iZania Market Deals® Merchant Account Terms and Conditions
By accessing and using iZania Market Deals' services through your Merchant Account (as defined below), you agree to the following terms and conditions and any policies, guidelines or amendments thereto that may be presented to you from time to time (collectively, the "Terms"). If the law or our functionality changes and affects the services we are able to offer you through your Merchant Account, we may need to change these Terms or our program features from time to time. You should review these Terms regularly. If at any time you do not agree with these Terms, or you do not agree to any modified Terms, then you shall immediately stop using your Merchant Account and cease your participation in any iZania Market Deals merchant programs. Unless you have agreed otherwise in writing with iZania Market Deals, these Terms govern your use of our services through your Merchant Account. In the event of a conflict between these Terms and the terms of a deal ("Offer") created or requested in your account in the Merchant Account (a "Deal Request" or "DR"), these Terms shall govern. You and iZania Market Deals may be referred to throughout these Terms individually as a "Party" and collectively as the "Parties".
Section 1: iZania Market Deals MERCHANT ACCOUNT
1.1 Merchant Account. In order to use certain services, you are required to register for a special account on the iZania Market Deals Site that will facilitate your use of various iZania Market Deals services (your "Merchant Account"), and to provide current and accurate, contact and other information as part of the Merchant Account registration process and continued use of the services offered by iZania Market Deals. You are responsible for maintaining the confidentiality of your Merchant Account password, and are responsible for all activities that occur under such account. You agree to immediately notify iZania Market Deals of any unauthorized use of your password or Merchant Account or any other breach of security related to the iZania Market Deals Site. iZania Market Deals is not and will not be liable for any loss or damage arising from your failure to comply with this Section 1.1. In addition to the other rights set forth herein, iZania Market Deals reserves the right to refuse service and/or access to the iZania Market Deals Site to you or any other merchant at any time without notice for any reason. When using your Merchant Account and the iZania Market Deals Site to submit and manage other deals, you will be required to accept and comply with certain terms and conditions applicable to merchants. iZania Market Deals may offer certain optional features or functionalities within your Merchant Account. If you choose to use such features, then you may be required to agree to separate terms that are specific to those features that will be disclosed and available at the time you elect any such option. You represent that you are of legal age to form a binding contract and have full power, capacity and authority to accept these Terms. If you are accepting these Terms on behalf of your employer or another entity, you represent that you have full legal authority to bind your employer or such entity to these Terms. If you don't have the legal authority to bind, please ensure that only an authorized person from your entity consents to and accepts these Terms.
Section 2: PROGRAM PARTICIPATION AND YOUR CAMPAIGN OFFER
2.1 Creation of Offers. By electing to participate in a Campaign, you must define the conditions of, and supply the content and images to describe and illustrate, your Offer and its terms by completing a Campaign Management request with an iZania Market Deals Sales Representative. Your request is not binding on iZania Market Deals until iZania Market Deals promotes the Offer on the iZania Market Deals Site, at which point the Sales Period begins and the Offer becomes an "Active Offer" during such Sales Period. Notwithstanding the foregoing, iZania Market Deals has no obligation to accept or promote your Offer. You are responsible and liable for all Offer content and terms, and for iZania Market Deals' or any purchaser's use or reliance thereon. In creating your Offer, you may not: (a) offer to sell any goods or services on terms or in a manner that is prohibited by law from being offered or advertised; (b) include any content that violates or infringes in any way upon the rights of others; or (c) include any material that is unlawful, threatening, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane or otherwise objectionable, which encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any Law.
2.2 Promotion of Offers. If iZania Market Deals accepts your Offer, iZania Market Deals will promote the Offer using any method and through any medium that iZania Market Deals deems appropriate in its sole discretion, including through e-mail, mobile applications and any other type of electronic interface or distribution channel owned, controlled or operated by iZania Market Deals. iZania Market Deals further reserves the right, but has no obligation, to promote the Offer through its affiliates and third party business partners from time to time. iZania Market Deals will promote your Offer to iZania Market Deals customers and potential customers based on geographic or other geo-locational data, but will determine the customers and potential customers to whom your Offer is actually promoted and made available in its sole discretion.
2.3 Responsibility for Offer and iZania Market Deals. You acknowledge that you are the exclusive seller of your Offer and the issuer of the iZania Deal. You also are responsible and liable for: (a) the decision to make your Offer available through the iZania Market Deals services; (b) fulfilling your Offer; and (c) supplying all goods and/or services specified in the Offer.
2.4 Your Third Party Merchants. You may subcontract or delegate portions of your performances required by these Terms with respect to a particular Offer to a third party (each, a "Third Party Merchant"). If you subcontract or delegate to Third Party Merchants with respect to fulfilling such Offer, you will remain solely responsible and liable for (a) all your obligations, including financial obligations, under these Terms and (b) all acts and omissions of your Third Party Merchants. You shall require your Third Party Merchants to comply with all applicable restrictions and obligations imposed on you under these Terms, and you will be solely responsible for your financial and contractual relationship with your Third Party Merchants.
2.5 License to Your Content. You hereby grant iZania Market Deals a non-exclusive, worldwide, transferable, irrevocable, perpetual and sub-licensable license to use, copy, distribute, display and perform any trademarks, photographs, graphics, artwork, videos, sound clips, text, and other content or materials that you provide to iZania Market Deals in your Merchant Account or otherwise use to describe your Offer ("your Content") in any and all media or formats in connection with iZania Market Deals’ fulfillment of its rights and obligations under these Terms, including the promotion of Offers and distribution of iZania Market Deals.
2.6 Press Release. iZania Market Deals may, in its sole discretion, include you in any press release regarding the Offers described herein or identify you as a merchant.
Section 3: PAYMENT TERMS
3.1 Generally. Payment terms governing your Offer are as set forth below, unless you have a separate written agreement with iZania Market Deals expressly modifying the terms of your payment. Offers are contained in the applicable contract you entered with iZania Market Deals by accepting the terms and conditions governing your Merchant Account or otherwise.
3.2 Normal Payment Terms. For each iZania Deal sold, you will be paid an amount equal to: the Purchase Value, less a sales commission fee of twelve percent (12%) of the Full Offer Value. iZania Market Deals will pay you the Normal Remittance Amount received within five days of completion of the sales transaction.
3.3 Payment Method. Payments owed to you under Section 3.2 will be made by PayPal, or check and mailed to you at the address in your Merchant Account.
Section 4: TERM AND TERMINATION
4.1 Term. These Terms are effective on the date on which you accept the Merchant Account Terms. These Terms will remain in effect through the expiration of all iZania Deals, unless otherwise earlier terminated as set forth below.
4.2 Termination. iZania Market Deals may terminate these Terms and suspend your access to the Merchant Account immediately upon written notice to you if: (a) you violate your stated obligations with respect to any Offer made by you using iZania Market Deals’ programs and services; (b) you fail to fulfill any iZania Deal for any reason, including but not limited to the sale or dissolution of your business, or (c) you violate any of the material terms of these Terms or any other agreement you have with iZania Market Deals.
4.3 Suspension of an iZania Deal Offer. Notwithstanding anything herein to the contrary, you may cancel or suspend an iZania Deal Offer by contacting us.
4.4 Obligations Upon Termination; Survival of Relevant Provisions. Neither the expiration nor termination of these Terms, nor your suspension or cancellation of any Offer shall in any way affect the rights of buyer of a valid iZania Deal, or modify or eliminate your obligation to fulfill any valid iZania Deal purchase pursuant to its terms. All Terms and any sections of these Terms that are logically intended and required to survive expiration or termination of these Terms to achieve their intent, shall survive without limitation.
Section 5: REPRESENTATIONS AND WARRANTIES
5.1 By Both Parties. Each Party represents and warrants to the other that: (a) it has the power and authority to enter into the Agreement and perform its obligations under these Terms; (b) it is an entity duly organized, validly existing and in good standing under the Laws of its jurisdiction of incorporation or formation; and it is duly qualified to do business and is in good standing in each jurisdiction where the conduct of its business, provision of its goods and/or services, or the ownership of its property requires such qualification; (c) these Terms reflect its legal, valid and binding obligation, enforceable against it; and (d) it shall comply with all Laws applicable to its obligations under the Agreement.
5.2 By you. You represent and warrant to iZania Market Deals that: (a) you and any Third Party Merchant(s), as applicable, (i) are registered for the collection of sales, use and other similar taxes in all states and localities in which goods and/or services will be made available pursuant to the terms and presentation of the iZania Market Deals; and (ii) will collect and remit any and all applicable state or local sales, use, hotel occupancy, and other similar taxes that may apply to the sale of the iZania Market Deals or the supplying of goods or services; (b) your Content, your representations about your business, and your redemption process for iZania Market Deals, do not and will not infringe, misappropriate, or otherwise violate any intellectual property right or right of privacy or publicity of any third party; (c) you hold all necessary Regulatory Documents and Authorization Documents, if any, required to make any Offer and provide the goods or services described therein; (d) you will provide the goods and services made available through any Offer in a manner consistent with industry best practices; and (e) you have all rights necessary to grant the licenses set forth in these Terms.
5.3 NO FURTHER REPRESENTATIONS. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. iZania Market Deals DOES NOT WARRANT OR GUARANTEE THAT (A) ANY OFFER OR iZaniaDeal WILL BE ERROR-FREE; (B) ANY ERRORS, OMISSIONS OR MISPLACEMENTS WILL BE CORRECTED, OR (C) THE OFFER WILL RESULT IN ANY REVENUE OR PROFIT FOR YOU. iZania Market Deals MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE iZania Market Deals SITE OR ANY OTHER PROMOTION, DISTRIBUTION OR REDEMPTION METHOD USED OR PROVIDED BY iZania Market Deals (INCLUDING WITH RESPECT TO ITS UNINTERRUPTED OR ERROR-FREE OPERATION) AND/OR THE ACCURACY, ADEQUACY, RELIABILITY, AVAILABILITY, TIMELINESS, COMPLETENESS, SUITABILITY OR OTHER CHARACTERISTICS OF THE INFORMATION AND MATERIALS CONTAINED ON OR PRESENTED THEREIN. THE iZania Market Deals SITE, AND OTHER PROMOTION, DISTRIBUTION OR REDEMPTION METHODS USED OR PROVIDED BY iZania Market Deals, AND ALL RELATED INFORMATION AND MATERIALS ARE PROVIDED "AS IS", WITHOUT ANY WARRANTY OF ANY KIND, AND ON AN "AS AVAILABLE" BASIS.
Section 6: INDEMNIFICATION
6.1 By you. You, at your sole cost and expense, shall defend, indemnify and hold iZania Market Deals, its affiliated and related entities, and any of their respective officers, directors, agents and employees, harmless from and against any third party claims, lawsuits, actions, proceedings or investigations(collectively, "Claims") from and against any fees, costs, sanctions, penalties, damages, losses or expenses (including but not limited to attorney's fees and costs) (collectively, "Losses") arising out of or relating to any of the following: (a) your or any Third Party Merchant’s (i) fraud, willful misconduct, or gross negligence or (ii) breach or alleged breach of these Terms; (b) any claim for state sales, use, hotel occupancy, or any other similar tax obligations (including any penalties, interest or other additions to tax) arising from the sale of iZania Deals; (c) any claim by any local, state or federal governmental entity for any unclaimed property regarding iZania Deals, including but not limited to, any claims for penalties and interest; (d) the goods and/or services provided by you, including but not limited to, any claims for false advertising, injuries, illnesses, damages, or death; (e) any Offer, including your provision of incomplete or inaccurate or information applicable to such Offer; or (f) your Content; and (g) any infringement, misappropriation, or other violation, of any patent, trademark, copyright, publicity, privacy, trade secret, or other right of any third party by you, your Content, or the use thereof.
6.2 By iZania Market Deals. iZania Market Deals, at its sole cost and expense, shall defend, indemnify and hold harmless you and your officers, directors, agents and employees, from and against any and all Claims brought against any of you arising out of or in connection with (a) iZania Market Deals’ material breach of these Terms or (b) any infringement, misappropriation or other violation of any trademark or copyright of any third party by iZania Market Deals (excluding iZania Market Deals’ use of materials provided or authorized for iZania Market Deals’ use by, you.)
6.3 Indemnification Process. The Party seeking indemnification under this Section 7 shall promptly notify the other Party in writing of any Claim for which it seeks indemnification; provided that such indemnified Party’s failure to timely provide such notice shall not relieve the indemnifying Party of its indemnification obligations unless it can demonstrate actual prejudice as a result of such failure. In the event iZania Market Deals is the indemnifying Party, iZania Market Deals shall have the right to, upon written notice to you, elect to assume control of the defense and settlement of any such Claim, and you will have the right to participate and be represented in the defense of such Claim by your own counsel and at your own expense. You shall not settle any Claim for which you are to be indemnified hereunder without iZania Market Deals’ prior written consent, which consent shall not be unreasonably withheld or delayed.
Section 7: COMPLIANCE WITH LAW AND AUTHORIZATIONS
7.1 General. You will ensure that the terms of any Offer, any Special Instructions, and your activities under the Agreement, including your fulfillment of the iZania Deals, comply with any and all state, federal and local laws, rules regulations, and orders, including the Credit Card Accountability, Responsibility, and Disclosure Act of 2009 and all laws that govern false, unfair and deceptive practices, vouchers, gift cards, coupons, and/or gift certificates (collectively "Laws").
7.2 Health and Safety. You represent and warrant that all goods or services provided in connection with any Offer are safe and comply with all applicable Laws regarding health and safety, fire, and hygiene standards (collectively, "Health Laws"). At iZania Market Deals’ request, you will promptly provide copies of any applicable facility operating license(s), or similar credentials or documents evidencing your and your facility(ies) compliance with the Health Laws. You shall ensure that your facilities and operations remain in compliance with all applicable Health Laws during the term of these Terms. iZania Market Deals reserves the right to immediately terminate its relationship with you, and to refuse to promote your Offer, if it believes you do not fully comply with any or all applicable Health Laws.
7.3 Authorization Documents. You hereby represent and warrant that you have all rights and permissions necessary to provide or use any goods, services, or brands that you do not independently own as part of any Offer and to grant the rights to your Content granted under these Terms. You shall provide iZania Market Deals with letters of authorization or other documentation evidencing such rights and permissions ("Authorization Documents") upon request. Even if iZania Market Deals has accepted your Offer, iZania Market Deals shall have no obligation to promote any Offer until it has received Authorization Documents it reasonably considers to be satisfactory. You shall immediately notify iZania Market Deals if, at any time during the term of the Agreement, you no longer have the same rights and permissions evidenced in the Authorization Documents.
7.4 Regulatory Documents. You hereby represent and warrant that you have obtained all governmental licenses, approvals, and authorizations necessary to provide the goods or services included as part of such Offer. You shall provide iZania Market Deals with copies of licenses, proof of authorization or other appropriate documentation evidencing such regulatory permissions ("Regulatory Documents"), upon request. Even if iZania Market Deals has accepted your Offer, iZania Market Deals shall have no obligation to promote your Offer until it has received Regulatory Documents it reasonably considers to be satisfactory. You shall immediately notify iZania Market Deals if, at any time during the term of the Agreement, you no longer have the same rights and permissions evidenced in the Regulatory Documents.
Section 8: CONFIDENTIALITY
8.1 Confidential Information. Each Party agrees that (i) the terms set forth in your Merchant Account are confidential, (ii) any information designated by the other Party as "confidential," and (iii) any other information that the recipient should reasonably expect to be confidential under the circumstances shall be collectively deemed "Confidential information." Confidential Information does not include information that (a) was, or becomes, publicly known through no action of the receiving Party; (b) is already in the legitimate possession of the receiving Party prior to its disclosure; (c) is obtained by the receiving Party without a breach of any third party’s obligations or violation of Law; or (d) is independently developed by the receiving Party.
8.2 Obligation. Each Party shall take reasonable precautions to protect all Confidential Information, and will only disclose Confidential Information to its employees on a need-to-know basis. You may also disclose Confidential Information to your Third Party Merchants if they have signed a confidentiality agreement that requires them to protect the Confidential Information in at least the same manner specified in these Terms. If a Party is required by Law to disclose the other Party’s Confidential Information, it shall promptly notify the other Party and shall cooperate with the other Party to obtain a protective order or to otherwise limit the disclosure of the Confidential Information.
8.3 Irreparable Harm. Each Party agrees that, in the event of an actual, alleged or threatened breach of its confidentiality obligations established by these Terms, the other Party is likely to suffer immediate and irreparable harm, and may seek a temporary restraining order, injunction or other form of equitable relief without the posting of any bond or other security.
Section 9: INTELLECTUAL PROPERTY RIGHTS; CUSTOMER DATA
9.1 iZania Market Deals IP. You acknowledge that iZania Market Deals owns all right, title, and interest, including all intellectual property rights, in the iZania Market Deals Site, trade name, logos, trademarks, and service marks, and any content, data, software, technology, tools, or business methods used by iZania Market Deals to develop, promote, market, sell, generate, or distribute Offers and iZania Market Deals and otherwise perform under these Terms (collectively the "iZania Market Deals IP"). With respect to any Offer, you may use iZania Market Deals’ name, trademarks, and logos solely to publicize to your customers and potential customers the fact that you are featuring that Offer through a particular Program. This limited right to use iZania Market Deals' branding is applicable only during the period from the start of the Sales Period through the Promotional Value Expiration. Notwithstanding the above, you shall not use or display the iZania Market Deals IP in any manner that states or implies that iZania Market Deals has endorsed or approved the Offer or your products or services. Any use of iZania Market Deals IP shall comply with any iZania Market Deals usage guidelines posted on the iZania Market Deals Site or provided to you from time to time. All goodwill and improved reputation in respect of and associated with the iZania Market Deals IP shall inure to the sole benefit of iZania Market Deals. Except as expressly set forth in these Terms, you have no right, license, title or interest in or to any iZania Market Deals IP, and shall not use, distribute, transfer, copy, download, display, modify, perform or create derivative works of the iZania Market Deals IP without the express written consent of iZania Market Deals. You shall not translate, reverse engineer, decompile or disassemble the iZania Market Deals IP. iZania Market Deals has the right to revoke the rights sets forth in this Section upon written notice to you reserves all rights not specifically granted.
9.2 Customer Data. You acknowledge that iZania Market Deals owns all data collected by, or on behalf of, iZania Market Deals pursuant to these Terms, including all information and data of individuals who purchased iZania Market Deals ("Customer Data"). Subject to applicable Law and in accordance with iZania Market Deals’ policies and procedures, iZania Market Deals shall provide you with access to Customer Data solely to the extent necessary for you to fulfill and/or verify the validity of iZania Market Deals. Except to the extent required by Law or otherwise authorized in writing by iZania Market Deals, you may not use Customer Data for any other purpose. You shall, and shall ensure that any Third Party Merchants you may work with, take commercially reasonable efforts to protect the security of Customer Data and comply with all Laws (and iZania Market Deals’ policies and procedures) relating to the processing of such Customer Data. If you become aware of, or suspect, any unauthorized access to or use of Customer Data, you shall immediately notify iZania Market Deals, and shall cooperate with iZania Market Deals in the investigation of such breach and the mitigation of any damages. You shall bear all resulting costs and expenses incurred by iZania Market Deals to comply with applicable Laws (including without limitation any data breach Laws). Upon termination or expiration of this Agreement, you shall, as directed by iZania Market Deals, destroy or return to iZania Market Deals all the Customer Data in your or your Third Party Merchants possession.
Section 10: LIMITATIONS OF LIABILITY; INSURANCE
10.1 LIMITATION OF iZania Market Deals LIABILITY. iZania Market Deals' SOLE AND COMPLETE LIABILITY TO YOU SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO YOU BY iZania Market Deals PURSUANT TO THESE TERMS PRIOR TO THE DATE THE CLAIM AROSE PER OFFER. IN NO EVENT SHALL iZania Market Deals BE LIABLE TO YOU, ANY THIRD PARTY MERCHANT OR ANY OTHER THIRD PARTY FOR ANY CLAIMS RELATING TO THE USE OF YOUR GOODS AND SERVICES, INCLUDING BUT NOT LIMITED TO CLAIMS RELATING TO FALSE ADVERTISING, INJURIES, ILLNESSES, DAMAGES, OR DEATH. ANY CLAIM ARISING OUT OF OR RELATING TO ANY iZania Market Deals OFFERED MUST BE MADE WITHIN ONE (1) YEAR OF FIRST PUBLICATION OF THE iZania Deal, AND ALL CLAIMS NOT SO MADE SHALL BE DEEMED WAIVED BY YOU.
10.2 NO CONSEQUENTIAL DAMAGES. EXCEPT FOR (A) INDEMNIFICATION OBLIGATIONS HEREUNDER OR (B) EITHER PARTY’S (OR WITH RESPECT TO YOU, YOUR THIRD PARTY MERCHANT’S) (I) VIOLATION OF SECTION 8 (COMPLIANCE WITH LAW AND AUTHORIZATIONS), SECTION 9 (CONFIDENTIALITY), OR SECTION 10 (INTELLECTUAL PROPERTY RIGHTS; CUSTOMER DATA) OR (II) FRAUD, WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, IN NO EVENT SHALL EITHER PARTY BE LIABLE OR OBLIGATED TO THE OTHER PARTY OR ANY THIRD PARTY IN ANY MANNER FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE, OR INDIRECT DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGES IN ADVANCE.
10.3 Insurance. You represent and warrant that you have, and shall maintain at your expense and at all times during the term of these Terms, all types of liability insurance policies, with coverage in amounts that are customary for merchants and/or service providers in your region, consistent with best industry practices, and sufficient to fully comply with applicable Law and fulfill your obligations under these Terms. Upon iZania Market Deals’ request, you shall provide proof of your maintenance of such policies and provide assurances that indicate that iZania Market Deals will be covered by your insurance policies in the event of a claim arising under or in relation to, these Terms or any Offer.
Section 11: Binding Arbitration
11.1 Binding Arbitration. The Parties hereby agree that (a) these Terms and all disputes, controversies, or claims arising out of or relating to these Terms, or the Offer shall be resolved exclusively by final and binding arbitration administered by the American Arbitration Association ("AAA") and conducted before a single arbitrator pursuant to the applicable Rules and Procedures established by AAA ("Rules and Procedures"); (b) the arbitration shall be held at a location determined by AAA pursuant to the Rules and Procedures (provided that such location is reasonably convenient for you), or at such other location as may be mutually agreed upon by you and iZania Market Deals; (c) the arbitrator shall apply Ohio Law consistent with the Federal Arbitration Act and applicable statutes of limitations, and shall honor claims of privilege recognized at law; (d) there shall be no authority for any claims to be arbitrated on a class or representative basis; arbitration will decide only your and/or iZania Market Deals’ individual claims; and the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated; (e) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, iZania Market Deals will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive; and (f) with the exception of subpart (d) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures established by AAA, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subpart (d) is found to be invalid, unenforceable or illegal, then the entirety of this Arbitration Provision shall be null and void, and neither you nor iZania Market Deals shall be entitled to arbitrate their dispute. For more information on AAA and its Rules and Procedures, visit the AAA website at http://www.adr.org.
Section 12: MISCELLANEOUS
12.1 Electronic Communications and Notices. You acknowledge that communications between the Parties often use electronic means. For contractual purposes, you hereby (a) consent to receive communications from iZania Market Deals in an electronic form and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that iZania Market Deals provides to you electronically satisfy any legal requirement that such communications would satisfy if it were be in writing. The foregoing does not affect your statutory rights. Any notice required or permitted hereunder shall be provided in writing, and shall be deemed delivered when (a) delivered by electronic mail to the then-current e-mail address in your Merchant Account, or (b) regardless of whether or not actually received, when deposited in (i) the United States mail, postage prepaid, certified mail, return receipt requested, or (ii) a regional or national overnight courier service, addressed to the applicable Party at the address set forth in your case, in your Merchant Account, and in iZania Market Deals' case, to iZania LLC, P.O. Box 307435, Columbus, OH 43230, with a copy to the attention of the Legal Department.
12.2 Force Majeure. Neither Party shall be liable for any default or delay in the performance of its obligations under these Terms due to acts of God, terrorism, natural disasters, earthquakes, fire, riots, floods, and other similar events, to the extent such event is beyond the reasonable control of such Party and only for the duration of such event.
12.3 Relationship of the Parties. The Parties are independent contractors. Nothing in these Terms shall be deemed or construed by the Parties hereto, nor by any third party, as creating a joint venture, partnership, franchise, or an agency relationship between the Parties. Neither Party has the authority, without the other Party's prior written approval, to bind or commit the other Party in any way. iZania Market Deals is not a vendor or co-vendor of your goods and services.
12.4 Agreement. These Terms constitute the entire understanding between the Parties relating to any Program Offer and your obligations in making such Offer, and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter. No part of these Terms may be amended or modified except by mutual written agreement of the Parties. In the event of a conflict between these Terms and the terms of your Offer, these Terms shall govern.
12.5 Interpretation. The section headings of these Terms are for purposes of reference only and shall not in any way limit or affect the meaning or interpretation of any of the terms hereof. References to a section include references to all subsections of that section.
13.6 Invalidity of a Provision. If any provision of these Terms should be held to be invalid or unenforceable the validity and enforceability of the remaining provisions of these Terms shall not be affected and the Parties shall negotiate an equitable adjustment in the provisions in order to affect, to the maximum extent permitted by Law, the purpose of these Terms.
12.7 Waivers. One or more waivers of any covenant, term or condition of these Terms by either Party shall not be construed as a waiver of a subsequent breach of the same covenant, term or condition.
12.8 Assignment. You may not assign or transfer any of your rights, or delegate any of your obligations, under these Terms without iZania Market Deals' prior written consent, and any attempt to do so shall be void and unenforceable.
12.9 Successors and Assigns; No Third Party Beneficiaries. These Terms shall be binding upon and inure to the benefit of, the Parties and their respective permitted successors and assigns. There are no third party beneficiaries to these Terms, except as expressly set forth herein.