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Terms of Sale | These Terms of Sale (these “Terms”) govern all purchases of goods or services through this website (this “Website”) from TO YOUR SUCCESS, INC. (the “Seller”) and any purchases of goods or services from Seller through any other contract that incorporates these Terms. Anyone purchasing goods or services through this Website (each, a “Buyer”) agrees to be bound by these Terms.

  1. Service Types. Seller offers several types of services (each, a “Service” and collectively the “Services”) to Buyers. The content of each Service and the duties that Buyer may perform vary by Service type.

    1. Gift Services. Seller offers several gift Services in which Buyer may identify one or more of its Consumers (each, a “Consumer”) and request Seller to deliver a specified gift to each Consumer.

    2. Survey and Analytic Services. Seller offers several Services in which it will ask the Buyer’s Consumers to respond to specified questions or complete a survey. Depending on the Service type, Seller may provide to Buyer analytical reports or other data compilations that are based upon the information and responses provided by Buyer’s Consumers.

    3. Promotional Services. Seller offers several Services in which Seller may promote the Buyer’s business, including by publishing positive comments and testimonials provided by Buyer’s Consumers.

    4. Buyer Obligations. In connection with these Services:

      1. If Buyer provides Seller with the name, address, telephone, fax, email, website address or other personally-identifiable information pertaining to a Consumer (as applicable, “Personal Information”), Buyer represents and warrants to Seller that (I) Buyer is entitled to provide such Personal Information to Seller and that Buyer has obtained the Consumer’s affirmative consent to provide such information to Seller and (II) Seller’s use of such Personal Information will not breach any obligation Buyer may have to the Consumer, whether set forth in a written privacy policy or any contract or agreement binding on Buyer.

      2. If Buyer purchases any Promotional Services, Buyer will ensure that its use of the Promotional Services does not unfairly or deceptively market, advertise or promote the Buyer’s products or services.

  2. Sales of Goods. If any Service selected by Buyer involves Buyer’s purchase of tangible goods from Seller, the following provisions will apply:

    1. All sales of the goods covered hereunder (the “Goods”) are F.O.B. Seller’s shipping point, regardless of the means of delivery , with title and risk of loss passing at such time.

    2. Seller will replace or re-deliver any Goods (1) that do not conform to the terms of the Buyer’s purchase order (the “Order”) or (2) that are defective, in each case only if Seller receives notice that such Goods are defective no more than five (5) days after delivery.

    3. If any Goods are defective and Seller agrees to accept return shipment of such Goods, Buyer will comply with Seller’s shipping terms and conditions in connection with any such return shipment.

    4. With respect to any Goods that Buyer requests Seller to ship to a Consumer:

      1. Buyer is wholly responsible for the accuracy and completeness of any Consumer address and delivery instructions and Seller is not responsible for any delivery failure that results from inaccurate or incomplete information provided by Buyer.

      2. Seller will notify Buyer via automated email if a shipment to a Consumer is undeliverable. Depending on the circumstances, Buyer may have the opportunity to change the applicable delivery instructions, subject to the payment of re-shipping fees and such other fees as may be indicated in the notice of non-delivery.

      3. If a Buyer shipment to a Consumer contains Buyer-branded goods, Seller may return the Buyer-branded goods to inventory for later use.

      4. If Buyer provides a Consumer email address for email marketing or gift notification purposes, Buyer represents and warrants to Seller that Buyer obtained such email address from Consumer and that Buyer has Consumer’s express authorization to provide such email address to Seller and to use such email address for any purpose that Buyer may request Seller to undertake. If Buyer’s pricing depends on the number of emails sent by Seller, Buyer will be charged for each such email regardless of the email’s accuracy or bounce-back status. Buyer is wholly responsible for providing any email opt-out notice that may be required under applicable law and for ensuring that Buyer’s collection, storage and use of Consumer email addresses comply with applicable law and Buyer’s applicable privacy policy.

  3. General Terms. All purchases of Services by Buyer from Seller are subject to these general terms:

    1. All of the websites, web services, software and technology utilized by Seller in the provision of Services are solely and exclusively owned by Seller and its licensors and Seller reserves all rights in and to such intellectual property (the “Seller Intellectual Property”). Buyer is not acquiring from Seller any right, title or license to the Seller Intellectual Property except for the limited right to utilize the Services delivered to Buyer from Seller. In addition, all comments, feedback, survey results and data collected by Seller from Consumers are the property of Seller and Seller reserves all rights in and to such intellectual property including any copyright interest therein.

    2. If Buyer purchases any Services that involve the collection, analysis or publication of any Consumer feedback, responses or survey results, all of such feedback, responses and survey results, together with any displays thereof that Seller may create (collectively, the “Consumer Feedback”), are solely and exclusively owned by Seller, including any copyright interest therein. Buyer may not copy, distribute, display or publish any Consumer Feedback except through the Services. At any time before the Services are terminated, however, Buyer has a limited license to copy, display and distribute the Consumer Feedback on (1) printed marketing collateral produced by Buyer, (2) any websites owned or controlled by Buyer, and (3) any social media accounts owned or controlled by Buyer.

    3. If Buyer is purchasing Services on a subscription or other periodic basis, Buyer’s order will automatically renew at the end of the applicable period. After renewal, no refunds or proration will be provided by Seller. Seller may terminate the Services if Buyer fails to pay, either by volition or by way of a failed payment method, in accordance with this Agreement or if Buyer has failed to purchase any additional Services for more than one hundred eighty (180) days.

    4. If Seller or Buyer terminate the Services for any reason, (i) Buyer will no longer be able to access any portal or proprietary web pages previously utilized for the rendition of Services, (ii) Buyer will no longer be able to publish Consumer Feedback, (iii) Buyer will no longer be able to access or utilize any other aspects of the Services, and (iv) Seller may delete any data, Consumer Feedback or other materials in its possession that it created or received on behalf of Buyer in connection with the provision of such terminated Services. If, in connection with the Services, Seller maintained an inventory of Goods on behalf of Buyer, Seller may dispose of such Goods in any manner if Buyer does not arrange for their disposal or shipment at Buyer’s expense and in a manner acceptable to Seller within thirty (30) days after Seller’s written request to Buyer.

    5. Seller will maintain the confidentiality of any Consumer data provided to Seller by Buyer in accordance with Seller’s published Privacy Policy. Notwithstanding the foregoing, however, Seller may disclose any data that is compelled by any legal process without any liability to Buyer.

    6. Except as expressly warranted by Seller in its written warranty, Seller makes NO WARRANTY OF ANY KIND, EXPRESSED OR IMPLIED, AND SPECIFICALLY MAKES NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Buyer agrees to assume all risks and liability for the Goods and Services, whether used individually or in combination with other goods.

    7. Seller’s liability to Buyer, or person or entity purchasing from Buyer, shall be limited to the extent permitted by law, to the express warranties set forth in Seller’s written warranty applicable to the Goods or Services. SELLER SHALL HAVE NO LIABILITY TO BUYER (OR ANY PERSON OR ENTITY CLAIMING THROUGH BUYER) FOR LOST PROFITS, LOSS OF REVENUE, OR FOR INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES AND THESE ARE HEREBY WAIVED BY BUYER.

    8. The terms of payment shall be as stated on each invoice or, if the Order is placed through the Website, on the final confirmation page before the Order is submitted. Payment terms begin from the date of invoice, or with respect to any Order placed through the Website on the date the Order is submitted. Fees are fully earned when due and non-refundable when paid. A finance charge of 1 1/2% per month or the maximum rate allowed by law, whichever is less, may be charged on each payment received after the due date. A thirty ($30.00) dollar fee may be charged on each check returned due to insufficient funds. Checks will not be re-deposited. Seller shall be entitled to recover its collection costs and reasonable attorney’s fees incurred in connection if Seller consults an attorney in connection with any amounts not paid when due hereunder.

    9. Credit arrangements are subject to written approval of Seller and are subject to change without notice. In the event Buyer fails to fulfill the terms of payment or in the event Seller shall have any doubt at any time as to Buyer’s financial responsibility, Seller may decline to make further deliveries except upon receipt of cash or satisfactory security.

    10. No liability shall result from delay in performance or nonperformance of this Agreement directly or indirectly caused by fire, explosion, accidents, flood, or other act of God, labor trouble or shortage, act of or authorized by any government, inability to obtain suitable material, equipment, fuel, power or transportation, or arising from contingencies, happenings or causes beyond the control of the party affected. Seller shall not be required to provide quantities of Goods or Services so affected by any such circumstances, but this Agreement shall otherwise remain unaffected.

    11. Orders are not assignable or transferable by Buyer in whole or in part, except with the prior written consent of Seller.

    12. Pricing for Services is subject to change on future orders, at any time, without prior notice from Seller.

  4. Miscellaneous.

    1. This Agreement shall be construed and enforced in accordance with the laws of the State of Georgia. Buyer agrees to (i) irrevocably and unconditionally submit to the exclusive jurisdiction of the state and federal courts located in Cobb County, Georgia to resolve any disputes relating to this Agreement and (ii) waive any right to move or dismiss or transfer any such action brought in such court on the basis of any objection to personal jurisdiction or venue. Any controversy or claim arising out of or relating to this Agreement shall, at the election of Seller, be settled by arbitration conducted in Atlanta, Georgia in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.

    2. No terms or conditions other than those stated in this Agreement shall be binding on Seller unless such modifications or additional terms are made in writing and executed by an officer of Seller. No terms or conditions contained herein shall be deemed affected by Buyer’s documents containing other or different terms and conditions. The terms and conditions of this Agreement shall take precedence over any different or conflicting terms in Buyer’s Order or other Buyer documents. Acceptance by Seller of the Order is expressly limited to the terms and conditions contained in this Agreement. In the event an Order shall be deemed an acceptance of Buyer’s offer, the Order is expressly conditioned upon Buyer’s assent of the terms and conditions contained in this Agreement. A written contract between Buyer and Seller that expressly references this Agreement may supersede this Agreement to the extent, and in the manner, provided therein. (Last revised 06/2019)

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