END-USER LICENSE AGREEMENT
(Effective as of September 22, 2018)
By clicking the "I accept" button, end user, as an individual or entity ("End User"), agrees to be bound by the terms of this End-User License Agreement (the "Agreement"). The Agreement is a binding agreement between End User and Media Solutions Corporation, a Kansas corporation ("MSC"). If End User does not agree with any of the terms or conditions of this License, it should not click "I accept" and should immediately notify MSC or the reseller with which it maintains a relationship to offer the Website and access the Services (the "Reseller").
2. SCOPE OF LICENSE. The license granted by MSC to End User for the Website and the Services is limited to a non-exclusive and non-transferable license to offer the Website to the public in connection with the advertising, promotion, marketing and general conduct of End User's retail grocery business (the "Purpose"). The license does not allow End User to use the Website content or the Services at any other domain name or for any other reason other than the Purpose. The terms of this Agreement will govern any upgrades or updates provided by MSC that replace and/or supplement the original Website, unless such upgrade or update is accompanied by a separate license agreement, in which case the terms of that license will govern.
3. LICENSE RESTRICTIONS. End User agrees that it will not:
3.1 rent, lease, license, loan, assign, sell, copy, sublicense or otherwise transfer the Website (including its Content) or the Services, in whole or in part, on a temporary or permanent basis, except as permitted by this Agreement;
3.2 engage in deceptive, misleading or unethical practices that are or might be detrimental to MSC, the Website or Services, or the public, including disparagement of MSC, the Website or Services;
3.3 use the Website and Services except as authorized herein;
3.4 use the Website or Services in any unlawful manner whatsoever;
3.5 remove, alter, cover, obfuscate, and/or otherwise deface any proprietary notices in or on the Website; and/or
3.6 modify, alter, adapt, copy, decompile, disassemble, reverse engineer or emulate the functionality, reverse compile, attempt to derive the source code of, reduce to human readable form, or create derivative works of the Website, in whole or in part, without the express prior written consent of MSC.
4. OWNERSHIP OF INTELLECTUAL PROPERTY LICENSE. End User acknowledges that MSC is the owner of all right, title and interest in and to all Intellectual Property and all Intellectual Property Rights in the Website in any form whatsoever including: a) the Services and any other products or services offered by MSC at any time; b) the technology available as part of the Services; c) all content, including but not limited to data, text, software, music, sound, photographs, video, graphics, health and nutrition information or other material contained on the Website or in the Services; and (d) the code used to create and operate the Website (collectively the "Content"). Content does not include any content that is created or contributed entirely by End User, independent of its use and access of the Website, and contributed for inclusion on the Website by End User with no intention by either End User or MSC for such material to be considered the material of MSC ("End User Content"). End User acknowledges that the Website, the Services and any other products or services offered by MSC are protected by United States and international copyrights, trademarks, service marks, patents, or other proprietary and intellectual property rights and laws. End User acknowledges that it claims no proprietary rights in any Intellectual Property of MSC, the Website, the Content or the Services, and will be entitled to only such rights as are granted to End User pursuant to any and all agreements with MSC and/or Reseller, and may be used only in accordance with the terms and conditions of such agreements and in furtherance of the Purpose. Except for any End User Content, all pending and/or registered trademarks and service marks, and other graphics, logos, and trade names used by MSC in connection with the Website, the Services, the Content and any other products or services offered by MSC (collectively the "MSC Trademarks") are the trademarks of MSC. End User shall not use the MSC Trademarks in any way in connection with its products or services, unless otherwise authorized to do so hereunder.
5. TERMINATION AND MODIFICATION.
5.1 MSC may terminate this Agreement and/or End User's use of the Website or the Services at any time, upon thirty days' written notice from MSC to End User. This Agreement and the rights granted hereunder are effective until terminated by End User or MSC. End User's rights under this Agreement will terminate automatically without notice from MSC if End User fails to comply with any term of the Agreement.
5.2 This Agreement will also immediately terminate upon the termination of the Reseller Agreement between MSC and Reseller.
5.3 Upon termination of the Agreement:
(a) the rights and license granted by MSC to End User pursuant to this Agreement shall automatically terminate; and
(b) End User will immediately cease all use of the Content and the Services;
(c) End User will return to MSC and/or destroy, at MSC's request, all Intellectual Property and other MSC Materials belonging to MSC, as applicable;
(d) MSC will return to End User and/or destroy, at End User's request, all End User Content;
(e) the URL (domain name) that End User paid to register as a part of its arrangement with Reseller shall become the property of End User only if the URL (domain name) does not contain or use any trademarks, service marks, designs, logos, name or any Intellectual Property of MSC, or any trademarks, service marks, designs, logos, names or any Intellectual Property licensed or made available to MSC by a third party (including but not limited to Shurfine, Shurfresh, Full Circle, IGA, Valutime, Clear Value, Valucare and Food Club, or anything confusingly similar thereto), or any other "own brand" or private label or name or marking of MSC, IGA or Topco; and
(f) the obligations of End User shall survive in accordance with their terms.
7. LIMITATION OF LIABILITY. END USER RECOGNIZES THAT THE INTERNET CONSISTS OF MULTIPLE PARTICIPATING NETWORKS THAT ARE SEPARATELY OWNED AND THEREFORE ARE NOT SUBJECT TO THE CONTROL OF MSC. END USER ALSO ACKNOWLEDGES THAT COMPUTER SYSTEMS ARE INHERENTLY UNSTABLE AND MAY MALFUNCTION OR CEASE TO FUNCTION AT ANY TIME WITHOUT WARNING. MALFUNCTION OR CESSATION OF INTERNET SERVICES BY INTERNET SERVICE PROVIDERS OR OF ANY OF THE NETWORKS THAT FORM THE INTERNET MAY MAKE THE SERVICES OR WEBSITE TEMPORARILY OR PERMANENTLY UNAVAILABLE. END USER AGREES THAT MSC SHALL NOT BE LIABLE FOR DAMAGES INCURRED DUE TO THE SERVICES OR WEBSITE BEING TEMPORARILY OR PERMANENTLY UNAVAILABLE. NEITHER MSC NOR ANYONE ELSE INVOLVED IN CREATING, PRODUCING, DELIVERING OR SUPPORTING THE SERVICES OR WEBSITE SHALL BE LIABLE TO END USER, OR TO ANY PARTY CLAIMING BY, THROUGH OR UNDER END USER, OR TO ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, EQUIPMENT, WEBSITE OR NETWORK DOWNTIME, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, HOWEVER ARISING, EVEN IF MSC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL MSC'S LIABILITY FOR ANY DAMAGES EXCEED THE AMOUNT OF FEES PAID BY RESELLER TO MSC ON BEHALF OF END USER. SUCH DAMAGES SHALL BE THE FULL EXTENT OF LIABILITY OF MSC UNDER THIS AGREEMENT, REGARDLESS OF THE FORM IN WHICH ANY SUCH LEGAL OR EQUITABLE CLAIM OR ACTION MAY BE ASSERTED AGAINST MSC, AND SHALL CONSTITUTE END USER'S SOLE REMEDY. END USER ACKNOWLEDGES AND AGREES THAT IN THE ABSENCE OF THESE LIMITATIONS OF LIABILITY, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY DESCRIBED ABOVE, SO THIS LIMITATION OF LIABILITY MAY NOT APPLY TO END USERS IN SUCH JURISDICTIONS.
8. NO WARRANTY. THE WEBSITE, SERVICES, INTELLECTUAL PROPERTY, CONTENT, END USER CONTENT AND ANY RELATED PRODUCTS, DATA AND SERVICES ARE SUPPLIED TO END USER "AS IS." MSC GIVES NO WARRANTIES, EXPRESS OR IMPLIED, RELATED THERETO, EXCEPT AS EXPRESSLY PROVIDED HEREIN. MSC DISCLAIMS, AND END USER EXPRESSLY WAIVES, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. MSC IS NOT RESPONSIBLE FOR ANY OBSOLESCENCE OF THE WEBSITE. MSC MAKES NO REPRESENTATION OR WARRANTY THAT THE WEBSITE'S FUNCTIONALITY WILL MEET END USER'S REQUIREMENTS. THE FOREGOING RESTRICTIONS, DISCLAIMERS, AND LIMITATIONS SHALL SURVIVE TERMINATION OF THIS AGREEMENT FOR ANY REASON.
9. INDEMNITY. End User agrees to indemnify, defend and hold MSC and its respective affiliates, customers, directors, officers, shareholders, employees, agents, representatives, successors and permitted assigns, harmless from and against any and all claims, suits, actions, proceedings, damages, costs, liabilities, losses, fines, penalties, and expenses (including, but not limited to, reasonable legal fees) (collectively, "Losses") arising out of, relating to or resulting from:
9.1 End User's or any third party's offering, access or use of or reliance on the Website, the Services, the End User Content, the Content or any other matter relating to the Website or the Services;
9.2 End User's misrepresentations, unauthorized actions or breach of this Agreement; or
9.3 Any negligent acts or omissions by End User.
10. CONFIDENTIALITY. During the term of this Agreement, each party (the "Disclosing Party") may provide the other (the "Receiving Party") with certain confidential and proprietary information ("Confidential Information"). Confidential Information includes, but is not limited to, the terms of this Agreement and all code, inventions, techniques, algorithms, know-how and ideas, all business, financial and technical trade secrets, any written information which is marked "Confidential" and any information which is orally disclosed, identified as confidential at the time of disclosure and confirmed in writing as being confidential within 30 days thereafter. However, "Confidential Information" will not include information that (a) is publicly known at the time of its disclosure or becomes publicly known thereafter through no fault of the Receiving Party; (b) is lawfully received by the Receiving Party from a third party not under an obligation of confidentiality to the Disclosing Party, (c) is published or otherwise made known to the public by the Disclosing Party, or (d) was generated independently by the Receiving Party before disclosure by the Disclosing Party. The Receiving Party will refrain from using the Disclosing Party's Confidential Information except to the extent necessary to exercise its rights or perform its obligations under this Agreement. The Receiving Party will likewise restrict its disclosure of the Disclosing Party's Confidential Information to those who have an absolute need to know such Confidential Information in order for the Receiving Party to perform its obligations and enjoy its rights under this Agreement. Such persons will be informed of and will agree to the provisions of this Section 10, and the Receiving Party will remain responsible for any unauthorized use or disclosure of the Confidential Information by any of them.
11. GENERAL INFORMATION
11.1 MSC or End User may present or otherwise make available advertisements or promotional materials via the Website and/or the Services. End User's, or its customers', dealings with, or participation in promotions of any third-party advertisers via the Websites or Services are solely between End User or its customers and such third party and End User's or its customers' participation is subject to the terms and conditions associated with that advertisement or promotion. End User agrees that MSC is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such third parties via the Website or the Services.
11.2 The Website and/or the Services may present links to third-party web sites or third-party services not owned or operated by MSC. MSC is not responsible for the availability of these third-party sites or services or their contents. End User agrees that MSC is not responsible or liable, directly or indirectly, for any damage or loss caused by or in connection with End User's use of, or reliance on, any content of any such third-party site or services or goods or services available through any such third-party site or service.
11.3 The Website and the Services are owned or licensed by MSC and are protected by United States copyright laws and international treaty provisions. End User will not sublicense, assign, or transfer the license granted to it under this Agreement. Any attempt to sublicense, assign, or transfer any of the rights, duties, or obligations in violation of the provisions of this Agreement is void.
11.4 Neither Party shall be liable for damages hereunder for a delay or failure in its performance of any obligation under this Agreement as a result of causes beyond its reasonable control, including acts of God, fire, riots, acts of war, terrorism, labor disputes, lockouts, embargoes, insurrection, riots, inability to obtain materials or labor due to governmental acts, rules, regulations or directives, utility or communication interruptions, transportation delays, power failure, computer failure, breakdown of machinery, accidents, fires, floods or other natural disasters (each a "Force Majeure Event"). Upon the giving of prompt written notice to the other Party of a Force Majeure Event, the time of performance by the Party so affected shall be extended to the extent and for the period that its performance of said obligations is prevented by such cause.
11.5 MSC is solely responsible for addressing any End User claims or claim of any third party relating to the Website and/or the Services including, but not limited to: (i) any claim that the Website and/or the Services fail to conform to any applicable legal or regulatory requirement; (ii) any claim that the Website or the Services infringe upon any third party's Intellectual Property Rights (except for End User Content, for which End User will be solely responsible); and (iii) claims arising under consumer protection or similar legislation.
11.6 MSC may from time to time make available to End User updates to the Website at no cost or subject to additional fees in MSC's discretion. MSC will have no obligation to continue producing or releasing new versions of the Website or any updates thereto. MSC is solely responsible for providing any maintenance and support services with respect to the Website, as it deems necessary and appropriate, as otherwise required by applicable Law or as requested by End User through Reseller. MSC and End User acknowledge that no other third party has any obligation or right to furnish any maintenance and support services with respect to the Website.
11.7 The provisions of this Agreement shall be governed by and construed and interpreted in accordance with the laws of the State of Nebraska, without reference to choice or conflicts of law principles. The parties agree that all litigation between MSC and End User which may arise out of or in connection with this Agreement or any transaction between them shall be subject to the exclusive jurisdiction of the courts of the State of Nebraska, and each hereby consents to the jurisdiction of such courts. Nothing contained in this Agreement shall prevent either party from applying to the appropriate court in any part of the world for an injunction or other like remedy to restrain the other party from committing any breach or anticipated breach of this Agreement and for consequential relief.
11.9 If End User should have any questions, complaints or claims with respect to the Website, such questions, complaints or claims should be directed to:
Media Solutions Corporation
2111 E Pecos Road
Chandler, AZ 85225
Phone: (480) 639-1200
12. DEFINITIONS. The following terms shall have the meaning stated in this Agreement:
12.1 "Intellectual Property" means all algorithms, application programming interfaces ("APIs"), concepts, confidential information, customer and other lists, data, databases and data collections, designs, diagrams, documentation, drawings, files, flow charts, formulae, discoveries, ideas and inventions (whether or not patentable or reduced to practice), know-how, materials, marketing and development plans, marks (including brand names, product names, logos, and slogans), methods, models, network configurations and architectures, notes, plans, presentations, procedures, processes, proposals, protocols, reports, records, schematics, software code (in any form including source code and executable or object code), specifications, spreadsheets, subroutines, techniques, uniform resource identifiers including uniform resource locators ("URLs"), user interfaces, web sites, works of authorship, and other forms of technology.
12.2 "Intellectual Property Rights" means all past, present, and future rights of the following types, which may exist or be created under the laws of any jurisdiction in the world: (i) rights associated with works of authorship, including exclusive exploitation rights, copyrights, moral rights, and mask work rights; (ii) trademark and trade name rights and similar rights; (iii) trade secret rights; (iv) patent and industrial property rights; (v) other proprietary rights in Intellectual Property of every kind and nature; and (vi) rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the rights referred to in clauses (i) through (v) of this sentence.
12.3 "Law" means any declaration, decree, directive, legislative enactment, order, ordinance, regulation, rule or other binding restriction of or by any governmental authority.
12.4 "Person" means any individual, corporation, limited liability company, partnership, firm, joint venture, association, joint-stock company, trust, unincorporated organization, governmental authority or other entity.
END USER ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, WILL BE BOUND BY ITS TERMS AND CONDITIONS AND THAT IT MAY NOT BE AMENDED BY END USER WITHOUT THE EXPRESS WRITTEN CONSENT OF MSC.