Standard Merchant Terms & Conditions
Merchant agrees to participate in the AppCard Loyalty Program Platform and such participation is governed by the Merchant Agreement entered into with AppCard Inc. (“AppCard,” “we,” “our” or “us”), which includes these Standard Merchant Terms and Conditions (the “Standard Terms”). Terms used but not defined herein shall have the meanings given to such terms in the Merchant Agreement. If any of these Standard Terms conflict with the terms described in the Merchant Agreement, the Merchant Agreement will govern. By entering into the Merchant Agreement, Merchant agrees to follow and be bound by these Standard Terms.
1. General Description of the AppCard Loyalty Platform.
AppCard provides a platform for merchants to develop, operate and maintain consumer loyalty programs through the AppCard consumer website (www.appcard.com/for-members/) and merchant website (www.appcard.com) (each a “Website”), the AppCard Transceiver (as defined hereunder), the AppCard application protocol interface based point of sale integrated plug-in or mobile/tablet application (“Integration”), the AppCard mobile application (“Smartphone App”), the AppCard Tablet and stand (“Tablet”), and the AppCard loyalty plastic cards (“Plastic Cards”) (the Websites, Transceiver, Integration, Tablet, Smartphone App and Plastic Cards being collectively referred to as the “AppCard Properties”). The merchant entity that has signed the Merchant Agreement (“Merchant,” “you,” or “your”) will develop a tailored promotional loyalty program (“Merchant Loyalty Program”), which will consist of a reward-based loyalty program tracked using the AppCard Properties, which results in customers (“Users”): (1) earning credits, awards, cash-back, rebates, loyalty tier awards, and other rewards with each eligible purchase from your business (“Rewards”), (2) being exposed to personalized offers, promotions, events, incentives and discounts (“Offers”), (3) receiving digital copies of their Merchant receipts using the Smartphone App and consumer Website (“Digital Receipts”), (4) receiving communications from you in the form of email, text messages, push notification, or other communications (“Marketing”) and (5) providing customer feedback using the AppCard marketing platform. Merchant shall be responsible for each Offer and Reward in its Merchant Loyalty Program, including for creation of the Offer/Reward and for legal compliance of each Offer/Reward in each jurisdiction where offered and redeemable. Merchant will create Offers and Rewards using the AppCard Offer creation program (“Offer Creation Program”) which is available on the merchant Website. Merchant may elect to target customers and create Offers through either the “Manual” or the “Automatic” mode of the Offer Creation Program, however, regardless of which mode Merchant selects, Merchant shall retain sole responsibility for each Offer’s legal compliance in the jurisdictions where offered and redeemable. As part of the Merchant Loyalty Program, AppCard will also provide to Merchant, at Merchant’s request, periodic detailed data reports and analytics covering select aspects of Merchant’s business, including the Merchant Loyalty Program. (AppCard data review and reporting, loyalty offer generation services, Marketing and all other services provided by AppCard for the direct or indirect benefit of Merchant may be referred to herein as the “AppCard Service”.)
As part of the Merchant Loyalty Program Merchant may receive an AppCard payment terminal device, AT device, communication cables and AC cables (collectively, the “Transceiver”). The Transceiver and the Integration are used to enroll and identify the User, to capture and deliver the Merchant transaction receipt data that in some cases is transferred between Merchant’s Point of Sale (“POS”) terminals and POS printers (“Transaction Data”) to AppCard’s server, for use in the Merchant Loyalty Program and AppCard Services.
2. Principal AppCard Obligations.
In connection with the Merchant Loyalty Program, AppCard agrees to:
2.1 assist you to design a Merchant Loyalty Program for your business that will be beneficial and attractive to Users;
2.2 advertise the Merchant Loyalty Program and your Offers on the consumer Website or other websites we specify, on our mobile properties, including the Smartphone App, and/or through our affiliate network and advertising partners;
2.3 facilitate Users’ use of the Merchant Loyalty Program through the AppCard Properties;
2.4 assist you with resolving User complaints related to the Merchant Loyalty Program or the AppCard Properties, in accordance with Section 6 herein; and
2.5 provide you with periodic status updates and detailed reports relating to your Rewards, Offers and Merchant Loyalty Program usage and redemption (“Reports”).
3. Principal Merchant Obligations.
In connection with the Merchant Loyalty Program, Merchant agrees to:
3.1 assist AppCard to design the Merchant Loyalty Program, provide complete and accurate information as may be requested in connection with operating the Merchant Loyalty Program, maintain the accuracy of all such information, and, if applicable, provide prompt approval of any proofs of solicitation, marketing, advertising and other materials for the Merchant Loyalty Program;
3.2 authorize AppCard to advertise the Merchant Loyalty Program, in accordance with the Merchant Agreement, and make minor adjustments to any and all Merchant Loyalty Program solicitation, marketing and/or related advertising copy or layouts as we deem necessary or desirable to run and promote your Merchant Loyalty Program efficiently, which authority is hereby granted;
3.3 determine the loyalty-level construct for Merchant Loyalty Program in accordance with these Standard Terms;
3.4 honor all Offers issued by you and Rewards earned by Users as part of your Merchant Loyalty Program in accordance with these Standard Terms and with all applicable Federal, state, local or international laws, statutes, rules, regulations or orders, including without limitation those governing rewards, offers, gift cards, coupons and/or gift certificates (collectively, “Applicable Law”), and provide Users with the products and/or services that are promised under each Offer;
3.5 comply with all Applicable Laws regarding the Merchant Loyalty Program. Without limiting the foregoing, Merchant acknowledges that Applicable Law may require Merchant to redeem Rewards beyond any date specified in the Merchant Loyalty Program terms. Accordingly, notwithstanding any Reward expiration date stated in the Merchant Loyalty Program, Merchant agrees that for the time period required by Applicable Law, Merchant shall permit Users to redeem the Rewards for the product and/or services applicable, all as more fully set forth in Section 4 herein;
3.6 immediately notify us of any unauthorized use or suspected unauthorized use, fraud or suspected fraud, or other breach of security of the Merchant Loyalty Program or the AppCard Properties;
3.7 accept full responsibility for any User complaints and customer service issues that may arise in connection with the Merchant Loyalty program, including in connection with User’s use of Offers or redemption or attempted redemption of Rewards associated with your Merchant Loyalty Program;
3.8 use its best efforts to effectively notify and inform your existing customers about your relationship with AppCard and your Merchant Loyalty Program, including through the use of Twitter, Facebook and other social media platforms, as well as by email. All such communications should include details relevant for AppCard and Merchant promotional purposes;
3.9 not directly or indirectly offer or otherwise market, or permit any third party to offer or otherwise market, a promotion, sale, discount, offer or reward (including loyalty reward) that contains terms which are better than those of any Offer and/or Reward within any loyalty tier within your Merchant Loyalty Program, including through any third party certificates, coupons, or promotions, unless the a similar or better Offer or Reward is also made available through the Merchant Loyalty Program;
3.10 in case a Transceiver is in use, place the Transceiver adjacent to your existing POS terminals, connect it as required to your POS terminals and POS printers, and ensure the Transceiver is functioning properly at all times; in case a Tablet is in use, place the Tablet adjacent to your existing POS terminals, and ensure the Tablet is functioning properly at all times; in case the Integration is in use, make the Integration and associated AppCard interface available at the POS at all times and not upgrade, change or update the POS without prior notice to AppCard that is sufficient to allow AppCard to accommodate or object to any such changes;
3.11 not directly or indirectly use the AppCard Services for sending unsolicited messages (“spam”) or for hosting of illegal or prohibited content;
3.12 provide AppCard with your products/service catalog (“Catalog”); and
3.13 if the Consumer Product Safety Commission or other federal, state or local agency issues an order pursuant to any consumer protection law requiring Merchant to recall, replace, repair or make refunds with respect to all or part of any products and/or services offered or provided in connection with the Merchant Loyalty Program or where Merchant determines that a recall is warranted, Merchant shall do so at its expense and assume all costs (including without limitation, reimbursements to AppCard for its out-of-pocket expenses) and such recall shall be effectuated in a manner determined by Merchant.
AppCard shall not be liable for any cost, loss or damage arising from your failure to comply with the above requirements.
4. Merchant Loyalty Programs.
When AppCard advertises Offers or Rewards associated with your Merchant Loyalty Program, we do so as an independent marketing portal and platform. You, as the merchant, are the sole provider of the Offers and the sole issuer of the Rewards, and you are the exclusive seller of the products and/or services described in the Merchant Loyalty Program. Merchant shall at all times, retain the legal obligation to honor the Offers and redeem the Rewards for the products and/or services promised to the Users under the Merchant Loyalty Program, in compliance with these Standard Terms and all Applicable Law. Use of any Offers and or Rewards for alcoholic beverages is at the sole discretion of Merchant, and shall comply with all Applicable Law. You agree that in providing the products and/or services through the Merchant Loyalty program you will not impose any restrictions on redemption unless such restriction is otherwise expressly communicated to User and is in compliance with Applicable Law, extra fees, charges and/or conditions that contradict the Merchant Agreement or the specific terms set forth in connection with the Merchant Loyalty Program or any Applicable Law. Merchant understands and agrees that AppCard has the right to promote the Merchant Loyalty Program, and you agree to honor all Offers and Rewards associated therewith. Each Offer associated with the Merchant Loyalty Program will expire on the date on which the Offer is set to expire as set forth thereon or herein (the “Offer Expiration Date”). Should you decide to stop or cancel an Offer, you acknowledge that you retain the legal obligation to honor the Offer for those Users who ‘saved’ the Offer prior to the date you cancel or stop the Offer. Except as specified by Merchant or as provided herein, each Reward earned by a User is set to expire 24 months after that User’s last purchase date with the Merchant Loyalty Program (the “Rewards Expiration Date”). Notwithstanding the foregoing, after the Rewards Expiration Date, you shall, for the period of time required by Applicable Law, continue to allow all unredeemed Rewards to be redeemed to purchase products and/or services specified in the Merchant Loyalty Program. You will be solely responsible for ensuring that the Rewards Expiration Date and terms of the Merchant Loyalty Program comply with all Applicable Law. You acknowledge and agree that in certain jurisdictions Applicable Law regulates the permitted expiration of all or certain Rewards, and may require you to redeem such Rewards beyond their stated Rewards Expiration Date and/or to provide the User with a refund equal to the cash value (the purchase value) of the Reward if the User requests a refund after the Rewards Expiration Date, and you agree to do so to the extent so required by law. AppCard shall have no obligation to make any redemption to User in place of Merchant.
5. Digital Manufacturer Coupons
AppCard’s Digital Manufacturer Coupons Program introduces and administers manufacturer-issued digital coupons (“Digital Manufacturer Coupon”) directly with Merchant’s User (A “Digital Manufacturer Coupon” shall be any promotional program (i) issued by a consumer packaged goods manufacturer, either directly or through agents, in a digital format (i.e., not printed); (ii) with an offer that requires a Merchant User to activate the offer digitally; (iii) that requires identification of the purchase data in real time to validate that the purchase requirements of the offer are met; and (iv) that grants the User a promotional benefit based on said validated transaction. A Digital Manufacturer Coupon may be selected by a User in a variety of digital formats, including, without limitation, on a mobile app, web-site, an email, a digital display or other digital format systematically assigned to the User’s account, and may or may not be required to be scanned at the time of the purchase transaction.
Digital Coupons Clearing
A Merchant participating in AppCard’s Digital Manufacturer Coupons Program may elect between the following two (2) options:
a. AppCard as Designated Clearing Agent: Under this option, AppCard will be designated as Merchant’s clearing agent for Digital Manufacturer Coupons redeemed by Merchant. Under such case, Merchant authorizes AppCard and/or AppCard’s clearing agent to process and present for final redemption all Digital Manufacturer Coupons redeemed at Merchant stores.
Merchant authorizes the manufacturer issuing the coupon (or manufacturer’s redemption agent) to remit payment for each Digital Manufacturers Coupon redeemed at Merchant’s retail store(s) directly to AppCard and/or AppCard’s clearing agent. Merchant hereby authorizes AppCard and/or AppCard’s clearing agent to deduct AppCard’s service charges and set-up fees from the payments received for the coupons. Merchant hereby agrees that upon manufacturer’s rejection of a coupon for redemption or any other refusal to pay in a timely manner, AppCard and/or AppCard clearing agent will charge back to Merchant the full amount charged back by the manufacturer plus a chargeback fee equal to the handling fee allowed by manufacturers.
Merchant hereby agrees that Merchant will submit only those Digital Manufacturers Coupons that are redeemed at Merchant’s store(s) by Users for applicable products purchased at Merchant’s store(s). Merchant’s store(s) will follow industry guidelines for coupon redemption and will make information such as proof of purchase and questionnaire available to the manufacturers or their agents upon request. Merchant agrees that neither AppCard and/or AppCard’s clearing agent are responsible for misplaced invoices and coupons while in the custody of manufacturer or its agent. Merchant agrees that if manufacturer or its agent does not notify AppCard or AppCard’s agent of any discrepancy within 48 hours of delivery by AppCard of the coupon redemption request , AppCard and/or AppCard’s clearing agent shall not liable for any subsequent manufacturer claims regarding the coupon redemption. Merchant hereby agrees that some manufacturers may reverse/chargeback coupon payments, which may result in debit balance on our account. Merchant agrees to pay AppCard such balances promptly.
b. Merchant Designates Other Clearing Agent. Under this option, AppCard will work with Merchant’s own designated coupon clearing agent. Specifically, AppCard will aggregate and transmit all of Merchant’s Digital Manufacturer Coupon redemption data directly to such coupon clearinghouses as Merchant may, from time to time, direct. Such data shall be transmitted electronically by AppCard to the designated clearinghouse not less frequently than every seven (7) days. Additional fees to AppCard may apply.
Merchant hereby agrees and acknowledges that if Manufacturer or its agent does not notify Merchant’s clearinghouse of any discrepancy with, or loss of, the information provided by AppCard within 48 hours of receiving such information, AppCard shall not be liable for any subsequent claims based on said information or the delivery thereof.
6. Control of Websites and Smartphone App.
Notwithstanding any other provision of these Terms and Conditions, AppCard shall have the right to determine the content, appearance, functionality and all other aspects of the Websites and Smartphone App in its discretion. Without limiting the generality of the foregoing, notwithstanding any other provision of these Standard Terms, AppCard shall have the right to re-design, modify and alter the organization, structure, “look and feel”, navigation, appearance, functionality and other elements of all or a part of the Websites and Smartphone App, and any aspect, portion or feature thereof, including with regards to the Merchant Loyalty Program.
7. User Complaints and Returns.
AppCard and Merchant shall cooperate with each other in a reasonable manner to appropriately resolve any User complaints that may arise from the Merchant Loyalty Program or AppCard Properties. Each party shall, when necessary or appropriate, or when reasonably requested by other parties, undertake a factual investigation of User complaints arising out of the AppCard Properties, the Merchant Loyalty Program, and the products or services offered or provided in connection with the Merchant Loyalty Program. Any User complaints that principally concern the AppCard Properties shall be promptly forwarded to AppCard; all other User complaints shall be promptly forwarded to, and be the sole responsibility of, Merchant.
While AppCard will seek to resolve complaints to the satisfaction of Merchant and Users, we might not be successful in doing so. Therefore, we reserve the right to refund Rewards used to Users who redeemed Rewards and to obtain reimbursement from Merchant, if applicable. If a User wishes to return an item purchased as a result of an Offer or redeemed Rewards, it shall be in the Merchant’s sole discretion whether to accept such returns pursuant to the Merchant Loyalty Program, but in any event shall be in accordance with all Applicable Law. In order to accept returns of products and services obtained pursuant to the Merchant Loyalty Program, the Merchant must process such returns only through a POS terminal connected to the Transceiver or notify AppCard of such return with full details on the return. We will take reasonable efforts to recognize such return and deduct or reimburse the User’s account with the Rewards within a reasonable period of time.
8. Fraudulent Use.
AppCard will take reasonable efforts to avoid fraudulent use of the AppCard Properties by Users, including, when necessary, by sending prompt emails to Users to confirm accurate use of the Merchant Loyalty Program.
In addition, AppCard will take reasonable efforts to avoid fraudulent use of the AppCard Properties by Merchant’s employees, including by sending prompt emails to Merchant to notify on possible fraudulent behavior of one of its employees in regards to the Merchant Loyalty Program. If a User suffers Rewards loss associated with a Merchant employee’s fraudulent use of applicable AppCard Properties, the merchant Website or interface and/or any offer platform we reserve the right to refund User for the Rewards lost as a result of such fraudulent use (as described in the AppCard Terms of Service found: http://www.appcard.com/terms). In such instance, Merchant shall reimburse AppCard for any losses associated with such Rewards reimbursement.
9. Compliance with California Consumers Protection Act (CCPA)
The California Consumer Privacy Act (CCPA) is a new data privacy law that establishes various rights for California state residents. The law applies to companies that do business in California and meet one of several criteria related to revenue, data processing, and other factors. For example, the CCPA requires giving California residents the right to know what of their information is collected and/or shared, and also requires giving residents the right to opt out of the “sale” of their “personal information” (as the law defines those terms), with the opt-out offered via a prominent “Do Not Sell My Personal Information” link on the “selling” party’s homepage. CCPA does recognize certain exceptions to the definition of “sale,” such that not all transfers of personal information are “sales.” For example, transferring personal information to a “service provider” under the law is not a sale.
9.1 You hereby agree and acknowledge that should shopper chose to exercise his/her right either directly or through a representative on its behalf that you will no longer have access to the said shopper.
9.2 You acknowledge and agree that AppCard is obligated to inform all third parties with which such shopper’s information was shared (e.g.; eCommerce providers, in store kiosk to name a few).
9.3 You acknowledge and agree to comply and conform not sell shopper data once such request was made by the shopper or an agent on his/her behalf for a period of 12 month from the date such request was registered and a notice was provided to you by us in writing.
9.4 You acknowledge and agree that under the CCPA, AppCard is a “service provider” as defined by the CCPA.
9.5 You shall defend, indemnify, and hold harmless AppCard and its personnel, directors, and Affiliates (each an “Indemnitee”), from all claims, obligations, causes of action, losses, damages, judgments, liabilities, costs, and expenses (including reasonable attorneys’ fees) (collectively, “Losses”), arising from or relating to (i) your or any of your affiliates or agents’ violation of these terms; or (ii) your violation of the CCPA (each, a “Claim”). AppCard shall give you prompt notice of such Claim (provided that the failure to receive such prompt notice shall not diminish your obligations hereunder unless, and only to the extent that such failure prejudices your ability to defend against such Claim). The Indemnitee shall allow you to control the defense and settlement of a Claim (provided that (i) indemnitee may monitor but not control the defense and settlement of such Claim with counsel of its own choosing and its own expense, and you shall cooperate in the same, and (ii) you shall not propose a judgment or agree to a settlement that attributes fault or liability to an Indemnitee without the prior written consent of AppCard).
9.6 You understand the importance of placing necessary signage at the store, explaining to shopper for their rights.
Merchant will Pay AppCard a monthly base fee and monthly variable fees in accordance with the Merchant Agreement. The parties acknowledge and agree that amounts retained by AppCard are for its marketing, advertising and administration of Merchant Loyalty program.
All fees are payable by Merchant to AppCard and due in accordance with the Merchant Agreement. You shall be billed either pursuant to a written report available to you at the merchant Website and or by invoice issued by AppCard.
AppCard may change the fees it charges for any Services by providing Merchant a notice of such change at least 30 days before the change becomes effective. If Merchant does not agree to any such change in fees, Merchant may terminate this contract (and Merchant’s use of the Services) by notifying AppCard of termination prior to the effective date of the fee change. This contract and Merchant’s use of the Services shall thereupon be terminated as of the effective date of the fee change. Merchant’s failure to terminate this contract prior to the effective date of the fee change shall constitute Merchant’s acceptance of the change in fees.
Merchant hereby receives the Transceiver, the Tablet and Plastic Cards, the Integration (collectively, the “Equipment”) on a lease basis and free of charge for the duration of the Merchant Loyalty Program. You may not disconnect, disable, decompile or open the Transceiver and/or the Tablet and/or the Integration without AppCard’s prior written consent. Furthermore, Merchant shall maintain the Transceiver and/or Tablet and/or the Integration intact and in good operating condition at all times, and provide immediate notification to AppCard of any defects, errors or failures to operate. If the Transceiver and/or the Tablet is vandalized or damaged while in Merchant’s care, Merchant shall compensate AppCard for any damage and reimburse AppCard the cost of the Transceiver and/or Tablet, whether or not replaced.
If the Merchant Loyalty Program is cancelled, whether by you or AppCard, Merchant shall return the Transceiver, the Tablet and all unused Plastic Cards, and any other applicable AppCard equipment, to AppCard within 30 calendar days from the date cancellation notice is provided pursuant to these Standard Terms (Section 16) at Merchant’s expense. Merchant agrees that Equipment shall be disconnected and shall cease to operate 30 days after notice of cancellation is received by AppCard.
12. Intellectual Property.
You hereby grant AppCard, our affiliates and our agents and advertising partners a non-exclusive worldwide, royalty-free license and right to use, copy, display, reproduce, modify, edit, sublicense, distribute, make derivative works of, and publish any of the Merchant trademarks, service marks, logos, photographs, text, images, advertising copy, statements, claims, or other content (“Merchant Content”) in connection with the Merchant Loyalty Program, including any as part of any marketing or promotion of the Merchant Loyalty Program pursuant to the Merchant Agreement (including these Standard Terms). You also agree that we may publish your corporate name, artwork, text, trademark, trade dress, and/or logo on the Websites, Smartphone App, Plastic Card, and any other AppCard online or mobile service, and on the websites, mobile applications and online services of our affiliates and advertising partners, to acknowledge Merchant as an AppCard customer and Merchant Loyalty Program offerer. You represent and warrant to us that you have the full right and ability to license the Merchant Content to AppCard, and that the use, copying, modification and publication of the Merchant Content by us and by our affiliates and advertising partners: (a) will not infringe, violate or misappropriate any third party copyright, patent, trade secret or other third party right, (b) will not infringe any persons rights of publicity or privacy, and (c) will not be defamatory, obscene, threatening, unfair, misleading, deceptive, malicious, or otherwise expose Merchant and/or AppCard to civil or criminal liability, or otherwise violate any applicable law or regulation. You assume sole responsibility for the accuracy of the Merchant Content including, without limitation, descriptive claims, warranties and guarantees.
You agree and acknowledge that we own all right, title and interest in and to the AppCard Properties, Confidential Information (defined below), online services, trademarks and other content and materials related to AppCard or used by us to promote, sell, generate, or distribute the Merchant Loyalty Program, other than (i) the Merchant Content, (ii) Transaction Data, (iii) Catalog and (iv) Reports (collectively, the “AppCard IP”), and no licenses or other rights to the AppCard IP are granted to you by these Standard Terms or otherwise. You shall not rent, lease, sublicense, distribute, transfer, copy, reproduce, download, display, modify or timeshare the AppCard IP or any portion thereof, or use the AppCard IP as a component of or a base for products or services prepared for commercial sale, sublicense, lease, access or distribution. You shall not prepare any derivative work based on the AppCard IP, nor shall you translate, reverse engineer, decompile or disassemble the AppCard IP.
13. Representations and Warranties.
You represent and warrant that (a) you have the right, power and authority to enter into the Merchant Agreement (including being bound by these Standard Terms), (b) you are registered for sales and use tax collection purposes in all jurisdictions in which your products and services will be provided pursuant to the Merchant Loyalty Program and presentation of associated Offers and Rewards, (c) each Reward shall be immediately available for redemption by Users unless otherwise communicated to User, (d) the terms and conditions of the Merchant Loyalty Program, including any discounts or products and services offered thereunder, comply with all Applicable Law, (e) any advertising or promotion of your products or services relating to the Merchant Loyalty Program will not constitute, and you will not engage in any, false, deceptive or unfair trade practices; (f) you have received all appropriate permits and licenses in connection with your business and with the Offers and the Reward and such permits and licenses are currently in effect and will be in effect until the expiration of all of the Rewards; and (g) you will only use trained and skilled staff in the course of performing the retail services associated with the Merchant Loyalty Program.
We will take reasonable efforts to provide the AppCard Properties and associated services to you in compliance with the description in the Merchant Agreement (including these Standard Terms). OTHER THAN AS EXPLICITLY SET FORTH HEREIN, WE MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE APPCARD PROPERTIES AND ASSOCIATED SERVICES OR THE MERCHANT LOYALTY PROGRAM, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WE DO NOT WARRANT OR GUARANTEE THAT YOU WILL ACHIEVE ANY LEVEL OF SALES, REVENUE OR PROFIT. WE DO NOT WARRANT OR GUARANTEE THAT THE APPCARD PROPERTIES OR ASSOCIATED SERVICES WILL ALWAYS BE AVAILABLE OR OPERATE ERROR-FREE, THAT THE OFFERS AND REWARDS WILL BE ERROR-FREE, OR THAT ANY ERRORS, OMISSIONS OR MISPLACEMENTS IN THE MERCHANT LOYALTY PROGRAM WILL BE CORRECTED. No statement, either orally or in writing, made by any of our officers, employees or agents will vary this paragraph.
APPCARD IS NOT PERMITTED TO PROVIDE, AND DOES NOT PROVIDE, LEGAL ADVICE, AND MERCHANT IS SOLELY RESPONSIBLE FOR COMPLIANCE OF THE MERCHANT LOYALTY PROGRAM WITH ALL APPLICABLE LAW AND THE MERCHANT LOYALTY PROGRAM, OFFERS AND REWARDS.
15. Limitation of Liability.
IN NO EVENT WILL APPCARD BE LIABLE OR OBLIGATED TO YOU OR ANY THIRD PARTY IN ANY MANNER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES ON ACCOUNT OF LOST PROFITS, LOST REVENUES OR FAILURE TO REALIZE ANTICIPATED BUSINESS BENEFITS, ARISING IN CONNECTION WITH THE MERCHANT AGREEMENT (INCLUDING THESE STANDARD TERMS) OR THE MERCHANT LOYALTY PROGRAM, REGARDLESS OF THE FORM OF ACTION, WHETHER OCCURRING IN CONTRACT, TORT, NEGLIGENCE, STRICT PRODUCT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT WE KNEW THAT SUCH DAMAGES MAY HAVE BEEN INCURRED. IN NO EVENT WILL OUR LIABILITY FOR ANY DAMAGES ARISING IN CONNECTION WITH THE MERCHANT AGREEMENT (INCLUDING THESE STANDARD TERMS) OR THE MERCHANT LOYALTY PROGRAM EXCEED THE AMOUNT OF FEES PAID TO AND RETAINED BY US IN CONNECTION WITH THE MERCHANT LOYALTY PROGRAM OFFER OR REWARD RELATED TO THE DAMAGES. THIS LIMITATION OF LIABILITY SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF ANY LIMITED REMEDY.
TO THE EXTENT APPLICABLE LAW PERMITS, YOU RELEASE US FROM ANY CLAIMS OR LIABILITY RELATED TO (a) ANY CONTENT POSTED ON YOUR SITE OR IN ANY MATERIALS YOU SEND USING THE SITE OR THE PRODUCTS, (b) THE CONDUCT OF ANY OTHER CUSTOMERS OF OURS OR THEIR RESPECTIVE SUBSCRIBERS AND (c) ANY PROBLEMS THAT MAY ARISE FROM ANY REMOTE ACCESS TO YOUR COMPUTERS OR OTHER SYSTEMS YOU PROVIDE TO OUR PERSONNEL OR AGENTS FOR THE PURPOSE OF TROUBLESHOOTING ISSUES. YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 (IF YOU ARE A CALIFORNIA RESIDENT), AND ANY SIMILAR PROVISION IN ANY OTHER JURISDICTION (IF YOU ARE A RESIDENT OF SUCH JURISDICTION).
Merchant agrees to indemnify and hold harmless AppCard, its affiliated and related entities, and any of their officers, directors, stockholders, employees and agents (“AppCard Indemnities”) against any claims, actions, suits, investigations, liabilities, losses, damages, costs and expenses, including but not limited to attorneys’ fees and costs (“Damages”), arising out of, relating to, or incurred in connection with, any of the following: (a) any breach or alleged breach of your representations, warranties or covenants set forth herein; (b) any claim for state sales or use tax obligations arising from the use of Incentive and subsequent redemption of an Rewards associated with the Merchant Loyalty Program, or any claim by any local, state or federal governmental entity for unredeemed Rewards or unredeemed cash values of Rewards or any other amounts under any applicable abandoned or unclaimed property or escheat law, including but not limited to any claims for penalties and interest (“Abandoned Property Claims”), as well as all attorney’s fees, related to any action against, or determinations against, AppCard related to any action to pursue AppCard for any such taxes or Abandoned Property Claims; (c) any claim concerning your failure, or alleged failure, to honor an Incentive or redeem a Reward; (d) any claim arising out of or relating to the products or services provided by you, including but not limited to, any claims for false advertising, product defects, personal injury, death, or property damages; or (e) any failure of the Merchant Loyalty Program to comply with law, including, but not limited to, the Telephone Consumer Protection Act (“TCPA”), the Telemarketing Sales Rule (“TSR”), regulations implementing the TCPA and TSR, and any similar state laws and regulations, except in the case of this subsection (e) to the extent such Damages are caused by the gross negligence or willful misconduct of any AppCard Indemnity. (f) any claim arising from the release of user data including but not limited to all claims, liabilities, damages and expenses (including costs and attorney’s fees) arising out of or in any way connected with the release of the data as provided.
In connection with the Merchant Agreement (including these Standard Terms) and the Merchant Loyalty Program, AppCard and Merchant may disclose to each other certain confidential and proprietary information relating to their respective businesses, customers, suppliers, prices, products, Reports, Catalog and technologies that is not generally publicly known (“Confidential Information”). Each of us shall keep confidential the Confidential Information of the other party, not disclose it to any third party, and not use it except for the purposes of the Merchant Agreement (including these Standard Terms) and the Merchant Loyalty Program.
The obligations of confidentiality herein shall not apply to (a) information in the public domain without fault of the receiving party; (b) information disclosed to the receiving party or in the possession of the receiving party without any breach of confidentiality of the receiving party or any third party; (c) information independently developed by the receiving party without use of the Confidential Information of the disclosing party; (d) information required to be disclosed in order to comply with Applicable Law; and (e) AppCard’s use and disclosure of aggregated statistics about the loyalty programs we support, including the Merchant Loyalty Program.
Notwithstanding anything to the contrary in these Standard Terms, AppCard shall have the right to use or disclose Transaction Data and other Confidential Information of Merchant (a) in connection with any investment to be made in AppCard, (b) in connection with an acquisition of AppCard’s business that includes the Merchant Agreement, (b) to any law enforcement, judicial authority, or governmental or regulatory authority, to the extent required by law or legal process, or (c) if in AppCard’s reasonable discretion, such use or disclosure is necessary to enforce or protect AppCard’s legal rights or to protect third parties.
18. Cancellation or Suspension of the Merchant Loyalty Program; Termination; Amendments.
You may cancel the Merchant Loyalty Program only upon thirty (30) days written notice to AppCard (such date when proper notice is received by AppCard being referred to as the “Notice Date”, the date Merchant Loyalty Program is cancelled, whether 30 days following the Notice Date or otherwise, being referred to as the “Cancellation Date”). We have the right to suspend the operation of any Merchant Loyalty Program or suspend an Offer or Reward, or to terminate the Merchant Agreement (including these Standard Terms) and to cancel any Merchant Loyalty Program then-running, at any time in the event that you are in material breach of the Merchant Agreement (including these Standard Terms) or if we believe that the Merchant Loyalty Program is associated with or engaged in any unlawful activity or activity that is not consistent with AppCard’s high reputation or brand identity or the Merchant Loyalty Program, Offer or Reward violates any applicable law or regulation or this Merchant Agreement (including these Standard Terms). We will also have the continuing right, but not the obligation, to reject, revise, or discontinue publishing any Merchant Loyalty Program Offer and to require you to edit or modify the same for any reason, including, without limitation, to conform your Merchant Loyalty Program to these Standard Terms, other applicable AppCard specifications, and/or Applicable Law. If suspension or cancellation is due to a breach by Merchant which AppCard deems capable of cure, Merchant shall have 14 calendar days in which to cure such breach to the satisfaction of AppCard and avoid suspension/cancellation. In the event of cancellation by Merchant, we will cease promotion of the Merchant Loyalty Program and Offers on or about the Notice Date. In the event of cancellation by AppCard, we will cease promotion of the Merchant Loyalty Program and/or Offer(s) promptly. You must honor all legal Offers ‘saved’ and all Rewards earned prior to the Cancellation Date. A list of all Offers ‘saved’ and Rewards earned and unredeemed as of the Cancellation Date, will be provided to you by AppCard and may also be made available to you on the merchant Website. In all cases, it is Merchant’s sole responsibility to settle all outstanding Rewards in accordance with the terms of the Merchant Loyalty Program and Applicable Law. The cancellation of the Merchant Loyalty Program, or any Offer or Reward, shall be without liability to AppCard.
We seek to protect Merchant information (such as Transaction Data and Reports) to ensure that it is kept private; however, we cannot guarantee the security of any Merchant information. Unauthorized entry or use, hardware or software failure, and other factors, may compromise the security of Merchant information at any time. We otherwise store all of our information using industry-standard techniques. We do not guarantee or warrant that such techniques will prevent unauthorized access to Merchant’s information that we store, Transaction Data, Reports or otherwise. Upon Merchant cancellation, and subject to Merchant’s written notice, AppCard will make reasonable efforts to erase or transfer to Merchant, the Transaction Data, Reports and Catalog in part or in full to the extent possible under the measures mentioned above. Digital Receipts and credits waiting to be redeemed will not be deleted from the User account and will remain visible to the Users.
The Merchant Agreement (including these Standard Terms) represents the entire agreement of the parties as to its subject matter, and supersedes all prior written and oral representations and discussions between the parties. If a matter arises that cannot be resolved between you and AppCard with reasonable effort, you agree that all such disagreements or disputes that in any way involves the Merchant Loyalty Program or the Merchant Agreement (including these Standard Terms) shall be resolved exclusively by final and binding administration by the American Arbitration Association (“AAA”), and will be conducted before a single arbiter pursuant to the applicable Rules and Procedures established by the AAA. You agree that the arbitration shall be held in a place chosen by the arbitration firm in the same city as the U.S. District Court closest to Merchant headquarters, or at any other location that is mutually agreed upon by you and AppCard in writing. You agree that the arbiter will apply the laws of the State of New York consistent with the Federal Arbitration Act and will honor and agree to all applicable statutes of limitation. You agree that, unless prohibited by law, there shall be no authority for any claims to be arbitrated on a class or representative basis, and arbitration will only decide a dispute between you and AppCard. If any part of this Arbitration clause is later deemed invalid as a matter of law, then the remaining portions of this section shall remain in effect, with the exception of the class language referenced herein, in such case this entire section shall be deemed invalid.
The parties are independent contractors. Except for our right to advertise on your behalf in accordance with the Merchant Loyalty Program, this Agreement does not create any joint venture or agency, and you and we are independent contractors without the power to bind the other.
The communications between Merchant and AppCard may use electronic means. For contractual purposes, Merchant (a) consents to receive communications from AppCard in an electronic form, and (b) agrees that all terms and conditions, agreements, notices, disclosures, and other communications that AppCard provides to you electronically will satisfy any legal requirement that such communications would satisfy if they were in writing. The foregoing does not affect Merchant’s statutory rights.
If any provision of the Merchant Agreement (including these Standard Terms) is held invalid by a court of competent jurisdiction, such invalidity shall not affect the enforceability of any other provisions contained in this Agreement, and the remaining portions of the Merchant Agreement (including these Standard Terms) shall continue in full force and effect.
21. Choice of Law.
Any disputes arising out of or related to the Merchant Agreement (including these Standard Terms) and/or the Merchant Loyalty Program shall be governed in all respects, whether as to validity, construction, capacity, performance, or otherwise, by the laws of the State of New York, without regard to its choice of law rules and without regard to conflicts of laws principles except that the Arbitration provision in Section 20 shall be governed by the Federal Arbitration Act.
(a) Independent Contractors. Each party shall be deemed to be an independent contractor hereunder. The Merchant Agreement (including these Standard Terms) creates no relationship of joint venture, partnership, or agency between the parties, and the parties hereby acknowledge that no other facts or relations exist that would create any such relationship between them.
(b) Assignment. Neither party may transfer, assign or sell the Merchant Agreement (including these Standard Terms) or any part thereof, without the prior written permission of the other party, provided that either party may assign the Merchant Agreement (including these Standard Terms) and its rights and obligations hereunder in connection with a corporate reorganization, merger, or sale or transfer of all or substantially all of its assets. The Merchant Agreement (including these Standard Terms) shall be binding upon and shall inure to the benefit of each party and its permitted successors and assigns.
(c) Prevailing Party. If any legal action or other proceeding is brought for a breach of the Merchant Agreement (including these Standard Terms) or any of the warranties herein, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and other costs incurred in bringing such action or proceeding, in addition to any other relief to which such party may be entitled.
(d) Complete Agreement. The Merchant Agreement (including these Standard Terms), and other documents or materials referenced herein is the exclusive statement of the agreement of the parties with respect to its subject matter as of this date and supersedes all prior written or oral agreements. Deviations from and amendment to the Merchant Agreement (including these Standard Terms) are not valid unless made in writing by an authorized officer each of AppCard and Merchant.
(e) Survival. Sections 4-22 hereof, and all accrued rights and remedies hereunder, shall survive any termination of the Merchant Agreement (including these Standard Terms).
(f) No Implied Waivers. The failure of either party to enforce at any time any of the provisions of the Merchant Agreement (including these Standard Terms), or the failure to require at any time performance by the other party of any of the provisions of the Merchant Agreement (including these Standard Terms), shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the ability of either party to enforce each and every such provision thereafter. The express written waiver by either party of any provision, condition or requirement of the Merchant Agreement (including these Standard Terms) shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
(g) Force Majeure. Neither party shall be liable for any delay or failure in performance under the Merchant Agreement (including these Standard Terms), or for any interruption of services rendered hereunder, which result directly or indirectly from acts of God, civil or military authority, act of public enemies, war, accidents, fires, explosions, earthquakes, floods, the elements or any other similar cause beyond the reasonable control of the non-performing party, provided that, in order to be excused from delay or failure to perform, the non-performing party must act diligently to remedy such delay or failure. In the event such delay continues for five (5) or more consecutive days, the other party shall have the right to terminate the Merchant Agreement (including these Standard Terms) upon notice to the non-performing party.
(h) Severability. If any provision of the Merchant Agreement (including these Standard Terms) should, for any reason, be held invalid or unenforceable in any respect, the remainder of the Merchant Agreement (including these Standard Terms) shall be enforced to the full extent permitted by law.
(i) Headings; Construction. The headings of various paragraphs of the Merchant Agreement (including these Standard Terms) are inserted merely for the purposes of convenience and do not expressly or by implication limit, define, or extend the specific terms or text of the paragraph so designated. In resolving any dispute or construing any provision hereunder there shall be no presumptions made or inferences drawn because one of the parties drafted the Merchant Agreement (including these Standard Terms) and each party waives any rights under any law that would require the interpretation of any ambiguities in the Merchant Agreement (including these Standard Terms) against the party that drafted it.
(j) Notices. All notices required or desired to be given hereunder shall be in writing and if not personally delivered, be sent by facsimile (with copy by ordinary mail) or by overnight courier or registered or certified mail to the party’s address set forth on the Merchant Agreement, or of which a party notifies the other party in writing in accordance with this Section. If sent via facsimile or personally delivered, notices shall be deemed to have been given in the day when personally delivered or sent. If mailed by overnight courier or registered or certified mail, notices shall be deemed to have been given when received.
(k) Modification of Standard Terms. We may modify the Merchant Agreement (including these Standard Terms) from time to time, and such modification shall be effective upon five (5) days after we have sent an e-mail to you containing a notification of such modifications. In the event that such modification is unacceptable to you, you may cancel the Merchant Loyalty Program upon written notice to us.
Last Updated: December 26th 2019