Last Updated 10/28/2013
This PowerSite Customer Agreement (“Agreement”), is between you, the person or entity requesting or using services (“Customer,” “you” or “your”), and PennySaver USA Publishing, LLC and is effective upon your acknowledgment and acceptance of the terms and conditions included herewith. You may accept this Agreement by selecting the Acceptance button below and providing your email address where indicated. This Agreement may also be executed/accepted by printing and signing the Agreement, include your email address, and faxing a copy of the executed document to PennySaver USA Publishing, LLC at (714) 577-4248.
By accepting this Agreement, you: (a) agree to be bound by this Agreement and; (b) represent and warrant that, if you are an individual, you are 18 years old or older or, if you are an entity, that you are a corporation, partnership, or other legal entity duly formed (and incorporated if applicable) in good standing where required to do business with all legal authority and power to enter into this Agreement.
As used herein, the term “PowerSite” refers to the customer specific website (including but not limited to all features, web pages, functionality, URLs, and any software code), that is created, designed, hosted and maintained by PennySaver USA Publishing, LLC for Customer pursuant to the terms of this Agreement.
The terms and conditions set forth in this Agreement are subject to updates from time to time by PennySaver USA Publishing, LLC. In the event of an update, Customer will be provided with notice of the update via email sent to the email address provided by Customer below. All changes or updates to this Agreement will take effect no sooner than 5 days of sending the email (unless a change is required as a result of applicable laws or regulations, in which case, the change will be effective immediately). If Customer does not agree to the changes, Customer may terminate the Agreement by providing notice to PennySaver USA Publishing, LLC as indicated in Section 12.
1. WEBSITE DESIGN
For all PowerSite Customers, PennySaver USA Publishing, LLC will design, develop and create a customized PowerSite website for Customer. As part of the design process, PennySaver USA Publishing, LLC will provide Customer with the option for a consultation with appropriate PennySaver USA Publishing, LLC technical representative to discuss creation of a PowerSite for Customer. If no consultation is requested, the PowerSite will be created based upon information provided to PennySaver USA Publishing, LLC by Customer via a completed questionnaire.
Each PowerSite may contain up to five (5) pages of web content and a reasonable number/amount (as determined by PennySaver USA Publishing, LLC in its sole discretion) of pictures/videos. If Customer requires additional web pages or content, PennySaver USA Publishing, LLC reserves the right to charge Customer for any additional services at PennySaver USA Publishing, LLC’s then current professional services rate.
2. CONTENT, APPROVAL AND DELIVERY.
Customer Content. All of Customer’s data, information, materials, records, scripts, content, and all other tangible or intangible property of Customer, regardless of format or medium and including, for example, text, pictures, photographs, diagrams, graphics, logos and videos of Customer, in each case to the extent provided to PennySaver USA Publishing, LLC by Customer in connection with the PowerSite (“Customer Content”) is and shall remain the exclusive property of Customer to the extent provided by law. Customer hereby grants to PennySaver USA Publishing, LLC a nonexclusive, perpetual, worldwide, royalty-free license to use, store, reproduce, distribute, transfer and display such Customer Content solely in accordance with the terms of this Agreement in connection with Customer’s PowerSite and related features. Customer shall procure, at its own expense, all necessary rights, licenses, clearances, permissions, waivers, releases and all other agreements and documentation necessary to permit use of the Customer Content by PennySaver USA Publishing, LLC, in connection with the PowerSite.
Customer bears sole responsibility for the final review and approval of all editorial, textual, deliverables, materials, including but not limited to scripts, printed material and web content on its PowerSite to ensure the accuracy, legality and completeness of all information contained therein.
PennySaver USA Publishing, LLC may include or reject Customer Content provided by Customer for inclusion in the PowerSite in its discretion. PennySaver USA Publishing, LLC may also include certain licensed stock content in connection with Customer’s PowerSite. The stock content is owned by PennySaver USA Publishing, LLC and/or its licensor(s) and may not be modified, copied or otherwise used by Customer without the express written consent of PennySaver USA Publishing, LLC.
Once the PowerSite is complete, PennySaver USA Publishing, LLC will notify Customer via email and make the PowerSite available for Customer’s review in a designated non-public test environment. Customer will then have one (1) week to review and approve the PowerSite. Unless Customer indicates otherwise within the one (1) week period, PennySaver USA Publishing, LLC will deem the PowerSite to be approved. Upon Customer’s approval or expiration of the one week notice period, the Website will be published to a PennySaver USA Publishing, LLC owned URL or, if Customer provides its own URL, delivered under such Customer’s URL, as applicable.
Under the process stated above, Customer’s final review and approval shall conclusively be presumed to have been given. Customer shall contact PennySaver USA Publishing, LLC immediately in the event any Customer Content or any other material should be removed from its PowerSite.
A URL provided by PennySaver USA Publishing, LLC shall remain the property of PennySaver USA Publishing, LLC and is provided to Customer solely for the duration of their Power Site subscription. If Customer terminates this Agreement or cancels its PowerSite, the PennySaver USA Publishing, LLC URL will become inactive. PennySaver USA Publishing, LLC reserves the right to release or resell any URL that has become inactive due to termination of this Agreement. Any PennySaver USA Publishing, LLC-supplied URL will remain the property of PennySaver USA Publishing, LLC.
3. ACCESS, UPDATING AND WEBSITE MAINTENANCE
The weekly Subscription fee set forth herein includes hosting of the PowerSite as well as a reasonable level of maintenance. Updating and customization can be accomplished by Customer directly by logging on to Customer’s PowerSite Dashboard with the password and user information provided. If requested, PennySaver USA Publishing, LLC will provide Customer a reasonable level of updating and maintenance of the PowerSite, including posting new content, coupons or otherwise modifying the PowerSite. Updating and site maintenance requests should be communicated to the PowerSite Customer Service team at 866-640-3900. If Customer requests PennySaver USA Publishing, LLC to provide more than two (2) hours of updating/customization per month, additional fees may apply.
Access/Password: As long as Customer’s account is current, Customer will be provided with a unique password to enable direct access to its PowerSite. Using the password, Customer will be able to add, delete or modify content. Customer shall be responsible for maintaining security of its password. PENNYSAVER USA PUBLISHING, LLC will not change passwords to any account without proof of identification, which is satisfactory to PENNYSAVER USA PUBLISHING, LLC, which may include written authorization with signature. Under no circumstances will PennySaver USA Publishing, LLC be responsible for any damages, repairs or claims that may arise as a result of Customer’s (or any third party’s) access to Customer’s PowerSite account/control panel or any changes made or content added, deleted, modified or altered by Customer or any third party to its PowerSite. Customer’s access to the PowerSite will include access to certain analytic tools and information concerning traffic and visitors to the PowerSite. Use of any such information is solely for Customer’s use in connection with the PowerSite and no other purposes, and Customer shall use such tools and information in compliance with applicable laws, including without limitation, laws regarding privacy, consumer rights, and commercial dealings.
4. SPECIAL FEATURES AND SPECIFIC CONSENT
Video Slideshows – In connection with Customer’s PowerSite, Customer will be provided with license to use, at no additional charge, a video advertisement known as a “Video Slideshow”. Video Slideshows are intended to help promote and drive web traffic to Customer’s PowerSite. By accepting the terms of this agreement, you hereby consent and provide PennySaver USA Publishing, LLC with permission to create a short video slideshow identifying your company by name, address, phone number and URL (and other information provided by you). The video slideshow will be uploaded to customer’s PowerSite and, at PennySaver USA Publishing, LLC’s discretion, to other video hosting sites on the internet, in order to drive more traffic to the PowerSite. You will be notified once the video slideshow is uploaded and, upon request, advised which sites it has been posted on. It is your responsibility to promptly review the video slideshow and to immediately advise PennySaver if you would like the video slideshow removed. PennySaver USA Publishing, LLC reserves the right to remove a video slideshow at any time for any reason. Upon termination of this agreement, any video slideshows will be removed. Video slideshows are the property of PennySaver USA Publishing, LLC and its licensors. Video slideshows may also be removed at any time by the hosting sites where they are uploaded.
PowerCalls™ Tracking Function – As part of Customer’s subscription to the PowerSite, Customer has the option of receiving a license to one (1) complimentary PowerCalls™ tracking phone number. You will receive a unique phone number and access to functionality that automatically forwards and records all calls received from your advertisements. This allows you to easily track the success of your advertising campaigns. This PowerCalls™ tracking phone number shall remain the property of PennySaver USA Publishing, LLC and/or its licensor(s) and is provided to Customer free of additional charge during the term of this Agreement. Customer agrees to use this number exclusively with its PowerSite and PennySaver USA Publishing, LLC. Use of this number is permitted in PennySaver USA Publishing, LLC advertising (but in no other print or other advertising). PennySaver USA Publishing, LLC reserves the right to charge Customer $0.15 per minute for any use that exceeds 500 minutes of calling per month. Upon termination of this Agreement, the tracking number will be suspended and once deactivated, will be unavailable to Customer for future use.
As part of the PowerCalls™ tracking number functionality, Customer has the ability to record calls on the PowerCalls™ tracking number. You agree that PennySaver USA Publishing, LLC and its service provider, may provide PowerCalls™ tracking and recording service via telephone service provider’s networks. The service provider has granted PennySaver USA Publishing, LLC a non-exclusive license to offer, access, and manage these services, including your recorded calls and PowerCalls™ tracking data, subject to the following terms and conditions:
- You, PennySaver USA Publishing, LLC, and the service provider are each independent entities and none of them are the agent for the other.
- You understand and acknowledge that calls from telephone numbers routed to your facilities will be electronically recorded for quality assurance purposes and that each inbound caller will be automatically notified of the recording.
- You expressly agree, acknowledge, and warrant that (i) you will provide written notice to all of your call handlers (employees or agents who might receive and answer such recorded calls) that the calls are recorded and may be monitored, stored or disclosed and (ii) you will obtain the prior, express written consent, of all call handlers to such recording before they are allowed to answer any calls and (iii) you will be solely responsible for providing and maintaining such notices and consents.
- You agree, acknowledge, and warrant that by using the call recording service, you have reviewed the legality of recording, monitoring and divulging telephone calls and the legality of the notice of recording and that neither PennySaver USA Publishing, LLC, nor its service provider, makes any representation or accepts any responsibility regarding the legality of recording, monitoring, or divulging telephone calls as it pertains to federal, state, and local laws. You agree, acknowledge and warrant that you have established proper procedures to protect the privacy of the callers and the call handlers and the data contained in the calls. In the event that the recording notification must be revised to comply with applicable law, you will promptly advise PennySaver USA Publishing, LLC of this fact, in writing.
Advertising, Coupons and Contests. Customer is solely responsible for any advertising or coupons placed on a PowerSite, including but not limited to fulfilling any coupons or similar promotions provided on the Customer’s PowerSite and ensuring that such advertising, promotions and coupons comply with all applicable laws. Under no circumstances shall Customer run, post, advertise or otherwise refer to any contest, sweepstakes, game of chance, or similar promotion on, via or in connection with the PowerSite.
PowerClicks. PennySaver USA Publishing, LLC’s PowerClicks offering provides Customers with search engine marketing services designed to increase traffic to Customer’s PowerSite using a combination of custom key word selection, pay-per click advertising and analytics. Customers that request the PowerClicks offering shall receive an order confirmation and be charged an initial set up fee. Unless otherwise agreed upon in writing by PennySaver USA Publishing, LLC, campaigns shall last six (6) months and require a minimum spend of $400 per month. Customer may terminate a campaign at any time upon thirty (30) days written notice, provided that it will be responsible for fees incurred during the notice period and Customer shall be charged a $100 early termination fee if notice is provided within the first ninety days of the campaign.
- FTC Bureau of Consumer Protection Business Center – Privacy Resources for Business
- FTC Guidance for Privacy Policies – Say what you mean, mean what you say
In consideration for the PowerSite design, maintenance and hosting subscription set forth herein, Customer will be charged a weekly subscription fee set forth in PennySaver USA Publishing, LLC’s invoice (“Subscription Fee”). All fees are non-refundable. The Subscription Fee shall be billed weekly, bi-weekly or monthly depending upon credit, if any, extended to Customer by PennySaver USA Publishing, LLC. The subscription Fee is subject to increase or adjustment upon thirty (30) days written notice. Any additional fees for services provided will be billed as incurred; however, certain PowerClicks charges will be billed and must be paid in advance. Past due invoices will accrue interest at the rate of 1.5% per month beginning with the date due and continuing until paid. Purchase orders or similar documents issued by Customer relating to this Agreement or a Schedule are for Customer’s internal use only and shall not be deemed to modify, amend or in any way affect the terms and conditions of this Agreement. If payments are not made within ten (10) days from the date due, PennySaver USA Publishing, LLC may, at its option and without limiting any other rights or remedies that may be available to PennySaver USA Publishing, LLC, including but not limited to termination of this Agreement and removal or suspension of any or all of the PowerSite services, at PennySaver USA Publishing, LLC’s discretion, until such time as Customer’s account is current. In addition, if payments are not made when due, Customer will be responsible for all costs incurred by PennySaver USA Publishing, LLC in collecting such past due amounts, including, without limitation, reasonable attorney’s fees. In the event Customer fails to timely pay PennySaver USA Publishing, LLC any amounts due and owing to PennySaver USA Publishing, LLC under this Agreement, PennySaver USA Publishing, LLC shall be entitled, in its sole discretion, to setoff, recoup and apply any and all of Customer’s deposits and pre-payments previously paid to PennySaver USA Publishing, LLC under this Agreement, against such outstanding amounts owed by Customer to PennySaver USA Publishing, LLC under this Agreement.
Customer shall be responsible for the prompt payment, in the ordinary course of any sales tax, value added tax, federal, state, or local tax or any other tax imposed by any governmental entity, with taxing authority over the services or any other items provided under this Agreement.
This Agreement may be terminated upon written notice by either party at any time for any reason. In the event Customer has committed to a minimum subscription term, termination by Customer will not relieve Customer of its payment obligation for such subscription term.
Upon any termination of this Agreement and payment of fees to PennySaver USA Publishing, LLC, PennySaver USA Publishing, LLC shall return any Customer Content in its possession to Customer. PennySaver USA Publishing, LLC has no obligation to store or retain any Customer Content.
Customer retains all rights to Customer Content to the extent provided by law. The PowerSite(s) and all videos created by PennySaver USA Publishing, LLC.
PennySaver USA Publishing, LLC will retain all right, title and interest in PennySaver USA Publishing, LLC provided URL, PowerCalls™ tracking number, video slideshow, stock content, all methodologies, know-how, processes, technologies, software (including related source code, object code and documentation, tools, devices, computer system designs, documentation, ideas, trade secrets, data, discoveries or inventions (whether or not patentable), products, user interfaces, database structure and other materials and information utilized by PennySaver USA Publishing, LLC, in the performance of its services under this Agreement or in connection with the PowerSites. PennySaver USA Publishing, LLC’s ownership includes, without limitation, the PowerSite itself (excluding Customer Content).
8. REPRESENTATIONS AND WARRANTIES.
You hereby represent and warrant to PennySaver USA Publishing, LLC that (a) you own all right title and interest in and to the Customer Content, or that you otherwise have the right to use such Customer Content and to grant PennySaver USA Publishing, LLC a license to use such Customer Content; (b) the Customer Content does not and will not infringe, violate or misappropriate the rights, property or privacy or rights of personality of any third party, (c) shall be free of viruses, worms, Trojan horses, spyware and other malicious code; and (d) shall be compliant with all applicable laws. You further warrant and represent that your use of the PowerSite and all related features will at all times comply and be carried out in compliance with all applicable federal, state and other jurisdictional laws, regulations, statutes and governmental rules.
Prohibited Uses: Customer represents and warrants that it will not (or permit others) to post, transmit, re-transmit or store material on or through the PowerSite which: (i) is in violation of any local, state, federal or non-United States law or regulation, (ii) is threatening, obscene, indecent, defamatory or that otherwise could adversely affect any individual, group or entity, (iii) violates any right of privacy or right of personality, or (iv) violates the rights of any person or entity, including rights protected by copyright, trade secret, patent or other intellectual property or similar laws or regulations including, but not limited to, the installation or distribution of “pirated” or other software products or content that are not appropriately licensed by Customer. PennySaver USA Publishing, LLC, in its sole judgment, may remove any content that it deems is or may be inconsistent with these requirements.
PennySaver USA Publishing, LLC has no obligation to design, develop, host, market or advertise any web pages containing any content that in PennySaver USA Publishing, LLC’s sole judgment is offensive, inappropriate or unlawful, including, without limitation, any “adult content,” content promoting violence of any kind, including any intolerance for race, lifestyle, or faith, and/or that constitutes terrorist threats, harassment, hate, defamation, libel, slander or otherwise violates or infringes the rights of any third party, or that is unlawful, deceptive or misleading or promotes the commission of a crime or any unlawful conduct. PennySaver USA Publishing, LLC shall have the right, in its sole discretion, to refuse and/or terminate this Agreement and any related services and may refuse to do business with any person or entity without liability and without explanation.
Customer agrees to indemnify and hold harmless, PennySaver USA Publishing, LLC and subsidiaries and affiliates, and their respective employees, directors, shareholders, members, officers, agents, from any and all claims, allegations, losses, damages, liabilities and expenses (including attorneys’ fees) actually or allegedly related to or arising out of your use of the Powersite, including, without limitation: (a) any breach of your warranties, representations, obligations or the terms of this Agreement; (b) the Customer Content, including, without limitation, any claims of any infringement or, misappropriation of the Customer Content; (c) claims that the Customer Content and/ or the PowerSite violates the rights of any third party, including, without limitation, any intellectual property rights (unless such violation is attributable solely to PennySaver USA Publishing, LLC provided content or technology) or any privacy right or right of personality; and (d) any claims made by any third parties (including customers of Customer) related to allegations of false advertising, coupons, promotions or relating to any information, materials, products or services provided by Customer through the PowerSite or otherwise.
10. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY.
EXCEPT TO THE EXTENT EXPRESSLY PROHIBITED BY APPLICABLE LAW ALL SERVICES AND THE POWERSITE, INCLUDING BUT NOT LIMITED TO, ANY SAMPLE PRIVACY POLICIES PROVIDED BY PENNYSAVER USA PUBLISHING, LLC ARE PROVIDED ON AN “AS IS” AND “AS PROVIDED” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES AS TO AVAILABILITY OF THE WEBSITE OR SERVICES, COMPLETENESS, ACCURACY OR TIMELINESS OF INFORMATION, NON-INFRINGEMENT, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE, AND SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED BY PENNYSAVER USA PUBLISHING, LLC. PENNYSAVER USA PUBLISHING, LLC MAKES NO WARRANTIES EXPRESS OR IMPLIED REGARDING ITS POWERCLICKS OFFERING, INCLUDING BUT NOT LIMITED TO THE EXTENT OF ANY INCREASED WEB TRAFFIC THAT MAY OR MAY NOT RESULT FROM SUCH SERVICES.
NEITHER PENNYSAVER USA PUBLISHING, LLC NOR ITS EMPLOYEES, CONTRACTORS, VENDORS, AFFILIATES AND/ OR LICENSORS SHALL BE LIABLE FOR ANY LOST PROFITS, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING IN CONNECTION WITH ANY ACTION OR OMISSION IN CONNECTION WITH THIS AGREEMENT OR OUT OF ANY BREACH OF ANY WARRANTY, AND YOU HEREBY WAIVE ANY CLAIMS WITH RESPECT THERETO, WHETHER BASED ON CONTRACTUAL, TORT OR OTHER GROUNDS, EVEN IF PENNYSAVER USA PUBLISHING, LLC OR ITS EMPLOYEES, CONTRACTORS, VENDORS OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
WITHOUT LIMITING THE FOREGOING. THE ENTIRE LIABILITY OF PENNYSAVER USA PUBLISHING, LLC, ITS EMPLOYEES, CONTRACTORS, VENDORS AND/ OR LICENSORS AND YOUR EXCLUSIVE REMEDY IN CONNECTION WITH ANY SERVICES OR ANY BREACH OF THIS AGREEMENT IS LIMITED TO ANY AMOUNTS ACTUALLY PAID BY YOU TO PENNYSAVER USA PUBLISHING, LLC DURING THE TWELVE-MONTH PERIOD PRIOR TO THE CLAIM.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS. PENNYSAVER USA PUBLISHING, LLC DOES NOT REPRESENT THAT THE HOSTING SERVICES, ACCESS TO THE POWERSITE OR FUNCTION OF THE POWERSITE(S) WILL BE UNINTERRUPTED OR ERROR, BUG OR VIRUS FREE AND NEITHER PENNYSAVER USA PUBLISHING, LLC NOR ANY OF ITS LICENSORS OR SERVICE PROVIDERS SHALL BE HELD RESPONSIBLE IN ANY WAY OR BY ANY MEANS, EITHER DIRECTLY OR INDIRECTLY, FOR ANY LOST OR CORRUPTED DATA, PROCESSING ERRORS, COMMUNICATIONS DIFFICULTIES, AND/OR ANY INTERRUPTION AND OR FAILURE OF DELIVERY OF ANY OF THE SERVICES OFFERED BY PENNYSAVER USA PUBLISHING, LLC.
PENNYSAVER USA PUBLISHING, LLC SHALL NOT BE RESPONSIBLE FOR ANY ALTERATIONS, MODIFICATIONS, DELETIONS AND THE LIKE TO THE WEBSITE OR SERVICES. IN NO EVENT SHALL PENNYSAVER USA PUBLISHING, LLC (OR ITS OWNER, DIRECTORS, OFFICERS, AGENTS, AFFILIATES AND EMPLOYEES) BE LIABLE FOR ANY CUSTOMER CONTENT OR ANY OTHER WORD OR IMAGE PRODUCED FOR THE CUSTOMER, OR ASSOCIATED WITH THE CUSTOMER OR THE CUSTOMER’S BUSINESS.
PENNYSAVER USA PUBLISHING, LLC SHALL NOT BE RESPONSIBLE FOR (A) UNAUTHORIZED ACCESS TO OR ALTERATION OF TRANSMISSIONS OR DATA, (B) ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED, OR (C) ANY TRANSACTIONS ENTERED INTO THROUGH ANY SERVICE OR WEBSITE PROVIDED BY PENNYSAVER USA PUBLISHING, LLC HEREUNDER. PENNYSAVER USA PUBLISHING, LLC IS NOT RESPONSIBLE OR LIABLE FOR ANY THREATENING, DEFAMATORY, OBSCENE, OFFENSIVE OR ILLEGAL CONTENT OR CONDUCT OF ANY OTHER PARTY ON OR THROUGH ANY WEBSITE PROVIDED BY PENNYSAVER USA PUBLISHING, LLC HEREUNDER OR ANY INFRINGEMENT, MISAPPROPRIATION OR VIOLATION OF ANOTHER’S RIGHTS BY A THIRD PARTY, INCLUDING INTELLECTUAL PROPERTY RIGHTS. YOU SPECIFICALLY AGREE THAT PENNYSAVER USA PUBLISHING, LLC IS NOT RESPONSIBLE FOR ANY CONTENT SENT, PROVIDED OR POSTED BY YOU OR ANY THIRD PARTY INCLUDING BUT NOT LIMITED TO ANY LINKS TO THIRD PARTY MATERIAL.
Each party may receive or have access to commercially or personally valuable technical and non-technical confidential or proprietary information (“Confidential Information”) of the other party. Confidential Information of Customer includes its registration and financial information. Confidential Information of PennySaver USA Publishing, LLC includes all business and technical information that is not generally known or available to others. Each party acknowledges and agrees that any Confidential Information received or obtained from the other party will be the sole and exclusive property of the other party and may not be used, disseminated or disclosed except as may be necessary to perform the obligations required under this Agreement or as may be required by law. Notwithstanding the foregoing, the confidentiality obligations set forth herein shall not apply to any portion of any information which: (a) is now in the public domain, or hereafter enters the public domain through no action of the receiving party or any of its representatives; (b) can be shown to have been known to the receiving party or its representatives at the time it is received; (c) is hereafter rightfully furnished to the receiving party by a third party without violation of any restriction on disclosure; or (d) is independently developed by the receiving party without reference to any Confidential Information of the other party.
The recipient acknowledges that the information disclosed may constitute proprietary information and trade secrets of the disclosing party. In the event of wrongful disclosure, monetary damages may be insufficient to protect and compensate the disclosing party and it shall be entitled to injunctive relief.
This Section 11 regarding Confidentiality shall survive expiration or termination of this Agreement.
Any notice, approval, request, authorization, direction or other communication in connection with this Agreement (each, a “Notice”) by Customer must be made by mail to PennySaver USA Publishing, LLC at 2830 Orbiter St (attn: PowerSite Customer Service Department) Brea, CA 92821 (USA) accompanied with a facsimile to: PowerSite Customer Service at 714-577-4248. Any Notice to Customer by PennySaver USA Publishing, LLC shall be deemed to have been delivered and given for all purposes if sent to the email address provided by Customer at time of registration or within Customer’s account with PennySaver USA Publishing, LLC.
13. RELATIONSHIP OF THE PARTIES.
In performing Services for the Customer under this Agreement and all Schedules, PennySaver USA Publishing, LLC is acting at all times as an independent contractor and not as an agent or employee of the Customer. Neither this Agreement nor any Schedule shall be deemed to constitute a partnership or joint venture arrangement between PennySaver USA Publishing, LLC and Customer.
14. FORCE MAJEURE.
Neither party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, or any other cause beyond the reasonable control of such party.
15. GOVERNING LAW & ENTIRE AGREEMENT.
This Agreement is the entire agreement and understanding between the parties in connection with the subject matter hereof and with respect to the PowerSite. This Agreement supercedes and replaces all prior agreements, terms or conditions between the parties and any other oral or written communications as they pertain to this Agreement. This Agreement shall be governed by the laws of the State of California without giving effect to principles of conflict of laws. Any action to enforce this Agreement or any matter relating to your use of the PowerSite(s) shall be brought exclusively in the State and Federal Courts located in Los Angeles, California.
In the event that any provision of this Agreement conflicts with the law under which this Agreement is to be construed, or if any such provision is held invalid by a court with jurisdiction over the parties to this Agreement, such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and the remainder of this Agreement shall remain in full force and effect. The failure of PennySaver USA Publishing, LLC to insist upon or enforce strict performance by Customer, of any provision of this Agreement shall not be construed as a waiver or relinquishment of its right to enforce any such provision or right in any other instance. You may not assign or transfer this Agreement or any rights hereunder without PennySaver USA Publishing, LLC’s prior written consent, and any attempt to the contrary is void.