(a) 2for1: Manage My Own, Inc., a Utah corporation with principal offices at 1969 N State St, Provo, UT 84604.
(b) 2for1 Apps: Software mobile applications (including iOS and Android) developed and made available by 2for1 for use by Merchants and Users in accessing and using the 2for1 Service.
(c) 2for1 Service: The software and services provided, offered and hosted by 2for1, including through the 2for1 Apps and 2for1 website, which allow Merchants to (a) make Offers available to Users and (b) access other services offered and made available from time to time by 2for1.
(d) Basic Plan Merchant: An entity authorized to post Basic Plan Offers using the 2for1 Service in accordance with the terms of this Agreement.
(e) Basic Plan Offers: Marketing advertisements provided pursuant to the Basic Plan selected by Merchant at registration that (a) present either a buy one get one free or a 20% off offer to Users (which Merchant shall determine, but may not provide both concurrently), (b) are unlimited to the User and (c) can never expire. Merchant can elect to change from a Basic Plan Offer to a Premium Plan Offer from time to time so long as its Offers comply with the rules of such plan.
(f) Brand Features: The trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party, respectively, as owned (or licensed) by such party from time to time.
(g) Intellectual Property Rights: All patent rights, copyrights, trademark rights, rights in trade secrets, database rights, moral rights, and any other intellectual property rights (registered or unregistered) throughout the world.
(h) Merchant: Any Basic Plan Merchant or Premium Merchant.
(i) Offers: Any Basic Plan Offer or Premium Offer.
(j) Premium Merchant: An entity authorized to make Premium Offers using the 2for1 Service in accordance with the terms of this Agreement.
(k) Premium Plan Offers: Marketing advertisements that provide any offers or discounts to Users without the limitations contemplated by a Basic Plan Offer. Merchant can elect to change from a Premium Plan Offer to a Basic Plan Offer from time to time so long as its Offers comply with the rules of such plan.
(l) Tax: Any Federal, state, or local sales, use, value added, goods and services, or other similar transaction taxes. This term excludes telecommunication taxes and similar tax types, property taxes, and taxes based on Merchant’s income, including, Withholding Taxes, income, franchise, business and occupation, and other similar tax types.
(m) Users: All persons viewing or accepting Offers or purchasing and products or services offered thereby.
2. Accepting this Agreement
(a) Agreement: This agreement (“Agreement”) forms a legally binding contract between the Merchant accepting the terms of this Agreement electronically in the 2for1 registration process and 2for1 in relation to Merchant’s use of the 2for1 Service to make Offers available to Users. Merchant acknowledges that 2for1 will, solely at Merchant’s direction, and acting pursuant to the relationship identified in Section 5, display and make Offers available for viewing and purchase by Users. In order to use the 2for1 Service to distribute Offers, Merchant accepts this Agreement and will provide and maintain complete and accurate information in your account profile on the 2for1 Apps and 2for1 website.
(b) Authorization: The party executing this Agreement on behalf of Merchant and agreeing on behalf of Merchant to be bound by this Agreement represents and warrants that it has full legal authority to bind Merchant to this Agreement.
3. Pricing, Payments, and Taxes
(a) Pricing: This Agreement covers both Basic Plan Offers and Premium Offers. Merchant may make Basic Plan Offers available to Users for free to the User. Merchant will not be charged a fee for Basic Plan Offers. Merchant shall pay 2for1 the Premium Plan fees set forth on the payments page of Merchant’s profile on the 2for1 Apps or 2for1 website upon such selection of a Premium Plan. Upon Merchant selecting a Premium Plan, the applicable fees will be due and payable immediately and monthly thereafter prior to commencement of each subsequent monthly term. The fees payable for any subsequent term shall be at the then-current term fees unless 2for1 notifies Merchant of a price change at least thirty days before the end of the then-current term, and shall be due at the commencement of such subsequent term. Merchant authorizes 2for1 to make recurring charges to the credit/debit card listed in the payments page of page of Merchant’s profile on the 2for1 Apps or 2for1 website. Merchant shall have the right to modify its election between a Basic Plan and a Premium Plan from time to time; provided that Merchant shall be responsible for all Premium Plan fees upon electing a Premium Plan and will not receive a refund of any Premium Plan fees upon electing a Basic Plan. If any required payment is not made (credit card declines) within 14 days, Merchant’s account will automatically be moved to a Basic Plan account.
(b) Taxes: If 2for1 believes that Taxes may be owed by Merchant or 2for1 on the offer of Offers or the products or services offered thereby, Merchant grants 2for1 permission to include any such Taxes in the price charged to Users. Merchant may set the price for its Offers or the products or services offered thereby. Merchant must comply with any and all applicable Tax laws, including the reporting and payment of any Taxes arising in connection with its use of the 2for1 Service or its Offers or the products or services offered thereby. The reporting and payment of any such applicable Taxes are solely Merchant responsibility.
(c) Basic Plan Fees: Merchant may make Basic Plan Offers available to Users for free. Merchant will not be charged a fee for Basic Plan Offers. To avoid unexpected fees for users, Merchant agrees that offers that were initially offered as Basic Plan Offers will remain Basic Plan Offers.
4. Use of the 2for1 Service
(a) Acceptable Use: Merchants and Offers must adhere to the Acceptable Offer Policies set forth at www.2for1.com (the “Acceptable Offer Policies”).
(b) Merchant Responsibilities: Merchant is responsible for uploading Offers to the 2for1 Service, providing required Offer information and support to users, and accurately disclosing the terms of Offers. Merchant is responsible for maintaining the confidentiality of its account details and any credentials that 2for1 may issue to Merchant or which Merchant may choose itself and Merchant is solely responsible for all Offers that are made available under its merchant credentials. Merchant is solely responsible for, and 2for1 has no responsibility to Merchant for, Merchant’s Offers, including use of any 2for1 APIs and for the consequences of Merchant’s actions, including any loss or damage which 2for1 may suffer. Merchant will not create or make available any Offers that it is not authorized to create or make available and hereby represents and warrants to 2for1 that it is duly authorized to create and make available all Offers posted by Merchant.
(c) Merchant Ownership Rights: Except for the license rights granted by Merchant in this Agreement, 2for1 agrees that it obtains no right, title, or interest from Merchant (or its licensors) under this Agreement in or to any of Merchant’s Offers, including any Intellectual Property Rights in those Offers.
(d) Merchant Activities: Merchant agrees to use the 2for1 Service only for purposes that are permitted by this Agreement and any applicable law, regulation, or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from the United States or other relevant countries). Merchant may not use the 2for1 Service to distribute or make available any Offer that has a purpose that facilitates the distribution of advertisements, offers or marketing proposals outside of the 2for1 Service. Merchant will not engage in any activity with the 2for1 Service, including making Offers available via the 2for1 Service, that interferes with, disrupts, damages, or accesses in an unauthorized manner the devices, servers, networks, or other properties or services of any third party including, but not limited to, the 2for1 Service. Merchant may not use User information obtained via the 2for1 Service to sell or distribute Offers outside of the 2for1 Service.
(e) Customer Support: Users are instructed to contact Merchant concerning any performance issues in Merchant’s Offers or the products or services offered thereby. As between Merchant and 2for1, Merchant will be solely responsible, and 2for1 will have no responsibility, to undertake or handle support and maintenance of Merchant’s Offers or the products or services offered thereby and any complaints about Merchant’s Offers or the products or services offered thereby. Merchant agrees to supply and maintain valid and accurate contact information that will be displayed in each of Merchant’s Offers and made available to Users for customer support and legal purposes. Merchant agrees to respond to customer support inquiries within three business days, and within 24 hours to any support concerns related to the Offers or the products or services offered thereby stated to be urgent by 2for1. Failure to provide adequate information or support for Merchant’s Offers or the products or services offered thereby may result in less prominent Offer exposure or removal from the 2for1 Service and may result in low ratings, lower sales, and billing disputes by Users.
(f) Privacy: Merchant agrees that if it makes its Offers available through the 2for1 Service, Merchant will protect the privacy and legal rights of Users. If the Users provide Merchant with, or Merchant’s Offers access or use, usernames, passwords, or other login information or personal information, Merchant agrees to make the Users aware that the information will be available to Merchant, and Merchant agrees to provide legally adequate privacy notice and protection for those Users. Further, Merchant may only use that information for the limited purposes for which the User has given Merchant permission to do so. However, if the User has opted into a separate agreement with Merchant that allows Merchant to store or use personal or sensitive information, then the terms of that separate agreement will govern Merchant’s use of such information.
(g) Third-Party Fees: Merchant is responsible for any access or data fees incurred from third parties (such as an Internet provider or mobile carrier) in connection with Merchant’s use of the 2for1 Service.
5. Appointment; Authorizations Merchant hereby appoints 2for1 as its agent or service provider as outlined here for the marketing of its Offers. In furtherance of 2for1’s appointment (as set forth here), Merchant authorizes 2for1 on a non-exclusive, worldwide, and royalty-free basis to: reproduce, perform, display, analyze, and use Merchant’s Offers in connection with (i) the operation and marketing of the 2for1 Service; (ii) the marketing of devices and services that support the use of the Offers and the marketing of the Offers on the 2for1 Service; (iii) the provision of hosting services to You and on Your behalf to allow for the storage of and user access to the Offers and to enable third party hosting of such Offers, (iv) making improvements to the 2for1 Service; and (v) checking for compliance with this Agreement and the Acceptable Offer Policies. The authorization in clause (v) is sublicensable to application security partners. Merchant also authorizes such application security partners to use the results of their review in their products and research that may be publicly available. Merchant authorizes 2for1 to perform the acts described in this section.
6. Brand Features and Publicity
(a) Ownership: Each party will own all right, title, and interest, including, without limitation, all Intellectual Property Rights, relating to its Brand Features. Except to the limited extent expressly provided in this Agreement, neither party grants, nor will the other party acquire, any right, title, or interest (including, without limitation, any implied license) in or to any Brand Features of the other party.
(b) Branding License: Subject to the terms and conditions of this Agreement, Merchant grants to 2for1 and its affiliates a limited, nonexclusive, royalty-free license during the term of this Agreement to display Merchant Brand Features, submitted by Merchant to 2for1, for use solely within the 2for1 Service, online or on any devices and in each case solely in connection with the distribution and sale of Merchant’s Offers via the 2for1 Service or to otherwise fulfill its obligations under this Agreement.
(c) Marketing License: In addition to the license granted in Section 6(b), for purposes of marketing the presence, distribution, and sale of Offers and Merchant’s relationship with 2for1 hereunder, 2for1 and its affiliates may include elements from Merchant Offers and Merchant Brand Features (a) within the 2for1 Service, on any device, and in any 2for1-owned online or mobile properties; (b) in online, mobile, television, out of home (e.g. billboard and similar), and print advertising formats outside the 2for1 Service; (c) when making announcements of the availability of the Offers; (d) advertising through social media and third-party platforms; (e) in presentations; and (f) in customer lists which appear either online or on mobile devices (which includes, without limitation, customer lists posted on 2for1 websites).
(d) 2for1 License: 2for1 grants to Merchant a limited, nonexclusive, worldwide, royalty-free license to use the 2for1 Brand Features for the term of this Agreement solely for marketing purposes and only in accordance with the 2for1 Brand Guidelines set forth at www.2for1.com.
7. Offer Takedowns
(a) Removal of Offers: Merchant may remove Offers from future distribution via the 2for1 Service at any time, but Merchant agrees to comply with this Agreement and the Payment Processor’s Payment Account terms of service for any such Offers distributed via the 2for1 Service prior to removal including, but not limited to, refund requirements. Removing Offers from future distribution via the 2for1 Service does not (i) affect the rights of users who have previously purchased Offers; (ii) remove Offers from User devices or from any part of the 2for1 Service where previously purchased or downloaded Offers are stored on behalf of Users; or (c) change Merchant’s obligation to deliver or support Offers or services that have been previously purchased or downloaded by Users.
(b) Legal Takedowns. Notwithstanding Section 7(b), in no event will 2for1 maintain on any portion of the 2for1 Service (including, without limitation, the part of the 2for1 Service where previously purchased or downloaded applications are stored on behalf of users) any Offer that Merchant has removed from the 2for1 Service and provided written notice to 2for1 that such removal was due to (a) an allegation of infringement, or actual infringement, of any third party Intellectual Property Right; (b) an allegation of, or actual violation of, third party rights; or (c) an allegation or determination that such Offer does not comply with applicable law (collectively “Legal Takedowns”).
(c) No Obligation to Monitor: 2for1 does not undertake an obligation to monitor the Offers or their content. If 2for1 becomes aware and determines in its sole discretion that an Offer or any portion thereof (i) violates any applicable law; (ii) violates this Agreement, applicable policies, or other terms of service, as may be updated by 2for1 from time to time in its sole discretion; (iii) violates terms of distribution agreement with device manufacturers; or (iv) creates liability for or has an adverse impact on 2for1; then 2for1 may reject, remove, suspend, or reclassify the Offer from the 2for1 Service. 2for1 reserves the right, at its sole discretion, to suspend and/or bar any Offer and/or Merchant from the 2for1 Service. If any Offer contains elements that could cause serious harm to user devices or data, 2for1 may at its discretion disable the Offer or remove it from the 2for1 Service. If any Offer is rejected, removed, or suspended from the 2for1 Service pursuant to this Section 7(c), then 2for1 may withhold payments due to Merchant.
9. Terminating this Agreement This Agreement will continue to apply until terminated, subject to the terms that survive pursuant to Section 15(g), by either Merchant or 2for1 as set forth below. Merchant may terminate this Agreement at any time through the 2for1 Apps or 2for1 website. 2for1 may terminate this Agreement with Merchant for any reason with thirty (30) days prior written notice. In addition, 2for1 may, at any time, immediately suspend or terminate this Agreement with Merchant if (a) Merchant has breached any provision of this Agreement, any non-disclosure agreement, or other agreement relating to the 2for1 Service; (b) 2for1 is required to do so by law; or (c) 2for1 decides no longer to provide the 2for1 Service. After termination of this Agreement, the 2for1 Service will not distribute Merchant Offers, but may retain and use copies of the Offers for support of the 2for1 Service. If Merchant experiences a change of control, 2for1 may, at its discretion, elect immediately to terminate this Agreement.
10. Merchant Representations and Warranties Merchant represents and warrants that it has all Intellectual Property Rights in and to its Offers. Merchant represents and warrants that Merchant has the right to distribute any third-party material that is included in any Offer. Merchant agrees that Merchant will not submit material to the 2for1 Service that is subject to third party Intellectual Property Rights unless Merchant is the owner of such rights or has permission from their rightful owner to submit the material. Merchant represents and warrants that, as the principal to the transaction with the User, Merchant is solely responsible for compliance worldwide with all applicable laws and other obligations.
11. DISCLAIMER OF WARRANTIES MERCHANT UNDERSTANDS AND EXPRESSLY AGREES THAT ITS USE OF THE 2FOR1 SERVICE IS AT MERCHANT’S SOLE RISK AND THAT THE 2FOR1 SERVICE ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND. MERCHANT’S USE OF THE 2FOR1 SERVICE AND ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED USING THE 2FOR1 SERVICE IS AT YOUR OWN DISCRETION AND RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH USE. 2FOR1 FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
12. LIMITATION OF LIABILITY TO THE MAXIMUM EXTENT PERMITTED BY LAW, MERCHANT UNDERSTAND AND EXPRESSLY AGREE THAT 2FOR1, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS WILL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES THAT MAY BE INCURRED BY YOU, INCLUDING ANY LOSS OF DATA, WHETHER OR NOT 2FOR1 OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
(a) Indemnification of 2for1: To the maximum extent permitted by law, Merchant agrees to defend, indemnify, and hold harmless 2FOR1, its affiliates, and their respective directors, officers, employees and agents from and against any and all third party claims, actions, suits, or proceedings, as well as any and all losses, liabilities, damages, costs, and expenses (including reasonable attorneys’ fees) arising out of or accruing from (a) Merchant’s use of the 2FOR1 Service in violation of this Agreement; (b) infringement or violation by Merchant’s Offers of any Intellectual Property Right or any other right of any person; or (c) Merchant or its Offers’ violation of any law.
(b) Indemnification of Payment Processors: To the maximum extent permitted by law, Merchant agrees to defend, indemnify, and hold harmless the applicable Payment Processors (which may include 2for1 and/or third parties) and the Payment Processors’ affiliates, directors, officers, employees, and agents from and against any and all third party claims, actions, suits, or proceedings, as well as any and all losses, liabilities, damages, costs, and expenses (including reasonable attorneys’ fees) arising out of or accruing from Merchant’s distribution of Offers via the 2for1 Service.
14. Changes to the Agreement 2for1 may make changes to this Agreement at any time with notice to Merchant and the opportunity to decline further use of the 2for1 Service. Merchant should look at the Agreement and check for notice of any changes regularly. Changes will not be retroactive, but will become effective, and will be deemed accepted by Merchant, (i) immediately for those who become Merchant after the notification is posted; or (ii) for pre-existing Merchant, on the date specified in the notice, which will be no sooner than 30 days after the changes are posted (except changes required by law which will be effective immediately). If Merchant does not agree with the modifications to the Agreement, Merchant may terminate its use of the 2for1 Service, which will be its sole and exclusive remedy. Merchant agrees that its continued use of the 2for1 Service constitutes its agreement to the modified terms of this Agreement.
15. General Legal Terms
(a) Entire Agreement: This Agreement, including any addenda Merchant may have agreed to separately, constitutes the entire legal agreement between Merchant and 2for1 and governs Merchant’s use of the 2for1 Service and completely replaces any prior agreements between Merchant and 2for1 in relation to the 2for1 Service. The English language version of this Agreement will control and translations, if any, are non-binding and for reference only.
(b) Waiver: Merchant agrees that if 2for1 does not exercise or enforce any legal right or remedy contained in this Agreement (or which 2for1 has the benefit of under any applicable law), this will not be taken to be a formal waiver of 2for1’s rights and that those rights or remedies will still be available to 2for1.
(c) Severability: If any court of law having the jurisdiction to decide on this matter rules that any provision of this Agreement is invalid, then that provision will be removed from this Agreement without affecting the rest of this Agreement. The remaining provisions of this Agreement will continue to be valid and enforceable.
(d) EXPORT LAWS: THE 2FOR1 SERVICE MAY BE SUBJECT TO UNITED STATES AND OTHER JURISDICTIONS EXPORT LAWS AND REGULATIONS. YOU AGREE TO COMPLY WITH ALL DOMESTIC AND INTERNATIONAL EXPORT LAWS AND REGULATIONS THAT APPLY TO YOUR DISTRIBUTION OR USE OF PRODUCTS. THESE LAWS INCLUDE RESTRICTIONS ON DESTINATIONS, USERS, AND END USE.
(e) Assignment: Except in the case of a change of control (for example, through a stock purchase or sale, merger, or other form of corporate transaction), the rights granted in this Agreement may not be assigned or transferred by either Merchant without the prior approval of the other party. Any other attempt to assign by Merchant is void.
(f) Choice of Law: All claims arising out of or relating to this Agreement or Merchant’s relationship with 2for1 under this Agreement will be governed by the laws of the State of Utah, excluding Utah’s conflict of laws provisions. Merchant and 2for1 further agree to submit to the exclusive jurisdiction of the federal or state courts located within Utah County, Utah to resolve any legal matter arising from or relating to this Agreement or Merchant’s relationship with 2for1 under this Agreement, except that Merchant agrees that 2for1 will be allowed to apply for injunctive relief in any jurisdiction. If Merchant is accepting the Agreement on behalf of a United States government entity, then the following applies instead of the foregoing: the parties agree to remain silent regarding governing law and venue.
(g) Survival: Sections 1 (Definitions), 10 (Merchant Representations and Warranties), 11 (Disclaimer of Warranties), 12 (Limitation of Liability), 13 (Indemnification), and 15 (General Legal Terms) will survive any expiration or termination of this Agreement.