MANUFACTURER TERMS OF SERVICE
Last Updated: 2020-08-26
Authority to accept Manufacturer Agreement. You are accepting this agreement on behalf of your employer or another entity (“Manufacturer”) and represent that you have full legal authority to bind your employer to this agreement. If you do not have the legal authority to bind, please ensure that an authorized person for your entity consents to and accepts this agreement. This agreement is entered into on the date that it is accepted on behalf of Manufacturer (the “Effective Date”), between Deals Media, LLC, a Delaware limited liability company (“Deals Media”) with offices at 25 Catoctin Circle SE #2932 Leesburg, VA 20177, and Manufacturer, on behalf of itself and its Administrator and each User.
Deals Media is the owner of certain intellectual property and provides certain professional services and mobile solutions.
Deals Media is engaged in the business of providing licenses to its intellectual property to allow Manufacturers and customers to utilize Deals Media’s professional services.
Manufacturer is a manufacturer or representative of certain products that sell their products and services through distributors, retailers, online, and other channels for the sale of such products and services through Retailers or direct to consumers.
Manufacturer desires Deals Media to license certain intellectual property owned by Deals Media and to make such products available to Manufacturer in order to allow Manufacturer to utilize Deals Media’s professional services.
The parties therefore agree as follows.
1. Definitions. In addition to any terms defined within the body of this agreement, the following definitions apply:
“Administrator” means a single User that is responsible for providing access to the Software to other Users, through the Interface.
“Consumer” means a customer of a Retailer or Manufacturer that has subscribed to the Consumer version of the Software.
“Input” means all information entered into the Software by Manufacturer, including images, text, audio, video, logos and creative designs.
“Interface” means Deals Media’s online portal that allows Manufacturer to interact with the Software, use the Services and make payment.
“Intellectual Property” shall mean all of Deals Media’s patents, copyrights, Software (including routines and subroutines), trademarks, trade names, service marks, logos, and all applications and registrations for any of the foregoing, trade secrets, Confidential Information, compilations, designs, diagrams, layouts, Interactive Data, Interface, ideas, improvements, inventions, formulas, key words, know-how, methods, mask works, phone numbers, processes, research and development, short codes, systems, technical information, techniques, urls, workflow management systems and all other proprietary rights and privileges, together with all improvements, modifications and derivative works from all users of the Software. All Interactive Data is Deals Media Intellectual Property.
“POS” means Point of Sale system that is used to manage inventory and process sales transactions with consumers.
“Redeemed Coupon Charge" – means the total coupon value to be reimbursed to Retailer, an $0.08 Retailer Redemption Fee and a $1.00 transaction fee to Deals Media
“Retailer” means a brick-and-mortar retail store or ecommerce entity that purchases products and services from a Manufacturer, Distributor, or other source, whose primary focus is selling an inventory of products to Consumers and that has subscribed to the Retailer version of the Software.
“Services” consist of: (i) Deals Media licensing the Software for the sole purpose of using the Services; (ii) Deals Media providing the Software to interact with Deals Media’s Software Application Cloud (SAC) that contains mobile-marketing coupon offers from Manufacturers; (iii) Manufacturer licensing Input to Deals Media; (iv) Users populating the Software with Input; (v) and Retailers creating custom coupon specific to their location and; (vi) coupon redemption process.
“Manufacturer” is a manufacturer, distributer or representative of certain products that sell their products and services through distributors, retailers, online, and other channels for the sale of such products and services through Retailers or direct to consumers.
“Software” means Deals Media’s mobile marketing computer software, currently branded as Petz Mobile, on a Software as a Service (“SaaS”) Subscription basis, as modified by any Updates.
“Updates” means additions, deletions, modifications, enhancements, improvements, patches, new versions, and other derivative works.
“Users” means employees and/or agents of Manufacturers who are authorized to use the Software and have been provided login credentials (i.e. user identifications and passwords).
2. Deals Media Obligations. Deals Media shall:
(a) Receive Input from Manufacturer;
(b) Inform Manufacturer, within a commercially reasonable time, of any notice it receives, that any portion of the Input may be inaccurate or incomplete;
(c) Provide Manufacturer with access to the Interface;
(d) Make reasonable efforts to perform all Services in a competent and workmanlike manner; and
(e) Provide personnel possessing the skill, experience, and abilities to perform the Services.
3. Obligations of Manufacturer, Administrator and User. Manufacturer (including Administrator and Users where specified below) shall:
(a) Pay all fees for the Services;
(b) Provide Input that complies with the standards established by Deals Media and with all applicable laws within the time periods reasonably established by Deals Media, and verify the accuracy of such Input;
(c) Utilize reasonable efforts to timely correct and update inaccurate or obsolete Input;
(d) Designate one Administrator to be responsible for providing access to the Interface to each User. Prior to an Administrator or User being granted access to the Interface, each Administrator and User shall accept Deals Media’s current license terms. Once provided with access, the Administrator and Users will be provided with a unique username and shall create a unique password to access the Interface. Administrator and Users shall not share their usernames and passwords with any other employee of Manufacturer or any third party, regardless of whether such third party is an employee of Manufacturer. Manufacturer shall delete any Administrator’s or User’s account information within five (5) days of any such person’s termination of employment with Manufacturer;
(e) Manufacturer, Administrator and Users shall execute Deals Media’s end user license agreements;
(f) Manufacturer, Administrator and Users shall comply with all terms, conditions and policies contained within the Interface;
(g) Manufacturer, Administrator and Users shall not give access to the Interface to any other third party for any purpose without the express written consent of Deals Media. The following terms and conditions apply to any third party acting as an Administrator or User: (i) Deals Media may reject any third party for any reason or for no reason; (ii) Deals Media will not be responsible for the quality of third party’s services; and (iii) Manufacturer and third party will be jointly and severally liable for any damages to Deals Media resulting from third party services. References to Administrator and Users shall include any third party authorized by Deals Media pursuant to this section;
(h) Assume responsibility for all activity occurring under User accounts and abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with Manufacturer’s use of the Services, including those related to data privacy, international communications, and the transmission of technical or personal information. Manufacturer shall: (i) notify Deals Media immediately of any unauthorized use of any password or account or other known or suspected breach of security; (ii) immediately report to Deals Media any unauthorized copying or distribution of Deals Media Intellectual Property of which it becomes aware and use reasonable efforts to immediately stop any such activity; and (iii) not impersonate any third party or provide false identifying information to gain access or use of the Services; and
(i) Ensure that all Input contains only valid characters, as specified within the Interface, and comply with all other specifications as specified within the Interface.
(a) License to Input. Manufacturer hereby grants Deals Media a perpetual, irrevocable, non- exclusive, worldwide, royalty-free license to: copy, distribute, license, sublicense, modify, create derivative works based upon, publicly perform, publicly display and otherwise use Manufacturer’s Input. Deals Media will own all rights to any modifications, improvements, and derivative works that it creates using Manufacturer’s Input.
(b) License to Trademarks and Logo. During the term of this agreement, Manufacturer grants to Deals Media a non-exclusive, royalty free, worldwide license to use Manufacturer’s logo, trademark, trade name, and any other identifying label both on Deals Media’s website, and in any reasonable manner necessary for Deals Media to comply with its obligations set forth in this agreement.
(c) License to Software. Deals Media shall grant Manufacturers, Administrators and Users a license to the Software as provided in Deals Media’s licensing agreement through the Interface. Administrators and Users shall, by accepting the terms of Deals Media’s licensing agreement, accept on Manufacturer’s behalf.
(d) Reservation of Rights. Except for the licenses granted in this section, Manufacturer or its licensors retain any rights in the Input. Deals Media hereby retains all right, title and interest to Intellectual Property including all copies, versions, and derivatives thereof. Manufacturer shall not permit any third party to translate, reverse engineer, decompile, recompile, update, or modify all or any part of Deals Media’s Intellectual Property. This agreement does not limit the rights and permissible uses that either party would have independent of this agreement, including rights under the US Copyright Act or other applicable intellectual property laws.
5. Inaccurate Input. Deals Media may remove any Input that it believes to be inaccurate or incomplete without incurring any liability to Manufacturer. Deals Media may verify all or portions of the Input to ensure that it is compliant with Deals Media’s standards, provided that Deals Media will not be liable in any manner for any inaccurate or incomplete Input.
6. Payment from Manufacturer. Manufacturer shall pay Deals Media all applicable fees, in U.S. dollars, including any applicable taxes, in accordance with Deals Media’s billing policies in effect at the time the fees become payable. Deals Media’s fees and billing policies are available within the Interface. If Manufacturer fails to pay fees when due, Deals Media may: (i) immediately suspend or terminate Manufacturer’s access to the Interface; (ii) remove or nullify Input; and (iii) terminate this agreement, in whole or in part. Manufacturer represents that all information provided for purposes of payment will be accurate, complete, and current. Manufacturer acknowledges that certain payment methods may require Deals Media to share personal information contained within such payment method with one or more third parties for the limited purpose of processing payment. Manufacturer shall submit any fee disputes to Deals Media in writing within thirty (30) days of the charge or such dispute will be deemed waived and not subject to challenge. Manufacturer shall pay all reasonable expenses (including attorneys’ fees) incurred by Deals Media in the collection of fees for services.
7. Credit and Reserve Accounts. As part of the Services provided by Deals Media, Manufacturer acknowledges and agrees to a Credit Account to be extended by Deals Media (the “Credit Account”). Manufacturer may avoid fees associated with the Credit Account by funding a Reserve Account with a minimum initial deposit of $1,000.00 (USD) in Deals Media Dollars (“DMD”) by ACH, company check or credit card. Manufacturers that fund a Reserve Account via ACH or Credit Card agree and authorize Deals Media to automatically replenish the Reserve Account anytime the balance is $500.00 (USD) or less in Deals Media Dollars. Any Reserve Account that is not automatically replenished shall immediately revert to a Credit Account.
8. Billing, Charges and Payment.
(a) Credit Account. Manufacturers shall be charged the Redeemed Coupon Charge plus an 8% administrative fee. Deals Media shall invoice the manufacturer every seven (7) days. Manufacturer shall pay each invoice within thirty (30) days after receipt of the invoices.
(b) Reserve Account. Manufacturers shall be charged the Redeemed Coupon Charge. Such charges shall be automatically debited from the Deals Media Dollars in the Reserve Account as they are incurred. If the Reserve Account is depleted and not replenished, then the Credit Account and associated fees are automatically activated. The Reserve Account may be reactivated upon payment of any outstanding balances on the Credit Account.
(c) Any Manufacturer that pays an invoice, funds a Reserve Account, or agrees to automatic replenishment of a Reserve Account with a credit card shall be charged a 3% processing fee.
(d) Manufacturer will pay a fee of $35.00 or the maximum amount permitted by law for any returned payments due to insufficient funds or any credit card payments that are charged back or denied.
9. Term and Termination. The agreement will remain in effect for an initial term of one (1) year commencing from the date of Manufacturer’s enrollment (“Initial Term”). This agreement will automatically renew for one (1) year with the most recent licensing fee subscription in effect on the date of said renewal. Either party may terminate this agreement by written notification served on the other party and such termination will become effective thirty (30) days after receipt of such notice. Upon termination by either party, with respect to Reserve Accounts, Deals Media shall refund any unused funds in such account and will not result in any fees. In addition, Manufacturer shall immediately return all of Deals Media’s Intellectual Property, including all copies thereof, to Deals Media. Under no circumstances shall Manufacturer retain any of Deals Media’s Intellectual Property beyond the period of three (3) days following termination.
10. Manufacturer Representations and Warranties. Manufacturer represents and warrants that: (i) it has all necessary rights and interests in and to the Input; (ii) Manufacturer has full power and authority to enter into and perform under this agreement; (iii) neither the Input nor the products or services offered by Manufacturer violate any state or federal regulation, rule, statute or law; (iv) all Input is accurate and contains only valid characters; (v) it will offer any products and services relating to Input for sale and take all necessary actions relating thereto; (vi) Manufacturer is duly organized, qualified, licensed, validly existing and in good standing in each jurisdiction where it transacts business, (vii) Manufacturer’s performance hereunder and delivery of the Input to Deals Media will not violate any other agreement or third party rights; and (viii) the Input will not contain any subject matter or material that is libelous, obscene, objectionable or illegal.
11. Deals Media Representations, Warranties and Disclaimer.
(a) Deals Media represents and warrants that: (i) the Services Deals Media provides to Manufacturer pursuant to this agreement will be performed in accordance with generally accepted industry standards; and (ii) Deals Media has the authority to grant the licenses contained in Section 4(a) and (c).
(b) DEALS MEDIA HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING NON-INFRINGEMENT, TITLE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. DEALS MEDIA MAKES NO REPRESENTATIONS, WARRANTIES OR CLAIMS THAT: (i) THE SERVICES WILL MEET MANUFACTURER’S REQUIREMENTS; (ii) THE SERVICES WILL BE UNINTERUPTED, TIMELY, OR ERROR FREE; (iii) MANUFACTURER’S USE OF THE SERVICES WILL INCREASE MANUFACTURER’S SALES OR PROFIT; (iv) DISTRIBUTORS WILL SELECT INPUT FOR ANY RETAILERS OR THAT RETAILERS WILL SELECT INPUT FOR USE; AND (v) ANY ERRORS IN THE INPUT WILL BE CORRECTED. NO ORAL STATEMENTS BY DEALS MEDIA WILL BE CONSIDERED REPRESENTATIONS OR WARRANTIES. MANUFACTURER MAY ONLY RELY UPON EXPRESS WARRANTIES AND REPRESENTATIONS MADE WITHIN THIS AGREEMENT.
12. Limitation of Liability. EXCEPT FOR (i) EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 11; (ii) BREACHES OF CONFIDENTIALITY UNDER SECTION 12; AND (iii) BREACH OF INTELLECTUAL PROPERTY RIGHTS UNDER SECTION 4:
(a) NEITHER PARTY (INCLUDING SUCH PARTY’S OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR AFFILIATES) WILL BE LIABLE FOR ANY SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES, OF ANY KIND, INCLUDING LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS OPPORTUNITY, OR GOODWILL, OCCASIONED BY THE BREACH OF ANY OBLIGATION UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, WHETHER FORESEEABLE OR NOT, ON ANY THEORY OF LIABILITY EVEN IF SUCH PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE, AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY SPECIFIED IN THIS AGREEMENT. NOTWITHSTANDING THE ABOVE, THE LIABILITY OF DEALS MEDIA WILL IN NO EVENT EXCEED $1,000 (USD).
13. Indemnification. Each party shall indemnify, defend and hold the other harmless, including such party’s current and former officers, directors, employees, and agents from any loss, claim or damage arising from or related to a breach of such party’s obligations, representations and warranties under this agreement. Suppler shall indemnify, defend and hold Deals Media and its respective affiliates, partners, licensees, and sub- licensees harmless from any loss, claim or damage relating to: (i) the Input or the products and services related to such Input; (ii) an Administrator or User disclosing their usernames and passwords; (iii) an Administrator or User disclosing any Confidential Information or Deals Media Intellectual Property; and (iv) a User’s breach of this agreement or any end user license agreement entered into by such User, regardless of whether such User is an employee or agent. Any indemnification under this section will include reasonable attorney’s fees and costs.
14. Confidential Information and Injunctive Relief.
(a) Definition. “Confidential Information” means tangible and intangible information disclosed by one party to the other party under this agreement that is: (a) designated or marked as confidential; or (b) would normally under the circumstances be considered Confidential Information of the disclosing party. In the case of Deals Media, Confidential Information includes business logic; Interactive Data; Interface; technical and business information; research and development; trade secrets; know-how; and other Intellectual Property or proprietary information. Further, certain Confidential Information, including Interactive Data and Interface in the case of Deals Media, fall within the definition of trade secrets under the Uniform Trade Secrets Act or other applicable federal and state law. Notwithstanding the foregoing, Confidential Information does not include any information that the recipient already knew, that is public or becomes public through no fault of the recipient, that was independently developed by the recipient without any use of the discloser’s Confidential Information, that is published or is otherwise available online, or that was rightly given to the recipient by another party without breach of any obligation to the discloser.
(b) Confidentiality Obligations. The recipient (including Administrator and Users) shall not disclose Confidential Information except to employees and agents who need to know it and have agreed in writing to keep it confidential consistent with the confidentiality provisions of this agreement. The recipient may use Confidential Information only to exercise its rights and fulfill obligations under this agreement while using reasonable care to protect it. The parties acknowledge that Deals Media’s distribution of Input as permitted under this agreement will not be considered a breach of confidentiality obligations. The obligations of each party to maintain the confidentiality of the other party’s Confidential Information apply during the term of this agreement and for an indefinite period thereafter, until such Confidential Information becomes available to the general public without restriction.
(c) Injunctive Relief. The parties acknowledge and agree that any violation of their respective obligations relating to Confidential Information and Intellectual Property will result in damages to the other party that may be largely intangible but are nonetheless real, and that may be incapable of quantifying for an award of damages. Accordingly, any such violation will give the disclosing party the immediate right to a court-ordered injunction or other appropriate order to specifically enforce those obligations. A party’s right to injunctive relief is in addition to any other rights and remedies available to such party under this agreement at law and in equity. Any party against whom such injunction is entered shall pay the other party’s reasonable expenses, including attorney fees and costs, incurred in obtaining such injunction or order.
15. No Partnership or Joint Venture. Manufacturer and Deals Media are separate legal entities and this agreement establishes Deals Media as an independent contractor. Nothing contained in this agreement will be deemed or construed by the parties, or any third party, as creating any partnership or joint venture relationship between the parties. Nothing in this agreement will constitute or permit either party to execute any contract or other document on behalf of the other, or to bind or otherwise obligate the other party.
16. Dispute Resolution. Except for a dispute relating to Confidential Information or Intellectual Property, to which either party will be entitled to seek immediate relief using traditional court remedies, the parties shall first engage in a good faith effort to resolve the dispute by exchanging relevant information and negotiating in good faith. If such dispute is not resolved within thirty (30) days to the mutual satisfaction of the parties, upon a written request by a party, the dispute may be settled by binding arbitration in front of a panel of three arbitrators, conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”), as such rules may be amended from time to time. The parties are not obligated to employ the services of the AAA to conduct the arbitration but may do so upon the agreement of the parties. The arbitration will be conducted in or near Leesburg, Virginia, and will commence within sixty (60) days of the request for arbitration by a party. The party that substantially prevails shall be entitled to its reasonable attorneys’ fees and costs.
17. No Waiver. Neither the failure nor any delay on the part of either party to exercise any right, remedy, power, or privilege under this agreement will operate as a waiver thereof, nor will any single or partial exercise of any right, remedy, power or privilege preclude any other or further exercise of the same or any other right, remedy, power or privilege, nor will any waiver of any right, remedy, power, or privilege with respect to any occurrence be construed as a waiver of such right, remedy, power or privilege with respect to any other occurrence. No waiver will be effective unless it is in writing and signed by the party asserted to have granted the waiver.
18. Entire Agreement. This agreement sets forth the entire understanding and agreement of the parties with respect to the subject matter hereof, and it supersedes all prior agreements and understandings, inducements or conditions, express or implied, oral or written, except as herein contained. The express terms herein control and supersede any course of performance and/or usage of the trade inconsistent with any of the express terms herein. This agreement cannot be modified or amended except by a written document executed by each party or a document accepted in electronic format either of which shall constitute a legal, binding and enforceable contract amendment between the parties. The parties may amend and restate the terms of this agreement, by entering into a new version of this agreement, provided however that any amended or restated terms will only apply after the date of execution of an amended and restated agreement.
19. Assignment. Either party may assign this agreement upon reasonable notice to the other party, provided however that such assignment will not relieve either party of its obligations hereunder. This agreement will inure to the benefit of, and be binding upon and enforceable by, the parties hereto and their respective successors and assigns.
20. Choice of Law and Manner of Execution. This agreement will be governed by and construed in accordance with the laws of the Commonwealth of Virginia without reference to any choice of law principles or rules. This agreement may be executed either in hard copy or accepted in electronic format, either of which will constitute a legal, binding and enforceable contract between the parties.
21. Counterparts and Rules of Construction. This agreement may be executed in any number of counterparts (whether facsimile, scanned email signature or original), each of which will be deemed to be an original, and all of which will together constitute one and the same instrument. References to the singular include the plural and references to the plural include the singular.
22. Severability. The provisions of this agreement are independent of each other, and no provision will be affected or rendered invalid or unenforceable by virtue of any other provision being held invalid or unenforceable in whole or part.
23. Survival. Any terms or obligations of this Agreement that would, by their nature, survive the termination hereof will so survive, including Section 4 (Licenses), Section 9 (Term and Termination), Section 8 (Manufacturer Warranties), Section 10 , Section 11 (Limitation of Liability), Section 12 (Indemnification), Section 13 (Confidential Information and Injunctive Relief) and Section 15 (Dispute Resolution).
24. Force Majeure. Except for failure to make payments when due, neither party will be liable to the other by reason of any failure in performances of this agreement if the failure arises out of the unavailability of third party communication facilities or energy sources, acts of God, acts of the other party, acts of governmental authority, fires, flood, explosions, internet outages, computer viruses, strikes, shortages, delays in transportation, riots, war, terrorism, insurrection, or any other cause beyond the reasonable control of that party.
25. Notices. All notices, requests, demands and other communication required or permitted under this agreement shall be in writing and shall be deemed to have been duly given, made and received at Manufacturer’s postal or electronic mail address on file with Deals Media or at Deals Media’s address set forth below:
(a) when delivered, if made by hand delivery;
(b) two (2) business days following deposit with a reputable overnight courier service;
(c) when sent by e-mail from Deals Media to Manufacturer with confirmation of receipt;
(d) upon online notice and acceptance by Manufacturer within the Product Registry or Deals Media enrollment website or;
(e) six (6) days after deposit in the United States Mail, certified or registered, postage prepaid, return receipt requested.
Notices to Deals Media shall be sent to:
Deals Media, LLC
25 Catoctin Circle SE #2932
Leesburg, VA 20177
26. Statute of Limitations. Regardless of any statute or law to the contrary, Manufacturer shall bring any claim or cause of action arising out of or related to the terms of this agreement within one (1) year after such claim or cause of action arose and/or became known to Manufacturer, or such claim or cause of action will be barred forever.
28. Updates to the Services or Software, and Changes to These Terms. Deals Media may change these terms and conditions at any time and will provide Manufacturer notice of such changes. Using the services after the changes become effective means you agree to the new terms and conditions. If you don’t agree to the new terms, you must stop using the services.