Terms of Service Agreement

Last Updated: January 2, 2019

1. ACCEPTANCE OF AGREEMENT

This Terms of Use Agreement (this “Agreement”) is between you and Retail Education Tools, Inc., a Washington corporation doing business as toptender (“we” or “us”), and governs your use of the Retail Education Tools website (toptender.com) (the “Site”), applications, and all related services (collectively, the “Services”). By accessing or using the Services, you agree to be bound by this Agreement. If you do not agree to the terms of this Agreement, you may not access or use the Services.

The Services are not intended for use by persons under 21 years of age. Persons under 21 years of age may not use the Services. By accessing or using the Services, you affirm that you are: (a) at least 21 years of age and (b) are able and competent to enter into a binding legal agreement.

EXPRESS CONSENT TO RECEIVE TEXT MESSAGES.

BY PROVIDING YOUR PHONE NUMBER ON THE SITE YOU EXPRESSLY CONSENT TO RECEIVING PHONE CALLS OR SMS OR OTHER TEXT-BASED MESSAGES AS PART OF THE SERVICES. THE CALLS OR TEXT MESSAGES WILL CONTAIN MARKETING, ADVERTISING OR OTHER PROMOTIONAL INFORMATION FROM OUR BRAND AFFILIATES. TEXT MESSAGES MAY BE SENT BY AUTOMATIC TELEPHONE DIALING SYSTEM. YOU MAY OPT-OUT OF RECEIVING TEXT MESSAGES AT ANY TIME.

YOUR STANDARD MESSAGING RATES CHARGED BY YOUR MOBILE CARRIER SERVICE WILL APPLY.

YOUR CONSENT TO RECEIVE TEXT MESSAGES IS NOT REQUIRED TO PURCHASE GOODS OR SERVICES FROM US OR OUR BRAND AFFILIATES.

2. CHANGES TO AGREEMENT

We may make changes to this Agreement at any time. If we make any material changes, we will notify you via email if you have created an Account (defined below) or by posting the revised Agreement on the Site prior to any changes becoming effective. You should review this Agreement each time you access or use the Services. Your continued access or use of the Services following notice to you of the changes or the posting of any changes to the Site constitutes your agreement to such changes.

3. THE SERVICES AND USER ACCOUNTS

3.1 Purpose of the Services. The Services are intended to assist retail sales agents who interact directly with consumers by providing such retail sales agents with information regarding brands and other information that may be helpful for the retail sales agent to educate consumers in making informed purchasing decisions. As part of the primary function of the Services, as well as incidental to such purpose, you acknowledge and agree to receive information, marketing material, or advertisements from Brand Affiliates (e.g. brand owners, retail stores, or other third parties representing brands) through the Services or directly to the email address used to register your Account.

3.2 User Accounts and Information. In order to access and use the Services, you are required to enter your phone number and/or an online user account (your “Account”) by completing the registration process and providing your phone number and any other requested information. By using the Services and creating any Account, you agree to submit only your actual phone number and accurate information about yourself and to keep the information you submit up-to-date. If you create an online user account, you are responsible for maintaining the security and confidentiality of your username and password, and you agree not to authorize anyone else to use your username and password. You are solely responsible for all actions taken under or in connection with your Account, whether by you or any third party. You agree to notify us promptly in the event you learn of any unauthorized use of your Account, including unauthorized entry of your phone number through the Site.

3.3 Termination of Accounts. We reserve the right to immediately terminate or restrict your Account or your use of the Services at any time, with or without notice or liability, if we determine in our sole discretion that you have breached this Agreement, violated any law, rule, or regulation, or for any other business reason. You have no ownership rights in your Account. You understand that if you cancel your Account or your Account is terminated, all of your Account information, will no longer be available to you, although we may retain copies in our databases for our recording keeping and other business purposes.

3.4 Consent to Receive Information by Email and Phone (Text Message). By using the Services and creating an Account, you agree that you may receive information from us and our affiliates, including, but not limited to, Brand Affiliates (defined below) participating in our service, who desire to advertise goods or services, or provide other additional information to users of the Services, such as you. You consent to receive all such Brand Information (defined below), as well as other account notices, updates, offers, and newsletters that we or our Brand Affiliates may make available through the Services or through direct email to the email address and/or phone number used to register your Account. If at any time you no longer wish to receive such communications by email, you may opt-out by following the “unsubscribe” instructions in the communication. If at any time you no longer wish to receive such communications by text message, you may opt-out by replying the word “STOP” to the communication or following any other instructions provided on the Site or through the Services.

3.5 User Content. When you transmit any information, content, materials or data to or through the Services (“User Content”), you are not forfeiting any ownership rights you may have in the User Content. However, by submitting User Content on or through the Services, you hereby grant us and our affiliates a non-exclusive, royalty-free, perpetual, irrevocable and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such User Content, including throughout the world in any media, as necessary (a) to provide, maintain and improve the Services; (b) to prevent or address service, security, support or technical issues; (c) as required by law; and (d) as expressly authorized by you. You represent and warrant that you own or have obtained all necessary rights, permissions and/or licenses to User Content that you transmit, and that our use of such User Content as authorized under this Agreement does not violate or infringe upon the rights of any person or entity. We will not be responsible for any loss, destruction, alteration or disclosure of your User Content caused by any third party. You should create a back-up of any User Content that is valuable to you.

4. PERMITTED AND RESTRICTED USE OF THE SERVICES

4.1 Permitted Use. We grant you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to use the Services solely in accordance with the terms of this Agreement. All rights not expressly granted in this Agreement are reserved by us. You may not distribute any part of the Services or any content other than your User Content (defined below), unless we have authorized such distribution and provided the means for such distribution through functionality offered by the Services.

4.2 Prohibited Uses. In connection with your use of the Services, you are prohibited from:

Violations of system or network security may result in civil or criminal liability. We will investigate occurrences that may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting users who are involved in such violations.

4.3 Ownership and Intellectual Property Rights.Our Site and Services and the information and content on the Site and made available through the Services (including any graphics, layout, designs, photographs, and text) and all associated intellectual property rights underlying such information and content is owed by us, except any User Content Brand Information (our “Materials”). No person is authorized to use, copy, or distribute any portion of our Materials, without our express permission. The trademarks and service marks of any third parties, such as Brand Affiliates, found on the Services are owned by the respective parties and are used under license and/or in accordance with applicable law. Using the Services does not give you ownership of any intellectual property rights in the Services, or any underlying information or content. Except in the context of using the Services in accordance with this Agreement, you may not use content or materials from the Site or made available through the Services unless you obtain permission from us or the appropriate owner in the case of third-party content or materials. 

5. ADDITIONAL TERMS APPLICABLE TO BRAND OWNERS AND RETAIL STORE USERS

5.1 Use of Services by Brand Affiliates. We hereby grant you a limited, terminable, non-exclusive right to access and use the services made available to you through the Services only for your internal business use.

5.2 Ability to Post Information. At our discretion, we may allow brand owners, retail stores, or other third parties on their behalf (a “Brand Affiliate”) to publish, distribute, and/or display information about their brand, store, or goods and services through the features of the Services (“Brand Information”). As a Brand Affiliate that chooses to make Brand Information available through the Services, you agree to pay the associated fee (if applicable) as provided in any agreement we reach, including any services agreement, insertion order, fee schedule or other written confirmation of the terms (a “Brand Affiliate Agreement”). Any such Brand Affiliate Agreement is hereby incorporated into this Agreement. We reserve the right to reject Brand Information for any reason. Brand Affiliates may not use, transmit, store, copy, or exploit User Content, including phone numbers, emails, or names, for any purpose whatsoever, except use of the Services as designed and permitted through the features and functionality of the Site and Services made available by us to Brand Affiliates.

5.3 Restrictions on Brand Information. Brand Affiliates are solely responsible for their Brand Information and ensuring they comply with this Agreement. In addition to the prohibited use as provided in Section 4.2 of this Agreement, Brand Information may not contain:

6. DISCLAIMER OF RESPONSIBILITY FOR BRAND AND OTHER THIRD-PARTY INFORMATION

References to any third parties or any products or services of such third parties, including all Brand Information, are provided solely as a convenience to you as a primary feature of the Services. We do not endorse, recommend, approve of or make any representations or warranties regarding any Brand Affiliates, other third parties, or their products or services. We are not responsible for the content of any Brand Information, or third-party websites and do not make any representations regarding the content or accuracy of Brand Information or third-party information on the Services. If you decide to follow a link to any third-party website, you do so entirely at your own risk.

7. COPYRIGHT INFRINGEMENT (DIGITAL MILLENNIUM COPYRIGHT ACT)

We respect the intellectual property of others. We strive to respond promptly to proper notices of copyright infringement by removing or disabling access to allegedly infringing material. It is our policy to terminate the access privileges of those who repeatedly infringe the copyrights of others.

Submitting a Copyright Infringement Notification. If you believe that any material appears on the Site or Services in a way that infringes the copyright in a work you own, please send a notification containing the following information to our Copyright Agent:

Our Copyright Agent can be reached at the following address: Retail Education Tools, Inc., Attn: Copyright Agent, 914 164TH STE SE SUITE B12 #376 MILL CREEK, WA 98012, or by email at copyright@toptender.com.

9. DISCLAIMER OF WARRANTIES

THE SITE AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.

WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE SITE, SERVICES, INFORMATION, CONTENT, OR MATERIALS MADE AVAILABLE OR OFFERED ON THE SITE OR THROUGH THE SERVICES. WE DO NOT WARRANT THAT THE SITE OR SERVICES WILL OPERATE ERROR-FREE OR THAT IT IS FREE OF COMPUTER VIRUSES OR OTHER HARMFUL MECHANISMS, OR THAT ANY INFORMATION REGARDING THE GOODS OR SERVICES OF A BRAND OR STORE OWNER IS ACCURATE OR TRUTHFUL.

10. LIMITATION OF LIABILITY

UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL OR EQUITABLE THEORY, WHETHER IN TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE, WILL WE OR OUR EMPLOYEES, DIRECTORS, OFFICERS, AND AGENTS BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SITE OR SERVICES, OR ANY INABILITY TO USE THE SERVICES, OR ANY INFORMATION PROVIDED TO YOU THROUGH THE SERVICES.

THE FOREGOING LIMITATION OF LIABILITY INCLUDES, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF WE HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES.

CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

11. INDEMNIFICATION

You agree to defend, indemnify, and hold us (as well as our directors, officers, agents, and employees) harmless from and against any and all claims, damages, costs and expenses, including attorneys’ fees, arising from or related to (1) your breach or alleged breach of this Agreement, (2) your improper use of the Site or Services, or (3) your breach of any applicable law or infringement of the rights of a third party. We will have the right to participate in the defense of any claim. You may not settle any claim that results in liability to, or imposes any obligation upon, us, financial or otherwise, without our written consent.

12. DISPUTE RESOLUTION: GOVERNING LAW AND FORUM

The laws of the State of Washington excluding its conflicts of law rules, govern this Agreement and your use of the Site and Services. Your use of the Site and Services may also be subject to other local, state, national, or international laws. Jurisdiction for any claims arising under this Agreement will be exclusively with the state or federal courts within King County, Washington.

You expressly agree to waive any right to a trial by juryand to any objection to the exclusive jurisdiction provision on the basis of inconvenient forum or other legal theory.

13. CHANGES; SUSPENSION; DISCONTINUATION

We may change, suspend, or discontinue, temporarily or permanently, some or all of the features of the Services, with respect to any or all users, at any time with or without notice. In our continued assessment of the Services, we may from time to time, with respect to any or all of our users, experiment with or otherwise offer certain features or other elements of the Services. You acknowledge that we may do so in our sole discretion at any time with or without notice. You also agree that we will not be liable to you for any modification, suspension, or discontinuance of the Services.

14. TERMINATION

This Agreement will remain in force and effective unless and until terminated by either you or us. You may terminate this Agreement at any time by providing written notice to us, via email to termination@toptender.com or by deleting your Account in accordance with any instructions provided within the Services, including by texting STOP in response to any text message. We may terminate this Agreement immediately with or without notice, and/or may deny you access to the Services, in our sole discretion, in the event you breach, or threaten to breach, any term of this Agreement, or for any other reason in our discretion. Upon any termination of this Agreement, you must immediately discontinue use of the Services. Even after your rights under this Agreement are terminated, all provisions of this Agreement which by their nature should survive, will survive, including, without limitation, ownership provisions, warranty disclaimers, indemnification, and limitations of liability.

15. MISCELLANEOUS LEGAL TERMS

15.1 Consent to Electronic Communications. You consent to receive communications from us electronically, and you agree that all agreements, notices, disclosures and other communications that we provide to you electronically, via email, or through the Services, including by text message, satisfy any legal requirement that such communications or agreements be in writing.

15.3 Assignment. You may not assign your rights under this Agreement without our prior written permission and any attempt by you to do so will be null and void.

15.4 Waiver. The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.

15.5 Severability. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way.

15.6 International Use. The Services are provided to you and controlled by us from facilities in the United States of America. We make no representations that the Services are appropriate or available for use in other locations and is designed for use only by users within the United States (in certain jurisdictions). If you access or use the Services from other jurisdictions, you do so at your own volition and are responsible for compliance with any laws, rules and regulations applicable to your jurisdiction.

15.7 Governing Law. This Agreement will be construed in accordance with and governed exclusively by the laws of the State of Washington applicable to agreements made among Washington residents and to be performed wholly within such jurisdiction, regardless of the parties’ actual domiciles.

15.8 Entire Agreement. This Agreement, including all agreements referred to and incorporated herein, sets forth the entire understanding and agreement between the parties, and supersedes any and all other oral or written agreements or understandings between us.

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