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MerchantCircle Terms of Service

Last Updated: Mar 21, 2012 11:29AM PDT

MerchantCircle Terms of Service

1. ACCEPTANCE OF TERMS

Thank you for using MerchantCircle's innovative platform for consumers and businesses seeking to establish mutually beneficial business relationships. MerchantCircle provides the MerchantCircle service to you, subject to acceptance without modification of all of the terms and conditions contained herein and all other operating rules, policies and procedures that may be published from time to time on this site by MerchantCircle (collectively the 'Terms').

We reserve the right to modify these terms by posting a notice on our website, or by sending you a notice via email, postal mail or phone. You shall be responsible for reviewing and becoming familiar with any such modifications. Such modifications are effective immediately upon first posting or notification, and use of our website or any services by you following such posting or notification constitutes your acceptance of these Terms as modified.
 

IF YOU DO NOT AGREE TO ALL OF THESE TERMS, THEN DO NOT ACCESS OR USE THE SERVICE. BY VIEWING OR USING ALL OR ANY PART OF THE SERVICE, DOWNLOADING ANY MATERIALS OR BY COMPLETING THE SUBSCRIPTION AND INFORMATION REQUEST REGISTRATION PROCESS, YOU AGREE TO BE BOUND BY ALL OF THE TERMS.


2. THE MERCHANTCIRCLE SERVICE

MerchantCircle provides users with access to a rich collection of on-line resources, including without limitation business web page hosting services, consumer web page hosting service, on and off-line advertising services, couponing services, and the ability to contact merchants from whom consumers or businesses seek deals, or connections (collectively, the "Service"). Unless explicitly stated otherwise, any new features that enhance the current Service shall be subject to these Terms. In order to use the Service, you must obtain access to the World Wide Web, either directly or through devices that access web-based content, and pay any service fees associated with such access. In addition, you must provide all equipment necessary to make such connection to the World Wide Web, including a computer and modem or other access device.


3. REGISTRATION OBLIGATIONS

The Service is available to individuals who are at least 18 years old and a resident of the United States. If you do not so qualify, do not attempt to register for or use the Service. MerchantCircle may refuse to offer the Service to any person or entity and may change its eligibility criteria, at any time, in its sole discretion.


4. ACCOUNT USERS AND REGISTRATION OBLIGATIONS

In order to take advantage or use some of the features offered with the Services, you may be required to register and/or create an account with MerchantCircle. By creating an account, you agree to take full responsibility for maintaining the account user name, password, and all related activity that occurs under your account username. MerchantCircle reserves the right to close your account at any time for any reason or no reason, in its sole discretion. There are two classes of user accounts:
 

  1. A “Neighbor Account” is an account for your personal, non-commercial use only and may be used to submit, post, and transmit reviews, ratings, compliments, Talk to Me messages, invitations, photographs, and/or other types of content. Not forgoing below, you may not impersonate someone else (e.g., adopt the identity of a celebrity, fictional character or real person other than yourself) and the email address you provide must be your own.
  2. A “Business Account” is an account that represents a business listing on MerchantCircle. In claiming, creating or updating the Business Account, you must be the owner or an authorized employee or representative of that business. You may not provide an email address that is not your own or create multiple Business listings for the same business unless expressly authorized by MerchantCircle.


In consideration of use of the Service, you agree to:
 

  1. provide true, accurate, current and complete information about yourself as prompted by the Service's registration form (such information being the "Registration Data") and
  2. maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or MerchantCircle has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, MerchantCircle has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof).


Additionally, you agree that if you provide false information to obtain access to a MerchantCircle business site that you are not legally entitled to claim, MerchantCircle will be entitled to collect liquidated damages of $1000 per violation or actual damages incurred by MerchantCircle from you. You understand and agree that the service may include certain electronic and telephone communications from MerchantCircle, including but not limited to, service announcements, status reports, administrative messages and the MerchantCircle Newsletter, and that these communications are considered part of MerchantCircle membership and (except as prohibited by applicable law) you may not be able to opt out of receiving them.


5. MERCHANTCIRCLE PRIVACY POLICY

For information regarding how we treat personal information of our users, please see MerchantCircle's current, full Privacy Policy at which is incorporated by this reference.


6. USER CONDUCT

You understand that all information, data, text, software, music, sound, photographs, graphics, video, messages, lists or other materials ("Content"), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated. This means that you, and not MerchantCircle, are entirely responsible for all Content that you upload, post or otherwise transmit via the Service. MerchantCircle does not control the Content posted via the Service and, as such, does not guarantee the accuracy, integrity or quality of such Content, including but not limited to business endorsements and commentary. You understand that by using the Service, you may be exposed to Content that is offensive, indecent or objectionable.
 

You agree to not use the Service to:
 

  • Upload, post or otherwise transmit any Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;
  • Harm minors in any way;
  • Impersonate any person or entity, including, but not limited to, a MerchantCircle official, forum leader, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity;
  • Forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Service or develop restricted or password-only access pages, or hidden pages or images (those not linked to from another accessible page);
  • Upload, post or otherwise transmit any Content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
  • Upload, post or otherwise transmit any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
  • Upload, post or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
  • Promote or use the site for a commercial purpose for competitive products, except as expressly permitted by MercantCircle;
  • Keyword spam or to otherwise attempt to manipulate search results;
  • Interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
  • Intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law;
  • "Stalk" or otherwise harass another individual or merchant;
  • Collect or store personal data about users any individual or merchant (including for the purposes of advertising to or soliciting any MerchantCircle user to buy or sell any products or services) other than customers who willingly provide such information in order to explore bona fide business opportunities or connections.
  • Create or submit unwanted email or messaging ('Spam') to any other MerchantCircle user.


By using the Service you agree to hold responsibility for all Deals that you submit. MerchantCircle has no obligation to monitor user submitted content. However, MerchantCircle reserves the right to refuse or to remove any materials posted in its sole discretion and without informing you. By your use of the Service, you agree not to post any materials containing unlawful, defamatory, violation to other person’s privacy, distributing of unsolicited advertising, sexual, racial or religious content. You also agree that you will not seek to enforce any copyright on a specific coupon offer. You accept to waive any claim related to the inclusion, placement, exclusion, or removal of any coupon or promotional details in the MerchantCircle directory and to grant MerchantCircle a non-exclusive, royalty-free license to use, publish, copy, edit, modify, or create derivative works from your submission.

In addition, you agree that all hyperlinks and other offers comprising the Service (e.g. hyperlinks provided in connection with MerchantCircle's RSS feeds) may not be modified from the original form in which such hyperlinks and other offers are generally made available by MerchantCircle.


7. COUPONS/SALES/PROMOTIONS

If you as a merchant use either the sales, promotion, or the couponing feature (known collective as ‘Deals’) to provide consumers with Deals through the MerchantCircle platform, you represent and warrant that you have authority to offer such a Deal and promise to honor the terms of that deal as they are presented to the consumer through the MerchantCircle platform. Without limitation of other representations, warrants, and indemnities elsewhere within these Terms, you specifically agree to indemnify MerchantCircle against any claims by users of the Service that the terms of a coupon or other offered deal were not honored.


8. CONTENT SUBMITTED TO MERCHANTCIRCLE

MerchantCircle does not claim ownership of the Content you place on your MerchantCircle Site. By uploading, submitting or otherwise disclosing or distributing content of any kind on the MerchantCircle website or otherwise through the Service, you:
 

  • Grant to MerchantCircle, its affiliates and their assignees the perpetual, irrevocable, non-exclusive, royalty-free right to use, reproduce, display, perform, adapt, modify, distribute, make derivative works of and otherwise exploit such content in any form for the purpose of providing the Services, including without limitation, any concepts, ideas or know-how embodied therein;
  • Represent and warrant to MerchantCircle that you own or otherwise control all rights to such content and that disclosure and use of such content by MerchantCircle (including without limitation, publishing content at the MerchantCircle website) will not infringe or violate the rights of any third party; and
  • Acknowledge that the content may not be treated confidentially.


You agree not to provide MerchantCircle with any confidential or proprietary information that you desire or are required to keep secret.

You acknowledge that MerchantCircle does not pre-screen Content, but that MerchantCircle and its designees shall have the right (but not the obligation) in their sole discretion to remove or block access to any Content that is available via the Service. Without limiting the foregoing, MerchantCircle and its designees shall have the right to remove any Content that violates the Terms or is otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content.


9. AD DOLLARS

MerchantCircle AdDollars are earned through behavior on the MerchantCircle service and have no cash value or other independent economic value. AdDollars ONLY apply to Business Accounts

You agree not to abuse AdDollars privileges through conduct which is detrimental to the interests of MerchantCircle, including but not limited to attempting to accrue AdDollars or spend AdDollars contrary to the expressed intent of the program, having multiple accounts, attempting to earn AdDollars through illegitimate means such as purchasing or redemption fraud, or tampering with AdDollars award links.
 

MerchantCircle reserves the right to terminate or disable, at its sole discretion, any MerchantCircle account if it believes you have acted contrary to the intent of this Agreement. You understand and agree that disabling your account will result in your inability to redeem and/or earn AdDollars. You understand and agree that termination of your MerchantCircle account will result in the cancellation of all AdDollars you may have earned.
 

MerchantCircle shall have sole and exclusive discretion in determining abuse, fraud, or violation of its rules and any decision it makes relating to termination of membership or cancellation of AdDollars shall be final and binding.
 

MerchantCircle reserves the right to adjust your AdDollars balance with award reversals for transactions not completed or cancelled. AdDollars may be spent only on rewards offered through MerchantCircle at the time of redemption.
 

MerchantCircle is not responsible for lost or stolen rewards once issued. Rewards are subject to change at any time without notice. The number of AdDollars required to redeem for a reward are subject to change at any time without notice.
 

AdDollars will be subtracted from your account once the redemption order is placed by you and captured by the MerchantCircle system. Once used to claim a reward, AdDollars will not be reinstated to your account.
 

MerchantCircle reserves the right to cancel or disable accounts and expire unredeemed AdDollars in those accounts that are inactive for a period of 6 consecutive months. You acknowledge that you may only participate in Ad Dollars if and to the extent that such participation is permitted by applicable laws, rules, and regulations.


10. INDEMNITY

You agree to indemnify and hold MerchantCircle, and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your Content, your use of the Service, your connection to the Service, your violation of the Terms, or your violation of any rights of another.


11. NO RESALE OF SERVICE

You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service.


12. MODIFICATIONS TO SERVICE

MerchantCircle reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that MerchantCircle shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.


13. TERMINATION

You agree that MerchantCircle, in its sole discretion, may terminate your password, MerchantCircle Site, use of the Service or use of any other MerchantCircle service, and remove and discard any Content within the Service, for any reason, including, without limitation, for lack of use or if MerchantCircle believes that you have violated or acted inconsistently with the letter or spirit of the Terms. MerchantCircle may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this Terms may be effected without prior notice, and acknowledge and agree that MerchantCircle may immediately deactivate or delete your MerchantCircle Site and all related information and files in your MerchantCircle Site and/or bar any further access to such files or the Service. Further, you agree that MerchantCircle shall not be liable to you or any third-party for any termination of your access to the Service.


14. ADVERTISEMENTS

MerchantCircle runs advertisements and promotions on MerchantCircle Sites. By creating your MerchantCircle Site, you agree that MerchantCircle has the right to run such advertisements and promotions. The manner, mode and extent of advertising by MerchantCircle on your MerchantCircle Site are subject to change in the sole discretion of MerchantCircle.


15. COUPONS, DEALS, AND PROMOTIONS

Your correspondence or business dealings with, or participation in promotions of, merchants or advertisers found on or through the Service, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such merchant or advertiser. You agree that MerchantCircle shall not be 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 advertisers on the Service.


16. SEARCH ENGINE MARKETING ("SEM") OR 'CIRCLE' PACKAGES MERCHANT AGREEMENT TERMS AND CONDITIONS

Please carefully read this agreement, including the SEM package chosen, before filing it in a safe place.
 

By accepting this agreement, the merchant is bound by its conditions. It covers important topics such as the merchant's SEM package, MerchantCircle's rights to change its conditions, billing and cancellation policy, and how long the agreement lasts. If the merchant accepts this agreement, it will apply to all SEM packages from MerchantCircle.
 

SEM PACKAGES
 

Merchant agrees and understands that MerchantCircle SEM packages are comprised of a monthly service that creates and manages keyword ad campaigns on major search engines. All SEM packages include the following features: building local merchant networks, change incorrect information, being listed in MerchantCircle city, zip, and category directories, uploading image and videos, creating coupons from a selection of templates and advertising on MerchantCircle listing pages. MerchantCircle reserves the right to modify these features at any time subject to the notice requirements set forth herein. (See Section 23, Notice.)
 

THIS AGREEMENT STARTS WHEN THE MERCHANT ACCEPTS. The merchant accepts when they do any of the following things after an opportunity to review this agreement:
 

  • Give MerchantCircle an electronic signature;
  • Tell MerchantCircle orally or electronically that you accept;
  • Open a package that says the merchant accepts by opening it; or
  • Use the merchant's service after making any change or addition when MerchantCircle told the merchant that the change or addition requires acceptance.


IF THE MERCHANT DOESN'T WANT TO ACCEPT, DON'T DO ANY OF THESE THINGS.


BILLING AND CANCELLATION

Except as explicitly permitted by this agreement, the merchant agrees to maintain service with MerchantCircle for the minimum term. After that, the merchant becomes a month–to–month customer under this agreement. The merchant can cancel their account any time after the minimum term. All cancellation requests must be submitted online through the merchant's account manager via their MerchantCircle Dashboard.


17. INSTANT WEBSITE PRODUCT

Merchant agrees and understands that the "Instant Website" product is comprised of one or more domain names, website pages, hosting, and basic performance statistics reflecting performance of each website. Merchant further understands that this product is intended as a complementary extension of their MerchantCircle listing page.


DOMAIN NAME USAGE AND OWNERSHIP

Merchant agrees that domain names are purchased on the member's behalf by MerchantCircle who gives the merchant unlimited usage to the domain in conjunction with the "Instant Website" product for as a long as a merchant remains a customer. Merchant further understands that MerchantCircle is the registered owner on record of each domain name and makes possible the merchant's ongoing usage of the domain name for the duration of the merchant's subscription period. Merchant is fully responsible for making sure the domain name(s) chosen are not in violation of any existing trademarks.


BILLING & CANCELLATION

Merchant agrees to a pay monthly usage fee agreed to at the time of purchase for usage of each "Instant Website" product. This usage fee gives the merchant ongoing usage of and access to the domain name, website, and performance statistics.

Merchant may cancel their "Instant Website" product at any time after the first 6 months and understands that cancelling their Instant Website product forfeits usage of domain name(s), existing content, and website design as well as the individual pages (of the website) to MerchantCircle. "Instant Website" product(s) cancelled will revert back to MerchantCircle’s control and remain as a MerchantCircle asset. Any requests to transfer a domain name provisioned for the Instant Website product is subject to a $199 transfer fee.


18. "WE BUY YOUR NEXT YELLOW PAGES AD" PROMOTION

TERMS AND CONDITIONS

BY PARTICIPATING IN THE "WE BUY YOUR NEXT YELLOW PAGES AD" PROMOTION (THE "PROMOTION") OFFERED BY MERCHANTCIRCLE, YOU OR THE ENTITY OR COMPANY THAT YOU REPRESENT (THE "COMPANY") ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THESE TERMS AND CONDITIONS ("AGREEMENT"). IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.


ELIGIBILITY

To qualify for the Promotion, Company must be a new paying customer and: (a) purchase a qualifying "We Buy Your Next Yellow Pages" promotional package for one year and remain a customer in good standing for at least twelve (12) months; (b) create a MerchantCircle business listing through the process provided on the MerchantCircle website ("Listing"); (c) provide a detailed description of Company’s business; (d) upload a minimum of three (3) images upon creating Company’s Listing ; (e) associate a minimum of (3) three tags with Company’s Listing, (f) provide additional information necessary to generate paid advertisements as defined during the enrollment process; and (g) use the MerchantCircle network to invite a minimum of five (5) other valid merchants, as defined by providing a valid email address for five (5) unique local businesses, to connect with Company. Further, for each month for a period of twelve (12) months from the date Company creates its Listing, Company must: (w) log into its MerchantCircle account; (x) write and publish a minimum of one (1) entry on its MerchantCircle blog; (y) write and send a newsletter to at least 20 recipients and (z) upload a minimum of one (1) image or coupon to Company’s Listing.


PROMOTION

Provided that Company has satisfied all of its obligations under Section 1 and complied with all other terms of this Agreement, if at the end of twelve (12) months from the date Company creates its Listing the Company is not satisfied with the results of using MerchantCircle, MerchantCircle will pay Company six hundred dollars ($600), payable as a lump sum or in twelve (12) monthly payments of fifty dollars ($50) each as determined by MerchantCircle in its sole discretion, for Company to purchase and maintain a Yellow Pages advertisement. To initiate this process, Company must send an email to buymyyp@merchantcircle.com within 15 days after the one year anniversary of initial "We Buy Your Next Yellow Pages" promotional package. Company will be required to cancel all paid services via their MerchantCircle dashboard before initiating the redemption process.


TERMS OF SERVICE AND PRIVACY POLICY

MerchantCircle's Terms of Service and Privacy Policy, made available online at http://www.merchantcircle.com/corporate/tos.html and http://www.merchantcircle.com/corporate/privacy.html, as those policies may be changed from time to time, are hereby incorporated by reference into this Agreement, and Company agrees to be bound by and shall at all time comply with such Terms of Service and Privacy Policy. It is Company’s responsibility to be aware of any change to the Terms and Conditions by checking the TOS Agreement regularly.


19. LINKS

The Service may provide, or third parties may provide, links to other World Wide Web sites or resources. Because MerchantCircle has no control over such sites and resources, you acknowledge and agree that MerchantCircle is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that MerchantCircle shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource.


20. MERCHANTCIRCLE PROPRIETARY RIGHTS

You agree that all content and materials delivered via the Service or otherwise made available by MerchantCircle are protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. Except as expressly authorized by MerchantCircle in writing, you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from such materials or content. However, you may print or download a reasonable number of copies of the materials or content at MerchantCircle's website for your internal business purposes; provided, that you retain all copyright and other proprietary notices contained therein. Systematic retrieval of data or other content from MerchantCircle's website to create or compile, directly or indirectly, a collection, database or directory without written permission from MerchantCircle is prohibited. Any third party that contacts our users for commercial reasons, including to sell them products or services, is in violation of these terms and each individual violation is subject to $3,000 in penalties per instance.

Reproducing, copying or distributing any content, materials or design elements on the MerchantCircle website for any other purpose is strictly prohibited without the express prior written permission of MerchantCircle. Use of the content or materials for any purpose not expressly permitted in these Terms is prohibited. Any rights not expressly granted herein are reserved.

You acknowledge and agree that the Service and any necessary software used in connection with the Service ("Software") contain proprietary and confidential information that is protected by applicable intellectual property and other laws. MerchantCircle grants you a personal, non-transferable and non-exclusive right and license to use the object code of its Software on a single computer; provided that you do not (and do not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Software. You agree not to modify the Software in any manner or form, or to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to the Service. You agree not to access the Service by any means other than through the interface that is provided by MerchantCircle for use in accessing the Service.


21. DISCLAIMER OF WARRANTIES

YOU EXPRESSLY UNDERSTAND AND AGREE THAT:

  1. YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. MERCHANTCIRCLE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
  2. MERCHANTCIRCLE MAKES NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, AND (V) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
  3. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
  4. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM MERCHANTCIRCLE OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.

22. LIMITATION OF LIABILITY

IN NO EVENT SHALL MERCHANTCIRLE (OR ITS AFFILIATES, LICENSORS OR SUPPLIERS) BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) MATTER BEYOND ITS REASONABLE CONTROL, (B) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (C) DIRECT OR INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL, OR (D) AMOUNTS IN THE AGGREGATE GREATER THAN TEN DOLLARS ($10), EVEN IF MERCHANTCIRCLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.


23. EXCLUSIONS AND LIMITATIONS

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 20 AND 21 MAY NOT APPLY TO YOU.


24. NOTICE

Notices to you may be made via either email or regular mail. The Service may also provide notices of changes to the Terms or other matters by displaying notices or links to notices to you generally on the Service.


25. COPYRIGHTS

MerchantCircle respects the intellectual property rights of others and we ask our users to do the same. Please see our copyright policy at http://www.merchantcircle.com/corporate/copyright.html.


26. GENERAL INFORMATION

The Terms constitute the entire agreement between you and MerchantCircle and govern your use of the Service, superseding any prior agreements between you and MerchantCircle (including, but not limited to, any prior versions of the Terms). These Terms and the Service contemplated hereunder are personal to you, and are not assignable, transferable or sublicensable by you except with MerchantCircle's prior written consent. MerchantCircle may assign, transfer or delegate any of its rights and obligations hereunder without consent. You also may be subject to additional terms and conditions that may apply when you use affiliate or other MerchantCircle services, third-party content or third-party software. The Terms and the relationship between you and MerchantCircle shall be governed by the laws of the State of California without regard to its conflict of law provisions. You and MerchantCircle agree to submit to the personal and exclusive jurisdiction of the courts located within San Mateo County, California. The failure of MerchantCircle to exercise or enforce any right or provision of the Terms shall not constitute a waiver of such right or provision. If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section titles in the Terms are for convenience only and have no legal or contractual effect.


27. VIOLATIONS

Please report any violations of the Terms to us at tosv@merchantcircle.com

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