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These Terms and Conditions apply for all merchants that have signed contracts after 28th of February 2010.
For all contracts signed before 1st of March 2010 the following terms and
conditions apply until further notice: Terms
General Terms and Conditions of Business for Online Shops
This Merchant Agreement (the "Agreement") between you _______________["Merchant"] and Pangora GbmH ("Pangora"), with its principal place of business at Neureuter Straße 37a, Karlsruhe, 76185, Germany, governs the relationship between Merchant and Pangora with respect to Merchant’s participation as a vendor on the Pangora Portal Network (as defined below).
Please read this Agreement carefully. Merchant acknowledges that it has read and agrees to be bound by the terms and conditions of this Agreement and the Terms of Use on the Pangora Site located at http://www.pangora.com/en/Merchants/Terms.htm (collectively, the “Terms and Conditions”). Merchant agrees that any of its agents, representatives, employees, or any person or entity acting on its behalf with respect to its use of the Pangora Site, shall be bound by, and shall abide by, the Terms and Conditions. Merchant further agrees that it is bound by the Terms and Conditions whether it is acting on its own behalf or on behalf of a third party, including another merchant.
1. DEFINITIONS.
a. "Pangora Network" means Pangora's network of research and comparison shopping services and shall include all co-branded, syndicated, private label offerings, and/or the Premium Property Network whether operated by Pangora or a third party.
b. “Pangora Site” means Pangora’s corporate website located at http://www.pangora.com and all webpages located within, including “My Pangora” and international pages.
c. "Link" means a text or graphic hyperlink that, when clicked on, takes a visitor from a Pangora related shopping site to the Merchant site.
d. "My Pangora" means the enrollment and account management interface located at http://www.pangora.com/en/startpage.htm or such other URL as may be specified by Pangora.
e. "Merchant Content" means content, including, without limitation, graphics, logos, product information, trademarks, and service marks, provided by Merchant to Pangora for use by Pangora in connection with the Services.
f. "Merchant Site" means Merchant’s owned and operated Web site
g. "Proprietary Technology" means Pangora's proprietary computer programs and software, and all services, methods, processes, data, information, wrappers and other business property created and/or owned by Pangora from time to time.
h. "Services" means the processing of Merchant Content provided by Merchant as a feed for use on the Pangora Network, selected at Pangora's sole discretion, and the provision of Links from selected pages of the Pangora Portal Network to the Merchant Site.
i. "Territory" means worldwide.
j. "User" means an individual human user of the Web.
2. LICENSE.
Merchant hereby grants to Pangora a royalty-free, non-exclusive, perpetual right and license, in the Territory, to
(i) organise, reproduce, publicly display, perform and otherwise use Merchant Content on the Pangora Network (alone or in combination with other Links and works);
(ii) reproduce, transmit, publicly display and/or distribute Merchant Content as part of the Pangora Network;
(iii) develop and operate Links on the Pangora Network that permit Users to access the Merchant Site; and
(iv) use, reproduce, organise and publicly display Merchant’s trademarks, logos, slogans, trade names and service marks in connection therewith. Merchant shall provide the Merchant Content to Pangora in accordance with Pangora’s data feed requirements, as set forth in Pangora’s data feed requirements document (available online at http://www.pangora.com/en/Merchants/FAQs/Guidelines-Integration.htm), which may be revised from time to time as communicated to Merchant by Pangora. Pangora’s right to use data and information (including Merchant Content) that is in the public domain shall not be limited by anything in this Agreement.
3. TERM.
The “Effective Date” of this Agreement shall be the earlier of the first day that Pangora notifies Merchant that it has accepted Merchant’s application to become a Merchant, or products are listed on Pangora Network, and shall continue until this Agreement is terminated either by Merchant or Pangora in accordance with its terms.
4. REPRESENTATIONS AND COVENANTS.
Merchant represents and covenants to Pangora that:
(1) Merchant is duly organised, validly existing and in good standing;
(2) there are no consents or approvals necessary for Merchant to enter into this Agreement;
(3) Merchant is duly qualified and licensed to conduct business, and Merchant has full power and authority to enter into, and perform under, this Agreement;
(4) Merchant has all necessary rights and interests in and to the Merchant Content;
(5) to the best of its knowledge, all Merchant Content shall be accurate;
(6) neither the Merchant Content, the products and/or services offered by Merchant, nor Merchant’s use of any data or information relating to any User violate or will violate the privacy statement of Pangora, any UK regulation, statute or law or European regulation, rule, statute or law;
(7) the Merchant Content shall not contain matter that is libelous, obscene, objectionable or illegal;
(8) Merchant’s performance hereunder and delivery to Pangora of the Merchant Content will not violate any agreement; and
(9) Merchant shall be responsible for offering and selling Merchant’s products and services featured on the Pangora Network, including without limitation, order taking and fulfillment, shipping, transaction processing, invoicing, product returns or replacement, customer service, and payment of any taxes and charges.
5. LIMITATION OF LIABILITY.
Pangora's total liability arising out of this agreement shall be limited to the fees paid by Merchant to Pangora under this Agreement. In no event shall Pangora be liable for any special, consequential, incidental or indirect damages, including lost profits, occasioned by the breach of any obligation under this agreement for any cause whatsoever, whether foreseeable or not, on any theory of liability, and notwithstanding any failure of essential purpose of any limited remedy. The Pangora Network is provided "AS IS." PANGORA MAKES NO WARRANTIES OF ANY KIND, EITHER EXPRESS, IMPLIED OR OTHERWISE, REGARDING THE PANGORA NETWORK, PANGORA SITE OR ITS SERVICES, AND PANGORA DISCLAIMS ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. PANGORA DOES NOT WARRANT OR GUARANTEE THAT THE OPERATION OF THE PANGORA NETWORK NOR PANGORA SITE WILL BE UNINTERRUPTED OR ERROR-FREE. PANGORA DOES NOT MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS DERIVED FROM THE PANGORA NETWORK. PANGORA DOES NOT WARRANT OR GUARANTEE THAT ANY USERS WILL PURCHASE ANY PRODUCTS OR SERVICES FROM MERCHANT. WITHOUT LIMITING THE FOREGOING, PANGORA SHALL HAVE NO LIABILITY HEREUNDER BY REASON OF ANY FAILURE OR DELAY IN THE PERFORMANCE OF ITS OBLIGATIONS ON ACCOUNT OF STRIKES, SHORTAGES, RIOTS, ACTS OF TERRORISM, INSURRECTION, FIRES, FLOOD, STORM, EXPLOSIONS, EARTHQUAKES, INTERNET OUTAGES, COMPUTER VIRUS, ACTS OF GOD, WAR, GOVERNMENTAL ACTION, OR ANY OTHER CAUSE THAT IS BEYOND ITS REASONABLE CONTROL. If Merchant is dissatisfied with the Pangora Network, Pangora Site or with any of the terms and conditions contained herein, Merchant’s sole and exclusive remedy is to terminate its account by providing notice to Pangora.
6. PROPRIETARY RIGHTS.
Merchant understands and agrees that Pangora is the exclusive owner of the Proprietary Technology, including, without limitation, any and all intellectual property or proprietary rights therein. Pangora does not grant to Merchant any right or license, express or implied, in the Proprietary Technology. Merchant acknowledges that Pangora is and shall be the sole owner of all right, title and interest in and to any and all information, data, compilations and processes resulting from Pangora's operation of the Pangora Network and Pangora Site. Pangora does not grant Merchant any right, or any license, express or implied, in the Proprietary Technology.
7. INDEMNIFICATION.
Merchant shall indemnify and hold Pangora harmless from any and all claims, liabilities, judgments, costs, damages and expenses, including reasonable attorneys' fees, arising out of or in connection with
(i) any breach or misrepresentation under this Agreement by Merchant, Merchant’s affiliates, or other persons, or the employees or agents of any of the foregoing;
(ii) the products or services offered or sold by Merchant; and
(iii) the Merchant Content.
8. PAYMENT.
Merchant agrees to pay Pangora all applicable charges to Merchant’s account in British Sterling (GBP), in accordance with the terms of the program and/or payment plan Merchant selected, including, if any, all applicable taxes, in accordance with billing terms in effect at the time the fee becomes payable. Pangora’s general fee structure (the “Fees”) can be found online at www.pangora/ratecard. Merchant also agrees to pay for each Add On Service Merchant elects according to the prices in effect from time to time and posted on the Pangora Site. If Merchant has chosen a payment plan that provides for a fixed maximum payment per month, Merchant understands and agrees that if the Fees equal or exceed Merchant’s monthly maximum payment, then Merchant’s search listings will be removed from the Pangora Network for the remainder of that month. Merchant may pay Pangora by credit card, charge card, debit card, check or wire transfer, however Pangora reserves the right to include or remove payment options at its sole discretion. Merchant represents that all information Merchant provides for the purpose of enrolling as a merchant will be accurate, complete and current. Merchant’s right to access its account with Pangora is subject to any limits established by Pangora. Merchant represents that all information Merchant provides for the purpose of enrolling as a merchant will be accurate, complete and current. Merchant’s right to access its account with Pangora is subject to any limits established by Pangora. If payment cannot be charged to Merchant’s credit/charge/debit card, for whatever reason, or if there is a chargeback for any reason, or if Merchant’s financial institution does not honor Merchant’s cheque, or if Merchant exceeds its monthly maximum payment, Pangora reserves the right to either suspend or terminate Merchant’s account and to charge Merchant a handling fee of £50 for each such instance. Merchant will be assessed a fee for any returned cheques, declined cards, or chargeback requests on Merchant’s account. Suspension or termination includes but is not limited to removal of Merchant’s search listings from the Pangora Site. Merchant shall submit any claims or disputes it may have with respect to any charge to its account in writing to Pangora within thirty (30) days of receipt of the applicable invoice containing such charge. In the event of any failure by Merchant to make payment, Merchant will be responsible for all reasonable expenses (including legal and debt collection agency fees) incurred by Pangora in collecting such amounts.
9. PREPAYMENT PLANS.
a. Pangora may offer prepayment plans at its discretion. There are three available prepayment plans: "One-Time Charge", "Monthly Charge" and "Always On."
b. If Merchant enrolls in the One-Time Charge plan, Merchant’s credit card will be charged for the amount that Merchant has authorised and the Merchant Content will be posted on the Pangora Network. When the Fees and other charges owing to Pangora reach the amount that Merchant has authorised, the Merchant Content will be removed from the Pangora Network and will not be re-listed until Merchant replenishes its account.
c. If Merchant enrolls in the Monthly Charge plan, Merchant’s credit card will be charged the cap amount that Merchant has designated within My Pangora, and the Merchant Content will be posted on the Pangora Network. Once Click-Through Fees and other charges for the month have reached the cap amount, Merchant Content will be removed from the Pangora Network until the beginning of the next month. Merchant will be deemed to have authorised Pangora to automatically charge Merchant’s credit card for the cap amount specified in writing at the beginning of each month, except in the case where Merchant has not exhausted the amount charged for the previous month, in which case Merchant will be charged the difference between the amount remaining in Merchant’s account from the prior month and the cap amount. Pangora will send an e-mail notification after each transaction to notify Merchant that its account has been replenished. Unless Merchant discontinues its enrollment in this plan, Merchant understands that this authorisation is valid until the termination of this Agreement with Pangora or until Merchant’s credit card expires.
d. If Merchant enrolls in the Always On plan, Merchant’s credit card will be charged in the amount specified within Merchant’s My Pangora account and the Merchant Content will be posted on the Pangora Network. Once Merchant’s Fees and other charges have reached the specified amount, Merchant will be deemed to have authorised Pangora to automatically charge Merchant’s credit card for the amount specified by Merchant through My Pangora.
10. ACCESS.
Merchant is authorised to access My Pangora solely to manage its accounts and conduct searches for its own personal use. Merchant agrees that it will not use the site or any content therein for any other purpose and that Merchant will not disseminate or distribute any of this information. Merchant’s right to access its account with Pangora is personal to Merchant and non-assignable and is subject to any limits established by Pangora. Merchant agrees not to use any automated means, including, without limitation, agents, robots, scripts, or spiders, to access its account with Pangora or to monitor or copy the Pangora Site or the content contained therein except by those automated means expressly made available by Pangora, if any, or authorised in advance and in writing by Pangora (for example, Pangora approved third party tools and services). The Pangora Site contains or may contain robot exclusion headers and Merchant agrees not to use any device, software or routine to bypass Pangora’s robot exclusion headers, or to interfere or attempt to interfere with the proper working of the Pangora Site. Without limitation to the foregoing, Merchant further agrees not to take any action that imposes an unreasonable or disproportionately large load on Pangora's infrastructure (as determined by Pangora in its sole discretion).
11. MINIMUM BIDS.
If Merchant is bidding on listings, Merchant’s bids are subject to Pangora’s then current minimum bid requirements for each respective category, as may be determined by Pangora from time to time and posted on the Pangora Site. If Pangora raises the minimum bid requirements for any category, any bids that Merchant has made which were at or above the previous minimum bid amount and which as a result of the increase are below the new minimum bid amount will be automatically raised to the new minimum bid amount.
12 SITE PLACEMENT.
Pangora specifically disclaims any warranty regarding the rank, location and prominence of Merchant Content anywhere on the Pangora Network. Pangora reserves the right to determine whether and where the Merchant Content will be displayed in response to any given search, and Pangora does not guarantee any specific placement on the Pangora Network. Pangora reserves the right to remove Merchant Content at any time for any reason. Pangora also reserves the right, in its sole discretion, to suspend or cease the promotion of Merchant’s site at any time, for any reason.
13. CONFIDENTIALITY.
"Confidential Information" means any information disclosed to Merchant by Pangora or to Pangora by Merchant, either directly or indirectly, in writing, orally, by inspection of tangible objects or by data feed or other electronic means, other than information that the receiving party can establish
(i) was publicly known and made generally available in the public domain prior to the time of disclosure to Merchant by Pangora or to Pangora by Merchant;
(ii) becomes publicly known and made generally available after disclosure to Merchant by Pangora or to Pangora by Merchant through no act of the receiving party;
(iii) was in the receiving party's possession, without confidentiality restrictions, at the time of disclosure by Pangora or by Merchant as shown by files and records immediately prior to the time of disclosure; or
(iv) consists solely of data aggregated with data which is not "Confidential Information" under this Agreement, provided that the aggregated data are presented in a manner that makes it impossible to identify the party or parties to whom the data relate. Neither Pangora nor Merchant shall at any time
(a) disclose, sell, license, transfer or otherwise make available to any person or entity any Confidential Information it receives from the other party;
(b) use any Confidential Information received from the other party for any purpose other than in connection with providing or benefiting from the Services under this Agreement; or
(c) reproduce or otherwise copy any Confidential Information received from the other party, except as necessary in connection with the purpose for which such Confidential Information is disclosed to the other party or as required by applicable law. Each party agrees to take all reasonable measures to protect the secrecy of and avoid disclosure and unauthorised use of the Confidential Information. All Confidential Information shall at all times remain the personal property of the disclosing party and all documents, electronic media and other tangible items containing or relating to any Confidential Information shall be delivered to the disclosing party immediately upon the disclosing party's request.
14. CANCELLATION OR TERMINATION.
Merchant may terminate this Agreement for any reason or no reason upon no less than four weeks' notice to the end of any calendar month written notice to the other party. If Merchant cancels its participation and later re-enters, the provisions of this Merchant Agreement shall continue to apply to Merchant, subject to changes and amendments that have been made according to the procedures explained below. Notwithstanding anything contained in this Agreement to the contrary, Pangora may, in its sole discretion, immediately terminate Merchant’s account, and discontinue Merchant’s participation on the Pangora Network. Reasons for Pangora's determination to so terminate or discontinue Merchant’s account or participation as provided for above include, but are not limited to, if Pangora believes that Merchant violated this Agreement or other policies or guidelines of Pangora or any other party, or if Pangora believes Merchant’s conduct may be harmful to other consumers, merchants or others who use or participate in (or offer to its users) the Pangora Network or Pangora Site. All decisions made by Pangora in this matter will be final and Pangora not shall have any liability with respect to such decisions. Sections 4, 5, 6, 7, 8 and 14 shall survive any termination of this Agreement.
15. REFUNDS.
Merchant will receive a refund only for amounts not charged to Merchants account within thirty (30) days after Merchant cancels its participation pursuant to Section 14 above. Merchant will not receive a refund for any payments made by it to Pangora for prepaid Fees that were unutilised.
16. NOTICES.
Notices (including notice of changes to or termination of this Agreement by Pangora) may be given by email from Pangora. It is Merchant’s responsibility to ensure that its e-mail address and any other contact information is updated and correct. Any e-mail notification which is sent to an expired or invalid e-mail address will be considered to have received by Merchant. Even if Merchant does not receive an e-mail notification, Merchant will be deemed to have received any notice posted in the appropriate section of the Pangora Site or Pangora Network.
17. GOVERNANCE
This Agreement shall be interpreted under the laws of the State of California, USA.
18. DISPUTE RESOLUTION.
Any claim, dispute, or controversy arising out of or relating to this shall be resolved by final and binding arbitration before a single arbitrator (“Arbitrator”) selected from and administered by the American Arbitration Association in accordance with its applicable rules. The arbitration hearing shall be held in Santa Clara County, California. The prevailing party shall be entitled to reimbursement from the other party of its reasonable attorney’s fees, costs, and disbursements arising out of the arbitration. Either Merchant or Pangora may seek interim or preliminary injunctive relief from a court of competent jurisdiction in Santa Clara County, California as necessary to protect the rights or property of Merchant or Pangora pending the completion of any arbitration proceeding.
19. GENERAL.
a. This Agreement constitutes the entire and exclusive and final statement of the agreement between Merchant and Pangora with respect to the subject matter hereof, and governs Merchant’s use of the Services, superseding any prior agreements or negotiations between Merchant and Pangora with respect to the subject matter hereof.
b. Pangora’s failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found to be invalid by either a court of competent jurisdiction or the Arbitrator, Merchant and Pangora nevertheless agree that the court or the Arbitrator should endeavor to give effect to Merchant’s and Pangora’s intentions as reflected in this provision, and that the other provisions of the Agreement remain in full force and effect. MERCHANT AGREES THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO USE OF THE SERVICES OR THIS AGREEMENT MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED. The section titles in the Agreement are for convenience only and have no legal or contractual effect. Sections 1, 5, 6, and 16 shall survive any expiration or termination of the Agreement.
c. This Agreement is not intended to benefit, nor shall it be deemed to give rise to, any rights in any third party.
d. Pangora may change this Agreement at any time upon notice published on the Pangora Site or by e-mail notification to Merchant. Any use by Merchant of the Pangora Site after the effective date of such change shall be deemed to be continued acceptance of this Agreement including its amendments and modifications.
e. Pangora reserves the right to discontinue offering the Services at any time.