Effective February 1, 2022
This website (the “Brand Portal”) is a part of the retail platform for users and brand customers owned and operated by Leap Services, Inc. (referred to herein as “Leap” or “WE,” “US,” or other forms thereof).
THIS BRAND PORTAL USER TERMS & CONDITIONS IS A BINDING LEGAL AGREEMENT (THE “AGREEMENT”) BETWEEN YOU AND LEAP.
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE BRAND PORTAL.
THIS AGREEMENT INCLUDES INFORMATION ABOUT LEAP’S RIGHT TO GOVERN YOUR USE OF THE BRAND PORTAL, AND RELATED SYSTEMS AND TECHNOLOGIES (INCLUDING, WITHOUT LIMITATION, PERSONAL INFORMATION AND DATA DERIVED THEREFROM). IF YOU ARE NOT WILLING TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT EXECUTE THIS AGREEMENT, AND DO NOT USE OR ACCESS (OR CONTINUE TO USE OR ACCESS) THE BRAND PORTAL.
IF YOU AGREE TO THIS AGREEMENT ON BEHALF OF AN ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY TO THIS AGREEMENT. IN THAT EVENT, “YOU” AND “YOUR” WILL REFER AND APPLY TO THAT ENTITY.
WE MAY FROM TIME TO TIME AMEND, SUPPLEMENT OR MODIFY THE AGREEMENT. IF WE MAKE MATERIAL CHANGES TO THE AGREEMENT, WE WILL POST AN UPDATED VERSION OF THE AGREEMENT OR COMMUNICATE NOTICE OF THE CHANGES TO YOU IN ANOTHER MANNER. NOTWITHSTANDING THE FOREGOING, IT IS YOUR RESPONSIBILITY TO CHECK THE AGREEMENT PERIODICALLY FOR CHANGES.
If you enter into a subsequent agreement with Leap (e.g. an Insertion Order Terms and Conditions Agreement), this Agreement will be incorporated into and supplement such subsequent agreement. If there is a conflict between the provisions of this Agreement and the subsequent Agreement, and unless otherwise expressly agreed by the parties in writing that specific terms of this Agreement shall supersede specific provisions of the subsequent agreement, then the provisions of the subsequent agreement shall prevail.
1. License Grant
Subject to the terms and conditions of this Agreement, Leap hereby grants to you a nonexclusive, nontransferable, limited license during the term of this Agreement to access and use the Brand Portal under the terms and conditions of this Agreement (the “License”).
a. The License shall terminate after twelve (12) months from the date of when you first register on the Brand Portal.
b. The License may be renewed for successive twelve (12) month terms (each a “Renewal Term”), subject to the terms and conditions of this Agreement, including the payment of any applicable fees.
2. Your Brand Portal Account, Your Content, and Personal Information
To use the Brand Portal, you must register for an account, and will either select or will be issued a username or similar identifier such as a unique number and password or pin (“Login Credentials”). You are responsible for safeguarding your Login Credentials. You, and not Leap, are responsible for any
activity occurring through your Login Credentials, whether or not you authorized such activity. If you become aware of any unauthorized access through your Login Credentials, you agree to notify Leap immediately. Your Login Credentials may not be shared and may only be used by you.
You agree to provide us with accurate and complete information required to register for the Brand Portal and at other times as required in connection with using the Brand Portal (“Registration Information”). You also agree to maintain and update your Registration Information as necessary to keep it accurate, current and complete.
When using the Brand Portal, you may also submit, provide or otherwise upload certain information, text, data, materials, or other content on or through the Brand Portal (the “User Content”). You retain all rights to any User Content you submit or provide. When you provide User Content, you agree to grant Leap a worldwide, non-exclusive, royalty-free license (with the right to sublicense) the User Content, to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Personal Information solely in connection with Leap’s services, including assessing any potential business relationships with you as a Brand Customer, and, to operate and improve the Brand Portal.
3. Proper Use of the Brand Portal
By using the Brand Portal, you further agree that:
• You will at all times comply with applicable law in accessing the Brand Portal and any Information;
• You shall not upload or transmit to the Brand Portal any materials that infringe upon or violate any intellectual property rights of others, or any copyrighted or other proprietary materials without the necessary rights and permissions from the owner or any licensee of the copyrighted and proprietary materials;
• You will use the Brand Portal in strict accordance with all terms and conditions of this Agreement;
• You will comply with and refrain from violating applicable laws, including, but not limited international, federal, state or local privacy laws;
• You will not post or transmit any content that is unlawful, threatening, libelous, harassing, defamatory, vulgar, obscene, pornographic, profane, invasive of another’s privacy, or otherwise objectionable content;
• You will not use the Brand Portal to commit a criminal offense or to encourage others to conduct what would constitute a criminal offense or give rise to any civil liability;
• You will not use the Brand Portal to impersonate other persons or entities;
• You will not use the Brand Portal to upload any content that contains a software virus, “Trojan Horse” or any other computer code, files, or programs that may alter, damage, or interrupt the functionality of the Brand Portal or the hardware or software of any other person or entity;
• You will not alter, damage, or delete any content posted on the Brand Portal;
• You will not claim a relationship with or speak for any business, association, or other organization for which you are not authorized to claim such a relationship;
• You will not post or transmit any unsolicited advertising, promotional materials, or other forms of solicitation; and
• You will not post any information which you know to be, or have reason to believe is, inaccurate or materially misleading.
4. Protection of the Brand Portal
Except for any User Content, you acknowledge that materials and functionality available within the Brand Portal are protected by copyrights, trademarks, service marks, patents, trade secrets and/or other proprietary rights (“Intellectual Property”) and are owned by Leap or are used by permission. Except as Leap 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 derivatives of the Brand Portal. All trademarks used within the Brand Portal are the property of their respective owners and are used by permission. Except for your Personal Information (including Registration Information), all Information on the Brand Portal are the proprietary property of Leap, and title to the Information and all intellectual property rights protecting the Information remains with Leap.
5. Confidentiality and Non-disclosure
When you provide Confidential Information (defined below) to Leap, you grant Leap a worldwide, non exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Confidential Information in any and all media or distribution methods (now known or later developed), solely in connection with evaluating a business relationship with you.
You may be enabled to obtain and submit certain confidential information from/to the Brand Portal (the “Confidential Information”). For clarity, Confidential Information includes: (a) information that: (i) is marked “Confidential”, “Proprietary” or similarly; (ii) a party identifies as Confidential Information when disclosed or within a reasonable time afterwards; or (iii) the recipient knows, or should know, to be confidential or proprietary of the disclosing party; (b) all information received by a party relating to inventions, discoveries, developments, improvements, disclosures, processes, systems, methods,
devices, patents, patent applications, trademarks, intellectual properties, know-how, trade secrets, instruments, materials, products, programs, techniques, designs, research/development activities and plans, data, compilations, results, specifications, computer programs/code (object or source), costs of production, prices, financial data, sales volumes, promotional methods, marketing plans/strategies, clinical plans, business opportunities, vendors, customer lists, employee information or financial statements; or (c) any non-public personal information of any customer or applicant received by a party from the disclosing party.
Confidentiality Obligations. When a party discloses information (the “Discloser”) to the other party (the “Recipient”), they both agree as follow. Recipient shall:
(a) hold Confidential Information in the strictest confidence;
(b) handle Discloser’s Confidential Information in a manner that is fully compliant with Discloser’s obligations (to the extent any apply) with respect to Confidential Information under Title V of the Gramm-Leach-Bliley Act and any implementing regulations thereunder, including but not limited to applicable limits on the use, disclosure, storage, safeguarding and destruction of Confidential Information;
(c) disclose Confidential Information only to those Recipient personnel who have a need to know such Confidential Information, provided Recipient: (i) informs such personnel of the confidential nature of the Confidential Information; (ii) takes commercially reasonable steps to ensure that such personnel do not violate the Agreement’s confidentiality provisions; and (iii) notifies Discloser immediately if any such personnel violates or intends to violate the provisions of this Agreement (Recipient shall be liable for the acts or omissions of Recipient personnel in breach of this Agreement);
(d) not reverse engineer, disassemble or decompile any prototypes, software or other tangible objects embodying the Confidential Information;
(e) not make any copies of the Confidential Information unless previously authorized in writing by Discloser;
(f) reproduce all proprietary rights and/or confidentiality notices on all copies in the same manner as on the original; and
(g) use its best efforts and precautions to protect and maintain the confidentiality of the Confidential Information, which precautions shall be at least equivalent in scope and effect to the measures taken by Recipient to protect its own confidential or proprietary information of a like or similar nature, but in no case with less than a reasonable degree of care.
Exclusions. Recipient is not obligated under this section regarding any specific Discloser information that: (a) was publicly known and/or made generally available in the public domain prior to the time of disclosure to Recipient; (b) was generally available to the public following disclosure to Recipient through no wrongful act or omission by Recipient or anyone to whom the Recipient disclosed such information; (c) Recipient rightfully possessed without any duty of nondisclosure prior to disclosure to Recipient (as shown by Recipient’s files and records); (d) was independently developed by Recipient without use of or reference to Confidential Information received by Recipient (as shown by Recipient’s
documents and other competent evidence); (e) Recipient rightfully obtained such information from a third party permitted to disclose it; or (f) Recipient disclosed under Discloser’s prior written approval.
To the extent you are using/operating the Brand Portal for the purposes of seeking a potential business relationship with Leap, and submitting to Leap’s evaluation of you in pursuit of such a business relationship, you agree as follows:
• Leap shall have absolute and sole discretion at evaluating and assessing a business relationship with you;
• Leap is not obligated, and nothing in this Agreement shall be construed as an obligation to enter into any business relationship with you; and
• Leap shall not be held liable for any actions, omissions, decisions, it makes with respect to you (or your organization); and
• Leap does not make any commitment for any minimum or maximum amount of goods or services to be requested or compensated under this Agreement.
You acknowledge and agree that any certain features of this Brand Portal, and/or subsequent business relationships, engagements, or other endeavors with Leap may be subject to additional and/or separate terms, conditions and disclaimers in addition to this Agreement, and you agree that your use of such features or, participation, engagement, or relationship with Leap will be subject to such additional terms, conditions and disclaimers.
7. Disclaimer of Warranties
YOUR USE OF THE BRAND PORTAL IS AT YOUR SOLE RISK UNLESS OTHERWISE EXPLICITLY STATED. THE BRAND PORTAL IS PROVIDED ON AN “AS IS” “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS. LEAP DISCLAIMS ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES OF ANY KIND, INCLUDING ANY IMPLIED CONDITION OR WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT. LEAP MAKES NO REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES AS TO THE USEFULNESS, QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF THE BRAND PORTAL, ANY CONTENT ON THE BRAND PORTAL, OR ANY THIRD PARTY CONTENT.
YOU ASSUME ALL RISK FOR ANY DAMAGE OR LOSS OF DATA THAT RESULTS FROM USING THE BRAND PORTAL, INCLUDING ANY OF YOUR CONFIDENTIAL INFORMATION YOU SUBMIT.
LEAP DOES NOT HAVE ANY OBLIGATION TO VERIFY THE IDENTITY OF THE PERSONS LOGGING INTO OR REGISTERING TO USE THE BRAND PORTAL, NOR DOES IT HAVE ANY OBLIGATION TO MONITOR THE USE OF THE BRAND PORTAL BY OTHER USERS; THEREFORE, LEAP DISCLAIMS ALL LIABILITY TO YOU OR ANY THIRD PARTY ARISING OUT OF INACCURATE INFORMATION, FRAUD, NEGLIGENCE, OR WILLFUL MISCONDUCT THROUGH THE BRAND PORTAL, OR ANY OTHER INAPPROPRIATE USES OF THE BRAND PORTAL.
8. Limitation of Liability; Your Indemnification of Us
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE CONTENTS OF THIS SECTION MAY NOT APPLY TO YOU.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, LEAP, ITS EMPLOYEES, MEMBERS, MANAGERS, OFFICERS, DIRECTORS, SHAREHOLDERS, AFFILIATES, SERVICE PROVIDERS, LICENSORS, AGENTS, OR ANY OF THEIR HEIRS OR ASSIGNS (THE “LEAP PARTIES”), SHALL NOT BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE BRAND PORTAL OR ITS USE, EVEN IF LEAP OR ANY OF THE OTHER LEAP PARTIES HAS PREVIOUSLY BEEN ADVISED OF, OR REASONABLY COULD HAVE FORESEEN, THE POSSIBILITY OF SUCH DAMAGES, HOWEVER THEY ARISE.
ORDINARY CAP. Notwithstanding anything to the contrary in this Agreement and subject to the remainder of this Section 8, neither party’s aggregate limit on monetary damages shall exceed an amount equal to twelve times (12x) the average ongoing monthly fees paid or payable to Leap by you during the twelve (12) months preceding such claim (the “Ordinary Cap”).
EXTRAORDINARY CAP. As an exception to the Ordinary Cap, if damages arise from a breach of Section 5 (Confidentiality) based on negligence or willful misconduct, the Ordinary Cap will be increased by an additional twelve times (12x) the average ongoing monthly fees paid or payable to Leap by you during the twelve (12) months preceding such claim.
FOR THE AVOIDANCE OF DOUBT, IN NO CASE SHALL EITHER PARTY’S AGGREGATE LIMIT ON MONETARY DAMAGES UNDER THIS AGREEMENT EXCEED AN AMOUNT EQUAL TO 24 TIMES THE AVERAGE MONTHLY ONGOING SERVICES FEES PAID OR PAYABLE TO LEAP BY YOU DURING SUCH CALENDAR YEAR FOR ALL SERVICES.
YOU AGREE AT OUR REQUEST TO DEFEND, INDEMNIFY AND HOLD LEAP AND THE LEAP PARTIES HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES, COSTS, LOSSES, AND OTHER LIABILITIES, INCLUDING WITHOUT LIMITATION REASONABLE ATTORNEY, EXPERT WITNESS, AND OTHER PROFESSIONAL FEES, ARISING FROM ANY CLAIMS, ACTIONS OR DEMANDS THAT ARISE OUT OF OR RELATE TO (OR ARE ALLEGED TO ARISE OUT OF OR RELATE TO): (A) YOUR USE OF THE BRAND PORTAL INCLUDING YOUR PROVISION OF INFORMATION OR OTHER MATERIALS OR CONTENT TO THE BRAND PORTAL; (B) YOUR VIOLATION OF ANY PROVISION OF THIS AGREEMENT; OR (C) YOUR VIOLATION OF ANY APPLICABLE LAW, RULE, REGULATION, INTELLECTUAL PROPERTY OR OTHER THIRD PARTY RIGHTS IN CONNECTION WITH YOUR USE OF THE BRAND PORTAL OR ANY USER CONTENT. LEAP MAY IN ITS SOLE DISCRETION AND AT ANY TIME, EVEN AFTER COMMENCEMENT OF THE DEFENSE, ASSUME CONTROL OF THE DEFENSE OF ANY THIRD PARTY CLAIM THAT IS SUBJECT TO INDEMNIFICATION BY YOU. YOU AGREE TO PROVIDE ALL REASONABLE COOPERATION AND ASSISTANCE IN DEFENSE OF SUCH CLAIMS.
9. Termination of Service
Leap reserves the right, at our sole discretion, to terminate any and all access to the Brand Portal provided to you at any time without notice for any reason. Leap also reserves the right, at our sole discretion, to discontinue any service or modify any part of the Brand Portal or any service we provide under this Agreement without notice, at any time, and without liability. Leap reserves the right, at our sole discretion, to terminate services provided to you, access to any and all parts of the Brand Portal, and to deactivate your Leap Account Login Credentials. We shall not be liable to you or any third party if
we terminate your account, and you agree to hold us harmless and indemnify us from any third party claims arising from the termination of your account, except as may be required by applicable law, and any refunds or compensation of any sort will be at Leap’s sole discretion. You agree that any material
breach of this Agreement will result in irreparable harm to Leap for which damages would be an inadequate remedy and, therefore, in addition to its rights and remedies otherwise available at law, Leap will be entitled to equitable relief, including both a preliminary and permanent injunction, if such a breach occurs. You waive any requirement for the posting of a bond or other security if Leap seeks such an injunction.
10. Controlling Law; Venue; Service of Process
All disputes, claims or controversies arising out of or relating to this Agreement or the negotiation, validity or performance of this Agreement shall be governed by and construed in accordance with the laws of the State of Illinois without regard to its rules of conflict of laws. Each of the parties hereby exclusively designates the courts of the State of Illinois and of the United States located in Cook County, Illinois (the “Illinois Courts”) as courts of proper jurisdiction and venue for any litigation arising out of or relating to this Agreement, or the negotiation, validity or performance of this Agreement (and agrees not to commence any litigation thereto except in such courts), waives any objection to the laying of venue or jurisdiction of any such litigation in the Illinois Courts and agrees not to plead or claim in any Illinois Court that such litigation brought therein has been brought in any inconvenient forum, except that either party may seek equitable relief in any court of competent jurisdiction in relation to any intellectual property rights, confidentiality obligations or restrictive covenants.
11. Entire Agreement
This Agreement contains the full understanding between the parties and supersedes all prior representations or agreements, whether oral or written, with respect to such matters. If any provision of the Agreement is held invalid by any law or regulation of any government, or by any court, the parties agree that such provision will be replaced with a new provision that accomplishes the original business purpose, and the other provisions of the Agreement will remain in full force and effect.
12. California Privacy Rights
—- For Prospective Brand Customers —
You may be using the Brand Portal in connection with seeking a business relationship with Leap as a Brand customer (“Brand Customer”). The following additional terms apply to you.
13. Agreement To Provide Accurate Information
In making a business inquiry, application or in entering into any other transaction or request for information on this Brand Portal, you agree to provide accurate, true, current, and complete information, all of which shall be deemed as part of your User Content, upon which Leap may rely.
Leap generally begins processing your application upon the submission of a full and complete application. If you submit an application, you agree to cooperate in the application process (including submitting all required documentation in a timely manner). In addition, you agree to notify Leap of any changes in any information submitted in connection with your application.
15. Reasonable Efforts
While Leap will use all of its reasonable efforts to have your application fully processed in reasonable time, some process take additional time, beyond Leap’s control. Leap cannot be responsible for delays in application processing due to the untimely receipt of required documentation or any other matters beyond Leap’s reasonable control.
16. No Guarantees or Exclusivity
By submitting an application as a prospective Brand Customer or providing any User Content, you acknowledge and agree that Leap makes no guarantees or makes any assurances about the acceptance of your application. Leap reserves the right to make all decisions about any application, at Leap’s sole and absolute discretion, and without any liability or obligation to you.
Unless agreed to in writing, Leap does not make any guarantees of exclusivity in any particular market segment.
17. Return of Data
At your request, Leap will return all of your information (including any applicable User Content), except to the extent Leap has a legal obligation or is required under law to maintain such information.