MERCHANT TERMS AND CONDITIONS
This MERCHANT LICENSE (this “Merchant Agreement”) is entered into by and between you and CUSTOMER CONNECT, LLC (“Customer Connect”). Specific business terms associated with Merchant’s subscription to the Platform are set forth at Merchant’s Subscription page profile and are hereby incorporated into this Merchant Agreement by reference (collectively, the Merchant Agreement and the Merchant preferences identified Subscription page shall be the “Agreement”). For the purposes of this Merchant Agreement, “you” or “Merchant,” means the party identified as the merchant in the Subscription page. By clicking “Accept” when you log in you signify that you have read, understand, and agree to be bound by this Merchant Agreement as well as any applicable License terms located at (https://apiomni.com/tnc/). Customer Connect reserves the right to modify these terms or the Platform functionality without notice. This Agreement shall be effective as of the date you click “Accept” and enter your payment info on your Subscription page. This Merchant Agreement governs all services and any conflicting or additional terms and conditions are of no force or effect unless agreed to in writing signed by an authorized officer of Customer Connect. Subject to the terms of this Agreement, Customer Connect will allow Merchant to offer rewards to Merchant’s customers using the customer engagement platform known as “Customer Connect,” as may be further described at www.api.com and includes the Dashboard, and Software (all as defined in Section 1) (collectively, the “Platform”).
1. CUSTOMER CONNECT SOFTWARE. The Platform consists of three (2) components: (a) an online dashboard hosted by Customer Connect that allows Merchants to manage and create rewards programs, track customer data (“Dashboard”) and manage omni channel product catalog, and (b) POS integration that can either be downloaded on the POS through its marketplace or pre-loaded onto the Merchant’s point of sale machine that interacts with the Dashboard (“Software”). Subject to the terms and conditions of this Agreement, Customer Connect hereby grants to Merchant (a) a non-exclusive, non-assignable, non-transferable, non-sublicensable, limited right and license to use and display the Software for Merchant’s business purposes, and (b) the right to access and use the Dashboard, in the case of both (a) and (b), solely in accordance with the documentation related to the Software or the Platform generally published by Customer Connect.
2. RESTRICTIONS. Merchant agrees that (a) it will not decompile, reverse engineer, or otherwise attempt to obtain the source code or underlying ideas or information of or relating to the Software, (b) it will not sell, lease, license, sublicense, distribute, rent, transfer, assign, time share, or otherwise commercially exploit or provide the Platform to any third party without Customer Connect’s advance written consent, (c) it will only use the Software in order to interface with the Dashboard as contemplated by this Agreement, (iv) create internet “links” to or from the Dashboard, or “frame” or “mirror” the Dashboard, (d) reverse assemble, reverse compile, reverse engineer, decompile or otherwise attempt to discover the object code, source code, SDKs, non-public APIs or underlying ideas or algorithms of the Platform, except as and only to the extent this restriction is prohibited by law, (e) remove or obscure any copyright, trademark or other proprietary notices, legends or Customer Connect branding contained in or on the Platform, (f) use the Platform in any way that violates any applicable federal, state, local or international law or regulation, (g) introduce any viruses, Trojan horses, worms, logic bombs or other material which is malicious or technologically harmful, (h) attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Dashboard, the server on which the Dashboard is stored, or any server, computer or database connected to the Platform, and (i) use the Platform to send or store materials that is obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or in violation of third party privacy rights. Customer Connect may, in its sole discretion, immediately suspend Merchant’s access to the Platform if Merchant violates the terms of this section. .
3. MERCHANT INFORMATION AND REWARDS PROGRAMS. Merchant grants to Customer Connect a non-exclusive, worldwide license and right to display, reproduce and use Merchant’s trademarks and logos (collectively, “Merchant Marks”) and business description solely in connection with the operation of the Platform, provision of the services, and for marketing purposes. As part of the Platform, Merchant may create rewards programs that Merchant will offer to its customers through the Platform (“Merchant Rewards Program”) Merchant represents, warrants and covenants that it will honor any Merchant Rewards Programs it offers, even after any expiration or termination of this Agreement and abide by all laws and regulations related to such Merchant Reward Programs. Merchant on behalf of itself and its customers agrees to receive periodic email or SMS promotions from Customer Connect during use of the service. Following any expiration or termination of this Agreement and if requested by Merchant within seven (7) days of such expiration or termination, Customer Connect will provide Merchant with any relevant information in Customer Connect’ possession regarding the then-current status of the Customers in relation to the Merchant Rewards Program.
5. DATA. Regardless of where the Software is installed, as part of providing the Platform, Customer Connect may collect data related to Merchant and Customer use and performance of the Platform. The parties acknowledge that Customer Connect is free to collect and analyze such data and other information relating to the provision, use and performance of the Platform for the purpose of improving the Platform provided that Merchant cannot be identified and such data is used solely in an aggregate or other de-identified form. For the avoidance of doubt, no Merchant or Merchant customer financial data is stored on any Customer Connect database. Customer Connect uses third party credit card processing companies to store any such data subject to their own terms and conditions. Any breach related to such financial data shall be directed to the third party credit card processing institution.
6. CONTENT OWNERSHIP. We acknowledge that all images, offers, surveys, campaigns and/or any other content created by you on this website is your property and we have no ownership right to any of it. We do not pre-screen, review or monitor any content create or uploaded to this website. However, we do reserve the right, on our sole discretion, to review and remove any content found to violate these terms and conditions. If at Customer Connect’s sole discretion any content from Merchant is deemed objectionable, Customer Connect may immediately suspend access to the Platform and/or Software until the content is removed to Customer Connect’s satisfaction.
7. FEEDBACK. Merchant may from time to time provide suggestions, comments or other feedback with respect to the products or services of the Receiving Party (“Feedback”). Both Parties agree that all Feedback is and shall be given entirely voluntarily. Customer Connect shall be free to use, disclose, reproduce, license or otherwise distribute and exploit any Feedback as it sees fit, entirely without obligation or restriction of any kind.
8. OWNERSHIP. Merchant acknowledges and agrees that Customer Connect and its licensors are the owners of all right, title and interest in and to the Software, the Platform, and all updates, upgrades, and derivative works thereto, including anything developed or created by Customer Connect., and all intellectual property rights therein including anything developed or created by Customer Connect, and that Merchant will not obtain or claim any ownership interest in the foregoing.
9. PAYMENT. Merchant will pay Customer Connect monthly on the first day of each month. Merchant must maintain a valid credit card on file with Customer Connect. Fees are due in advance. If Merchant subscribes on any day other than the first of the month, the subscription fees will be pro-rated to the end of the month. If Customer Connect bills Merchant for fees owed hereunder, Merchant’s payment will be considered delinquent if a payment is not received within fifteen (15) days following the receipt of an invoice for such payments. If Merchant is paying via credit card, Merchant authorizes Customer Connect to charge the fees due hereunder (and any other charges Merchant may incur in connection with the Platform (such as taxes)) to Merchant’s provided payment instrument in advance on a monthly basis using the credit card info Merchant provides on the Subscription page. Merchant is responsible for keeping its payment instrument and all associated information (such as the expiration date of a credit card) current at all times. If a payment is not successfully settled, due to expiration, insufficient funds, or otherwise, and Merchant does not promptly update its payment instrument information, (a) Customer Connect reserves the right to suspend Merchant’s access to the Platform until such time as payment is successfully settled, including past due payments, if any and (b) Merchant authorizes Customer Connect to continue charging its payment instrument, as it may be updated. If Merchant’s use of the Platform exceeds the capacities or limits on its Subscription page or otherwise requires the payment of additional fees, Merchant hereby authorizes Customer Connect to charge such additional fees to Merchant’s payment instrument immediately. All fees shall be paid in U.S. dollars. All fees paid are non-refundable. Merchant agrees to pay the costs and expenses incurred by Customer Connect or on behalf of Customer Connect in connection with the collection of any unpaid charges and fees. Merchant agrees to cover any additional bank charges associated with all Customer Connect payments and fees. Customer Connect is not obligated to pay any item presented for payment if Merchant’s account does not contain sufficient collected funds. Merchant will be responsible for all taxes in connection with this Agreement (excluding taxes based on Customer Connect’ net income). Billing will commence on the first billing date, as specified in the Order Form.
10. TERM AND TERMINATION.
10.1 Term. The term of this Agreement shall start on the effective date or the subscription start date (as applicable) (“Effective Date”) and continue on a monthly basis unless terminated by Merchant or Customer Connect.
10.2 Termination. Either party may terminate this Agreement if the other party breaches or defaults on any of its obligations under this Agreement (such that the breach or breaches, individually or in the aggregate, deprive the other party of the intended benefit of this Agreement) and said breach or default continues un-remedied for a period of thirty (30) days after the breaching party’s receipt of written notice. Written notices of breach must specify the grounds of such breach or default in reasonable detail. Except as provided in this Section and Section 10.1 above, Merchant may terminate its use of the Platform upon 30 days advance written notice but no refund shall be provided.
10.3 Effect of Termination. Upon termination of this Agreement, Merchant’s rights to use and access the Platform will immediately cease and Merchant will cease using and accessing the Software and the Dashboard and pay any associated fees in accordance with the Subscription page preferences. Sections 5 through15 will survive the termination or expiration of this Agreement.
11. INDEMNIFICATION. Merchant will indemnify, defend, and hold harmless Customer Connect, its owners, affiliates, shareholders, and employees from and against any third party claim or action brought relating to (a) the Merchant Rewards Programs, (b) Merchants online/mobile ordering, (c) Merchant’s breach of this Agreement (d) Merchant’s negligent or willful acts or omissions or (e) Merchant’s breach of this Agreement including violations of law and Merchant will pay (i) any settlements entered into between Customer Connect and the third party claimant or (ii) final judgments awarded to the third party claimant by a court of competent jurisdiction. Customer Connect shall (a) provide Merchant with prompt written notice of any claim, (b) grant Merchant sole control of the defense and settlement of the claim, and (c) providing reasonable information and assistance to Customer Connect in the defense or settlement of the claim at Customer Connect’ expense. Merchant shall not admit liability on Customer Connect’s behalf without Customer Connect’s advanced written consent.
12. DISCLAIMER.THE CUSTOMER CONNECT PLATFORM CONTENT AND ITEMS PROVIDED BY CUSTOMER CONNECT HEREUNDER (INCLUDING, WITHOUT LIMITATION, ARE PROVIDED “AS IS” AND CUSTOMER CONNECT DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF UNINTERRUPTED USE AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
13. LIMITATION OF LIABILITY. EXCEPT FOR THE INDEMNITY OBLIGATIONS (SECTION 13) OR A MISAPPROPRIATION OF CUSTOMER CONNECT’S INTELLECTUAL PROPERTY, TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, AND REGARDLESS OF THE FORM OF ACTION (E.G., WHETHER IN CONTRACT, TORT, NEGLIGENCE, OR OTHERWISE) NEITHER CUSTOMER CONNECT NOR ANY OF ITS LICENSORS OR SUPPLIERS SHALL BE LIABLE TO MERCHANT OR TO ANY OTHER PARTY (INCLUDING MERCHANT CUSTOMERS) IN CONNECTION WITH ANY SUBJECT MATTER OF THIS AGREEMENT FOR (A) ANY SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR INDIRECT DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION), OR (B) ANY AMOUNTS IN THE AGGREGATE THAT EXCEED THE FEES PAID BY MERCHANT TO CUSTOMER CONNECT HEREUNDER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO THE APPLICABLE CLAIM. THE FOREGOING LIMITATIONS SHALL APPLY WHETHER OR NOT CUSTOMER CONNECT (OR ITS LICENSOR OR SUPPLIER, AS APPLICABLE) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
14. GENERAL PROVISIONS. The terms of this Agreement and any and all non-public information disclosed by Customer Connect to Merchant pursuant to this Agreement are confidential, and Merchant agrees not to disclose the terms of this Agreement or any such information to any third party, or use any such information other than for the purposes expressly set forth herein. Customer agrees that Customer Connect may use Customer’s name and logo to identify Customer as a customer of Customer Connect on Customer Connect’ website and in other advertising, marketing and promotional materials. Merchant may not assign this Agreement or any of its rights or delegate any of its duties under this Agreement without Customer Connect’ prior written consent, except to a successor to all or substantially all of its business or assets; Customer Connect may assign this Agreement and/or any of its rights and/or delegate any of its duties under this Agreement without consent. This Agreement contains the entire understanding of the parties with respect to the transactions and matters contemplated hereby, and supersedes all previous communications, understanding and agreements (whether oral or written).
15. GOVERNING LAW AND DISPUTES. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, without regard for conflict of law principles. The parties irrevocably consent to the exclusive personal jurisdiction of the federal and state courts located in Dallas County, Texas. The prevailing party in any action arising out of this Agreement shall be entitled to an award of its costs and attorneys’ fees.