Publisher Agreement
Swoop Local Offers Terms and Conditions
When a party (“you” or “Publisher“) registers for use of the Swoop Service (as defined below) or is otherwise presented with an electronic request to accept the Swoop Local Offers Terms and Conditions and clicks “Accept”, an agreement to these terms and conditions (the “Agreement“) is entered into between you and Swoop.com, Inc. (“Swoop”), with its principal place of business at 125 Cambridgepark Drive, Cambridge MA 02450 and contact email address at publishers@Swoop.com.
1. The Swoop Service. Your access to the Swoop Service is subject to the terms and conditions set forth in this Agreement. The “Swoop Service” shall mean Swoop’s provision to you of certain JavaScript and other technology to enable Users (as defined below) to view local retail offers (“Swoop Technology“) that you may integrate into your websites, or other platforms, devices and operations (the “Site“).
2. Responsibilities. You are solely responsible for the Site, including, without limitation, all content, materials, photographs and images that appear on the Site, maintenance and operation thereof in accordance with all applicable laws and in a manner that is in adherence to the terms and conditions of this Agreement. You are solely responsible for and will ensure that your use of the Swoop Service complies with all applicable laws. Swoop assumes no responsibility to determine whether your use of the Swoop Service on your Site violates any third party rights, applicable laws or privacy rights. Swoop shall operate the Swoop Service in its good faith business judgment. Swoop is not obligated to provide notice to you in the event that any Swoop Technology content is not properly displayed to users of the Site (the “Users“). The Swoop Technology may not work on all Sites.
3. Prohibited Uses. You shall not, and shall not authorize or encourage any third party to: (i) directly or indirectly generate queries, impressions, clicks, hints, hovers, landing pages or other similar events through any automated, deceptive, fraudulent or other invalid means; (ii) edit or modify any content displayed by the Swoop Technology, or remove, obscure or minimize any content displayed by the Swoop Technology in any way; (iii) engage in any action or practice that reflects poorly on Swoop or otherwise disparages or devalues Swoop’s reputation or goodwill; (iv) disclose the Swoop Data (as defined below) other than through the Swoop Service; (v) modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Swoop Service or any documentation provided by Swoop, or create or attempt to create a substitute or similar service or product through use of or access to the Swoop Service or proprietary information related thereto; or (vi) remove, obscure, or alter Swoop’s copyright notice, trademarks, logos, or other proprietary rights or any other notices affixed to or contained within the Swoop Service or documentation.
4. Termination. Swoop may at any time, without cause, in Swoop’s sole and absolute discretion, suspend either the Publisher’s use of the Swoop Service, or the Swoop Service in its entirety. You may suspend use of the Swoop Service at any time. Swoop may terminate this Agreement at any time on written notice (including by email) to you.
5. Data, Content and Licenses. All data, information or content provided by Swoop to Publisher and all User data specifically relating to User interaction with the Swoop Service are “Swoop Data“. Any data, information or content provided by Publisher to Swoop, excluding Swoop Data, but including User data relating to Users of the Site other than specifically relating to their interaction with the Swoop Service is “Publisher Data“. Publisher hereby grants to Swoop a royalty-free, fully-paid-up, sub-licensable, transferable, non-exclusive, worldwide and perpetual right and license to use all Publisher Data provided by Publisher to Swoop. Publisher represents and warrants that (a) Publisher has all necessary consents and authority to grant such rights and to enable Swoop to collect and use User data in connection with User interaction with the Swoop Service; and (b) Publisher privacy policy(ies) and disclosures are and will remain clearly posted on the Site and that they permit Publisher to grant those rights, make such representations and warranties, and perform its obligations under this Agreement and that they clearly inform Users that it may do so. Publisher will provide such additional notices to Users or obtain such additional consents from Users as Swoop may from time to time reasonably require. Publisher Data will be delivered to Swoop, and Publisher will facilitate the transfer of Swoop Data, in accordance with Swoop’s reasonable instructions from time to time.
Subject to the terms and conditions of this Agreement, Swoop grants Publisher, during the term of this Agreement, a limited, revocable, non-transferable, royalty-free, fully-paid-up, non-exclusive license to use the Swoop Technology and Swoop Data solely for the purpose of the Swoop Service.
6. No Warranty. SWOOP MAKES NO GUARANTEE, REPRESENTATION OR WARRANTY REGARDING IF, OR IN WHAT AMOUNTS, SWOOP TECHNOLOGY MAY FROM TIME TO TIME BE IMPLEMENTED ON THE SITE OR ANY PORTIONS THEREOF. YOU ACCEPT THE SWOOP SERVICE, SWOOP TECHNOLOGY AND SWOOP DATA “AS IS” AND “AS AVAILABLE” AND WITHOUT EXPRESS OR IMPLIED WARRANTY (INCLUDING WITHOUT LIMITATION AS TO CONTENT DISPLAYED BY SWOOP TECHNOLOGY OR OTHER SERVICES) TO THE FULLEST EXTENT PERMITTED BY LAW. YOUR SOLE RECOURSE IN THE EVENT YOU ARE DISSATISFIED WITH THE SWOOP SERVICE IS TO SUSPEND USE OF THE SWOOP SERVICE. SWOOP EXPRESSLY DISCLAIMS THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR ANY PARTICULAR PURPOSE. TO THE EXTENT ANY CLAIMS ARE BASED ON ANY CONTENT NOT OWNED BY SWOOP, SWOOP SHALL NOT HAVE ANY LIABILITY IN CONNECTION WITH SAME. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR AND WILL ENSURE THAT YOUR USE OF THE SWOOP SERVICE, SWOOP TECHNOLOGY AND SWOOP DATA COMPLIES WITH ALL APPLICABLE LAWS. SWOOP ASSUMES NO RESPONSIBILITY TO DETERMINE WHETHER YOUR USE OF THE SWOOP SERVICE, SWOOP TECHNOLOGY AND SWOOP DATA ON YOUR SITE VIOLATES ANY THIRD PARTY RIGHTS, APPLICABLE PRIVACY LAWS OR PRIVACY RIGHTS.
7. Limitations of Liability. SWOOP SHALL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGE SUFFERED AS A RESULT OF OR ARISING OUT OF ANY ACT OR OMISSION, WHETHER NEGLIGENT OR OTHERWISE, IN RELATION TO THE PROMOTION, PROVISION, SUSPENSION OR TERMINATION OF THE SWOOP SERVICE, SWOOP TECHNOLOGY OR SWOOP DATA. Each party acknowledges that the other party has entered into this Agreement relying on the limitations of liability stated herein and that those limitations are an essential basis of the bargain between the parties.
8. Publisher data. You agree that Swoop may use your name, email address, website URL and any other information provided in registering for the Swoop Service in presentations, marketing materials, customer lists, financial reports and website listings of customers and to contact you regarding other services offered by Swoop.
9. Representations, Warranties and Indemnity. You represent and warrant that (a) all of the information you provide to Swoop in connection with this Agreement is correct and current; (b) you are the owner of each Site or that you are legally authorized to act on behalf of the owner of such Site for the purposes of this Agreement; (c) you have all necessary right, power and authority to enter into this Agreement and to perform the acts required of you hereunder, including all necessary rights and authority for the use of all materials displayed on your Site, and to provide Swoop with all User data and access to User data, as contemplated under this Agreement; and (d) you have complied and will continue to comply with all applicable laws, statutes, ordinances, and regulations (including without limitation any relevant data protection or privacy laws) in your performance of any acts hereunder. You further represent and warrant that each Site and any material displayed therein: (i) complies with all applicable laws, statutes, ordinances, and regulations; (ii) does not breach any duty toward or rights of any person or entity including, without limitation, rights of intellectual property, publicity or privacy, or rights or duties under consumer protection, product liability, tort, or contract theories; and (iii) is not pornographic, hate-related, or otherwise objectionable. You agree to indemnify, defend and hold Swoop, its agents, affiliates, subsidiaries, directors, officers, employees and applicable third parties (including without limitation advertisers, merchants, licensors, licensees, consultants and contractors) harmless from and against any and all third party claims, liabilities, losses and expenses (including damage awards, settlement amounts and reasonable legal fees) made or brought against them arising out of, related to or which may arise from your breach of this Agreement.
10. Intellectual Property Rights. You acknowledge that as between you and Swoop (i) Swoop owns all right, title and interest, including without limitation all Intellectual Property Rights, in and to the Swoop Service, Swoop Technology and Swoop Data and that (ii) you will not acquire any right, title, or interest in or to the Swoop Service, Swoop Technology or Swoop Data except as expressly set forth in this Agreement. “Intellectual Property Rights” means any and all rights existing from time to time under patent law, copyright law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights.
11. Miscellaneous. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. Any modifications to this Agreement must be made in a writing executed by both parties, by your online acceptance of updated terms, or after your continued participation in the Swoop Service after such terms have been updated by Swoop. This Agreement shall be governed by the laws of Massachusetts, except for its conflicts of laws principles. Any dispute or claim arising out of or in connection with this Agreement shall be adjudicated in Middlesex County Massachusetts. The parties specifically exclude from application to the Agreement the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. The failure to require performance of any provision shall not affect a party’s right to require performance at any time thereafter, nor shall a waiver of any breach or default of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself. If any provision herein is held unenforceable, then such provision will be modified to reflect the parties’ intention, and the remaining provisions of this Agreement will remain in full force and effect. You may not resell, assign, or transfer any of your rights hereunder. Any such attempt may result in termination of this Agreement, without liability to Swoop. Notwithstanding the foregoing, Swoop may assign this Agreement to any affiliate at any time without notice. The relationship between Swoop and you is not one of a legal partnership relationship, but is one of independent contractors. Any notices hereunder shall be valid if sent via email, upon confirmation of delivery of email, to the email address set forth above (in the case of Swoop) or to the email address given in registering for the Swoop Service (in the case of Publisher) or to such other email address as each party may specify from time to time by written notice to the other party.