TERMS OF SERVICE
- Purpose: These Terms of Service govern Merchant's use of Services provided by Loyalty Lock, Inc., dba Repeat Returns, a Nevada corporation ("Provider") ("Purpose.") Hereafter Merchant or Provider may be referred to individually as a Party or collectively as the Parties.
- Commencement of Service and Term: The term of this Agreement shall begin upon receipt of the fully-executed Merchant Agreement and shall continue pursuant to merchant's specific plan. Unless written notification from the Merchant is received pursuant to Section 20, below, the Term shall automatically renew for subsequent one (1)-month or twelve (12)-month periods.
- Provider Services to be Performed: Provider shall provide Merchant with access to and use of certain software applications for rewards-based customer marketing services (hereinafter "Services"). Such Services may include, but are not necessarily limited to, a monthly marketing program, gift and loyalty program systems, automated email marketing systems, marketing intelligence services and reporting, database management, and other customizable marketing system functions, and any updates or enhancements to the Services, fully described on the Plans Page. This Agreement sets forth the terms under which Provider will provide Merchants with access to and use of the Services. Merchant agrees to use such Services in good faith and only for the Purposes described herein.
- Equipment: Provider shall supply certain equipment for Merchant's use for some of its Services, depending on the particular Program (e.g. terminal, tablet, or computing device, along with necessary cables and related items) (collectively referred to as "Equipment.") Merchant acknowledges that it is responsible for the upkeep and maintenance of the Equipment. Any misuse of Equipment by merchant, as determined by Provider, shall require that Merchant reimburse Provider for any costs needed to repair the problems, not to exceed the cost to replace Equipment. Merchant is also responsible for any damage to Equipment provided by Provider, and shall return Equipment in "as new" condition (defined as in good working order and appearance, normal wear and tear excepted, in the original packaging, and containing all parts, cables and accessories with no permanent or semi-permanent modifications which render the tablet unusable or non-returnable for the full purchase price to the original place of purchase) within 15 days of cancellation to avoid the imposition of replacement fees:
- $225 per terminal
- $499 per tablet or computing device
- Customer Information: Customer data collected by the Provider shall remain the property of Merchant. Provider acts as the custodian only and will not sell, rent, share or use customer information for any reason other than for purposes of implementing the Services for Merchant. Customer data and information collected from the Merchant and its customers may be used by Provider for sales, marketing, research and case study purposes.
- Independent Contractor: The Parties to this Agreement are independent contractors, and no agency, partnership, joint venture, franchiser-franchisee, representative or employee-employer relationship is intended or created by this Agreement. Neither Party shall have the power to obligate or bind the other Party. This Agreement shall not create an exclusive obligation to Merchant by Provider.
- Choice of Law: This Agreement will be construed in accordance with the laws of the State of Nevada, without regard to conflicts of law rules. Each Party hereby consents and submits to the exclusive jurisdiction and venue of the federal and state courts located in the County of Clark in the State of Nevada, and agrees not to raise any defense of forum non conviens or any similar defense.
- Assignment: Neither Party will assign, without the prior written consent of the other Party, its rights, duties or obligations under this Agreement, except in its entirety to the surviving entity of any merger or consolidation or to any purchaser of substantially all of the Party"s assets. This Agreement will be binding upon and inure to the benefit of the Parties and their permitted successors and assigns.
- Confidentiality: Both parties agree that all Confidential Information (as defined below) exchanged must not be released to any third party, without the prior express written consent of the other Party, unless compelled to do so in any action or other legal proceeding or unless otherwise required by law. Each Party shall hold the other Party"s Confidential Information in confidence and shall use its best efforts to protect it. Each Party shall use Confidential Information for the sole purpose of performing under this Agreement. As used in this Agreement, "Confidential Information" shall mean any information furnished or disclosed by the Merchant to the Provider, or the Provider to the Merchant, in electronic, oral or written form, whether marked as confidential or proprietary or which the Merchant would reasonably expect would be confidential or proprietary. Confidential Information shall not include information: (i) which is otherwise available to the public or is made public by the Merchant or a third party; (ii) which is furnished by the Merchant to a third party without restriction; or (iii) which is already lawfully in possession of the Provider and not subject to an existing agreement of confidentiality between the Parties.
- Termination: Upon any termination of this Agreement, the Receiving Party and its Representatives shall promptly redeliver to the Disclosing Party or destroy (if requested by the Disclosing Party) all tangible data or information (including, among other things, such data or information maintained in any computer memory, storage media or similar form), that comprises Confidential Information and any other tangible material containing, prepared on the basis of or reflecting any Confidential Information (whether prepared by the Disclosing Party or its Representatives or otherwise), and shall not retain any copies, extracts or other reproductions in whole or in part of such tangible material. Any such destruction shall be certified in writing to the Disclosing Party.
- Termination for Breach of Confidentiality: In the event of a breach by either Party of a duty of confidentiality, monetary damages alone shall be deemed inadequate. The non-breaching Party shall be entitled to injunctive, equitable and other legal relief, including repossession of any proprietary information plus reasonable costs including attorneys" fees.
- Survival: This Section 11 shall survive termination of this Agreement.
- Agreement Modification: Provider may modify the terms and conditions of this agreement at any time without prior approval or advance notice by Merchant. Such changes will be posted and become binding within 48 hours of posting. If any changes are unacceptable to Merchant, cancellation of this agreement will be the sole recourse. Continued membership in the program will constitute acceptance of any such changes.
- Excused Non-Performance: Provider will not be liable for any failure to perform its obligations hereunder in the event of an Act of God, action by any governmental or quasi-governmental entity, fire, flood, insurrection, riot, explosion, power interruption or any condition beyond its reasonable control.
- Notices: Any notice under this Agreement will be in writing and delivered by personal delivery, overnight courier, confirmed facsimile, confirmed e-mail, or certified or registered mail, return receipt requested, and will be deemed given upon personal delivery, one (1) day after deposit with an overnight courier, five (5) days after deposit in the mail, or upon confirmation of receipt of facsimile or e-mail. Notices will be sent to a party at the address set forth below. Notwithstanding the foregoing, routine communication between the parties, other than as explicitly required in this Agreement, shall be deemed sufficient if sent by regular e-mail, without requiring a return receipt notification.
- To Repeat Returns: 6240 McLeod Drive, #100, Las Vegas, NV 89120; E-mail address: firstname.lastname@example.org
- To Merchant: at the address provided on Merchant Agreement.
- License: Provider hereby grants Merchant, during the term of this Agreement, a limited, non transferable and revocable non exclusive license for Merchant to use the Services solely for Merchant's marketing and business purposes consistent with the terms and conditions of this Agreement.
- Administration: Provider will issue to Merchant a login identifier and password ("Merchant ID") for purposes of administering the Services. Merchant shall not disclose the Merchant ID to unauthorized users, persons or entities, including competitors of Provider without the express written permission of Provider. It is the responsibility of the Merchant to thoroughly review all information before making it available to its customers and make any necessary changes. Provider has the sole right to restrict or remove such information as it deems such information to be inappropriate.
- Restrictions: Merchant shall not: (a) directly or indirectly copy or reproduce any part or all of the Services, website or its applications, including, but not limited to copying of style, presentation or organization of material; (b) provide, disclose, divulge or make available to, or permit use of the Services by, any third party or otherwise use the Services for the benefit of any third party, except for Purposes as expressly contemplated by this Agreement; (c) use the Services in a manner that would infringe on the intellectual property rights of Repeat Returns or any other party; (d) use Services in a manner that is obscene, defamatory or trade libelous; (e) sell, lease, license or sublicense the Services; (f) modify, change, alter, translate, create derivative works from, reverse engineer, disassemble, or decompile the Services or any software included in the Services; (g) knowingly interfere, or attempt to interfere, with the Services in any way; (h) knowingly introduce into or transmit through the Services any virus, worm, trap door, time bomb, back door, timer, clock, counter or other limiting routine, instruction or design that are intended to interfere with, intercept or expropriate any system, data or personal information; (i) remove, obscure or alter any copyright notice, trademarks or other proprietary rights notices affixed to or contained within the Services; or (j) engage in or allow any action involving the Services that is inconsistent with the terms and conditions of this Agreement or the Repeat Returns' Anti-Spam Policy. In the event of a breach by Merchant of these restrictions, Merchant acknowledges and agrees that monetary damages alone shall be deemed inadequate. Provider shall be entitled to injunction, equitable and other legal relief, including reasonable costs and attorneys’ fees.
- Proprietary Rights: Except for the license granted in this Section 15, no right, title or interest of intellectual property or other proprietary rights in and to the Services made available under this Agreement is transferred to Merchant. Provider retains all right, title and interests, including, without limitations, all copyright and other proprietary rights in and to the Services, including the website, applications, source code, object code, software, content, copyrights, trademarks, images, videos, digital materials, patents and other intellectual property related thereto or included therein. Any suggestions, recommendations or other communications from Merchant to Provider regarding improvements to the Services, applications or the website shall be solely and exclusively owned by Provider.
- Provider Upgrades: Provider may from time to time update or modify the Services, which may be included in this License, at Provider's option.
- Indemnification: Merchant agrees to indemnify, defend and hold Provider, the officers, directors, employees, representatives and agents of Provider (the “Indemnified Parties”) from and against any and all costs, expenses, fees, including without limitation, attorneys’ fees, charges, expenditures, damages, liabilities and/or other losses of whatsoever nature incurred by any of the Indemnified Parties with respect to, arising from or out of any claim (i) relating to Merchant’s violation of the terms and conditions of this Agreement or (ii) by a third party relating to the intellectual property infringement of any information used or provided by Merchant.
- Survival: The terms of this Section 15 shall survive termination of this Agreement.
- Representations and Warranties: Each Party represents and warrants to the other that it has the right to enter into this Agreement, and has the ability to perform its obligations hereunder. Each Party further represents and warrants that its actions with respect to this Agreement will not violate any applicable laws or regulations. Provider represents and warrants that it will use its best efforts to perform its obligations hereunder; however, it makes no express representation or warranty as to the effectiveness or level of success associated with the Services. Merchant acknowledges that included in the Services is access and use of Provider's proprietary software, systems, processes, designs, know-how and other Confidential Information. Merchant represents and warrants that it is not a competitor of Provider and that Merchant will not provide access to the Services to any third party without the prior written consent of Provider.
- Breach: In the event that, in Provider's sole and absolute discretion, Merchant breaches or threatens to breach this Agreement, committed fraud or deception, or otherwise fails to uphold its obligations under this Agreement, Provider has the right, in addition to any other remedies it has hereunder and/or at law, to terminate, cancel or suspend Merchant's access to Services at any time.
- Disclaimer of warranties; limitations of liability. The services provided in this agreement are provided "as is" without any other warranty, express or implied, including, but not limited to implied warranties of merchantability, fitness for a particular purpose, non-infringement and title. Provider is only a provider of the services as a facilitator of information to third parties, and expressly disclaims any liability for the promotions, prizes offered, or information disseminated pursuant to the services herein. Any sweepstakes, contest, raffle or other similar promotion made available through the services offered by provider is void where prohibited and governed by specific rules that may be different from the terms and conditions of this agreement. By participating in any such promotional services, merchant may become subject to certain rules, which may vary from the terms outlined herein. Under no circumstance and under no legal or equitable theory (whether in tort, contract, strict liability, warranty or otherwise) shall provider, its affiliated parties, the officers, directors, employees, agents and representatives of each, be liable for any indirect, punitive, incidental, special, exemplary or consequential damages of any nature arising out of or in connection with (a) the use of or inability to use the website, the materials or any products or services offered through any marketing promotion; (b) any transaction conducted through or facilitated by the website; (c) any claim attributable to errors, omissions or inaccuracies in the website or the materials; (d) unauthorized access to or alterations of transmissions of data; (e) any other matter relating to the website, even if the parties have been advised of the possibility of such damages; (f) allegations of lost profits, lost revenues, lost opportunities, downtime, or related damages or costs. Moreover, provider does not warrant that any functions, inaccuracies or typographical errors in the materials or content will be repaired or corrected or that the website or the servicer that makes it available are free of viruses or other harmful components, and merchant alone assumes all risk and provider is not responsible for any damage to Merchant's computer, computer system or portable devices resulting from use of the website or any materials downloaded or otherwise obtained from the website, including, without limitation, damages from any security breach, virus, bug, tampering, fraud, error, omission, interruption, defect, delay in operation or transmission, computer line or network failure or any other malfunction. If merchant is dissatisfied with the website, the materials or the services in any way, its sole remedy is to discontinue the services pursuant to the terms of this agreement. In no event shall Provider's aggregate liability exceed the amounts actually paid by merchant in the thirty (30) day period immediately preceding the event giving rise to the claim. Additionally, there is no direct connection between provider and any of Merchant's customers or program members. Provider will in no way be subject to any liability or claims between merchant and/or Merchant's customers.
Merchant hereby releases and forever discharges provider and its officers, directors, agents, employees, subsidiaries and affiliates, and their respective successors and assigns, from any and all manner of liability, claims, counterclaims, demands, setoffs, damages, or causes of action, which merchant now has or which may hereafter accrue, whether heretofore asserted or unasserted, known or unknown, arising out of, or in any way relating to the services, specifically including, but not limited to, any claims based in whole or in part upon the alleged negligence of provider in providing the services.
- Indemnification: Merchant agrees to indemnify, defend and hold Provider, the officers, directors, employees, representatives and agents of Provider (the "Indemnified Parties") from and against any and all costs, expenses, fees, including without limitation, attorneys' fees, charges, expenditures, damages, liabilities and/or other losses of whatsoever nature incurred by any of the Indemnified Parties with respect to, arising from or out of any claim (i) relating to Merchant's violation of the terms and conditions of this Agreement or (ii) by a third party relating to the intellectual property infringement of any information used or provided by Merchant.
- Cancellation Policy: Merchant may cancel this Agreement by notifying Provider in writing of its intention not to renew the Agreement at least thirty (30) days prior to the end of the Term. Otherwise, this Agreement shall be renewed for a successive one (1)-month or twelve (12)-month period depending on plan. Provider may cancel this Agreement at any time and for any or no reason.
- Conditional Money Back Guarantee: If at 90 days from your initial orientation for a points-issuing Plan you have enrolled a minimum of 500 customers in your program, consistently awarded points with customer purchases, and you are not satisfied for any reason, simply notify us and we will refund your money including setup fee.
- Integration/Severability: If any provision of this Agreement is held to be unenforceable or invalid for any reason, or if any governmental agency rules that any portion of this Agreement is illegal or contrary to public policy, the remaining provisions, to the extent feasible, will continue in full force and effect with such unenforceable or invalid provisions to be changed and interpreted to best accomplish its original intent and objectives.
Last Updated: 03/09/2016