Shopperbuzz e-Commerce solution, Inc. Advertiser Program Participation Agreement
(Effective January 1, 2020)
Shopperbuzz e-Commerce solution (“Shopperbuzz “, “us” or “we”) is pleased to provide you (“Advertiser”, “you” or “your”) the opportunity to participate as an “Advertiser” in our Ad Exchange (the “Marketplace“) and any other products or services we may provide you (collectively, the “Program“). Your participation in the Program is subject to entering into this Shopperbuzz Advertiser Program Participation Agreement (the “Agreement”). In this Agreement, Shopperbuzz and Advertiser shall each be individually referred to as a “party” and collectively as the “parties.” As more fully specified below, “Shopperbuzz ” and “Advertiser” shall also include their respective affiliates, investors, partners, employees, agents and/or their designated assignees or entities.
This Agreement explains each party’s rights, duties, and respective obligations under the Program. By submitting and completing your registration on Shopperbuzz ’s website or by otherwise participating in the Program, you agree and signify your acceptance to the terms of this Agreement.
For the avoidance of doubt, the terms “Advertiser” or “Advertisers” may include brands, third party agencies representing merchants, brands or publishers, advertising networks of any kind, including ad networks, publisher networks, website networks and/or brokers, whether first or third party. By acceptance of this Agreement, Advertiser represents, warrants and undertakes that: (a) Advertiser shall be responsible to ensure that it enters into binding contractual arrangements with its relevant demand sources, advertisers, affiliates and/or any third party or parties (“Advertiser Partners”) on behalf of whom it enters into this Agreement (such as by bidding on click-throughs to such third party’s Website); (b) Advertiser has obtained all required authorizations whether from Advertiser Partners or any other third party or person, with regard to any traffic that Advertiser bids on (whether search, retargeting, push, domain, pop-up pop-under, RTB, display, native, browser extension, software traffic, or otherwise) or which is otherwise acquired through participation in this Agreement and at all times shall comply with the provisions of Section A(4) of this Agreement; and (c) Advertiser shall be held solely liable for the actions or omissions of its Advertiser Partners to the same extent that it is liable for its own actions or omissions under this Agreement, including for any payment obligations, whether or not these were collected, in full or in part, from its Advertiser Partners.
- Marketplace Specific Terms.
- Online Advertisements. We provide a suite of advertising technology online aimed at connecting online consumers with the most relevant brand, product or service offered by Advertisers. Consumer searches can originate anytime and anywhere across the internet using a variety of traffic mediums, including but not limited to search, programmatic, push, email, pop-ups, domain traffic, browser extension, software traffic, etc. Based on the ascribed user intent, Shopperbuzz will aim to return relevant listings, advertising or other content containing links to locations for Advertiser’s products – e.g., links to your Website (defined below), links to your landing page, deals, content, data, etc. (collectively referred to in this Agreement as the “Advertiser Content“). The Marketplace enables you to advertise on the Shopperbuzz Network (defined below) and bid for redirects or click-throughs to such links and/or click-throughs to your Website (defined below) generated from the Shopperbuzz Network (“Clicks“), and/or for impressions or for other actions, in accordance with the Payment Model agreed upon between the parties. “Payment Model” may mean any of the following: (i) cost per mille impressions (“CPM“) model; (ii) cost per action or acquisition (“CPA“) model; (iii) cost per Click (“CPC“) model; and/or a revenue share model (based on the total and actual revenues generated by you in connection with your participation in the Marketplace); or (iv) a managed service model (“Managed Service”) which if requested, can be made available to you with the application of Additional Terms, as defined below. Advertiser Content may also include text and graphics, as well as information about product characteristics, availability and price, and other content solely in accordance with our Advertiser Policies, incorporated herein by reference, as may be updated from time to time in our sole discretion.We make no representations regarding the rank, location and prominence of any Advertiser Content and have the sole right to determine whether and where or how Advertiser Content will be displayed in response to a given search and within the Shopperbuzz Network. We may refuse, edit or remove any Advertiser Content at any time, for any reason whatsoever. However, Advertiser is solely responsible with regard to the Advertiser Content, and we have no obligation to monitor, refuse, edit or remove any Advertiser Content.
- License to Your Content. You grant Shopperbuzz a royalty-free, fully paid, transferrable, sublicensable, worldwide right and license to use, display, reproduce, compile, edit, make derivative works of and distribute any of your Advertiser Content (or any part of your Advertiser Content), any other related data and information you provide Shopperbuzz or that is generated from your Advertiser Content, and any data or information you allow us to directly obtain from a website, exchange, browser extension or network owned or controlled by you, or that is otherwise properly licensed to you from a third party (“Website”), throughout or in connection with the Shopperbuzz Network, for the purpose of enabling Shopperbuzz to perform its obligations herein. The “Shopperbuzz Network” includes a real time bidding (“RTB”) exchange and XML ad platform, shopperhits.com, shoppingwaves.net and any and all websites we operate or control, websites for which we provide comparison-shopping content to, domains accessible through our Marketplace (directly or indirectly), as well as any other distribution or marketing channels, as determined by our sole and reasonable direction, including without limitation, email newsletters or other email, or other media or services we or our affiliates offer to consumers from time-to-time, which are either operated and controlled by us or are otherwise licensed to us.
- Advertising Charges and Payment. You will be charged, and agree to pay, all charges incurred in connection with your participation in the Program, which shall be based on prepayment. You agree that charges will be based on the total number of impressions, Clicks and/or other desired actions (as applicable to the Payment Model agreed upon between the parties), as solely calculated by Shopperbuzz ’ tracking systems, multiplied by the amount you have agreed to bid for each mille impressions, Click and/or other desired action (as applicable). We may adjust our minimum bids or other bidding requirements from time-to-time on reasonable prior notice to you. You agree to pay all applicable charges for your participation in the Marketplace in U.S. dollars (in accordance with your agreed to payment plan and billing terms, including any applicable sales, use VAT or other similar taxes which are billed and/or owed in addition to the payment plan charges; collectively “Plan“). Shopperbuzz ’ tracking systems, charges and invoices shall be considered as final, binding, non-appealable and accepted by you, and no other measurements or statistics of any kind shall be accepted or have any effect, and you will not be eligible for any refund, credit or other billing adjustment. Payment terms shall be prepaid exclusively.
- Your Obligations. You agree to follow all rules and guidelines for our Marketplace, as may be updated from time-to-time. You represent and warrant that:
- Neither the content on your Website(s), in any Advertiser Content you provide us nor any other materials you provide us, nor any content linked from the foregoing, will: (i) violate any federal, state or local law or regulation; (ii) infringe in any manner any copyright, patent, trademark, trade secret or other intellectual property right of any third party; (iii) breach any duty toward or violate the rights of any person or entity including, without limitation, rights of publicity or privacy, and or will result in any consumer fraud, product liability, tort, breach of contract, injury, damage or harm of any kind to any person or entity; (iv) be reasonably considered as false or misleading (such as by portraying nonexistent functionality (such as a non-operable “play” or “close” button), making false statements or claims, falsely implying affiliation with, or endorsement by another organization or service, misleading or tricking the user into interacting with the Advertiser Content, or impersonating system or browser warnings or error messages), defamatory, libelous, slanderous, threatening, harassing, violent, offensive, sexually explicit, obscene, or any content that promotes hatred or intolerance against others; (v) offer or disseminate any counterfeit or fraudulent goods (such as replicas or knockoffs), or services, schemes, investment opportunities or promotions or advice not permitted by law; (vi) promoting the use of drugs and drug paraphernalia, illegal substances or dangerous products (such as firearms or explosives), tobacco or alcohol products; and (vii) contain any Malicious Code.
- You have obtained all necessary permissions, authorizations, licenses, rights, or authorities to advertise or market your product, service, or offering, and such permissions, authorizations, rights, or authorities extend to your rights to bid on or otherwise acquire any and all types of traffic made available by the Program (whether search, domain, retargeting, browser extension, software traffic, pop-up, RTB, display, native, or otherwise) with respect to your Advertiser Content and any upstream third parties;
- The Advertiser Content that you provide us reflects products and services that you are able and willing to offer to customers, and that you will make any necessary changes if any information is not current or accurate;
- If the provision of your product or service involves the promotion of a browser extension, other offer promoted on an RTB basis, or any other type of offer or service, such browser extension, offer, or service is fully compliant with federal, state, local laws and regulations, and you represent and warrant that you have the full legal and actual authority to promote such offer or Advertiser Content; and
- Notwithstanding anything in this Agreement to the contrary, you shall at all times be responsible for offering and selling products featured on your Website(s), browser extension, access to or availability of your network, your exchange or your Advertiser Content, or otherwise making available your product or service including, without limitation, taking orders, fulfillment of orders, shipping, invoicing, product returns, replacement of products, customer service and payment of any and all taxes and other government charges.
- In addition to all other obligations set forth in this Agreement, Advertiser shall ensure that Advertiser and all Advertiser Content complies with the Program’s Advertiser Policies available in Appendix I, which may be revised by Shopperbuzz from time to time (“Advertiser Policies”). Advertiser is solely responsible for the quality, safety, legality, truthfulness, intellectual property rights, reliability, appropriateness, integrity and accuracy of the Advertiser Content and any configurations, settings, budgets, rates, campaign information, targeting information, and other criteria selected, inputted or provided by Advertiser.
- “Malicious Code” shall mean viruses, worms, malware, spyware, adware, time bombs, Trojan horses, drive-by download applications or other harmful or malicious code, files, scripts, agents or programs, including code that: (i) is intended to or has the effect of misappropriating, hijacking, commandeering, or disrupting access to or use or operation of any information, device, hardware, system or network, or (ii) materially interferes with or disrupts the end users’ web or mobile navigation or intervenes with the end users’ control over the operating system, browser settings, browser functionality or webpage’s display.
- Any actual or suspected violation of the above Section 4 of this Agreement or any suspected fraudulent, abusive or otherwise illegal content or activity by you is grounds for immediate termination of your participation in the Program and this Agreement.
- General Program Terms and Conditions. The following terms apply to our Program and any other Advertiser products or services we may provide you.
- Account information and sufficient rights. You represent that: (i) all information you provide or direct us to about your business, products, services or otherwise, including without limitation, in our registration forms or process, order forms and your Advertiser Content, is accurate, complete and current, and kept up to date throughout the term of the Agreement; (ii) you have the necessary rights and authority to enter into and perform this Agreement, will comply with your obligations and representations and warranties as outlined in Section A(4) of this Agreement, and the person submitting or completing a registration on Shopperbuzz ’s website on your behalf has authority to enter into this Agreement; (iii) you are the registered owner of the Website, or otherwise have sufficient rights in the Website for the purpose of performing your obligations hereunder, including its content and domain name; (iv) you are at least eighteen (18) years old.
- You grant to Shopperbuzz and its affiliates (which include but are not limited to our direct and indirect subsidiaries and parent company (“Affiliates“)), the right to transmit, process and maintain the personal and business information that you provide to us via the Program, and you further agree and hereby grant Shopperbuzz and its Affiliates the right to use such information for Shopperbuzz ’ and its Affiliates’ business purposes and share such information with selected third parties, including but not limited to Shopperbuzz ’ agents, accountants, attorneys and other representatives for Shopperbuzz ’ and its Affiliates’ business purposes.
- Advertiser shall immediately notify Shopperbuzz if there is any change in such information or security breach of the Account. Advertiser will be responsible for safeguarding and maintaining the confidentiality of its Account and associated password, and shall remain fully and solely responsible for any and all actions taken under the Account.
- Balances/Inactive Accounts. You will be required to fund your Account to pay for impressions, Clicks and/or actions, and other charges associated with our Program. It is your responsibility to keep your Account active and to terminate your account in the event you no longer wish to participate in the Program. If your Account is dormant for at least six (6) consecutive months, Shopperbuzz reserves the right to charge a monthly $25 account administrative fee (“Administrative Fee”) against the balance of your Account. A “dormant account” is defined as one that has had no activity for 6 consecutive calendar months or longer (i.e. zero Clicks, zero conversions, zero referrals, zero referral earnings, and zero payments) as marked by Shopperbuzz ‘ systems.
- Refunds. If we terminate your Account, we will refund you what is left in your Account as of the effective date of the termination. If you terminate your Account, termination is effective one (1) business day after we receive such notice (consistent with the terms below) and we will refund you what is left in your Account as of that date. Save for as described above, all payments are final and non-refundable.
- Intellectual Property Rights.
- Our Program, the Shopperbuzz Network, and our products, services and content (and any derivative works or enhancements of the same) including, but not limited to, all text, illustrations, files, images, computer programs, software, scripts, graphics, photos, sounds, music, videos, information, content, materials, products, services, URLs, technology, documentation and interactive features (collectively, “Shopperbuzz Content”) and all intellectual property rights to the same are owned by us, our licensors, or both. Additionally, all trademarks, service marks, trade names and trade dress that may appear in connection with the Program or Shopperbuzz Network (including the service marks “Shopperbuzz ” “Shopperbuzz Network”, and “Shopperhits.com”) are owned by us, our licensors, or both (“Company Marks”). You do not acquire any right, title or interest in any Shopperbuzz Content or Company Marks and shall not use any of the same except as expressly permitted under this Agreement. We reserve any rights in and to the Shopperbuzz Content or Company Marks not expressly granted in this Agreement.
- We acknowledge your right, title, and interest in and to your trademarks, service marks, trade names and content on your Website(s) (“Advertiser Marks”). You reserve any and all rights in and to Advertiser Marks not expressly granted in this Agreement.
- Subject to the terms and conditions herein and for the term of this Agreement: (i) you grant Shopperbuzz a nonexclusive, nontransferable, revocable and royalty-free right and license to use the Advertiser Marks in connection with the Program, the content license in Section A(2) above, and for associated publicity and related purposes; and (ii) we grant you a nonexclusive, nontransferable, revocable and royalty-free right and license to use the Company Marks solely in connection with the Program and subject to guidelines Shopperbuzz may offer from time-to-time. Each party acknowledges and agrees that its use of the other’s marks will not create in such party any right, title or interest in such marks and that all such use of the marks of the other party and the goodwill generated thereby will inure to the benefit of the other party.
- Shopperbuzz may, in connection with the Shopperbuzz Network and/or any Advertiser Content and/or Shopperbuzz Content you place on your Website (e.g., medals, icons, etc.), collect certain information from you and/or users, such as IP addresses, user agent, browser data, etc. (“Analytics Data”). We may use, display, reproduce, compile, edit, sell and/or distribute Analytics Data in connection with our business. For the avoidance of doubt and notwithstanding anything in this or other agreements between the parties, Analytics Data is not considered your confidential or proprietary information.
- It is hereby clarified that the Data shall not include User Volunteered Data. “User Volunteered Data” is personally identifiable information collected from individual users by the Advertiser, but only where it is expressly disclosed to such individual users that such collection is solely on behalf of the Advertiser.
- Indemnification. You hereby agree to defend, indemnify and hold harmless Shopperbuzz and its affiliates, licensees, vendors, contractors, agents, and employees (collectively, “Agents”), from any and all claims, damages, losses, suits, actions, demands, proceedings, expenses, liabilities, costs and expenses, including without limitation reasonable attorney’s fees and costs, that may arise from your participation in the Program or any other Shopperbuzz services, your breach of the terms of this Agreement, the use of the Advertiser Marks, any Advertiser Content or other materials that you provide us, any claim related to the Advertiser Content or use of the Website(s), or purchase or attempted purchase and/or use of any of your products or services made available through the Advertiser Content.
- Warranty Disclaimers. Shopperbuzz makes no guarantee regarding the placement, positioning, specifications, dimensions, frequency, volume, ranking or timing of Advertiser Content delivery, and any editorial decisions related to the Advertiser Content and/or any third party content. Shopperbuzz makes no representation as to the performance of any Advertiser Content and disclaims all representations, warranties and liability with respect to the success or return on investment of any Advertiser Content. YOU EXPRESSLY AGREE THAT YOUR PARTICIPATION IN THE PROGRAM IS AT YOUR OWN RISK. THE SERVICES OFFERED IN THE PROGRAM ARE AVAILABLE ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. NEITHER Shopperbuzz NOR ANY OF ITS AGENTS MAKES ANY WARRANTY OR REPRESENTATION WHATSOEVER REGARDING THE PROGRAM, ANY INFORMATION, PRODUCTS OR SERVICES AVAILABLE THROUGH OR IN CONNECTION WITH THE PROGRAM OR ANY OTHER Shopperbuzz PRODUCT OR SERVICE, OR ANY RESULTS OBTAINED THROUGH THE — USE THEREOF. Shopperbuzz HEREBY DISCLAIMS ON BEHALF OF ITSELF AND ITS AGENTS ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION: (I) ANY WARRANTIES AS TO THE AVAILABILITY, ACCURACY OR CONTENT OF THE PROGRAM, OR ANY INFORMATION, PRODUCTS OR SERVICES AVAILABLE THROUGH OR IN CONNECTION WITH THE PROGRAM OR ANY OTHER Shopperbuzz SERVICE, OR AS TO THE CUSTOMERS, IMPRESSIONS, CLICKS, ACTIONS, TRAFFIC OR OTHER BENEFITS TO BE GENERATED BY THE PROGRAM, OR THAT THE SAME WILL BE UNINTERRUPTED OR ERROR-FREE; AND (II) ANY WARRANTIES OF TITLE OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
- LIABILITY LIMITATIONS. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, ANY LIABILITY OF Shopperbuzz OR ANY OF ITS DIRECTORS, OFFICERS, AFFILIATES AND AGENTS, INCLUDING, WITHOUT LIMITATION, ANY LIABILITY FOR DAMAGES CA– USED OR ALLEGEDLY CA– USED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION OR DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR UNLAWFUL — USE OF RECORDS, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CA– USE OF ACTION, SHALL BE STRICTLY LIMITED TO AN AGGREGATE AMOUNT EQUAL TO THE AMOUNT YOU HAVE PAID TO Shopperbuzz FOR YOUR PARTICIPATION IN THE PROGRAM IN THE PRIOR THREE (3) MONTH PERIOD. IN NO EVENT SHALL Shopperbuzz OR ANY OF ITS AGENTS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR REVENUES, LOSS OF GOODWILL, DEFAMATION OR LOSS OR DAMAGE TO DATA THAT ARISE FROM ANY ASPECT OF YOUR PARTICIPATION IN THE PROGRAM OR ANY BREACH OR ERROR BY Shopperbuzz , WHETHER OR NOT YOU OR ADVERTISER HAS BEEN APPRISED OF THE POSSIBILITY OF SUCH DAMAGES. This limitation on such damages shall apply whether or not Shopperbuzz is able to correct any problem or error, and whether or not Shopperbuzz has breached any warranty or obligation, or failure of the essential purpose of any other remedy, it being the intention of the parties to allocate the risk of such damages as provided herein in all circumstances, and you acknowledge that Shopperbuzz would not have entered into this Agreement but for this limitation on such damages.
- Termination. This Agreement will remain in effect until terminated by either party within forty eight (48) hours prior written notice to the other party. If you are dissatisfied with the Program or with any of the terms and conditions contained herein, your sole and exclusive remedy is to terminate your participation in the Program by giving us written notice as provided below. Notwithstanding anything contained in this Agreement to the contrary, we may, in our sole discretion, suspend or terminate your account and/or discontinue your participation in the Program or any other Shopperbuzz service or product at any time. All decisions made by us in this matter will be final and you agree that we shall have no liability to you or anyone else with respect to such decisions. No Advertiser shall have any vested right or enforceable interest to participate in the Program. Notices. We may give general notices to participating Advertisers by postings on the Business Services portion of www.Shopperbuzz.org (using commercially reasonable efforts to notify you via email of any such postings), and you agree to be bound thereby. Notices specific to you will be sent, if possible, by electronic mail to your email address, or otherwise by U.S. mail, overnight delivery service or in person. You may give notice to us by email to [email protected] .org, or otherwise by U.S. mail, overnight delivery service or in person. Section A (3) (Advertising Charges and Payment) shall survive termination of this Agreement.
- MANDATORY ARBITRATION AND DISPUTE RESOLUTION.
- Explicitly excluding any payment obligations under Section A(3) to this Agreement, in the event of any dispute between the parties arising from or in any way related to this Agreement, appropriate representatives of each party shall meet, within thirty (30) days after the written request of either party, and attempt to negotiate or mediate a mutually-agreeable resolution before either party shall commence any arbitration proceeding or other legal action (as may be permitted by this Agreement). If such negotiation or mediation does not resolve the issue to the mutual satisfaction of the parties within sixty (60) days after such written request, then all disputes arising out of, relating to or connected with this Agreement will be exclusively resolved in Montreal, Quebec, Canada. Any arbitrator’s award may be enforced by a federal or provincial court located in Montreal, Quebec, Canada. No arbitration proceeding or other legal action may be commenced regarding any disputes arising out of, relating to or connected with this Agreement more than one (1) year after the date that the alleged breach or other grounds for dispute originally occurred.
- For avoidance of doubt, Section B(13)(i) and/or any arbitration rights under this Agreement shall not apply to any dispute or claim arising of related to any payment obligations incurred in connection with this Agreement, which shall be exclusively settled by the competent courts in accordance with Section B(15).
- Amendment; Additional Terms.
- In certain instances it may be necessary to update or modify this Agreement to reflect updates to our business practices and policies, and for other reasons. We also may, in some instances, need to provide you with operating rules, guidelines, policies or additional terms that govern your participation in our Program (“Additional Terms”). You agree that we may at any time provide you with Additional Terms, or update or modify this Agreement, as appropriate or necessary. To the extent any Additional Terms conflict with this Agreement, the Additional Terms will control.
- In the event we modify this Agreement or any Additional Terms, we will send notice to you at the email address we have on file and by posting notice of such modifications in the Business Services portion of www.Shopperbuzz.org. Unless you notify us within ten (10) days of the day we send the email notice to you or post the modifications consistent with this Agreement, whichever occurs last, you will be deemed to have accepted the new terms. Notwithstanding the foregoing, your continued participation in the Program after the posting of modifications to this Agreement and/or any Additional Terms will signify your assent to and acceptance of the new terms.
- Choice of Law/Venue. This Agreement shall be governed by and construed under the laws of the Province of Quebec. The sole and exclusive jurisdiction and venue for any dispute under this Agreement shall be the appropriate state or provincial court sitting in Montreal, Quebec, Canada. By submitting and completing your registration on Shopperbuzz ’s website or otherwise signifying your acceptance of this Agreement, you and your Affiliates and/or Advertiser Partners irrevocably submit to the personal jurisdiction of such courts.
- No Trial by Jury/Class Action. Both parties hereby irrevocably waive any right to a trial by jury or to join claims with those of others in the form of a class action or similar procedural device for any dispute arising under this Agreement, whether brought in court or arbitration. If for any reason any court or arbitrator holds that the class action restriction set forth in his Section is unconscionable or unenforceable, then the terms of Section 10 shall not apply and the classwide dispute must be brought in court.
- Independent Contractor. Nothing in this Agreement is intended or should be construed to create a joint venture, partnership, franchise, agency or similar legal arrangement between Shopperbuzz and you or any other Advertiser or agency. Each of the parties are independent contractors under this Agreement.
- Miscellaneous. If there is any conflict between the English version of this Agreement and any translated version we may provide, the parties agree that the English version will control in all instances. No waiver by either party of any breach or default under this Agreement shall be deemed a waiver of any other breach or default. Neither the course of conduct between any member nor trade practices shall act to modify any provision of this Agreement. The section headings used in this Agreement are for convenience only and shall not be given any legal import. If any part of this Agreement is deemed invalid, unlawful or unenforceable for any reason, the parties agree that only that part of the Agreement shall be stricken and that the remaining terms in this Agreement shall remain in full force and effect and in no way shall be affected, impaired or invalidated. You may not assign this Agreement or assign any rights or delegate any obligations hereunder, in whole or in part, without our prior written consent. This Agreement (including any Additional Terms incorporated by reference) constitutes the entire agreement, and supersedes all previous written or oral agreements, between you and Shopperbuzz in connection with the Program. Without limiting the foregoing, any Advertiser clickwrap or online agreement shall be ineffective to modify the terms of this Agreement, even if assented to by a representative of ShopperBuzz after the execution of this Agreement; any such assent will be deemed a mere technical necessity to access Advertiser’s program and services governed by this Agreement and thus will have no binding effect. Advertiser hereby consents that Shopperbuzz may assign, transfer or delegate this Agreement without notice to Advertiser. Subject to the foregoing, this Agreement shall be fully binding upon, inure to the benefit of, and be enforceable by, the parties hereto and their respective successors and permitted assigns.
- No amendments or modifications may be made to this Agreement without the express written consent of Shopperbuzz .
- During the Term of the Agreement and for one (1) year thereafter, neither Advertiser nor any of its affiliates, directly or indirectly, either on behalf of itself or any third party, may with respect to any partner that Advertiser (or any of its affiliates) knows, reasonably should know, or subsequently learns has a relationship with ShopperBuzz or has had a relationship with the other ShopperBuzz during the Term: (a) take any action, or plan to take any action, with the purpose or effect of circumventing ShopperBuzz relationship with such partner; (b) encourage any partner to reduce or terminate its relationship with ShopperBuzz; (c) otherwise engage, or continue to engage, with such partner to provide products or services competitive with those offered by ShopperBuzz; or (d) take any action with the purpose or effect of aiding any partner to violate any agreement it has or had with ShopperBuzz, including without limitation any exclusivity provisions.
- During the term of the Agreement and for two (2) years thereafter, neither Advertiser nor any of its Affiliates, directly or indirectly, either on behalf of itself or any third party, may knowingly solicit or engage in any communication with any current employee of ShopperBuzz or its Affiliates, or any individual who was an employee or contractor of ShopperBuzz, with the purpose or effect of inducing such person to terminate his or her employment with ShopperBuzz or its Affiliates or compensating or engaging such person in any way to compete with the products or services of ShopperBuzz. In the event that any provision of this Section 20 is held to be in any respect an unreasonable or unenforceable restriction, then such provision shall not be void or voidable, but shall be deemed reformed, or shall be deemed excised from this Agreement, as the case may require, in such jurisdiction and this Agreement shall be construed and enforced to the maximum time, geographic, product or service, or other limitations permitted by applicable law as if such provision had been originally incorporated herein as so modified or restricted, or as if such provision had not been originally incorporated herein, as the case may be.
- The Parties agree that any breach of Advertiser’s obligations under Section 19 and/or 20 would result in irreparable injury, and that in the event of any breach or threatened breach hereof, ShopperBuzz will be entitled to seek injunctive relief in addition to any other remedies to which ShopperBuzz may be entitled, without the necessity of posting bond.
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