Terms and Conditions
Terms of Service for EXCLUSIVE Offers
These Terms of Service are an agreement between you and Exclusive Concepts, Inc. (“EXCLUSIVE”) that govern your use of EXCLUSIVE’s “Offers” products and related applications, inclusive but not exclusive to Email Booster, Daily Deal Bar, Cart Reminder, Cart Closer, and Time2Buy. Please read them carefully.
Your use of any EXCLUSIVE products, software, Internet-based services, and/or installation service (referred to collectively as the “Services” in this document, but excluding any services provided to you by EXCLUSIVE under a separate written agreement) is subject to the terms of this Agreement. Certain services may be accompanied by other, additional terms. If so, those terms apply.
By checking “I Agree” on a website or in a Statement of Work, or by actually using the Services and related software provided by EXCLUSIVE, you accept these terms. If you do not accept them, do not use the Services.
As described below, using some features also operates as your consent to the transmission of certain standard computer information for Internet-based services.
1. INTERNET-BASED SERVICES. The Services include Internet-based services.
a. Consent for Internet-Based Services. The Services connect to EXCLUSIVE and/or its service providers’ computer systems over the Internet. To use the Services, it may be necessary for your computer systems to send information, including Internet Protocol addresses and other information about your computer systems, to EXCLUSIVE and/or its service providers. By using the Services, you consent to the transmission of information between your computer systems and the computer systems of EXCLUSIVE and its service providers.
b. Use of Information. EXCLUSIVE may use the information obtained from you to improve its Services. EXCLUSIVE may also share this information with third parties to improve its Services.
c. Misuse of Services. You may not use the Services in any way that could harm them or disrupt or impair anyone else’s use of them. You may not use the Services to try to gain unauthorized access to any service, data, account or network by any means.
2. Fees and Payment
2.1 Fees for Offers. Offers services are billed and charged to your credit card monthly based on the pricing posted to our website, or a separate order form you sign that indicates a flat monthly fee. Legacy users of Conversions On Demand services, who have not yet upgraded to Offers, will continue to be billed and charged monthly based on either usage (number of times the site accesses EXCLUSIVE servers) or results (a percent of sales attributed to the service). The Fee Schedule applicable to legacy users for Services who have not upgraded to Offers is posted in the Pricing section of the old ConversionsOnDemand.com website, and may be updated from time to time.
Sections 2.1.1 – 2.2 apply only to legacy users who have not upgraded to Offers
2.1.1 Usage-based services (example, The Daily Deal Bar). Fees are determined by the total number of “feature-views” you accumulate in a given month. For purposes of this Agreement, every time a usage-based service’s script is accessed from an EXCLUSIVE server, that will count as one feature-view. The charge you incur each month will be computed from the previous month’s feature-views at the then published price level.
2.1.2 Results-based services (example, The Cart Closer). Fees are based on revenue information provided by your shopping carts coupon manager or other revenue tracking feature appropriate to your platform. Fees are computed based on these results. Any adjustments necessary due to order cancellations and/or returns not included in the reported amounts will require the store owner to notify EXCLUSIVE within 45 days of the end of the associated billing period by providing details on the orders that should be excluded. EXCLUSIVE will compute the fee adjustments and apply them as a credit on the next bill. No refunds will be issued.
2.1.3 Continued Access. Results-based services require that EXCLUSIVE is provided continued access to your store and that any revenue tracking specified is implemented. Removing store access and/or revenue tracking will result in cancellation of the service and a final charge to your credit card equal to the previous month’s fee or $75 for each month you have used the service and we do not have the ability to access the revenue information, whichever is greater. EXCLUSIVE will reconcile fees on a monthly basis and you will typically be charged in full within 10 days after the month close. The actual Fees charged will be based on the currently published price schedule at that time.
2.1.4 Code Removal. All Offers services can be temporarily or permanently disabled by the client at any time by using the administrative software. If the client wants the installed code to be removed from their store a $300 fee will be charged.
2.1.5 Free Trial Periods. For any Service that includes a free trial, once you have completed your free trial, you will be automatically subject to fees in accordance with the Fees posted on the pricing page located at ConversionsOnDemand.com.
2.2 Pricing page. You are responsible for reviewing the pricing page from time to time and remaining aware of the fees charged by EXCLUSIVE. The pricing page is subject to change at any time in EXCLUSIVE’s sole discretion. EXCLUSIVE will use good faith efforts to notify you via email prior to the effectiveness of any change to pricing.
2.3 Recurring Payment Terms
By accepting these terms and conditions, you authorize EXCLUSIVE to charge the credit card that you have specified below each month for the amount of fees due for the EXCLUSIVE Services.
You agree that the credit card you provide for automatic monthly payments to EXCLUSIVE is, and will continue to be, an account that you own, and that you will maintain sufficient availability under your credit card limit to pay your monthly bill to EXCLUSIVE.
The automatic monthly charge to your credit card will occur on or after the first day of each month.
These terms and conditions will constitute your copy of your recurring payment authorization to EXCLUSIVE. Please print and retain a copy of this recurring payment authorization for your records.
You can cancel your recurring payment authorization by canceling your service(s) in accordance with the terms of the Offers order form you sign, and by emailing email@example.com. If you cancel your recurring payment authorization without providing alternative credit card information, you will be deemed to have terminated this agreement. Cancelling your recurring payment authorization will not relieve you of any liability for amounts due to EXCLUSIVE under the terms of this Agreement.
If you give feedback about the Services to EXCLUSIVE, you agree that EXCLUSIVE shall have, without charge, the right to use, share and commercialize your feedback in any way and for any purpose. You also give to third parties, without charge, any patent rights needed for their products, technologies and services to use or interface with any specific parts of an EXCLUSIVE Service that includes the feedback. You will not give feedback that is subject to a license that requires EXCLUSIVE to license its software or documentation to third parties because we include your feedback in them. These rights survive this agreement.
4. PROPRIETARY RIGHTS.
a. Ownership. You acknowledge and agree that EXCLUSIVE (or its licensors) own all legal right, title and interest in and to the Services, including any intellectual property rights which subsist in the Services, whether those rights happen to be registered or not, and wherever in the world those rights may exist, and the information and content included in the Services or to which you may have access (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images).
b. Trademarks. Nothing in this Agreement gives you any right to use any of EXCLUSIVE’s trade names, trademarks, service marks, logos, domain names, and other distinctive brand features.
c. Notices. You agree that you shall not remove, obscure, or alter any proprietary rights notices (including copyright and trade mark notices) which may be affixed to or contained within the Services.
5. LICENSE FROM EXCLUSIVE
The Services and the software used to provide them are licensed, not sold. This agreement only gives you some rights to use the Services and related software. EXCLUSIVE reserves all other rights. Unless applicable law gives you more rights despite this limitation, you may use the Services and related software only as expressly permitted in this agreement. In doing so, you must comply with any technical limitations in the Services and related software that only allow you to use it in certain ways. You may not
• Work around any technical limitations in the Services and related software;
• Reverse engineer, decompile or disassemble any software, except and only to the extent that applicable law expressly permits, despite this limitation;
• Publish the software for others to copy;
• Rent, lease or lend the Services or software;
• Transfer the software or this agreement to any third party; or
• Reproduce, duplicate, copy, sell, trade or resell the Services or related software for any purpose.
• Provide an EXCLUSIVE competitor with your login information
6. LICENSE FROM YOU.
a. You agree that EXCLUSIVE may collect, use, aggregate, republish, and syndicate information and analytics data about your website and the products, services, and other offerings you make available through it, and you hereby grant EXCLUSIVE a license under all rights necessary for EXCLUSIVE to use, aggregate, republish, and syndicate such content and information. This includes analytics data and information about your site that is collected by any tracking code we install on your website and cart pages, that collects data such as conversion rates.
b. You agree that EXCLUSIVE may use your name, logo, and marks in its marketing materials and press releases and otherwise publicize the fact that you are using EXCLUSIVE’s Services.
c. You agree that EXCLUSIVE may use and freely distribute any code developed to integrate and support Services for other shopping carts that has been based on the documentation provided by EXCLUSIVE to you for the purposes of developing such code, assuming that EXCLUSIVE does not charge for making this code available.
7. DISCLAIMER OF WARRANTY.
THE SERVICES ARE PROVIDED “AS-IS” AND “AS AVAILABLE.” YOU BEAR ALL OF THE RISK OF USING THEM. EXCLUSIVE GIVES NO EXPRESS WARRANTIES, GUARANTEES OR CONDITIONS. IN PARTICULAR, BUT WITHOUT ANY LIMITATION, EXCLUSIVE AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT:
(A) YOUR USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS,
(B) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR,
(C) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, AND
(D) THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY SOFTWARE PROVIDED TO YOU AS PART OF THE SERVICES WILL BE CORRECTED.
TO THE FULLEST EXTENT PERMITTED BY LAW, EXCLUSIVE EXCLUDES THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
8. LIMITATION ON AND EXCLUSION OF REMEDIES AND DAMAGES.
YOU CAN RECOVER FROM EXCLUSIVE ONLY DIRECT DAMAGES UP TO U.S. $5.00. YOU CANNOT RECOVER ANY OTHER DAMAGES, INCLUDING CONSEQUENTIAL, LOST PROFITS, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES, DAMAGES FOR LOSS OF DATA, LOSS OF GOODWILL, OR HARM TO REPUTATION, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS.
THIS LIMITATION APPLIES TO
• ANYTHING RELATED TO THE SERVICES, RELATED SOFTWARE, CONTENT (INCLUDING CODE) ON THIRD PARTY INTERNET SITES, OR THIRD PARTY PROGRAMS; AND
• CLAIMS FOR BREACH OF CONTRACT, BREACH OF WARRANTY, GUARANTEE OR CONDITION, STRICT LIABILITY, NEGLIGENCE, OR OTHER TORT TO THE EXTENT PERMITTED BY APPLICABLE LAW.
IT ALSO APPLIES EVEN IF EXCLUSIVE KNEW OR SHOULD HAVE KNOWN ABOUT THE POSSIBILITY OF THE DAMAGES.
In the event that you breach any of your obligations under clause 1d of this Agreement or you are otherwise in breach of Data Protection Laws and such breach causes us to be subject to the imposition of any fines by any regulatory or statutory authority and/or incurring any associated legal fees in relation to your breach or the imposition of any such fine (together, “Regulatory Fine(s)”), or otherwise incurring any losses, you shall indemnify and hold harmless us for the full amount of the Regulatory Fine(s) and any such losses.
9. ENTIRE AGREEMENT
This Agreement, and any additional terms for supplements, updates, Internet-based services and support services that you use, constitute the entire agreement for the Services.
10. APPLICABLE LAW
The internal laws of the Commonwealth of Massachusetts govern the interpretation of this agreement and apply to claims for breach of it, regardless of conflict of laws principles. You agree, irrevocably, that any claims or disputes arising out of or relating to this Agreement, its breach, or performance must be brought within one year of the date when they arise, and shall be brought only in the state or federal courts sitting in the Commonwealth of Massachusetts, and you consent to the jurisdiction and venue of those courts.