Registration
and Use Agreement
1. Background.
The Rebate Group web-based business to business, e-commerce portal supports and
facilitates information dissemination, communications and transactions between
members of the food and beverage and is available to authorized users. The Rebate Group
portal contains a suite of applications. The particular applications that are
available to The Rebate Group and its supply chain members depends
upon which supply chain management services are purchased by the customer from The Rebate Group.
2. Limited Access to and Use
of The Rebate Group Portal. The Rebate Group Portal and its
infrastructure are the property of The Rebate Group. Access to and use of any portion of
the The Rebate Group Portal is subject to all terms and conditions of this Agreement.
The Rebate Group grants to User a
non-exclusive, non-assignable, non-transferable, non-sublicensable,
and limited right to access and use those portions of The Rebate Group Portal for which
The Rebate Group or one of its customers issues User an active password, solely for the
purposes of supplying or procuring goods
or performing related services ("Authorized Use"). Access to and use
of The Rebate Group Portal for any purpose other than the Authorized Use is prohibited.
Access to and use of The Rebate Group Portal is strictly pursuant to the terms of this
Agreement.
User is responsible for
providing, at its expense, all communications lines, hardware, software,
services and other materials and technology necessary for it to access The Rebate Group
Portal. The Rebate Group has no responsibility for any failure of such items or any failure
or limitation of the Internet or other computer hardware, software or
communications network.
3. Passwords.
The Rebate Group or The Rebate Group's customer(s) that has directed User to use The Rebate Group Portal will
provide User with one or more User IDs and passwords to enable User to access
certain portions of The Rebate Group Portal designated by The Rebate Group or the customer, as
applicable. User will be responsible for the use of, and for maintaining the
confidentiality of, the User IDs and password(s). User will immediately notify The Rebate Group
if a User ID or password is lost or stolen or if there is any unauthorized use
of a password. Each individual that User desires to have Authorized Use must
have a separate User ID and password. User IDs and passwords may not be shared
among User's employees or agents and User will restrict the use and level of
use of the assigned User IDs and passwords to those employees that have a need
to access The Rebate Group Portal and the information to which such password permits
access in order to perform their duties. User will forbid the individual users
from disclosing the User IDs and passwords to any third party (including other
employees and agents who do not have access) and from using the User IDs and
passwords for the benefit of any third party, other than The Rebate Group customer that
authorized such User IDs and passwords. User will not use any User ID or
password or other means to attempt to access portions of The Rebate Group Portal for
which The Rebate Group or its customer has not issued User a password.
4. Confidential Information.
The Rebate Group Portal contains, or The Rebate Group may otherwise disclose to User hereunder,
information proprietary to The Rebate Group, its customers and other The Rebate Group Portal users,
including but not limited to (i) The Rebate Group Portal's
look, feel and embodied trade secrets, know-how, ideas and concepts, as well as
training materials, software designs and code, user names, and passwords for
The Rebate Group Portal, and (ii) confidential and proprietary information and data
related to The Rebate Group's, its customers' or other users' business, technology,
products, business opportunities, finances, customers, pricing, sales,
marketing or means or methods of doing business, including information relating
to identified or identifiable individuals (the "Confidential
Information"). Confidential Information will not include any materials or
information of the types specified above to the extent that such materials or
information: (i) are known to User prior to the
receipt of such materials or information through The Rebate Group Portal, without an
obligation to keep such materials or information confidential; (ii) are
generally furnished to others by The Rebate Group or its customers or other The Rebate Group Portal
users with no restriction on disclosure; or (iii) are lawfully obtained from
any source other than The Rebate Group Portal, provided that such source lawfully
disclosed such information. Failure to mark any of the Confidential Information
as confidential will not affect its status as Confidential Information under
this Agreement.
User hereby acknowledges and
agrees that it (i) will access and use the
Confidential Information only for the Authorized Use, (ii) will treat the
Confidential Information as confidential, take reasonably necessary precautions
to protect it, and will not disclose the Confidential Information to any third parties,
including competitors of The Rebate Group, its customers and other supply chain member
users, (iii) will provide access to Confidential Information only to User's
employees who (a) have a need to know such Confidential Information in
connection with the Authorized Use, and (b) have been advised of the
confidential and proprietary nature of such Confidential Information, (iv) will
not use the Confidential Information to compete with The Rebate Group, its customers or
other supply chain member users, and (v) will not use the Confidential
Information to market products or services, other than direct marketing to
other supply chain member users via the The Rebate Group Portal. The parties' obligations
under this Section 4 commence on the Effective Date and extend with regard to
all Confidential Information until five (5) years following the end of the
Term. Thereafter, the parties' obligations hereunder survive and continue in
effect with respect to any Confidential Information that is a trade Fundamental under applicable law.
User will promptly advise The Rebate Group
in writing upon learning of any unauthorized use or disclosure of the
Confidential Information and will take all reasonable actions to prevent
further unauthorized use or disclosure. User acknowledges that the provisions
of this Section 4 are intended to inure to the benefit of The Rebate Group's customers. If
User breaches any of these provisions and such breach causes harm to The Rebate Group
customer, such The Rebate Group customer will be entitled to enforce this Section 4
directly against User. User further acknowledges that The Rebate Group executes this
Agreement as principal on its own behalf and, exclusively to accept or
otherwise perfect each The Rebate Group customer's rights against User, act as agent on
behalf of such The Rebate Group customer. User acknowledges and agrees that any breach or
threatened breach of the confidentiality obligations contained in this Section
4 is likely to cause The Rebate Group and/or its customer’s irreparable harm for which
money damages may not be an appropriate or sufficient remedy. User therefore
agrees that The Rebate Group and The Rebate Group customers are entitled to receive injunctive or other
equitable relief to remedy or prevent any breach or threatened breach of the
confidentiality obligations contained in this Section 4. Such remedy is not the
exclusive remedy for any breach or threatened breach of this Section 4, but is
in addition to all other rights and remedies available at law or in equity.
5. User Information; License.
User acknowledges that when it provides information to The Rebate Group Portal or uses
information that is made available by other users on The Rebate Group Portal (including
customers), The Rebate Group is not responsible for the accuracy and content of the
information so supplied or used. The Rebate Group will have no obligation or liability to
User with regard to any information communicated via The Rebate Group Portal and makes
no representations or warranties with respect to any of such information.
User agrees (i) not to supply any information that infringes or
misappropriates the intellectual property rights of any other party or that is
inaccurate, misleading, fraudulent or illegal, (ii) not to retransmit,
download, publicly display, or use the information of third parties provided
other than solely for its Authorized Use and (ii) not to alter or remove any of
the information of third parties or any consent or other proprietary notice or
legend on any of the information of third parties. User further agrees to
comply with all applicable laws and regulations regarding User's use of The Rebate Group
Portal and the information.
By providing information to The Rebate Group
for posting on The Rebate Group Portal or transmitting any information to The Rebate Group
Portal, User grants to The Rebate Group and its successors and assigns a non-exclusive,
worldwide, royalty-free license during the Term to (i)
use, reproduce, distribute, download, create derivative works of, display, and
broadcast such information; (ii) authorize other users of The Rebate Group Portal to
use, reproduce, distribute, download, create derivative works of and print such
information for their own internal business purposes; and (iii) otherwise use
such information in any manner consistent with The Rebate Group's Privacy Policy. The Rebate Group may
archive or delete the information that User may provide after completing the
purposes for which the information was provided.
While it may monitor, remove
or delete transmissions to the The Rebate Group Portal, The Rebate Group is under no obligation to do
so. The Rebate Group exercises no editorial review and assumes no responsibility for
inaccurate, misleading, fraudulent or illegal Information supplied to The Rebate Group
Portal; provided, however, The Rebate Group may take any action with respect to any
information that The Rebate Group deems in its sole discretion is necessary or appropriate,
including the deletion of any such information. User agrees to promptly report
to The Rebate Group any information that User reasonably believes is inaccurate.
If User believes that User's
copyright in any material has been infringed by The Rebate Group, User will immediately
notify The Rebate Group and provide to The Rebate Group all of the following information (i) a description of the copyrighted work User claims has
been infringed, (ii) a description of the material that User claims is
infringing, identified with sufficient detail for The Rebate Group to locate it on The Rebate Group
Portal, and (iii) User's contact information.
6. Disclaimer; Limitation of
Liability; Indemnity. USER'S USE OF The Rebate Group
PORTAL OR ANY INFORMATION FOUND THEREIN IS AT USER'S OWN RISK. The Rebate Group Portal
AND THE INFORMATION ARE PROVIDED "AS-IS" AND
"AS-AVAILABLE." The Rebate Group AND ITS LICENSORS HEREBY DISCLAIM ANY AND ALL
WARRANTIES WITH RESPECT TO The Rebate Group Portal AND THE INFORMATION FOUND THEREIN,
WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF
MERCHANTABILITY, SATISFACTION, FITNESS FOR PARTICULAR PURPOSE, COMPLETENESS,
ACCURACY, RELIABILITY, QUALITY, TIMELINESS, UNINTERRUPTED USE, TITLE AND
NON-INFRINGEMENT.
The Rebate Group AND ITS LICENSORS ARE
NOT RESPONSIBLE FOR THE CONTENT OF ANY WEB SITES LINKED TO The Rebate Group Portal.
LINKING TO OTHER WEB SITES FROM THE The Rebate Group Portal IS AT USER'S OWN RISK.
EXCEPT FOR WILLFUL ACTS ON
THE PART OF The Rebate Group, UNDER NO CIRCUMSTANCES WILL The Rebate Group OR ITS LICENSORS BE LIABLE
FOR, AND USER HEREBY IRREOVACABLY RELEASES The Rebate Group AND ITS LICENSORS FROM, ANY
DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY DIRECT, INDIRECT,
CONSEQUENTIAL, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES, WHETHER FORESEEABLE OR
UNFORESEEABLE, BASED ON USER'S CLAIMS OR THE CLAIMS OF USER'S CUSTOMERS
(INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR LOSS OF DATA, GOODWILL, PROFITS, USE
OF MONEY, INTERRUPTION IN USE OR AVAILABILITY OF The Rebate Group PORTAL OR INFORMATION
FOUND THEREIN, STOPPAGE OF OTHER WORK OR IMPLEMENTATION OF OTHER ASSETS),
ARISING OUT OF USER'S USE OF The Rebate Group PORTAL OR THE INFORMATION FOUND THEREIN
(INCLUDING TRANSACTIONS CONDUCTED THROUGH The Rebate Group PORTAL), BREACH OR FAILURE
OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION,
NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE. EXCEPT AS SET FORTH IN
SECTION 3, IF FOR ANY REASON USER IS NOT SATISFIED WITH The Rebate Group PORTAL OR THE
INFORMATION FOUND THEREIN, USER'S SOLE REMEDY IS TO CEASE USING The Rebate Group PORTAL
OR THE INFORMATION.
User agrees to indemnify and
hold The Rebate Group and its licensors harmless from and against any damage, loss,
liability or expense (including reasonable attorneys' fees and expenses) that The Rebate Group
or its licensors may suffer or incur as a result of any claim asserted by a
third party that is attributable to or based upon User's use of The Rebate Group Portal
or any of the information found therein, or any product or service provided by
User to any of The Rebate Group's
customers.
7. Independent Contractors.
Nothing in this Agreement will be construed to make The Rebate Group or User an agent,
employee, joint venturer, partner,
franchisee-franchisor or legal representative of the other. Neither party will
either have or represent itself to have any authority to bind another to any
obligation.
8. The Rebate Group as Limited Agent of
Customers. User acknowledges that The Rebate Group may at
times act as a customer's agent when performing certain supply chain management
services for such customer. User understands and acknowledges that The Rebate Group is not
a party to the transactions between User and The Rebate Group's customers, The Rebate Group has no
responsibility for such transactions and The Rebate Group will have no liability or
responsibility to User arising under User's agreement with any such customer.
9. Intellectual Property
Rights. User is not granted any rights in
or to The Rebate Group Portal, or any information/data that is accessible through The Rebate Group
Portal, other than the limited Authorized Use rights set forth in this
Agreement. User may not download, copy or otherwise
use The Rebate Group Portal or any information available on The Rebate Group Portal, in whole
or in part, except as expressly permitted by this Agreement. User may not
modify The Rebate Group Portal in any manner. User agrees that the source code relating
to The Rebate Group Portal is confidential and proprietary to The Rebate Group and/or its
licensors. Accordingly, User may not decompile, disassemble, reverse engineer
or otherwise manipulate The Rebate Group Portal or other software so as to derive the
source code. The Rebate Group Portal is protected by U.S. copyright law and
international treaties.
10. Miscellaneous.
This Agreement, and User's use of The Rebate Group Portal, will be governed by and
interpreted in accordance with the laws of the State of Georgia, U.S.A.,
excluding its conflicts of law rules. Any controversy or dispute will be
submitted to the exclusive jurisdiction of the state or federal courts in and
for Atlanta, Georgia. Without limiting any of the terms hereof, if User
breaches any term or condition of this Agreement, The Rebate Group may, in addition to any
other remedies available at law or in equity, deny User access to and use of
The Rebate Group Portal. This Agreement constitutes the complete and exclusive
statement of the terms, conditions and representations of the agreement between
us with respect to The Rebate Group Portal and supersedes all other agreements with
respect to the subject matter hereof (other than the Legal Terms and Conditions
that are posted on the Website; provided however, that in the event of conflict
between such Legal Terms and Conditions and this Agreement, this Agreement will
control). If any provision of this Agreement is held to be unenforceable, this
holding will not affect the validity of the other provisions. Any waiver,
modification or amendment of any provision of this Agreement will be effective
only if in writing and signed or electronically accepted by The Rebate Group and User.
You hereby confirm and
warrant that you are an employee or other representative of the User and are
authorized to enter into this Agreement on behalf of the User.