Connexity, Inc. Merchant Program Participation Agreement

(Effective May 25, 2018)

• THIS AGREEMENT
  1. This Merchant Agreement is made between us, Connexity, Inc. a Delaware corporation with its principal place of business at 2120 Colorado Ave., Suite 400, Santa Monica, CA 90404 (“Connexity” or “we”, “our” “us”), and you, the person, firm or company who or which wishes to participate as a “Merchant” in our Merchant Listings service (the “Marketplace”) and/or any other Merchant products or services we may provide you (collectively, the “Merchant Program”) (“you” and “your”).

  2. Please read this Agreement carefully. It explains our respective obligations under the Merchant Program. By completing and submitting your Merchant Registration or otherwise participating in our Merchant Program, you agree to the terms and conditions of this Agreement.

  3. By entering into this Agreement, you represent and warrant that:
     • you are entering into this Agreement for the purposes of your trade, business or profession;

     • if you are entering into this Agreement on behalf of a company, you are duly authorised by the company to enter into this Agreement on its behalf; and

     • if you are a natural person, you are 18 years or older.

• MARKETPLACE SPECIFIC TERMS
  1. The Marketplace permits you to advertise on the Connexity Network (defined below) and bid for click-throughs on the Links within your Listings (defined below) and other click-throughs to your website generated from the Connexity Network (“Clicks”).

  2. The “Connexity Network” includes www.shopzilla.co.uk, www.bizrate.com, www.tada.com, www.beso.com, www.become.com and equivalent country specific domains and all other websites we operate or control, websites we provide comparison-shopping content to, email newsletters or other email, or other media or services we offer to consumers from time-to-time.

  3. Listings
     • We provide an online shopping search engine that assists consumers in shopping for products and services offered by Merchants. Consumer searches generally return relevant listings, advertising or other content containing links to locations for Merchant’s products and services (including links to your website(s) (your “Website”), coupon or deal content (collectively, “Listings”)). Listings may include text and graphics, as well as information about product or service characteristics, availability and price, offers and promotions, and other content in accordance with our policies, which we may update from time-to-time.

     • We make no representations regarding the rank, location and prominence of any Listing and have the sole right to determine whether and where a Listing will be displayed within the Connexity Network in response to a given search or otherwise.

     • While we have no obligation to monitor Listings, we may refuse, edit or remove any Listing which breaches this Agreement or any Additional Terms (as defined in clause C.7.2), or which we consider may be unlawful, harmful to consumers or otherwise bring Connexity into disrepute.

  4. Advertising Charges and Payment.
     • You will be charged, and agree to pay, for all Clicks. You agree that charges will be based on the total number of Clicks multiplied by the amount you have bid for each Click. We may adjust our minimum bids or other bidding requirements from time-to-time on reasonable prior notice to you.

     • You shall pay all charges in the local currency applicable to the country primarily served by the relevant Connexity website, in accordance with your agreed to payment plan and billing terms (together “Plan”) - click here (login required) to access Plan information.

     • In addition, where chargeable, you shall pay any VAT or other applicable sales, use or similar taxes at the prevailing rate.

     • Where you have provided Connexity with details of a bank account, you hereby authorize Connexity to charge/withdraw from your bank account amounts consistent with the terms of your Plan.

     • Where you have not provided Connexity with details of a valid bank account, Connexity shall invoice you in accordance with the terms of your Plan and you shall pay each invoice within thirty (30) days of receipt.

     • We may submit our invoices to you by email in PDF format.

     • If you fail to make any payment by the due date for payment, then you shall pay interest on the overdue amount at the rate of 8% per cent per annum. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. Where interest for late payment becomes payable, Connexity may also charge a fixed sum of £40 (or equivalent amount in local currency, as applicable to the country primarily served by the relevant Connexity website) by way of compensation for recovery costs plus reasonable compensation for any recovery costs exceeding that fixed sum incurred due to your late payment.

     • Any disputes regarding any charge or invoice must be raised with us in writing within sixty (60) days after the issue of the invoice or the date of such charge. 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.

  5. Your Obligations. You represent and warrant that:
     • Neither the content on your Website(s), in any Listings you provide us nor other materials you provide us will: (i) violate any applicable law, 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; and (iv) is false, misleading, defamatory, libellous, slanderous or threatening.

     • Each of the Listings you provide us reflects products and services that you are able and willing to offer customers, and that you will make any necessary changes if any information is not current or accurate; and

     • Notwithstanding anything in this Agreement to the contrary, unless Connexity expressly agrees in writing to take on additional responsibilities, you shall at all times be responsible for offering and selling products and services featured on your Website(s) or in your Listings including, without limitation, taking orders, fulfilment of orders, shipping, invoicing, product returns, replacement of products, customer service and payment of any and all taxes and other government charges.

• GENERAL MERCHANT PROGRAM TERMS AND CONDITIONS

  The following terms apply to our Merchant Program and any other Merchant products or services we may provide you.

  1. Your Account.
     • Accurate Information. You represent that all information you provide or direct us to about your business, products, services or otherwise, including without limitation, via our Merchant Program registration process, order forms and your Listings, is accurate, complete and current.

     • Merchant Account. To participate in our Merchant Program you will be required to set up and maintain a Merchant Account (your “Account”).

     • Setup. We may impose any lawful restrictions on your ability to establish an account. You are responsible for keeping any username and password, and other account information, confidential and are fully responsible for all activities that occur under your Account (including the actions of your Agents, employees, representatives), whether or not you authorized such activities. You agree to notify us immediately of any breach of security or unauthorized use of your Account or username and/or password by email to support@connexity.com.

     • Balances/Inactive Accounts. You may be required to fund your Account to pay for Clicks and other charges associated with our Merchant Program. It is your responsibility to keep your Account active and to terminate your Account in the event you no longer wish to participate in the Merchant Program. 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, Connexity reserves the right to assess a monthly account administrative fee of £25 (or equivalent amount in local currency, as applicable to the country primarily served by the relevant Connexity website) against the balance of your Account.

     • Refunds. If we terminate your Account, we will refund you what is left in your Account as of the effective date of the termination. If you terminate your Account, termination is effective one (1) business day after we receive such notice (consistent with the terms below) and we will refund you what is left in your Account as of that date.

     • Merchant Portal. You can check the number of Clicks and the amounts being incurred on the dashboard within your Account. However, please note that the data on the dashboard is updated periodically and not in real time and so may not be completely accurate at any one time.

     • Changes. If you authorize an account manager to make changes in your Account, such as to change bids, you shall pay the advertising charges yourself. You can revoke such authority at any time by written notice (including email) to such account manager or legal@connexity.com

  2. Intellectual Property.
     • Our Merchant Program, the Connexity Network, and our products, services and content (and any derivative works or enhancements of the same) including, but not limited to, all text, illustrations, files, images, icons, computer programs, software, scripts, graphics, photos, sounds, music, videos, information, content, materials, products, services, URLs, technology, documentation and interactive features (collectively, “Connexity Content”) and all intellectual property rights to the same are owned by us or our licensors.

     • Additionally, all trademarks, service marks, trade names, logos and trade dress that may appear in connection with the Merchant Program or Connexity Network (including the trademarks “Shopzilla®”, “BizRate®”, “Tada®”, “Beso®” and “Become®”) are owned by us or our licensors (“Connexity Marks”).

     • Connexity hereby grants you for the term of this Agreement a non-exclusive, non-transferable, royalty-free right and licence to use the Connexity Marks solely in connection with the Merchant Program and subject to guidelines Connexity may offer from time-to-time.

     • You do not acquire any right, title or interest in any Connexity Content or Connexity Marks and shall not use any of the same except as expressly permitted under this Agreement. We reserve any rights in and to the Connexity Content and Connexity Marks not expressly granted in this Agreement.

     • We acknowledge your right, title, and interest in and to your trademarks, service marks, trade names and logos (“Merchant Marks”) and the content on your Website and Listings (“Merchant Content”). You reserve any rights in and to Merchant Content and Merchant Marks not expressly granted in this Agreement.

     • You hereby grant Connexity for the term of this Agreement and (subject to clause C.8.3) thereafter a non-exclusive, transferable, sub-licensable, worldwide, royalty-free right and licence to use, display, reproduce, compile, edit, and distribute your Merchant Content and Merchant Marks (including any data you provide Connexity or that is generated from your Listings) throughout the Connexity Network in connection with the Merchant Program and for associated publicity and related purposes.

     • 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.

  3. Data.
     • In the event you place Connexity Content on your Website (e.g., pixel tags, also called ROI tracker code) Connexity may collect certain information from you and/or your users for its own uses including fraud prevention, pricing optimisation, advertising campaign optimisation and to verify the amount to invoice you in accordance with section B (“Analytics Data”).

     • Where you are not using the Connexity Content to allow Connexity to collect the relevant data automatically from your Site, you may send Connexity via an API provided by Connexity, or a file, on a weekly or more frequent basis containing any data required by Connexity to verify the amount to invoice you in accordance with clause B for that calendar month, advertising campaign and pricing optimisation and for fraud prevention purposes (“Sales Data”).

     • Analytics Data acquired from Connexity’s pixel tags on your Website and Sales Data may contain personal data. We may be able to associate Analytics Data with other data from cookies acquired by your website users elsewhere in the Connexity Network or from third party websites (“Network Data”) in order to calculate any payments due to our third party advertising partners.

     • Both parties warrant that they shall comply with all applicable data protection laws with regards to the collection and processing of any personal data in relation to this Agreement. In particular, you agree to:
       1. Provide sufficient information to and obtain consent from your users about our collection and your Website users regarding: (i) processing of Analytics Data and Network Data in accordance with this Agreement; and (ii) your collection of Merchant Data and our processing of it in accordance with this agreement; and (iii) and how users can opt out of targeted advertising, (including referring your Website users to Connexity’s Privacy Policy), in compliance with applicable data protection laws (including where applicable EU Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and EU Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector); and

       2. obtain any necessary consents required under applicable data protection laws from your Website users in order for Connexity to process the Analytics Data and Merchant Data in accordance with its Privacy Policy.

     • To the extent that Connexity is deemed to be a processor of any personal data contained in the Analytics Data or Sales Data, Connexity shall:
       1. process such personal data in accordance with this Agreement and your additional instructions from time to time;

       2. take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss;

       3. ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential;

       4. not transfer any personal data outside of the European Economic Area (EEA) unless we have complied with our obligations under applicable data protection laws in relation to the transfer;

       5. assist you, at your cost, in responding to any request from a data subject and in ensuring compliance with your obligations under applicable data protection laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

       6. notify you without undue delay on becoming aware of a personal data breach;

       7. at your written direction, delete or return personal data and copies thereof to you on termination of this Agreement unless required by applicable law to store the personal data or to the extent we need to retain any personal data where we are also a controller of such data;

       8. maintain complete and accurate records and information to demonstrate our compliance with this clause C.3.5; and

       9. permit you (or your third party auditor) to audit Connexity’s compliance with this clause C.3.5 and clause C.3.6 on giving reasonable notice to us, provided that any third party auditor mandated by you to conduct such audit has entered into confidentiality undertakings which are satisfactory to us and you use reasonable endeavours to ensure that any such audit is designed to minimise disruption to our business.

     • You consent to Connexity appointing third-party processors of personal data under this Agreement provided that Connexity has entered or (as the case may be) will enter with each third party processor into a written agreement incorporating terms which are substantially similar to those set out in clause C.3.5. Connexity shall inform you of any intended changes to the identity of any third party processor and shall remain fully liable for all acts or omissions of any third party processor appointed by it pursuant to this clause C.3.6

  4. Indemnification. You shall defend, indemnify and hold harmless Connexity and its affiliates, licensees, vendors, contractors, agents, and employees (collectively, “Agents”), from any and all liabilities, damages, costs, claims and expenses (including, without limitation, reasonable attorney's fees and costs) that may arise from your participation in the Merchant Program or any other Connexity services, your breach of any of the terms of this Agreement, any content or materials that you provide us, any consumer's use of your Website(s), or purchase or attempted purchase and/or use of any of your products or services.

  5. Disclaimer
     • You expressly agree that your participation in the Merchant Program is at your own risk. The services offered in the Merchant Program are available on an “as is” basis.

     • Neither Connexity nor any of its Agents makes any condition, warranty or representation whatsoever regarding the Merchant Program, any information, products or services available through or in connection with the Merchant Program or any other Connexity product or service, or any results obtained through the use thereof.

     • To the maximum extent permitted by law, all conditions, warranties 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 Merchant Program, or any information, products or services available through or in connection with the Merchant Program or any other Connexity service, or as to the customers, Clicks, traffic or other benefits to be generated by the Merchant Program, or that the same will be uninterrupted or error-free; and (ii) any conditions or warranties of title or of merchantability, fitness for a particular purpose or non-infringement.

  6. Liability limitations.
     • Liability Limit. Any liability of Connexity or any of its Agents 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 limited to the amount you have paid to Connexity for your participation in the Merchant Program in the six (6) month period before the event which caused the damage occurred

     • Exclusion. In no event shall Connexity or any of its 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 Merchant Program, whether or not Connexity has been apprised of the possibility of such loss or damage.

     • Certain Liability not limited. Nothing in this Agreement shall limit or exclude the liability of Connexity or any of its 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.

     • 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.

  7. Modifications; Additional Terms.
     • 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.

     • Also, we may from time to time provide you with operating rules, guidelines, policies or additional terms that govern your participation in our Merchant Program (“Additional Terms”) and may from time to time modify such Additional Terms. You shall comply with such Additional Terms as a term of this Agreement.

     • If we modify this Agreement or introduce or modify any Additional Terms, we will where possible give you at least one month's written notice before any changes take effect. If you do not agree with the changes, you may as your sole recourse terminate this Agreement in accordance with clause C.8.1. Your continued participation in the Merchant Program will constitute your acceptance of the modified Agreement or Additional Terms.

     • To the extent any Additional Terms conflict with this Agreement, the Additional Terms will control.

  8. Termination; suspension.
     • This Agreement will remain in effect until terminated by either party by giving not less than 48 hours’ notice in writing to the other.

     • Notwithstanding anything contained in this Agreement to the contrary, if you commit any breach this Agreement or any Additional Terms, or if we consider that anything in your Website or Listings may be unlawful, harmful to consumers or otherwise bring Connexity into disrepute, then we may immediately and without the need for any notice suspend your participation in the Merchant Program. 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 Merchant Program.

     • Following termination of this Agreement for any reason: (i) you shall no longer participate in the Merchant Program; (ii) you shall cease all use of Connexity Marks; and (iii) we may continue to use and display Merchant Marks in the Ratings section of the Connexity Network for a period of up to 120 days following termination provided that if you ask us to stop displaying Merchant Marks we shall endeavour to remove Merchant Marks from the Ratings section as soon as practicable.

  9. Notices.
     • 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 may be given, and are deemed received: (i) by hand: on delivery; (ii) by pre-paid recorded signed for post (for domestic post): at 10.00 am on the second working day after posting or at the time recorded by the delivery service; (iii) by pre-paid international signed for post (for international post): at 10.00 am on the fifth working day after posting or at the time recorded by the delivery service; and (iv) by email: 24 hours from delivery if sent to the correct email address and no notice of delivery failure is received. All references to time are to the local time at the place of deemed receipt.

     • Notices specific to you will be sent to your email address or business address for the time being registered in your Account.

     • You may give notice to us by email to support@connexity.com, or otherwise to our principal place of business as stated in A.1 above.

  10. Independent Contractor. Nothing in this Agreement is intended or should be construed to create a joint venture, partnership, franchise, agency or similar legal arrangement between Connexity and you or any other Merchant. We each operate as independent contractors under this Agreement.

  11. Entire Agreement.
      • This Agreement (including any Additional Terms incorporated by reference) constitutes the entire agreement between the parties regarding its subject matter, and supersedes and replaces any and all prior agreements, understandings or agreements between the parties, whether oral or in writing, with respect to the same.

      • 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.

      • Nothing in this clause shall limit or exclude any liability for fraud.

  12. Assignment.
      • You shall not assign, transfer, 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 Connexity’s prior written consent.

      • You agree that Connexity may at any time assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under this Agreement.

  13. Force majeure. Connexity shall not be liable if it is unable to provide temporarily or otherwise the Merchant Program or the Connexity Network or other services under this Agreement by reason of force majeure. For this purpose, “force majeure” means any circumstance not within Connexity’s reasonable control including, without limitation: (a) act of God, flood, drought, earthquake or other natural disaster; (b) epidemic or pandemic; (c) terrorist attack, civil war, civil commotion or riot, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; (d) any law or any action taken by a government or public authority; (e) fire, explosion or accident; (f) any labour or trade dispute, strike, industrial action or lockout; (g) non-performance by suppliers or subcontractors; and (h) interruption or failure of internet or utility service.

  14. Miscellaneous.
      • 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.

      • 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.

      • The clause headings are for convenience only and shall not affect the interpretation of this Agreement.

      • 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.

      • Except for Connexity’s Agents, no person other than a party to this Agreement and its permitted assignees shall have any right to enforce any of its terms.

  15. Governing Law and Jurisdiction.
      • This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.

      • 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.

© 2018 Connexity, Inc.