCompass (collectively, the myDealCompass Marks). Vendor may use myDealCompass Marks solely in connection with this Agreement and for general advertising and/or promotion of Vendor as a subscriber to myDealCompass. All such rights are subject to myDealCompass's approval which shall not be unreasonably withheld. Vendor acknowledges that the myDealCompass Marks and the goodwill associated them are valuable properties of myDealCompass and that this license grants it no rights in the myDealCompass Marks except as specifically set forth in this Agreement. All rights in the myDealCompass Marks will terminate upon the termination of this Agreement.
Vendor's Representations and Warranties.
Vendor represents and warrants that:
- a) Vendor is a duly organized entity in good standing in each state that it conducts business and has the power and authority to enter into and perform its obligations under this Agreement.
- b) Vendor Marks are owned by or licensed to Vendor and may be lawfully used for the purposes of this Agreement.
- c) This Agreement will not cause Vendor to breach any existing contract or agreement.
- d) No content posted by Vendor on the myDealCompass Platforms will violate or infringe upon the rights of any third party or violate any local, state or federal law, rule or regulation.
- e) The person executing this Agreement on behalf of Vendor is authorized to do so and to bind the Vendor to this Agreement.
- a) myDealCompass agrees to defend and hold Vendor, its subsidiaries, employees, officers, directors, shareholders, and any other affiliate acting for or on its behalf (the "Vendor Parties") harmless from any claim or action against the Vendor Parties based on a claim that myDealCompass has violated or infringed a right of a third party, or breached any warranty set forth in this Agreement. myDealCompass will have the sole right to conduct, at its expense, the defense of any such claim or action and all negotiations for its settlement or compromise. myDealCompass will not settle or compromise any matter in a way that acknowledges or imposes on any of the Vendor Parties any liability or damage without Vendor's prior written approval. Vendor Parties will provide myDealCompass with prompt written notification of any such claim or action and copies of all materials and papers served upon them and will reasonably cooperate with myDealCompass in the defense of any such action. This indemnity shall not apply to any claims made by third parties relating to any content provided by Vendor Parties or the failure of Vendor Parties to provide any goods or services. This indemnity shall survive the expiration or termination of this agreement.
- b) Vendor agrees to defend and hold myDealCompass, its subsidiaries, employees, officers, directors, shareholders, and any other affiliate acting for or on its behalf (the "myDealCompass Parties") harmless from any claim or action asserted against the myDealCompass Parties based on a claim that Vendor has violated or infringed a right of a third party or breached any warranty set forth in this Agreement. Vendor will have the sole right to conduct, at its expense, the defense of any such claim or action and all negotiations for its settlement or compromise. Vendor will not settle or compromise any matter in a way that acknowledges or imposes on any of the myDealCompass Parties any liability or damage without myDealCompass's prior written approval. myDealCompass Parties will provide Vendor with prompt written notification of any such claim or action and copies of all materials and papers served upon them and will reasonably cooperate with Vendor, at Vendor's expense, in the defense of any such action. This indemnity shall not apply to any claims made by third parties relating to any content provided by myDealCompass Parties. This indemnity shall survive the expiration or termination of this agreement.
Limitation of Liability and Disclaimer of Warranties.
EXCEPT AS EXPRESSLY SET FORTH UNDER THE INDEMNIFICATION AND CONFIDENTIALITY PROVISIONS OF THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE RESPONSIBLE FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE OR OTHER INDIRECT DAMAGES, INCLUDING WITHOUT LIMITATION, LOST REVENUE OR PROFITS, IN ANY WAY ARISING OUT OF OR RELATED TO THIS AGREEMENT EVEN IF THE LIABLE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, UNLESS DUE TO THE GROSS NEGLIGENCE OR WILFULL MISCONDUCT OF THE LIABLE PARTY. Because of the extreme difficulty of and speculation in fixing damages for any failure or breach by myDealCompass, Vendor agrees that myDealCompass's entire liability, and Vendor's exclusive remedy for any breach other than an interruption in service or blackout, or breach of confidentiality, will be limited to the amount of one month's subscription fees and charges from myDealCompass to Vendor.
Any claim of damage based on an interruption in service or blackout will be limited to Vendor's actual out of pocket losses (not expenses) resulting from such interruption but in no event shall such damages or myDealCompass's liability exceed the amounts billed and actually paid by the Vendor with respect to the effected Vendor Deal(s) for the billing interval in which the interruption occurs.
myDealCompass wil not be deemed to be in breach of this Agreement if the inability to perform under this Agreement is due to events beyond its control, including, but not limited to, acts of God or nature, war, civil commotion, labor disputes, equipment failures, strikes, fire, flood, or other casualty, government regulation or restrictions, weather conditions, breaches or failures to perform by third parties and mechanical, power or communications failures. If, after the date of this Agreement, any law, regulation, or ordinance, whether federal, state, or local becomes effective which substantially alters myDealCompass's ability to perform its obligations under this Agreement, myDealCompass will have the right to terminate this Agreement on thirty (30) days written notice.
EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT MYDEALCOMPASS DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING BUT NOT LIMITED TO WARRANTIES OF VENDORABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Vendor has been informed and understands that myDealCompass is now offering and will continue to offer the same or substantially similar agreement to other companies and/or parties that conduct business which are or may be competitors with Vendor. Vendor agrees that providing the myDealCompass services to such other companies will not be a violation of this Agreement.
Relationship of the Parties.
This Agreement is not intended to nor shall it be construed to make the parties joint venturers, partners, employees, agents or other representatives of each other.
Waiver or Modification.
This Agreement may not be modified or amended except in writing signed by all Parties. Neither party may waive or release any of its rights or interests in this Agreement except in writing. Failure to assert any right arising from this Agreement will not be deemed or construed to be a waiver of such a right.
Neither party will have the right to assign this Agreement without the prior written consent of the other party. Any purported assignment without such written consent will be null and void and of no force or effect.
Each party agrees, and will cause its employees to agree, to use and disclose the other Party's Confidential Information only in connection with the party's rights and obligations under this Agreement. Each Party agrees not to use or exploit any of the other Party's Confidential Information directly or indirectly for its own benefits or for the benefit of any third party in a manner inconsistent with the Party's rights and obligations under this Agreement. Each party agrees not to disclose the other Party's Confidential Information in any way or in any form to third parties without the other Party's prior, specific, written authorization except to the extent necessary to comply with the law or the valid order of a court of competent jurisdiction, in which event the disclosing party shall promptly notify the non-disclosing party (if possible, prior to making any disclosure) and shall seek confidential treatment of such information. Each Party agrees to disclose the Confidential Information only to those of its officers, directors, employees, Affiliates or others under its control who have a need to know the Confidential Information in connection with the Party's rights and obligations under this Agreement. "Confidential Information" shall mean any information relating to or disclosed during the term of this Agreement which is or should be reasonably understood to be confidential or proprietary to either party, including but not limited to data and information concerning the parties' customers and/or consumer lists, the material terms of this Agreement, technical processes, source code, product designs, sales, cost and other unpublished financial information, product and business plans, projections and marketing data; without limitation, any information designated as "Confidential" shall be deemed Confidential Information. Confidential Information shall not include, and neither party will be liable for disclosure of, any information received by the receiving party under this Agreement if the information; (a) is generally available to or known to the public through no wrongful act of the receiving party; (b) was previously known by the receiving party through no wrongful act of the receiving party; (c) was independently developed by the receiving party; or (d) was disclosed to the receiving party by a third party under no obligation of confidentiality to the other party.
The provisions of this Agreement are severable, and in the event that any provisions of this Agreement shall be determined to be invalid or unenforceable under any controlling body of law, such invalidity or unenforceability will not in any way affect the validity or enforceability of the remaining provisions in this Agreement.
Representation by Counsel.
The parties acknowledge that each party has been represented by counsel throughout all negotiations, which preceded the execution of this Agreement, and that this Agreement has been executed with the consent and advice of counsel.
Venue, Jurisdiction, and Choice of Law.
The parties agree that any action or proceeding arising out of or relating in any way to this Agreement will be brought exclusively in a court of competent jurisdiction sitting in Pulaski County, Arkansas. The parties irrevocably and unconditionally consent to the exclusive jurisdiction of any such court. Vendor agrees that the aforesaid jurisdiction shall be the venue for any such action and hereby waives any right it may have to later object to such venue. This Agreement shall be construed, enforced, and administered in accordance with the laws of the State of Arkansas and the United States, without regard to choice of law and conflicts of law principles.
This Agreement constitutes the entire agreement of the parties with respect to its subject matter and supersedes all prior agreements, representations and understandings of the parties, whether oral or in writing.
Effect of Agreement.
This Agreement is binding, and will inure to the benefit of, the Parties and their respective agents, attorneys, insurers, employees, representatives, officers, directors, partners, principals, divisions, indemnitors, indemnitees, parent companies, grandparent companies, subsidiaries, affiliates, associates, consultants, assigns, heirs, predecessors, successors in interest, successor trusts, trustees, shareholders and any trustee in bankruptcy or debtor in possession.