Daily Deal Builder is a joint venture between HC Consulting Group, a Georgia based LLC, and Nimble Commerce, a California based company owned and operated by IMShopping Inc (hereafter jointly referred to as “Company”).
Company shall make available to Customer for use under this Agreement Company’s proprietary computer software and related hosted service, including any related user documentation and other online or offline materials that may be provided by Company, and any update or new versions thereof made available by Company pursuant to this Agreement. Any updates to the current Service shall be also subject to these Terms of Service.
The terms of Company’s privacy and security policies related to the Company Service, currently located at http://www.nimblecommerce.com/privacyPolicy, as modified from time to time, are expressly incorporated into this Agreement. Company reserves the right to modify such privacy and security policies in its reasonable discretion and the posting of modified policies on the Company Service shall constitute notice to you of any such modifications, which shall be incorporated as terms of this Agreement. Because the Company Service is a hosted, online application, Company occasionally may need to notify all Users of the Company Service of important announcements regarding the operation of the Company Service.
• You must be 18 years or older in order to you use the Company Service.
• You must provide your full legal name, current address, a valid email address, and any other information needed in order to complete the signup process.
• These Terms of Service shall remain in full force and effect for the time that Customer uses the Company Services. Customer may cancel any time and upon cancellation Customer’s use of the Company Service will be immediately terminated and all data permanently destroyed. The time period during which Customer pays for, has access to, and uses the Company Service is hereafter referred to as the “Term.”
• You are responsible for keeping your password secure. Company cannot and will not be liable for any loss or damage from your failure to maintain the security of your account and password.
• Subject to the terms and conditions of this Agreement, Company hereby grants to Customer a revocable, non-exclusive, non-transferable, non-sublicensable right, during the Term, to (i) internally use the Company Technology solely as necessary to implement the Company Service with the Customer Websites and (ii) access and use the Company Service, as customized for Customer, solely as implemented in the Customer Websites for Customer business purposes but not on a stand-alone basis. The license grant in subsection 3(A)(ii) above shall include the right for Customer to allow Users to access and use the Company Service in connection with such Users’ use of the Customer Websites in accordance with this Agreement. All rights not expressly granted to Customer are reserved by Company and its licensors.
• Company shall store Customer Content during the Term, provided that Company shall not be responsible or liable for errors in such Customer Content or the deletion, correction or loss of any Customer Content to the extent not caused solely by the negligence of Company. Upon cancellation of Service, Company may remove or delete such Customer Content from the Company Service without liability. Upon termination of this Agreement by Company for cause, Customer’s right to access or use the Company Service, including any Customer Content therein, may be immediately terminated, and Company shall have no obligation to maintain or forward any Customer Content.
A breach or violation of any term in the Terms of Service as determined in the sole discretion of Company will result in an immediate termination of your services.
The person signing up for the Service will be the contracting party (“Account Owner”) for the purposes of our Terms of Service and will be the person who is authorized to use any corresponding account we may provide to the Account Owner in connection with the Service.
If you are signing up for the Service on behalf of your employer, your employer shall be the Account Owner. If you are signing up for the Service on behalf of your employer, then you represent and warrant that you have the authority to bind your employer to our Terms of Service.
Customer will be responsible to activate and maintain his own merchant processing account to be used in conjunction with the services.
Technical support concerning the Company Service is only provided to paying Customers.
Customer shall be responsible for providing support for Customer’s own Users. Such support shall include, without limitation, responding to all User inquiries relating to the Company Service, identifying the nature and extent of a User’s problem, verifying that the problem is a reproducible error and advising Users in the application of any recommended solution or work around to such problem or defect.
Company shall provide maintenance and support to Customer during the Term. Company shall use reasonable efforts to cooperate with Customer in handling any User complaints concerning the Company Service and take action as reasonably requested by Customer to resolve such complaints.
You may not use the Company Service for any illegal or unauthorized purpose nor may you, in the use of the Service, violate any laws in your jurisdiction (including but not limited to copyright laws) as well as the federal laws of the United States of America nor the State laws of California.
You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Company Service, use of the Service, or access to the Service without the express written permission from Company.
You understand that your Store Content (not including credit card information), may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Credit Card information is always encrypted during transfer over networks.
We reserve the right to modify or terminate the Service for any reason, at any time.
We reserve the right to refuse service to anyone for any reason at any time.
We may, but have no obligation to, remove Content and Accounts containing Content that we determine in our sole discretion are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property or these Terms of Service.
We reserve the right to provide our services to your competitors and make no promise of exclusivity in any particular market segment.
In the event of a dispute regarding account ownership, we reserve the right to request documentation to determine or confirm account ownership. Documentation may include, but is not limited to, a scanned copy of your business license, government issued photo ID, the last four digits of the credit card on file, etc.
Company retains the right to determine, in our sole judgment, rightful account ownership and transfer an account to the rightful owner. If we are unable to reasonably determine the rightful account owner, Company reserves the right to temporarily disable an account until resolution has been determined between the disputing parties.
Customer shall not, and shall not authorize any third party to (i) modify, reverse engineer, decompile, disassemble or otherwise attempt to obtain the source code or underlying algorithms or functionality of the Company Service, (ii) allow any unauthorized third party to access or use the Company Service or Company Technology, (iii) offer the use of the Company Service as a part of a service bureau, sharing, or other similar arrangement; (iv) gain or attempt to gain unauthorized access to the Company Service or Company’s equipment or computer networks used to provide the Company Service; (v) interfere with or disrupt the Company Service or Company’s equipment or computer networks connected thereto; or (vi) access the Company Service for purposes of monitoring its availability, performance, functionality, or any other benchmarking or competitive purposes. Customer shall use the Company Service only for its internal business purposes and shall not use the Company Service in violation of any applicable laws or rights of third parties including, without limitation, to (a) send spam or unsolicited messages in violation of applicable laws; (b) store prohibited material including any User data that infringes the proprietary or privacy rights of others, is obscene, threatening, libelous, or otherwise unlawful or tortuous or material harmful to children; or (c) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs.
Deal Network Program
If Customer uses the Company Service to participate in the Deal Network Program consisting of the Network of Promotional Deals, Company’s sourcing partner providing the Promotional Deal will provide a description of the terms and conditions thereof, including the price, duration of the promotional period and return policy, if any. Company is not responsible for any content, warranty, fulfillment or shipment of any products or provision services for the Promotional Deal. The applicable sourcing partner will be responsible for all warranty, fulfillment, and the shipment of any such products or provision of such services. In addition, Company will not be responsible for, and disclaims any liability relating to, the completeness or accuracy of any description or other information relating to a Promotional Deal provided by the sourcing partner. Company will (i) make the Promotional Deals available to Customer through the Company Service, (ii) collect or keep fees and payments from Users, and (iii) remit amounts to Customer less any permitted returns or charge backs and payments owed to Sourcing Providers for any Promotional Deal.
With respect to the Deal Network Program Customer shall be responsible for: (i) marketing the Promotional Deal to Users and creating, posting and editing any marketing collateral associated in connection therewith and for all costs incurred by Customer for promoting the Promotional Deal, including marketing and sales costs; (ii) all pre- and post-sale User communications for the Promotional Deal; and (iii) customer support related to the purchase of the Promotional Deal by Users, including, without limitation, charge backs, disputes, returns, exchanges, complaints and other activities of a similar nature and all costs incurred by Customer associated with providing customer support. Once the transaction for a Promotional Deal between Customer and User has been processed, the sourcing partner will be responsible for fulfillment of the Promotional Deal and shipping any products or arranging the provision of services to Users, in each case, directly or indirectly. For any permitted returns or exchanges, to the extent applicable for relevant product, Customer will instruct its Users to make such returns or exchanges directly with the sourcing partner, and not Company. Customer will comply with all applicable laws and regulations in connection with its activities with respect to the marketing, promotion, sale and distribution of Promotional Deals. In addition, Customer agrees it will not (a) change or supplement any of the terms, conditions or offer of the Promotional Deal, (b) misrepresent any of the terms and conditions of a Promotional Deal, or (c) promote the Promotional Deal in connection with any pornographic or obscene materials.
(i) In order to participate in the Deal Network Program, Customer agrees that all revenue for Network Offer sales on Customer’s own website will be collected by Company, and Customer authorizes Company to withhold Sourcing Partner Share from the total sales amount (“Deal Revenue”) and pay Sourcing Partner Share on Customer’s behalf as part of the Company Service. Company agrees to adjust Customer share for refunds and chargebacks each month. The Deal Network Program is only available to US based companies.
(ii) Customer recognizes that Company assumes a risk wherein other Deal Network Program participants who sell Customer’s supplied offers demand a superior level of service from both Company as well as any Suppliers Company allows into the Deal Network Program. Therefore, in order for Customer to act as a Supplier to the Deal Network Program, Customer shall demonstrate and provide any and all requested documents to Company in order for Company to verify a history of good sales and a history of customer satisfaction based on those sales. Customer recognizes and agrees that becoming a qualified Supplier to the deal network is on a case-by-case basis at the sole discretion of Company. Being a Deal Network Program Supplier requires that Customer be a US based company.
(iii) Customer will be responsible for paying all applicable taxes based on any income or revenue received by it in respect of the sale of a Promotional Deal (except for any taxes based on Company’s net income).
Limitation of Liability
EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS OR A PARTY’S BREACH OF CONFIDENTIALITY HEREUNDER, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY HEREUNDER FOR ANY PROFITS LOST BY THE OTHER PARTY OR FOR ANY CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES SUFFERED BY THE OTHER PARTY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS OR A PARTY’S BREACH OF CONFIDENTIALITY HEREUNDER OR CUSTOMER’S FAILURE TO PAY ALL FEES DUE HEREUNDER, EACH PARTY’S MAXIMUM CUMULATIVE LIABILITY FOR DAMAGES, COSTS OR EXPENSES OF ANY KIND RECOVERABLE UNDER LAW OR CONTRACT, OR ANY OTHER CLAIM, FOR ALL MATTERS RELATING, DIRECTLY OR INDIRECTLY, TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF FEES ACTUALLY PAID OR PAYABLE BY CUSTOMER TO COMPANY DURING THE TERM.
Your use of the Service is at your sole risk. THE INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND CONTENT AVAILABLE ON THE SERVICE IS PROVIDED TO YOU “AS IS” AND WITHOUT WARRANTY OF ANY KIND.
Company does not warrant that the Service will be uninterrupted, timely, secure, or error-free.
Company does not warrant that the results that may be obtained from the use of the Service will be accurate or reliable.
Company does not warrant that the quality of any products, services, information, or other material purchased or obtained by you through the Service will meet your expectations, or that any errors in the Service will be corrected.
Customer Marks. Customer hereby grants to Company a worldwide, non-exclusive, royalty-free license during the Term to use, to reproduce and display the Customer trademarks and service marks specified by Customer (“Customer Marks”) in connection with Company’s implementation obligations and Company’s provision and support of the Company Service, each in accordance with this Agreement. Any proposed use of the Customer Marks by Company shall require Customer’s prior review and written approval, such approval not to be unreasonably withheld or delayed. All use of the Customer Marks by Company shall be in compliance with Customer’s trademark usage guidelines, as provided by Customer from time to time. All goodwill resulting from Company’s use of the Customer Marks shall inure to the benefit of Customer.
Company hereby grants to Customer a worldwide, non-exclusive, royalty-free license during the Term to use, to reproduce and display the Company trademarks and service marks specified by Company (“Company Marks”) in connection with Customer’s implementation obligations and Customer’s provision and support of the Customer Websites that feature the Company Service, each in accordance with this Agreement. Any proposed use of the Company Marks by Customer shall require Company’s prior review and written approval, such approval not to be unreasonably withheld or delayed. All use of the Company Marks by Customer shall be in compliance with Company’s trademark usage guidelines, as provided by Company from time to time. All goodwill resulting from Customer’s use of the Company Marks shall inure to the benefit of Company.
All right, title and interest, including all Intellectual Property Rights, in and to the Customer Websites (but excluding the Company Service and/or Company Technology incorporated therein or used in connection therewith), the Customer Content, the Customer Marks and Customer Confidential Information are and shall remain the property of Customer. All right, title and interest, including all Intellectual Property Rights, in and to the Company Service, the Company Technology, the Company Marks and Company Confidential Information are and shall remain the property of Company.
Intellectual Property and Customer Content
All content and data submitted by Customer or Users via the Company Service in the course of using the Company Service (“Customer Content”) shall belong to Customer. Customer hereby grants to Company a non-exclusive license during the Term to use, reproduce, distribute, modify and publicly display and perform the Customer Content as necessary for Company to provide the Company Service to Customer and Users in accordance with this Agreement. Customer shall have sole responsibility for assuring that Customer owns or otherwise has the right to use any or all of the Customer Content without infringing the intellectual property, privacy or other rights of any other party. Customer is solely responsible for the accuracy, quality, integrity, legality, reliability and appropriateness of all Customer Content. Customer shall not, and shall not authorize others to, submit Customer Content that infringes the proprietary or privacy rights of others, is obscene, threatening, libelous, or otherwise unlawful or tortuous or harmful to children, and Company shall have the right to immediately remove such Customer Content from the Company Service without notice to Customer. Your use of the Services must comply with all applicable Laws. It is your responsibility to know and understand the laws applicable to your use of the Company Service and the Emails you generate and send through the Service.
Payment of Fees
A valid credit card is required for Customer Accounts to bill the monthly fees.
The fee schedule is $297/month plus an 8% commission due to the Company. Company maintains the right to modify the fee schedule at its sole discretion at any time and access to the Service by Customer will require Customer approval of such modifications.
The service will be billed in 30 day intervals. When your billing period is over the Account Owner will be sent an invoice via the email provided. Company has the right to suspend Customer’s access to the Company Service at any time should an invoice remain unpaid for a period of greater than 5 days.
All fees are exclusive of all federal, provincial, state or other governmental sales, goods and services, harmonized or other taxes, fees or charges now in force or enacted in the future (“Taxes”). Customer is responsible for paying all applicable taxes.
Company does not provide refunds.
Cancellation and Termination
You may cancel your account at any time by emailing firstname.lastname@example.org and then following the specific instructions indicated to you in Company’s response.
Once cancellation is confirmed, all of your Content will be immediately deleted from the Company Service. Since deletion of all data is final please be sure that you do in fact want to cancel your account before doing so.
If you cancel the Service in the middle of the month, you will receive one final invoice via email. Once that invoice has been paid you will not be charged again.
Fraud: Without limiting any other remedies, Company may suspend or terminate your account if we suspect that you (by conviction, settlement, insurance or escrow investigation, or otherwise) have engaged in fraudulent activity in connection with the Site.
Modifications to the Service and Prices
Prices for using Company Service are subject to change upon 30 days’ notice from Company. Such notice may be provided at any time by posting the changes to the Company website (dailydealbuilder.com).
Company reserves the right at any time to modify or discontinue the Service (or any part thereof) with or without notice.
Company shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the Service.
DMCA Notice and Takedown Procedure
Company supports the protection of intellectual property and asks Customers to do the same. It’s our policy to respond to all notices of alleged copyright infringement. If someone believes that one of our merchants is infringing their intellectual property rights, they can send a DMCA Notice to Company’s designated agent using our form. Upon receiving a DMCA Notice, we may remove or disable access to the material claimed to be a copyright infringement. Once provided with a notice of takedown, the merchant can reply with a counter notification using our form if they object to the complaint. The original complainant has 14 business days after we receive a counter notification to seek a court order restraining the merchant from engaging in the infringing activity, otherwise we restore the material. For more information, see our DMCA Notice and Takedown Procedure
Confidential Information. As used in these Terms of Service, the term “Confidential Information” with respect to a party shall mean all information disclosed by such party that is designated as confidential, either orally or in writing, at the time of disclosure; provided that the following information or matter shall be deemed (i) Confidential Information of Company regardless of whether it is specifically designated as such: the terms and conditions of this Agreement, the Company Technology and the Company Service and any information regarding the algorithms and functionality used to provide the Company Service and (ii) Confidential Information of Customer regardless of whether it is specifically designated as such: the terms and conditions of this Agreement and the Customer Data. The term Confidential Information shall not apply to any information to the extent that: (i) the information is or becomes available to the public through no fault or act of the receiving party, (ii) the information was independently developed by the receiving party without the use of or reliance on the disclosing party’s Confidential Information, or (iii) the information was provided to the receiving party by a third party that is not under a duty of confidentiality to the disclosing party. In the event that Confidential Information of a party is required to be disclosed by law by the receiving party, the receiving party shall provide advance notice of such requirement to the disclosing party and shall permit the disclosing party to contest or limit the scope of such disclosure.
Confidentiality Obligation. All Confidential Information, including any portions or extracts thereof, shall be deemed confidential and proprietary to the party disclosing such information hereunder and shall at all times remain exclusively owned by such disclosing party. Each party may use the Confidential Information of the other party during the Term only as permitted or reasonably required for the receiving party’s performance hereunder. The receiving party shall not disclose or provide any Confidential Information of the disclosing party to any third party, and shall exercise the same degree of care to protect the disclosing party’s Confidential Information as the receiving party exercises to protect its own Confidential Information, but never less than a reasonable degree of care.
Representations and Warranties; Disclaimers
Representations and Warranties. Each party represents and warrants that (i) it has the legal power and authority to enter into this Agreement and (ii) it will comply with all applicable laws and regulations in its performance under this Agreement. Company represents and warrants that it will provide the Company Service in a manner consistent with general industry standards, reasonably applicable to the provision thereof, and that the Company Service will perform substantially in accordance with the related documentation under normal use and circumstances.
DISCLAIMER. OTHER THAN AS PROVIDED IN THIS AGREEMENT, THERE ARE NO EXPRESS WARRANTIES AND THERE ARE NO IMPLIED OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, COMPANY DOES NOT REPRESENT OR WARRANT THAT (a) THE USE OF THE COMPANY SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA NOT PROVIDED BY COMPANY, (b) THE COMPANY SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, OR (c) ERRORS OR DEFECTS WILL BE CORRECTED. THE COMPANY SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, AND COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES OR LIABILITIES RESULTING FROM SUCH PROBLEMS.
By Customer. Customer shall indemnify and hold Company and its affiliates, officers, directors, employees and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; or (ii) a claim, which if true, would constitute a violation by Customer of Section 7 (Representations and Warranties); provided in any such case that Company (a) gives Customer prompt written notice of the claim, (b) gives Customer sole control of the defense and settlement of the claim (provided that Customer will not enter into any settlement of such claim without the prior approval of Company); (c) provides Customer reasonable information and assistance at Customer’s expense; and (d) has not materially compromised or settled such claim.
By Company. Customer shall have no right of indemnification against Company or any of its affiliates, officers, directors, employees and agents for any claims, costs, damages, losses, liabilities, or expenses (including attorneys’ fees and costs) arising out of or in connection with a claim alleging that use of the Company Service infringes the rights of, or has caused harm to, a third party, including, without limitation, a third-party claim that the Company Service infringes any copyright(s) or patent(s). Company will, however, provide Customer reasonable information and assistance at Customer’s expense in connection with the defense of any such third-party claim(s).
Excused Performance. Other than a party’s payment obligations, each party’s performance is subject to interruption and delay due to causes beyond its reasonable control such as acts of God, acts of any government, war or other hostility, fire, explosion, power failure, equipment failure, industrial or labor dispute, inability to obtain necessary supplies and the like.
Assignment; Change in Control. This Agreement may not be assigned by either party without the prior written approval of the other party, except that a party may assign this Agreement without such consent to (i) its parent or subsidiary or (ii) an acquirer of all or substantially all of its assets or equity. Any purported assignment in violation of this section shall be void. Subject to the foregoing, this Agreement shall be binding on, inure to the benefit of, and be enforceable by the parties and their respective heirs, successors and valid assigns. Any actual or proposed change in control of Customer that results or would result in a direct competitor of Company directly or indirectly owning or controlling 50% or more of Customer shall entitle Company to terminate this Agreement for cause immediately upon written notice or upon discovery.
General. This Agreement shall be governed by the laws of the State of California, without regard to the conflicts of law provisions thereof. Any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Company Service shall be subject to the exclusive jurisdiction of the state and federal courts located in San Francisco, California. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. This Agreement is non-exclusive with respect to each party, and no joint venture, partnership, employment, or agency relationship exists between Customer and Company as a result of this Agreement or the use of the Company Service. The failure of a party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. No part of this Agreement may be waived, modified, or supplemented in any manner whatsoever (including a course of dealing or of performance or usage of trade) except by a written amendment signed by authorized representatives of both parties. The headings and captions contained in this Agreement are for convenience only and shall not constitute a part hereof. This Agreement, including all Exhibits hereto, sets forth the entire agreement and understanding of the parties relating to the subject matter herein and supersedes all prior discussions, proposals or other exchanges between them. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.