Connexity Merchant Agreement

This Connexity Merchant Agreement (the “Agreement”) is made between Connexity, Inc., a Delaware corporation with its principal place of business at 2120 Colorado Ave., Suite 400, Santa Monica, CA 90404, U.S.A. (“Connexity”, “we”, “our”, or “us”), and you, the company that wishes to participate as a “Merchant” (“Merchant”, “you”, or “your”) in the Service as defined below and/or any other products or services we may provide.

We shall undertake the activities described in this Agreement in order to generate click-throughs, swipes, or other consumer actions on the links within Merchant Content (as defined in 1.A below) (“Clicks”) that are generated from the Connexity Network (as defined in 1.A below) to your Merchant website(s). The foregoing is the “Service”.

This Agreement explains your and our respective obligations in relation to the Service. By registering as a Merchant in the Service, you agree to the terms and conditions of this Agreement.

Grant of Rights.
1. You grant Connexity and its group companies (together, the “Connexity Companies”), and third party entities with which Connexity has a relationship in relation to the Service (such as online publishers, search engines, developers of apps, utilities, and platforms, and device manufacturers) (collectively with the Connexity Companies, the “Connexity Entities”)) a non-exclusive, revocable, royalty-free, worldwide right and licence during the term of this Agreement to use, display, reproduce, compile, edit and distribute Merchant listings (which may include text and graphics, information on product characteristics, availability, price, offers, or promotions), advertising, headlines, thumbnail images, videos, or other content containing links to locations on your Merchant website(s) (collectively the “Merchant Content”) throughout, on or in connection with Connexity-owned, Connexity-affiliated, or third party websites, digital properties, apps, utilities, platforms or devices with or on which the Connexity Entities have a relationship or the right to distribute Merchant Content (collectively, the “Connexity Network”). This right and licence applies to any other related data and information you provide Connexity or that is generated from, or you allow us to directly obtain from, your Merchant website(s).
2. You grant the Connexity Entities a non-exclusive, revocable, royalty-free, worldwide right and licence to use your trademarks, service marks, trade names, logos, trade dress and URLs on your Merchant website(s) (“Merchant Marks”) in connection with the Service, the Connexity Network, and the Merchant Content licence under 1.A, and for associated publicity and related purposes. You reserve any rights in and to Merchant Content and Merchant Marks not expressly granted in this Agreement.
3. We grant you a limited, non-exclusive, non-assignable, non-transferable, non-sublicensable, royalty-free right during the term of this Agreement, and solely in connection with your use of the Service in accordance with this Agreement and subject to guidelines that Connexity may issue from time-to-time, to access and use (i) the Service; (ii) the Connexity Network; (iii) our products, services and content that we provide to you (including, but not limited to, all text, illustrations, files, images, icons, computer programs, software, scripts, graphics, photos, sounds, music, videos, information, content, materials, products, services, URLs, technology, documentation and interactive features, any reports Connexity creates, the data that Connexity collects in connection with the foregoing (collectively, “Connexity Content”)); and (iv) the trademarks, service marks, trade names, logos, and trade dress that may appear in connection with the Service or the Connexity Network (“Connexity Marks”). You acknowledge and agree that Connexity, its licensors, or both, own(s) all intellectual property rights, including derivative works and enhancements, to the Service, the Connexity Content, and the Connexity Marks. We reserve all rights in and to the Service, the Connexity Content and the Connexity Marks not expressly granted in this Agreement.
4. 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.
5. Additionally, subject to clause 6.B, we may provide to you, and grant you the right to place on your Merchant website(s), a pixel(s) or other tracking technology (the “Pixel(s)”) in connection with the Service, and as detailed in the Privacy Terms (as defined in clause 6.A). We may update, change, or substitute the Pixel(s) at any time provided it does not materially disrupt the functioning of your Merchant website(s) and otherwise serves similar purposes, and you agree to adopt any such change or substitute to the Pixel(s) within a reasonable time.
Account.

To participate in the Service you must have and maintain a Merchant Account (your “Account”) for purposes of maintaining your activity and advertising charges.
1. Confidentiality/Activity. You must keep any User ID, password, and other Account information confidential and are fully responsible for all Account activity (including actions of agents, employees, representatives or third parties). We will not review, and are not responsible for, your Account activity or your mistakes managing your own campaigns. You agree to notify us immediately of a breach or unauthorized use of your Account by email to support@connexity.com.
2. Balances/Inactive Accounts. You may be required to fund your Account to pay for charges for Clicks. It is your responsibility to keep your Account active and to terminate your Account if you no longer wish to participate in the Service. If you have not had a Click and have not made any payment to your Account for a period of at least twelve (12) months, we may apply a monthly £25 (or equivalent amount in local currency, as determined by us) account administrative fee against the balance of your Account.
3. Pausing. You can pause your advertising activity from within your Account at any time.
Advertising Charges
1. You will be charged, and agree to pay all charges, for Clicks, within the limits of any campaign budget in accordance with clause 3.D. You agree that charges will be based on the total number of Clicks multiplied by the Cost per Click (“CPC”) rate that has been determined for each Click by our dynamic proprietary pricing system, which automatically adjusts CPC rates based on traffic quality and other inputs including any provided performance target(s). As such, Merchant expressly acknowledges that Clicks are not priced at predetermined CPC rates.
2. You can review the number of Clicks and advertising charges incurred within your Account. The charges represented in your Account are the definitive record of amounts owed to Connexity under this Agreement and will be used to calculate the amounts due to Connexity under this Agreement. We may adjust our policies regarding charges for Clicks from time-to-time upon prior notice to you, it being understood that any change in pricing will apply only to Clicks generated after we have given notice of the new policy.
3. You may provide us with performance targets for campaigns, such as cost of sale or return on ad spend targets, via the “Contact Us” link through your Account or by written communication to your account manager, as applicable; however, achievement of those targets is not guaranteed. Where you have not provided a performance target, Connexity is hereby authorized to set performance targets on your behalf.
4. You may provide a campaign budget by executing an Insertion Order (“IO”) or written communication to your account manager, as applicable, and we will use commercially reasonable efforts to meet the budget. However, absent such IO or written communication, the budget is considered uncapped.
Payment.
1. You agree to pay all charges in local currency, as determined by Connexity in accordance with the payment plan and billing terms applicable to you, including any sales, use, VAT, or other similar taxes which are billed and/or owed in addition to the payment plan charges (together “Plan”), the full details of which may be accessed by logging into your Account.
2. We may extend invoice payment terms to you in our sole discretion, and only after receiving your completed application for credit. Otherwise, you must provide Connexity with details of a valid bank account and you hereby authorize Connexity to charge/withdraw from your bank account amounts consistent with the terms of your Plan.
3. If we do invoice you (email shall suffice), you shall pay each invoice within thirty (30) days of invoice date unless different payment terms have been agreed to in writing between the parties. You must reimburse us all expenses and fees we incur related to collection of unpaid amounts.
4. Any disputes regarding any charge or invoice must be raised with us in writing within sixty (60) days after the date of such charge or invoice. Charges or invoices not disputed within this time period will be considered final and accepted by you, and will not be eligible for any refund, credit or other billing adjustment.
Obligations.
1. Each party represents and warrants that it has the full power and authority to enter into this Agreement and that the persons or (in the case of the Merchant) the agency executing this Agreement on its behalf has the authority to do so. The parties agree to perform any and all lawful additional acts, including without limitation, execution of additional documents, as are reasonably necessary or as reasonably requested by either party at any time to effectuate the intent of this Agreement, to satisfy the terms and conditions contained in this Agreement, or to give full force and effect to this Agreement.
2. You represent and warrant that:
  1. All information you provide or direct us to about your business, products, services or otherwise, including Merchant Content, is and will be accurate, complete and current and compliant with any applicable law (including but not limited to applicable provisions of local mandatory law for the benefit of consumers as well as antitrust law).
  2. Neither the content on your Merchant website(s), in any Merchant Content you provide us, Merchant Marks nor other materials you provide us will or does: (i) violate any applicable law (including applicable provisions of local mandatory law for the benefit of consumers), statute or regulation; (ii) infringe in any manner any copyright, patent, trademark, database right, design right, 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) contain any virus, malware or other harmful content; and (v) be false, misleading, defamatory, libellous, slanderous or threatening.
  3. All Merchant Content you provide us reflects (including all information required by applicable provisions of local mandatory law) products and services that you are able and willing to offer customers, and that you will immediately make any necessary changes if any information is not current or accurate.
3. We make no condition, warranty or representation regarding the rank, location, prominence, or prevalence of any Merchant Content. We may refuse, edit or remove Merchant Content if we determine, in our sole discretion, that it violates this Agreement, applicable policies, or for any other lawful reason. However, we have no obligation to monitor, refuse, edit or remove any Merchant Content. To the extent we or a Connexity tool provides any suggestion to you with respect to Merchant Content, we shall not own, or be liable to you or any third party for such suggestion and related material, and you will remain solely liable for Merchant Content, as specified under this Agreement.
Collected Data.
1. The parties agree that the Connexity Merchant Privacy Terms, as updated from time to time, located at https://connexity.com/merchant-privacy-terms/ (“Privacy Terms”), are incorporated by this reference into this Agreement.
2. Pixel(s). If you implement Pixel(s) on your Merchant website(s) as permitted under this Agreement, you acknowledge that the Pixel(s) will collect and transfer to the Connexity Companies Collected Data (as defined in the Privacy Terms) about users of your Merchant website(s), as more fully detailed in the Privacy Terms. You may only implement Pixel(s) on your Merchant website(s) in compliance with the Privacy Terms and applicable law.
3. No Pixel(s). If you do not implement Pixel(s) on your Merchant website(s), you may instead at your option send purchase related data you collect to Connexity via an API provided by Connexity, or in a file.
Indemnification.
Disclaimer.
1. You expressly agree that your participation in the Service is at your own risk. Except as expressly set out in this Agreement, the Service (and the access to Connexity Content) is offered on an “as is” basis, without condition, warranty or representation of any kind, express or implied.
2. To the maximum extent permitted by law, all conditions, warranties, representations and other terms implied by statute or common law are excluded from this Agreement, including, without limitation (i) any conditions or warranties as to the availability, accuracy or content of the Service, or any information, products or services available through or in connection with the Service or any other Connexity service, or as to the customers, Clicks, traffic or other benefits to be generated by the Service, or that the same will be uninterrupted or error-free; and (ii) any conditions or warranties of merchantability, fitness for a particular purpose or non-infringement.
Liability Limitations.
1. Liability Limit. The total liability of the Connexity Companies and any of their Agents in any 12 month period arising out of or in connection with this Agreement (whether in tort including negligence and breach of statutory duty), contract, misrepresentation (whether innocent or negligent or otherwise) shall be strictly limited to 50% of the amount you have paid to Connexity for your participation in the Service in respect of that 12 month period.
2. Exclusions. In no event shall the Connexity Companies or any of their Agents be liable, whether in tort (including negligence or breach of statutory duty), contract, misrepresentation (whether innocent or negligent) or otherwise for any: (i) loss of profits or revenues, loss of goodwill, damage to reputation or loss of data (whether direct or indirect), or (ii) indirect, incidental, special, punitive or consequential loss or damage of any nature whatsoever arising out of or in connection with any aspect of your participation in the Service, whether or not the Connexity Companies have been apprised of the possibility of such loss or damage.
3. Certain Liability not limited. Nothing in this Agreement shall limit or exclude the liability of the Connexity Companies or any of their Agents: (i) for death or personal injury caused by its negligence; (ii) for fraud or fraudulent misrepresentation; or (iii) in respect of any other liability which cannot be limited or excluded by applicable law.
4. Reasonable Allocation of risk. You acknowledge these limitation and exclusion of liability clauses to be reasonable, taking into account the other terms of this Agreement and your ability to insure against any losses which might arise from a breach of this Agreement, and you acknowledge that Connexity would not have entered into this Agreement but for these limitation and exclusion of liability clauses.
Modifications.
1. We may from time to time modify the terms of this Agreement to reflect changes to our business practices and policies, changes in applicable laws or regulatory requirements or for other reasons.
2. In the event we modify this Agreement, we will send notice to you at the email address we have on file and/or by posting notice of such modifications in the Business Services portion of www.connexity.com.
3. Any such modification shall take effect upon expiry of 30 days from the date of our email and/or posting. Your continued participation in the Service after the modifications to this Agreement take effect will signify your assent to and acceptance of the new terms.
Termination; Suspension.
1. This Agreement will remain in effect until terminated by either party by giving not less than 48 hours’ notice in writing to the other. If you are dissatisfied with the Service or object to any modification under 10. above to the terms and conditions of this Agreement, your sole and exclusive remedy is to terminate your participation in the Service by giving us written notice in accordance with 12.B below.
2. Notwithstanding anything contained in this Agreement to the contrary, if you commit any breach of this Agreement or if we consider that anything in your Merchant website(s) or Merchant Content may be unlawful, harmful to consumers, not in accordance with 1.E or 5.B above or otherwise bring the Connexity Companies into disrepute, then we may immediately and without the need for any notice suspend your participation in the Service. 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 decision. No Merchant shall have any right or enforceable interest to participate in the Service.
3. Following termination of this Agreement for any reason: (i) you shall no longer participate in the Service; (ii) you shall cease all use of Connexity Content, the Connexity Marks, and the Pixel(s) and (iii) any outstanding charges under this Agreement for Clicks shall become immediately due and payable by you.
Notices.
1. We may give general notices to participating Merchants by postings on the Business Services portion of www.connexity.com (login required) (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 to your email address or business address for the time being registered in your Account.
2. Any notice from you must be given to us by email to legal@connexity.com and must include the subject line “Attention: Legal”.
3. Notices given by posting on the Business Services portion of www.connexity.com and notices given by email will be deemed given and deemed received on the next business day at the place of receipt after posting or transmission.
Independent Contractor.
Entire Agreement.
1. This Agreement, together with any future IO or Merchant Information Form that specifically references this Agreement, constitutes the entire agreement between the parties regarding its subject matter, and supersedes and replaces and applies to the exclusion of any and all prior agreements, understandings or arrangements between the parties, whether oral or in writing, with respect to the same, including but not limited to those contained in any confidentiality agreement, or in any purchase order or terms and conditions that the Merchant or its agency seeks to impose or incorporate in respect of the Service, or which are implied by law, trade custom, practice or course of dealing.
2. Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.
Assignment.
1. You may not assign, transfer (including by means of transfer of a business or line of business), sub-license, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of your rights and obligations under this Agreement without our prior written consent.
2. You agree that we may at any time assign, transfer, sub-license, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of our rights and obligations under this Agreement.
3. You consent to our delegation of the performance of some of the Service to the Connexity Companies, subject to us remaining liable for the complete and correct discharge of all our responsibilities under this Agreement.
Force majeure.
Miscellaneous.
1. If there is any conflict between the English language version of this Agreement and any translated version we may provide, we each agree that the English language version will control in all instances.
2. No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
3. The clause headings are for convenience only and shall not affect the interpretation of this Agreement.
4. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.
5. Except for the Connexity Companies and Agents, no person other than a party to this Agreement and its permitted assignees shall have any right to enforce any of its terms.
Governing Law and Jurisdiction.
1. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation or performance or breach or termination shall be governed by and construed in accordance with the law of England and Wales.
2. You and we irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation or performance or breach or termination.
3. Without prejudice to what is set forth in this clause 18, any reference to applicable law in this Agreement shall include reference to overriding mandatory provisions of the jurisdiction where you are located.