Disclaimers

Benefit Barcode Inc. – Terms of Use

Last updated in January 2019

 

Benefit Barcode, Inc., a Delaware corporation (hereinafter “us”, “we”, “Benefit Barcode”, or “www.BenefitBarcode.com”) operates the BenefitBarcode.com website, contained within or otherwise available through external hyperlinks within such websites, mobile and other applications of the foregoing, and associated social media outlets (collectively, the “Site”). The terms of use and all terms and conditions contained or referenced herein, our privacy policies, cookie policy and, for particular services, any additional posted terms and conditions that apply to such services (collectively, the “Terms and Conditions”) apply to your use of the Site, or any of the products or services offered through the Site, including your communications with us. By using the Site or any of the products or services offered through the Site, you agree to these Terms and Conditions.

We may update these Terms and Conditions from time to time without any notice to you. You agree that it is your responsibility to review the Site and these Terms and Conditions periodically to learn of any modifications. Your continued use of the Site, or any product or service offered through the Site, after the posting of any modifications shall constitute your agreement to be bound by such modified Terms and Conditions.

IF YOU DO NOT AGREE TO THESE TERMS AND CONDITONS, DO NOT USE THE SITE; YOU MUST LEAVE THIS PAGE AND MAY NOT ACCESS OR OTHERWISE USE THE SITE.

The following terms and conditions (hereinafter the “Agreement”) govern your participation in the use of the Site, any other related products or services provided by Benefit Barcode (taken together the "Service"). The Service is owned and operated by us. The Service is offered subject to your (hereinafter the "User") acceptance and agreement without modification of all of the terms and conditions contained herein and all other operating rules, policies and procedures that may be put into practice by or published from time to time on the Site by us.

BY USING OR ACCESSING ANY PART OF THE SERVICE, YOU AGREE TO ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN, INCLUDING OUR PRIVACY POLICY. IF YOU DO NOT AGREE, DO NOT USE OR ACCESS THE SERVICE. BY CLICKING THE “AGREE” BUTTON YOU (I) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (II) ACCEPT THIS AGREEMENT; AND (III) AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS AND THE CHANGES THERETO. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE SITE.

1. ACCESS

Subject to the terms and conditions of this Agreement, the Service is provided solely for User's own personal use. Benefit Barcode may change, suspend or discontinue the Service at any time, including the availability of any feature, function, content or benefit. Benefit Barcode may also impose limits on certain features and services or restrict User's access to parts or all of the Service without notice or liability. Benefit Barcode reserves the right, at its discretion, to modify this Agreement at any time by posting a notice on the Site or by sending User a notice via email.

User shall be responsible for reviewing and becoming familiar with any such modifications. Use of the Service following such notification constitutes User's acceptance and agreement of the terms and conditions of this Agreement as modified.

Notwithstanding the foregoing, Benefit Barcode may change any of its products, services, offers or rewards at any time with or without notice. The Service is available only to individuals who are at least 18 years of age. This Agreement is void where prohibited by law, and the right to access the Service is revoked in such jurisdictions.

2. REGISTRATION

In order to purchase, redeem or use any products or services through the Site, or access certain other features of the Site, you may be required to register with an email address and select a password. Your email address shall serve as your username. If you register, you agree to provide us with accurate and complete registration information, and to inform us immediately of any updates or other changes to such information. You may not select or use a false name, or an email address owned or controlled by another person with the intent to impersonate that person or use as a username a name that is subject to any rights of a person other than you without proper authorization. You will keep all such information updated and will not provide any third party with access to your account. Each User may only have one registered account.

As a condition of account registration, we require that you allow us to send you notifications via email including informational and promotional emails. This is required so we can provide you with a convenient way to access your orders, view your past purchases, review your shopping cart, and modify your preferences. You may opt out of promotional emails at any time as set forth in our terms and conditions.

You are fully responsible for all activities that occur under your username and password, whether or not you authorize such activities. You are also responsible to maintain the security of any passwords or other account login information. You shall immediately notify us of any unauthorized use of your account. We reserve the right to refuse registration of, or cancel a username, for any reason.

3. MEMBERSHIPS

3.1. Definitions

“Bercode” refers to a randomly generated individual 18-digits code that Benefit Barcode generates, registers, monitors, and controls. The User may take advantage of certain discounts when uses the Bercode. Bercodes are divided into various categories, where each of the categories refers to a different level of discount that may be accessed. Such levels are including: Basic, Light, Classic, Extra and Business. A Bercode is valid for up to forty (40) months from the date when we generated it.

“Bercode Advantage” is an offer to the Bercode Holder to enable the Bercode Holder to take advantage of a specific discount extended by a Merchant to the Bercode Holders. Bercode Holders may utilize an offered discount only if they in fact have hold and have access to a Bercode virtually or in their physical form, a plastic card, a plastic key tag, or a sticker.

“Merchant Certificate” is a specific promotional offer of a Merchant specified on the certificate itself and made available through the Site that can be accessed or printed and then used for redeeming the offer at the Merchant location or website.

“Benefit Barcode Specials” is a promotional offer of Benefit Barcode to purchase the goods or services offered on the Site by us and/or third party merchant product.

3.2. After your valid registration with your email address and password you will become a registered user of our Site (hereinafter “Registered User”) and you may register your previously acquired Bercodes, purchase new Bercodes or make purchases in the web shop.

3.3 As a Registered User, if you choose to register your previously acquired Bercodes and/or purchase new Bercodes you will automatically become a Bercode Holder (hereinafter the “Bercode Holder”) and you may choose to issue Bercodes or use discounts offered in the form of Merchant Certificates or Benefit Barcode Specials. Only Registered Users may become Bercode Holders.

3.4. As Bercode Holder, if you choose to become a Bercode issuer you may be authorized by Benefit Barcode to issue Bercodes (hereinafter the “Bercode Issuer”). Only Bercode Holders may become Bercode Issuers.

3.5. As a Bercode Issuer, if you operate any kind of shop, store, market, restaurant or similarly valid and legal establishment, or a web shop you may choose to offer a discount to the Bercode Holders and become a Merchant (hereinafter the “Merchant”). Only Business level Bercode Issuers may become Merchants.

3.6. As a Merchant, you may participate in the Priority Merchant program. If you are a Merchant and wish to utilize our Site for your advantage by using our advertisements, you shall consent to pay Benefit Barcode a commission after the sales you generated and share your customers’ data with us (hereinafter the “Priority Merchant”). Only Merchants may become Priority Merchants.

3.7. Bercode levels currently include Basic, Light, Classic, Extra and Business levels, respectively.

3.7.1. Basic: Opportunity to take advantage of a limited variety of discounts that are offered by some of the Priority Merchants.

3.7.2. Light: Opportunity to take advantage of an unlimited variety of discounts that are offered by some of the Priority Merchants.

3.7.3. Classic: Opportunity to take advantage of an unlimited variety of discounts that are offered by the Merchants.

3.7.4. Extra: Opportunity to take advantage of an unlimited variety of discounts that are offered by the Merchants, and additional special discounts that are offered by some of the Merchants, who typically provide premium services to their clientele.

3.7.5. Business: Opportunity to take advantage of an unlimited variety of discounts that are offered by the Merchants, and additional special discounts that are offered by some of the Merchants, who typically provide premium services to their clientele, as well as a potential revenue increase under certain circumstances in the case of small businesses serving areas defined in geographical terms as specific locales. 

3.8. Bercode levels Basic and Light, respectively are free of charge. Bercode levels Classic, Extra and Business levels are individually priced. The detailed pricing information is indicated in Annex 1.

4. PURCHASE OF SERVICES AND PRODUCTS

By engaging in a transaction, including registering on our Site, ordering any of the services or placing an order for any of the products, your activity is governed by our terms and conditions. The Bercode upon issuance will be transferred to a plastic card, a plastic key tag, or a sticker. You may choose among various designs and select the form in which your Bercode is issued. Our currently available forms to which you could have the Bercode transferred include and are limited to a plastic card, a plastic key tag, or a sticker. This variety of the forms is subject to change, and the availability of them may vary. You may have a choice to design the appearance of the actual from you selected and how your Bercode is displayed in such form. The combination of the available forms and designs may be selected under the “Design My Bercode” tab. You may experiment with various graphics including graphical or photographic items you may upload and design the version you like the most.

4.1. Pricing and Availability 

Benefit Barcode does not guarantee availability of the Merchant Certificate, the Benefit Barcode Specials, and reserves the right to modify or discontinue the Merchant Certificate or the Benefit Barcode Specials at any time, or to add fees at any time. All Merchant Certificates and all Benefit Barcode Specials are subject to change, and the pricing of them may vary. Benefit Barcode reserves the right to cancel any order due to an error. Limited quantities of certain Merchant Certificates and all Benefit Barcode Specials may be available and any promotional offers or specials are good only while supplies last.

4.2 General Terms and Conditions for All Certificates and Specials

The following provisions apply to all Merchant Certificates and Benefit Barcode Specials:

            4.2.1. Merchant Certificates and Benefit Barcode Specials have no cash value and are not redeemable for cash.

            4.2.2. Merchant Certificates and Benefit Barcode Specials cannot be returned for a refund, may not be applied to previously placed orders, cannot be combined with other promotions or offers, unless it is specifically stated otherwise.

            4.2.3. The unauthorized reproduction, resale, modification, or trade of Merchant Certificates and Benefit Barcode Specials is prohibited and may result in their cancellation, and potential suspension or termination of your account.

            4.2.4. Benefit Barcode is not responsible for lost, stolen, damaged or undeliverable Merchant Certificates and Benefit Barcode Specials, including those that may be lost in transmission.

                        4.2.5. Benefit Barcode does not guarantee delivery times of Merchant Certificates

            and Benefit Barcode Specials and any delivery times given are estimates only.

                        4.2.6. Offers may be subject to additional terms of conditions provided either by the participating Merchant or Benefit Barcode.

4.3. Bercode Issuance and Bercode Production

The Bercode may be issued by Benefit Barcode or a Bercode Issuer. However, the actual Bercode issuance is arranged solely by Benefit Barcode via its own platform. The actual Bercode issuance means that Benefit Barcode randomly generates an individual 18-digits code. Consequently, the production of the Bercode means the transfer of the randomly generated individual 18-digits code that we created via our own platform, to a plastic card, a plastic key tag, or a sticker refers to the manufacturing of a form that displays the Bercode. Only Benefit Barcode is authorized to produce the Bercode in a form that was indicated by the Bercode Holder or a Bercode Issuer and requested from Benefit Barcode. Bercode Issuers are obligated to request the manufacturing of the Bercode in the preferred form from Benefit Barcode. Accordingly, a Bercode Issuer may notify us in connection with the form and design selected and we confirm the availability of such combination. Designs that are in violation of our terms and conditions, or any laws will be rejected, and the Bercode Issuer will be informed about the rejection. Alternatively, a Bercode Issuer may decide to order a specific number of Bercodes and indicate at the time of the order that the manufacturing of a form, i.e.: a plastic card, a plastic key tag, or a sticker is not requested to display the Bercodes; instead the specific number of Bercodes be transferred electronically to the Bercode Issuer as a batch of Bercodes. The Bercode Issuer may transfer such Bercodes received electronically as part of a batch to any item it deems appropriate. You may order the actual issuance of your Bercode with or without the production thereof under the “Order My Bercode” tab.

4.4. The production of the Bercode may be available for order through two different methods of manufacturing.

4.4.1. Re-Transferring Technology

Plastic card, a plastic key tag, or a sticker made with re-transferring technology have a maximum one (1) validity starting on the date when we issue the Bercode. The Bercode Holder’s name and the validity period are displayed.

4.4.2. Offset Technology

Plastic card, a plastic key tag, or a sticker made with offset technology have an unlimited validity period as it could be revalidated each time as a new sticker displaying the validity period is requested and issued.

4.5. Bercode Issuers may sell Bercodes in line with Benefit Barcode’s pricing or set its own pricing and sell Bercode in accordance with such prices that are set by Benefit Barcode as the mandatory minimum price for all Bercode Issuers. Bercode Issuers may sell Bercodes as a standalone item, a Bercode on a plastic card, a plastic key tag, or a sticker, or have a different form or medium manufactured for displaying the Bercode. Benefit Barcode issues and produces only plastic cards, plastic key tags, or stickers in order to fulfill request submitted through “Order My Bercode”. Bercode Issuers may procure other forms from service providers other than Benefit Barcode to have other forms to display a Bercode. Benefit Barcode is not responsible for any Bercodes that were transferred to a form other than the form in which Benefit Barcode originally displayed the Bercode. Bercode Issuers may sell Bercodes online or offline.

4.6. Parties acknowledge and agree that the damages suffered by Benefit Barcode as a result of a breach by Bercode Issuer of the covenant set forth in Section 4 hereof or in the Annex of this Agreement, governing the mandatory minimum price, may be difficult to determine with certainty and in an expeditious manner. In order to effectively cure the breach, as the alternative to other dispute resolution options set forth in Section 17, Parties agree that liquidated damages in the amount of $100,000.00 (One Hundred Thousand US Dollars) shall be awarded to Benefit Barcode in addition to any injunctive relief available under Section 17 hereof. Bercode Issuer shall have the obligation to pay the aforementioned amount of liquidated damages to Benefit Barcode within ten business days from the receipt of Benefit Barcode’s notice regarding the breach, being sent via email and dispatched on the same day as the email via an overnight courier service. Parties acknowledge and agree that the aforementioned sum payable under this Section 4 shall constitute liquidated damages and not penalties, and are in addition to all other rights of the Parties available to them under the dispute resolution options set forth in Section 17.

 4.7. The charges of using Bercode Classic, Bercode Extra, or Bercode Business varies and depends on the quantity and the validity of Bercodes issued by a Bercode Issuer. The minimum amount required for the issuance of the first batch of Bercodes contingent upon the level of the Bercode Issuer, i.e.: Bercode Classic, Bercode Extra, or Bercode Business. For the details in connection with the minimum amounts and the pricing please see Annex 1.

5.  OTHER SERVICES AND PRODUCTS

Benefit Barcode may add other products and services at any time. Such other services and products shall be considered part of the Service and may be subject to additional or different terms and conditions.

6. USE OF THE SITE

Your use of the Site is subject to all applicable laws and regulations. You understand and acknowledge that although the Internet is often a secure environment, sometimes there are interruptions in service or events that are beyond the control of Benefit Barcode. Benefit Barcode shall not be responsible for any data lost while transmitting information on the Internet. It is Benefit Barcode’s objective to make the Site accessible 24 hours a day, 7 days a week, the Site may be unavailable from time to time for any reason including, without limitation, due to routine maintenance, update or upgrade. Benefit Barcode shall have the right at any time to change or discontinue any part or feature of the Site, including, but not limited to, content, hours of availability, transmission speed and requirements for access or use.

7. RESTRICTIONS

Your unauthorized use may result in the cancellation, and potential suspension or termination of your account. Without limiting the applicability of any other provisions of the terms and conditions herein, you are hereby notified that you may not:

- Use any “deep-link”, “page-scrape”, “robot”, “spider”, or other automatic device, program, algorithm, or methodology, or any manual process to access, acquire, copy, or monitor any portion of the Site or our content or our users’ content (collectively, the “Content”) or obtain or attempt to obtain any materials, documents, or information through any means not purposely made available through the Site.

- Attempt to gain unauthorized access to any portion of the Site or any Content thereof, or any systems or networks connected to the Site, by hacking, password “mining”, or any other illegitimate means.

- Reverse look-up or trace any information of any other Site user or otherwise use the Site for the purposes of obtaining information of any other user of our Site.

- Use any device, software, or process to interfere with, or attempt to interfere with, the proper working of the Site or any Content, or any systems or networks connected to the Site, or with any other person’s use of the Site.

- Use the Site or any Content for any purpose that may directly or indirectly be competitive or potentially competitive with Benefit Barcode.

- Use the Site or any Content for any purpose that is unlawful or prohibited by the terms and conditions.

- Take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Site, the Site’s systems or networks, or any systems or networks connected to the Site.

- Remove any copyright, trademark, or other proprietary rights notice contained in or on the Site.

8. THIRD PARTY SITES AND LINKS

We may provide links to third party websites and permit User to link to other websites or resources on the Internet, and other websites or resources may contain links to the Site. We are not responsible for the content of linked third party websites and we do not make any representations regarding their content or accuracy. Your use of third party websites, including, without limitation, your submission of content to such websites, is at your own risk and subject to the terms and conditions of use for such website. Unless you have executed a written agreement with Benefit Barcode expressly permitting you to do so, you may link to the Site. User acknowledges and agrees that Benefit Barcode 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 the use of or reliance on any content, goods, information, or services available on or through any such website or resource. These other websites are not under Benefit Barcode’s control, and User acknowledges that Benefit Barcode is not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. We do not recommend or endorse the content of any third party websites, and the inclusion of any such link does not imply endorsement by Benefit Barcode.

9. CONTENT

9.1 Benefit Barcode Content means all text, graphics, user and visual interfaces, photographs, trademarks, logos, sounds, music, artwork, applications, computer code and associated documentation found on or associated with the Site other than User Content, defined below, including but not limited to the Site as a collective work, its design and structure (hereinafter “Benefit Barcode Content”). Benefit Barcode Content is owned by or licensed to Benefit Barcode and is protected by copyright, trademark, and other intellectual property rights and laws. Except as expressly provided in these terms and conditions, no Benefit Barcode Content may be copied, reproduced, sold, republished, transmitted, displayed, reposted, or otherwise distributed for public or commercial purposes. Nothing contained in these terms and conditions shall be deemed to grant to you or any other user any rights, title, or interest in or to any copyright, trademark, or other proprietary right of ours or any of our licensors.

9.2 User Content means any content, including any text, images, photos, audio, video, and all other forms of data or communication that a user provides or submits to us or our affiliates in any way including social media, survey responses and ratings and reviews (hereinafter “User Content”). User Content does not include any Benefit Barcode Content.

9.2.1. As between you and us, subject to any licenses and rights expressly granted herein, any User Content posted by you is owned by you.

9.2.2. You are solely responsible for your User Content. By providing User Content to us you hereby grant, and represent, and warrant that you have all rights and authority necessary to grant, (i) Benefit Barcode and our affiliates, a perpetual, irrevocable, non-exclusive, transferable, royalty-free, fully sublicensable, fully paid-up, worldwide license and right to use, modify, copy, reproduce, publish, distribute, publicly perform or display, adapt, translate, create derivative works, archive, store, upload, share, post, sublicense, or otherwise make available, such User Content in any form and through any media of any kind now known or later developed, for any purpose, with or without attribution, and (ii) subject to the restrictions set forth in these terms and conditions, all users a perpetual, irrevocable, non-exclusive, royalty-free license and right to use, such User Content for each such user’s personal, non-commercial use. You hereby irrevocably waive and assign to us any and all moral rights you may have in or with respect to any User Content you provide to us.

9.2.3. If you submit any idea or expression of ideas within your User Content (hereinafter an “Idea”), you further agree as follows:

- To the best of your knowledge, the Idea represents your original work, you have all necessary rights to disclose the Idea to us, and doing so, and our use of the Idea, will not infringe upon any third party;

- Your disclosure of your Idea does not establish a confidential relationship with us or obligate us to treat the Idea as confidential;

- We have no obligation, whether express or implied, to develop or use your Idea and no compensation is due to you or anyone else for any use of that Idea, related Ideas, or ideas derived from your Idea; and

- Except to the extent these terms are superseded by a separate written agreement signed by you and Benefit Barcode, you hereby irrevocably release and discharge Benefit Barcode and its affiliates from any and all actions, causes of actions, claims, damages, liabilities, and demands, whether absolute or contingent, which you now have or hereafter may have against Benefit Barcode and its affiliates with respect to the Idea.

9.2.4. Without limiting the applicability of any other provisions of these terms and conditions, you may not post, upload, or transmit any User Content that:

- Is offensive, threatening, illegal, harmful, tortuous, abusive, defamatory, obscene, vulgar, hateful, that infringes any third party right, or is otherwise objectionable;

- Promotes illegal activities or conduct that is offensive, threatening, harmful, tortuous, abusive, defamatory, obscene, vulgar, hateful, or is otherwise unlawful;

- Is false, misleading, or defamatory;

- Is protected by copyright, trade secret, or subject to any other third party intellectual property rights or privacy rights unless you are the owner of such rights or you have the express permission from the rightful owner of such rights to upload, post, or submit such content and to grant us all the rights granted herein;

- Provides personal data such as telephone numbers, home or email addresses, full names or last names, or photographs;

- Involves the transmission of unsolicited mass mail, spam, junk mail, or otherwise interferes with other users’ enjoyment of the Site;

- Falsely states or implies that such content is sponsored or endorsed by us or our affiliates;

- Contains restricted or password-only access pages or hidden pages or images;

- Involves commercial activities or sales without our express prior written consent; or

- Involves sending or otherwise making available any material that contains viruses, Trojan horses, worms, time bombs, or any other similar software that may damage the operation of Benefit Barcode’s or any third party web provider’s servers, computers, or networks.

9.2.5. We assume no responsibility for monitoring any of the User Content and have no obligation to review the User Content. In addition, we do not guarantee the accuracy, integrity, or quality of the User Content. Nonetheless, we reserve the right, at all times and for any reason whatsoever, to edit or remove any User Content, as well as selectively publish certain User Content. The foregoing provisions apply equally to and are for the benefit of Benefit Barcode, its subsidiaries, affiliates and its third party content providers and licensors, and each shall have the right to assert and enforce such provisions directly or on its own behalf.

10. COPYRIGHTS AND TRADEMARKS

Without limiting the applicability of any other provisions of these terms and conditions, you may not post, upload, or transmit any User Content that is protected by copyright, trade secret, or subject to any other third party intellectual property rights or privacy rights unless you are the owner of such rights or you have the express permission from the rightful owner of such rights to upload, post, or submit such content and to grant us all the rights granted herein. The foregoing provisions apply equally to and are for the benefit of Benefit Barcode, its subsidiaries, affiliates and its third party content providers and licensors and each shall have the right to assert and enforce such provisions directly or on its own behalf.

If you believe any User Content or any other aspect of our Site infringes your copyright, you should send written notice of copyright infringement to our designated copyright agent at the email address below and we will provide you with our Copyright Agent’s contact information. Your notice must meet the requirements of the Digital Millennium Copyright Act (hereinafter the “DMCA”) by providing the following information:

- A description of the copyrighted work that you claim has been infringed;

- A description of where the material that you claim is infringing is located on the Site;

- Your address, email address, and telephone number;

- A statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;

- A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf; and

- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright at issue.

The email address for requesting our Copyright Agent’s contact information is [javascript protected email address]

If you believe in good faith that someone has wrongfully filed a notice of copyright infringement against you, DMCA permits you to send us a counter-notice. Counter-notices must meet the then-current statutory requirements imposed by the DMCA and sent our Copyright at [javascript protected email address]

11. WARRANTY DISCLAIMER

THE SITE, ALL CONTENT, ALL SERVICES AND ALL PRODUCTS ARE PROVIDED ON AN "AS IS" BASIS AND BENEFIT BARCODE ON BEHALF OF ITSELF AND ALL TRANSACTION INFORMATION PROVIDERS HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. BENEFIT BARCODE MAKES NO WARRANTY THAT (I) THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR (II) THE RESULTS OF USING THE SERVICE WILL MEET USER'S REQUIREMENTS. USER ACKNOWLEDGES THAT BENEFIT BARCODE IS NOT RESPONSIBLE FOR (I) ANY PRODUCTS OR SERVICES PROVIDED BY ANY PARTICIPATING MERCHANT, OR (II) ANY USER CONTENT OF THE AFFECTS OF SUCH CONTENT ON USER. USER'S USE OF THE SERVICE IS SOLELY AT USER'S OWN RISK. BENEFIT BARCODE DISCLAIMS ANY AND ALL WARRANTIES FOR THIRD PARTY GOODS AND SERVICES RECEIVED THROUGH, OR IN CONNECTION WITH, OR ADVERTISED ON, THE SERVICE.

Some jurisdictions do not allow the disclaimer of implied warranties. In such jurisdictions, the foregoing disclaimers may not apply to you insofar as they relate to implied warranties.

12. LIMITATION OF LIABILITY

IN NO EVENT SHALL BENEFIT BARCODE, THE TRANSACTION INFORMATION PROVIDERS, OR ANY OF ITS OR THEIR AFFILIATES, OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, VENDORS OR SUPPLIERS BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL THEORY WITH RESPECT TO THE SERVICE OR ANY CONTENT OR INFORMATION AVAILABLE THROUGH THE SERVICE: (I) FOR ANY LOST PROFITS OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES, HOWEVER ARISING, (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, REGARDLESS OF THE SOURCE OF ORIGINATION, (III) FOR ANY ERRORS OR OMISSIONS IN ANY CONTENT OR INFORMATION OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF USER'S USE OF ANY CONTENT OR INFORMATION POSTED, EMAILED, TRANSMITTED OR OTHERWISE MADE AVAILABLE AT OR THROUGH THE SERVICE, (IV) FOR ANY PARTICIPATING MERCHANT'S PRODUCTS, SERVICES, OFFERS, REWARDS OR ACTIVITIES, (V) FOR ANY DIRECT DAMAGES IN EXCESS OF IN THE AGGREGATE $100.00 (ONE HUNDERD US DOLLARS), OR (VI) FOR ANY DAMAGES RELATED TO ANY MATTERS BEYOND ITS REASONABLE CONTROL, SUCH AS ANY THIRD PARTY "HACKING", ISP OUTAGES, ETC. YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH US IS TO DISCONTINUE YOUR USE OF THE SITE.

In addition, Benefit Barcode shall not be liable for any loss or liability resulting, directly or indirectly, from User's inability to access or otherwise use the Site, including, without limitation, any delays or interruptions due to electronic or mechanical equipment failures, denial of service attacks, date data processing failures, telecommunications or Internet problems or utility failures.

THE FOREGOING LIMITATIONS SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

13. PRIVACY POLICIES AND COPPA

The Site is not directed to children under the age of 13 and we do not knowingly collect personally identifiable information from children under the age of 13, nor do we knowingly distribute such information to third parties. For the detailed information, please see Benefit Barcode’s Privacy Policy.

14. INDEMNIFICATION

You agree to defend, indemnify, and hold Benefit Barcode and our affiliates harmless from and against any demands, loss, liability, claims, damages or expenses, including reasonable attorneys’ fees and costs, made against us by any third party due to, arising out of, or related to (i) your access to the Site or part thereof, (ii) User’s use or misuse of the Site, (iii) any User Content posted, uploaded or transmitted, or otherwise contributes by you, (iv) your use or distribution of any User Content, (v) your violation of our terms and conditions, (vi) any use of your username by you or any third party, (vii) the infringement or other violation by you, or any third party using your account or username, of any intellectual property or other right of any person, or (viii) gross negligence or willful misconduct,

15. TERMINATION

In addition to exercising other remedies that may be available, we may, at any time, terminate your account or suspend or prohibit your access to the Site without prior notice to you for violating any of the terms and conditions or for any other reason.

16. NOTICES

We may send you notice with respect to the Site by sending an email message to the email address listed in your account, by sending a letter via postal mail to the contact address listed in your account, or by posting on the Site. Notices shall become effective immediately. Any notices will be deemed delivered to the party receiving such communication (i) one business days after deposit with an overnight carrier, (ii) three business days after mailing date if sent by postal mail, (iii) the date we post the notice to the Site, or (iv) the date of transmittal if sent via email.

17. DISPUTE RESOLUTION

The location of any dispute resolution, by arbitration or litigation, shall be in Los Angeles, California. Similarly, any action to enforcement an arbitration award must be brought in the state courts of the State of California located in Los Angeles County, California. You irrevocably consent to the jurisdiction of the aforementioned courts.

17.1. Arbitration

All disputes or claims arising out of or relating in any way to your visit to the Site, your purchase, redemption or use of any of our Services, our terms and conditions, this Agreement or our privacy policies shall be resolving by binding arbitration, rather than in court, except for matters that you may bring to small claims court. You acknowledge that you are foregoing your right to a trial by jury, and will not proceed in a lawsuit in state or federal court. Arbitration will be conducted by the American Arbitration Association (hereinafter “AAA”) pursuant to the AAA Commercial Arbitration Rules, including the AAA’s Supplementary Procedures for Consumer-Related Disputes, where applicable, and be governed by the Federal Arbitration Act. The arbitrator shall honor the terms of this Agreement, follow applicable laws, and can issue reasonable relief, including monetary damages as well as injunctive, declaratory or statutory mandated relief.

17.2. No Class Action

All arbitration proceedings shall be individual arbitration. You expressly agree that no other claims may be joined with your claims. You further agree that you have voluntarily waived the right to file or join a lawsuit in state or federal court, a right to a jury trial, and the right to file or join a class action lawsuit, and expressly acknowledge that the parties reject class arbitration. Neither you nor we shall be entitled to join, sue on behalf of a putative class or consolidated claims, or arbitrate any claim as a representative or in a class action. If any part of this Section of this Agreement, with the exception of the waiver of class action or class arbitration, is deemed invalid or unenforceable by any arbitrator or court, that provision shall be severed and the balance of this Agreement shall remain in effect and shall be construed in accordance with its terms as if the unenforceable provision were not included. If the class action or class arbitration waiver is found to unenforceable, then the entire arbitration provision shall be null and void.

18. GOVERNING LAW

Our terms and conditions are governed by and construed in accordance with the internal laws of the State of California, without regard to its conflicts of law provisions. You agree to the personal jurisdiction by and venue in the state and federal courts in Los Angeles County, California, and waive any objection to such jurisdiction or venue. Although the Site may be accessible worldwide, we make no representation that materials on the Site are appropriate or available for use in locations outside the United States, and accessing the Site from territories where its use is illegal is prohibited.

19. WAIVER

Any failure by Benefit Barcode to enforce or exercise any provisions of these terms and conditions shall not constitute a waiver of that right or provision. Our failure to act with respect to a breach by you or others does not waive our rights to act with respect to subsequent or similar breaches.

20. MISCELLANEOUS TERMS

These terms and conditions represent the entire agreement between you and us with respect to the subject matter addressed herein and supersedes all prior to contemporaneous agreements or understandings, written or oral. These terms and conditions shall be binding upon and inure to the benefit of the parties hereto and their respective successors and lawful assigns. The section headings used herein are for convenience only and shall be of no legal force or effect. If any provision of this Agreement is held invalid by a court of competent jurisdiction, such invalidity shall not affect the enforceability of any other provisions contained in and the remaining portions of this Agreement shall continue in full force and effect.

 

Benefit Barcode Inc. – Retail Business Solutions Agreement

Last updated in January 2019

 

This Retail Business Solutions Agreement (hereinafter the “Business Agreement”) consists of the terms and conditions governing the relationship of Benefit Barcode, Inc., a Delaware corporation (hereinafter “us,” “we”, “Benefit Barcode”, or “www.BenefitBarcode.com”) and any entity (“Retailer” or “you”) that wants to sell Bercodes in the specified forms that are produced by Benefit Barcode and manufactured with the designs requested by you provided that design requests are conditioned on the approval of Benefit Barcode (“Products”) on the www.BenefitBarcode.com website, contained within or otherwise available through external hyperlinks within such websites, mobile and other applications of the foregoing, and associated social media outlets or through the Site or any mobile applications thereof (collectively, the “Site”), use any order processing, fulfillment, shipping or other services related to the Site, or use any platform, portal, web service, application, interface, or other tool provided by or for www.BenefitBarcode.com, must accept the terms of this Business Agreement without change.

The terms of use and all terms and conditions contained or referenced herein, our privacy policies, cookie policy and, for particular services, any additional posted terms and conditions that apply to such services (collectively, the “Terms and Conditions”) apply to your use of the Site, or any of the products or services offered through the Site, including your communications with us. By using the Site or any of the products or services offered through the Site, you agree to these terms and conditions. The terms and conditions of our Terms of Use and Privacy Policy govern your participation in the use of the Site, any other related products or services provided by Benefit Barcode (taken together the "Service"), and which are incorporated by reference. The Service is owned and operated by us.

We may update these terms and conditions from time to time without any notice to you. You agree that it is your responsibility to review the Site and these terms and conditions periodically to learn of any modifications. Your continued use of the Site, or any product or service offered through the Site, after the posting of any modifications shall constitute your agreement to be bound by such modified terms and conditions.

By clicking the “AGREE” button located below or by offering any Products for sale on the Site, using any of the Services, you agree to be bound by all terms and conditions of this Business Agreement and all updates to it, as this Business Agreement may be updated from time to time. You further represent and warrant that you are registering with Benefit Barcode on behalf of yourself or an entity and that you have the requisite right, power, and authority to enter into this Business Agreement on behalf of the entity you register with us.

1. BENEFIT BARCODE’S FUNCTION

Benefit Barcode through the Site provides the marketplace services to enable you to sell your Products to third party buyers (“Customers”). You may only sell those Products you have the legal right to sell and must do so consistent with the terms and conditions of this Business Agreement. All transactions with Customers are between you and the Customer, and you will be the seller of record. Benefit Barcode is not a party to any transactions. You acknowledge and agree that Benefit Barcode may contract with third party service providers to provide Services to enable the marketplace.

2. GENERAL PRODUCT LIABILITY

2.1. The Terms and Condition herein describe certain general obligations regarding Products you may and may not list on the Site. You will not list, market, promote, offer for sale, or sell any Products through the Site in violation of this Business Agreement.

2.2. You will, and you represent and warrant that you will comply with all applicable “Laws” (meaning all applicable laws, regulations, legal requirements, and generally accepted industry standards and self-regulatory principles), including Laws related to marketing, packaging, consumer and product safety, product testing, labeling, pricing and packaging, in connection with this Business Agreement; your use of the Site, and your marketing, promotion, offering for sale, or selling any Products through the Site. Upon our request, you will promptly provide us with (i) certificates of authenticity (or similar documentation) for Products, (ii) documentation (e.g. email verifications from the brand owner or supplier) showing that you have a legal right to sell the Products through the Site, (iii) documentation (e.g. email verifications from applicable rights holders) showing that you are licensed or otherwise have a right to use any Retailer Product Content (as defined below), and (iv) written certification from an officer of Retailer stating that you have complied with any of your obligations under this Agreement,  including, for  example and  without limitation, compliance with SLAs, consumer product safety laws, and authenticity of Products.

2.3. You will only offer Products for sale on the Site that may legally be sold and shipped in all US states. This obligation is not contradictory to your right to offer Products for sale in countries other than the United States, and does not forfeit your right to offer Products for sale in countries other than the United States.

2.4. You may sell a Product on the Site if you are an authorized reseller of that Product or purchased or otherwise legally acquired that Product from an authorized reseller of that Product, or otherwise have a legal right to sell that Product.

2.5. You may only sell Products on the Site that are new and authentic. You will maintain adequate processes and procedures for conducting diligence to assure that Products are authentic, authorized for sale, and not stolen, counterfeit, illegal or misbranded. You may not, and you represent and warrant that you will not list any Product or Retailer Product Content (as defined below) on the Site that is counterfeit, illegal, stolen, or fraudulent, or infringes any third-party “Intellectual Property Rights” (meaning any patent, copyright, trademark, service mark, trade dress (including any proprietary “look and feel”), trade name, logo, moral right, trade secret and any other intellectual property right), or that you otherwise do not have the right to sell. All information you provide about the Product will be accurate, current, and complete and not misleading, deceptive, or fraudulent in any way.

2.6. We in our sole discretion, may prohibit you or ask you to refrain from listing any Products or providing any Retailer Product Content. In addition, we may remove your listings in its sole discretion in response to notices of alleged copyright infringement, trademark misappropriation, or other intellectual property claims. If we request that you remove Products or Retailer Product Content from the Site, you will make commercially reasonable efforts to remove the Products or Retailer Product Content within 24 hours of such request so that the Products and related Retailer Product Content no longer appear on the Site. You will not list or include such removed Products or Retailer Product Content on the Site at any time unless their inclusion is specifically authorized by us in writing.

3. RETAILER PRODUCT CONTENT AND RETAILER TRADEMARKS

You may provide certain product information and any related media, materials, links, images, and other content (together, the “Retailer Product Content”) in connection with this Business Agreement. You represent and warrant that all Retailer Product Content you provide is truthful and accurate and is in compliance with all Retailer Policies and that you will not use Retailer Product Content to redirect endusers of the Site to any other sales channels. You hereby grant us and our affiliates, and its ser

vice providers and marketing partners, a non-exclusive, royalty-free, perpetual, sublicensable, irrevocable right and license (a) to publish, reproduce, display, distribute, transmit and otherwise use Retailer’s name, trademarks, service marks, and logos (“Retailer Marks”), and (b) to publish and perform, reproduce, distribute, transmit, display, modify, create derivative works of, and otherwise use and commercially exploit all Retailer Product Content, in each case in connection within our marketplace programs (including without limitation advertising, marketing and promoting the Products, other products, or the Site, third party websites, email, social media or any other medium. We and our affiliates may permit Customers, other users of the Site, and other third parties to share and post Retailer Product Content on their websites, applications, and social media outlets.

4. REQUIRED PRODUCT INFORMATION

4.1. In order to list a product for sale on the Site, you must provide all requested Retailer Product Content. A list of the data elements required for each Product can be found here. If the Product fits into a category that is subject to specific product guidelines, you may be required to provide additional Retailer Product Content for those types of products.

4.2. You will (i) use commercially reasonable efforts to provide us at least every hour with an error-free updated inventory feed for those Products where inventory levels have changed since the last inventory feed provided for such Product, and (ii) provide us with a daily inventory feed for all Product.

4.3. If you do not have but need a license from the brand owner or supplier to use certain content related to a Product, do not provide that content to Benefit Barcode.

5. REFERRAL FEES

5.1. We will earn a referral fee equal to a percentage of the gross sales proceeds from the sale of Products (i) including all shipping and handling, gift wrap, and other charges, and (ii) excluding only those taxes separately stated and charged (the “Referral Fee Percentage”) from each Product sale through the Site (the “Referral Fee”) as further set forth in the Referral Fee Schedule. Will remit to you the total amount it collects from the sale of Retailer’s Products, less the Referral Fee, for Products shipped in each day.

5.2. At Benefit Barcode’s option, all payments to your bank account will be remitted through an Automated Clearing House system. If we concludes that your actions and/or performance in connection with this Business Agreement may result in customer disputes, chargebacks or other claims, then we may, in its sole discretion, delay initiating any remittances and withhold any payments to be made or that are otherwise due to you under this Business Agreement for the shorter of: (i) a period of 90 days following the initial date of suspension; or (ii) completion of any investigation(s) regarding your actions and/or performance in connection with this Business Agreement. As a security measure, we may, but is not required to, impose transaction limits on you or some or all customers relating to the value of any transaction or disbursement, the cumulative value of all transactions or disbursements during a period of time, or the number of transactions per day or other period of time.

6. PURCHASE AND ORDER PROCESSING  

1. 1. All transactions with Customers are between you and the Customer, and you will be the seller of record. Customers will place orders (the “Orders”) using the checkout system and we will collect all proceeds from such transactions on your behalf. You hereby authorize us as your authorized agent to accept payment from Customers for remittance to you for the Products, and as such when a Customer pays us, it shall be construed as if the Customer will be paying you. The Customer shall never be at risk of loss of funds upon payment to us on your behalf. We will electronically transmit to you the Order information that we determine is necessary to fulfill each Order (the “Transaction Information”). We will send an automated email message to each Customer confirming receipt of an Order.
   2. Once we have transmitted an Order to you, you will, at your own expense, be solely responsible for, and bear all liability for, the fulfillment of the Order, including without limitation, packaging and shipping Products and customer service. If you cannot fulfill the entire quantity of a purchase order (“PO”) line in an Order, then you will cancel that PO line, fulfill all other lines in the Order and promptly notify us of such cancellation. If the Order consists of one PO line that you cannot fulfill the entire quantity for, then you will cancel the entire Order and promptly notify us. If you initiate the cancellation of any Order or PO line in any Order, you will promptly provide Customers with email notification of such cancellation in accordance with applicable Law (including, without limitation, the Federal Trade Commission (“FTC”) “Mail or Telephone Order Merchandise Rule”). You will include information requested by us, including the Order number, in the cancellation email sent to Customer.
   3. You are responsible for properly specifying shipping options for all Products through the Site as requested by us. You will provide us with the shipping, handling and any other charges for each Product required by the Site, separate from the purchase price.
   4. You will be responsible for shipping all Products purchased by Customers in accordance within the time frame advertised or the processing time specified for such Products through the Site (whichever time frame is shorter) or, if no time frame is advertised or specified, within 30 days (the “On-Time Ship Standard”). You will be responsible for all shipping charges and for any costs or charges related to shipping-related problems, including without limitation, damaged or lost Products, late shipments or misdelivery. If you cannot meet the On-Time Ship Standard for any Product, you will provide the customer with email notification of such delay and include information requested by us in that notification. You will be solely liable for all costs related to any duplicate or inaccurate shipments based upon your retransmission of Order files through the Site. You may only send a shipment confirmation notice to customers following shipment of an Order. Packaging for Products should not contain any Retailer marketing materials that are not included as standard marketing materials with all of your Product shipments, and emails sent by you to Customers in connection with an Order will not contain any marketing materials or links to any Retailer or third party website, except for links to shipping websites that permit the Customer to track shipment of their Order.
   5. During the term, we will provide you with reports on the status of Orders placed pursuant to this Business Agreement. The reports will be issued according to a schedule identified by Benefit Barcode to you from time to time. You will review each report upon receipt and provide us with written notice of any discrepancies (a “Discrepancy Notice”) between the report and your fulfillment of any Orders within a commercially reasonable time period after the date of the report, but no more than 3 business days after the date of the report. You are solely responsible for monitoring and responding to reports provided by us pursuant to this Business Agreement. If Benefit Barcode does not receive either (i) a Discrepancy Notice or (ii) a shipment confirmation notice from you within 30 days of placement of the Order, the Order may be automatically cancelled by us and you will be solely liable and responsible for all Product costs and shipping costs associated with such cancelled Order and you forfeit any claims for any payments of Referral Fee otherwise payable under this Agreement related to such cancelled Orders.
   6. Please note that, though Benefit Barcode will bear the risk of credit card fraud occurring in connection with an Order, you will bear all other risk of fraud or loss and all costs related thereto. For all credit card chargebacks for which you bear the risk, we will offset such chargeback amounts against amounts otherwise owed you, or send you an invoice and you will pay such invoice within 30 days of receipt. However, notwithstanding the foregoing, we will not bear the risk of credit card fraud in connection with any Product that is not shipped by you to the shipping address specified in the Transaction Information provided by us, and you will be responsible for all costs related to such credit card fraud under these circumstances.

7. CANCELLATIONS, RETURNS REFUNDS, RECALLS  

7.1. You are responsible for processing all Customer cancellations, returns, refunds and/or customer service price adjustments. You will stop and/or cancel any Order if requested by us, provided that if you have transferred Products to a shipper, you will use commercially reasonable efforts to stop and or cancel delivery by the shipper. Your return and refund policies for Products sold through the Site will be no less favorable to Customers than your most favorable policies offered on your website (“Retailer Site”) for such Products. You will notify us of any material changes to your customer return, refund or price adjustment policies at least 5 days prior to your implementation of such changes.

7.2. You will be responsible for all non-cash refunds (e.g., store credit, gift cards and exchanges). If you determine a Customer is due a cash refund (e.g., via a refund to the Customer’s credit card, debit card or other form of original payment) you will notify us and include other related information requested by us. For cash refunds we will provide the refund to the Customer via the Customer’s original payment method (e.g., credit or debit card) if possible and we will refund to you the amount of the Referral Fee attributable to the amount of the Customer refund (excluding any refunded taxes), less the lesser of: (i) five dollars ($5.00); or (ii) 20% of such Referral Fee; provided that we will have no liability for refunds offered by you in excess of the purchase price. If you provide Customer directly with a cash or non-cash refund, we will retain the full amount of the Referral Fee attributable to such Customer refund. If we make a cash refund to a Customer for a Product returned to you, Benefit Barcode in its sole discretion, will obtain a refund of the payment received by you for such returned Products either (i) via offset of any amounts payable by Benefit Barcode to you or (ii) by billing you for such amounts.

7.3. We will have no responsibility or liability for any recalls of Products sold through the Site. You are solely responsible for any non-conformity or defect in, or any public or private recall of Retailer’s Products. You will promptly remove any recalled Products from the Site by unpublishing or retiring the Product. You will notify us by email at [javascript protected email address] of all Product recalls within 24 hours of becoming aware of the recall and will promptly provide us with all information reasonably requested regarding the recall.

8. PARITY PRICING, SPECIALS, PROMOTIONS

8.1. You will maintain parity between the Products you offer through any other online sales channel and the Products offered on the Site by ensuring that at all times: (a) except for in connection with Excluded Offers, the purchase price and every other term of offer and/or sale of the Products (including associated shipping and handling charges and options, any “low price” guarantee, rebate or discount, any free or discounted products or other benefit available as a result of purchasing one or more other products, and terms of applicable return and refund policies) is at least as favorable to our users as the most favorable terms upon which a product is offered and/or sold via any other online sales channel; (b) customer service for the Products is at least as responsive and available and offers at least the same level of support as the most favorable customer service offered in connection with the Retailer Site; and (c) the Retailer Product Content provided by you to us for the Site (i) is of least the same level of quality as the highest quality information displayed or used on the Retailer Site or any other online sales channel for Retailer’s Products and (ii) provides users of the our Site with at least as much product information, images and other content as the information provided on the Retailer Site or any other online sales channel for Retailer’s Products. If you become aware of any non-compliance with (a) above, you will promptly notify us and compensate adversely affected Customers by making appropriate refunds to such Customers in accordance with the procedures set forth in Section 7 for providing customers with cash refunds.

8.2. You will notify us by email at [javascript protected email address] of all special offers and promotions (i.e., where you discount an item or items by a certain amount for a certain period of time) offered on the Retailer Site. You will make special offers and promotions available to our Customers in connection with the marketplace programs and will use commercially reasonable efforts to allow us to support any such special offer or promotion through our Site. If you make any public promotions generally available to all users of the Retailer Site (“Public Promotions”) and we cannot support such Public Promotion, then you will provide an equivalent offer or promotion to our Customers to the extent possible. You will work in good faith with us to maximize the number of Retailer offers and promotions (including equivalent offers and promotions) made available to our Customers. We may choose, in its sole discretion, not to permit certain special offers or promotions offered by you on the Site (e.g., where we cannot support the special offer or promotion) and may request that you filter out any such special offers or promotions. Notwithstanding the foregoing, you will not be required to make available to our Customers (i) private promotions offered only to all or a subset of your existing customers by email or regular mail; (ii) Public Promotions that we have indicated in writing that it cannot support and an equivalent offer or promotion cannot be provided; (iii) non-product specific offers such as “low price” guarantees, global and/or category specific coupons that the customer must take action to redeem; (iv) offers which are either not advertised as redeemed at or otherwise not redeemable at the point of sale, such as without limitation mail-in rebates and manufacturer incentives; or (v) incentives provided in connection with any loyalty program (collectively, “Excluded Offers”); provided that, if we are able to support any Excluded Offer at any time during the term and desires to do so, it will notify you and after receipt of such notification and you will make such special offer or promotion available to us in connection with our marketplace programs.

9. CUSTOMER SERVICE

9.1. You will be responsible for all customer service, except for issues related to payment. In performing such customer service, you will always represent yourself as a separate entity from Benefit Barcode. You will not disparage Benefit Barcode or its affiliates or its or their Products or services when performing customer service obligations or any other obligation under this Agreement. If you monitor or record customer service calls, you must give notice of such monitoring or recording to all Customers during each such call prior to providing any customer service.

9.2. We reserve the right to provide a customer service adjustment (not to exceed the total amount paid by such Customer in connection with the Products, including without limitation, taxes and gift wrapping and shipping fees) to a Customer that we reasonably determine has not been dealt with correctly by your customer service.

10. REPORTING AND AUDIT

10.1. You will, within a reasonable period of time (not to exceed 30 days) following request from us, provide us with any reports, information or other documentation relating to your compliance with this Business Agreement and applicable Law reasonably requested by us. In the event we request that you provide us with copies of reports that you were required to file with the US Consumer Product Safety Commission (“CPSC”) or any other regulatory agency, you will provide such reports within 7 days of our written request.

10.2. You will keep accurate and complete books, records and accounts related to the marketplace transactions and this Business Agreement, and will allow us, or our duly authorized representative, the right, upon not less than 5 business days prior written notice, during the term of this Business Agreement and for 2 years after its termination or expiration, to conduct, during regular business hours, full and independent audits and investigations of all information, books, records and accounts reasonably required by us to confirm your compliance with the terms of this Business Agreement and applicable Laws.

11. OWNERSHIP AND USE RIGHT

11.1. Benefit Barcode, its affiliates, and their service providers and licensors retain all right, title and interest (including all Intellectual Property Rights) in and to (i) the Site, and the Services, (ii) all data received from you in connection with the foregoing, and (iii) any of their confidential or proprietary information. Except for a limited right for you to access the Site made available to you in accordance with and subject to all the terms and conditions of this Business Agreement, Benefit Barcode, its affiliates, and their service providers and licensors, as applicable, retain all rights in the foregoing and grant no other rights or licenses (whether by implication, estoppel, or otherwise) under any of their Intellectual Property Rights under or in connection with this Business Agreement.

11.2. Benefit Barcode owns, and you hereby assign to us all Transaction Information and all other information relating to Orders or Products, including but not limited to information that is entered into our Site, information that is created as a result of a transaction, and ratings and reviews provided by Customers. All such information is subject to our Privacy Policy and any additional privacy guidelines posted by Benefit Barcode and our partners.

11.3. You may only use Transaction Information to further a transaction related to this Business Agreement, in accordance with the terms of this Business Agreement, our Privacy Policy and any other applicable policies listed on our Site under Legal Notices, and applicable Laws. You will not (i) disclose or convey any Transaction Information to any third party (except as necessary for you to perform your obligations under the Business Agreement); (ii) use any Transaction Information to conduct customer surveys or for any marketing or promotional purposes; (iii) contact a Customer that has ordered a Product that has not yet been delivered with the intent to collect any amounts in connection therewith or to influence such Customer to make an alternative or additional purchase; (iv) target communications of any kind on the basis of the intended recipient being a Benefit Barcode user; or (v) use any information about Benefit Barcode Customers gained through the Site to directly solicit such Benefit Barcode Customers through any other sales channels. The foregoing does not prevent you from using information you gathered independent of the Site, provided that you do not target communications on the basis of the intended recipient being a Benefit Barcode user.

11.4. Benefit Barcode may use mechanisms that rate or review, or allow shoppers to rate or review, your Products and your performance as a seller and we may make these ratings publicly available. Benefit Barcode will have no liability to you for the content or accuracy of any ratings or reviews. You will have no ownership interest in or license to use any rating or reviews posted on the Site.

11.5. If you provide or make available suggestions, comments, ideas, improvements or other feedback or materials to Benefit Barcode or its affiliates in connection with the Site, or other subject matter of this Business Agreement, Benefit Barcode will be free to disclose, reproduce, modify, license, transfer and otherwise distribute, and use and exploit any of the foregoing feedback or materials in any manner.

12. TERMINATION, SUSPENSION, SURVIVAL

Benefit Barcode may terminate this Business Agreement with you at any time in its sole discretion without notice to you or otherwise. We may also immediately terminate or suspend your participation in the marketplace programs, your access to the Site, or remove your listings at any time in its sole discretion if you violate the terms of this Business Agreement. Sections 3, 6, 7, 9, 10, 11, 12, 13, 14, 15 and 16 shall survive the expiration or termination of this Business Agreement for any reason.

13. INDEMNIFICATION AND GENERAL RELEASE

13.1. Benefit Barcode and its affiliates are not parties to any transactions conducted through the Site by and between you and any Customers or the manufacturers or distributors of the Products. You hereby release (and agree to release) Benefit Barcode and its affiliates (and their respective employees, shareholders, directors, agents and representatives) from any all claims, costs, losses, damages (including any indirect, special incidental, or consequential damages), judgments, fines, penalties, interest, costs, and expenses (including reasonable attorneys' fees and costs of any investigation, defense, and settlement) arising out of any Claims involving you and any third party or governmental entity or agency.

13.2. If you are a California resident, you agree that the release set forth in this Business Agreement may apply to unknown and unanticipated claims, damages, and expenses, and you waive any rights that you might have under Section 1542 of the California Civil Code or any other similar enactment of any jurisdiction. California Civil Code Section 1542 states

“A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”

13.3. You will defend at Benefit Barcode’s option, indemnify and hold Benefit Barcode and its affiliates (and their respective employees, shareholders, directors, agents and representatives) harmless from and against any and all claims, costs, losses, damages (including any indirect, special incidental, or consequential damages), judgments, fines, penalties, interest, costs, and expenses (including reasonable attorneys' fees and costs of any investigation, defense, and settlement) arising out of any Claims that arise out of or relate to: (i) any breach (or alleged acts or omissions that if true would be a breach) of any of your representations, warranties, or obligations set forth in this Business Agreement; or (ii) the Retailer Site or other sales channels, the Products, any Retailer Product Content, the advertisement, offer, sale or return of any Products, any actual or alleged infringement of any Intellectual Property Rights by you, the Products, or any Retailer Product Content, or any taxes owed by you, or the collection, payment or failure to collect or pay such taxes. You will provide all cooperation, documentation, and information  reasonably requested  by Benefit Barcode in connection with any Claim. Benefit Barcode will have the right to control all defense and settlement of Claims. “Claim” means any action, allegation, claim, demand, lawsuit, legal proceeding, administrative or other proceedings or litigation, inquiry, audit, or investigation.

14. LIMITATION OF LIABILITY

14.1. IN NO EVENT SHALL BENEFIT BARCODE OR ITS AFFILIATES BE LIABLE TO YOU OR ANY THIRD PARTY UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR (A) LOST PROFITS, LOST REVENUE, LOSS OF BUSINESS OR LOSS OF DATA, (B) EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR THE LIKE, OR (C) FOR COST OF COVER, RECOVERY OR RECOUPMENT OF ANY INVESTMENT, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER BENEFIT BARCODE  HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

14.2. IN NO EVENT SHALL BENEFIT BARCODE’S OR ITS AFFILIATES’ AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY CLAIMS, COSTS, LOSSES, DAMAGES (INCLUDING ANY INDIRECT, SPECIAL INCIDENTAL, OR CONSEQUENTIAL DAMAGES), JUDGMENTS, FINES, PENALTIES, PENALTIES, INTEREST, COSTS, AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES AND COSTS OF ANY INVESTIGATION, DEFENSE, AND SETTLEMENT) FOR ANY REASON WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY, EXCEED THE TOTAL REFERRAL FEES PAID BY YOU TO BENEFIT BARCODE  PURSUANT TO THIS AGREEMENT DURING THE SIX MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. THE LIMITATIONS OF LIABILITY REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES.

14.3. THE LIMITATIONS SPECIFIED IN THIS SECTION 14 WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

15. WARRANTY DISCLAIMER

THE SITE AND THE SERVICES OF BENEFIT BARCODE ARE PROVIDED ON AN "AS IS" BASIS. NEITHER BENEFIT BARCODE NOR ITS AFFILIATES MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION: (a) THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT; (b) THAT THE SITE, OR THE SERVICES, WILL MEET YOUR REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, OR OPERATE WITHOUT ERROR; AND (c) ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. TO THE FULL EXTENT PERMISSIBLE UNDER APPLICABLE LAW, BENEFIT BARCODE AND ITS AFFILIATES DISCLAIM ANY AND ALL SUCH WARRANTIES.

16. MISCELLANEOUS

16.1. This Business Agreement and all other terms and conditions, which are incorporated by reference into this Business Agreement constitutes the complete integrated agreement between the you and Benefit Barcode concerning the subject matter of this Business Agreement. All prior and contemporaneous agreements, understandings, negotiations or representations, whether oral or in writing, relating to the subject matter of this Business Agreement are superseded in their entirety by this Business Agreement. To the extent you are already a party to an agreement with Benefit Barcode regarding your participation as a retailer in the Service, the terms and conditions of that agreement are hereby terminated and replaced in their entirety with the terms and conditions of this Business Agreement, but you will continue to comply with all your surviving obligations under that agreement.

16.2. You will be responsible for any actions taken by your affiliates, agents, or other third parties on your behalf in connection with this Agreement.

16.3. You and Benefit Barcode are acting hereunder as independent contractors. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Business Agreement.

16.4. This Business Agreement is governed by and construed in accordance with the internal laws of the State of Illinois, without regard to its conflicts of law provisions. You agree to the personal jurisdiction by and venue in the state and federal courts in Cook County, Illinois, and waive any objection to such jurisdiction or venue. Although the Site may be accessible worldwide, we make no representation that materials on the Site are appropriate or available for use in locations outside the United States, and accessing the Site from territories where its use is illegal is prohibited.

16.5. You may not assign this Business Agreement or any of your rights or obligations hereunder without our prior written consent.

16.6. Except as otherwise expressly provided herein, the representations and warranties made in this Business Agreement are continuous in nature and will be deemed to have been given by Retailer at the execution of this Business Agreement and each stage of performance thereof.

16.7. You will not use the name, logo, trademarks or trade names of Benefit Barcode or any of their affiliates or otherwise, directly or indirectly, refer to Benefit Barcode of any of its affiliates in any publicity release, promotional material, customer or partner list, advertising, marketing or business-generating effort, whether written or oral, without the prior written consent of Benefit Barcode.

16.8. You may have entered a separate confidentiality agreement with Benefit Barcode. This Business Agreement does not limit your obligations under that agreement. In addition, you will treat as confidential, and may not disclose to any third party, any information or communication from, on behalf of, or with Benefit Barcode regarding your compliance with this Business Agreement.

17. DISPUTE RESOLUTION

The location of any dispute resolution by arbitration shall be in Chicago, Illinois. Similarly, any action to enforcement an arbitration award must be brought in the state courts of the State of Illinois located in Cook County, Illinois. You irrevocably consent to the jurisdiction of the aforementioned method of dispute resolution and courts.

18. ENTIRE AGREEMENT

These terms and conditions represent the entire agreement between you and us with respect to the subject matter addressed herein and supersedes all prior to contemporaneous agreements or understandings, written or oral. These terms and conditions shall be binding upon and inure to the benefit of the parties hereto and their respective successors and lawful assigns. The section headings used herein are for convenience only and shall be of no legal force or effect.

19. SEVERABILITY

In the event that any provision of this Agreement is determined by a court of competent jurisdiction to be illegal, invalid or otherwise unenforceable, such provision  or  part thereof shall be enforced to the extent possible consistent with the stated intention of the parties, or, if incapable of such enforcement, shall be deemed to be deleted from this Agreement, while the remainder of this Agreement shall continue in full force and remain in effect according to its stated terms and conditions.

20. WAIVER

Any failure by Benefit Barcode to enforce or exercise any provisions of these terms and conditions shall not constitute a waiver of that right or provision. Our failure to act with respect to a breach by you or others does not waive our rights to act with respect to subsequent or similar breaches. The waiver by either party of a breach of or a default under any provision of this Business Agreement shall not be effective unless in writing and shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Business Agreement, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.