This merchant's agreement is between PriceLeap.com and the merchant.
Recitals
1. PriceLeap hosts internet-based marketplace(s) and provides comparative shopping and marketing services (the Shopping Search Engine) on the World Wide Web (WWW).
2. Merchant wishes to participate in the Shopping Search Engine in order to market and promote its products and/or services and PriceLeap wishes to include Merchant in the Service.
NOW, Therefore, in consideration of the mutual covenants and agreements herein, PriceLeap and Merchant agree as follows:
1. Merchant Participation
Merchant will be included in PriceLeap?s Shopping Search Engine as a seller subject to the terms of this Agreement. Merchant will provide PriceLeap with a listing of products or services, prices and other related information including sales tax, shipping cost and availability information, and will update all such information on a regular basis, in conformance with technical guidelines to be agreed upon by both parties. Merchant is solely responsible for the accuracy of all information displayed by PriceLeap regarding Merchant, as well as all aspects of order processing, fulfillment and associated costs and liability.
2. Linking
PriceLeap may link to Merchant?s website (Merchant Site) in its sole editorial discretion. Merchant shall provide a logo (Logo) in accordance with PriceLeap?s logo specification. Merchant hereby grants PriceLeap a nonexclusive license to use the Logo to promote the Merchants Site. Merchants may terminate PriceLeap?s use of the Logo if such use does not meet Merchant?s quality control standards. Merchant retains all the title to the Logo.
PriceLeap will do the mapping. To facilitate this, Merchant shall provide to PriceLeap a mapping file in accordance with PriceLeap?s then-current mapping file specification. If the mapping file contains catalog information for items not in PriceLeap?s product catalog, then PriceLeap may choose (but is not obligated) to include such information in its product catalog. PriceLeap may choose to frame the Merchant Site to help users return to PriceLeap.com. Merchant shall defend and indemnify PriceLeap from all losses, costs, damages, liabilities and expenses (including without limitation reasonable attorneys? fees) arising from the Logo, the Merchant Site or any goods or services sold from the Merchant Site.
PriceLeap may provide Merchant with access to PriceLeap?s Management Center, where reports, messages and other information may be obtained. All reports displayed in the Merchant Management Center are preliminary and subject to update. The invoice remains the authoritative report for Clicks and fees. Merchant shall not disclose its passwords or any login information for the Merchants Management Center or any other part of the Management Center to any third party in addition Merchant will not use or divulge to third parties any proprietary information of PriceLeap including the terms of the Agreement, all components of the Shopping Search Engine, and any nonpublic information that given the nature of the information or the circumstances surrounding its disclosure reasonably should be considered as confidential.
3. License to Merchant Materials
Merchant, by providing PriceLeap with Merchant?s product list, related products and pricing data, shipping costs, sales tax information, specifications, graphics, trademarks, service marks, logos, trade names, etc. (Merchant Materials), grant to PriceLeap a nonexclusive, worldwide right and license to link to and store, reproduce, reformat, transmit, display (publicly or privately), perform, and provide access to, use, and distribute, and to license to third parties (each as Third Party Marketplace), Merchant Materials.
4. Service and Fees
PriceLeap agrees to include Merchant in the Shopping Search Engine in exchange for the fees set forth on Exhibit A or agreed upon during Merchant?s signup online. In the event that any amount owed by Merchant to PriceLeap is not paid by the date when due, PriceLeap shall assess a late fee of 1.5% per month on such amount and shall reserve the right to suspend Merchant from the Shopping Search Engine until such amount is paid to PriceLeap. All checks returned to PriceLeap for insufficient funds shall be subject to a $50 charge each time a check is so returned. In the event that legal or other collection assistance is required to collect any overdue balance or to enforce any provision of this Agreement, Merchant shall pay for such legal or other collection assistance, including without limitation reasonable attorney?s fees and expenses.
5. Merchant Representations & Covenants
Merchant agrees not to use the Shopping Search Engine for unlawful or tortuous activities and agrees to comply with all applicable laws as well as PriceLeap?s privacy policy. Merchant warrants that (i) Merchant Materials do not and will not infringe any patent, copyright, trade secrets or other proprietary right of any third party; (ii) this Agreement is a valid agreement enforceable against Merchant according to its terms; (iii) it has the right and authority to enter into this Agreement and grant PriceLeap all rights granted herein; and (iv) Merchant is permitted by applicable law and regulations to enter into this Agreement.
6. Term and Termination
The term of this Agreement shall commence on the Effective Date and shall continue until either party terminates this Agreement by providing the other party with at least one business day of advance written notice. All notices to PriceLeap must be sent via either (i) overnight courier to the PriceLeap address specified above and to the attention of Account Administration or (ii) e-mail to MRemove@PriceLeap.com . Upon the termination of this Agreement, all rights and obligations of the parties shall terminate; provided that Section 5-12, and all accrues rights to payment shall survive termination. PriceLeap reserves the rights to disable Merchant?s account and/or remove Merchant content immediately if PriceLeap receives any complaint regarding the Merchant or has any concern about the quality of accuracy of information supplied to PriceLeap by Merchant. Nothing set forth herein shall create any obligation for PriceLeap to monitor Merchants Materials.
7. Intellectual Property
All technology content and other intellectual property conceived, created, developed or acquired by or on behalf of PriceLeap (or its licensors), including the Shopping Search Engine, whether existing as of the Effective Date or developed in the future (PriceLeap Property) and whether (i) used within and/or incorporated into any aspect of the Shopping Search Engine or (ii) outside the scope of this Agreement will remain the sole and exclusive property of PriceLeap. PriceLeap will retain all right, title and interest to any modifications made to PriceLeap Property, by whomever created.
8. Assignment
This Agreement shall inure to benefit and bind the parties hereto, their successors and assigns, but neither party may assign this Agreement without written consent of the other, except such consent is not required to the successor of all or substantially all of the assignor?s business or assets.
9. Limitation of Liability
NEITHER PARTY WILL BE LIABLE FOR LOSS OR INACCURACY OF DATA, LOST PROFITS OR REVENUE OR INDIRECT, SPECIAL, INCIDENTAL RO CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE.
10. Limitation of Warranty
PRICELEAP?S SHOPPING SEARCH ENGINE IS PROVIDED ?AS IS? WITHOUT ANY WARRANTIES, AND PRICELEAP DISCLAIMS ALL WARRANTIES, EITHER EXPRESSED OR IMPLIED.
11. Indemnification
Merchant agrees to indemnify and hold harmless PriceLeap and its officers, directors, employees, agents and representatives from and against any and all claims, damages, losses, costs (including reasonable attorney?s fees), or other expenses that arise directly or indirectly from (a) Merchant?s breach of this Agreement; (b) any allegations that any of the Merchants Materials infringes upon or otherwise violates any intellectual property or other right(s) of any third party; and/or (c) any dispute between Merchant and any customer.
12. Miscellaneous
This Agreement does not create any joint venture, partnership, agency, or employment relationship between the parties. This Agreement represents the entire agreement of the parties and may not be modified unless expressly agreed to in writing by both parties. Any notice required or permitted to be given hereunder shall be (a) in writing, (b) effective on the first business day following receipt, and (c) delivered prepaid by overnight courier or the US Postal Service. All notices shall be addressed to the addresses set forth above. This Agreement shall be governed in accordance with the internal laws of the State of New York. If any provision is held by a court of competent jurisdiction to be contrary to law, such provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect. Each party shall be responsible for compliance with all applicable laws, rules and regulation, if any, related to the performance of its obligations under this Agreement. Neither party will be liable for any failure to perform any obligation (other than payment obligations) hereunder, or from any delay in the performance thereof, due to causes beyond its reasonable control.