SNAGSHOUT MERCHANTS – TERMS OF SERVICE

Revised and Effective: October 12, 2016

 

THESE TERMS OF SERVICE (INCLUDING ALL OTHER TERMS AND POLICIES REFERENCED AT SECTION 2 BELOW, THIS “TOS”) CONSTITUTE A LEGAL AGREEMENT BETWEEN US AND YOU, REGARDLESS OF YOUR CORPORATE FORM OR IF YOU ARE AN INDIVIDUAL, AND IT GOVERNS YOUR USE OF, AND DEALINGS WITH, US, OUR WEBSITE, FUNCTIONS AND FEATURES LOCATED AT WWW.SNAGSHOUT.COM (“SNAGSHOUT”) AND ANY SERVICES WE PROVIDE IN CONNECTION WITH SNAGSHOUT.  We”, “us” and “our” refers to Snagit, LLC, a limited liability company organized under the laws of the State of Georgia, U.S.A.    

 

YOU SHOULD READ THIS TOS CAREFULLY AND RETAIN A COPY FOR YOUR RECORDS.  THIS TOS IS A LEGALLY-BINDING AGREEMENT THAT CONTAINS YOUR BINDING AGREEMENT TO ARBITRATE DISPUTES, YOUR CONSENT TO PERSONAL JURISDICTION IN THE STATE OF GEORGIA, U.S.A., RELEASES OF CERTAIN CLAIMS AND LIABILITIES AGAINST US, AND YOUR WAIVER OF YOUR RIGHT TO BRING OR PARTICIPATE IN A CLASS ACTION AGAINST US.

 

BY REGISTERING TO USE SNAGSHOUT, AND AGAIN EACH TIME YOU LOG INTO SNAGSHOUT, (A) YOU ARE ACKNOWLEDGING THAT YOU HAVE READ AND UNDERSTAND THIS TOS AND ANY CHANGES THAT MAY HAVE BEEN MADE TO IT SINCE YOU PREVIOUSLY LOGGED-IN; (B) YOU ARE REPRESENTING THAT YOU ARE EIGHTEEN (18) YEARS OF AGE OR OLDER AND OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT WITH US; (C) YOU ARE ACCEPTING THIS TOS AND AGREEING THAT YOU ARE LEGALLY BOUND BY THIS TOS, (D) YOU ARE AGREEING THAT THIS TOS WILL BE DEEMED TO SATISFY ANY REQUIREMENT UNDER APPLICABLE LAW THAT AN AGREEMENT BETWEEN YOU AND US BE IN WRITING AND (E) YOU ARE AGREEING THAT YOUR ACTIONS IN REGISTERING FOR OR LOGGING INTO SNAGSHOUT WILL BE DEEMED TO BE YOUR VALID AUTHENTICATED SIGNATURE FOR PURPOSES OF ANY APPLICABLE LAW REQUIRING THAT THIS TOS BETWEEN YOU AND US BE SIGNED BY YOU IN WRITING.

 

IF YOU ARE ENTERING INTO THIS TOS ON BEHALF OF A COMPANY OR OTHER LEGAL NON-PERSON ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THAT PERSON OR ENTITY TO THIS TOS, AND REFERENCES TO “YOU” AND “YOUR” IN THIS TOS WILL ALSO BE READ TO REFER TO THAT PERSON OR ENTITY. 

 

IF YOU DO NOT AGREE TO THESE TERMS OR IF YOU ARE NOT AT LEAST EIGHTEEN (18) YEARS OF AGE AND OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT WITH US, YOU ARE PROHIBITED FROM REGISTERING FOR OR LOGGING INTO SNAGSHOUT.

 

1.         CHANGES TO TOS

. This TOS specifically includes any other terms or policies available on Snagshout that are applicable to you, all of which are incorporated into this TOS by this reference herein, including but not limited to any applicable pricing terms and privacy policy. We may revise and update this TOS from time to time in our sole discretion.  All changes are effective immediately when we post them and become binding on you the next time you log into Snagshout.  YOU WILL BE ABLE TO REVIEW THIS TOS FOR CHANGES BEFORE LOGGING IN TO SNAGSHOUT, AND YOU ARE RESPONSIBLE FOR REVIEWING THIS TOS FOR CHANGES EACH TIME YOU LOG INTO SNAGSHOUT.  LOGGING INTO SNAGSHOUT AFTER THE POSTING OF THE REVISED TOS MEANS THAT YOU ACCEPT AND AGREE TO THE CHANGES AND THEY ARE BINDING ON YOU.  However, such changes do not have retroactive effect, and only apply to your use of Snagshout after the date you accept such changes.  Without limiting the foregoing, any changes to the section titled “Dispute Resolution” will not apply to any claims or disputes of which you or we have actually notified the other on or prior to the date the change is posted on Snagshout. YOU AGREE THAT CLICKING A “REMEMBER ME” OPTION OR SIMILAR FUNCTION TO AVOID THE NEED TO MANUALLY LOG IN CONSTITUTES YOUR LOG-IN AND REVIEW OF AND ACCEPTANCE OF THIS TOS EACH TIME YOU ACCESS SNAGSHOUT WHILE THE “REMEMBER ME” OPTION REMAINS EFFECTIVE.

2.         CORE FUNCTIONALITY OF SNAGSHOUT; CHANGES TO SNAGSHOUT

.  Snagshout generally allows merchants who have registered with Snagshout to set-up and administer Campaigns. A “Campaign” means that the merchant uses Snagshout to make available (on a limited-time/limited quantity basis) promotional codes for a price discount on a specific good offered by the merchant (a “Product”) to consumers who have registered with Snagshout (“Shoppers”). Each promotional code made available through Snagshout is a “Snag”.  Shoppers may claim and redeem available Snags to purchase the Product at certain online retailers such as Amazon.com, and we encourage (BUT DO NOT REQUIRE) Shoppers to tell others about the deal or Snag they got on Snagshout (a “Shout”).  This is the “Core Functionality” of Snagshout. 

From time to time, we may add, delete and/or modify features and functionalities of Snagshout as we deem necessary or desirable in our sole business discretion.  However, if such addition, deletion and/or modification removes the Core Functionality, you may terminate use of Snagshout and this TOS and receive a refund of an equitable portion of any unused prepaid fees paid to us by giving written notice to us within thirty (30) days after the Core Functionality was removed, which right of termination and refund (if any) WILL be your SOLE AND EXCLUSIVE REMEDY FOR ANY CHANGES TO THE FEATURES OR FUNCTIONALITIES OF SNAGSHOUT.  With respect to new or additional features and functionalities, additional terms and/or fees may apply to these features, and using such new or additional features after notice of such additional terms and/or fees constitutes your consent to such additional terms and fees, which WILL become part of this TOS (and if such additional terms conflict with other terms of this TOS, they will control with respect to such new or additional features).

ALL OF OUR OBLIGATIONS AND UNDERTAKINGS UNDER THIS TOS ARE SUBJECT TO ALL POLICIES OF THE APPLICABLE ONLINE RETAILERS, WHICH POLICIES MAY BE CHANGED FROM TIME TO TIME BY THE APPLICABLE ONLINE RETAILER.  WE HAVE NO CONTROL OVER SUCH POLICIES OR CHANGES, NOR WILL WE HAVE ANY LIABILITY TO YOU FOR OUR FAILURE TO PERFORM OR FOR YOUR INABILITY TO FULLY USE SNAGSHOUT AS A RESULT OF ANY SUCH POLICIES OR CHANGES.

3.         PERMISSION TO USE SNAGSHOUT

.  Subject to all terms and conditions of this TOS, including without limitation the payment of all applicable charges and fees, we grant you a limited non-exclusive, personal, nontransferable, nonassignable, non-sublicenseable, revocable license, only when you are in compliance with all terms and conditions of this TOS and this TOS has not been terminated, to access and use available features of Snagshout to set-up, operate and administer Campaigns that comply with all terms and conditions of this TOS.  

You may not make any other use of Snagshout not specifically permitted in this TOS without our prior express consent in writing.  Without limiting any other term of this TOS, you agree that you will not and WILL cause all of Your Users to not: (i) do any act not expressly permitted by this TOS, or access or use Snagshout in violation of this TOS or in violation of any applicable laws, rules or regulations; (ii) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available Snagshout or your right to access or use Snagshout to any third party in any way (unless we have given you express permission to do so); (iii) copy, modify, adapt, publicly display or publicly perform or create derivative works of Snagshout or any portion thereof (including any content that is not Your Content), or decompile, reverse assemble, or otherwise reverse engineer Snagshout or any portion thereof, except to the extent otherwise expressly permitted by law; (iv) attempt to gain unauthorized access to, or otherwise impair the security of, Snagshout or any information accessible thereby (including information of third parties) or any systems or data of us or a third party (including any other user of Snagshout); or (v) use Snagshout to process, store, transmit or receive any information or materials if prohibited under this TOS or by applicable laws, rules or regulations. This paragraph will survive termination of this TOS for any reason.

4.         RESPONSIBILITY FOR YOUR USERS

.  “Your User(s)” means each person or entity who accesses or uses Snagshout by or through you, your account or user IDs and passwords (whether or not such access or use is authorized by you). You are responsible for all activity occurring under your account and all acts and omissions of Your Users, including for all charges under your account or incurred by Your Users. You agree that any acts or omissions of Your Users that would constitute a breach of this TOS or failure of a condition if committed by you will be deemed to be a breach of this TOS or failure of such condition by you, and you will be responsible and liable for all such acts or omissions. This Section will survive termination of this TOS for any reason.

5.         REGISTRATION; ACCOUNT INFORMATION

. To use Snagshout, you must provide all information we request to establish, register and confirm your account with Snagshout (for example, identification and contact information, billing and payment information) and to establish access credentials (for example, user IDs and passwords). You will ensure that all such information is kept current, complete, truthful and accurate at all times. You will keep all account information (including user IDs and passwords, and other means to access non-public portions of Snagshout) confidential and disclose them only on a “need-to-know” basis. 

6.         ELECTRONIC COMMUNICATIONS; CONNECTIVITY

.  You consent to use and receipt of electronic communications and records related to Snagshout or your account (which communications and records may include, without limitation, notices related to Snagshout requiring your attention, agreements and policies, and payment authorizations and transaction receipts or confirmations). You give us permission to provide these communications and records to you electronically instead of in paper form. You also consent to the use of electronic signatures by you and us, and such electronic signatures will be deemed to satisfy any requirement under applicable law that an agreement, or that your signature to the agreement, be in writing.

Minimum hardware, software and connectivity requirements for you and Your Users to use Snagshout and make and receive electronic communications, records and signatures include: (i) a valid email address and current mail client; (ii) a connection to the Internet; (iii) currently-supported versions of a web browser and any necessary plug-ins; (iv) a currently-supported version of a program that accurately reads and displays PDF files, such as the current version of Adobe Acrobat Reader; (v) a computer or device and an operating system capable of supporting all of the above; and (vi) a printer to print out and retain records and notices in paper form or electronic storage to retain records and notices in an electronic form. You are solely responsible for procuring and maintaining all such necessary hardware, software and connectivity at all times.   

We have NO LIABILITY for your inability to fully use Snagshout or to receive, make or act upon such electronic communications, records or signatures if caused by (i) your failure to procure and maintain all necessary hardware, software and connectivity, (ii) any act or omission of any third party (including any provider of such hardware, software and connectivity), or (iii) your failure to keep all contact information, billing and payment information and other account-related information current, truthful, complete and accurate at all times.  You may withdraw these consents by giving us notice in writing – however, IF YOU WITHDRAW YOUR CONSENT TO RECEIVE SUCH RECORDS AND NOTICES ELECTRONICALLY OR TO USE ELECTRONIC SIGNATURES, YOU WILL NO LONGER BE PERMITTED TO USE SNAGSHOUT.

7.         CAMPAIGNS.

            7.1       Creation of Promotional Codes

.  Prior to setting up a Campaign, you must first create a valid promotional code (or a set of valid one-time-use promo codes) for the Product with an online retailer who is then-currently supported by us. You are responsible for creating promotional code(s) in accordance with this TOS and any required policies and procedures of the applicable online retailer, and for ensuring that the promotional codes have start and end dates that match or exceed the start and end dates for the Campaign that you will set up with Snagshout. You are also responsible for ensuring that your promotional codes pertain to the correct Product and the correct online retailer and accurately reflect your intended number of codes, discount amount/pricing and any additional terms or limitations that apply to the promotional codes or their use (such as specifying that promotion codes are limited to “One Redemption Per Customer”.)  We are not responsible for, and will have NO LIABILITY FOR, any issues caused by errors or inaccuracies in promotional codes or quantities of promotional codes, or caused by any terms applicable to the codes.

            7.2       Campaign Set-up

.  Once you have created the promotional code(s) (and provided you have paid us any applicable fees for the Campaign), you must then set up your Campaign on Snagshout by providing Snagshout and us with all information and materials we need to provide the Campaign through Snagshout.  This includes, but may not be limited to:

  • The promotional codes you created (indicating to us whether the codes are one-time use or multiple-use codes);
  • Start date and end date for the Campaign;
  • Who can view your Campaign or claim a Snag (using selection criteria we make available);
  • Identifying the applicable online retailer and Product to which the Campaign and Snags pertain (for example, by providing the unique product identifier assigned by the online retailer—for Amazon.com, this would be the Amazon Standard Identification Number (ASIN).)  However, note that you are responsible for verifying the accuracy of the product identifier you provide, as the same product may be referred to by several different identifiers, and different national sites of the same retailer may use a different identifier for the same product);
  • Product name, keywords, description and retail price for the product shown on the applicable online retailer;
  • Shipping terms (for example, for Amazon.com, this may be FBA (fulfilled by Amazon) or MFN (Merchant Fulfillment Network - when you ship products that customers order on Amazon directly from your own facility or warehouse);
  • Which Snagshout product category(ies) the Campaign is to be listed in;
  • The promotional price (the price after the discount associated with the Snag is applied);
  • Total quantity of Snags available during the Campaign and any daily limit on the number of Snags that may be redeemed; and
  • Any other information or materials we may request in connection with the Campaign (including, for example, evidence of product liability insurance reasonably acceptable to us).

 

You agree and acknowledge that we are entitled to rely fully on all information and materials you provide (or that are provided at your direction or on your behalf) to Snagshout and we have no obligation to investigate or verify any such information for accuracy or completeness. 

 

That being said, we have no obligation to proceed with a Campaign where (i) the Product or information you provide is incomplete (as determined by us) or does not comply with this TOS, or (ii) you have designated an incorrect or inappropriate Snagshout product category (as determined in our discretion). If we determine that you have designated an incorrect or inappropriate Snagshout product category, we may re-designate the Product and Campaign to the correct, appropriate Snagshout product category (as determined by us) and you agree that our designation will be final and binding. Additionally, we may choose to suspend a Campaign that has been previously approved if we find that the Campaign no longer complies with this TOS.

 

      7.3       Product, Discount and Campaign Description Must Be Accurate

.  Without limiting any other term of this TOS, you agree and warrant that all Product and Campaign information will be complete, accurate and not misleading, and will also be consistent with the listing for the Product on the applicable online retailer where the Snag will be redeemed.  For example: the discounted price identified in the Campaign will be the actual price the Shopper will pay (excluding applicable taxes, along with any applicable shipping charges that are clearly disclosed to the Shopper) if the Shopper redeems the Snag.  Similarly, you agree and warrant that your Product descriptions and depictions will match the actual item and quantity the Shopper will receive if redeeming the Snag for the Product (for example, you may not show pictures of multiple items or detail a three-pack of something, if you are only offering the Product singularly or the Snag may only be redeemed for a single Product). If any Product or Campaign information (including the actual price the Shopper will pay) changes before all Snags for the Campaign have been redeemed or expired (regardless of whether such change is caused by you or by a third party such as the online retailer), you agree to reimburse us for any expense, loss or damage we suffer as a result thereof, without limiting any other right or remedy we have under this TOS.

            7.4       Campaign Duration

.  Provided that the Campaign has been properly and completely set up, and subject to all terms and conditions of this TOS we will make commercially reasonable efforts to make the Campaign available on Snagshout from your stated start date until your stated end date for the Campaign.  However, we are not responsible for interruption or early termination of a Campaign where permitted by this TOS or where caused by factors beyond our reasonable control, including without limitation, unavailability of the applicable Product, your acts or omissions or acts or omissions of a third party, or any failure to procure an adequate number of Snags to last for the duration of the Campaign.  That being said, we have no obligation to withdraw or end a Campaign early for any reason, even if you request us to do so (including where a large number of Snags are being claimed but not actually redeemed for a purchase). Any unclaimed Snags remain with your account until used or expired.

            7.5       Our Assistance

.  From time to time, we may offer services to you to create promotional codes and/or set up or administer a Campaign for you.  If we agree to provide such services, our obligations are always subject to (i) payment of any additional fees we may require for performing such services and (ii) you providing us with any assistance, information or materials we need to perform such services.  Where our services include creation of promotional codes or other interaction with the online retailer on your behalf, you must also provide us with any access credentials to your account with the online retailer necessary to do so, and, by providing them to us, (i) you authorize us to use such access credentials to create such codes and interact with the online retailer on your behalf as your agent, and (ii) you represent and warrant to us that your provision of such access credentials, and our use of same on your behalf, will not violate any agreement you have with any third party (such as the online retailer).  Notwithstanding our role in any performance of such services, you agree that you bear final responsibility for reviewing and approving all promotional codes and other aspects of any resulting Campaign before the Campaign is launched to ensure its accuracy.

            7.6       Agreement to Honor Snags

.  You specifically agree to fully honor all Snags claimed by Shoppers in connection with a Campaign, without any limitation as to time (for example, an expiration or “use by” date) unless such limitation is specifically disclosed to the Shopper on Snagshout prior to the Shopper claiming the Snag. This paragraph will survive termination of this TOS for any reason.

            7.7       Prohibited Products, Campaigns and Information

.  Anything in this TOS to the contrary notwithstanding, we reserve the right to, at any time, refuse any information, Product or Campaign in our sole discretion (and if you have prepaid the fees for such Campaign and the Campaign has not yet launched, we will refund you the unused prepaid amount if you don’t elect to use the prepaid amounts for another Campaign for an acceptable Product).  You acknowledge certain goods are not permitted on Snagshout, and you agree to check with us prior to planning a Campaign to make sure that your proposed Product is one that we will permit on Snagshout.  Current examples of prohibited goods include, but are not limited to, (i) goods that are not, or whose offering, sale, import, export or transport are not, compliant with all applicable laws, rules and regulations, (ii) goods that make medical claims that cannot be adequately proven, (iii) goods of a sexual nature, (iii) goods marketed in a sexual way, (iv) goods related to female menstruation, and (iv) goods that may misrepresent their intended use.  We expressly reserve the right to supplement this list to add prohibited goods from time to time, as determined by us in our sole discretion.

In addition, we reserve the right to, at any time, suspend or terminate a Campaign or an associated Product, or refuse, delete, remove or disable access to any information or materials, WITHOUT ANY LIABILITY TO YOU, where required by applicable law, rule or regulation, or if we determine that it does not comply (or that you are not complying) in all respects with this TOS, or if we determine, in our sole discretion, that the information, materials Product or Campaign is unacceptable to us or could lead to liability on our part to any third party.  YOU SPECIFICALLY AGREE THAT YOU WILL NOT USE SNAGSHOUT IN CONNECTION WITH, OR PROVIDE US WITH, ANY INFORMATION, MATERIALS, PRODUCT OR CAMPAIGN THAT MEETS ANY OF THE FOLLOWING CRITERIA:

 

  • Relates to a prohibited or non-permitted good, as described in this TOS;
  • Is defamatory, harassing, indecent, obscene, offensive, false or misleading, threatening, abusive, invasive of privacy or hateful (as determined in our reasonable discretion);
  • Promotes sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, gender identity or age;
  • Does not comply (or whose processing, storage, transmission, receipt, offering, sale, import, export or transport does not comply) with all applicable laws, rules and regulations, promotes any illegal activity, or advocates, promotes or assists any unlawful act;
  • Misrepresents your identity or your or your Product’s affiliation with or endorsement by any person or organization;
  • Infringes or violates (or may be alleged to infringe or violate) any right of a third party (including intellectual property rights, contract rights, or privacy, publicity or other personal rights or the terms and conditions of any online retailer);
  • Is subject to, or would subject us to, data privacy, import/export or other legal obligations or regulations anywhere in the world with respect to such information or material or any goods or services to which such information relates;
  • Is confidential or proprietary to a third party (unless you can demonstrate to our satisfaction that you have obtained all necessary rights and consents to provide the same to us and for us to fully perform and to exercise the licenses granted in this TOS).

 

            7.8       External Promotion of/Linking to Campaigns

.           You are allowed to promote your Campaign to others (for example, via email or other Internet communication) during the term of the applicable Campaign.  However, you agree that any such promotion or communication (i) will be truthful and not misleading, (ii) will comply with all applicable laws rules and regulations, this TOS and any applicable terms and conditions of the applicable online retailer, and (iii) will not state or imply any endorsement or sponsorship by us of you, your Product or Campaign or state or imply any other false or misleading connection between us and you, your Product or Campaign. Your promotion or communication must contain a direct hyperlink to the Campaign on Snagshout, and you may use the Snagshout trademarks or service marks only as necessary to identify us and our services and for no other purpose. You agree to immediately cease any such promotion (or modify it in accordance with our request) if we determine that it does not comply with this Section.  

8.         PRICING AND PAYMENT

.  You agree to pay us all fees for purchases made from us and for services ordered from us.  Our current fees are listed at our Pricing Page (https://www.snagshout.com/pricing).  To the extent we provide any feature or services for which we charge a fee that is not listed at our Pricing Page (https://www.snagshout.com/pricing), we will provide you with notice of such fees prior to providing the feature or service (for example, by displaying the fee at the time you are using the Snagshout feature to which the fee applies, and your use of the Snagshout feature to which the fee applies constitutes your consent to such fee).

If you elect to use Snagshout under one of our subscription plans, you will pay a recurring subscription fee for access for the applicable subscription plan you select (monthly or annual) (the monthly or annual period for the plan you select is the “Subscription Period”).  Your Subscription Period begins on the day you select the applicable subscription plan, and automatically renews for another Subscription Period at the end of the current Subscription Period unless you notify us of nonrenewal (or your election to change to another subscription plan) no later than fifteen (15) days before the end of your current Subscription Period. For monthly plans, the Subscription Period is approximately thirty (30) days (but no later than the last day of the next month, if less than thirty (30) days), and, for annual plans, the Subscription Period ends on the anniversary of the day you selected the annual subscription plan.   Fees due or paid for a Subscription Period are not subject to being pro-rated.  We will automatically charge you subscription fees for the next Subscription Period upon each renewal.

Payment of all fees are due in advance, and we have no obligation to perform under this TOS during any period in which all fees due have not been paid in full.  We reserve the right to change fees by giving you notice or by updating the pricing shown on Snagshout, but these changes will only apply to purchases made or services or features used or ordered after the date the change is effective (or, for subscriptions, such changes will only apply to the next and subsequent Subscription Periods).  If you are paying by credit card, you must provide us at all times with a valid, current  credit card number and related billing information as a condition to using Snagshout, and we will automatically charge your credit card for any fees due, without the requirement of your signature or any additional action on your part. You represent that you are not a “consumer” within the meaning of the Electronic Funds Transfer Act (15 USC § 1693 et seq.) or California Business and Professions Code §17600, et seq.  Our fees do not include, and we are not responsible for, (i) any additional fees or charges imposed on you in connection with such payments by any financial institution, processor or intermediary, including interest charges, currency conversion fees or any processing fees, or (ii) any taxes, levies, or duties or similar amounts related to the fees or your use of Snagshout.  You are responsible for paying all of the foregoing, excluding only United States (federal or state) taxes based solely on our net income. Your obligations to pay amounts due will survive termination of this TOS for any reason.

9.         INTERACTIONS WITH SHOPPERS.

 

            9.1       Reviews

.  Some online retailers may permit Shoppers to leave reviews of you or your Products if they so choose.  You agree that you will not request that any Shoppers change or remove their review for any reason or offer them any inducement in exchange for doing so. YOU ALSO AGREE THAT YOU WILL NOT REPRESENT TO ANY SHOPPER (WHETHER THROUGH SNAGSHOUT OR IN OTHER COMMUNICATIONS) THAT LEAVING A REVIEW OR CREATING ANY OTHER CONTENT RELATING TO A SNAG, PRODUCT OR MERCHANT IS A REQUIREMENT, OBLIGATION OR CONDITION OF OR FOR CLAIMING OR REDEEMING A SNAG OR RECEIVING ANY PRODUCT. YOU AGREE THAT SHOPPERS ARE UNDER NO OBLIGATION TO LEAVE A REVIEW OR TO CREATE ANY SUCH CONTENT, AND ALLOWING A SHOPPER TO CLAIM OR REDEEM SNAGS DOES NOT CONSTITUTE COMPENSATION TO SUCH SHOPPER (INCLUDING FOR ANY REVIEW). YOU AGREE THAT WE DO NOT AND WILL NOT COMPENSATE SHOPPERS FOR REVIEWS OR OTHER CONTENT AND THAT YOU WILL NOT USE SNAGSHOUT TO OFFER SNAGS, DEALS OR PRODUCTS IN EXCHANGE FOR LEAVING A REVIEW OR FOR CREATING ANY OTHER CONTENT RELATING TO A SNAG, DEAL, PRODUCT OR MERCHANT.  This Section will survive termination of this TOS for any reason.

            9.2       No Guarantee of Sales

.  WE DO NOT GUARANTEE THAT ANY SNAG WILL BE CLAIMED BY A SHOPPER OR THAT ANY SNAG CLAIMED BY A SHOPPER WILL BE REDEEMED FOR, OR RESULT IN, A PURCHASE OR SALE OF PRODUCT OR OTHER FINANCIAL BENEFIT TO YOU.  Once a Shopper has claimed a Snag, it is entirely the responsibility and choice of the Shopper to redeem the Snag on the online retailer’s website and complete the purchase.  The Shopper may elect to not do so, or they may be prevented from doing so (for example, due to a problem with the promotional code for the Snag or with the online retailer’s website, or the Product may be unavailable).  WE HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY FAILURE TO CLAIM OR REDEEM A SNAG.  Once a Shopper has claimed a Snag, the promotional code for the Snag cannot be reclaimed by us and cannot be re-added to a Campaign for distribution to other Shoppers or returned to you or held in inventory for use in another Campaign.

            9.3       Interaction with Shoppers

.  

                        9.3.1    Communication with Shoppers

.  First, we are under no obligation to inform you of the identity of any Shopper for any reason, including the identity of any Shoppers who claimed a Snag but failed to redeem it for a purchase.  To the extent you communicate with a Shopper, you agree that all such communications (i) will consist only of transactional messages directly related to the Shopper’s transaction to purchase the Product for which they redeemed the Snag (for example, order status updates, returns, warranty claims), and (ii) will comply with all applicable rules and policies of the applicable online retailer (for example, Amazon's Prohibited Seller Activities and Actions) and all applicable laws, rules and regulations, including without limitation those relating to marketing communications.  Without limiting the foregoing, you specifically agree to not communicate with Shoppers to market or promote any goods or services other than the specific Product for which they redeemed the Snag, unless the Shopper has specifically given you prior consent to do so. This Section will survive termination of this TOS for any reason.

                        9.3.2    We Are Not a Party to Your Transactions

.  YOU AGREE THAT WE ARE NOT A PARTY TO ANY TRANSACTION OR INTERACTION BETWEEN YOU AND ANY THIRD PARTY (INCLUDING ANY SHOPPER OR ONLINE RETAILER), EVEN IF THAT TRANSACTION OR INTERACTION IS FACILITATED, IN WHOLE OR IN PART, BY OR THROUGH US OR SNAGSHOUT.  YOUR TRANSACTIONS AND INTERACTIONS WITH ANY THIRD PARTY, INCLUDING PAYMENT AND FULFILLMENT OF PRODUCTS, AND ANY OTHER TERMS, CONDITIONS, WARRANTIES OR REPRESENTATIONS ASSOCIATED WITH SUCH TRANSACTIONS OR INTERACTIONS, ARE SOLELY BETWEEN YOU AND SUCH THIRD PARTY AND YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT SUCH TRANSACTIONS AND  INTERACTIONS ARE AT YOUR OWN RISK. YOU AGREE THAT WE WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY KIND OR NATURE INCURRED AS THE RESULT OF, OR IN CONNECTION WITH, ANY SUCH TRANSACTION OR INTERACTION. YOU ALSO UNDERSTAND AND AGREE THAT IF THERE IS A DISPUTE BETWEEN YOU AND ANY THIRD PARTY, WE HAVE NO OBLIGATION TO BECOME INVOLVED. WE DISCLAIM ALL RESPONSIBILITY AND LIABILITY FOR THESE TRANSACTIONS AND INTERACTIONS TO THE FULLEST EXTENT PERMITTED BY LAW.  YOU HEREBY RELEASE US, OUR OFFICERS, EMPLOYEES, AGENTS AND SUCCESSORS IN RIGHTS FROM CLAIMS, DEMANDS AND DAMAGES OF EVERY KIND OR NATURE, KNOWN OR UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY RELATED TO YOUR TRANSACTIONS OR INTERACTIONS WITH ANY THIRD PARTY (INCLUDING ANY SHOPPER OR, ONLINE RETAILER), INCLUDING ANY DISPUTES ARISING IN CONNECTION THEREWITH.

10.       RESPONSIBILITY FOR PRODUCTS

.  AS BETWEEN YOU AND US, YOU ARE SOLELY RESPONSIBLE FOR ALL PRODUCTS AND ALL INFORMATION RELATED TO THEM, INCLUDING WITHOUT LIMITATION THEIR DESIGN, MANUFACTURE, QUALITY, MARKETING, SALE AND TRANSPORTATION. YOU SPECIFICALLY AGREE THAT WE ARE NOT A MANUFACTURER, DESIGNER, DISTRIBUTOR, IMPORTER, EXPORTER OR SELLER OF ANY SUCH PRODUCT. You agree to ensure that all orders for Products are fulfilled in a timely manner in accordance with the stated order terms and to otherwise comply with all laws, rules, regulations and contractual obligations applicable to the manufacture, offering, marketing, distribution, or sale of the Product, including any terms of use of the applicable online merchant and any laws, rules or regulations relating to import or export of the Product.  You agree to fully honor any warranties you give on the Product, along with any stated return or refund policies, in accordance with their terms.  You agree that you will collect and timely pay (as applicable) all applicable sales, use, excise, value-added or similar taxes, fees, assessments, or duties (or other similar charges) imposed by any government agency with respect to the importation, export or sale of Products or the conduct of your business. This Section will survive termination of this TOS for any reason.

11.       OWNERSHIP; YOUR CONTENT.

 

 

            11.1     Ownership

.  You agree that we (and our licensors, where applicable) own all right, title and interest, including all related intellectual property rights, in and to Snagshout, all content on Snagshout (other than Your Content) , all proprietary technology owned or used by us, or made available to you by us, and all modifications, enhancements and improvements to any of the foregoing. We hereby reserve all rights worldwide not specifically granted to you in this TOS, and you agree that you will not, and will cause all of Your Users to not, make any use of any of the foregoing in any manner or for any purpose whatsoever except as expressly permitted by the terms and conditions of this TOS.   The “Snagshout” name and logo, “Snag”, “Snag it” and the other product and service names and logos associated with Snagshout are trademarks or service marks of ours or of third parties, and no right or license is granted to you to use them for any purpose whatsoever.  This Section does not limit any rights or remedies we may have under any applicable laws, rules and regulations.

            11.2     License in Your Content

.  “Your Content” means any and all materials, data or information that you or any of Your Users delivers or makes available (or causes to be delivered or made available) to us or Snagshout (i) in connection with our performance hereunder or your use of Snagshout or (ii) that are utilized in connection with, or incorporated into, Snagshout.  “Your Content” includes, without limitation, information and materials relating to you, Products or Campaigns, promotional codes, or confidential information, trade secrets, copyrights, trademarks, patentable subject matter or intellectual property of you or of third parties. “Your Content” also specifically includes any information or material not owned by us which is accessible via any link created or provided by you or any of Your Users (or by us on your behalf or at your direction) to or from any portion of Snagshout.  

You grant to us a non-exclusive, perpetual, irrevocable, worldwide, royalty-free, assignable, transferable and sublicenseable (at multiple levels) right and license to use, reproduce, disclose, adapt, translate or transform, publish, distribute (internally and externally), perform and publicly display copies of, and prepare derivative works based upon, Your Content and derivatives thereof, and authorize others to do any of the foregoing, as reasonably necessary to use Your Content in connection with Snagshout and performance of our obligations hereunder and to provide Snagshout to you and/or others, regardless of the form, medium, or technology being employed to provide Snagshout. You hereby represent, warrant and covenant to us that: (i) prior to delivering or making available Your Content to us or using it in connection with Snagshout, you have obtained or will obtain from all owners or proprietors of any and all of Your Content all rights in, and consents of third parties with respect to, Your Content reasonably necessary for us and our agents and subcontractors to lawfully perform hereunder and to do all acts related thereto described in this TOS (including exercising any licenses granted hereunder); and (ii) you will maintain all rights and consents set forth at subsection (i) for so long as any license granted to us survives.  This Section will survive the termination of this TOS for any reason.

12.       INDEMNIFICATION

.  You will defend, indemnify and hold harmless us and our successors or assigns, affiliates, subsidiaries, officers, directors, employees, agents, and independent contractors (each individually an “Indemnitee” and collectively “Indemnitees”), to the fullest extent permissible under applicable law, against any and all claims, liability, loss, damage, or harm (including without limitation reasonable legal and accounting fees) suffered by any Indemnitee arising from or in connection with any of the following (except to the extent caused by our own negligence or willful misconduct):

  • Your use of Snagshout or your business activities (including without limitation your offering or sale of Products), including your breach of any provision of this TOS, or
  • Any of Your Content or any Products, including without limitation any claim by any third party:
    • (1) arising from your failure or inability to fully honor all Snags claimed by Shoppers in connection with a Campaign and to fulfill the associated Product, regardless of the reason for such failure or inability, and specifically including any failure or inability caused by manufacturing or transportation issues, claims of infringement, or failure to comply with all applicable terms and conditions of the online retailer or with all applicable laws, rules or regulations;
    • (2) under any law, rule or regulation that would treat us as the author, creator, publisher, promoter, offeror, importer, exporter, designer, manufacturer, distributor or seller of Your Content or Products (including without limitation claims sounding in or based upon, inaccuracies or omissions, misrepresentation, warranty, bodily injury or death, or product liability), or
    • (3) that any Product or Your Content (or the use of Your Content or Product by any Indemnitee in accordance with this TOS) infringes, violates or misappropriates any right of such third party or fails to comply with all applicable laws, rules and regulations.

 

All Indemnitees are expressly made third party beneficiaries of this Section.  This Section will survive the termination of this TOS for any reason.

 

13.       DISCLAIMER

.  YOUR USE OF SNAGSHOUT IS AT YOUR OWN RISK. SNAGSHOUT IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS.  YOU AGREE THAT, EXCEPT AS SPECIFICALLY STATED IN THIS TOS, WE DO NOT MAKE ANY WARRANTY OR REPRESENTATION OF ANY KIND, EITHER EXPRESS OR IMPLIED WITH RESPECT TO SNAGSHOUT, ITS CONTENT OR ANY OTHER SUBJECT MATTER (INCLUDING WITHOUT LIMITATION ANY SERVICES OR INFORMATION OBTAINED THROUGH SNAGSHOUT, OR ANY PRODUCTS, CAMPAIGNS OR SNAGS). WITHOUT LIMITING THE FOREGOING, WE MAKE NO REPRESENTATIONS OR WARRANTIES AS TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF SNAGSHOUT, THAT SNAGSHOUT OR THE COMPUTING ENVIRONMENT THAT MAKE IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT SNAGSHOUT, ITS CONTENT OR ANY OTHER SUBJECT MATTER (INCLUDING WITHOUT LIMITATION ANY SERVICES OR INFORMATION SENT TO, STORED BY OR OBTAINED THROUGH SNAGSHOUT, OR ANY PRODUCTS OR SNAGS) WILL BE ACCURATE, COMPLETE, UP-TO-DATE, SECURE, ERROR-FREE, UNINTERRUPTED, OR OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS. TO THE FULLEST EXTENT PERMITTED BY LAW, WE HEREBY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND NOT SPECIFICALLY STATED IN THIS TOS, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. THIS SECTION WILL SURVIVE TERMINATION OF THIS TOS FOR ANY REASON.

14.       LIMITS ON  OUR LIABILITY.

 

ANY OTHER PROVISION OF THIS TOS TO THE CONTRARY NOTWITHSTANDING, OUR MAXIMUM LIABILITY FOR ANY LOSSES OR DAMAGE FOR WHICH WE ARE FOUND LIABLE, WHETHER DIRECT OR INDIRECT, ARISING OUT OF OR IN CONNECTION WITH THIS TOS, ANY AGREEMENT BETWEEN YOU AND US UNDER ANY PRIOR VERSION OR INSTANCE OF THIS TOS, OR SNAGSHOUT FROM ANY CAUSE WHATSOEVER, INCLUDING WITHOUT LIMITATION ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT OR STRICT LIABILITY, WILL BE LIMITED TO ACTUAL, DIRECT DAMAGES INCURRED BY YOU BUT IN NO EVENT WILL EXCEED, IN THE AGGREGATE FOR ALL LIABILITIES ARISING OUT OF OR IN CONNECTION WITH THIS TOS, ANY AGREEMENT BETWEEN YOU AND US UNDER ANY PRIOR VERSION OR INSTANCE OF THIS TOS, OR SNAGSHOUT AT ANY TIME, THE TOTAL FEES AND EXPENSES ACTUALLY RECEIVED BY US FROM YOU DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE MOST RECENT ACT OR OMISSION GIVING RISE TO THE LIABILITY OCCURRED. 

WE WILL NOT BE LIABLE TO YOU FOR LOST PROFITS OR OTHER CONSEQUENTIAL DAMAGES, COVER DAMAGES, OR FOR ANY CLAIMS OR ACTIONS AGAINST YOU BY ANY THIRD PARTY, EVEN IF WE WERE ADVISED OF THE POSSIBILITY OF SAME.  UNDER NO CIRCUMSTANCES WILL WE BE LIABLE TO YOU FOR SPECIAL DAMAGES, GENERAL DAMAGES, INCIDENTAL DAMAGES, INDIRECT DAMAGES, EXEMPLARY OR PUNITIVE DAMAGES, OR DAMAGES FOR LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, OR LOSS OR IMPROPER DISCLOSURE OF DATA.  TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE BE LIABLE TO YOU FOR ANY LOSS, DAMAGE OR HARM OF ANY TYPE WHERE SUCH LOSS, DAMAGE OR HARM WAS CAUSED BY OR RESULTED FROM, IN WHOLE OR IN PART, ANY ACT OR OMISSION OF ANY THIRD PARTY (INCLUDING WITHOUT LIMITATION ANY WILLFUL MISCONDUCT, ILLEGAL ACT OR NEGLIGENCE OF A THIRD PARTY OR A THIRD PARTY’S FAILURE TO FULFILL ITS OBLIGATIONS AND DUTIES UNDER APPLICABLE LAW OR UNDER ANY CONTRACT WITH YOU OR WITH US.)

ANYTHING IN THIS TOS TO THE CONTRARY NOTWITHSTANDING, YOUR REMEDIES ARE LIMITED TO THOSE EXPRESSLY SET FORTH IN THIS TOS.  THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION WILL APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AND WILL CONTINUE TO APPLY EVEN IN THE EVENT A WARRANTY OR REMEDY FAILS OF ITS ESSENTIAL PURPOSE.  NO ACTION ARISING OUT OF THIS TOS, REGARDLESS OF FORM, MAY BE BROUGHT BY YOU AGAINST US MORE THAN ONE (1) YEAR AFTER COMMISSION OF THE ACT OR OMISSION WHICH GAVE RISE TO THE CAUSE OF ACTION, DISPUTE OR CLAIM.

YOU AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,  ANY LIMITATION ON OUR LIABILITY IN THIS TOS (INCLUDING ANY PROVISION OF THIS TOS THAT STATES WHAT WE WILL HAVE LIMITED (OR NO) LIABILITY OR RESPONSIBILITY WITH RESPECT TO THE SUBJECT MATTER OF SUCH PROVISION), CONSTITUTES YOUR AGREEMENT TO RELEASE US, OUR OFFICERS, EMPLOYEES, AGENTS AND SUCCESSORS IN RIGHTS FROM CLAIMS, DEMANDS AND DAMAGES OF EVERY KIND OR NATURE, KNOWN OR UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, TO THE EXTENT THAT THEY ALLEGE OR CLAIM ANY LIABILITY THAT HAS BEEN EXCLUDED OR DISCLAIMED OR THAT EXCEEDS THE AGREED-UPON LIMITATION.  IN CONNECTION THEREWITH AND IN CONNECTION WITH ANY OTHER RELEASE UNDER THIS TOS, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.

THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. CERTAIN LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.  

THIS SECTION WILL SURVIVE TERMINATION OF THIS TOS FOR ANY REASON.

15.       TERMINATION; SUSPENSION

.  The term of this TOS commences on the date you register with Snagshout, renews each time you log in to Snagshout, and continues until terminated by either you or us. You may terminate this TOS upon written notice to us. Termination of this TOS for any reason also terminates all of your rights to use Snagshout.  Any provisions of this TOS that are specifically stated to survive termination of this TOS for any reason will survive, as will any provisions of this TOS that serve to limit our liability or protect our rights in our intellectual property or other property.

Notwithstanding anything in this TOS to the contrary, we reserve the right to suspend our performance hereunder, any Campaign and/or your and/or any of Your Users’ access to or use of Snagshout, or to terminate this TOS, IMMEDIATELY AND WITHOUT ANY LIABILITY TO YOU in the event of (i) a breach of this TOS by you (including failure to make any payment when due) or (ii) any act or omission of any of Your Users that (a) would constitute a violation of this TOS if done by you or (b) in our reasonable discretion, poses a risk of disruption or interference with Snagshout (or the security thereof) or with any other user’s use of Snagshout.  Neither termination of this TOS or suspension of any Campaign or your use of Snagshout relieves you of your obligation to pay amounts due to us.

In addition, and without limiting any other right of termination we may have, we may terminate this TOS by ceasing operation of Snagshout, and this termination will be WITHOUT LIABILITY TO YOU, provided that, if you have prepaid the fees for a Campaign that has not been completed at the time we cease operating Snagshout, we will refund you an equitable portion of any unused prepaid fees, which will be your SOLE AND EXCLUSIVE REMEDY FOR SUCH TERMINATION.

YOU AGREE THAT, IF THIS TOS IS TERMINATED, IF YOUR USE OF SNAGSHOUT IS SUSPENDED OR IF YOU CEASE USING SNAGSHOUT, YOU WILL CONTINUE TO HONOR ANY SNAGS CLAIMED BY SHOPPERS UNDER ANY CAMPAIGN AT ANY TIME.

16.       DISPUTE RESOLUTION

.  PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND US HAVE AGAINST EACH OTHER ARE RESOLVED. THIS SECTION AND ITS SUBSECTIONS WILL SURVIVE TERMINATION OF THIS TOS FOR ANY REASON.

            16.1     GOVERNING LAW

.  THIS TOS WILL BE DEEMED TO HAVE BEEN MADE AND ENTERED INTO IN ATHENS, GEORGIA, U.S.A. THIS TOS AND ANY CLAIM, ACTION, SUIT, PROCEEDING OR DISPUTE ARISING OUT OF OR IN CONNECTION WITH, OR RELATING IN ANY WAY TO, THIS TOS OR YOUR USE OF SNAGSHOUT WILL IN ALL RESPECTS BE GOVERNED BY, AND INTERPRETED IN ACCORDANCE WITH, THE SUBSTANTIVE LAWS OF THE STATE OF GEORGIA (EXCLUDING ITS PRINCIPLES REGARDING CONFLICTS OF LAWS) AND APPLICABLE FEDERAL LAWS OF THE UNITED STATES OF AMERICA.

            16.2     AGREEMENT TO ARBITRATE

.  YOU AND WE AGREE THAT ANY DISPUTE OR CLAIM ARISING OUT OF OR IN CONNECTION WITH, OR RELATING IN ANY WAY TO, THIS TOS OR YOUR USE OF SNAGSHOUT WILL BE RESOLVED EXCLUSIVELY BY BINDING ARBITRATION, RATHER THAN IN COURT, EXCEPT THAT YOU MAY ASSERT CLAIMS IN SMALL CLAIMS COURT IF YOUR CLAIMS QUALIFY, AND ONLY SO LONG AS THE MATTER REMAINS IN SUCH COURT AND ADVANCES ONLY ON AN INDIVIDUAL (NON-CLASS, NON-REPRESENTATIVE) BASIS. THE FEDERAL ARBITRATION ACT AND FEDERAL ARBITRATION LAW APPLY TO THIS AGREEMENT TO ARBITRATE, ALONG WITH THE NEW YORK CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS.

TO BEGIN AN ARBITRATION PROCEEDING, THE PARTY SEEKING ARBITRATION MUST FIRST GIVE WRITTEN NOTICE TO THE OTHER REQUESTING ARBITRATION AND DESCRIBING THE CLAIMS OR DISPUTES TO BE ARBITRATED. IF YOU AND WE ARE UNABLE TO RESOLVE THE CLAIMS AND DISPUTES DESCRIBED IN THE NOTICE WITHIN THIRTY (30) DAYS AFTER THE NOTICE IS RECEIVED BY THE OTHER PARTY, YOU OR WE MAY INITIATE ARBITRATION PROCEEDINGS WITH THE ARBITRATION ADMINISTRATOR IDENTIFIED BELOW.

THE ARBITRATION WILL BE ADMINISTERED BY HENNING MEDIATION & ARBITRATION SERVICE, INC. (“HMA”) IN ACCORDANCE WITH ITS RULES. MORE INFORMATION ABOUT HMA AND ITS RULES CAN BE FOUND AT HTTPS://WWW.HENNINGMEDIATION.COM/. THE ARBITRATION HEARING AND ALL PROCEEDINGS IN CONNECTION THEREWITH WILL TAKE PLACE IN ATLANTA, GEORGIA, U.S.A.; HOWEVER, EITHER YOU OR WE CAN CHOOSE TO HAVE THE ARBITRATION CONDUCTED BY TELEPHONE IF PERMITTED BY HMA’S RULES.  THE ARBITRATION WILL BE CONDUCTED BY A SINGLE ARBITRATOR SELECTED BY YOU AND US FROM HMA’S PANEL OF ARBITRATORS, OR, IF YOU AND WE ARE UNABLE TO AGREE ON THE SELECTION, BY AN ARBITRATOR APPOINTED BY HMA. THE AWARD WILL BE RENDERED WITHIN THIRTY (30) DAYS OF THE CONCLUSION OF THE ARBITRATION HEARING.  THE DECISION OF THE ARBITRATOR WILL BE FINAL AND BINDING ON BOTH YOU AND US, AND ANY AWARD THEREON MAY BE ENTERED AND ENFORCED IN ANY COURT OF COMPETENT JURISDICTION. THE ARBITRATION WILL BE CONDUCTED IN THE ENGLISH LANGUAGE. EACH OF YOU AND US WILL BEAR OUR OWN FEES AND EXPENSES OF ARBITRATION AND PARTICIPATING IN SUCH ARBITRATION, AND ALL FEES, EXPENSES, AND TRAVEL TIME OF THE ARBITRATOR WILL BE DIVIDED EQUALLY BETWEEN YOU AND US, UNLESS OTHERWISE AGREED IN WRITING BY YOU AND US OR AWARDED BY THE ARBITRATOR.  

THIS AGREEMENT TO ARBITRATE WILL NOT BE DEEMED TO PROHIBIT YOU OR US  FROM APPLYING TO ANY COURT OF COMPETENT JURISDICTION, FOR INJUNCTIVE OR OTHER EQUITABLE RELIEF ONLY, AS MAY BE NECESSARY TO PROTECT YOUR OR OUR INTELLECTUAL PROPERTY RIGHTS OR RIGHTS IN OUR CONFIDENTIAL INFORMATION, BUT ALL OTHER RELIEF SOUGHT, AND ALL OTHER CLAIMS OR DISPUTES, WILL REMAIN SUBJECT TO THIS AGREEMENT TO ARBITRATE.

            16.3     WAIVER OF CLASS ACTION

.  YOU AND WE AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. UNLESS BOTH YOU AND WE AGREE OTHERWISE, YOU AND WE EACH WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, OUR RIGHTS TO BRING CLAIMS AGAINST THE OTHER AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION. YOU AND WE AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, CLASS, OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING.

            16.4     JUDICIAL FORUM FOR LEGAL DISPUTES; CONSENT TO JURISDICTION

.  IN THE EVENT THAT THE AGREEMENT TO ARBITRATE ABOVE IS FOUND NOT TO APPLY TO YOU OR TO A PARTICULAR CLAIM OR DISPUTE AS A RESULT OF A DECISION BY THE ARBITRATOR OR A COURT ORDER, THEN, UNLESS YOU AND WE AGREE OTHERWISE, ANY DISPUTE OR CLAIM ARISING OUT OF OR IN CONNECTION WITH, OR RELATING IN ANY WAY TO, YOUR USE OF SNAGSHOUT OR THIS TOS THAT IS NOT SUBJECT TO THE AGREEMENT TO ARBITRATE MUST BE RESOLVED EXCLUSIVELY BY AND IN THE COURTS LOCATED IN FULTON COUNTY, GEORGIA OR THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA, ATLANTA DIVISION.  EACH OF YOU AND US HEREBY IRREVOCABLY SUBMITS TO THE PERSONAL JURISDICTION AND EXCLUSIVE VENUE OF COURTS LOCATED IN FULTON COUNTY, GEORGIA OR THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA, ATLANTA DIVISION, FOR THE PURPOSE OF LITIGATING SUCH CLAIMS OR DISPUTES, AND WAIVES LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AS A DEFENSE.  HOWEVER, THE TERMS OF THE SECTION TITLED “WAIVER OF CLASS ACTION” WILL CONTINUE TO APPLY TO SUCH LITIGATION.

17.       NOTICES

.  We may deliver any notice required or permitted hereunder (i) via a notice on Snagshout or (ii) via electronic mail to your contact information on record with us in your account information, which notice WILL be deemed received by you when posted or transmitted by us. Where we permit notices to be given to us via a feature or functionality of Snagshout (for example, changes to your account or billing information), you may give such notice through Snagshout and it will be deemed effective upon actual receipt by us, but only to the extent the notice is of a type for which the feature or functionality is intended to convey (for example, using your account page to update your contact information).  Otherwise, all notices to us under this TOS (including notices of claims or disputes or to initiate arbitration) must be delivered in writing in hard-copy (paper) to us by (i) personal delivery by hand, (ii) registered mail, (iii) certified mail, return-receipt requested, or (iv) reputable national or international mail courier with proof of delivery.  Our current address is:

                        SnagIt LLC

                        12402 N Division St STE 272

                        Spokane, WA 99218

                        Attn:  Snagshout TOS Notices

 

We may change this notice address by updating this TOS or by listing a new address on Snagshout.  You are responsible for making sure you are sending notices to our most-current address and for confirming that they have been received by us.  Notices given to our address will be deemed effective upon the first normal business day (non-weekend/non-holiday) following actual receipt by us at such address. This Section will survive termination of this TOS for any reason.

18.       GENERAL TERMS

.  This Section and its subsections will survive termination of this TOS for any reason.

            18.1     Force Majeure

.  You agree that we will have NO LIABILITY for any issues caused by causes beyond our control, including acts or omissions of third parties. Without limiting the foregoing, you agree that Snagshout may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications, and we will not be liable for any delays, delivery failures, or other damage resulting from such limitations, delays, and other problems.

            18.2     Waiver; Amendment; Assignment

.  No waiver of any right or remedy by us will be valid unless in writing, and waiver of a right or remedy on one occasion by us will not be deemed a waiver of such right or remedy on any other occasion. Except as otherwise provided in this TOS, this TOS may not be amended or modified except by a writing signed by you and us.  You may not assign this TOS or any of your rights or obligations without our prior written consent, and any attempt to do so will be void.  We may freely assign this TOS or any of our rights or obligations, and you waive notice of such assignment.

            18.3     Severability

.  If any provision of this TOS is declared invalid by a court of competent jurisdiction, such provision will be ineffective only to the extent of such invalidity, so that the remainder of that provision and all remaining provisions of this TOS will be valid and enforceable to the fullest extent permitted by applicable law.

            18.4     Headings; Language

.  Section titles and headings in this TOS are provided for convenience only and do not affect or limit the meaning or interpretation of the TOS. The official language of this TOS is English.  In the event this TOS is translated, the English version will control, and translations into languages other than English will not be construed as official or original versions of this TOS.  All contract interpretations, notices and dispute resolutions will be in English.

            18.5     Links

.  If Snagshout contains links to other sites and resources provided by third parties, these links are provided for convenience only.  We have no control over the contents of those sites or resources, and will have no responsibility for them or for any loss or damage that may arise from them or your use of them. If you decide to access any of the third party sites or resources linked to Snagshout, you do so entirely at your own risk and subject to the terms and conditions of use for such sites or resources (including any applicable data privacy or security policies of such sites).

            18.6     Entire Agreement

.  This TOS sets forth the entire agreement and understanding between you and us pertaining to its subject matter, superseding all prior or contemporaneous discussions, agreements, promises or understandings between you and us pertaining to such subject matter. Any additional or varying terms contained in your preprinted forms, correspondence or other documents transmitted to us, will be of no effect, unless otherwise expressly provided in this TOS, and are hereby rejected in advance.

            18.7     Independent Contractors; No Other Beneficiaries

.  You agree and acknowledge that the relationship between you and us is that of an independent contractor, and nothing contained in this TOS will be construed as establishing any employer/employee relationship, partnership or joint venture between you and us unless specifically stated otherwise in this TOS.  You have no authority to bind us to any legal obligation