Exclusive Offer Program Terms and Conditions
Last Updated as of October 30, 2023
Introduction
These terms and conditions (the “Exclusive Offer Program terms”) apply to your participation in any customer rewards and/or reimbursement program (a “Exclusive Offer Program”) created and/or managed by us to promote and/or facilitate the promotion, trial, purchase and sale of your Products to Customers (each, as defined below). When we say “Supplier”, “you” or “your” in these Exclusive Offer Program terms, we mean the brand, entity or business that you represent. When we say “Thingtesting”, “we”, “our” or “us”, we mean Thingtesting, Inc. and our affiliates. When we say “affiliate” we mean, with regard to a party, an entity or firm, controlling, controlled by, or under common control, whether directly or indirectly, with that party.
These Exclusive Offer Program terms are meant to be read in conjunction with, and are subject to, Thingtesting’s Terms of Use and Sale for Businesses.
Your participation in an Exclusive Offer Program is, at all times, conditional on you agreeing to these Exclusive Offer Program terms. So, if at any time you do not agree, or cannot comply, with these Exclusive Offer Program terms, you must not participate in an Exclusive Offer Program.
You agree to these Exclusive Offer Program terms by doing one or more of the following: (a) clicking a box or button confirming that you agree to these Exclusive Offer Program terms (or a similar confirmation); (b) signing or accepting a quote, order form or similar document which refers to these Exclusive Offer Program terms; or (c) paying or accepting an invoice for payment related to the Exclusive Offer Program.
Overview
Definitions
“Confidential Information” means information, whether written or oral, disclosed by either you or Thingtesting (the “Disclosing Party”) and received by the other (the “Receiving Party”) that relates to the Disclosing Party and is not generally available to the public, or which would reasonably be considered confidential and/or proprietary, or which is marked “Confidential” or “Proprietary” by Disclosing Party. Without limiting the generality of the foregoing, Confidential Information includes, without limitation, (i) information relating to research, development, inventions, information systems, software code, software applications, pricing, customer lists, financial or other economic information, accounting, engineering, personnel relations, marketing, merchandising, and selling, (ii) potential sources of financing; and (iii) all analyses, compilations, forecasts, studies or other documents prepared in connection with the Exclusive Offer Program. In the event Confidential Information is the basis of, is incorporated into, or is reflected in other documents, whether separately or jointly generated by you and us, such other documents will be deemed Confidential Information subject to these Exclusive Offer Program terms.
“Customer” means the final purchaser that has paid for and acquired your Products.
“Products” means those products that are identified by you and us within the Exclusive Offer Program Platform, as may be amended from time to time upon the mutual agreement of you and us.
“Reimbursement Processor” means any third party payment and/or reimbursement processor selected by Thingtesting for purposes of the Exclusive Offer Program.
“Exclusive Offer Program Platform” means the portion of our Website within which you have elected to participate in an Exclusive Offer Program.
“Website” means www.thingtesting.com, or such other e-commerce website as may be selected by Thingtesting.
Obligations of Supplier and Thingtesting during the Exclusive Offer Program
After purchasing a Product that is part of the Exclusive Offer Program, Customers who are Registered Users (as defined in the User Terms and Conditions) and have successfully registered for the specific Exclusive Offer pursuant to the eligibility requirements established by Supplier and/or Thingtesting will be asked to upload proof of purchase of the Product. After reviewing the receipt, Thingtesting will validate the purchase. If a purchase by a Customer of a Product is verified, Thingtesting will submit the phone number and/or email to the Reimbursement Processor. Thingtesting is not responsible for any payment, reimbursement or processing of a sale of any Product.
Thingtesting retains sole discretion to determine: (1) whether a Product submitted by the Supplier is eligible for an Exclusive Offer Program; (2) Customer eligibility to receive and/or redeem an Exclusive Offer Program offer (an “Exclusive Offer”); (3) the amount and nature of an Exclusive Offer; and (4) the duration of the Exclusive Offer Program and offer.
Nothing contained in these Exclusive Offer Program terms will restrict Thingtesting from having the right to sell, promote, reimburse Customers for, or give away any other products, goods, or services through its Website, including products that may compete with the Products.
During the Term, Supplier will (a) provide any necessary information, documentation, material, and support as Thingtesting may reasonably request regarding the Exclusive Offer Program, including, but not limited to location and availability of Products that are part of the Exclusive Offer Program, in each case, free of charge to Thingtesting, (b) comply with all policies and procedures listed on the Website or provided by Thingtesting to Supplier, and (c) pay all invoices, charges and fees as requested by Thingtesting in accordance with the Fees and Payment terms below.
Fees and Payment
Supplier agrees that, in consideration of the services to be provided by Thingtesting pursuant to these Exclusive Offer Program terms, Supplier will provide Thingtesting with a valid credit card or direct deposit account (the “Payment Method”).
Prior to commencement of the Exclusive Offer Program, Supplier acknowledges and agrees that Thingtesting will draw down from the Payment Method a reimbursement reserve in the amount set forth on the Exclusive Offer Program Platform (the “Reimbursement Reserve”).
Upon submission to the Reimbursement Processor of a verified receipt, Thingtesting will deduct the amount of such reimbursement from the Reimbursement Reserve plus any fees or costs charged by the Reimbursement Processor and paid by Thingtesting.
Supplier hereby agrees that, if at any time the balance of the Reimbursement Reserve is less than the agreed upon minimum amount required for such Exclusive Offer (the “Minimum Amount”), Thingtesting may, in its sole discretion, charge the Payment Method in an amount not to exceed the initial amount charged for the Reimbursement Reserve (a “Top Up Charge”), which Top Up Charge will be added to the Reimbursement Reserve. If, at the end of the Term of the Exclusive Offer Program, the balance of Supplier’s Reimbursement Reserve exceeds $500, Supplier may choose to either (i) request repayment from Thingtesting, or (ii) credit such amount towards a future Exclusive Offer Program.
If the Payment Method is declined when Thingtesting charges the Reimbursement Reserve or a Top Up Fee, Thingtesting reserves the right to terminate the Exclusive Offer Program if such nonpayment is not remedied within five (5) days of notice to Supplier.
Term and Termination
The initial term of your Exclusive Offer Program will be [one (1) year] commencing on the Effective Date (the “Initial Term”). Upon expiration of the Initial Term, your Exclusive Offer Program will automatically be renewed for successive one-year terms (each a “Renewal Term” and together with the Initial Term, the “Term”) unless either you or we provides written notice of non-renewal to the other at least sixty (60) days in advance of the end of the then-existing Term.
Either you or we may terminate your Exclusive Offer Program at any time for any reason by providing the other with ninety (90) days’ advance written notice of such termination.
Thingtesting may terminate your Exclusive Offer Program without penalty upon five (5) days written notice upon any breach of these Exclusive Offer Program terms by Supplier, including, without limitation, failure by Supplier to properly fulfill Customer orders, nonpayment of any Fees by Supplier or any assertion by Customers that the Reimbursement Processor is not providing reimbursements submitted by us.
Upon any termination, each party will pay the other party all monies owed, whether or not then due, within ten (10) business days, and each party will return all property and Confidential Information of the other party in its possession and will immediately purge such property and Confidential Information of the other party that may be stored in that party’s systems or files.
Returns; Product Availability
Supplier agrees that Thingtesting is not responsible for repayment of any Reimbursement Reserve amount or any other monies if a Customer participating in the Exclusive Offer Program returns a Product.
Supplier agrees not to include in an Exclusive Offer Program any Products that are not yet available, subject to significant production, manufacturing, shipping, or distribution delays.
Intellectual Property
Supplier hereby authorizes Thingtesting to display and use any of Supplier’s logos, copyrights, trademarks, images and digital assets (“Supplier IP”) on the Website. Supplier also authorizes Thingtesting to advertise Products on the Website as reasonably necessary to promote the Exclusive Offer Program. In furtherance of the foregoing, Supplier hereby represents and warrants to Thingtesting that Supplier has all rights, title and interest in and to such Supplier IP, and Thingtesting’s display and use of such Supplier IP on the website will not infringe the rights of any third-party.
Each of Supplier and Thingtesting hereby grants to the other a non-exclusive, non-sublicensable, limited, royalty free license to use its trademarks, service marks, logos or trade names applicable to the performance of the Exclusive Offer Program solely for such purpose, and only for the Term of the Exclusive Offer Program. All such use will be in accordance with the trademark owner's policies regarding advertising and trademark usage as reasonably established from time to time and communicated in writing.
Thingtesting reserves the right to de-select, modify or change images displayed on the Website based on Thingtesting’s design parameters.
Confidentiality
The Receiving Party, for a period beginning with the Effective Date, and continuing for three (3) years or through the Term, whichever is later, will maintain and protect the confidentiality of the Confidential Information with the same degree of care as is normally used in the protection of its own confidential and proprietary information but in no event with less than a reasonable standard of care; provided, however, the Receiving Party will keep (i) any personally identifiable information such as names, addresses, dates of birth, credit card or other payment information, telephone numbers, email addresses, and similar information (“PII”) confidential in perpetuity; and (ii) any trade secrets of the Disclosing Party confidential as long as such information is deemed a trade secret. The Recipient further agrees not to use Confidential Information for any purpose, except for the purposes of its performance in connection with the Exclusive Offer Program.
The Receiving Party will limit access to the Confidential Information to those of its employees, consultants, advisors and agents (“Representatives”) who need to know such information solely for the purpose of that party’s performance under the Exclusive Offer Program and who are subject to substantially similar confidentiality obligations.
These restrictions will not apply with respect to Confidential Information which the Receiving Party can clearly demonstrate (i) is already available to the public; provided, however, PII remains subject to confidentiality obligations regardless of its availability to the public or availability through unauthorized disclosure; (ii) becomes available to the public through no fault of the Receiving Party or its Representatives; (iii) is already known to the Receiving Party on a non-confidential basis, as shown by written records in its possession at the time that the Confidential Information was received; (iv) becomes available on a non-confidential basis from a source that, to the best of the knowledge of the Receiving Party, is not under an obligation to the Disclosing Party; or (v) is independently developed by the Receiving Party without regard to the Confidential Information of the Disclosing Party.
In the event the Receiving Party is required by law, regulation, or legal process to disclose any of the Confidential Information, the Receiving Party agrees to (i) give Disclosing Party, to the extent possible, advance notice prior to disclosure so the Disclosing Party may contest the disclosure or seek a protective order, and (ii) limit the disclosure to minimum amount that is legally required to be disclosed.
Receiving Party acknowledges that remedies at law may be inadequate to protect the Disclosing Party against any actual or threatened breach of these Exclusive Offer Program terms, and without prejudice to any other rights and remedies otherwise available, the Receiving Party agrees that the Disclosing Party will be entitled to seek injunctive or other equitable relief as a remedy for any such breach. Such a remedy will not be deemed to be the exclusive remedy for a breach of these Exclusive Offer Program terms but will be in addition to all other remedies available at law or equity.
Product Warranties
Supplier represents and warrants to Thingtesting that (i) each Product is fit and safe for use consistent with and will conform with the specifications, descriptions, and documentation provided with the Product or listed on the Website, and each will be free from significant defects in material, design and workmanship; (ii) no claim, lien, or action exists or is threatened against Supplier that would interfere with the marketing, use or sale of the Products; and (iii) no Products, nor the manufacture, marketing, sale, and use of the Products, nor anything in or contemplated by Supplier’s participation in the Exclusive Offer Program, infringes on any third-party intellectual property rights.
Indemnification. Supplier will indemnify, defend, and hold harmless Thingtesting and its Representatives against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, fees, and the costs of enforcing any right to indemnification hereunder, arising out or resulting from any claim of a third party alleging: (a) breach of these Exclusive Offer Program terms or non-fulfillment of any order by Supplier, (b) any act or omission by Supplier or its personnel, (c) any bodily injury, death or damage to real or tangible personal property caused by any Product or the acts or omissions of Supplier, (d) any defective Product or use or misuse of any Product, (e) actual or alleged infringement or misappropriation of any copyright, patent, trademark, trade secret, right of confidentiality or other intellectual property right, (f) any failure by Supplier to comply with applicable laws or (g) Supplier’s failure to remit sales tax to any governmental authority.
Limitation of Liability. In no event will either party be liable to the other for any losses or damages, including without limitation, any act or omission of the payment gateway or any lost profits, loss of business, loss of use, or other direct, indirect, incidental, special, consequential (except indemnification obligations), or other damages, even if the party has been informed of the possibility thereof. Thingtesting’s total liability under or in connection with the Exclusive Offer Program, regardless of the form of action or legal theory, will be limited to the aggregate fee and Margin received by Thingtesting in connection with the Exclusive Offer Program.
Notice. Any notice you send to Thingtesting must be sent to [email protected]. Any notice from Thingtesting to you will be sent to the email address associated with the administrator of the business account for Supplier.
Miscellaneous
Assignment. The Exclusive Offer Program and these Exclusive Offer Program terms will not be assignable by either party without the express written consent of the non-assigning party; provided, however, that Thingtesting may assign its rights and/or obligations without the prior written consent of Supplier, to any affiliate or to another entity in connection with a reorganization, merger, consolidation, acquisition or other restructuring involving all or substantially all of the voting securities and/or assets of Thingtesting.
Force Majeure. If either party is prevented from performing any of its obligations hereunder because of an event beyond its reasonable control, such as, but not limited to, a strike, act of God, fire, flood, war, insurrection, riot, plant breakdown, embargo, explosion, government order or decree, the affected party will be excused from performance for the duration of the event.
Governing Law; Venue. These Exclusive Offer Program terms will be governed by and construed in accordance with the laws of the State of New York, without regard to the conflict of laws provisions to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of New York. Each party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against the other party in any way arising from or relating to these Exclusive Offer Program terms, in any forum other than the applicable courts of the State of New York, and each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts.
Amendment; Waiver. No amendment, waiver, or discharge of any provision of these Exclusive Offer Program terms will be effective unless made in writing and signed by each party. The failure or omission by either party to insist upon or enforce any part of these Exclusive Offer Program terms will not be deemed a waiver of such terms.
Entire Agreement. Except for any executed agreements between the parties in connection with affiliate sales, Thingdrops, whitelisting or marketing services, these Exclusive Offer Program terms represent the entire agreement between you and Thingtesting concerning the subject matter hereof.
Participant Information. For the avoidance of doubt and notwithstanding anything to the contrary herein, Thingtesting is under no obligation to provide any information about Registered Users (as defined in the User Terms and Conditions) to any participant in an Exclusive Offer Program. All information collected in connection with any Exclusive Offer is subject to our Privacy Policy and shall remain the sole and exclusive property of Thingtesting. We reserve the right to share such information in our sole discretion.