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In support of small businesses, American Express Travel Related Services Company, Inc. ("American Express," "we" or "us") is providing tools to enable eligible small business owners to create their own personalized marketing campaigns, including (i) downloadable, personalized signage, digital banners,sample social media posts and e-mail templates, as well as Shop Small logos (the "Marketing Materials"), (ii) the opportunity to have your business featured on ShopSmall.com (a "Shop Small Listing"), and (iii) free online advertising, while supplies last (the "Online Ads"). For purposes of this agreement, the Marketing Materials, Shop Small Listing and Online Ads will be collectively referred to as "Campaign Assets."
Participation in this Personalized Shop Small Marketing Campaign Program (the "Program") is governed by these Personalized Shop Small Marketing Campaign Program Terms of Participation (the "Terms of Participation"). The decisions of American Express with respect to the interpretation and application of these Terms of Participation – including decisions about your eligibility to receive any of the Campaign Assets – will be final and binding. American Express reserves the right to modify these Terms of Participation at any time. We will indicate that changes have been made by updating the "Last Modified" date above. Your continued participation in the Program after the Terms of Participation have been modified constitutes your agreement to the modified Terms of Participation.
Beginning at 12:00 a.m. Mountain Standard Time (MST) on October 3, 2013, eligible small business owners are welcome to create and download Marketing Materials, and to apply for Shop Small Listings and Online Ads. The request form for Marketing Materials and application for Shop Small Listings will remain available until 11:59 p.m. MST on December 31, 2013 (the "Application Period").However, the application period for Online Ads will remain open only until 8:59 p.m. MST on November 18, 2013 or until available advertising inventory has been exhausted, whichever comes first (the "Limited Application Period").
All dates are subject to change at American Express's discretion.
In order to be eligible for Campaign Assets you must satisfy the following qualification criteria:
- You must be located in the United States
- for brick-and-mortar businesses, this means that you must have at least one storefront location within the United States
- for online-only businesses, this means that you must have a service area within the United States
- For brick-and-mortar businesses, you must have no more than twenty five (25) locations within the United States
- Your total net revenues (for all business locations or service areas within the United States) for the 2012 calendar year must have been ten million dollars ($10,000,000) or less
- You must not be a franchisee or licensee of a brand, or member of a co-op, with more than 20 corporate-owned stores or more than 100 stores in total
- You must not be a government agency, public administration organization, political organization, charity, non-profit, business or trade association, direct seller or shopping property management firm
- The information submitted in your application form, including, without limitation, your "What You Are Known For" must be complete and accurate and must not contain profanity, obscenity or other inappropriate content or be otherwise offensive, unlawful, or objectionable, in the sole and exclusive judgment of American Express (see additional "What You Are Known For" Restrictions below)
With respect to the Marketing Materials and Shop Small Listings, the term "Program Territory" refers to the United States. However, with respect to the Online Ads, the term currently does not include US Territories.
Even if you satisfy the qualifications listed above, if your business fits into any of the following categories, you may, nonetheless, be excluded from eligibility for Campaign Assets:
- Religious organizations
- Businesses that manufacture, promote or sell diet aids, drugs or other pharmaceuticals, pornography, sexual aids, gambling, liquor, tobacco, firearms or other weapons
- Businesses that promote or advocate for any sensitive or controversial topic, or otherwise participate in activities that we determine to be inconsistent with the values of American Express or the Shop Small Movement
: regardless of whether you have been eligible to participate in a previous American Express-sponsored free ad program, if your business does not fit within the criteria provided above, you will not be eligible to participate in the current Program.CREATING & DOWNLOADING MARKETING MATERIALS
Eligible small businesses may personalize and download Marketing Materials at any time during the Application Period. To download Marketing Materials, you must follow the prompts, provide the information required by the application form, and submit the application to us. Once you have completed the required fields and submitted the application form during the Application Period, your personalized Marketing Material will be provided to you for download.
Once downloaded, the Marketing Materials may not be altered or amended in any way except as expressly directed or authorized by American Express in writing. To the extent that changes are authorized, any and all revisions must comply with the "What You Are Known For" Restrictions (see below).
Marketing Materials are provided to you subject to a limited license. We may terminate your right to use the Marketing Materials at any time if we determine, in our sole discretion, that (i) your business is not eligible for the Program, (ii) any information provided by you in the application form, including, without limitation, your "What You Are Known For," is fictitious, false, misleading, inaccurate, incomplete or otherwise is breach of the "What You Are Known For" Restrictions (see below), (iii) you alter the Marketing Materials in breach of these Terms of Participation, (iv) you use the Marketing Materials inappropriately or in a manner inconsistent with the values of the Shop Small Movement and American Express, or (v) you otherwise breach these Terms of Participation.APPLYING FOR A SHOP SMALL LISTING & ONLINE AD
In order to receive a Shop Small Listing, eligible small business owners must submit a complete and accurate application during the Application Period. In order to receive an Online Ad, eligible small business owners must submit a complete and accurate application during the Limited Application Period.
Once submitted, American Express will review your application for compliance with these Terms of Participation, including, without limitation the "What You Are Known For" Restrictions and Photo Restrictions (if you have elected to upload a photo for your Shop Small Listing; Online Ads will not contain photos). We reserve the right to decline any application that does not comply with these Terms of Participation, which will be determined in our sole discretion.
Shop Small Listings and Online Ads may be subject to the space, style and format requirements and standards established by American Express and are subject to American Express's final approval. We reserve the right (but have no obligation) to make edits to your Shop Small Listing and/or Online Ad, including, without limitation, your "What You Are Known For" (for example, to correct misspellings or grammatical mistakes, to write out the full spelling of words that have been abbreviated, or to abbreviate words or phrases as necessary to comply with the maximum character count limit) without your approval. Notwithstanding its review and/or editing of any Shop Small Listing and/or Online Ad submitted, American Express is not responsible for the content of any Shop Small Listing and/or Online Ad.
We will notify you within four (4) weeks of receiving your application as to whether the application has been approved or declined. American Express reserves the right to revoke its approval at any time for breach of these Terms of Participation, which will be determined in our sole discretion.
Shop Small Listings will be posted on ShopSmall.com. They are anticipated to be posted beginning on or about November 15, 2013. American Express makes no guarantees with respect to the formatting of your Shop Small Listing (including, without limitation, whether or not it will include the photo you submitted), the length of time for which any Shop Small Listing will be posted, the precise period of time during which your listing will be posted. One listing is available per business. Submitting multiple applications will not increase the number of listings designated to your business.
The Online Ads are anticipated to run during the period beginning November 11, 2013 and ending November 30, 2013. The dates that any given Online Ad may run will vary. Online Ads will run in the United States, but the Online Ads provided to any particular business will be displayed only in areas within the United States that are geographically relevant to the business. If you want to receive Online Ads in the geographic area relevant to any particular physical business location or service area, you must identify that location or area. American Express makes no guarantees with respect to the formatting of your Online Ad, the minimum number of impressions that any business will receive, the precise period of time during which your Online Ads will run, or any particular website on which your Online Ads will run. Submitting multiple applications will not increase the number of ad impressions designated to your business. Online Ads are also subject to review by the websites on which your Online Ads will run. A website may refuse to display your Online Ad at any time if it determines that the Online Ad does not comply with the applicable website's advertising guidelines or is otherwise objectionable, as the website may determine in its sole discretion."WHAT YOU ARE KNOWN FOR" RESTRICTIONS
Your "What You Are Known For" must be original to you and must honestly and accurately describe your business.
It may not include any statement, opinion, information or other content that:
- is fictitious, false, inaccurate or misleading
- contains prices
- promotes sales, discounts, contests, giveaways, raffles or other offers
- is disparaging or defamatory to any person or entity
- contains any profanity or is otherwise obscene, pornographic or offensive
- contains superlatives (e.g., words like "best," "first," "fastest" and "cheapest")
- promotes any illegal or unlawful product or service or suggests, encourages or promotes the violation of any laws, rules or regulations
- infringes the rights of any person or entity, including, without limitation, rights of privacy, publicity or intellectual property
- promotes or advocates for any sensitive or controversial topic
- is otherwise inconsistent with the values of American Express or the Shop Small Movement
- Focus on what¡¦s special about your business.
- Do not quote or copy from others.
- Do not reference any specific person or persons, particularly celebrities, politicians or other prominent persons.
- Do not reference any business or entity other than your own.
Your photo must either have been taken by you or you must have a sufficient license from the photographer to use it in the Shop Small Listings and to grant the rights granted to American Express (see the Licenses Section below). It must accurately depict or reflect your business.
The photo may not include any images that:
- are false or misleading
- are obscene, pornographic or otherwise offensive
- depict illegal or unlawful activities
- infringe the rights of any person or entity, including, without limitation, rights of privacy, publicity or intellectual property
- depict or capture signage that would violate the "What You Are Known For" Restrictions
- are otherwise inconsistent with the values of American Express or the Shop Small Movement
MODIFICATION & CANCELLATION OF THE PROGRAM
- Focus on the feeling or impression that you want to convey about your business.
- Do not include any people who are identifiable, especially celebrities, politicians or other prominent persons.
- Do not include any identifiable logos, trademarks service marks or designs of businesses other than your own (for example, on t-shirts or other merchandise in your store).
- Do not capture identifiable names or signage of businesses other than your own (for example, in any street scenes).
- Do not capture any identifiable landmarks or other known architectural works (for example, in any street scenes)
- Do not capture screen shots of websites other than that of your own business
American Express reserves the right to modify or cancel the Program at any time at its discretion without prior notice or liability to you.DISQUALIFICATION & OTHER REMEDIES OF AMERICAN EXPRESS
Persons who tamper with or abuse any aspect of the Program, who act in an unsportsmanlike or disruptive manner or who violate these Terms of Participation, as determined by American Express in its sole discretion, will be disqualified from participating in the Program. ANY ATTEMPT TO DELIBERATELY DAMAGE OR UNDERMINE THE LEGITIMATE OPERATION OF THE PROGRAM MAY BE IN VIOLATION OF CRIMINAL AND CIVIL LAWS AND SHOULD SUCH AN ATTEMPT BE MADE, AMERICAN EXPRESS RESERVES THE RIGHT TO SEEK DAMAGES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES) AND OTHER REMEDIES FROM ANY SUCH INDIVIDUAL TO THE FULLEST EXTENT OF THE LAW, INCLUDING CRIMINAL PROSECUTION.REPRESENTATIONS & WARRANTIES; INDEMNIFICATION
You represent and warrant that the information and other content contained in your application is complete and accurate and does not violate any laws, regulations or the rights of any third parties. You understand and acknowledge that you are solely responsible for the content of your application and Campaign Assets, and agree to indemnify and defend American Express, participating websites, and their respective parents, affiliates, licensees, direct or indirect subsidiaries, and advertising and promotion agencies, and the respective officers, directors, shareholders, employees, agents and representatives of the foregoing (collectively, "Released Parties
") from any against any and all costs or damages (including court costs and reasonable attorneys' fees) resulting from any action, claim or demand that may be made or brought against a Released Party (a "Claim
") arising out of or relating to your participation in the Program.LICENSES
By participating in the Program, you are providing American Express a non-exclusive license to use your business's name, logo, service marks, trademarks, trade names, URL, "What You Are Known For" and photo(s) and any other information or content provided in your application in the Campaign Assets and in any advertising and promotion of the Shop Small Movement, including, without limitation, Small Business Saturday and the Program in any and all media worldwide, in perpetuity.GENERAL RELEASE
You agree to release, discharge and hold harmless American Express and other Released Parties from any and all injuries, liability, losses and damages of any kind to persons, including death, or property resulting, in whole or in part, directly or indirectly, from your participation in the Program. Released Parties are not responsible for lost, late, incomplete, damaged, inaccurate, stolen, delayed, misdirected, undelivered, or garbled applications; or for lost, interrupted or unavailable network, server, Internet Service Provider (ISP), website, or other connections, availability or accessibility or miscommunications or failed computer, satellite, telephone or cable transmissions, lines, or technical failure or jumbled, scrambled, delayed, or misdirected transmissions or computer hardware or software malfunctions, failures or difficulties, or other errors or difficulties of any kind whether human, mechanical, electronic, computer, network, typographical, printing or otherwise relating to or in connection with the Program, including, without limitation, errors or difficulties which may occur in connection with the administration of the Program, the processing or reviewing of applications or in any Program-related materials. Released Parties are not responsible for injury or damage to any person's computer related to or resulting from participating in this Program or downloading Marketing Materials or other materials from or use of the website. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."DISCLAIMER OF WARRANTY
AMERICAN EXPRESS IS PROVIDING THE PROGRAM AND THE CAMPAIGN ASSETS "AS IS" AND ON AN "AS AVAILABLE BASIS" WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES OF NON-INFRINGEMENT, SECURITY, OR ACCURACY.LIMITATION OF LIABILITY
NOTWITHSTANDING ANY OTHER PROVISION HEREOF, IN NO EVENT SHALL AMERICAN EXPRESS, ITS DIRECT OR INDIRECT SUBSIDIARIES, CONTROLLED AFFILIATES, AGENTS, EMPLOYEES OR REPRESENTATIVES BE LIABLE TO YOU FOR ANY LOST PROFITS OR REVENUES, OR OTHER CONSEQUENTIAL, SPECIAL, INDIRECT, PUNITIVE, EXEMPLARY OR INCIDENTAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THE PROGRAM, INCLUDING, WITHOUT LIMITATION, ARISING OUT OF OR IN CONNECTION WITH THE CAMPAIGN ASSETS, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE RELEASED PARTIES’ AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THE PROGRAM WILL NOT EXCEED ONE HUNDRED DOLLARS ($100). APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, THE RELEASED PARTIES’ LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.GOVERNING LAW
Any and all disputes, claims or actions arising out of or relating to the Program or your participation therein, including the enforcement and interpretation of these Terms of Participation, shall be governed by the substantive laws of the state of New York without regard to conflict of law principles, and shall be brought solely within the state of New York and county of New York.DISPUTESProcedures
: You and American Express agree that any and all disputes, claims or controversies arising out of or related to the Program, including any claims under any statute or regulation ("Disputes
"), shall be submitted first to non-binding mediation. If the Disputes are not resolved through mediation, then, upon the election of either party, the Disputes then shall be submitted for binding arbitration. Unless the parties agree otherwise, any mediation and/or arbitration shall take place in the State of New York, New York County, and shall be administered by, and pursuant to the rules of, the American Arbitration Association ("AAA
").Restrictions on Arbitration
: Disputes shall be arbitrated on an individual basis. There shall be no right or authority for any Disputes to be arbitrated on a class action basis or in a purported representative capacity on behalf of the general public or other persons or entities similarly situated. The arbitrator's authority to resolve Disputes and to make awards is limited to Disputes between you and American Express alone, and is subject to the Limitations of Liability set forth in these Terms of Participation. Furthermore, Disputes brought by either you or American Express against the other party may not be joined or consolidated in arbitration with Disputes brought by or against any third party, unless agreed to in writing by all parties. No arbitration award or decision on any Disputes shall be given preclusive effect as to issues or claims in any dispute with anyone who is not a party to the arbitration. Should any portion of this paragraph of this Disputes section be stricken from these Terms of Participation or deemed otherwise unenforceable, then this entire Disputes section shall be stricken from these Terms of Participation.Enforcement
: The provisions of this Disputes section may be enforced in a court of competent jurisdiction and the party seeking enforcement shall be entitled to an award of all costs, fees and expenses (including attorney fees) incurred in obtaining the enforcement of this provision, to be paid by the party against whom enforcement is ordered.Costs of Arbitration Proceedings
: The parties will be responsible for paying their respective shares of the arbitration fees (including filing, administrative, hearing and/or other fees) as provided by AAA rules, except that American Express will be responsible for paying all arbitration fees in connection with any Dispute it commences in arbitration or compels to arbitration.THIRD PARTY BENEFICIARIES
Except as otherwise expressly set forth herein, this agreement is for the sole benefit of the parties hereto and their successors and permitted assigns and nothing herein express or implied shall give or be construed to give any person other than the parties hereto any legal or equitable rights hereunder.