Merchant Terms of Service
Last updated: June 22, 2015
Welcome to Rewardy’s Merchant Program!
Rewardy, Inc. (“Rewardy”, “we”, “our” or “us”), offers merchants, a platform for customer loyalty and retention programs, through its site and software (collectively the “Service” or “Platform”), subject to the Terms of Service set forth herein (the “Terms”).
PLEASE READ THESE TERMS CAREFULLY BEFORE USING OUR SITE OR SERVICES, AND CHECK THEM PERIODICALLY FOR CHANGES. BY REGISTERING FOR, USING OR ACCESSING THE SERVICES OR ANY PART THEREOF, YOU AGREE TO BE BOUND BY THESE TERMS AND AGREE THAT SUCH TERMS CONSTITUTE A LEGALLY BINDING AGREEMENT BETWEEN YOU AND US. IF YOU DO NOT AGREE TO BE FULLY BOUND BY ALL OF THESE TERMS, YOU ARE REQUIRED NOT TO MAKE ANY USE OF THE SERVICES.
PLEASE NOTE THAT WE RESERVE THE RIGHT, AT OUR SOLE DISCRETION, TO REVISE THESE TERMS, AT ANY TIME WITHOUT NOTICE.
In these Terms of Service, the following terms shall have the meaning set forth beside them:
“Merchant” or “you” shall mean you and any merchants or franchises you represent.
“Customer” means a customer or a potential customer of the Merchant who registers with Rewardy and participates in any of the Loyalty Programs (as defined below).
“Loyalty Program” means any of the loyalty and retention programs (including but not limited to, digital punch cards, pre-paid programs (including as set forth in Section ý5.5 herein), digital gift cards, digital saver cards, sweepstakes, digital scratch cards, mobile payment solutions and/or any other service that may be made available from time to time) offered by a Merchant through the use of the Platform.
2. THE SERVICES, REGISTRATION AND ACCESS
2.1. The Services enable you to offer your customers various Loyalty Programs via mobile devices based applications, web site and/or swipe cards, complemented by various information and advertising programs, which operate independently or as an integrated service to the business's payment infrastructure used by the Merchant, as well as facilitation of payment through associated payment means that may be incorporated into the Services. The Platform provides the Merchant with various management and/or administration interfaces that allows the Merchant to track, manage and modify the various said programs and features. The Services also enable the Merchant to extend to the Customers various marketing messages (such as special offers, announcements, discounts etc. (collectively “Promotions”).
2.2. In order to access and use our Services, you must register for the Services as a Merchant, complete the sign up and create an account (the “Account”), either directly through our site: www.rewardy.com (the “Site”), by contacting our Customer Service at: firstname.lastname@example.org or via a sales representative, agent, affiliate or a partner or any other authorized representative of Rewardy, or through other sign up means we will provide you with (a “Sign Up Process”).
2.3. Please note that we reserve the right to decline to provide the Services to any person or entity for any or no reason, to suspend, change or terminate the Services, at our sole discretion, with or without prior notice.
2.4. If and when you register as a Merchant or otherwise use the Services, you represent and warrant that: (i) you are of legal age and capacity to form a binding contract; (ii) you have provided us with accurate, current and complete information about yourself (including, but not limited to, your business name and address, email address, your phone number, payment method and contact person details) and you undertake to keep such information updated at all times while obtaining the Services; (iii) to the extent you represent several merchants or franchises, that you are acting as their authorized representative, and that you agree to be responsible for their compliance with these Terms; and (v) your registration and your use of the Services will be consistent with the foregoing license, covenants and restrictions, is not prohibited by any applicable law and will not infringe nor violate the rights of any other party.
In addition, you agree that you will comply with any laws, applicable to the use of the Services by you, and that you will not engage in any fraudulent conduct attempting to unlawfully use and take advantage of the Services.
2.5. We also reserve the right, to suspend or terminate, according to our sole discretion and without providing any prior notice, your registration or access to the Services or the Site (including access provided to your Customers to your Loyalty programs), in the event that you breach any term of this Agreement, including without limitation, by failure to timely pay us the Services’ fees).
2.6. You are solely responsible for your Account activity. We urge you to keep your account password secure and to always log-off from the Services when leaving the device through which you accessed the Service unattended.
2.7. In addition, you are aware that the responsibility for obtaining and maintaining any hardware, facilities, connections or equipment required for the use of the Services (such as, computer, cash register, payment processing terminal, mobile device, internet connection and telecommunications), as well as any payments associated therewith, is yours alone. We are not and will not bear any liability for any cost, expense, loss or other damage you may suffer with respect to such hardware, facilities, connections or equipment, in connection with use of the Service.
3.1. The Services and the Platform, including any enhancements, derivatives and improvements thereof, are the sole property of Rewardy. Without limitation of the foregoing, all the text, images, sound, music, marks, logos, compilations (meaning the collection, arrangement and assembly of information) and other content on this website or Service (collectively, the “Service Content”), and all software embodied in the Services or Platform or Rewardy servers or otherwise used by Rewardy to deliver the Services (“Software”), are proprietary property of Rewardy and/or its Affiliates or licensors and are protected by copyright and other intellectual property laws.
3.2. Any rights with respect to the Software, Services, Platform or Service Content (collectively, the “Rewardy Property”) which are not expressly granted herein are reserved by Rewardy.
3.3. Any rights in the specific content provided by the Merchant and Merchant’s trade names, trademarks, and logos shall at all times remain with Merchant (“Merchant Property”). By registering for the Services you grant us a non-assignable, and non-exclusive right to use the Merchant Property solely for the purpose of providing the Services. You hereby represent that you have the full right to use the Merchant Property as contemplated by the Services and that such property does not and will not infringe upon the copyright or any other proprietary right of any third-party.
4. LICENSE, RESTRICTION
4.1. We grant you a personal, revocable, non-assignable, and non-exclusive right to access and use the Services, provided that you fully comply with the provisions of these Terms.
4.2. You may not rent, lease, lend, sell, redistribute or sublicense the Services or any part thereof, or any other part of Rewardy Property. You may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the underlying platforms of the Services or any other part of the Rewardy Property or in any other way manipulate the Services.
4.3. You may not remove any copyright, trademark or other proprietary notices that have been placed on the Rewardy Property.
4.4. You may not exploit the Services in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity and you may not use the Services for any illegal purpose, or in violation of any applicable law, including, without limitation, laws governing intellectual property and other proprietary rights, data protection and privacy.
4.5. We reserve the right to apply limits on the use of the Services, for example, by limiting the available features, or number of supported Customers, based on the Services package you elect to acquire. We further reserve the right to publish such limitations, have them differ from Merchant to Merchant, or change such limitations at will, in each case in our sole discretion.
4.6. You may not access the Services other than by the interfaces provided by Rewardy or interfere with or disrupt their proper operation.
5. RESPONSIBILITY FOR OFFERINGS
5.1. Any Loyalty Program, Promotion or other offering communicated by or on behalf of the Merchant to Customers through the Services (by whomever created) as well as any other communication between the Merchant and the Customers (collectively, “Customer Communication”) are made at Merchant’s own risk and expense. For avoidance of doubt, Rewardy does not and will not assume any responsibility or liability with respect to any Customer Communication, even if it has assisted the Merchant in planning or conducting such Customer Communication.
5.2. Merchant represents and warrants that the Customer Communication (i) will not infringe upon the intellectual property rights, moral rights, contractual rights, privacy rights or any other right of a third party; (ii) will not contain material that is obscene, defamatory, libelous, racially or ethnically insensitive, harassing, threatening or otherwise offensive; (iii) will not contain pornography or material that may be harmful to a minor; (iv) will not contain any virus, worm, Trojan horse, or other harmful or disruptive component; (v) will not be misleading, deceptive or unlawful; (vi) will be managed by Merchant in a fair and non-abusive manner, in compliance with any applicable law (including without limitation regarding advertising, marketing and promotional content and services) and in a respectful manner towards the Customer; (vii) will not include any offerings which are prohibited by law.
5.3. Merchant shall remain at all times solely responsible for the full accuracy, reliability, integrity, quality or validity of its Customer Communication, and all aspects thereof, including without limitation – the terms and conditions of such offerings and the quality of the goods or services offered by the Merchant. Rewardy shall not be liable for any failure of Merchant or Customer to comply with the terms and conditions of any Loyalty Programs, Promotions or other offerings made by the Merchant.
5.4. Rewardy reserves the right (but not obligation), at its sole discretion, to remove any Customer Communication that is reasonably likely, in its opinion, to violate these Terms, without prior notice, or require Merchant to do so.
In any event, Merchant shall be fully and solely responsible for any liabilities, injuries, losses or damages caused to any Customer in connection with Merchant’s Customer Communication and Rewardy shall not assume any responsibility or liability with respect thereto.
Merchant grants Rewardy a non-exclusive, royalty-free, worldwide right to use, edit, modify, include, incorporate, adapt, record and reproduce the Customer Communication, directly or through subcontractors, in order to provide the Services.
5.5. In addition to, and without derogating from any other provisions of these terms – a Merchant which participates in the Pre-Paid Program is responsible for charging its participating Customers, providing them with the ability to exercise their pre-paid balance for the goods and services provided by the Merchant, according to the exchange rate determined by the Merchant through the Pre-Paid Program and redeeming or respecting the Customers’ balance in case of termination of the pre-paid program, for any reason. In order to facilitate such redemption, Rewardy shall provide the Merchant with a report of the remaining pre-paid balance of the Merchant’s Customers. For avoidance of doubt, Rewardy shall not be liable for any failure of Merchant to charge its Customers, provide them with the ability to exercise their pre-paid balance or redeem their balance upon termination of the pre-paid program.
5.6. Merchant further undertakes to provide Rewardy with accurate, complete and up to date information regarding the amounts loaded, accumulated and exercised by its Customers participating in its Loyalty Programs. Merchant is aware that the balance of the Customers accounts presented through the Services may not always be updated at real time, including without limitation due to rounding which is done based on Rewardy’s full records. In any case of contradiction between Merchant’s reports and Rewardy’s internal records, Rewardy’s records will prevail. We also reserve the right to correct the balance of any Loyalty Program account when we believe an error has occurred.
5.7. The Merchant and its Customers are jointly and severally responsible for compliance with applicable laws and regulations with respect to the Loyalty Programs, pre-paid accounts and issuance and redemption of any rewards and incentives offered on a Loyalty Program as well as any tax implications.
6. SERVICE FEES, TAXES AND PAYMENT TERMS.
6.1. The exact service fees (the “Service Fees”), applicable to your use of the Services will be detailed in the Merchant Agreement or Purchase Order you will accept as part of the Sign Up Process. All Service Fees are exclusive of taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties.
6.2. You authorize us - when applicable - directly or through third parties, to make any inquiries we and/or it considers necessary to validate your account and financial information that you provided while signing up for the Services.
6.3. We reserve the right to amend the Service Fees at any time upon thirty (30) days’ prior notice to you; provided, however, that such amendment to the pricing will be applicable only from the beginning of your next payment period.
6.4. Without derogating from any other remedy available to Rewardy, Rewardy, at its sole discretion, may suspend or terminate the access and right to use all or any portion of the Service, at any time, upon electronic or other notice to you, if you fail to timely pay the Service Fees or any part thereof.
7. DATA COLLECTION.
7.1. You agree that we may periodically collect, store and use data (including but not limited to technical information) in connection with your registration or use of the Site and other Services (“Usage Data”). We also collect information about Customers who access the Loyalty Programs offered through the Platform (“Customer Data”). In addition, our systems may automatically collect other data about your operations, depending on the specific technology used by you for the implementation of the Platform, however, we do not make use and keep confidentiality of, any such information regarding your business that does not relate to the use and operation of the Platform and our Services.
7.2. The Usage Data and Customer Data is our property. We may use such data to provide our Services to you and to others; to improve the Services; to personalize and enhance the use of the Services; to determine those areas which are useful or popular and those that are less; to keep record of Customer Communications and correspondence with you; to address any issues that you are having with the Services; to evaluate your use, preferences and trends for internal statistical and analytical purposes which we may share with our partners for general marketing purposes and in respect of operations and product development. Such information will be shared in an aggregated format that will not include personally identifiable information or use it anonymously - with no specific references to you.
We may also use The Usage Data and Customer Data to offer cross-promotions of other Merchants, i.e., present Customers of one Merchant with offers and Loyalty Programs of another Merchant, provided such references will be made among Merchants in non–competing categories, as defined by us.
8.1. Support services shall be provided in accordance with the specific terms agreed between Rewardy and the Merchant in the Sign Up Process.
8.2. To purchase Support services please contact email@example.com.
Rewardy is pleased to hear from you and welcomes your feedback about the Service. If you submit ideas or suggestions for the Service (“Service Comments”), the Service Comments will be deemed, and will remain, the sole property of Rewardy. None of the Service Comments will be subject to any obligation of confidence on the part of Rewardy, and Rewardy will not be liable for any use or disclosure of any Service Comments. Without limiting the foregoing, Rewardy will be entitled to unrestricted use and other exploitation of the Service Comments for any purpose whatsoever, commercial or otherwise, by any means, by any media, without compensation to the provider, author, creator or inventor of the Service Comments.
10. NO WARRANTIES; DISCLAIMER.
YOU ACKNOWLEDGE, THAT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES, INCLUDING WITHOUT LIMITAITON THE SITE AND OTHER MATERIALS PROVIDED TO YOU BY REWARDY, ARE PROVIDED ON AN "AS IS" BASIS. USE OF THE SERVICES AND RELIANCE ON THE CONTENT AVAILBLE THROUGH THE SERVICES IS DONE SOLELY AT YOUR OWN RISK. REWARDY DISCLAIMS ANY AND ALL WARRANTIES RELATING TO THE SERVICE AND THE SITE, THEIR CONTENT AND OTHER MATERIALS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
ANY RELIANCE ON THE SERVICES IS AT MERCHANT’S OWN RISK. REWARDY DOES NOT WARRANT THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, AND DOES NOT GUARANTEE THAT THE USE OR OTHER EXPLOITATION OF THE SERVICES OR THE SITE (INCLUDING ANY LOYALTY PROGRAM, PROMOTION OR OTHER OFFERING MADE BY THE MERCHANT THROUGH THE SERVICES) WILL LEAD TO CERTAIN RESULTS. No advice or information, whether oral or written, obtained by you from Rewardy or through the Services will create any warranty not expressly stated herein.
WE DO NOT WARRANT THAT ANY CONTENT OR THE SERVICES PROVIDED WILL BE ACCURATE OR ERROR-FREE, THAT ACCESS THERETO WILL BE UNINTERRUPTED, THAT ALL DEFECTS WILL BE CORRECTED, OR THAT THE SERVERS, AND THE CONTENT AVAILABLE THERE THROUGH IS OR WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
pause or interrupt the service at any time, and Merchants as well as Customers should
expect periodic downtime for updates to the service.
11. LIABILITIES AND INDEMNITIES
shall defend, indemnify and hold harmless Rewardy and its directors, officers,
employees, representatives and agents, from and against any and all suits,
proceedings, assertions, damages, costs, liabilities or expenses (including
court costs and reasonable attorneys’ legal fees) which Rewardy may suffer or
incur in connection with any actual claim, demand, action or other proceeding
by Customers and/or any third party arising from or relating to (i) a claim
that the Customer Communication, including without limitation the Loyalty
Programs offered by the Merchant; (ii) use of any Customer Data not in
regulation; or (iii) any other breach of these Terms, including the
representations and warranties set forth hereunder.
11.2. IN NO EVENT SHALL REWARDY BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF DATA, OR ANY OTHER DAMAGES OR LOSSES ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.4. All of the above limitations shall apply notwithstanding any failure of essential purpose of any limited remedy and are fundamental elements of the bargain between us and you.
11.5. IN ANY EVENT, REWRADY ENTIRE LIABILITY UNDER ANY PROVISION OF THESE TERMS SHALL NOT EXCEED IN THE AGGREGATE THE AMOUNT RECEIVED FROM MERCHANT HEREUNDER.
11.6. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF WARRANTIES OR OF LIABILITY FOR CERTAIN TYPES OF DAMAGES, SO SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
12. TERM, TERMINATION, SURVIVAL.
12.1. The term of the Services shall be as agreed between Rewardy and the Merchant in the Sign Up Process, and in absence of such agreement - the term shall commence upon Merchant’s registration to the Services for a 12 month period, and shall renew automatically for additional successive 12 month periods provided that the Merchant has timely paid the Service Fees to Rewardy.
12.2. Either party may terminate this agreement with advance written notice of 60 days. Provided, however, that Rewardy may terminate these Terms and all rights granted hereunder immediately and without notice if Merchant shall use the Services in violation of these Terms or of any applicable law, rule or regulation, or in breach of any other agreement between the Merchant and Rewardy (“Termination for Breach”).
12.3. Upon expiration or termination, (a) all rights and licenses granted hereunder shall terminate and Rewardy shall be entitled to disconnect the Merchant from the Services; (b) The respective portion of any Service Fees paid in advance will be refunded by Rewardy only in case of termination by Rewardy, other than Termination for Breach; and (c) Merchant shall cease the use of any Rewardy Property; (d) Sections 3, 5, 10, 11 and 14 shall remain in effect.
13. INFRINGEMENT CLAIMS
If you believe that your copyrights or other intellectual property rights have been violated, please notify us immediately at:
Attn: Rewardy Inc.
c/o PHS Corporate Services, Inc
1313 N. Market Street
Wilmington, DE 19801, USA
You must include in your notice a: (1) description of the copyrighted work that is the subject of claimed infringement, (2) description of the infringing material and information sufficient to allow us to locate the alleged material, (3) contact information for you, including your address, telephone number and email address, (4) statement by you that you have a good faith belief that the material in the manner complained of is not authorized by the copyright owner, or its agent, or by the operation of any law, (5) statement by you, signed under penalty of perjury, that the information in the notification is accurate and that you have the authority to enforce the copyrights that are claimed to be infringed, and (6) physical or electronic signature of the copyright owner or a person authorized to act on the owner's behalf.
We will only respond to any claims involving alleged copyright infringement of Rewardy. Notwithstanding this section, we reserve the right at any time and in our sole discretion, to remove content which in our sole judgment appears to infringe the intellectual property rights of another person.
Rewardy and Merchant are and intend to remain independent parties. Nothing contained in these Terms shall be deemed or construed to create the relationship of principal and agent or of partnership or joint venture. These Terms represent the entire agreement between the parties regarding the subject matter hereof and supersedes any and all other agreements between the parties, whether written or oral, regarding the subject matter hereof. Unless other terms are agreed to in writing by Rewardy, these Terms shall govern and supersede any other Agreement entered into between Rewardy and you. Rewardy may assign its rights or obligations pursuant to these Terms. Merchant agrees not to assign any rights under these Terms without Rewardy’s explicit written consent. If any part of these Terms shall be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of any other part or provision of these Terms which shall remain in full force and effect. No waiver of any term of this the Agreement shall be deemed a further or continuing waiver of such term or any other term, and any failure to assert any right or provision under the Agreement shall not constitute a waiver of such term. The section titles in this Agreement are solely used for the convenience and have no legal or contractual significance. This Agreement may be executed electronically, and your electronic assent or use of the Services shall constitute execution of this Agreement. You agree that the electronic text of this Agreement constitutes a writing and your assent to the terms and conditions hereof constitutes a “signing” for all purposes.
The laws of the state of New York, United States excluding its conflicts of law rules, govern this license and your use of the Services; any controversy, claim, or dispute in connection with, arising under, or related to these Terms shall be settled exclusively in the courts of New York, United States.