I. Svencart Inc General Terms and Conditions for Vendors and Affiliates

Svencart Inc (hereinafter referred to as “Svencart”) operates the sales platform located at www.svencart.com (the “Sales Platform”), in which end consumers may purchase software, services, or other goods (“Products”) from Svencart. The Sales Platform also permits third-party advertisers (“Affiliates”) to promote a third party vendor’s products. Vendors who offer products and services to end-users are referenced herein as “Vendor.” The program whereby Affiliates promote the Products is referenced herein the “Affiliate Program.”

The following General Terms and Conditions (the “GTC” or “Agreement”) is a binding agreement between and govern the legal relationship between Svencart Inc on the one hand, and Vendor and Affiliates who participate in the Affiliate Program on the other. The Vendor or Affiliate entering this agreement shall be referenced herein as “Contractual Partner.” By submitting an application, or accessing or participating in the Sales Platform, Contractual Partner confirms that it has read these GTC and expressly consents to all the terms and conditions contained herein and any additional terms and conditions specified on the Sales Platform.

    II. Term; Termination

This Agreement shall commence on the date that Contractual Partner submits an application and Svencart accepts such application. Contractual Partner must accurately complete the application to become an Affiliate or Vendor, as applicable. Svencart may accept or reject applications at its sole discretion for any or no reason.

Svencart may, in its sole and absolute discretion, terminate or change the Affiliate Program, revoke Contractual Partner’s access to the Affiliate Program, for any or no reason, with or without notice. Contractual Partner may terminate this Agreement upon thirty (30) days’ written notice to Svencart. In the event of termination of this Agreement, Contractual Partner shall immediately cease use of all Svencart services and return all Confidential Information to Svencart, and no further compensation shall be owed to Contractual Partner. Notwithstanding anything herein to the contrary, Svencart may immediately terminate this Agreement without further compensation to Contractual Partner at any time if Svencart determines, in its sole discretion, that Contractual Partner has breached this Agreement, engaged in fraud, or violate any applicable state, federal, or local law, rule, or regulation. Upon termination, Affiliate shall immediately cease engaging in the Promotions (as defined herein).

If Contractual Partner violates this Agreement, or if Svencart suspects that Contractual Partner has violated the Agreement, it shall forfeit any unpaid Commissions or other payments otherwise due by Svencart. Failure to comply with this Agreement or suspected non-compliance may result in Commission withholdings, possible legal action, and any other rights or remedies available to Svencart pursuant to this Agreement or otherwise. In addition to any other rights and remedies available to Svencart under this Agreement, or law or equity, Svencart reserves the right to withhold any unpaid Commissions, charge back paid Commissions to Contractual Partner’s account, and deduct Commissions paid to Contractual Partner against future payments if (i) Svencart suspects or determines in its sole discretion that Contractual Partner has breached this Agreement or any applicable law, rule, or regulation; (ii) Svencart receives any complaints about Contractual Partner which Svencart reasonably believes to indicate Contractual Partner’s breach of this Agreement; or (iii) Svencart determines in its sole discretion that Commissions were associated with a breach of this Agreement or applicable law, rule, or regulation. The foregoing shall be used to offset any losses and liabilities to Svencart associated with Contractual Partner’s breach, including Svencart’s attorneys’ fees and costs. Thus, such Commissions may be withheld, deducted, or charged back without regard to whether such Commissions were earned as a result of such breach. If any breach of this Agreement occurs and Svencart determines that the breach has been cured, Svencart may return some or all of such amounts as it deems appropriate in its sole discretion.

    III. Representations and Warranties

Svencart and Contractual Partner each represent and warrant that they have full right and authority to enter this Agreement.

Contractual Partner represents and warrants:

  • It shall fulfill its obligations under this Agreement in compliance with all applicable laws, rules, and regulations, including without limitation the CAN-SPAM Act of 2003 and all state antispam laws including California Business & Professions Code Section 17529.5, California Civil Code Section 1798.83, the Federal Trade Commission Act, the California Online Privacy Protection Act, the Children’s Online Privacy Protection Act, the Federal Trade Commission’s Telemarketing Sales Rule, the Telephone Consumer Protection Act, Federal Trade Commission Endorsements Guides, California Health and Safety Code section 25249.6 (“Proposition 65”), and any other applicable federal, state, and local consumer protection laws, regulations, and standards.
  • All Products will comply with all applicable laws, rules, and regulations, will comply with any descriptions or specifications provided by Contractual Partner, shall be fit for the uses for which the Product is normally intended, and will be properly packed and secured in such a manner as to enable it to reach the end-user in good condition.
  • If Contractual Partner conducts any Promotions (as defined herein), Svencart shall make available to Contractual Partner, via the applicable platform, graphic and textual links and other creative materials such as text ads, graphic ads, video ads, from and subject lines, and copy associated with the Promotion that Contractual Partner may display on websites owned or controlled by Contractual Partner, in emails sent by Contractual Partner, and in Contractual Partner’s online advertisements. In providing services hereunder, Contractual Partner shall only use the creative materials provided by Svencart or pre-approved by Svencart in writing. Contractual Partner shall not make any changes to the creative materials unless it obtains Svencart’s prior written consent. Without limiting the foregoing, if Contractual Partner creates any creative materials for use in Promotions, it shall obtain Svencart’s prior written consent before using such materials in any Promotion.
  • It has disclosed to Svencart, prior to executing this Agreement, the existence of any past federal or state decrees, orders, or consent agreements, and any pending formal or informal government investigations or prosecutions by any federal or state governmental or regulatory body or agency, or any industry regulatory authority against Contractual Partner.
  • It shall not use deceit or fraud, and shall not engage in or promote any illegal activities of any kind, when performing its obligations under this Agreement. Contractual Partner owns or has the legal right to use and distribute all content, copyrighted material, intellectual property, products, and services displayed on all materials that Contractual Partner uses that Svencart does not provide to Contractual Partner.
  • It shall comply with the terms, conditions, guidelines, and policies of any third-party services used by Contractual Partner in connection with this Agreement, including but not limited to, email providers, social networking services and ad networks, including without limitation, any terms of service, privacy policy, promotions guidelines, advertising guidelines, copyright policy, branding and promotion policy, guidelines, or principles and policies, provided that these comply with applicable laws, rules, and regulations.
  • It shall prominently post and make available to end-users, a privacy policy in compliance with all applicable laws that clearly, conspicuously, and accurately discloses all information collection, use and sharing practices, including providing for the collection of such personally identifiable information in connection with this Agreement and the provision of such personally identifiable information to Svencart.
  • It shall inform Svencart fully and without delay with respect to any changes to previously approved sales pages, products, or thank-you pages. All advertising claims made about the Products, or on any advertising material where the Products are promoted or Links are located, shall be truthful, non misleading, and must not be considered deceptive. Contractual Partner must possess substantiation for each such claim and statement. “Substantiation” shall mean documented, competent, and reliable evidence, in writing, to verify the truthfulness and support the factual accuracy of the advertising claims. Advertisements shall not include any express or implied claims about the efficacy of, or generally expected results of using, any Product, unless Contractual Partner possesses substantiation for such claim as required by applicable laws, rules, and regulations. Upon request, Contractual Partner shall supply all substantiation underlying such advertising statements to Svencart
  • It shall notify Svencart of any complaint received by Contractual Partner regarding any Promotion, Product, or advertisement used in connection with this Agreement within twenty-four (24) hours or receiving such complaint.

If Contractual Partner is a Vendor, it represents and warrants that it is the holder of all rights in the Product and that it is the holder of all rights in marketing materials that supplement the Product, for example product descriptions, product information, customer reviews, images, and other materials from the Vendor.

Contractual Partners shall refrain from the following acts:

  • Promoting violence;
  • Promoting sexual content;
  • Promoting alcohol, tobacco, and medications;
  • Promoting any illegal activity including without limitation the promotion of gambling, illegal substances, weapons, counterfeit money, software piracy, phreaking, or hacking;
  • Using any websites, emails, advertisements, links, or other media properties created or used to promote, display, or transmit any Products or Promotions that include content that is deceptive or misleading or otherwise fails to comply with applicable federal and state laws, rules, or regulations; not infringe upon the personal rights, patents, trademark, trade name, logo, publicity right, copyright, intellectual property, privacy rights, moral rights, music performance, or any other right of any third party; not contain content that is an invasion of privacy, degrading, libelous, unlawful, deceptive, profane, obscene, pornographic, tends to ridicule or embarrass, is gratuitous violence, or is in bad taste, at the sole discretion of Svencart;
  • Offering incentives, including but not limited to points, rewards, cash, contest entries, and prizes, to consumers in return for their response to the advertisement;
  • Appropriating a third party’s name, image, photograph, or likeness in a manner that directly or indirectly implies that such third party endorses the products or services in the Promotions;
  • Using fictional testimonials; not spawn malicious, false, or deceptive pop-ups or exit pop-ups; not cloak the IP address; not use surveys of any kind; not generate proxy server traffic; not contain material that defames, misrepresents, abuses, or threatens physical harm to others; not use offer walls of any kind unless authorized by Svencart; not use malware; not serve advertisements, or drive traffic to advertisements, using any adware, spyware, plug-ins, popups, pop-under technologies, or similar downloadable applications;
  • Promoting discrimination based on race, gender, religion, nationality, disability, sexual orientation, or age, defamation of any person, including brands and/or brand names or any other contents subject to copyright protection, provided not expressly authorized to do so;
  • Infringing upon the intellectual property or personal rights of any third party, (including any variations or incorrect spellings of third-party brands and/or brand names in any domain names, usernames, or other descriptions).
  • Brokering the Promotions to any networks or any third parties without the prior written permission of Svencart.
  • Using the Affiliate Program as a rebate system.
  • Engaging in consumer fraud, banking fraud, credit card fraud, sending unwanted advertising (spamming), or other illegal sales activities that violate applicable provisions of law, etc.;
  • Breaching third-party property rights;
  • False or misleading statements that violate consumer protection rights or competition law.

For Products promoted by Affiliate, no services that exceed the Svencart return or cancellation terms and conditions shall be offered, whether explicitly or implicitly, without the prior written consent of Svencart.

Contractual Partner represents and warrants that it shall not use sub-affiliates, third party affiliates, or its own network, each a “Third Party Affiliate” for purposes of this Agreement, without Svencart’s prior written consent. Without limiting the foregoing, Contractual Partner shall not broker Promotions to any Third Party Affiliate, or to any directly enrolled affiliates, without Svencart’s prior written permission. If Svencart permits Contractual Partner to engage its affiliate network (the “Network”) to provide services hereunder (including placing Promotions for access and use by affiliates in the Network) then the provisions set forth below apply.

  • Contractual Partner shall contractually bind, to all terms of this Agreement, all of its Third Party Affiliates who perform services under this Agreement. Thus, Contractual Partner shall require and confirm that all Third Party Affiliates affirmatively accept, through verifiable means, terms substantively identical to this Agreement prior to obtaining access to the Promotions. If a Third Party Affiliate fails to adhere to the requirements set forth herein, in addition to other remedies available to Svencart, Contractual Partner may be terminated at Svencart’s sole discretion, and Contractual Partner shall indemnify Svencart for any resulting third party claims against it.
  • Contractual Partner shall not permit any party to be a Third Party Affiliate whose advertising or business model concerns content or marketing channels prohibited by this Agreement.
  • Contractual Partner agrees that for the purposes of this Agreement, the acts and omissions of its Third Party Affiliates shall be deemed Contractual Partner’s acts and omissions regardless of whether such Third Party Affiliates bound themselves to this Agreement or any other agreement. Affiliate is responsible for any Third Party Affiliate’s breach of this Agreement regardless of whether Third Party Affiliates execute this Agreement or any other agreement. Without limiting the foregoing, Contractual Partner shall defend and indemnity Svencart for any act or omission by any Third Party Affiliate.
  • Contractual Partner shall periodically audit Third Party Affiliates, and permit Svencart to audit Third Party Affiliates upon written request, to ensure Third Party Affiliates are in compliance with the law and this Agreement. Contractual Partner shall promptly terminate any Third Party Affiliate who takes, or could reasonably be expected to take, any action that violates the terms and conditions of this Agreement. Without limiting foregoing, at Svencart’s request, Contractual Partner shall provide reasonable assistance to enable Svencart to monitor compliance with all applicable laws and provisions under this Agreement.
  • Upon written notice from Svencart, Contractual Partner shall immediately remove any Third Party Affiliate from disseminating the Promotions or providing services in connection with this Agreement, and terminate their access to the Promotions.
  • Contractual Partner agrees that Svencart is under no obligation to pay a Third Party Affiliate. Svencart further reserves the right to withhold or refuse Commissions to Contractual Partner, and charge back or obtain a refund from Contractual Partner for previously paid Commissions, in the event that any of its Third Party Affiliates breach this Agreement or the law.

If Contractual Partner or Third Party Affiliate becomes involved or named in any action, investigation, complaint or other proceeding by or before any governmental or regulatory authority, or any private party, Contractual Partner shall immediately provide notice to Svencart of such action, investigation, complaint or other proceeding, in which event Svencart may terminate this Agreement immediately and without notice to Contractual Partner.

    IV. Vendor Product Sales

Vendor shall create an account at the Sales Platform, describe its Product (or, in the case of a digital product, upload the Product). Svencart shall provide Vendor a link that Vendor may integrate on its website (“Link”). End consumers who view the Link and wish to purchase the Product shall be directed to the Sales Platform. If an end consumer completes an order on the Sales Platform, Svencart shall purchase the corresponding Product from Vendor in Svencart’s name and sell such Product to the end consumer in Svencart’s own name and for Svencart’s own account. Once the end consumer has purchased the Product from the Sales Platform, Svencart shall send the order to Vendor via email or using an interface to the Vendor’s system (if specified by Vendor). Svencart shall pay Vendor a price based upon the sales price of the Product, less Svencart’s fees. Such price shall be specified on the Sales Platform and is subject to change. Vendor shall fulfill the order submitted by end consumer and send the Product to end consumer immediately in accordance with the shipping method selected by the customer and provide the Product in accordance with the Product characteristics and features provided by Vendor to Svencart. The payment recipient and invoicing party to end consumers shall be Svencart, and the end consumer’s contract for the purchase of the Product shall be concluded between the end consumer and Svencart. Products offered for sale via the Sales Platform shall be subject to the following terms and conditions:

  • Vendor shall comply with applicable laws, rules, and regulations in connection with the Products registered for sale via the Sales Platform and the offer and sale of such Products.
  • Vendor shall provide Svencart with advertising and marketing copy and creative materials that Svencart and Affiliates may use to promote Vendor’s Products. Affiliates may also create and use other advertising and marketing copy and creative materials to promote Vendor’s Products, subject to all restrictions and limitations contained in this Agreement.
  • Vendor authorizes Svencart to list all products registered by the Vendor for sale via the Sales Platform in a searchable online product marketplace operated by Svencart and to offer them for sale to buyers.
  • At any time, Svencart may, at its own discretion, for any or no reason, with or without notice to the Vendor and without warranty for contractual penalties or liability claims, delete and remove products from the Sales Platform marketplace list.
  • The Vendor must provide a valid email address which Svencart may use to send inquiries that must be answered by the end of the next business day. Vendor shall provide Svencart with a non-automated response within one business day. The Vendor must report to Svencart all complaints based on a violation of terms and conditions or legal violations that become known in relation to a Product within two business days. This reporting obligation also applies to the threat of filing complaints. Vendor shall support Svencart in responding to any complaints by taking any necessary steps and appropriate actions at Vendor’s expense.
  • Vendor shall comply with applicable laws and regulations concerning collection of taxes associated with Product purchases, which may vary by country. Vendor shall assume the full responsibility for the timely payment of any taxes due.
  • Vendor shall not provide any false or misleading information about the Products to Svencart, in statements to consumers, or to any other third party. Vendor shall fulfill all incentives or promotions Vendor promises to Affiliates. Vendor shall forgo incentives or promotions for Affiliates without an express statement that they are exclusively provided by the Vendor and not by Svencart.

    V. Vendor Payments

Vendor shall specify a non-binding price recommendation for the net sales price of each Product. Once an end consumer completes a purchase of the corresponding Product, Svencart shall pay Vendor an amount based on the non-binding price recommendation, plus tax due for the specific sale to the end customer (“Sales Price”), less a margin for Svencart pursuant to the then-current Svencart price list or separate agreement with the Vendor in relation to a specific Product (“Vendor Payments”).

Vendor Payments shall be issued to Vendor via the payment method specified at the time Vendor enrolls in the Affiliate Program. Vendor Payments shall be issued within 60 days of the end-consumer’s purchase date, or in the time period specified on the Sales Platform or otherwise agreed to by the Parties. Without limiting the foregoing, Svencart reserves the right to extend the period in which it issues refunds to and accepts returns from end-consumers, up to 365 days after the date of purchase, in which case Vendor shall not receive Vendor Payments until such refunds and returns are processed by Svencart.

Notwithstanding anything in this Agreement or on the Sales Platform to the contrary, Svencart expressly reserves the right withhold a percentage of Vendor Payments for an additional time period to account for potential or anticipated end-consumer chargebacks, refunds, and returns. Svencart reserves the right to extend the time for disbursement of Vendor Payments if Svencart considers the quantities of a Product sold are low in relation to the Product price. Svencart shall issue Vendor Payments only after a minimum Vendor Payment amount of € 50.00 is met. In the event that this minimum amount is not reached, Svencart shall withhold Vendor Payments until the minimum amount is reached. Except as otherwise set forth herein, in the event that this Agreement is terminated prior to reaching the minimum amount, a payment shall be made even if the Vendor Payments accrued are less than € 50.00, subject to the withholding period specified herein.

In the event that an end-consumer requests a return or refund or initiates a chargeback for the Product, Svencart shall deduct the corresponding amount, including a transaction and chargeback fee, from Vendor Payments for such returns, refunds, or chargebacks. Svencart reserves the right to withhold Vendor Payments in whole or in part if it suspects that Contractual Partner has violated this Agreement, or any applicable law, rule, or regulation, or if Vendor’s Products are suspected or deemed to be defective, or if Vendor offers insufficient Product access or support, as determined by Svencart in its sole discretion.

    VI. Affiliate Program

Affiliates may advertise a product and thus promote sales of such product (engage in “Promotions”) as part of the Affiliate Program. For such activities, the Affiliate will receive a commission from Svencart (“Commission”) that is specified for the promoted Product on the Sales Platform.

    VII. Promotions

Svencart may provide Links that Affiliate may use to promote the Products. Vendors may make available to Affiliate graphic and textual links and other creative materials such as text ads, graphic ads, video ads, from and subject lines, and copy associated with the Promotion that Affiliate may display on websites owned or controlled by Affiliate, in emails sent by Affiliate, and in Affiliate’s online advertisements. Svencart may, in its sole and absolute discretion, terminate or change any Promotion, and deactivate, change or remove any Link for any or no reason.

Affiliate shall discontinue use and dissemination of the Promotion and Link immediately upon Svencart’s request.

    VIII. Affiliate Commission

The Commission paid to Affiliate shall be specified on the Sales Platform for the corresponding Products and Promotions. Affiliate’s Commission is based on the Product to be marketed and will be agreed upon individually and may be calculated on the basis of the Sales Price. With the exception of Promotions designated as “Cost Per Action,” if an end-consumer returns, requests a refund, or initiates a chargeback for a Product, Svencart shall deduct the corresponding amount from Affiliate’s Commission. With the exception of Promotions designated as “Cost Per Action,” if a chargeback, refund, or return is initiated after the corresponding Commission has been paid to Affiliate, Svencart reserves to deduct such amount from future Commissions to Affiliate.

Affiliate shall not receive a Commission if an Affiliate is also a Vendor and buys its own Product.

    IX. Marketing

Contractual Partners shall only conduct marketing services under this Agreement using the marketing channels permitted by Svencart.

All emails sent by Affiliates and Vendors under this Agreement shall comply with the United States CAN-SPAM Act of 2003, 15 U.S.C. 7704, and all state laws and regulations concerning email marketing, including but not limited to Cal. Bus. and Prof. Code 17529.5 et seq. Without limiting the foregoing, Contractual Partner shall comply with the following provisions when sending or initiating emails or conducting Promotions pursuant to this Agreement:

  • Vendors shall provide Svencart with a list of all email addresses associated with recipients who have “opted-out” or requested that Vendor stop sending emails to that recipient.
  • Before sending emails in connection with any Promotions or promoting the Products pursuant to this Agreement, Contractual Partner shall download the applicable “Suppression List” and remove all email addresses appearing on the Suppression List and shall only send emails to the remaining addresses on its email list. No emails shall be sent to any email address associated with any recipient on the Suppression List. Contractual Partner shall be responsible for any sending of email messages as well as proper usage of the Suppression List. The Suppression List shall constitute Svencart’s Confidential Information, as defined herein, and Contractual Partner shall not sell, lease, exchange, transfer, release, or use the Suppression List either directly or indirectly for business purposes whatsoever for any purpose other than to fulfill its obligations under this Agreement. Contractual Partner shall download the Suppression List at least every seven (7) days until this Agreement is terminated, and suppress all email addresses in the Suppression List before sending emails pursuant to this Agreement. Contractual Partner shall download and remove domains located on the Federal Communication Commission’s wireless domain names list (http://www.fcc.gov/cgb/policy/DomainNameDownload.html) from all new and current used in all mailings, prior to mailing. Contractual Partner shall not transmit, initiate, or send any emails to any recipient who previously requested not to receive commercial email messages from or on behalf of Svencart or any sender of the email. Contractual Partner further agrees that it will not mail or market to any suppression files provided by Svencart.
  • Emails shall include a clear and conspicuous identification that the message is an advertisement or solicitation. Such an identification shall state “This is an advertisement” or words of identical meaning.
  • Emails shall include a clear and conspicuous notice of the recipient’s right to opt-out of receiving future emails from Svencart or the email sender and a functioning return email address or other Internet-based mechanism that a recipient may use to make such an “opt-out request.” The opt-out mechanism must remain active for at least thirty (30) days from the date the email is sent or the life of the Promotion, whichever is longer. Each email unsubscribe request shall be honored within ten (10) days from receipt of request. Contractual Partner shall maintain electronic or tangible records confirming the removal of each such email address from any applicable email lists for verification by Svencart. Within one (1) day of consumer’s opt-out request, Contractual Partner shall provide the unsubscribe request to Svencart.
  • All emails shall include a physical address of the Svencart.
  • Emails must have truthful, accurate, and non-misleading email header information (including source, destination, date and time, and routing information), subject lines and from lines. Emails shall not mask the email origin. The consumer or intended recipient address shall be posted in the “to” line.
  • Emails shall use only creatives provided or pre-approved by Svencart in writing. Contractual Partner shall not remove or alter creatives, subject lines, or from lines provided by Svencart or pre-approved by Svencart in writing. Svencart may request, prior to Contractual Partner sending emails under this Agreement, that Contractual Partner submit the final version of such email to Svencart for Svencart’s prior written approval.
  • All emails sent by Contractual Partner shall be delivered only to addresses on email lists owned or managed solely by Contractual Partner. Contractual Partner represents and warrants that the recipients of all email addresses used by Contractual Partner in connection with this Agreement have manifested affirmative, direct consent to receive commercial emails from Contractual Partner. Contractual Partner shall maintain at all times during the term of the Agreement, and for a period of four years thereafter, complete and accurate subscriber signup/registration data for every email address on each such list. Contractual Partner agrees that, within twenty-four (24) hours of Svencart’s request, Contractual Partner shall provide, at a minimum, the following subscriber sign-up and registration data for any email address to which any email is sent under this Agreement: (a) subscriber’s IP address; (b) date and time of subscriber’s sign-up/registration; (c) location and URL of website of subscriber’s sign-up and registration; and the email address and other information submitted by subscriber at the time of sign up.
  • Contractual Partner shall not send email messages to email addresses that have been improperly obtained, including addressees harvested from the Internet without consent, through scripts or other automated means of registering for multiple email accounts, “scraping” of websites, or by harvesting addresses from the Internet. Contractual Partner is responsible for knowing the source of its email list. Contractual Partner shall not send email messages from accounts obtained using scripts or other automated means of registering for multiple email accounts.
  • Contractual Partner shall not use email accounts or domain names that were created using information that falsifies the identity of the registrant, or domain names that are privately or proxy registered. Emails shall not include an originating email address, domain name, or IP address the access to which for purposes of initiating the message was obtained by means of false or fraudulent pretenses.
  • If Contractual Partner sends emails to Canadian or European Union email addresses or email addresses corresponding to Canadian or European Union users, Contractual Partner shall comply with all applicable international, federal, state and local laws, rules, and regulations including but not limited to Canada’s Anti-Spam Legislation and the General Data Protection Regulation 2016/679.
  • It is solely Contractual Partner’s obligation to ensure that all emails comply with all applicable laws, rules, and regulations, and this Agreement. Contractual Partner agrees not to rely upon Svencart’s approval of any email or portion thereof for compliance with applicable laws, rules, or regulations or assert any claim that Contractual Partner is in compliance with applicable laws, rules, and regulations based upon Svencart’s approval or non-objection. Contractual Partner shall not use mouse traps or windows that are in all cases only displayed by opening new windows or that cannot be closed; exploit security loopholes on clients or servers; omit of clear, valid, and identifiable information regarding the sender and subject of the email; send or forward emails from a protected computer or network that is accessed without appropriate permission.
  • Contractual Partner shall not send or use text messages or telephone calls, SMS, MMS messages (including any telephone calls using prerecorded voice or sending “ringless voicemails”) to conduct services hereunder, unless Svencart provides its prior express written permission, in which case Contractual Partner shall comply with each of the following requirements:
  • Contractual Partner shall comply with all applicable federal, state, and local laws, ordinances, rules, regulations and codes concerning telemarketing and text message marketing, including but not limited to including, but not limited to the Telephone Consumer Protection Act (47 C.F.R. § 227) (“TCPA”), the Telemarketing and Consumer Fraud and Abuse Prevention Act (15 U.S.C. §§ 6101-6108), the Telemarketing Sales Rule (16 C.F.R. Part 310), Federal Communications Commission rules implementing the TCPA and court decisions interpreting the TCPA, and all federal and state “Do Not Call” laws, rules, and requirements.
  • Contractual Partner shall obtain “prior express written consent” from every recipient to which it places any telephone call or sending any text messages, as that term is defined under the TCPA, TSR, and decisions and orders issued by the Federal Communications Commission and interpreting courts.
  • Contractual Partner shall not place any calls to telephone numbers listed on the U.S. national Do Not Call list and all state Do Not Call lists, as well as any other lists that may be provided to Contractual Partner by Svencart.
  • Contractual Partner shall comply with all applicable laws, rules, and requirements concerning disclosures, opt-outs, and revocation of consent.
  • Contractual Partner shall implement written policies and procedures to comply with applicable laws, rules, and regulations concerning telemarketing.
  • Contractual Partner shall maintain an internal “Do Not Call” list of consumers who have requested not to receive telephone solicitations from or on behalf of Contractual Partner and shall not make any outbound calls or send outbound text messages to any telephone numbers or consumers listed on Contractual Partner’s internal “Do Not Call” list. Contractual Partner shall inform Svencart immediately, but in no less than 24 hours, after receiving any “do not call” request from a consumer or revocation of consent to receive telephone calls or text messages concerning Svencart, its products, or the services hereunder.

    X. Intellectual Property Rights

Pursuant to these terms and conditions, Svencart grants the Contractual Partner a non-exclusive, non-sublicensable, revocable license entitling the Contractual Partner to use the Sales Platform, including the web server, computers, and networks available at www.svencart.com and www.proudmamaskitchen.com, used to make such website available for purposes set out in these GTC, solely for the purpose of providing the Product to end-consumers. All rights not granted herein are reserved. Contractual Partner is not permitted to, and shall not, use the name, trademarks, service marks, or other rights to intellectual property belonging to Svencart in any form that creates the impression of being a part of or approved by Svencart without the express, advance, and written consent of Svencart. Any authorization granted by Svencart may be revoked at any time, for any reason. Svencart grants the Contractual Partner limited, revocable authorization to use the name “Svencart” and “Svencart.com” exclusively as a watermark; in a descriptive text on a website as a key word; as a search term; as a seeding element for a web search engine; in metatext or in a hidden text; as a sub-domain or domain name at a secondary or tertiary level; and to identify products or in connection to advertisement.

Vendor grants Svencart a non-exclusive, irrevocable, sublicensable, worldwide right to use and exploit the Product and corresponding advertising material in a comprehensive manner, in particular for the purpose of commercial marketing. This grant expressly includes all forms of offering and promoting the products online, in particular the inclusion in fee-based or free online services, price search engines, blogs, and websites. To the extent the Product is a digital product, Vendor further grants Svencart the following additional rights of use: authorization to permit the end customer to permanently store the Product; the right of duplication, making publicly accessible and dissemination, i.e. the right to duplicate, make publicly available or publicly perform the Product with the aid of any available technical capabilities, in particular by means of digital integration into a website operated by Svencart; the right to make available on demand, i.e. the right to store the Product, to hold it ready for public access, to transfer it to one or more persons who seek access and to analogue or digital electronic databases, electronic data networks, and telecommunications services networks; the right to public performance; and the right to modify the Product itself or have it modified by third parties subject to preservation of author’s rights, to edit the Product, in particular for purposes of integrating the Product into the Sales Platform. In connection with the performance of this contract, Vendor grants Svencart the right to use the respective title of the Products as well as names, logos, images, trademarks, and business designations both of the Vendor and author of the Product including expressly for promotional purposes. Without limiting the foregoing, Vendor grants Svencart the right to sub-licenses the rights granted herein.

    XI. Confidentiality

The Contractual Partner may be granted access to Svencart’s confidential information (“Confidential Information”) as part of this Agreement. Confidential Information shall include, but not be limited to: the identity of other contractual partners, information about buyers, information about physical security and data security, technical data, Svencart marketplace statistics and sales data, know-how, information about business processes, methods and marketing strategies, the existence and terms of this Agreement, Svencart’s business and financial information, data reports, research, product plans, email mailing lists, marketing plans, software developments, inventions, processes, designs, drawings, hardware configuration information, marketing or financial data customer and vendor lists, and pricing and sales information. Such Confidential Information shall also include Svencart’s trade secrets. Except as necessary to satisfy its obligations under this Agreement, Contractual Partner may not use or disclose Confidential Information to third parties without the prior express written consent of Svencart. Contractual Partner shall not disclose to any third party, or permit any other person or entity access to, the Confidential Information except as required by an employee, agent, officer, director, partner, or representative of Contractual Partner to perform its obligations under this Agreement. Contractual Partner shall use at least the same degree of care, but not less than reasonable care, to prevent disclosure of Confidential Information to third parties. Confidential Information may not be used to divert, advertise to, or market to Svencart customers with regard to products or services that directly or indirectly compete against Svencart or Svencart services including the function of the marketplace.

Contractual Partner shall immediately notify Svencart in writing of all circumstances surrounding any unauthorized possession, use, access, knowledge, or disclosure of Confidential Information. If Confidential Information is required to be disclosed by operation of law via a third party or court request, such as a subpoena requesting Contractual Partner to disclose such information, Contractual Partner shall immediately inform Svencart in writing sufficiently in advance of disclosure to allow Svencart to challenge disclosure, prior to the time commanded to produce or disclose such Confidential Information. Contractual Partner agrees to cooperate in whatever way Svencart requests to attempt to protect Confidential Information from disclosure by operation of law. Contractual Partner agrees that its obligations in this section are necessary and reasonable in order to protect Svencart and its business, and Contractual Partner agrees that the remedy of damages would be inadequate to compensate Svencart for any breach by Contractual Partner of its obligations set out under this section. Accordingly, in addition to any other remedies that might be available, Svencart shall be entitled to seek injunctive relief against the threatened breach of this Agreement or the continuation of any such breach by Contractual Partner, without limiting any other rights and remedies to which Svencart may be entitled.

“Confidential Information” does not include suggestions, submissions, comments, ideas, concepts, informational materials and feedback (“Feedback”) sent to Svencart by the Contractual Partner. Contractual Partner grants Svencart and the licensees a global, perpetual, irrevocable, non-exclusive, royalty-free, and transferable license, which may be sub-licensed, to reproduce, present publicly, to distribute, perform, broadcast, edit, modify, alter and publish, as well as for the sale, commercial use, exploitation, and disclosure of such information for any purpose and in any form in any currently-known media. By transmitting any Feedback to Svencart, Contractual Partner represents and warrants that such Feedback does not infringe or violate the intellectual property or proprietary rights of any third party (including, without limitation, patents, copyrights, or trademark rights) and that Contractual Partner has all rights necessary to convey to Svencart and enable Svencart to use such Feedback.

    XII. Indemnification

Contractual Partner shall indemnify, defend, and hold harmless Svencart and its subsidiaries, affiliates, partners, and licensors, directors, officers, employees, shareholders, managers, successors, owners, related companies, agents, and assigns against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees and costs) (collectively “Claims”) based on, related to, or resulting from any act or omission by Contractual Partner, including but not limited to: (i) any breach or violations of this Agreement or any law, rule or regulation, by Contractual Partner, Third Party Affiliate, or any other third party, including any representation, warranty, covenant, restriction, or obligation made by Affiliate, Vendor, or third party herein, or any Promotion-or Product-specific terms; (ii) any misuse by Contractual Partner or a party under the reasonable control of Contractual Partner or obtaining access through Contractual Partner, of the Promotions, Products, or Svencart’s Confidential Information; (iii)  the Promotion or Product; (iv) improper operation of a Promotion by Contractual Partner; (v) the negligence or willful misconduct of Contractual Partner, Third Party Affiliate, or party within the reasonable control of Contractual Partner; (vi) a violation of any laws, rules, or regulations in the performance of Contractual Partner’s obligations under this Agreement; (vii) any claim relating to the violation or infringement of the intellectual property rights of any third party; (viii) fraud, and (ix) bodily injury or harm (including death) caused by the actions or omissions of Contractual Partner. This indemnity is specifically intended to operate and apply even if it is alleged or proven that all or some of the damages sought were caused as a whole or in part by any act, omission, negligence, gross negligence, breach of contract, intentional conduct, violation of statute or common law, breach of warranty, product defect, strict liability, or any other conduct whatsoever of Svencart. If any Claim is or shall be brought against Svencart, in respect to any allegation for which indemnity may be sought from Contractual Partner, Svencart shall notify Contractual Partner of any such Claim of which it becomes aware and shall: (a) provide reasonable cooperation Contractual Partner at Contractual Partner’s expense in connection with the defense or settlement of any such claim; and (b) be entitled to participate, including in the selection of legal counsel, in the defense of any such Claim. Notwithstanding anything in this Agreement to the contrary, Svencart may select legal counsel to represent it in any matter for which Contractual Partner is obligated to indemnify Svencart, and Contractual Partner shall pay all such counsel’s billed fees and costs. Contractual Partner shall not agree to any judgment or enter into any settlement that adversely affects Svencart’s rights or interests without the prior written consent of Svencart.



    XIV. Miscellaneous

This Agreement shall be governed by the law of the State of Florida, United States of America, notwithstanding its conflicts of law provisions. If any dispute arises under this Agreement, the parties agree to submit the dispute to binding arbitration in Germany, conducted under the rules of the American Arbitration Association. Judgment upon the award rendered by the arbitrator may be entered in any court with proper jurisdiction. Notwithstanding the foregoing, Svencart may initiate a dispute either by submitting it to binding arbitration or by filing in a state or federal court located in Florida or any other court where personal jurisdiction exists over Contractual Partner, at Svencart’s sole discretion. In the event that a dispute or proceeding arises hereunder, the parties agree that any required service of such dispute or proceeding may be affected by email, or facsimile, or delivered personally, or by registered or certified mail (return receipt requested) or recognized national overnight courier service. The parties expressly agree that notification and service (including service of process) by email, or facsimile, or delivered personally, or by registered or certified mail (return receipt requested) or recognized national overnight courier service, shall constitute sufficient service, regardless of any law, rule, or regulation to the contrary, and each party irrevocably waives its right to challenge service using any of these methods as insufficient under any applicable law, rule, or regulation.

Any modifications to this agreement must be made in writing. This written form requirement applies likewise to any waivers of this written form requirement. Contractual Partner may not assign all or any part of this Agreement without Svencart’s prior written consent. Svencart may assign this Agreement at any time with notice to Contractual Partner. This Agreement will be binding on and will inure to the benefit of the legal representatives, successors, and valid assigns of the parties hereto. If any provision of this Agreement is held to be void, invalid, or inoperative, the remaining provisions of this Agreement shall continue in effect and the invalid portion of any provision shall be deemed modified to the least degree necessary to remedy such invalidity while retaining the original intent of the parties. Nothing herein shall be deemed to establish a partnership, joint venture, association, or employment relationship between the parties. No course of dealing nor any delay in exercising any rights hereunder shall operate as a waiver of any such rights. No waiver of any default or breach shall be deemed a continuing waiver or a waiver of any other breach or default. This Agreement embodies the entire agreement between the parties hereto with respect to the subject matter herein. This Agreement may not be amended or modified except by a writing duly executed by the parties hereto. These GTC contains the entire agreement between Svencart and Contractual Partners with respect to the subject matter herein, and supersedes all prior and/or contemporaneous agreements or understandings, written or oral. Contractual Partners agree that Svencart shall not be subject to or bound by any other agreement, insertion order, or online terms and conditions that amend, conflict with, or supplement these GTC, regardless of whether Svencart “clicks through” or otherwise indicates its acceptance thereof.

All notices pursuant to this Agreement to Contractual Partner shall be sent to the address or email address submitted by Contractual Partner to Svencart. All notices pursuant to this Agreement to Svencart, shall be sent via certified mail to: Svencart Inc, 1600 Broadway, Suite 1613, Denver, Colorado 80202 USA. Contractual Partner shall immediately inform Svencart of any changes in address, business name, or other contact information.