BerryCart Advertising Program Terms

Last Updated February 1st, 2017
 

These BerryCart Inc. Advertising Program Terms (“Advertising Terms”) are entered into by BerryCart Inc. (“BerryCart”) and You (“Customer”, "Advertiser").  These Terms govern Customer’s participation in BerryCart’s advertising programs and services (i) that are accessible through the account(s) given to Customer in connection with these Terms or (ii) that reference or are referenced by these Terms (collectively, “Programs”).  In consideration of the foregoing, the parties agree as follows:

1) Programs

Customer authorizes BerryCart and its affiliates to place Customer’s advertising materials and related technology (collectively, “Ads” or “Creative”) on any content or property (each a “Property”) provided by BerryCart or its affiliates on behalf of itself or, as applicable, a third party (“Partner”). The Program is an advertising platform on which Customer authorizes BerryCart to use automated tools to format Ads. BerryCart or Partners may reject or remove a specific Ad or Target at any time for any or no reason. BerryCart may modify or cancel Programs at any time. BerryCart made add, remove, or modify the content of an Ad at anytime.

2) Policies

Customer is solely responsible for its use of the Programs (e.g., access to and use of Program accounts and safeguarding usernames and passwords) (“Use”).  All advertising, as well as the products and services being advertised, must clearly comply with all applicable laws and regulations related to trademark, copyright, and counterfeit goods. Customer authorizes BerryCart to modify Ads as described in Policies.

3) Ad Cancellation

Unless an agreement referencing these Terms provides otherwise, either party may cancel any Ad at any time before the placement without incurring a cancellation fee. Cancelled Ads that are live, will generally cease serving within 24 business hours and Customer remains obligated to pay all charges resulting from served Ads.  Customer must effect cancellation of Ads with notice to BerryCart via email to client-services@berrycart.com.

4) Warranty and Rights

Customer warrants that (a) it holds, and hereby grants BerryCart, its affiliates and Partners, the rights in Creative, Destinations and Targets for BerryCart, its affiliates and Partners to operate the Programs and (b) all information and authorizations provided by Customer are complete, correct and current.  Customer warrants that it is authorized to act on behalf of, and has bound to these Terms, third parties, if any, for which Customer advertises in connection with these Terms (“Advertiser”).  If for any reason Customer has not bound an Advertiser to these Terms, Customer will be liable for performing any obligation that the Advertiser would have if it had been bound to these Terms. Customer will provide Advertiser with reporting data as frequently as existing reporting from Customer to Advertiser, but no less than on a monthly basis, that discloses absolute dollars spent on BerryCart and performance in a reasonably prominent location.  BerryCart may, upon request of an Advertiser, share Advertiser-specific information with Advertiser.  If Customer is using a Program on its own behalf to advertise and not on behalf of an Advertiser, for that use Customer will be deemed to be both Customer and Advertiser.

5) Payment

Incentives sent by BerryCart to Users in addition to any BerryCart commission or monthly fees as set forth in campaign agreement, will be billed to the Customer’s account.  BerryCart will send an invoice to the Customer after the end of each month with the total monthly charges. If Customer has selected Credit Card payment, the credit card on file will be charged. If Customer selects to pay by check or ACH, payments are due within 10 business days of the Invoice date. Charges are solely based on BerryCart’s measurements for the Programs and the applicable billing metrics (e.g., engagement completions or purchase conversions).

The advertiser can define a threshold (“Redemption Threshold”) for when an Ad will be hidden from Passive Users after a certain number of redemptions have been completed. A Passive User is one who has not completed at least one action for the Ad. An Active User is one who has completed one or more Actions. In order to provide a positive user experience, any user who has completed at least one Action before the expiration date will still be able to redeem the Offer even after the Redemption Threshold has been reached. Therefore, the Advertiser must take into consideration that fact the actual Redmeptions will likely be greater than the Redemption Threshold.

Customer’s sole remedy is to make a claim for advertising credits within the Claim Period, after which BerryCart will issue the credits following claim validation.  TO THE FULLEST EXTENT PERMITTED BY LAW, (A) ADVERTISER AND CUSTOMER WAIVE ALL CLAIMS RELATING TO ANY PROGRAM CHARGES UNLESS A CLAIM IS MADE WITHIN THE CLAIM PERIOD AND (B) THE ISSUANCE OF ADVERTISING CREDITS (IF ANY) IS AT BERRYCART’S REASONABLE DISCRETION.

6) Disclaimers

EACH PARTY ON BEHALF OF ITSELF AND ITS AFFILIATES DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION FOR NON-INFRINGEMENT, SATISFACTORY QUALITY, MERCHANTABILITY AND FITNESS FOR ANY PURPOSE.  TO THE FULLEST EXTENT PERMITTED BY LAW, THE PROGRAMS AND BERRYCART AND PARTNER PROPERTIES ARE PROVIDED “AS IS” AND AT CUSTOMER’S AND ADVERTISER’S OPTION AND RISK AND NONE OF BERRYCART, ITS AFFILIATES OR BERRYCART’S PARTNERS MAKE ANY GUARANTEE IN CONNECTION WITH THE PROGRAMS OR PROGRAM RESULTS.

7) Limitation of Liability

EXCEPT FOR SECTION 10, TO THE FULLEST EXTENT PERMITTED BY LAW REGARDLESS OF THE THEORY OR TYPE OF CLAIM:  (a) NO PARTY OR ITS AFFILIATES MAY BE HELD LIABLE UNDER THESE TERMS OR ARISING OUT OF OR RELATED TO PERFORMANCE OF THESE TERMS FOR ANY DAMAGES OTHER THAN DIRECT DAMAGES, EVEN IF THE PARTY IS AWARE OR SHOULD KNOW THAT SUCH DAMAGES ARE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY; AND (b) OTHER THAN CUSTOMER’S PAYMENT OBLIGATIONS UNDER THESE TERMS, NO PARTY OR ITS AFFILIATES MAY BE HELD LIABLE FOR DAMAGES UNDER THESE TERMS OR ARISING OUT OF OR RELATED TO PERFORMANCE OF THESE TERMS FOR ANY GIVEN EVENT OR SERIES OF CONNECTED EVENTS IN THE AGGREGATE OF MORE THAN THE AMOUNT PAYABLE TO BERRYCART BY CUSTOMER UNDER THE TERMS IN THE THIRTY DAYS BEFORE THE DATE OF THE ACTIVITY FIRST GIVING RISE TO THE CLAIM.

8) Indemnification

Customer will defend, indemnify and hold harmless BerryCart, its Partners, agents, affiliates, and licensors from any third party claim or liability arising out of or related to Targets, Creative, Destinations, Services, Use and breach of these Terms by Customer.  Partners are intended third party beneficiaries of this Section.

9) Term

Either party may terminate these Terms at any time with notice to the other party, but (i) campaigns not cancelled under Section 3 and new campaigns may be run and reserved and (ii) continued Program Use is, in each case subject to BerryCart’s then standard terms and conditions for the Program available at www.BerryCart.com/terms.  BerryCart may suspend Customer’s ability to participate in the Programs at any time.  In all cases, the running of any Customer campaigns after termination is in BerryCart’s sole discretion. BerryCart may add to, delete from or modify these Terms at any time without liability. The modified Terms will be posted at www.BerryCart.com/terms.  Customer should look at these Terms regularly.  The changes to the Terms will not apply retroactively and will become effective 7 days after posting.  However, changes specific to new functionality or changes made for legal reasons will be effective immediately upon notice.

10) Miscellaneous

(a) ALL CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OR THE PROGRAMS WILL BE GOVERNED BY CALIFORNIA LAW, EXCLUDING CALIFORNIA’S CONFLICT OF LAWS RULES, AND WILL BE LITIGATED EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF ORANGE COUNTY, CALIFORNIA, USA; THE PARTIES CONSENT TO PERSONAL JURISDICTION IN THOSE COURTS.  (b) Nothing in these Terms will limit a party’s ability to seek equitable relief.  (c) These Terms are the parties’ entire agreement relating to its subject and supersede any prior or contemporaneous agreements on that subject. (d) No party may make any public statement regarding the relationship contemplated by these Terms (except when required by law).  (e) All notices of termination or breach must be in writing and addressed to the other party’s Legal Department (or if it is not known if the other party has a Legal Department then to the other party's primary contact). The email address for notices being sent to BerryCart’s Legal Department is legal@berrycart.com.  All other notices must be in writing and addressed to the other party’s primary contact.  Notice will be treated as given on receipt, as verified by written or automated receipt or by electronic log (as applicable).  These notice requirements do not apply to legal service of process, which is instead governed by applicable law.(f) Except for modifications to these Terms by BerryCart under Section 9, all amendments must be agreed to by both parties and expressly state that it is amending these Terms.  Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under these Terms.  If any provision of these Terms is found unenforceable, the balance of the Terms will remain in full force and effect.  (g) Neither party may assign any part of these Terms without the written consent of the other party, except to an affiliate but only where (I) the assignee agrees in writing to be bound by these Terms, (II) the assigning party remains liable for obligations under these Terms if the assignee defaults on them, and (III) the assigning party has notified the other party of the assignment.  Any other attempt to transfer or assign is void.  (h) Except as expressly listed in Section 10, there are no third-party beneficiaries to these Terms.  (i) These Terms do not create any agency, partnership or joint venture among the parties.  (j) Sections 5 to 10 will survive termination of these Terms.  (k) Except for payment obligations, no party or its affiliates is liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control.

11) Terms of Use

Please read BerryCart’s Terms of Use at www.berrycart.com/terms.  This Berry Cart Privacy Policy are hereby incorporated by reference into these Advertising Terms.  If any terms between this Advertising Terms and the standard user Terms of Use conflict, these Advertising Terms will take precedence between and Advertiser and BerryCart Inc.

12) Privacy

Please read BerryCart’s Privacy Policy at www.berrycart.com/privacy.  This Berry Cart Privacy Policy are hereby incorporated by reference into these Advertising Terms.