A. License Grant to Merchant
- Grant of License to Merchant. For the Term hereof, the Site Sponsor grants to each Merchant, and each Merchant hereby accepts, a nonexclusive, nontransferable right to (i) access, with a secure user identification and password issued by the Site Sponsor, the Website and the current version of Renterval (the “Software”) displayed thereon and any subsequent or updated versions of the Software which may be released during the Term of this Agreement, and (ii) place on the Website Merchant’s name, address, telephone number and e-mail address (or, if elected by Merchant, place the Merchant on the Website under confidential designation to be assigned by the Site Sponsor following the providing by the Merchant to the Site Sponsor of Merchant’s complete name, address, telephone number and e-mail address), together with (x) descriptions of the product(s), service(s), or both, to be offered by the Merchant to Customers, (y) the terms and conditions under which same will be provided to Customers, and (z) the price(s) at which same will be offered to Customers. The information described in Item (ii)(x)-(z) of the preceding sentence shall be referred to individually and collectively as the “Merchant Data.”
B. License Grant to Customer
- Grant of License to Customer. For the Term hereof, the Site Sponsor grants to each Customer, and each Customer hereby accepts, a nonexclusive, nontransferable right to (i) access, with a secure user identification and password issued by the Site Sponsor, the Website and the current version of the Software displayed thereon and any subsequent or updated versions of the Software which may be released during the Term of this Agreement, (ii) contract on the Website (following the providing by the Customer to the Site Sponsor of Customer’s complete name, address and information related to method of payment) for the delivery of product(s), service(s) or both by the displaying Merchant under the terms and conditions for same which are displayed by the Merchant, (iii) pay the Site Sponsor for the product(s), service(s) or both by credit card (to be charged by the Site Sponsor only upon delivery by Merchant of a Merchant invoice or sales order signed by Customer, which signature evidences receipt of the ordered product(s), service(s) or both), Google Checkout or PayPal (each of which will result in the immediate charge of Customer’s account), and (iv) direct the Site Sponsor to remit such payment to the Merchant upon delivery by the Merchant of a Merchant invoice or sales order signed by Customer. The information described in Items (i)-(iv) of the preceding sentence shall be referred to individually and collectively as the “Customer Data.”
- Prohibited Customer Activity. Each Customer is prohibited from (i) offering to purchase, purchasing or using any product, service or both whose offering or providing by the Merchant, or whose purchase or use by the Customer, would violate any (y) local, state or federal law or regulation, or (z) order or judgment of any court of competent jurisdiction or any administrative agency, and (ii) otherwise attempting to circumvent the purchasing process described in Item (i)-(iv) of Section 2(a)
C. Duties and Remedies of Site Sponsor
- Duties of Site Sponsor For the Term hereof, the Site Sponsor agrees (i) to use reasonable business efforts to keep the Website operational 24 hours a day, 365 days each year, (ii) to assign confidential designations to any electing Merchant in order to preserve the anonymity of an electing Merchant until a purchase decision has been made electronically by the Customer and accepted electronically by the electing Merchant, (iii) to inform Customer of the identity of any Merchant electing confidentiality and said Merchant’s contact information following Merchant’s electronic acceptance of Customer’s electronic offer to purchase in order to enable the initiation of contact by Customer of Merchant for the purpose of obtaining the purchased product(s), service(s) or both, (iv) to process Customer’s payment instructions and, following Site Sponsor’s receipt from Merchant of Merchant’s invoice or sales order signed by Customer to evidence Customer’s receipt of the purchased product(s), service(s) or both, to remit payment of the product/service price to Merchant, and (v) to maintain a Merchant rating system through which Customers may rate their experiences with individual Merchants.
- Remedies of Site Sponsor. For the Term hereof, the Site Sponsor may in the exercise of its sole and absolute discretion (i) determine the outcome of any dispute between the Merchant and Customer and the disposition of any funds previously received by Site Sponsor from Customer, (ii) monitor the Website for activity in violation of the prohibitions described in Section 1(b) or Section 2(b), respectively, (iii) ban a Merchant or Customer from further activity on the Website upon the commission by either (following a single warning by Site Sponsor) of any act prohibited by Section 1(b) or Section 2(b), respectively, and (iv) revoke the account of a Merchant or Customer at any time and for any reason.
E. Term and Termination
- Term. The initial term of the license granted pursuant to Section 1(a) or Section 2(a), as applicable, is one year from date of initial access of the Website by Merchant or Customer, as applicable, which term is thereafter automatically renewed for successive one-year terms until terminated by a party with electronic notice received not less than Thirty (30) days prior to the expiration of the initial or any renewal period.
- Termination. This Agreement may be terminated by a party at any time and for any reason.
- Events Upon Termination or Expiration. Upon expiration or in event of termination of this Agreement for any reason, Merchant and Customer, as applicable, will immediately discontinue all access and use of the Website. Neither Merchant nor Customer shall not be entitled to a refund of any amount paid by either of them to the Site Sponsor. All provisions of this Agreement relating to protection of Site Sponsor’s intellectual property rights, and such other provisions as would be expected to survive, shall survive termination or expiration. Termination shall be in addition to, and shall not prejudice, any of the parties’ remedies at law or in equity consistent with the provisions of this Agreement.
F. Intellectual Property Rights
- Safeguarding Merchant Data. All Merchant Data placed on the Website by Merchants for presentation and storage by Site Sponsor and for access by Customers is ultimately maintained and controlled by the Site Sponsor. Each Customer hereby represents and warrants that each Customer is at all times responsible and liable for preserving the confidentiality of the Merchant Data accessed by that Customer in addition to safeguarding and protecting that Merchant Data. Each Customer hereby represents and warrants that it will use and disclose any Merchant Data obtained through the Website only in compliance with all local, state and federal laws. Site Sponsor retains all rights to share Merchant Data in group aggregation form at merchant, city, area, regional and national levels so long as such data is shared in a form which prevents its association with, and is not personally or individually identifiable to, Merchant.Safeguarding Customer Data. Site Sponsor agrees that all information describing the Customer Data, as well as that transaction data of any Merchant with whom Customer contracts for the purchase of a Merchant product(s), service(s) or both will be kept confidential by Site Sponsor, will not be sold or conveyed by Site Sponsor and will remain under the control of the Site Sponsor unless Site Sponsor receives prior written consent from Customer for sharing this data. Each Merchant hereby represents and warrants that it will use and disclose any Customer Data obtained through the Website only in compliance with all local, state and federal laws. Site Sponsor retains all rights to share Customer Data in group aggregation form at customer, city, area, regional and national levels so long as such data is shared in a form which prevents its association with, and is not personally or individually identifiable to, Customer.
G. Limited Warranty, Disclaimer and Limitation of Liability
- Limited Product Warranty. IN NO EVENT WILL SITE SPONSOR BE RESPONSIBLE TO ANY MERCHANT OR ANY CUSTOMER FOR ANY INJURIES OR DAMAGES ARISING FROM RELATIONSHIPS BETWEEN MERCHANT AND CUSTOMER WHICH WERE INITIATED THROUGH THE WEBSITE. EXCEPT AS SPECIFICALLY SET FORTH IN SECTION G, SITE SPONSOR GIVES NO OTHER WARRANTIES, EXPRESS OR IMPLIED. SITE SPONSOR DISCLAIMS ALL OTHER WARRANTIES INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE OR NONINFRINGEMENT. IF AND TO THE EXTENT THAT PORTIONS OF WEBSITE INCLUDE PROGRAMS LICENSED BY SITE SPONSOR FROM THIRD PARTIES, SUCH PORTIONS ARE PROVIDED “AS IS.”
- Entire Agreement. This Agreement states the entire understanding among Site Sponsor, Merchants and Customers concerning the Website and supersedes all prior oral and written communications. No amendment to this Agreement shall be effective unless it is in writing and signed by both parties.
- Assignments. Neither this agreement nor any rights, obligations or licenses granted hereunder may be assigned by any Merchant or Customer without prior written consent of Site Sponsor. This Agreement shall inure to the benefit of the parties and their permitted successors and assigns.
- Severability. If any provision of this Agreement is determined to be unenforceable because it is invalid or in conflict with any law of any relevant jurisdiction, the validity of the remaining provisions shall not be affected, and there shall be substituted a provision as nearly similar to it in meaning and substance as practicable while still being valid and enforceable.
- Notices. Notices under this Agreement shall be in writing and shall be deemed to have been received when personally delivered or sent via electronic transmission to the respective addresses disclosed upon each Merchant’s or Customer’s registration for access to the Website, as applicable, or, in the case of the Site Sponsor, alternatively to the address disclosed on the Website or to such other persons or addresses as the parties may notify one another from time to time, and will be deemed effective on the date of personal delivery or upon confirmation of an electronic transmission, as applicable.
- Governing Law and Jurisdiction. All disputes arising under or related to this Agreement or the relationship between the parties shall be interpreted and governed under the laws of the State of Texas, and shall be heard in Dallas County, Texas and in no other location.
- Arbitration. Any dispute arising under or related to this Agreement or the relationship between the parties which cannot be amicably resolved will be resolved by binding arbitration in Dallas, Texas before a single arbitrator according to the then-current Commercial Arbitration Rules of the American Arbitration Association and judgment may be entered on the award in any court of competent jurisdiction. The arbitrator will have no authority to enter an award not permitted under this Agreement. Site Sponsor may seek immediate injunctive relief in a court located in Dallas County, Texas if time is of the essence.
- No Waiver. The waiver by any party of a breach or default of any provision under this Agreement shall not be construed as a waiver of any succeeding breach or default of the same or any other provision, nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has, or may have, hereunder operate as a waiver of any right, power or privilege by such party.
- Relationship of the Parties. In performing its responsibilities pursuant to this Agreement, it is understood that Site Sponsor is at all times acting as an independent contractor and that Site Sponsor is not a partner, joint venturer, or employee of either any Merchant or any Customer. It is expressly agreed that Site Sponsor will not for any purposes be deemed to be an agent, whether ostensible or apparent, of any Merchant or any Customer.
- Compliance with Laws and Regulations. The parties agree to conduct their activities in full compliance with any and all applicable laws, rules and regulations adopted or promulgated by any governmental agency or regulatory body, state or federal, that are now or may in the future may become applicable to the services, or arising out of the performance of services hereunder.