Merchant Terms of Service
TERMS OF SERVICE AND ACCEPTABLE USE POLICY
Last Updated June 17, 2024
1. YOUR ACCEPTANCE OF THESE TERMS. PLEASE READ THESE TERMS CAREFULLY.
By using our Site or otherwise indicating your acceptance (for example, by agreeing when creating or logging into your account, clicking “I Agree,” etc.), you represent and warrant that you have read, understand, and agree to be bound by these Terms. If you do not agree, you have no right to access or use our Site.
Your Social Snowball order form and the most current version of: (i) these Terms of Service and Acceptable Use Policy; (ii) our Privacy Policy, available at www.socialsnowball.io; (iii) the Manual (as defined in Section 3A); and (iv) as applicable, our Data Processing Agreement, available at www.socialsnowball.io are collectively the “Terms”. The Terms govern your use of the platform(s), website(s), application(s), and services (collectively, the “Site”) offered by Social Snowball Holdings, Inc. (“we”, “our”, “us”, or “Social Snowball”). “You” and “your” refer to you any user of or visitor to our Site, provided that, where distinction is required: (x) “Affiliate” refers to any individual or entity registered on the Site as an Affiliate and contracted to generate revenue for the Merchant via qualified sales, leads, clicks, and/or other measurable actions resulting from user traffic on Affiliate’s websites; (y) “Merchant” refers to the individual or entity contracted via the Site to compensate the Affiliate for its qualified sales activities. Except for Section 3 and all Fee-related terms herein (which provisions apply specifically to Merchants), every provision of these Terms applies to Merchants, Affiliates, and all other users of and visitors to the Site.These Terms supersede all other agreements and understandings, whether written or oral, between you and Social Snowball relating to the Site. No additions, conditions, or modifications, whether oral or contained in any other documents, will be binding on Social Snowball, regardless of Social Snowball’s failure to object, unless otherwise agreed to in writing and signed by an authorized representative of Social Snowball. Pursuant to Section 16H, Social Snowball may update or amend these Terms from time to time without notice to you. Your use of the Site after the date of such update constitutes your agreement to be bound by the most recent Terms.The Site is not intended for use by individuals or businesses in the European Economic Area.Section 15 of these Terms contains provisions governing how claims that you and Social Snowball have against each other are resolved, including any claims that arose or were asserted prior to the “Last Updated” date at the top of these Terms. It contains an arbitration agreement that will, with limited exceptions, require disputes between you and Social Snowball to be submitted to binding and final arbitration. Unless you opt out of the arbitration agreement as described in Section 15: (i) you may pursue claims and seek relief against us only on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding; and (ii) you waive your right to seek relief in a court of law and to have a jury trial on your claims.
2. YOUR SOCIAL SNOWBALL ACCOUNT. The Site is intended solely for persons who are (i) 18 or older, or (ii) 13 and older if either (a) an emancipated minor, or (b) he/she possess legal parental or guardian consent. By accessing or using the Site you represent and warrant that you are not legally prohibited from accessing the Site or using the Services under the laws of the country in which you access or use the Site The Site may be accessed and used only by individuals who can form legally binding contracts under applicable laws, are not barred from using the Site under applicable laws or by Social Snowball, are not on any prohibited lists of any of our utilized third-party payment providers, and are at least 18 years old (or the applicable age of majority). By using this Site you represent, warrant, and covenant that you meet all of these requirements. If creating an account on behalf of an entity, you represent, warrant, and covenant that: (i) you are authorized by such entity to create and utilize such account and bind the entity to these Terms; (ii) the entity meets all of the applicable eligibility requirements; and (iii) the entity will abide by these Terms.By creating an account on our Site, you agree to provide true, accurate, current, and complete information. You agree not to create a Site account using a false identity or by providing false information or if you have previously been removed or banned from our Site. You are responsible for maintaining the confidentiality of your Site account information, including your username and password. You are responsible for all activities that occur on or in connection with your Site account and you agree to notify us immediately of any unauthorized access or use of your Site account. You acknowledge and agree that we are not responsible or liable for any damages, losses, costs, expenses, or liabilities related to any unauthorized access to or use of your Site account.
3. MERCHANT-SPECIFIC TERMS.
A. Limited License Grant. During the Term (as defined in Section 11A), in consideration for Merchant’s payment of the Fees (as defined below) and for its adherence to the Terms, Social Snowball grants Merchant the right to: (i) access and use the Site for its Affiliate Sales Revenue management purposes (including for the purposes of processing, monitoring, tracking and reporting of commission payments to its Affiliates) pursuant to those user, data volume, capacity, and other limitations set forth on the applicable Merchant Order; and (ii) reproduce and use Social Snowball’s Manual solely as necessary to support Merchant’s Users. As used in these Terms:“Affiliate Sales Revenue” means the total gross product(s)/service(s) proceeds (inclusive of shipping, handling, and processing fees and sales, property, use, sales, and similar taxes) generated by Merchant’s Affiliate(s) and tracked via the Site. “Merchant Order” means an order for subscription access to the Site, as entered by Merchant through Social Snowball’s online registration process.“Manual” means Social Snowball’s standard manual related to use Site use, as well as any additional documentation provided to Merchant in connection with these Terms. “User(s)” means any individual(s) who use the Site on Merchant’s behalf or through Merchant’s account or passwords, whether authorized or not.
B. Site Changes. Social Snowball may modify the Site features and functions at any time, including, without limitation, by removing features and functions. If any such Site modifications materially reduce Merchant functionality, Merchant may within thirty (30) calendar days of modification implementation terminate its applicable Merchant Order without cause.
C. Fees. In consideration for subscription access to and use of the Site, Merchant shall pay Social Snowball the fees specified in the Merchant Order (the “Fees”), which fees shall be calculated during the Term based on a percentage of Merchant’s Affiliate Sales Revenue and/or as a dollar amount (as specified on the Merchant Order). All Fees are exclusive of, and Merchant is exclusively responsible for, all applicable taxes, and Social Snowball may add any such taxes to the applicable Fees due and charged. For the avoidance of doubt, any Social Snowball fee schedules posted on the Site or elsewhere will not apply to Merchant if Merchant executed a Merchant Order; instead, the Fees set forth in such Merchant Order shall control.
D. Payment of Fees. During the Term Merchant hereby: (i) authorizes Social Snowball to automatically charge the Fees set forth in the Merchant Order in arrears on a monthly basis (or in intervals set forth in the Merchant Order), and any additional amounts permitted by these Terms, to the credit card, bank account, or other payment source (e.g. PayPal) specified in the Merchant Order; (ii) agrees to keep a valid payment account in effect with sufficient funds or limits to enable Social Snowball to charge the Fees every payment period of the Term; (iii) agrees not to challenge or request reversal of such Fees.
4. ACCEPTABLE USE OF THE SITE.
A. Your Duty to Protect Your Log-In Information. You agree to take commercially reasonable steps to prevent unauthorized access to the Site, including, without limitation, by protecting your passwords and other log-in information. You shall notify Social Snowball immediately of any known or suspected unauthorized use of the Site or breach of Site security.
B. Your Duty to Comply with Applicable Laws. In using the Site you shall comply with all applicable laws and regulations, including, without limitation, laws governing: (i) the disclosure of sponsorship and paid partnership arrangements; (ii) the advertising, promotion, and sale of goods and services; (ii) data privacy and the protection of personally identifiable information.
C. Prohibited Actions. It is a condition of your access and use of the Site that you agree not to use the Site for any purpose that is unlawful or is prohibited by these Terms. You agree not to use the Site to: (i) infringe the intellectual property or other proprietary rights of any party; (ii) transmit software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of the Site or any other software or hardware or telecommunications equipment; (iii) modify, copy, frame, scrape, mine, rent, lease, loan, sell, distribute or create derivative works based on the Site; (iv) implement any measures to circumvent blocking of the Site, if you have been blocked by Social Snowball; (v) take actions which create a privacy or security risk to any person; (vi) transmit unsolicited or unauthorized advertising, including “junk mail,” “spam,” “chain letters,” “pyramid schemes”; (vii) solicit contributions on behalf of the candidacy of any person seeking public office, any political party or political committee, or any other entity promoting or soliciting contributions on behalf of any political candidate; (viii) take any actions or make any communications which are unlawful, harmful, threatening, abusive, harassing, tortious, violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful racially or ethnically, or otherwise objectionable; (ix) take any other action which, in the sole judgment of Social Snowball, inhibits any other person from using the Site, or which may expose Social Snowball or its users to harm or liability of any type; (x) further or promote any criminal activity or enterprise or provide instructional information about illegal activities; (xi) obtain or attempt to access any materials or information through any means not intentionally made available to you through the Site; (xii) build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the Site, or to copy any ideas, features, functions or graphics of the Site.
D. Social Snowball’s Rights. In the event that it suspects any breach of the requirements of this Section 4, Social Snowball may (in addition to any other rights it may have under the law, under these Terms, and in equity) suspend your Site access without advanced notice and/or terminate your Merchant Order(s) for material breach. Additionally, Social Snowball reserves the right to investigate and take appropriate legal action against anyone who, in Social Snowball’s sole discretion, violates these provisions, including, without limitation, reporting such party to law enforcement authorities. You acknowledge that Social Snowball has no obligation to monitor your access to or use of the Site, but has the right to do so for the purpose of operating the Site, to ensure your compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency or another governmental body.
5. YOUR DATA.
A. Use of Your Data. By using the Site, you agree that Social Snowball may collect and share personal data with third party service providers acting on our behalf, including providers of analytics services that may record or log your activities on our services, including text you enter, pages you visit, and features you interact with.. Notwithstanding the foregoing, Social Snowball may disclose your Data as required by applicable law or by proper legal or governmental authority. If permitted by applicable law, Social Snowball shall take reasonable efforts to notify you of any such legal or governmental demand and reasonably cooperate with you in any effort to seek a protective order or otherwise to contest such required disclosure, at your expense.
B. Aggregate and Anonymized Data. Notwithstanding the provisions of Section 5A, Social Snowball may use, reproduce, sell, publicize, and otherwise exploit Aggregate/Anonymized Data in any way, in its sole discretion. “Aggregate/Anonymized Data” refers to Data with personally identifiable information removed.
C. Risk of Exposure; Right to Delete. Hosting data online involves risks of unauthorized disclosure or exposure; in accessing and using the Site, you assume such risks. Social Snowball offers no representation, warranty, or guarantee that your Data will not be exposed or disclosed through errors or the actions of third parties. Social Snowball may permanently erase your Data if your account is delinquent, suspended, or terminated for 30 days or more.
D. Data Accuracy. Social Snowball shall have no responsibility or liability for the accuracy of data uploaded to the Site by you, your Users, or any other party. Social Snowball shall not be responsible or liable for any affiliate commission payment calculation errors in connection with PayPal or other online payments made in reliance on the reports generated from your use of the Site.
E. Excluded Data. You represent, warrant, and covenant that your Data does not and will not include, and you have not and shall not upload or transmit to Social Snowball computers, servers, network or other media, any data that is subject to heightened security requirements as a result of your internal policies or practices or by law or regulation (examples include the Health Insurance Portability and Accountability Act (HIPAA), the Gramm–Leach–Bliley Act (GLBA), the Family Educational Rights and Privacy Act (FERPA), “Sensitive Personal Data” as defined under the General Data Protection Regulation (GDPR), etc.) (the “Excluded Data Laws”; such Data collectively, “Excluded Data”). YOU ACKNOWLEDGE AND AGREE THAT: (A) SOCIAL SNOWBALL HAS NO LIABILITY FOR ANY FAILURE TO PROVIDE PROTECTIONS SET FORTH IN THE EXCLUDED DATA LAWS OR OTHERWISE TO PROTECT EXCLUDED DATA; AND (B) SOCIAL SNOWBALL’S SITE IS NOT INTENDED FOR MANAGEMENT OR PROTECTION OF EXCLUDED DATA AND MAY NOT PROVIDE ADEQUATE OR LEGALLY REQUIRED SECURITY FOR EXCLUDED DATA.
6. UNSOLICITED INFORMATION. From time to time, you may send us unsolicited information or materials, including, without limitation, ideas, suggestions related to new or improved products, know-how, techniques, services, enhancements, names, technologies, advertising and marketing campaigns, plans or promotions (collectively, “Unsolicited Information”). Notwithstanding the foregoing, Social Snowball does not want to receive confidential or proprietary information from you, and you agree never to send to Social Snowball any information that would violate or infringe any copyrights, trademarks, or any other intellectual property rights or rights of third parties, including, without limitation, the rights of publicity, confidentiality, or privacy. By sending Social Snowball any Unsolicited Information you grant to Social Snowball, its affiliates and subsidiaries a royalty-free, fully paid-up, unrestricted, irrevocable, perpetual license to use, reproduce, display, perform, modify, transmit and distribute such Unsolicited Information throughout the world, and you also agree that Social Snowball is free to use any such Unsolicited Information for any purpose, without attribution or compensation to you of any kind. Social Snowball has no obligation to review any Unsolicited Information. You hereby waive any and all moral rights or “droit moral” that you may have in any Unsolicited Information, and you represent and warrant that no third party has any moral, “droit moral,” or other rights in the Unsolicited Information.For the avoidance of doubt, these provisions do not govern Social Snowball’s obligations with respect to your Data.
7. CONFIDENTIAL INFORMATION.
A.“Confidential Information” refers to: (a) any document or information that Social Snowball marks as “Confidential” (or with similar markings); (b) any information Social Snowball orally designates as “Confidential” at the time of disclosure to you; (c) the Manual, any Merchant Order(s), and any communications between Social Snowball and you in relation to these Terms, whether or not marked or designated confidential; and (d) any other nonpublic, sensitive information disclosed by Social Snowball, whether or not marked or designated “Confidential.” Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in your possession at the time of disclosure, as evidenced by your written records kept in the ordinary course; (ii) you develop independently without use of or reference to Confidential Information or Social Snowball IP, as evidenced by your written records kept in the ordinary course; (iii) becomes known publicly, before or after disclosure, other than as a result of your improper action or inaction; or (iv) is approved for release in writing by Social Snowball.
B. Nondisclosure. You shall not use Confidential Information for any purpose other than your use of the Site in accordance with these Terms. Without limiting the foregoing, you shall not disclose Confidential Information to: (i) any employee or contractor unless such person needs access in order to use the Site in accordance with these Terms on your behalf and is under nondisclosure obligations covering Social Snowball Confidential Information which are no less restrictive than those herein; and (ii) any other third party without Social Snowball’s prior written consent. You shall protect the Confidential Information with the same degree of care you use to protect your own confidential information of similar nature and importance, but with no less than reasonable care. You shall promptly notify Social Snowball in writing of any misuse or misappropriation of Confidential Information that comes to your attention. Notwithstanding the foregoing, you may disclose Confidential Information as required by applicable law or by proper legal or governmental authority, provided that, to the extent legally permissible, you agree to give Social Snowball prompt written notice of any such legal or governmental demand and to reasonably cooperate with Social Snowball in any effort to seek a protective order or otherwise to contest such required disclosure.
C. Equitable Relief. Any breach of this Section 7 would cause Social Snowball irreparable injury, for which monetary damages would not provide adequate compensation; accordingly (in addition to any other rights it may have under the law, under these Terms, and in equity) Social Snowball will be entitled to seek injunctive relief against you for any such breach or threatened breach, without proving actual damage or posting a bond or other security.
D. Termination, Return, Retention of Rights. The obligations of Section 7B will terminate five (5) years after the expiration or termination of these Terms. Upon any such expiration or termination, you shall return all copies of Confidential Information to Social Snowball or certify, in writing, the destruction thereof. Nothing in these Terms shall be construed to transfer ownership of Confidential Information to you, or to you grant a license thereto. Social Snowball retains all right, title, and interest in and to its Confidential Information.
8. INTELLECTUAL PROPERTY.As between you and Social Snowball, Social Snowball retains all right, title, and interest in and to the Site, including, without limitation, the “look and feel” and other visual design elements of the Site; all software, source code, and applications used to provide the Site; all updates, improvements, enhancements, modifications thereto and derivative works thereof, whether or not patentable; and all inventions, content, graphics, media, user interfaces, logos, and trademarks contained in, displayed, performed or reproduced through the Site. These Terms are an agreement for services and do not grant you any intellectual property license or rights in or to the Site or any of its components. You acknowledge and agree that the Site and its components are protected by copyright and other laws.
9. THIRD-PARTY CONTENT AND INTERACTIONS. Our Site may contain features and functionalities that link to or provide you with access to third-party content. Any such third-party content is the sole responsibility of the parties involved in those interactions. Social Snowball is not responsible for the content of the interactions you may have with any such third parties. Without limiting the foregoing, Social Snowball’s Privacy Policy applies only to the Site and does not apply to any third-party website or service linked to the Site or recommended or referred to through the Site or by Social Snowball’s staff, including Merchant’s websites for Affiliate's websites.
10. PUBLICITY. In further consideration of the rights granted hereunder to you, you hereby grant Social Snowball the right to use your name, trademarks, and service marks to identify you as Social Snowball’s customer on the Site, in Social Snowball’s marketing materials, and in other sales and marketing activities, provided that you retain the right to notify Social Snowball in writing of your revocation of such permission. Any such revocation shall be solely forward-looking, and Social Snowball shall have no obligation to retrieve, delete, or destroy materials printed, published, or distributed prior to the date of such revocation. You agree to cooperate with Social Snowball in reasonable publicity efforts involving the Site, such as, for example, media releases and marketing materials in accordance with Social Snowball’s reasonable requests.
11. TERM AND TERMINATION.
A. Term. The Terms shall be effective upon the earlier of your first access or use of the Site or your signature of the Merchant Order and shall continue for the following applicable time period (the “Term”): (i) if a Merchant, for the initial term you selected in the online registration process or on your Merchant Order, and thereafter automatically renewing for successive terms equal to such initial term unless either party gives written notice of nonrenewal at least thirty (30) days before the renewal date; or (ii) if an Affiliate or any other user, until terminated as set forth herein.
B. Termination. Social Snowball, in its sole discretion, may suspend or terminate your use of the Site and may remove and discard any Data within the Site for any reason, including, without limitation, for lack of use or if Social Snowball believes that you have violated or acted inconsistently with the letter or spirit of these Terms. You acknowledge and agree that any termination of your access to the Site under any provision of these Terms may be effected without prior notice, and that Social Snowball may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Site. In the event that Social Snowball terminates your access to the Site for any reason other than your nonpayment or other breach of these Terms, then Social Snowball will refund you the prorated portion of any Fees which you have paid but not yet used. Except for the foregoing limited circumstance, you agree that Social Snowball will not be liable to you or any third party for any termination of your access to the Site.
C. Effects of Termination. Upon nonrenewal or termination of these Terms, Social Snowball shall discontinue your access to the Site and you shall cease all use of the Site and shall promptly delete, destroy, or return all Social Snowball Confidential Information in your or your Users’ possession or control. The following provisions will survive any such nonrenewal or termination: (a) any obligation to pay the Fees accrued prior to the date of nonrenewal or termination; (b) Sections 1, 2, 5(B)-(E), 6-10, 11B, 11C, 13-17 , and all defined terms herein.
12. REPRESENTATIONS.
A. By You. You hereby represent, warrant, and covenant that: (a) you have the full right and authority to enter into, execute, and perform your obligations under these Terms and that no pending or threatened claim or litigation known would have a material adverse impact on your ability to perform as required by these Terms; (b) you have accurately identified yourself and you have not provided any inaccurate information about yourself to or through the Site; (c) you will comply with all applicable laws, rules, and regulations, including those that may require adding an appropriate hashtag (including, for example, #ad, #sponsored) or other disclosure in connection with identifying commercial endorsements, such as the U.S. Federal Trade Commission publication “Guides Concerning the Use of Endorsements and Testimonials in Advertising” and any similar requirements that may be applicable.
B. By Social Snowball. Social Snowball represents and warrants that it has the rights necessary to allow you to access and use the Site. In the event of a breach of the warranty in this Section 12B, Social Snowball, at its own option and expense, will promptly take one of the following actions: (a) secure for you the right to continue using the Site; (b) replace or modify the Site to make it non-infringing; or (c) terminate the infringing features of the Site and (if applicable) refund to you any prepaid Fees for such features in proportion to the portion of the Term left after such termination. In conjunction with your right to terminate for our uncured material breach as set forth in Section 11, the preceding states Social Snowball’s sole obligation and liability, and your sole remedy, for breach of the warranty in this Section 12B and for potential or actual intellectual property infringement by the Site.
13. DISCLAIMERS AND LIMITATIONS OF LIABILITY.Except as provided in Section 12B, YOU ACCEPT THE SITE “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (A) SOCIAL SNOWBALL HAS NO OBLIGATION TO INDEMNIFY OR DEFEND YOU AGAINST CLAIMS RELATED TO: (I) YOUR TRANSACTIONS, INTERACTIONS, OR DISPUTES WITH AFFILIATES, IF YOU ARE A MERCHANT; (II) YOUR TRANSACTIONS, INTERACTIONS, OR DISPUTES WITH MERCHANTS, IF YOU ARE AN AFFILIATE; OR (III) INFRINGEMENT OF INTELLECTUAL PROPERTY; (B) SOCIAL SNOWBALL DOES NOT REPRESENT OR WARRANT THAT THE SITE WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (C) SOCIAL SNOWBALL DOES NOT REPRESENT OR WARRANT THAT THE SITE IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT YOUR DATA WILL REMAIN PRIVATE OR SECURE.UNDER NO CIRCUMSTANCES SHALL SOCIAL SNOWBALL BE LIABLE FOR DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY DIRECT, INCIDENTAL, SPECIAL, AND CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS, REVENUE, OR DATA), OR AY INDIRECT OR PUNITIVE DAMAGES, THAT ARISE IN CONNECTION WITH: (I) YOUR ACCESS OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SITE; (II) MISTAKES, DELAYS, OR OMISSIONS IN TRANSMISSION OF INFORMATION TO OR FROM YOU OR SOCIAL SNOWBALL, INTERRUPTIONS IN TELECOMMUNICATIONS CONNECTIONS TO THE SITE, OR VIRUSES; OR (III) YOUR TRANSACTIONS, INTERACTIONS, OR DISPUTES WITH CONTRACTED PARTNERS VIA THE SITE – IN EACH CASE EVEN IF SOCIAL SNOWBALL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL SOCIAL SNOWBALL’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE LESSER OF THE TOTAL FEES RECEIVED BY SOCIAL SNOWBALL FROM YOU OR ONE HUNDRED DOLLARS ($100).For the avoidance ofdoubt, Social Snowball’s liability limits and other rights set forth in this Section 13 apply also to Social Snowball’s affiliates, licensors, suppliers, advertisers, agents, sponsors, members, officers, employees, consultants, advisors and other representatives.THIS SECTION 13 IS INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER APPLICABLE LAW. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID OR FOR ANY REASON UNENFORCEABLE UNDER APPLICABLE LAW, THEN THESE PROVISIONS SHALL BE DEEMED SEVERABLE AND ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE INVALIDITY OF ANY SUCH PORTION OF THESE SECTIONS SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS OF THESE TERMS.
14. INDEMNIFICATION. You hereby agree to indemnify, defend, and hold Social Snowball and its directors, officers, shareholders, employees, affiliates and agents (collectively, “Indemnitees”) harmless from any and all liability actions, proceedings, claims, demands, costs, expenses (including reasonable attorneys’ fees), losses and damages whatsoever arising out of or in connection with: (i) your use of this Site; (ii) your Users, agents, and end customers;(iii) if a Merchant, your or your Users’ transactions, interactions, and/or disputes with Affiliates or other Merchants; (iv) if an Affiliate, your or your agents’ transactions, interactions, and/or disputes with Merchants or other Affiliates; (v) your or your Users’ provision of Unsolicited Information; (vi) your or your Users’ unauthorized disclosure or exposure of personally identifiable information or other private information, including your Data; (vii) your or your Users’ infringement or violation of others’ intellectual property rights; (viii) any other breach of these Terms. Your obligations set forth in this Section 14 include retention and payment of attorneys and payment of court costs, as well as settlement at your expense and payment of judgments. Social Snowball will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. Notwithstanding the foregoing, you will have no obligation to indemnify or hold harmless any Indemnitee from or against any liability, losses, damages or expenses incurred as a result of any action or inaction of such Indemnitee. If you are a California resident, you hereby explicitly waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine. You hereby acknowledge that Social Snowball has set its Fees in reliance upon the limitations and exclusions of liability, the disclaimers of warranties, and your indemnity obligations set forth herein, that the same form an essential basis of the bargain between the parties, and THAT THE FEES WOULD BE HIGHER FOR MERCHANTS AND FOR AFFILIATES IF SOCIAL SNOWBALL WERE REQUIRED TO BEAR LIABILITY IN EXCESS OF THAT STATED HEREIN.
15. ARBITRATION AGREEMENT AND WAIVER OF CERTAIN RIGHTS.
A. Pre-Arbitration Dispute Resolution. Social Snowball is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at support@SocialSnowball.io. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Social Snowball should be sent via certified mail to: Social Snowball Holdings, Inc., Attn: Legal Notice, 1300 South Miami Ave, 5305, Miami, FL 33130 (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Social Snowball and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Social Snowball may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Social Snowball or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Social Snowball is entitled.
B. Arbitration. You and Social Snowball agree to resolve any disputes between you and Social Snowball through binding and final arbitration instead of through court proceedings. You and Social Snowball each hereby waive any right to a jury trial of any controversy, claim, counterclaim, or other dispute arising between you and Social Snowball relating to these Terms or our Site (each a “Claim,” and collectively, “Claims”). Any Claim will be submitted for binding arbitration in accordance with the Rules of the American Arbitration Association (“AAA Rules”). The arbitration will be heard and determined by a single arbitrator. The arbitrator’s decision will be in writing, will include the arbitrator’s reasons for the decision, will be final and binding upon the parties, and may be enforced in any court of competent jurisdiction. The parties agree that the arbitration will be kept confidential and that the existence of the proceeding and any element of it (including any pleadings, briefs, or other documents submitted or exchanged, any testimony or other oral submissions, and awards) will not be disclosed beyond the arbitration proceedings, except as may lawfully be required in judicial proceedings relating to the arbitration or by applicable disclosure rules and regulations of securities regulatory authorities or other governmental agencies.
C. Costs and Fees. If you demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Social Snowball will pay as much of the administrative costs and arbitrator’s fees required for the arbitration as the arbitrator deems necessary to prevent the cost of the arbitration from being prohibitive. In the final award, the arbitrator may apportion the costs of arbitration and the compensation of the arbitrator among the parties in such amounts as the arbitrator deems appropriate.
D. No Preclusions. This arbitration agreement does not preclude you or Social Snowball from seeking action by federal, state, or local government agencies. You and Social Snowball each also have the right to bring any qualifying Claim in small claims court. In addition, you and Social Snowball each retain the right to apply to any court of competent jurisdiction for provisional relief, including pre-arbitral attachments or preliminary injunctions, and any such request will not be deemed to be either incompatible with these Terms or a waiver of the right to have disputes submitted to arbitration as provided in these Terms.
E. No Class Representative or Private Attorney General. You and Social Snowball each agree that with respect to any Claim, neither may: (i) act as a class representative or private attorney general, or (ii) participate as a member of a class of claimants. You agree that no Claim may be arbitrated on a class or representative basis. The arbitrator can decide only individual Claims (whether brought by you or Social Snowball). The arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated.
F. Severability/No Waiver/Survival. If any provision of this Section 15 is found to be invalid or unenforceable, that provision will be deemed appropriately modified to give effect to the intent of the provision or, if modification is not possible, will be severed and the remainder of this Section 15 will continue in full force and effect. No waiver of any provision of this Section 15 will be effective or enforceable unless recorded in a writing signed by the party waiving such a right or requirement. Such a waiver will not waive or affect any other provision of these Terms. This Section 15 will survive the termination of your relationship with Social Snowball.
G. 30-Day Opt-Out Right. You have the right to opt out of the provisions of this Arbitration Agreement by sending, within thirty (30) calendar days after first becoming subject to this Arbitration Agreement, written notice of your decision to opt out to the following address: Social Snowball Holdings, Inc., Attn: Legal Notice, 1300 South Miami Ave, 5305, Miami, FL 33130. Your notice must include your name and address, any usernames, each email address you have used to set up an account on our Site (if applicable), and an unequivocal statement that you want to opt out of this Arbitration Agreement. You agree that if you opt out of this Arbitration Agreement, all other parts of these Terms will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
H. LIMITATIONS. This Section 15 limits certain rights, including the right to maintain certain court actions, the right to a jury trial, the right to participate in any form of class or representative claim, the right to engage in discovery except as provided in AAA rules, and the right to certain remedies and forms of relief. In addition, other rights that you or Social Snowball would have in court may not be available in arbitration.DIGITAL
16. MILLENNIUM COPYRIGHT ACT.If you are a copyright owner or an agent thereof and believe that any Site content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C ¤ 512(c)(3) for further detail):
A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single website location are covered by a single notification, a representative list of such works at that website;
Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;
Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Social Snowball’s designated Copyright Agent to receive notifications of claimed infringement is DMCA Claims, email:dmca@socialsnowball.io. You acknowledge that if you fail to comply with all of these requirements, your DMCA notice may not be valid.
17. OTHER PROVISIONS.
A. Location and Governing Law. Social Snowball operates the Site from the United States, and the Site is designed to comply with the laws of the United States. Social Snowball makes no representation that the Site is appropriate or available for access in other locations, and those who choose to access the Site outside the United States do so at their own risk. These Terms will be governed by and construed in accordance with the laws of the State of Florida, without giving effect to any conflict of laws, rules or provisions. You agree that any action of whatever nature arising from or relating to these Terms or our Site will be filed only in the state or federal courts located in Dade County, Florida. You consent and submit to the personal jurisdiction of such courts for the purposes of any such action.
B. Notices. Social Snowball may send notices pursuant to these Terms to your email contact points provided by you, and such notices will be deemed received 24 hours after they are sent. You may send notices pursuant to these Terms to Social Snowball, and such notices will be deemed received 72 hours after they are sent in writing and if delivered personally, mailed via registered or certified mail (return receipt requested and postage prepaid), given by facsimile (confirmed by certification of receipt) or sent by courier (confirmed by receipt) addressed to Social Snowball Holdings, Inc., Attn: Legal Notice, 1300 South Miami Ave, 5305, Miami, FL 33130.
C. Changes to the Site. You acknowledge and agree we may change or discontinue any aspect of our Site at any time, without notice to you.
D. Children. The Site is not directed toward children under 13 years of age nor does Social Snowball knowingly collect information from children under 13 or allow them to create an account or access account features. If you are under 13, please do not submit any personally identifiable information to Social Snowball. If you believe a child has provided personally identifiable information to Social Snowball, please contact us via support@socialsnowball.io and we will make good faith efforts to delete such information.
E. Technology Export. You shall not: (a) permit any third party to access or use the Site in violation of any U.S. law or regulation; or (b) export any software provided by Social Snowball or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, you shall not permit any third party to access or use the Site in, or export such software to, a country subject to a United States embargo (as of the Effective Date, Cuba, Iran, North Korea, Sudan, and Syria).
F. Force Majeure. Under no circumstances will Social Snowball be liable for any delay or failure in performance due in whole or in part to any acts of God (such as earthquakes, storms, floods, etc.), epidemics, natural disasters, unavoidable accidents, internet and communication service interruptions, laws, rules, regulations or orders of government authorities, acts of war (declared or not), terrorism, hostilities, blockades, civil disturbances, embargoes, strikes, or any other event or cause beyond Social Snowball’s reasonable control.
G. Severability. If any provision of these Terms is found to be invalid or unenforceable, that provision will be deemed appropriately modified to give effect to the intent of the provision or, if modification is not possible, will be severed from these Terms and will not affect the enforceability of any other provision.
H. Amendment. Social Snowball may amend these Terms from time to time by posting an amended version at its Site and/or by sending you email or other written notice thereof. Such amendment will be deemed accepted and become effective 30 days after such notice (the “Proposed Amendment Date”) unless you first give Social Snowball written notice of rejection of the amendment. In the event of such rejection, these Terms will continue under their original provisions, and the amendment will become effective at the start of your next Term following the Proposed Amendment Date. Your continued use of the Services following the effective date of an amendment will confirm your consent thereto. These Terms may not be amended in any other way except through a written agreement by authorized representatives of each party. Notwithstanding the foregoing provisions of this Section 16H, Social Snowball may revise the Privacy Policy and any other Social Snowball policy at any time by posting a new version of either at the Site, and such new version will become effective on the date it is posted.
I. Assignment. Social Snowball may, at any time, assign its rights and obligations under these Terms, including to an affiliated entity or in connection with a sale of assets, merger, acquisition, reorganization, bankruptcy, other transaction, or by operation of law. may not assign these Terms or any of its rights or obligations hereunder without Social Snowball’s express written consent. Except to the extent forbidden in this Section 16(I), these Terms will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
J. Miscellaneous. Titles are for convenience only and will not be considered when interpreting these Terms. No agency, partnership, joint venture, or employer-employee relationship is intended or created by these Terms or your use of the Site. The failure of Social Snowball to act on or enforce any provision of these Terms shall not be construed as a waiver of that provision or any other provision in these Terms. No waiver shall be effective against Social Snowball unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance.
