Vendor Social Rebate Agreement with Social Rebate

1. General Terms and Conditions

Each business that offers a Promotion that facilitates payment of a Social Rebate through Share Magnet LLC dba Social Rebate (“SR”) to any purchaser from such business online (“Vendor” or “you”), shall be subject to this Vendor Social Rebate Agreement (“Agreement”) upon making any such offer, once you ACCEPT or APPROVE this Agreement. The specific offer of a Social Rebate through the Social Rebate app (the “App”) accessed via signin to Facebook, Twitter, Google+, Pinterest, LinkedIn (or other social media platforms) or via the website located at www.socialrebate.com (the “Site”) is called a “Promotion” in this Agreement.

1. Promotions and Social Rebate. “Social Rebate” is an online promotion offered by Vendor (“Promotion”) to users of the SR app/platform (“Users”) and to purchasers of products and services offered by the Vendor (“Purchaser(s)”) based on the Purchaser’s recent purchase from the Vendor that allows the Purchaser to receive a rebate reward from his/her recent purchase (or if a User claims an offer in advance promising to purchase within 60 days (subject to the Promotion’s duration) by generating clicks, that is, unique web traffic from the Purchaser’s online social network of friends and acquaintances (“Network”) to the Vendor or its affiliate. Alternatively, a User can claim a Promotion offer in advance of a Purchase, subject to the User making a purchase within 60 days of such claim (“Advance Claim”), provided that the Promotion is still available, and further provided that the Promotion is shared with the Network for within five (5) days of being claimed. The term Social Rebate may also refer to the amount of payment or reward to which a Purchaser is entitled under a Promotion. Other activities also may generate a Social Rebate reward, such as a referral by a User or Purchaser, which results in a purchase from the Vendor by one of the Network third parties who click on the shared Promotion (“Referral” or “Conversion”).
   
   When offering Social Rebates, the Vendor must always display its actual retail pricing of products and services without factoring in potential Social Rebate savings, although it can indicate separately how much such price could be reduced if the full Social Rebate reward is received by the Purchaser, provided that this is clearly and fully explained. The Vendor must also take care to comply with any additional requirements and applicable laws that govern the advertisement of rebates.
   
   The Vendor must indicate clearly to the Purchaser in the Promotion that the Promotion, once accepted by the Purchaser, is a contract between the Vendor and the Purchaser, and SR merely acts as a third-party administrator or agent to facilitate the transaction and payment of the Purchaser, but SR has no liability for payment of the Purchaser unless the Vendor has duly paid SR.
   
   Vendor in offering a Social Rebate Promotion must act in good faith. This includes, but is not limited to, making timely payments to SR so that SR may make prompt Social Rebate payments to Purchasers. If you do not comply with your Social Rebate obligations, you risk violating applicable laws, including without limitation applicable consumer and advertising laws. Vendor acknowledges that in addition to probable legal action, any failure to meet its payment obligations under this Agreement will be shared by SR with the credit reporting agencies, despite any confidentiality restrictions agreed between the parties to this Agreement that might otherwise prevent such disclosure.



2. Amounts Owed by Vendor. SR will collect its own Promotion administration fees separately from the Vendor, calculated as a fixed fee for any purchase resulting from the Promotion, or for the Advance Claim of an Offer, with the amount of the fixed fee based on which SR Pricing Plan that you select. In addition, SR will collect a percentage of any Conversions, based on the actual advertised price of a product or service, and again the amount of the Conversion fee is based on the SR Pricing Plan that you select. The amounts that Vendor must pay SR as SR’s fees (“SR Fee”), and the pass-through amounts that Vendor owes the Purchaser (which are paid by SR as Vendor’s agent) are set forth under “Plans & Pricing” on the Site and in the SR App, and are binding on the Vendor. While SR has the right to modify its Plans & Pricing from time to time, effective upon posting on the above locations, such modification shall not affect any Vendor Promotions then in progress.
   
   The Social Rebate to which the Purchaser is entitled is an amount owed by the Vendor to the Purchaser, and SR’s fees constitute an entirely separate legal obligation that will be paid separately by the Vendor to SR The SR Fee is a contract between Vendor and SR, and if the SR Fee is not publicly disclosed by SR, it remains the confidential information of SR, not to be disclosed by Vendor.
   
   
3. Indemnity. By participating in SR’s Social Rebate Program and in any particular Promotion, Vendor agrees to indemnify, defend, and hold SR harmless from and against any and all claims of any Purchaser or third party brought against and/or incurred by SR or any officer, director, employee, or agent of SR in connection with Vendor’ participation in the Social Rebate Program, to the extent not caused by the gross negligence or willful misconduct of SR.

2. Specific Terms and Conditions of Vendor Promotions on Social Rebate

1. Vendor shall present its specific Promotion by notification on Vendor pages available to SR Users and/or by notification of the Promotion and Social Rebate to the online Purchaser through the purchase’s online receipt. The Promotion shall include: (a) Specific product(s) or service(s) covered by the Promotion; (b) the validity or duration period of the specific Promotion; (c) the minimum purchase amount that must have been incurred by Purchaser to qualify for the Social Rebate Promotion (if applicable); (d) the percentage or dollar amount of Social Rebate reward that Vendor will pay Purchaser if Purchaser is entitled to the full Social Rebate under the terms of the Promotion; (e) the number of valid clicks from Purchaser’s Network that will entitle Purchaser to receive the full Social Rebate, which number of clicks is chosen by Vendor in your sole discretion; as a guideline, SR recommends that you require the amount of clicks necessary is 50% of the total value you are offering back (ex. 5 clicks for 10% back, 10 clicks for 20% back); (f) Purchaser must be informed of the need to have an account on SR to accept the Promotion on any Store pages and on the online receipt, with appropriate links; (g) that the Promotion, once accepted by Purchaser, will have a five (5) day Share Period as defined below; (h) Vendor’s commitment to pay Purchaser (through its agent SR) the amount of Social Rebate to which the Purchaser is entitled in accordance with the Terms of Service set forth on the Site and in the App; and (i) that the Purchaser is subject to the SR Terms of Service applicable to Users and Purchasers. The “Share Period” is that period of five (5) days (subject to Paragraph 7 below) after the User accepts your Promotion (if an Advance Claim) or you receive your first click from the Purchaser’s Network during which the Promotion can be shared with the Purchaser’s Network (as defined herein) to enable the Purchaser to claim the Social Rebate from you.



2. Vendor will indicate to SR what the budget is for any Promotion, which can be per Promotion, or a daily, weekly or monthly budget that may cover one or more Promotions, and provide SR with a debit or credit card (“Vendor Card”) that is pre-authorized for such amount. Vendor shall do nothing to impair SR’s valid charges to such Vendor Card up to the preauthorized limit. Alternatively, SR may permit Vendors to establish a Promotion-related budget and make a deposit that meets an agreed threshold with SR of funds to hold (“Deposit”); the Deposit (which will not be interest-bearing) would then be reduced by the SR Fee and Social Rebate payments to Purchasers. Deposits will be replenished by Vendor upon request by SR. SR is authorized by Vendor to charge the Vendor Card or the Deposit for all clicks and any other Promotion-related activities determined by SR to be valid in accordance with each Promotion for which the Vendor Card and/or Deposit has been provided, plus the full amount of SR Fees attributable to the Promotions. The SR Fee shall be charged to the Vendor Card or Deposit, as applicable, once the User or Purchaser engages in any act that indicates acceptance of the Promotion, which includes an Advance Claim by the User, or the first valid click from the Purchaser’s Network or the other activities described in the General Terms and Conditions, above. In the event that a Vendor believes it is required by applicable tax law to withhold any amount due SR (whether SR Fee or Social Rebate payment), then any such amount shall be grossed up by Vendor so that the amount actually paid to SR after any withholding is the exact amount of Social Rebate payment or SR Fee, as the case may be, calculated by SR as due and owing.



3. SR will not hold any credit card information, all of which will be maintained by SR’s PCI-compliant payment gateway, with charges effected through SR’s merchant payment processor. In this manner, such sensitive personal/confidential information of Vendor will be maintained securely and in conformity with applicable financial, data security and data privacy regulations.



4. The Promotion will terminate once Vendor has incurred a predetermined dollar amount of Social Rebate payments (“Promotion Cap”). In fact, if you set a Promotion Cap, SR will use commercially reasonable efforts to ensure that no new Promotions are accepted by Purchasers (or ideally, even offered to Purchasers) once the Promotion Cap is reached. But you remain liable for payment under any outstanding Promotions already accepted by Purchasers, knowing that that your maximum exposure with respect to any Promotion will end five (5) days after the Promotion is terminated, i.e., the length of the Share Period.



5. To terminate any claimed Promotion for any other reason, you need to fill out a contact form and submit reason to for review; no Promotion is deemed terminated until SR receives and accepts such Form. SR has the right to review your reasons for termination, and the right to reject any termination if the Promotion Cap has not been reached. You will not incur any more SR Fees once SR accepts your termination of a Promotion in accordance with this provision.



6. Should any Purchaser return the goods or services on which you incurred Social Rebate payments, then the amount of payments that were actually paid to the Purchaser can be deducted by you from any refund or store credit that you issue to the Purchaser. All such amounts can be found in the payment section of the SR website. However, SR will not refund to you the SR Fee or any part thereof, nor can you deduct any SR Fee from any refund or credit owed to the Purchaser.



7. If any Promotion is interrupted for reasons attributable to you or to SR (excluding minor downtime on the Site such as regularly scheduled maintenance), that Promotion is stopped and expires immediately. Such Promotions can no longer be accepted by Purchasers, but any Promotions already accepted by Purchasers will continue for the Share Period, which is five (5) days plus any amount of accidental downtime. You remain liable for all payments on terminated Promotions earned by Purchasers during the Share Period, and for the SR Fee due SR on such Promotions.



8. If a Promotion is terminated by SR because a Vendor Card fails, or because a Deposit has not been replenished, you must immediately ensure that SR has a valid Vendor Card or that the Deposit has been replenished to the agreed threshold. For any failure attributable to a Vendor Card or inadequate Deposit, you will owe SR any amounts outstanding, plus additional SR Fee calculated as the greater of: (i) Ten Percent of the outstanding balance owed to Purchasers and SR, until Vendor repairs the payment problem entirely through full payment of the outstanding amounts owed to Purchasers and SR; and (ii) $35. If you fail to correct the Vendor Card or Deposit problem within three (3) business days, SR has the right to notify the credit reporting agencies of this failure to pay despite any confidentiality restrictions agreed between the parties to this Agreement that might otherwise prevent such disclosure.
   
   If after repeated attempts over time (generally 60 days) to notify a Purchaser that he or she is entitled to a Social Rebate payment due to successful participation in your Social Rebate Promotion, we cannot reach such Purchaser, because the PayPal or other payment method online address given to us by the Purchaser is incorrect and we have been unable to obtain a postal address, we will refund any remaining balance (minus purchaser penalty fees) in the Purchaser’s account to you (in our role as your agent and third-party administrator of the Promotion) so that you can either locate the Purchaser from your records or report the amount to the appropriate governmental authority for purposes of escheatment. It is your obligation to collect and retain any necessary information about your Purchasers who choose to participate in the Social Rebate Program in order to obtain rebates in connection with the purchase originally made from you.

3. Other Provisions of Vendor Agreement

1. Ownership and Copyright. The Social Rebate Program, and all content included on the Site and in the App, including text, graphics, logos, buttons, videos, icons and images and the overall look and feel of the Site and App and this particular compilation of content, is the property of SR, its licensors, and its content suppliers, and is protected by U.S. and international copyright laws and international treaties.



2. Trademark. SR, Social Rebate, the SR and Social Rebate logos (and Share Magnet logos) and all trademarks, service marks, and trade names appearing on the Site are the property of SR or of the respective owners that have granted SR the right to use such marks. No such marks or trade names can be used by you without express written consent.



3. Registration and Account Security. Vendors must provide their real names and information when you are prompted to create an account. Here are some commitments you make to us related to registering and maintaining the security of your account and the Social Rebate Program: (a) You will not provide any false information to SR, or create an account for anyone other than yourself without permission. (b) You will keep your contact information accurate and up-to-date. (c) You will not share your password, let anyone else access your account, or do anything else that might jeopardize the security of your account. (d) Registration and use will be limited to countries of SR’s choice.



4. Safety and Security. We do our reasonable best to keep SR and the Site and App safe and secure, but no website can guarantee safety or security. We need your help to keep the Site safe, including the following commitments: (a) You will not send or otherwise post unauthorized commercial communications (such as spam). (b) You will not collect Purchasers’ information, or otherwise access the Site, using automated means (such as harvesting bots, robots, spiders or scrapers) without our permission. (c) You will not upload or transmit viruses or other malicious code. (d) You will not solicit login information or access an account belonging to someone else. (e) You will not bully, intimidate or harass any Purchaser, or engage in any activity that could be considered defamatory or discriminatory. (f) You will not offer Social Rebates on anything that relates to alcohol, tobacco, restricted substances, pornography, or any illegal activity. (g) You will not facilitate or encourage any violations of this Agreement or of applicable law.



5. Third-Party and/or Linked Websites. We may include links to other websites as a convenience for you from the Site or the app. We are not responsible for any linked websites, and when you link to another website, you are subject to the Terms of Use/Service and Privacy Policy on that website (if any), and not this Agreement. We disclaim any liability for your visit to or use of any linked third-party websites.



6. Payment Issues. SR reserves the right to restrict access to the App and to the Site. Accordingly, Clicks from certain IP addresses outside the intended range or from locations other than those approved by SR may not be eligible for payment.



7. Disclaimer. WE MAKE NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO ANY PRODUCTS OR SERVICES OFFERED ON OR THROUGH SR’S APP OR SITE OR WHICH ARE THE SUBJECT OF ANY SOCIAL REBATE.



8. Actions We May Take. (a) We may make any inquiries that we consider necessary, either directly or through third parties, concerning your account. (b) We may cancel any transaction if we believe the transaction violates this Agreement, any applicable local, state or federal law, or if we believe doing so may prevent financial loss. (c) We may contact law enforcement, or affected third parties (including other users) and share details of any payments associated with you we believe doing so may prevent financial loss or a violation of law. (d) If your payment method fails or your account is past due, we may take steps to collect past due amounts using other collection mechanisms. You agree to pay all expenses associated with such collection, including reasonable attorneys' fees and costs. Interest will accrue on any past due amounts at a rate equal to the lesser of 1% per month or the lawful maximum.



9. Disputes and Reversals. (a) If you believe that an unauthorized or otherwise problematic transaction has taken place under your account, you agree to notify us immediately, so that we may take action to prevent financial loss. (b) To the fullest extent permitted by law, you waive all claims against us related to payments unless you submit the claim to us within 30 days of charge to the Vendor Card. (c) You are responsible for and agree to reimburse us for all reversals, charge-backs, claims, fees, fines, penalties and other liability incurred by us (including costs and related expenses) that were caused by or arise from payments that you authorized. (d) We may intervene in disputes between you and Purchasers concerning payments but have no obligation to do so.



10. Other Matters. (a) We may reject or remove a Promotion for any reason. (b) You personally represent and warrant that you have the legal authority to bind the Vendor to this Agreement. (c) By submitting information and Promotions to SR or via the App or Site, you grant SR the permission to use the information for public viewing and display. (d) SR also reserves the right, in its sole discretion, to delete or remove your Promotions from the Site and to restrict, suspend or terminate your access to all or part of the Site, at any time for any reason without prior notice or liability. (e) To the maximum extent permitted by applicable law, SR will have no liability related to Social Rebates or Promotions arising under the laws of copyright, defamation/libel, privacy, obscenity or otherwise. SR disclaims any and all liability with respect to the misuse, loss, modification or unavailability of any Promotion. (f) SR will have no liability related to Promotions or Social Rebates due to your improper or incomplete technical implementation of the Social Rebate Program which causes any problems for Users or Purchasers or SR.



11. Modification of Agreement. SR reserves the right, at any time, to modify, alter or update these Terms and Conditions and this Agreement, as well as the App and the Site, and you agree to be bound by such modifications, alterations or updates. Accordingly, you should check the date at the top of this Agreement, which indicates the date of last revision of this Agreement, and review the Agreement if the date has changed since the last time you visited SR, as this version applies to you.



12. Disputes
    
    1. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by final and binding arbitration in Los Angeles County, California, before a single arbitrator. The arbitration shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures, and the arbitrator shall apply the laws applicable in the State of California. Judgment on the award may be entered in any court having jurisdiction thereof. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitrator shall, in the award, allocate all or part of the costs of the arbitration, including the fees of the arbitrator and the reasonable attorneys’ fees (and accountant’s fees) of the prevailing party, for payment by the non-prevailing party, and shall determine the prevailing party for this purpose. You further agree that you will have no right to a trial by jury relating to the Program in any way.
    
    
    
    2. The laws of the State of California will govern this Agreement, as well as any claim that might arise between you and us, without regard to conflict of law provisions.
    
    
    
    3. If anyone brings a claim against us related to your action, omission, content or information in connection with a Promotion and/or the App or the Site, you will indemnify and hold us harmless from and against all damages, losses and expenses of any kind (including reasonable legal fees and costs) related to such claim.



13. Warranty; Limitation of Liability. WE TRY TO KEEP THE APP AND SITE ACCESSIBLE, UP TO DATE, BUG-FREE AND SECURE, BUT USE IT AT YOUR OWN RISK. WE ARE PROVIDING THE APP AND SITE “AS IS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE DO NOT GUARANTEE THAT THE APP OR SITE WILL BE SAFE OR SECURE. SR IS NOT RESPONSIBLE FOR THE ACTIONS, CONTENT, INFORMATION, OR DATA OF THIRD PARTIES, AND YOU RELEASE US, OUR DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST SUCH THIRD PARTIES (AND INDEMNIFY US FULLY AGAINST ANY CLAIMS THEY MAY HAVE AGAINST YOU EXCEPT AS OTHERWISE INDICATED HEREIN). IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE  1542, WHICH SAYS “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (I) WE WILL NOT BE LIABLE TO YOU FOR ANY LOST PROFITS OR OTHER CONSEQUENTIAL, SPECIAL, INDIRECT, OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR SR, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (II) OUR AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT OR THE APP OR SITE OR ANY SOCIAL REBATE PROMOTION WILL NOT EXCEED THE GREATER OF ONE HUNDRED DOLLARS ($100) OR THE AMOUNT YOU HAVE PAID US IN THE PAST TWELVE MONTHS. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASE, SR’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.



14. General. If any provision of this Agreement is found to be illegal, invalid or unenforceable by any court of competent jurisdiction, the rest of this Agreement shall remain in full force and effect, and the parties agree to use their best efforts to give effect to the parties' intentions as reflected in the provision, in any substituted provision. Except as expressly stated in this Agreement, no rights, remedies or benefits are conferred upon any person other than you and us. This Agreement sets out the entire agreement between you and us and supersedes any and all prior terms, conditions, warranties and/or representations to the fullest extent permitted by law. We may assign this Agreement on written notice to you provided that the assignee agrees to be bound by this Agreement. You may not assign this Agreement without our written permission but we will not unreasonably withhold such permission. SR is based in California, the Social Rebate Program and all related services are performed entirely in the United States, our servers are located in the United States, and this Agreement shall be deemed to be entirely performed in the United States for tax and all other purposes. Our failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.