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Terms of Service

This Agreement (“Agreement”) and the policies referred to herein contain the terms and conditions that govern your use of the Loyalize® software and services, located at http://www.loyalize.com (the “Website”) owned, operated, licensed, or controlled by Loyalize (“Company”). This Agreement includes the following policies, rules, and additional terms in the attached Appendices: Appendix A – Shopper Rules & Eligibility, Appendix B – Service Level Description.

PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT GOVERNS YOUR USE OF COMPANY’S LOYALIZE® SOFTWARE. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT OR ANY REVISED VERSION OF THIS AGREEMENT, PLEASE DO NOT USE THIS WEBSITE.

1. Acceptance.

By using the Website, or registering with the Website, you agree to be bound by this Agreement.  Company reserves the right, at its sole discretion, to change, modify, add, or remove portions of this Agreement at any time effective immediately upon notice. If you are a registered user, Company will notify you of any changes at the email address you provided during registration. Notice shall also appear on the Website.  Please check this Agreement periodically for changes. Continued use of the Website following the posting of changes to this Agreement will mean you have read and accept such changes. You separately acknowledge, agree, represent and warrant that any information provided by you to Company is true, accurate, correct, complete and that this representation is an essential and material provision of this Agreement.

 2.  Definitions.

“Authorized User” means any Shopper or other user authorized by Licensee to access and use the Licensor Software under this Agreement.

“Content” means all content, music, audio, video, audio-visual, text, graphics, artwork, images, photographs, animations, data, information, software, designs and other materials within the Licensor’s Software.

“Feedback” means suggestions or comments provided by Licensee or any Shopper to Licensor related to Licensor products (e.g., Licensor APIs or the Licensor Software).

“Licensor API” means Licensor’s API that allows Licensee access to or interoperability with the Licensor Software by a Software Application that enables Licensee to provide its Authorized Users access to websites of Stores (defined below) to purchase goods and services and earn cash back on purchases from the Stores.

“Licensor Software” means a software service or services made available to Licensee through a Licensor API that allows Licensee to provide to its Authorized Users access to the websites of  a selection of retailers, brands, and other participating partners (“Stores”) solely via the Licensor API to purchase goods and services from the Stores and earn cash back on such purchases. The access details are set forth  at https://loyalize.com/docs/api/. The API documentation address with the corresponding Licensor Software access information may be modified at any time and such modifications shall be effective upon notice. Licensor will notify Licensee of changes at the email address provided.

“Object Code” means Source Code that has been interpreted, compiled, or otherwise translated into a machine readable form.

“Shoppers” means Licensee’s customers who make purchases at Stores via the Licensor API.

“Software Application” means software authored by Licensee in Object Code or Source Code form that accesses or otherwise interoperates with the Licensor Software via the Licensor APIs.

“Source Code” means computer code in a human readable form and as such computer code that has not been interpreted or compiled.

“Use” means exercising a right to perform or display granted under 17 U.S.C. § 101 et seq., or other applicable copyright statute, as such right is limited by the licenses and restrictions of this Agreement, and does not include any right of assignment, modification, sublicense, or distribution.

3. Licensed Software.

Subject to the terms and conditions of this Agreement, Licensor grants to Licensee a revocable, limited, non-exclusive, non-assignable, right and license during the Term to “access” and “use” (as defined below) Licensor APIs, Licensor Software, Licensor’s proprietary software tools and resources (“Tools”), Content, and related services, to provide Licensee’s Shoppers with access to the Store websites. The Licensor API and Licensor Software is for use solely by Licensee and its Authorized Users as part of Licensee’s business of providing employee discount benefits programs to its customers. Except for the authorized use by Licensee as specified above, this license does not include: any resale or service bureau third-party commercial use of the Licensor APIs and Licensor Software, or Content; any derivative use of Licensor API and Licensor Software or Content; any downloading or copying of account information for the benefit of Licensee, or any other individual or business; or any use of data mining, robots, or similar automated data gathering and extraction tools. Except for the rights granted in this Agreement, Licensee may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form), of Licensor or our affiliates without express written consent. Any unauthorized use shall constitute a breach of this Agreement. Licensor shall host and operate the Licensor Software, make the Licensor API, and Licensor Software available and provide technical support with respect thereto in accordance with the Service Level Description attached hereto as Appendix B.

4. Title.

Title and full ownership rights to the Licensor API, and Licensor Software remain with Licensor.  The Licensor’s API and Licensor’s Software refers to all the proprietary software products marketed by Licensor, including, but not limited to application, programming language, and interface software regardless of form, as well as associated logic diagrams, flowcharts, specifications, and procedure manuals.  The Licensee hereby agrees (1) that the Licensor API. Licensor Software (and any copies) are the proprietary property, information, and trade secrets of Licensor, and are protected by civil and criminal law and the law of copyright; and (2) that it will not sell, disclose, display, or otherwise make available the Licensor API, and Licensor Software or any part thereof, to any person other than Licensee, Shoppers or Licensee employees without prior consent from Licensor.  If Licensee shall make any use, transfer or disclosure of the Licensor API, and Licensor Software in violation of any of the terms and conditions of this Agreement, it shall constitute a breach of this Agreement. Licensee shall not intentionally take any action that might adversely affect Licensor’s proprietary rights or in any manner interfere with Licensor’s right to enter into agreements with other prospective resellers, licensees, or users for the use of the Licensor API and Licensor Software.  If the Licensee shall permanently cease doing business, become insolvent, have a receiver appointed, or be declared bankrupt, the License granted by this Agreement terminates unless Licensee resumes doing business, becomes solvent or has the receivership or bankruptcy proceeding dismissed, in each case within sixty (60) days after Licensor delivers written notice to Licensee regarding the proposed termination. Licensor shall own all legally-protectable elements of the Licensor API and Licensor Software including, without limitation, to the extent legally protectable, the selection, sequence, “look and feel” and arrangement of items, as well as all copyrights, trademarks, service marks, brand and trade names and our services, tangible or intangible, created or used by Licensor. Loyalize, LOYALIZE® and LOYALIZE.COM are trademarks of Licensor.

5. Licensor Services & Fees.

Licensor shall provide access to Licensor API and Licensor Software to Licensee but not to Shoppers. Shoppers shall use the Licensor API through Licensee’s websites and Licensor shall not collect or otherwise receive any personal or other data relating to Customers or otherwise interact with Shoppers. Licensor provides software and information only. Specific services or deliverables are set forth on the Order Form.

5.1       Fees & Payment.  Licensee shall receive a referral fee from Licensor on eligible sales by the Shoppers equal to a variable percentage of the fees paid by the Stores to Licensor for the applicable Tier set forth on the Order Form (“Commission”). Licensee agrees there may be a delay between the date Shoppers access the Stores and the date that Commissions become payable. Commissions are payable only for transactions with “Available” status (defined in the Order Form).  Licensor shall collect from the Stores all referral fees generated from Shopper transactions with Stores originating from Licensee’s Shoppers via the Licensor API and shall pay to Licensee the Commission within forty five (45) business days of the date of receipt of fees, subject to Licensor’s right to withhold some or all of the Commissions that become subject of a Fraudulent Activity Review (see Appendix A). Licensee shall determine what portion of the Commission paid to it by Licensor shall be distributed to Shoppers as cashback on Shopper purchases from the Stores based on the agreements that Licensee has executed with its Shoppers. Each party shall be responsible for paying its own taxes, if any, with respect to all payments received under this Agreement. Licensee shall reimburse, defend and indemnify Licensor for any costs, fees, charges, or penalties assessed against Licensor related to Licensee’s failure to pay taxes required to be collected and/or paid with respect to payments made to Licensee hereunder. Licensor shall provide a report to Licensee together with each Commission payment detailing the calculation of all payments received by Licensor from the Stores and all Commission payments to Licensee, including all taxes paid and/or payable with respect thereto, and any amounts held back as a result of a pending Fraudulent Activity Review.

5.2       Licensee agrees that it shall require that all Authorized Users agree to the Shopper Rules and Eligibility, attached hereto as Appendix A. Licensee agrees that this is material condition of this Agreement and License granted hereunder.

6. Content & Access.

6.1        Access. The words “use” or “using” or “consumer” or “consuming” in this Agreement, means any time any individual, including Licensee or any Shopper, directly or indirectly, with or without the aid of a machine, automated or other device, does or attempts to access, interact with, use, display, view, print or copy or use any portion, feature, function or aspect of the Licensor API,  Licensor Software, Content, transmit, receive or exchange data or communicate with the Licensor Software, or in any way utilizes, benefits, takes advantage of or interacts with any function, service or feature of the Licensor API and Licensor Software for any purpose whatsoever.

6.2        System Requirements. Use of the Licensor API and the Licensor Software requires Internet access, third-party software and may require obtaining updates or upgrades with respect thereto from time to time. Therefore, the ability to use the Licensor API and the Licensor Software may be affected by these factors. Licensee acknowledges and agrees that such system requirements are exclusively Licensee’s responsibility.

6.3      Representations. Each party hereby represents that: (a) its obligations under this Agreement shall not be inconsistent with any obligation it may have to others; (b) Licensee shall require each Authorized User consent to the restrictions and obligations set forth in this Agreement; (c) Licensee shall not cause Licensor to become subject to a claim of infringement of any third party copyright, trademark, service mark, trade name, patent, trade secret or other intellectual property or proprietary right, or right of publicity or privacy, or claim for libel, slander, defame or disparagement (any of the forgoing shall hereafter be referred to as a “Third Party Claim”) based on Licensee’s trademarks or Licensee-provided content. Licensor represents and warrants that it has all necessary rights, power and authorization to provide the Licensor API, Licensor Software, and Content to Licensee and its Authorized Users and the Licensor API to Shoppers for their access and use as provided under this Agreement and that the access and use of the Licensor API, Licensor Software and Content by Licensee and its Authorized Users and access and use of the Licensor API by Shoppers in accordance with this Agreement shall not infringe or otherwise violate any third party copyright, trademark, service mark, trade name, patent, trade secret or other intellectual property or proprietary right, or right of publicity or privacy, or result in any third party claim for libel, slander, defamation or disparagement, or violation of applicable laws. 

7. Restrictions on Use.

7.1      Acceptable Use Policy. Licensee shall not remove or hide any disclaimers in information displayed to Shoppers.  Licensee agrees that Licensee will not, and will not permit others to: (i) damage, interfere with, or overload, the Licensor API; (ii) introduce into the Licensor API or Licensor Software any code intended to disrupt operations; (iii) alter or delete any information, data, text, links, images, software, chat, communications and other content available through the Licensor API; (iv) access the Licensor API or Licensor Software by expert system, electronic agent, “bot” or other automated means; (v) use scripts or disguised redirects to derive financial benefit from Licensor; (vi) modify, reverse engineer, reverse assemble, decompile, copy or otherwise derive the source code of any Licensor API or Licensor Software for any reason; (vii) rent, sell or sublicense any of the Licensor API or Licensor Software; (viii) provide any unauthorized third party with access to the Licensor API or Licensor Software; (ix) access or attempt to access third party confidential information through the Licensor API or Licensor Software; (x) interfere with the operation of the Licensor API or Licensor Software, including, but not limited to, distribution of unsolicited advertising or mail messages and propagation of computer worms and viruses; (xi) post any material in any form whatsoever on the Licensor API or Licensor Software that is defamatory, obscene or otherwise unlawful or violates any third party’s right of privacy or publicity; (xii) engage in any fraudulent, deceptive, or misleading activity through the use of the Licensor API or Licensor Software; (xiii) use the manual or automated software, devices or other processes to “scrape,” “crawl,” “spider” or index any content from the Licensor API or Licensor Software.

7.2        Fraudulent Activity. Licensee reserves the right to investigate any transactions, activity, or Store interaction that Licensee may, in its sole discretion, deem suspicious, abusive, unethical, fraudulent, or otherwise in violation of Merchant Policies, Referral Program rules or conditions, Licensor’s rights, this Agreement, or any other applicable law or regulation (“Fraudulent Activity”). Licensee reserves the right to rescind any cashback, bar further cashback awards and/or bonuses, and/or terminate any Shopper’s account due to Fraudulent Activity.  Fraudulent Activity includes but is not limited to engaging in a pattern of returning products after the corresponding cashback has been credited, making fraudulent referrals, and creating multiple accounts. Multiple accounts with the same name, address, email address or other identifying feature may be flagged as Fraudulent Activity. If Licensor has any reason to suspect fraudulent activity is associated with Shopper’s account, Licensor reserves the right to delay or withhold payment of cash back. Any suspected or actual cases of fraud activity will be escalated and reviewed in accordance with Licensor’s Fraudulent Activity review process. Licensee’s decisions are final. In the event that you dispute adjustments to your account or payments made to you, your sole remedy is to withdraw from the Loyalize® Agreement.

 7.3      Violations. In addition to any and all remedies at law or in equity, any intentional violation of any obligation under this Agreement shall constitute a breach of this Agreement. Violations of the Acceptable Use Policy by a Shopper may result in immediate suspension of a Shopper’s access. Licensor shall provide Licensee and Shopper notice of any suspected or actual violation of the Acceptable Use Policy.

8. Confidentiality; Privacy.

8.1     Confidentiality.

8.1.1      No Publicity. During the Term of this Agreement and at all times after the termination or expiration of this Agreement, neither party shall make any media release or other public announcement relating to or referring to this Agreement or the other party without prior written consent. Neither party shall acquire any right to use, and shall not use, without the other’s prior written consent, a party’s names, trade names, trademarks, service marks, or copyrighted materials or any other intellectual property rights in any manner other than as expressly authorized in writing.

8.1.2      Confidential Information. Except as provided in Section 8.1.3 (Exclusions), each party agrees that all information supplied by one party and its affiliates and agents (and in the case of Licensee, any information provided to Licensor by its Authorized Users) (collectively, the “Disclosing Party”) to the other party (“Receiving Party”) including, without limitation, (a) source code, prices, trade secrets, databases, designs and techniques, search engine protocols, models, displays and manuals, and the selection, coordination, and arrangement of the contents of such materials; and (b) any unpublished information concerning research activities and plans, customers, marketing or sales plans, sales forecasts or results of marketing efforts, pricing or pricing strategies, costs, operational techniques, strategic plans, information relating to customers, business partners, and personnel, Personal Data (as defined below), and unpublished financial information, including information concerning revenues, profits and profit margins will be deemed confidential and proprietary to the Disclosing Party, regardless of whether such information was disclosed intentionally or unintentionally or marked as “confidential” or “proprietary” (“Confidential Information”).

8.1.3      Exclusions. Confidential Information will not include any information or material, or any element thereof to the extent any such information or material, or any element thereof: (a) has previously become or is publicly available, unless it has become publicly available through a breach of this Agreement or a similar confidentiality or non-disclosure agreement, obligation or duty; (b) was already rightfully known to the Receiving Party prior to being disclosed by or obtained from the Disclosing Party only if evidenced by written records kept in the ordinary course of business or by proof of actual use by the Receiving Party; (c) has been or is hereafter rightfully received by the Receiving Party from a third person (other than the Disclosing Party) without restriction on disclosure and without breach of a duty of confidentiality to the Disclosing Party; or (d) has been independently developed by the Receiving Party without access to Confidential Information of the Disclosing Party. It will be presumed that any Confidential Information in a Receiving Party’s possession is not within exceptions (b), (c) or (d) above, and the burden will be upon the Receiving Party to prove otherwise by records and documentation.

8.1.4      Duty of Confidentiality. The Receiving Party will hold any and all Confidential Information it obtains from the Disclosing Party in strictest confidence and will use and permit use of Confidential Information solely for the purposes of this Agreement. Without limiting the foregoing, the Receiving Party shall use at least the same degree of care to avoid disclosure or use of such Confidential Information as the Receiving Party employs with respect to its own Confidential Information of a like importance, which shall not be less than the standard of care imposed by applicable laws and regulations relating to the protection of such information and, in the absence of any legally imposed standard of care, the standard shall be that of a reasonable person under the circumstances. The Receiving Party may disclose or provide access to its responsible employees who have a need to know and may make copies of Confidential Information only to the extent reasonably necessary to carry out its obligations hereunder. The Receiving Party currently has, and for so long as it possesses Confidential Information of the Disclosing Party, it will maintain in effect and enforce, rules and policies to protect against access to or use or disclosure of Confidential Information other than in accordance with this Agreement, including without limitation written instruction to and agreements with employees and agents who are bound by an obligation of confidentiality no less restrictive than set forth in this Agreement to ensure that such employees and agents protect the confidentiality of Confidential Information. The Receiving Party will notify the Disclosing Party immediately of any unauthorized disclosure or use of which it becomes aware, and will cooperate with the Disclosing Party at the Disclosing Party’s cost to protect all proprietary rights in and ownership of its Confidential Information.

8.1.5      Retention of Personal Data. Licensee shall not transfer to Licensor, and Licensor shall not gather, retrieve, retain, store, transfer or use Personal Data.  In the event that Licensor receives any Personal Data Licensor will not retain any Personal Data except to the extent and not for longer than necessary (a) to fulfill its obligations under this Agreement, or (b) to comply with any law, rule or regulation. Inadvertent receipt of Personal Data shall not be a breach of this Agreement.

8.1.6      Compelled Disclosures. To the extent required by applicable law or by lawful order or requirement of a court or governmental authority having competent jurisdiction over the Receiving Party, the Receiving Party may disclose Confidential Information in accordance with such law or order or requirement, subject to the following conditions: as soon as possible after becoming aware of such law, order or requirement and prior to disclosing Confidential Information pursuant thereto, the Receiving Party will so notify the Disclosing Party in writing and, if possible, the Receiving Party will provide the Disclosing Party notice not less than five (5) business days prior to the required disclosure. The Receiving Party will use reasonable efforts not to release Confidential Information pending the outcome of any measures taken by the Disclosing Party to contest, otherwise oppose or seek to limit such disclosure by the Receiving Party and any subsequent disclosure or use of Confidential Information that may result from such disclosure. The Receiving Party will cooperate with and provide assistance to the Disclosing Party regarding such measures. Notwithstanding any such compelled disclosure by the Receiving Party, such compelled disclosure will not otherwise affect the Receiving Party’s obligations hereunder with respect to Confidential Information so disclosed.

8.1.7      Return of Confidential Information. Upon written request or upon expiration or termination of this Agreement for any reason, the Receiving Party will promptly: (a) return or destroy, at the Disclosing Party’s option, all of the other’s Confidential Information in its possession.

8.1.8      Non-Exclusive Equitable Remedy. Each Party acknowledges and agrees that due to the unique nature of Confidential Information there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach or threatened breach may allow a party or third parties to unfairly compete with the other party resulting in irreparable harm to such party, and therefore, that upon any such breach or any threat thereof, each party will be entitled to appropriate equitable remedies, and may seek injunctive relief from a court of competent jurisdiction without the necessity of proving actual loss, in addition to whatever remedies either of them might have at law or equity.

8.2   Additional Privacy Obligations. Licensor shall preserve and respect the privacy of Licensee’s Shoppers. Shopper transactions shall be only be referenced or identified using nonidentified User ID numbers. Each user shall remain solely responsible for the content of its messages. Shoppers are subject to Licensee’s Privacy Policy. Each party agrees to maintain privacy policies necessary to ensure such party’s, and in the case of Licensor’s privacy policy, Licensee’s compliance with state and federal privacy and data breach notification laws. Neither party shall have any liability to the other party for the other party’s failure to do so.

9. Indemnity.

Licensee shall indemnify, defend and hold harmless Licensor, its directors, officers, employees, agents and contractors from and against any and all liabilities, claims, costs, assessments, fees or expenses of any kind, including without limitation defense costs and reasonable attorneys’ fees arising from or related in any way to Licensee’s violation of this Agreement, Licensee’s failure to comply with applicable laws, regulations or other legal requirements, Licensee’s security breaches and any Third Party Claim arising from a Licensee’s action or inaction. Licensor shall promptly notify Licensee in writing of any claim, provided that any delay in providing such notice shall not eliminate or reduce License’s obligations hereunder except to the extent that such delay prevents or materially diminishes License’s ability to defend or settle a claim, and shall allow the indemnifying party to control the conduct of any related defense or settlement negotiations.

 

Notwithstanding the foregoing, Licensee shall not settle a third-party claim without the Licensor’s prior written consent, which consent shall not be unreasonably withheld, conditioned, or delayed, if such settlement shall require action or payment by Licensor, or require that Licensor admit fault or liability.

 

If the Licensor API, Licensor Software or Content, or any portion of them, become or are likely to become the subject of an infringement claim, then Licensor may, at its option and in its sole discretion, either (a) immediately replace or modify the infringing items without loss of material functionality or performance, to make them non-infringing or (b) immediately procure for Licensee the right to continue using the infringing items pursuant to this Agreement. Any costs associated with implementing either of the above alternatives will be borne by Licensor. If Licensor fails to provide one of the foregoing remedies within ninety (90) days after delivery of notice of the infringement claim to Licensor, Licensee shall have the right, at its sole option, to elect to terminate this Agreement.

10. Termination.

This Agreement is effective on the Effective Date and shall remain in effect unless terminated earlier.

11. Jurisdiction.

Unless otherwise specified, the Licensor API and the Licensor Software are available solely for the purpose of promoting products and/or services available in the United States, its territories, possessions, and protectorates. The Licensor API and the Licensor Software is controlled and operated by Licensor from its offices within the State of Virginia United States of America. Licensor makes no representation that materials in the Licensor API and the Licensor Software or products purchased through the Licensor API and the Licensor Software are appropriate or available for use in other locations outside of the United States, its territories, possessions or protectorates. Those who choose to access the Licensor API and the Licensor Software from other locations do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. Each party shall comply with all applicable laws, regulations and other legal requirements (U.S. and foreign as applicable) with respect to the conduct of its business.

12. Disclaimer.

EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, THE LICENSOR SOFTWARE AND the LICENSOR API ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, EACH PARTY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

 EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, Licensor DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN the LICENSOR SOFTWARE OR the LICENSOR API SHALL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE LICENSOR SOFTWARE AND the LICENSOR API OR THE SERVER(S) THAT MAKES the SOFTWARE, API OR MATERIALS AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, Licensor DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE LICENSOR SOFTWARE OR the LICENSOR API IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.

Licensor IS NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY SHOPPER OR STORE. Licensor ASSUMES NO RESPONSIBILITY AND SHALL NOT BE LIABLE FOR ANY ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, OR ALTERATION OF, THE LICENSOR SOFTWARE AND the LICENSOR API CAUSED BY LICENSEE OR LICENSEE’S AUTHORIZED USERS. Licensor IS NOT RESPONSIBLE FOR ANY PROBLEMS OR TECHNICAL MALFUNCTION OF ANY THIRD PARTY TELEPHONE NETWORK OR LINES, THIRD PARTY COMPUTER ONLINE SYSTEMS, SERVERS OR PROVIDERS, THIRD PARTY COMPUTER EQUIPMENT OR SOFTWARE, OR THE FAILURE OF EMAIL ON ACCOUNT OF TECHNICAL PROBLEMS OR TRAFFIC CONGESTION ON THE INTERNET, INCLUDING INJURY OR DAMAGE TO ANY PERSON’S COMPUTER RELATED TO OR RESULTING FROM PARTICIPATING OR DOWNLOADING MATERIALS IN CONNECTION WITH THE LICENSOR SOFTWARE AND the LICENSOR API THAT ARE NOT EXCLUSIVELY ATTRIBUTABLE TO LICENSOR OR DEFECTS OR OTHER PROBLEMS WITH THE LICENSOR API, LICENSOR SOFTWARE OR CONTENT.

13. Limitation of Liability.

EXCEPT WITH RESPECT TO CLAIMS BASED ON THE LICENSEE’S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT, OR BREACH OF THE INFRINGEMENT INDEMNIFICATION OR CONFIDENTIALITY OBLIGATIONS HEREUNDER, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER BASED IN CONTRACT, TORT OR OTHERWISE, WHICH ARISES OUT OF OR IS ANY WAY CONNECTED WITH (I) ANY USE OF THE LICENSOR SOFTWARE AND the LICENSOR API OR (II) ANY FAILURE OR DELAY (INCLUDING, BUT NOT LIMITED TO, THE USE OR INABILITY TO USE ANY COMPONENT OF THE LICENSOR SOFTWARE OR the LICENSOR API). IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY FOR ANY ITEM PURCHASED BY A SHOPPER FROM A STORE. EXCEPT FOR INDEMNIFICATION OBLIGATIONS HEREUNDER, AND EXCEPT WITH RESPECT TO CLAIMS RESULTING FROM THE GROSS NEGLIGENCE, BAD FAITH, BREACH OF THE CONFIDENTIALITY AND DATA SECURITY OBLIGATIONS OF THIS AGREEMENT OR INTENTIONAL MISCONDUCT OF THE APPLICABLE PARTY, IN NO EVENT SHALL EITHER PARTY BE HELD LIABLE TO THE OTHER PARTY FOR ANY AMOUNT EXCEEDING THE COMMISSIONS RECEIVED BY LICENSEE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE MAKING OF A CLAIM.

14. Miscellaneous.

This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware and the parties agree that this Agreement shall be deemed to have been entered into and performed exclusively in the State of Delaware. Licensee agree that the state or federal courts located in Wilmington, Delaware shall have exclusive jurisdiction over any action at law or in equity arising out of or relating to this Agreement. Each party hereby consents and submits to the personal jurisdiction of such courts for the purposes of adjudicating any such action. If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions, and the provision held to be unlawful, void or unenforceable shall be modified if possible to the extent necessary to become lawful, valid and enforceable and the Agreement shall be deemed to be amended to replace the unlawful, void or unenforceable provision with the modified provision. No other amendment, modification or claimed waiver of any provision of this Agreement shall be valid except when written and signed by authorized representatives of Licensor and Licensee.

15. Force Majeure.

If either party cannot perform any of its obligations because of any Acts of God, strikes, lockouts, or other industrial disturbances, acts of the public enemy, wars, blockades, riots, epidemics, lightning, earthquakes, explosions, accidents or repairs to machinery or pipes, delays of carriers, inability to obtain materials on reasonable terms, acts of public authorities, or any other causes, whether or not of the same kind as enumerated herein, not within the party’s reasonable control and could not be avoided through the exercise of reasonable care and diligence (a “Force Majeure Event”), then the non-performing party will: (a) immediately notify the other party; (b) take reasonable steps to resume performance as soon as possible; and (c) not be considered in breach during the duration of the Force Majeure Event. In the event a Force Majeure Event continues for a period of thirty (30) days, Licensee may terminate this Agreement by providing written notice to Licensor. Notwithstanding the foregoing, a Force Majeure Event will not relieve either party of its obligations with respect to confidentiality hereunder. Licensor shall retain any cashback notwithstanding the cancellation of this Agreement for force majeure.

16. Assignment.

Neither party may assign, transfer or delegate its rights or obligations under this Agreement without the prior written consent of the other party, which consent shall not be withheld, conditioned or delayed unreasonably, and except that either party may assign this Agreement to an Affiliate, or in connection with a sale of all or substantially all of its assets without the prior written consent of the other party being required, provided that the assignee agrees in writing to assume the assignor’s obligations under this Agreement and in the case of an assignment of this Agreement in connection with a sale of all or substantially all of the assignor’s assets, the assignee has at least the same or substantially the same financial and technical capability to perform the assignor’s obligations under this Agreement.  All the terms and provisions of this Agreement will be binding upon and inure to the benefit of the parties, their successors, assigns and legal representatives. As used herein, “Affiliate” means any person or entity directly or indirectly controlling or having the power to control, or controlled by or being under common control with another person or entity.  For this purpose, “control” means the direct or indirect possession of power to direct or cause the direction of the management or policies of such party, whether through ownership or stock or other securities, by contract or otherwise.  Ownership of more than fifty percent (50%) of the beneficial interest of an entity shall be conclusive evidence that control exists.

17. Entire Agreement.

This Agreement including the Appendices, exclusively and completely states the rights, duties and obligations of the parties as to its subject matter, and supersedes all prior and contemporaneous representations, letters, proposals, discussions and understandings by or between the parties as to its subject matter.

18. Independent Contractors.

Licensor is an independent contractor and is not an agent or employee of,

and has no authority to bind, Licensee by contract or otherwise. Licensor will determine, in Licensor’s sole discretion, the manner and means by which the services are accomplished, subject to the requirement that Licensor will at all times comply with applicable law. Further, it is not the intention of this Agreement or of the parties to confer a third party beneficiary right of action upon any third party or entity whatsoever, and nothing in this Agreement will be construed so as to confer upon any third party or entity other than the parties hereto a right of action under this Agreement or in any manner whatsoever.

19. Survival.

The following Sections shall survive any termination or expiration of this Agreement: Sections 3, 4, 6, 7, 8, 9, 12, 13, and 19 (including all subsections).

20. Notices.

All notices under this Agreement will be in writing and will be deemed to have been duly given if delivered personally or by an internationally recognized courier service or mailed by U.S. registered or certified mail, return receipt requested, postage prepaid, to the parties at the addresses set forth herein. All notices under this Agreement that are addressed as provided in this Section, (a) if delivered personally or by a nationally recognized courier service, will be deemed given upon delivery, or (b) if delivered by mail in the manner described above, will be deemed given on the relevant party’s receipt of the notice. All notices shall be sent by certified mail or by personal delivery, to the addresses specified in the Order Form. Either party may change its address or designee for notification purposes by giving notice to the other of the new address or designee and the date upon which such change will become effective.

21. Counterparts.

This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and will become effective and binding upon the parties as of the Effective Date at such time as all the signatories hereto have signed a counterpart of this Agreement.

22. Electronic Signatures and Facsimiles Binding.

This Agreement and related documents may be accepted in electronic form (e.g., by an electronic or digital signature or other means of demonstrating assent) and will be deemed binding between the parties. Licensor acknowledges and agrees it will not contest the validity or enforceability of this Agreement and related documents, including under any applicable statute of frauds, because they were accepted or signed in electronic form. Licensor further acknowledges and agrees that it will not contest the validity or enforceability of a signed facsimile copy of this Agreement and related documents on the basis that it lacks an original handwritten signature. Facsimile signatures shall be  considered  valid  signatures  as  of  the  date  hereof. Computer maintained records of a party when produced in hard copy form shall constitute business records and shall have the same validity as any other generally recognized business records.

Appendix A – Shopper Rules & Eligibility

This Appendix A and the terms and conditions contained herein apply to any Licensee and any Shopper who creates an account with Licensee (“Account”). Licensee shall require its Shoppers to agree to these Shopper Rules and Eligibility Terms.

  1. Member Accounts, Passwords & Security. Shoppers will access Licensee’s Software via accounts created with the Licensee. Shoppers are responsible for maintaining the confidentiality of the password and Account with Licensee, and are fully responsible for all activities that occur using such password or Account. Shopper agrees to (a) immediately notify Licensee of any unauthorized use of Shopper’s password or account or any other breach of security of which Shopper become aware, and (b) ensure that Shopper  exits from its account at the end of each session.

 

  1. Eligibility. Use of the Licensor API is intended for residents of the United States, age 18 or older. Shopper’s Account will be tied to a User ID, which is the only information that Licensor will have access to regarding Shoppers.

 

  1. Cashback. Licensee shall distribute all cashback to Shoppers based on the agreements that Licensee has executed with its Shoppers as determined by Licensee. Shoppers agree to look solely to Licensee for distributing cash back and Licensor shall have no liability for Licensee’s failure to do so.

 

  1. Maintaining an Account. Shopper agrees to keep Account information current, complete and accurate by periodically updating the information. It is a violation of this Agreement to create duplicate Accounts, and each such violation shall result in suspension of duplicate Accounts (and possibly Shopper’s original Account) and forfeiture of cashback attributable to such duplicate Account(s).

 

  1. Fraudulent Activity. Licensee reserves the right to investigate any transactions, activity, or Store interaction that Licensee may, in its sole discretion, deem suspicious, abusive, unethical, fraudulent, or otherwise in violation of Merchant Policies, Referral Program rules or conditions, Licensor’s rights, this Agreement, or any other applicable law or regulation (“Fraudulent Activity”). Licensee reserves the right to rescind any cashback, bar further cashback awards and/or bonuses, and/or terminate any Shopper’s account due to Fraudulent Activity. Fraudulent Activity includes but is not limited to engaging in a pattern of returning products after the corresponding cashback has been credited, making fraudulent referrals, and creating multiple accounts. Multiple accounts with the same name, address, email address or other identifying feature may be flagged as Fraudulent Activity. If Licensor has any reason to suspect fraudulent activity is associated with Shopper’s account, Licensor reserves the right to delay or withhold payment of cash back. Any suspected or actual cases of fraud activity will be escalated and reviewed in accordance with Licensor’s Fraudulent Activity review process. Licensee’s decisions are final. In the event that you dispute adjustments to your account or payments made to you, your sole remedy is to withdraw from the Loyalize® Agreement.

 

  1. Store Terms. Shopper expressly agrees that any transaction is subject to the terms, conditions, rights and restrictions of the Stores, if any, in the Service. Such additional terms are available through the Licensor API.

Appendix B –Service Level Description

  1. Licensor Software. Licensor will host and operate the Licensor Software, and will provide technical support services to Licensee (including responding to technical problems) with respect to the Licensor API, the Licensor Software, and the Content in accordance with this Service Level Description. 
  2. Updates and Enhancements. Licensor agrees that, at no cost to Licensee, Licensor shall deploy to the Licensor API and Licensor Software, any Updates and/or Enhancements made by Licensor to the Licensor API and Licensor Software as such Updates and/or Enhancements are made generally available by Licensor to its other customers. 
  3. Training. At no cost to Licensee, Licensor make documentation and training materials available online.
  4. Licensor Software Service Level Description

4.1.       Uptime Commitment.  The Licensor API and Licensor Software shall be available to Licensee’s Authorized Users, and the Licensor API will be available to Shoppers (“Uptime”) 99.5 % of each calendar month commencing upon the first month in which the Licensor API and Licensor Software is available to Licensee’s users.  Uptime shall be calculated for the Licensor API and Licensor Software by subtracting the cumulative minutes of Downtime in a month from the total number of minutes in the applicable month, and representing the remaining minutes as a percentage of the total number of minutes in that month (i.e., total monthly minutes – cumulative minutes of Downtime/total monthly minutes). 

            4.2.       Issue Communication and Escalation. Licensor will provide the following support to Client

Severity Levels:

Severity 0:  Site down

Severity 1:  Major feature inoperative

Severity 2:  Minor feature inoperative Feature unexpected behavior

4.2.1      Escalation Process: Problems should be reported immediately to the Licensor’s Technical  Service Support team via Service Desk. Licensor will provide continuous support for all system-related issues and major failures until resolved. Licensor will track all reported issues specific to the Licensor API and Licensor Software on an ongoing basis and will review with Licensee’s technical contact to discuss intended resolutions minimally on a monthly basis, but more frequently as required, based on severity level.         

  1. Internet Delays. Licensee acknowledges and agrees that Licensor has no control over access to or the functioning of the Internet nor the method, mode, speed, connection type or reliability of a Shoppers’ access to the Licensor API and Licensor Software.  Services and the Licensor API and Licensor Software may be subject to unavailability, limitations, delays, or other problems inherent in the use of the internet and electronic communications not attributable to Licensor, the Licensed API, the Licensor Software. In no event shall Licensor have any liability for any such unavailability, delays or damages arising solely from such problems.