1. PAYMENT.
Merchant will pay RewardMore in accordance with the payment terms set forth on the Merchant Agreement. Merchant shall pay all amounts owed, in U.S. Dollars, and is considered delinquent if a payment is not received within thirty (30) days following the receipt of an invoice for such payments. Merchant agrees to pay the costs and expenses incurred by RewardMore or on behalf of RewardMore in connection with the collection of any unpaid charges and fees. Merchant agrees to cover any additional bank charges associated with all RewardMore payments and fees. RewardMore is therefore not obligated to pay any item presented for payment if Merchant’s account does not contain sufficient collected funds. Merchant will be responsible for all taxes in connection with this Agreement (excluding taxes based on RewardMore’ net income). Billing will commence on the Launch Date as specified in the Payment Terms. Subject to the terms of this Agreement, RewardMore may in its sole discretion provide Merchant with certain equipment (including, without limitation, tablets, scanners, cards, MiFi devices, and/or other devices; collectively, the “Equipment”) for Merchant to use only to the extent necessary for Merchant to use the RewardMore Platform as provided in this Agreement. Merchant may not use the Equipment for any other purpose or in any manner not expressly authorized by RewardMore. Any and all use of the Equipment is subject to Merchant’s compliance with the terms and conditions contained in the Merchant Tablet Addendum (the “Addendum”) attached hereto (as applicable). Upon termination of this Agreement, the Merchant acknowledges and agrees that all RewardMore Equipment will be returned to RewardMore. All Equipment must be returned in full functioning order apart from normal wear and tear within (30) days of Agreement termination. In the event that the Merchant fails to return all RewardMore equipment, the Merchant hereby authorizes RewardMore to charge $200 for lost, stolen, or damaged Equipment, and an additional penalty of $150 for each unreturned tablet (if applicable).
2. REWARDMORE SOFTWARE, HARDWARE AND RESTRICTIONS ON USE
Subject to the terms and conditions of this Agreement, RewardMore hereby grants to Merchant a non-exclusive, non-assignable, non-transferable, nonsublicensable, limited right and license to use the RewardMore software and services in accordance with the documentation provided to Merchant by RewardMore only for Merchant’s internal business use. Merchant agrees that (i) it will not decompile, reverse engineer, or otherwise attempt to obtain the source code or underlying ideas or information of or relating to the RewardMore services or any related software, (ii) it will not sell, lease, license or otherwise provide the RewardMore services or any related software or hardware to any third party, (iii) it will only use the RewardMore services and any related software and hardware in order to interface with the RewardMore Platform as contemplated by this Agreement.
3. MERCHANT INFORMATION AND REWARDS PROGRAM.
Merchant grants to RewardMore a non-exclusive, worldwide license and right to display, reproduce and use Merchant’s trademarks and logos (collectively, “Merchant Marks”) and business description solely in connection with the operation of the RewardMore Platform. Merchant represents, warrants and covenants that it will honor any rewards programs offered by Merchant through the RewardMore Platform (“Merchant Rewards Program”), even after any expiration or termination of this Agreement, without any expiration to the effectiveness of such Merchant Rewards Program. If the RewardMore Platform is installed on Merchant’s point-of-sale machine(s), Merchant grants RewardMore the right to collect and use computer activity and transaction data (which may include, without limitation, receipt data and operating system data) (the “POS Data”) on such machine(s) in order to improve the RewardMore services and software features. Merchant represents and warrants that it has the rights to grant the foregoing rights and that it has obtained all consents and rights necessary for RewardMore to collect and use POS Data. Merchant further represents, warrants and covenants that the Merchant Rewards Programs and Merchant’s use of the RewardMore Platform and services will comply with all applicable laws and regulations. Merchant agrees to receive periodic SMS promotions from RewardMore during use of the service. Merchant can opt out at any time by replying “STOP” to a campaign. Standard data and message rates may apply. Promptly after any expiration or termination of this Agreement, RewardMore will provide Merchant with any relevant information in RewardMore’ possession regarding the then-current status of the Customers in relation to the Merchant Rewards Program. Merchant will indemnify, defend and hold RewardMore harmless from all claims, actions, liabilities, losses, expenses, damages and costs (including without limitation, reasonable attorneys’ fees) that may be incurred in connection with claims relating to the Merchant Rewards Program or Merchant’s breach of any term or condition of this Agreement.
4. CUSTOMERS.
Merchant acknowledges and agrees that when a customer signs up to be a user of the RewardMore Platform (or when Merchant enrolls a customer or enables a customer to enroll as a user of the RewardMore service), whether through the Site or otherwise, such customer shall be deemed a customer of RewardMore (“Customer”), and RewardMore shall have the perpetual and irrevocable right to use, in connection with its business activities, all information made available to RewardMore here under and will continue to have the right to communicate with Customers and provide the RewardMore Platform in relation to such Customers, in each case even after the expiration or termination of this Agreement. To the extent Merchant enrolls a Customer as a user of the RewardMore service (or enables a Customer to enroll) or provides RewardMore with data and information (including a cellular or mobile number or other personally identifiable information) of any person who provides such information to Merchant, Merchant represents and warrants that Merchant has A) informed each such person of the RewardMore Terms of Use and Privacy Policy and that such person may receive text messages or other communications from RewardMore, and B) obtained all necessary consents and rights required i) to share that information with RewardMore and ii) so that RewardMore may so communicate with each such person and otherwise use such data and/or information in any manner that complies with RewardMore’ Privacy Policy. Merchant agrees to indemnify and hold RewardMore harmless for and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any breach by Merchant of the terms contained herein (including, without limitation, the representations and warranties contained in this section). In connection with Merchant’s use of Customer information and the RewardMore Platform, and Merchant’s administration of its Merchant Rewards Program(s), it shall comply with all applicable law and any written policies provided by RewardMore to Merchant from time to time, including RewardMore’ Privacy Policy located at https://www.rewardmore.com/privacy-policy. Merchant shall include an opt-out notice in any communications that it delivers to any Customers, and will comply with any opt-out requests made by Customers.
5. DISCLAIMER.
THE REWARDMORE PLATFORM AND PROGRAM AND ALL PRODUCTS, SERVICES, CONTENT AND ITEMS PROVIDED BY REWARDMORE HEREUNDER (INCLUDING, WITHOUT LIMITATION, THE EQUIPMENT (AS APPLICABLE)) ARE PROVIDED “AS IS” AND REWARDMORE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF UNINTERRUPTED USE AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
6. LIMITATION OF LIABILITY.
To the fullest extent allowed by applicable law, and regardless of the form of action (e.g., whether in contract, tort, negligence, or otherwise) neither RewardMore nor any of its licensors or suppliers shall be liable to Merchant or to any other party in connection with any subject matter of this Agreement for (a) any special, incidental, exemplary, consequential or indirect damages of any kind (including, without limitation, damages for lost profits, loss of goodwill, work stoppage, accuracy of results, or computer failure or malfunction), or (b) any amounts in the aggregate that exceed the fees paid by Merchant to RewardMore hereunder in the twelve (12) month period preceding the applicable claim, in each case, whether or not RewardMore (or its licensor or supplier, as applicable) has been advised of the possibility of such damages.
7. REMOTE ACCESS.
Merchant acknowledges and agrees that with the installation of the RewardMore software, remote access software will also be installed for the express purpose of maintenance and remote technical support for the RewardMore program.
8. GENERAL PROVISIONS.
The terms of this Agreement and any and all non-public information disclosed by RewardMore to Merchant pursuant to this Agreement are confidential, and Merchant agrees not to disclose the terms of this Agreement or any such information to any third party, or use any such information other than for the purposes expressly set forth herein. These Standard Terms and Conditions shall survive any expiration or termination of this Agreement. Merchant may not assign this Agreement or any of its rights or delegate any of its duties under this Agreement without RewardMore’ prior written consent, except to a successor to all or substantially all of its business or assets; RewardMore may assign this Agreement and/or any of its rights and/or delegate any of its duties under this Agreement without consent. This Agreement contains the entire understanding of the parties with respect to the transactions and matters contemplated hereby, and supersedes all previous communications, understanding and agreements (whether oral or written). This Agreement consists of Subscription Agreement, Privacy Policy, and these Terms & Conditions, and represents entire agreement. Any additional or conflicting conditions, printed or otherwise, appearing on any orders, copy instructions or other documents will be of no effect. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard for conflict of law principles. The parties irrevocably consent to the exclusive personal jurisdiction of the federal and state courts located in San Francisco County, California.
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