This is an agreement between you and Spendsetter, Inc. (“Spendsetter,” “we,” “us,” and “our”), the owner and operator of the Spendsetter website (the website at Spendsetter.com) and the Spendsetter mobile and online technology platforms. This agreement governs: your use of the (1) the Spendsetter website, (2) the Spendsetter mobile application, (3) other Spendsetter mobile application platforms and online platforms, (4) any mobile application, website or online platform that uses or incorporates Spendsetter’s technology and software, and (5) the promotion of certain brand advocacy campaigns (each a “Campaign”) through such websites, mobile applications, or online platforms (collectively, the “Services”).
BY REGISTERING FOR AND/OR USING THE SERVICES, YOU AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT, AND ALL OF SPENDSETTER’S POLICIES AND GUIDELINES, WHICH ARE INCORPORATED BY REFERENCE.
Eligibility. If you wish to access and use Spendsetter’s Services must accept the terms and conditions of this agreement without change. You may not use the Services or accept the terms of this agreement if: (a) you are not of legal age to enter into a binding contract; or (b) you are a person prohibited by the laws of the United States of America or any other country from using the Services. In order to use the Services, you must have certain internet and computer functionality.
Spendsetter offers a venue for you and your customers, your brand advocates; and users of your websites, online platforms and mobile applications (collectively, “Customers”) to connect by providing you with mobile and online platforms to use for the creation of Campaigns. Such Campaigns aim to raise brand awareness and develop new channels of communication between you and your Customers. Spendsetter is not directly involved in any transaction between you and your Customers or in any Campaign planning unless an agreement has been entered for Managed Services. Spendsetter does not pre-screen Customers and has no control over Customers or the accuracy of information provided by Customers. Spendsetter cannot guarantee the true identity of a Customer.
You acknowledge and agree that Spendsetter shall not be responsible or liable for any content posted on or provided through the Services by Customers or by you. You use the Spendsetter Services at your own risk.
To access and use the Services, you must register for an account (an “Account”). You acknowledge and agree that, when you elect to access or use certain Services, in consideration for your use of such Services, you will: (a) provide complete and accurate information about yourself or your company, where applicable, in the required fields of any registration form, and (b) promptly update such information to keep it accurate, current, and complete. If you provide any information that is untrue, inaccurate, not current, or incomplete, or if we have reasonable grounds to suspect that the information not true, accurate, current, or complete, we may suspend or terminate your Account and/or refuse any current or future use of the Services. If you create an Account on behalf of a legal business entity, your registration information must accurately reflect your role and relationship to that entity. Accounts are not transferrable, except that responsibility for an Account for a legal business entity may be transferred to another designated user on behalf of that entity.
As part of the registration process for the Services, you will receive a password and Account designation. You agree to keep the password confidential, and acknowledge that you are responsible for all activities that occur under your password or Account. You agree to notify us immediately of any unauthorized use of your password or Account. We cannot and will not be liable for any loss or damage arising from your failure to comply with these requirements concerning your password and Account usage or if a third party accesses your Account due to theft or misappropriation.
You agree that you will not misuse or abuse your Account access and/or passwords, including, without limitation, giving access to third parties or allowing third parties to gain access to information from the Services through you.
By listing Campaigns through the Services, you agree to provide and maintain complete and accurate information relating to the Campaign. You are solely responsible for creating, reviewing, editing, managing, deleting, and otherwise controlling the content of Campaign listings on the Services. This includes all descriptions of Campaigns and other disclosures or disclaimers required by any applicable laws. Spendsetter and its affiliates will bear no responsibility for inaccurate or incomplete information concerning your Campaigns or activities. You agree that Spendsetter has no obligation to back-up any data related to your listings and you should independently take appropriate steps to maintain such data in accordance with your needs.
By entering into this agreement and participating in the Services, you agree to the following:
- (a) Campaign Descriptions: You agree to complete the actions described in your Campaign listing. Each listing must accurately describe the Campaign and any applicable terms and conditions.
- (b) Representations: You represent and warrant that you and all aspects of your Campaign comply with all of Spendsetter’s applicable policies and any applicable laws or regulations.
- (c) Fulfillment of Campaign and Market Place Rewards: All transactions you or your Customers make through the Services are binding. You are obligated to ship merchandise to a Customer who has claimed such merchandise or is otherwise entitled to such merchandise pursuant to the terms of your Campaign or your Market Place Rewards. Spendsetter is in no way obligated under the underlying Campaign terms and conditions. You agree to monitor, track, fulfill and manage all Campaigns and any Market Place Rewards you may have for Customers. Spendsetter merely facilitates the Campaign and tracking of Customer activity and related information.
Prohibited. You agree not to upload to the Services or otherwise post, transmit, distribute, or disseminate through the Services any material that:
- (f) is false, misleading, unlawful, obscene, indecent, lewd, pornographic, defamatory, libelous, threatening, harassing, hateful, inflammatory, abusive;
- (g) encourages conduct that would be considered a criminal offense or gives rise to civil liability;
- (h) breaches any duty toward or rights of any person or entity, including rights of publicity or privacy;
- (i) contains corrupted data or any other harmful, disruptive, or destructive files;
- (j) advertises products or services competitive with Spendsetter’s or its affiliates’ products and services, as determined by Spendsetter in its sole discretion; or
- (k) in Spendsetter’s sole judgment, is objectionable, restricts or inhibits any person or entity from using or enjoying any portion of the Services, or which may expose Spendsetter, its affiliates, or users to harm or liability of any nature. Spendsetter has no obligation to screen, edit, or monitor any mobile or online content uploaded by you or a Customer, but we reserve the right to remove, screen, edit or disable any content that violates the above. We take no responsibility and assume no liability for any content submitted by you or any Customer, including any loss or damage to any of your content.
Spendsetter is entitled to revise the amount of the subscription and/or fees for its Services. Such revision in the Fees shall from time to time be updated and published on Spendsetter’s website or through written notice to you. As such, you should check the Fees at each renewal period.
When you purchase a subscription to the Services provided by Spendsetter, you agree not to resell the subscription to other users. Subscriptions are non-transferable and non-refundable. When providing payment, you agree that you are authorized to use the payment source provided to Spendsetter. All sales and payment transactions are final. When you complete a purchase transaction, you agree to be bound by and pay for that transaction.
If you register for an Account, you will have the ability to post certain information, images, text, graphics, links, audio, and/or video on mobile and online platforms when you use the Services (collectively, “User Content”). You remain the owner of any User Content. By posting User Content you grant Spendsetter an irrevocable, perpetual, non- exclusive, transferable, fully paid worldwide license (with right to sublicense) to use, copy, display, reformat, edit, translate, excerpt and distribute such User Content in any media in connection with the Services and Spendsetter’s business, including without limitation for promoting the Services. By posting User Content, you also represent and warrant that you either own or have permission to post the User Content; that no third party rights will be violated by such posting; and that you have the right to grant Spendsetter the rights granted herein.
Spendsetter Intellectual Property
Except all User Content, Spendsetter owns and has all title to its website, Services, its technology platforms, online platforms, and mobile applications, including but not limited to, its software, object and source code, graphics, trade secrets, text, designs, logos, service marks and trademarks of Spendsetter (“Spendsetter Intellectual Property”). Reproduction of any portion of the Spendsetter Intellectual Property requires express written permission from Spendsetter. You may not disassemble, reverse engineer, decompile, sell, transfer, or distribute Spendsetter Intellectual Property. Spendsetter may permit you to use Spendsetter logos, trademarks, or service marks in certain ways to promote the Campaigns and/or the Services. If Spendsetter discovers that you are using any of Spendsetter Intellectual Property in an inappropriate or unauthorized manner, Spendsetter may terminate your Account or this agreement, with or without notice, and may pursue all available remedies for such intellectual property infringement.
Except as may be expressly permitted by applicable law or expressly enabled by a feature of the Services, you will not, and will not permit anyone else to: (a) store, copy, modify, or distribute the Services or any of the content made available on the Services; (b) compile or collect any content available on the Service as part of a database or other work; (c) use any automated tool (e.g., robots, spiders) or manual process to monitor, store, copy, modify, distribute, or resell any content from the Services; (d) reproduce, duplicate, copy, sell, resell, or exploit for any commercial purposes any the Services or any portion of the Services; (e) circumvent or disable any digital rights management, usage rules, or other security features of the Services, or any content available on the Services; (f) use the Services in a manner that threatens the integrity, performance, or availability of the Services; or (g) remove, alter, or obscure any proprietary notices (including copyright notices) on any portion of the Services or any content available from the Services.
Compliance with applicable laws and policies
You agree to comply with all relevant laws regarding online conduct and content and all applicable laws relating to your Campaign or use of the Services. You also agree to comply with Spendsetter’s policies and terms and conditions that it publishes on its website and through the Services. Should any policies or terms and conditions conflict with the provisions herein, the terms and conditions of this Agreement shall govern.
Your use of the Services includes accessing personal information that you have obtained from your Customers. By using our Services in conjunction with your commercial website, you acknowledge and agree that we may use “cookies” or other web beacons to track visitors to your website in order to enhance the Services. You warrant and represent that you have obtained all necessary consents for any collection, use and disclosure of your Customers’ personal, sensitive or financial information through the Services, including the use of such “cookies” and web beacons. For clarity, Spendsetter’s indemnification rights in Section 16 of these Terms shall extend to any claims by a third party that our collection, use or disclosure (intended or otherwise) of their personal information constitutes a breach of their privacy or data protection rights
Spendsetter uses the information it collects from all of its Services to provide, maintain, protect and improve them and to develop new ones.
You are solely responsible for all applicable taxes, tax obligations, and for determining whether taxes apply to your transactions in connection with the Services. You agree that Spendsetter is not responsible for determining whether you or your Customers owe taxes relating to any transactions, Campaign, loyalty programs, or for collecting or remitting such taxes. At Spendsetter’s request, you agree to provide relevant taxpayer identification or other tax related information to Spendsetter.Amendments to Agreement. Spendsetter may update this agreement at its sole discretion, and you may be asked to review and agree to a revised version. By continuing to use the Services after notice has been provided to you regarding any amendment or revised agreement, you shall be deemed to agree to such new terms. If at anytime you become no longer able to comply with the terms of the current version of this agreement, this agreement will automatically terminate and Spendsetter may deactivate your Account such that you will not be able to use the Services.
Website and Program Updates
Spendsetter may modify or update the Services and apply patches, updates and modifications to the Services at any time, without notice or liability.
This agreement is effective until the pre-agreed upon End Date. In the event that you terminate or breach this agreement, you will forfeit your right to use any and all Services. Spendsetter reserves the right to terminate this agreement, your Account, or your access to the Services (or any portion thereof) at any time with or without notice to you. For example, but without limitation, if you breach this agreement, or if Spendsetter learns that your Account is used for any unauthorized or inappropriate activity, Spendsetter may suspend, terminate, modify, or delete your Account or this agreement with or without notice to you.
You agree to indemnify and hold harmless Spendsetter, and its subsidiaries, officers, agents, and employees, from any claim or demand by any third party relating to or arising out of your use of the Services, including but not limited to, the use of any Account, the Spendsetter website, mobile or online portal or applications, your Campaigns, your violation of this agreement, or your violation of any rights of another person or entity.
THE SERVICES, INCLUDING ANY CONTENT OR INFORMATION CONTAINED WITHIN OR PROVIDED THROUGH THE SERVICES, ARE PROVIDED “AS IS” WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON- INFRINGEMENT.
YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SERVICES AND ANY TRANSACTIONS OR INFORMATION RECEIVED THROUGH THEM.
SPENDSETTER DOES NOT WARRANT THE SUITABILITY, QUALITY, VALIDITY, ACCURACY OF THE SERVICES OR THAT THE FUNCTIONS CONTAINED ON THE SPENDSETTER WEBSITE, MOBILE APPLICATION OR ONLINE PLATFORM OR OFFERED IN CONNECTION WITH THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS OR INACCURACIES WILL BE CORRECTED. SPENDSETTER MAKES NO COMMITMENT TO UPDATE ITS SERVICES OR TO MAKE ANY CHANGES TO THE SERVICES.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Limitation of Liability; No Consequential Damages.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SPENDSETTER, INC. AND/OR ITS SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF THE SERVICES, WITH THE DELAY OR INABILITY TO USE THE SERVICES, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS OBTAINED THROUGH THE SERVICES, OR OTHERWISE ARISING OUT OF THE USE OF THE SERVICES, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF SPENDSETTER, INC. AND ITS RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
By using the Services, you consent to receive commercial electronic communications and you agree that all agreements, notices, disclosures and other communications that we provide to you electronically, via email and on the website, satisfy any legal requirement that such communications be in writing.
The Spendsetter website may contain links to other sites on the Internet that are owned and operated by third party vendors and other third parties. We are providing these links solely as a convenience. The appearance of a link does not imply our endorsement of the link/site, nor are we responsible for the content of any linked site. You access linked sites at your own risk.
This agreement and the relationship between you and Spendsetter shall be governed by the laws of the State of Tennessee. You hereby consent to the exclusive jurisdiction of the federal and state courts located in the State of Tennessee for all purposes in connection with any action or proceeding which arises out of or relates to your use of the Spendsetter website, online and mobile platforms and applications, the Services, and this agreement. Spendsetter’s failure to enforce any right or provision of this agreement does not constitute a waiver of that right or provision.
Effective Date: November 1, 2014