Terms of Service

Please read carefully the following terms and conditions (the “Terms”, or the “Terms of Service”), before using WebCollage Content Publisher (the “Service”). By registering or using the Service you agree to follow and be bound by the Terms. If you do not agree with the Terms, you may not use the Service.

Please note that these Terms of Service shall replace and supersede any separate terms and conditions contained in any click-through use agreement you may assent to while accessing the Service.

The Terms apply to manufacturers, as well as retailers (collectively “Manufacturers” or “you”), that may use the Service or be affected by the Service, directly or indirectly.

You affirm that you are 18 years of age or older. If you are under 18 years of age you may not use the Service on behalf of yourself or any manufacturer, Channel Partner or third party, and you must not provide WebCollage with any of your personal details.

The Service permits Manufacturers to submit, update, deploy, distribute and publish Content across Wal-Mart Stores, Inc.’s (the “Channel Partner”) websites. “Content” may include, but is not limited to, product marketing information, Flash demos, videos, text, images, and other assets.

By accessing and using the Service, you represent, warrant and covenant that: (1) you are the owner of all rights in and title to the Content you offer through the Service, or you are legally authorized or licensed by the owners of the Content to use and allow the use of the Content under the Terms; (2) you will not use the Service to display, distribute or offer for use unlawful content, or content the publication of which is prohibited under any applicable law, including by court injunctions or restraining orders; (3) the Content you offer through the Service and the use of the Content under the Terms do not breach any duty toward or infringe any rights of any person or entity including, without limitation, intellectual property rights, the right of publicity, the right to privacy, or rights or duties under consumer protection, product liability, tort, or contract theories, or constitute libel, slander or defamation, or include material which is obscene, pornographic, or adult-oriented; (4) you are solely and exclusively responsible for the Content that you upload to the Service, and you shall make all reasonable efforts to verify that such Content is accurate, up-to-date and lawful ; and (5) you are duly authorized to enter into these Terms of Service and to perform your duties and obligations hereunder.

You agree to: (1) comply, at your expense, with all statutes, regulations, rules and ordinances of any governmental body, department or agency which apply to or result from your obligations under these Terms; (2) take full account for all acts or omissions associated with your access or use of the Service; (3) comply with all instructions and technical specifications provided by WebCollage to enable the proper functionality of the Service; and (4) communicate your requests, queries and other submissions with respect to the access or use of the Service, directly and only to WebCollage.

By submitting Content to a product detail page, you represent and warrant that you are the product owner or that you have received authorization from the product owner to submit such Content. You will submit Content only to the product detail pages which correspond to such Content. You will not: (1) interfere with, circumvent, manipulate or disrupt the operation or the functionality of the Service; (2) use robots, crawlers and similar applications to collect and compile content of any kind from the Service; (3) link to elements or components of the Service, independently from the web pages on which they originally appear, or display the Service or any part thereof in an exposed or concealed frame, without WebCollage’s prior explicit and written consent; (4) impersonate any person or entity, or make any false statement with respect to your identity, employment, agency or affiliation with any person or entity.

Registration and User account

When you register with the Service, WebCollage may ask you to provide certain contact and personal details. You must submit only true, complete and accurate details. False, incorrect, or outdated information may prevent you from registering, and may further impair WebCollage’s ability to provide you with the Service and contact you. WebCollage will indicate the fields for mandatory completion. If you do not enter the requisite data in these fields, you will not be able to register with the Service.

To log in, you must use your e-mail address and password. From time to time, WebCollage may establish and require additional or different means of identification and authentication for logging in and accessing the Service.

You agree to maintain your password in absolute confidentiality and refrain from disclosing the password to others. You assume full responsibility for any outcome of your failure to provide true, accurate and complete details in the course of the registration process, or your conveyance of your log in details to a third party.

You may terminate your account at any time, by sending a written notification through e-mail to: helpdesk@webcollage.com. We may require you to verify your termination notice by sending us an additional termination request message, either by e-mail or through any other means, as a prerequisite for terminating your account. Your account will terminate 10 days following your notification, and from that date of termination you will no longer be able to access your account.

Notwithstanding any remedies that may be available to WebCollage under any applicable law, WebCollage may temporarily or permanently deny, limit, suspend, or terminate your account, remove Content from the Service, and take technical and legal steps to keep you off the Service, if WebCollage believes that: (1) you have abused your rights to use the Service; (2) you have breached the Terms; or (3) you have performed any act or omission which is harmful or likely to be harmful to WebCollage, or to any third party, including other retailers or manufacturers. WebCollage may send you a notice within a reasonable period of time prior to the termination or suspension of your account.

Registration for and use of the Service may require payment of registration fees and/or ongoing service fees.

Furthermore, you acknowledge that the Channel Partner may prevent Content from being deployed or syndicated to its website due to factors determined by Channel Partner that are beyond WebCollage’s control.

Traffic reports

As part of the Service, WebCollage will provide you and Channel Partner with reports on the extent of shoppers’ traffic related to Content made available through Channel Partners’ web sites (“Traffic reports”). WebCollage will determine, in its sole discretion, the type and scope of details in the Traffic reports and may change the availability of the Traffic reports and the details included therein, without notice. Although WebCollage makes considerable efforts to provide accurate and up-to-date information, the Traffic reports may include errors and inaccuracies. You must keep the Traffic reports in strict confidence and use them for internal purposes only.

WebCollage may use third party cookies, clear gifs and other technological measures to monitor shoppers’ traffic with respect to Content, and produce the Traffic reports. By using the Service, you acknowledge your duty to provide your website users an appropriate notice of the use of these measures to collect traffic data and acknowledge that WebCollage shares related Traffic reports with applicable manufacturers and third-parties operating on behalf of thereof. WebCollage will not use the production of Traffic reports to track or collect personally identifiable information of shoppers.

Intellectual property

All Content published through the Service may be subject to copyright and other intellectual property rights. You represent and warrant that you will abide by all applicable laws and all copyright notices, restrictions and signs indicating proprietary rights, such as a copyright mark [©] or trademark [® or ™] contained in, applied to, or accompanying the Content through the Service.

By submitting Content to the Service, you grant WebCollage a royalty free, worldwide, non-exclusive, license to use the Content, including distributing, displaying and performing the Content publicly through the Service, on Channel Partner’s websites, and on WebCollage’s computer servers, retaining back up, cached and archived copies of the Content and using the Content in any other reasonable manner in connection with providing the Service.

In addition, by publishing Content in a designated Channel Partner’s workspace on the Service, you grant the Channel Partner and its affiliates a royalty free, worldwide, non-exclusive license to use all or a portion of the Content in any medium for its business purposes in connection with the promotion and sale of the product(s) referred to in such Content.

As between you and WebCollage, all rights, title and interest, including patents, copyrights, trademarks, trade names, service marks, trade secrets and other intellectual property rights, and any goodwill associated therewith, in and to the Service, including computer code, graphic design, lay-out and the user interfaces of the Service are owned by, or licensed to WebCollage.

Other than as expressly permitted in the Terms, you may not copy, distribute, display or perform publicly, sublicense, decompile, disassemble, reduce to human readable form, execute publicly, make available to the public, adapt, make commercial use, process, compile, translate, sell, lend, rent, reverse engineer, combine with other software, modify or create derivative works of any material that is subject to WebCollage’s proprietary rights, including the Service’s computer code, graphic design, lay-out and user interfaces, the Traffic reports and any third parties’ proprietary rights in the Service, either by yourself or by a third party on your behalf, in any way or by any means, including, but not limited to by electronic, mechanical or optical means.

You shall not use any of the computer code, graphic design, layout and user interfaces (collectively, “Features”) of the Service, or the results obtained from the Features (including, but not limited to, visual designs, Content files, HTML code), outside of the Service. WebCollage is the sole owner of the Service, the Features and all associated intellectual property rights.

WebCollage retains all trademark or service mark rights in the Service, and all applicable marks and logos, whether registered or not. You may not adapt or use otherwise any name, mark or logo that is identical, or confusingly similar to any of these marks and logos. You may not dilute or tarnish the goodwill of WebCollage or its marks and logos.

You grant WebCollage a royalty free, worldwide non-exclusive license to use your name, trade marks, service marks and logos on the WebCollage network, and in presentations, customer lists, financial reports, website listings of customers, press releases and marketing materials.

Requests to remove Content

WebCollage respects the intellectual property rights of others. Any requests to remove copyright infringing content from the Service, or counter requests to repost content, on grounds of mistake or misidentification of the content, must be made in accordance with the Copyright Policy.

You agree that WebCollage may remove Content that you have submitted to the Service.

Data retention

At all times, WebCollage may review, retain and disclose any information and communications as may be deemed necessary to satisfy any applicable law, regulation, legal process or governmental request. However, by doing so WebCollage does not either expressly or impliedly endorse, affirm or in any manner assume any responsibility for such information and communications.

Privacy

WebCollage respects your privacy. The Privacy Policy explains WebCollage’s privacy practices. WebCollage may modify the Privacy Policy from time to time. Whenever you express your consent to the Terms and any amendments made to the Terms, you also acknowledge your consent to the Privacy Policy, as modified from time to time.

Links to other sites

The Service may contain links to websites and other online sources of third parties (collectively: “Third party Services”). WebCollage does not operate or monitor Third party Services. You may find them or the information and content available therein not compatible with your requirements, or you may object to their content, or find it to be annoying, improper, unlawful or immoral. By linking to Third party Services, WebCollage does not endorse or sponsor their content or confirm their accuracy, credibility, authenticity, reliability, validity, integrity, or legality. WebCollage does not assume any responsibility or liability for the Third party Services.

NO WARRANTY

THE SERVICE IS PROVIDED FOR USE WITH ALL FAULTS, “AS IS” AND “AS AVAILABLE”. WEBCOLLAGE DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, NON-INFRINGEMENT, TITLE, COMPATIBILITY, PERFORMANCE, SECURITY OR ACCURACY.

WEBCOLLAGE DOES NOT WARRANT OR GUARANTEE ANY OUTCOME FROM YOUR USE OF THE SERVICE, INCLUDING WITHOUT LIMITATION, THE IMPACT OF USING THE SERVICE ON YOUR REVENUE.

WebCollage does not warrant or guarantee that any Content that you wish to be submitted to and displayed by the Service, will be submitted or displayed, either temporarily, or indefinitely

WEBCOLLAGE DOES NOT WARRANT THAT THE SERVICE WILL OPERATE IN AN UNINTERRUPTED OR ERROR-FREE MANNER OR THAT THE SERVICE WILL ALWAYS BE AVAILABLE OR FREE FROM ALL HARMFUL COMPONENTS, OR ERROR, OR THAT THE SERVICE WILL BE IMMUNE FROM UNAUTHORIZED ACCESS, OR THAT TRAFFIC REPORTS WILL BE FREE FROM ERRORS AND INACCURACIES. THE USE OF THE SERVICE IS MADE AT YOUR OWN DISCRETION AND ENTIRELY, OR AT THE MAXIMUM PERMITTED BY THE APPLICABLE LAW, AT YOUR OWN RISK.

LIMITATION OF LIABILITY

WEBCOLLAGE, INCLUDING OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, SUB-CONTRACTORS AND AGENTS OF WEBCOLLAGE DISCLAIM LIABILITY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FOR ANY DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGE, OR ANY OTHER DAMAGE, AND LOSS (INCLUDING LOSS OF PROFIT AND LOSS OF DATA), COSTS, EXPENSES AND PAYMENTS, EITHER IN TORT, CONTRACTUAL, OR IN ANY OTHER FORM OF LIABILITY, ARISING FROM, OR IN CONNECTION WITH THE USE OF, OR THE INABILITY TO USE THE SERVICE, OR IN CONNECTION WITH ANY FAILURE, ERROR, OR BREAKDOWN IN THE FUNCTION OF THE SERVICE, ANY FAULT, OR ERROR MADE BY THE WEBCOLLAGE STAFF OR ANYONE ACTING ON WEBCOLLAGE’S BEHALF, ANY COMMUNICATION WITH WEBCOLLAGE, ANY DENIAL, CANCELATION OR REVOCATION OF YOUR USER ACCOUNT, ANY CONSEQUENCES RELATING TO THE USE OF ANY APPLICATION, COMPUTER CODE AND OTHER TECHNOLOGICAL MEANS PROVIDED BY THE SERVICE, OR USED BY WEBCOLLAGE TO PROVIDE AND ADMINISTER WEBCOLLAGE’S SERVICES, ANY RETENTION, DELETION, DISCLOSURE AND ANY OTHER USE OR LOSS OF YOUR CONTENT OR PERSONAL DETAILS.

Indemnification

You agree to indemnify, defend and hold harmless, WebCollage and Channel Partner, as well as their respective managers, directors, shareholders, employees, sub-contractors and agents, at your own expense and immediately after receiving a written notice from WebCollage or Channel Partner, from and against any damages, loss, costs, expenses and payments, including reasonable attorney’s fees and legal expenses, resulting from any complaint, claim, or demand, arising from, or in connection with your use of the Service, or your breach of the Terms, or your infringement of third parties’ rights, including intellectual property rights.

Changes in the Service

From time to time, WebCollage may change the Service or the layout, design or display of the Service, as well as the scope and availability of the information accessible therein, without giving prior notice. Changes of this type by their very nature may cause inconvenience or even malfunctions at first. WebCollage does not assume any responsibility with respect to, or in connection with the introduction of such changes or from any malfunctions or failures that may result therefrom.

Changes to the Terms

WebCollage may change the Terms, including any and all documents, forms and policies incorporated thereto, from time to time. Substantial changes will take effect 15 days after WebCollage has posted an initial notification on the Service or by other ways such as E-mail messages. Other changes will take effect immediately after being made. However, any amendment made to comply with any legal requirements will take effect as legally required.

You agree to be bound by any and all changes made in the Terms, including changes to any and all documents, forms and policies incorporated thereto. Continuing to use the Service indicates your acceptance of the amended Terms. If you do not agree with the amended Terms, then you must cease any further use of the Service.

You are advised to periodically read the Terms.

Confidentiality

You agree that all WebCollage code, inventions, know-how, business, technical and financial information you obtain constitute WebCollage confidential property. Any software, documentation, technical information, computer code, graphic design, layout, user experience provided by WebCollage (or its agents) or included in the Service shall be deemed “WebCollage Confidential Information”. Except as expressly authorized herein, you will hold in confidence and not use or disclose any WebCollage Confidential Information. Your nondisclosure obligation shall not apply to information which you can document: (a) was rightfully in your possession or known to you prior to receipt of the WebCollage Confidential Information; (b) is or has become public knowledge through no fault of yours; (c) you have rightfully obtained from a third party without breach of any confidentiality obligation; (d) you have independently developed, without access to the WebCollage Confidential Information; or (e) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to WebCollage). You acknowledge that unauthorized disclosure of WebCollage Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon such unauthorized disclosure, WebCollage shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.

Governing Law, Jurisdiction and dispute resolution

Except as provided specifically in the Copyright Policy, the Terms and all documents, forms and policies incorporated thereto, as well as your use of the Service will be governed by and construed in accordance with the laws of the State of New York, U.S.A., without giving effect to any choice of law or conflict of law rules or provisions, whether Federal, or of the State of New York or of any other jurisdiction, which would result in the application of the laws of a jurisdiction other than the State of New York.

You agree to resolve any dispute or claim that you may have against WebCollage and to submit to personal jurisdiction in the state and federal courts in the city of New York, New York.

Compliance with Export Restrictions

You may not access, download, use or export the materials in violation of United States export laws or regulations, or in violation of any other applicable laws or regulations. You agree to comply with all export laws and restrictions and regulations of any United States or foreign agency or authority and to assume sole responsibility for obtaining licenses to export or re-export as may be required. You acknowledge and agree that materials are subject to the United States Export Administration Laws and Regulations and agree that none of the materials or any direct product therefrom is being or will be acquired for, shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals, nor be used for any prohibited purpose.

Notices Contact

WebCollage may contact you and send you notices and messages via e-mail, regular mail, Fax messages and through other means, as may be available from time to time.

You may contact WebCollage by sending an email to info@webcollage.com. Your message will be deemed as received only following an actual receipt of the notice by WebCollage.

General

The Terms constitute the entire agreement between you and WebCollage with respect to the use of the Service and supersedes any and all other agreements with respect to the Service. No waiver, concession, extension, representation, alteration, addition or derogation from the Terms, or pursuant to the Terms, will be effective unless consented to explicitly and executed in writing by both parties.

The Terms do not create in any way a partnership, joint venture, employment relationship, franchise, agency or any other similar relationship between WebCollage and you, and nothing in the Terms will be interpreted or construed as creating or establishing any such relationship.

As between you and WebCollage, the Terms will take precedence over all documents, forms and policies incorporated thereto, unless specifically indicated in such documents that a certain provision takes precedence over the conflicting provision of the Terms. Notwithstanding the foregoing, the Terms will take precedence over any separate terms and conditions contained in a click-through use agreement you assent to while accessing the Service.

Failure on the part of WebCollage to demand performance of any provision of the Terms will not constitute a waiver of any right under the Terms.

All provisions of the Terms which by their nature should survive termination, will survive termination, including, without limitation, the intellectual property, disclaimer of warranty, limitation of liability and indemnification sections.

At any time, WebCollage may transfer ownership, rights in and title to the Service, or any part thereof to any third party.

You may not assign, transfer, delegate, sublicense, or otherwise deal with or dispose of any of your rights or obligations under the Terms, without the prior explicit and written consent of WebCollage. Any attempted assignment without WebCollage’s consent is void.

The United Nations Convention on Contracts for the International Sale of Goods does not govern the Terms.

The section headings in the Terms are included for convenience only.

Severability

If any provision of the Terms is held to be illegal, invalid, or unenforceable by a competent court, then the provision will be performed and enforced to the maximum extent permitted by law, and the remaining provisions of the Terms will continue to remain in full force and effect.