END USER LICENSE AGREEMENT
This End User License Agreement (hereinafter "Agreement") is a legal and binding contract between you or the business entity you represent (collectively "you", "your") and Apparel Media Group, LLC., a Delaware corporation located at 314 West Institute Place STE 3E, Chicago, IL 60610 (hereinafter "AMG") which governs your access to and use of the Pear℠ website and the mobile application provided by AMG (the "Pear Platform"). This Agreement takes effect on the earliest of the following to occur, as applicable: (a) when you click the "I Agree" button, (b) when you use the Pear Platform. Accordingly, as noted below, if you do not agree to all of these terms and conditions, you must refrain from using the Pear Platform and not click on the "I Accept" button. You represent and warrant that you are lawfully able to enter into contracts (or, if you are a minor, you have your parent's permission to use the Pear Platform, and your parent has read and agrees to this Agreement on your behalf). If you are entering into this Agreement on behalf of a business entity, you represent and warrant that you have the legal authority and capacity to bind such business entity.
1.1 Grant of Right to Use. AMG owns and reserves all right, title, and interest in and to the Pear Platform. AMG grants you a limited, non-exclusive, and terminable license to access and use the Pear Platform, provided that you comply with all of the terms and conditions of this Agreement. Except as provided herein, you obtain no rights under this Agreement from AMG to the Pear Platform, including any related intellectual property rights.
1.2 Account. To access and use the Pear Platform, you must create a user account that either links to a Facebook account or a valid email address (a "User Account"). By creating a User Account, you represent and warrant that any information you provide is true, accurate, and complete, and that you will keep such information current. You expressly agree that you will not create a User Account on behalf of another individual or anyone other than yourself or your company.
1.3 Limitations on Use. When using the Pear Platform, you agree not to engage in any illegal, dangerous, seditious, offensive or otherwise undesirable (as determined by AMG in its sole discretion) activities, including, but not limited to: (a) submitting or sharing content, including information submitted in the creation of a Pear Group (defined below), that is patently offensive to the online community, such as, for example, content that is threatening or promotes racism or hatred; (b) engaging in activity that involves the transmission of unsolicited messages, including Facebook messages, to other Pear Platform users or third parties; (c) engaging in activities that solicit personal information, passwords, or financial information from other Pear Platform users; (d) using any robot, spider or other automatic device, or a manual process, to monitor or copy user information, content, or any information contained within the Pear Platform; (e) using any device, software or routine to interfere or attempt to interfere with the proper working of the Pear Platform infrastructure; and (f) decompiling, reverse engineering, disassembling or otherwise attempting to obtain the source code for the Pear Platform.
Becoming a Sponsor
2.1 Sponsorship. The Pear Platform enables businesses to create accounts (a "Sponsor Account" and, together with a User Account, "Accounts" and each, individually, an "Account") to become sponsors of Pear Groups (a "Sponsor"). By creating a Sponsor Account, you will be allowed to offer sponsorship benefits, including, but not limited to, discounts, vouchers, and coupons (collectively, the "Sponsorship Benefits") to Pear Groups with users that collectively engage in activities to promote your business (the "Promotional Activities"). Promotional Activities may include, but are not limited to, visiting a website, issuing a "Like" to a Facebook page or other online asset, joining your email list or other activities defined by AMG and you.
2.2 Benefit Ownership. Sponsors shall be fully responsible for any and all injuries, illnesses, damages, claims, liabilities and costs suffered by or in respect of a Pear Group, customer, Member, or Leader, caused in whole or in part by the Sponsor, and you agree to hold harmless and release AMG and its officers, directors, employees and agents from, any claim, liabilities, damages, or injury arising from the foregoing.
2.3 Sponsorship Program. Each Sponsor may offer Sponsorship Benefits to one or more Pear Groups (defined below) by creating a set of Promotional Activities that the Pear users belonging to targeted Pear Groups must perform in order to receive the Sponsorship Benefits (the "Sponsorship Program").
3.1 Pear Groups. The Pear Platform enables groups of individuals (each, a "Pear Group") to engage in activities to promote the business of a Sponsor in exchange for Sponsorship Benefits. Pear Groups may be created by an individual (a "Leader") who may invite one or more individuals (each, a "Member") to join the Pear Group.
3.2 Sponsor Selection. Upon setting up a Pear Group, you will be presented with one or more Sponsors interested in the Pear Group's demographic to select from. The Pear Platform displays Sponsors based on whether the Sponsor selected an interest in a specific Pear Group's demographic and the number of active Pear Groups that the Sponsor is currently sponsoring. You agree that any information you provide to the Pear Platform about you and/or a Pear Group may be disclosed in an aggregate and non-personally identifiable manner to Sponsors and other parties. By selecting an individual Sponsor for a Pear Group as a Leader or by joining a Pear Group as a Member, you agree that the Pear Platform may provide personally identifiable information about you to Sponsors and other parties and the Pear Group in order to facilitate the promotional activities and issuance of Sponsorship Benefits.
3.3 Sponsorship Benefits. By creating a Pear Group and selecting a Sponsor, your Pear Group may be eligible to receive certain Sponsorship Benefits. Sponsorship Benefits earned by your Pear Group through the Pear Platform may be redeemed by the Pear Group creator and/or any Pear user which the Pear Group creator designates as a Pear Group Leader. Each Sponsorship Benefit you earn through the Pear Platform is redeemable with the Sponsor as stated in the Sponsorship Program. Each Sponsorship Benefit shall be subject to the terms and conditions of this Agreement, the terms and conditions provided in the Sponsorship Program and the restrictions and expiration date stipulated in the Sponsorship Benefit certificate's description and fine print sections, where applicable. Sponsorship Benefits may not be sold, exchanged, or otherwise transferred.
3.4 Facebook Linking. You may link your Account to a valid Facebook account ("Link" and "Linking"), provided that you agree to the terms and conditions provided by Facebook for Linking by clicking "Allow" when prompted by Facebook. Linking enables you to interact with Facebook through the Pear Platform by posting updates to your Facebook wall, inviting your Facebook friends to your Pear Group(s) as a Member, messaging your Pear Group members through Facebook as a Leader, indicating that you "Like" a Sponsor's Facebook page or other online assets, and other ways. If you choose to Link your Account to your Facebook account, information you provide to the Pear Platform, including your Facebook contact information and Facebook profile photo, will become publicly viewable to other users of the Pear Platform, including Sponsors and other members of Pear Groups in which you are a Leader or Member. You agree that AMG is not responsible for content once it is shared to Facebook or provided within the body of a message to a Facebook user. If you choose to Link, you must respect other users of the Pear Platform in your interactions with them on Facebook, and you must comply with Facebook's terms and conditions and all applicable laws and regulations through such interaction. Upon engaging in Promotional Activities for one or more Sponsors, including, but not limited to, providing promotional content to Facebook, you agree that you will include an express statement that such content is a promotional advertisement solicited by the applicable Sponsor(s).
Ownership of Intellectual Property
4.1 Intellectual Property. You acknowledge that the Pear Platform may be protected by copyrights, trademarks, service marks, patent rights, trade secrets or other proprietary rights ("Intellectual Property") and are either owned by AMG or are used by and with permission. You may download or print copies of portions of the materials within the Pear Platform, provided that you only use such copies for your own personal, non-commercial use and do not modify or alter these copies in any way, or delete or change any copyright, trademark or patent notices therein. No right, title or interest in any downloaded or printed materials is transferred to you. Except as AMG may expressly authorize in writing, you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works Pear, the Pear Platform or from the materials contained therein. You may only use the Pear Platform and the Intellectual Property as expressly permitted in this Agreement and for no other purpose. All trademarks used within Pear are the property of their respective companies and are used by permission.
4.2 Data. In the event of a termination of this Agreement, AMG shall not return or destroy any data provided by you through the Pear Platform.
4.3 Your Content. You may upload or transmit information, text, graphics, photos, videos, or other materials to the Pear Platform (“Content”). You grant AMG a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute Content in any and all media or distribution methods. You agree that this license includes the right for AMG to provide, promote, and improve the Pear Platform and to make the Content available to other companies, organizations or individuals, such as, for example, Sponsors. You further acknowledge and agree that this license allows AMG, Sponsors, and other third parties in which AMG shares Content to reproduce, reuse, publish, modify, adapt, and display Content for advertising or promotional purposes.
Disclaimer; Limitation of Liability
5.1 Disclaimer. AMG PROVIDES THE PEAR PLATFORM "AS IS." AMG HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES THAT ARISE FROM COURSE OF DEALING OR USAGE OF TRADE OR BUSINESS AND THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. YOU ASSUME ALL RISK TO THE SUITABILITY, QUALITY, AND PERFORMANCE OF THE PEAR PLATFORM. AMG MAKES NO WARRANTY THAT PEAR IS ERROR FREE, WILL OPERATE WITHOUT INTERRUPTION OR WITHOUT DEFECT, OR THAT DATA STORED WITHIN PEAR AND/OR BY AMG PURSUANT TO THIS AGREEMENT WILL NOT BE LOST. AMG DISCLAIMS ANY WARRANTY, COVENANT OR REPRESENTATION UNDER THIS AGREEMENT TO ANY PERSON OTHER THAN YOU.
5.2 Limitation of Liability. REGARDLESS OF THE THEORY OF LAW, IN NO EVENT SHALL AMG, ITS EMPLOYEES, AGENTS, OR AFFILIATES BE LIABLE TO YOU OR YOUR COMPANY FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, DATA, OR USE), EVEN IF AMG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, AMG, ITS EMPLOYEES, AGENTS, OR AFFILIATES WILL NOT BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) THE INABILITY TO USE PEAR; (B) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY EITHER PARTY IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF OR ACCESS TO PEAR; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF YOUR CONTENT OR OTHER DATA. IN THE EVENT THAT THE FOREGOING DISCLAIMER OF DAMAGES IS STRICKEN BY A COURT OF LAW, AMG'S AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO THE LESSER OF (X) THE AMOUNT PAID BY YOU TO AMG, OR (Y) TEN THOUSAND DOLLARS ($10,000).
TERM AND TERMINATION
6.1 Term; Termination. This Agreement is effective as of the Effective Date and will remain in effect until terminated by you or AMG. You may delete your Account at any time within the system or by contacting AMG at the contact information below, which deletion shall terminate this Agreement at the time your Account is deleted by AMG. AMG reserves the right to terminate this Agreement or suspend your Account at any time in case of unauthorized, or suspected unauthorized use of the Pear Platform whether in contravention of this Agreement or otherwise. AMG may, at its option, cease offering the Pear Platform, which event shall terminate this Agreement.
7.1 Indemnification. You shall indemnify, defend and hold AMG harmless from any claims, costs, liabilities, expenses (including without limitation reasonable attorneys' fees (both for defending such claim and enforcing the terms of this Section), defense expenses, and court costs) or damages asserted against or suffered by AMG as a result of or related to: (i) a breach of this Agreement by you; (ii) your negligence or willful misconduct; and (iii) your failure to comply with any applicable law, regulation, statute, or rule. This agreement to indemnify, hold harmless and defend applies even if the act or omission complained of was allegedly caused in whole or in part by the strict liability or negligence in any form of AMG. This Section 7.1 shall survive termination of the Agreement.
7.2 Notices to You. Any notice to be given by AMG to you pursuant to this Agreement shall be in writing and shall be deemed given when delivered, if by hand delivery, to the address you provided to AMG in any effective agreement between you and AMG or sent to the associated email address or Facebook account linked to your Account. It is your responsibility to keep your email address or associated Facebook account current and active. You will be deemed to have received any notice sent to the email address or associated Facebook account then associated with your Account when we send the correspondence, whether or not you actually receive such correspondence.
7.3 Notices from You. You shall provide any notice to AMG by sending AMG a written letter to the address set forth above. Such notice shall be deemed given when AMG receives such written letter.
7.4 Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Illinois of the United States of America as they apply to a contract made and performed in such state, but excluding any conflict of law or choice of law rule or principle that might otherwise refer construction or interpretation of this Agreement to the substantive law of another jurisdiction. Any action or proceeding relating to this Agreement or the Pear Platform shall be exclusively brought and exclusively maintained in a state or federal court situated in Cook County of the State of Illinois of the United States of America, and each of the parties hereby consents to and waives any objections to the exclusive venue in and exclusive personal jurisdiction of such courts.
7.5 Modifications. This Agreement, together with any other documents separately signed by both parties that specifically reference and incorporate the terms and conditions of this Agreement, constitutes the entire understanding between the parties with respect to the Pear Platform, and may only be modified by written agreement of the parties. Notwithstanding the forgoing sentence, AMG may, from time to time, make modifications to this Agreement to reflect updates to the Pear Platform. Any such modifications to this Agreement shall become effective upon your electronic execution of such modifications in the Pear Platform. In the event that you do not accept such modifications, you may not continue to use the Pear Platform.
7.6 Status; Taxes. The parties hereto mutually agree, intend and understand that, you at all times will act and perform solely as an independent contractor performing Promotional Activities, and not as an employee of AMG or any Sponsor. Notwithstanding any other provision of this Agreement, this Agreement shall not be deemed to represent or evidence the hiring of you by any party as an employee, nor does it constitute a contract of employment. All Sponsorship Benefits hereunder obtained by you shall be given without any reduction by AMG or any Sponsor for any taxes, including but not limited to foreign or federal, state or local income, employment, self-employment or withholding taxes, it being the intention of the parties that you shall be solely responsible for the payment of all taxes, fines, penalties or assessments imposed on or related to your activities pursuant to this Agreement. You shall indemnify, defend and hold harmless AMG and the Sponsors, and each of their respective officers, directors, representatives, agents and employees, from and against any and all liabilities which AMG and the Sponsors may incur as a result of any failure by you to pay any local, state, federal, or foreign income, employment, self-employment or withholding tax, including without limitation any failure to timely pay any estimated tax.
7.7 General. This Agreement is binding on the parties, their successors and assigns. You shall not assign this Agreement or any license hereunder without the express written consent of AMG, which shall not be unreasonably withheld. Any other attempt to sublicense, assign or transfer this Agreement or the licenses granted hereunder shall be null and void. There are no representations, promises, warranties or understandings relied upon by you which are not contained herein. If any provision of this Agreement is found unenforceable, the remaining provisions shall continue in full force and effect. Any ambiguities in this Agreement shall not be strictly construed against the drafter of the language concerned but shall be resolved by applying the most reasonable interpretation under the circumstances, giving full consideration to the intentions of the parties at the time of contracting. The waiver or failure of any party to exercise, in any respect, any right provided for under this Agreement shall not be deemed a waiver of any future right hereunder.
By entering into this Agreement, you warrant that you have the authority to bind your company to the terms and conditions of this Agreement. If you are not authorized nor deemed in law to have such authority, you assume sole personal liability for the obligations set out in this Agreement.