Terms of Service
Updated March 9, 2021
LOYALTY GATOR INC. SERVICE AGREEMENT
Loyalty Gator provides customer loyalty program technology and customer retention/marketing services and products to retailers and other businesses. The Client desires to utilize and acquire certain products and services of Loyalty Gator, to the extent and manner set out in an accepted Client Service Order Form, all pursuant and subject to the terms and conditions set out herein. The parties therefore agree as follows:
Section 1 - Effective Date and Interpretation of Agreement
1.1 Client Service Order Form. This agreement is made as of the Effective Date set out in a Client Service Order Form agreed to by the parties (the form of which is appended as Appendix “A”). Once a Client Service Order Form is agreed to by the parties, such form becomes incorporated to this agreement by reference and deemed to be a part hereof. Unless specifically stated to the contrary, in the event of any inconsistency between the provisions of this agreement and an accepted Client Service Order Form, the provisions of this agreement will prevail.
1.2 Version of Agreement. The Client may review the most current version of this agreement at anytime by visiting this url. Loyalty Gator reserves the right, in its sole discretion, to change or replace any part of this agreement by posting an updated version of this agreement to this url. It is the Client’s responsibility to check this url periodically for changes. The Client’s continued use of the Services following the posting of any changes to this agreement constitutes acceptance of those changes.
1.3 Undefined Terms. All capitalized terms not otherwise defined in this agreement shall have the meaning ascribed to same in an accepted Client Service Order Form.
1.4 Section Headings. Section headings are not to be considered part of this agreement, are included solely for convenience of reference and are not intended to be full or accurate descriptions of the contents thereof.
1.5 Definition. “Including” means ‘including without limitation’ and “Include” has a corresponding meaning.
1.6 Construction of Agreement. Notwithstanding any rule or maxim of construction to the contrary, any ambiguity or uncertainty in relation to the contents hereof will not be construed against any party by reason of the authorship of the provisions of this agreement.
1.7 Delivery of Agreement. Delivery of this agreement and the Client Service Order Form by facsimile, e-mail or other means of electronic transmission constitutes valid and effective delivery. The Client Service Order Form may be executed and delivered in one or more counterpart, each of which when so executed and delivered will be an original, and each such counterpart will together constitute one and the same instrument.
1.8 Entire Agreement. This agreement, together with any agreed to Client Service Order Form, constitutes the entire agreement between the parties pertaining to the subject matter hereof and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, of the parties.
Section 2 - Services & License
2.1 Loyalty Gator Services. Loyalty Gator shall provide the Client with the products and services set out in an accepted Client Service Order Form (the “Services”), pursuant and subject to the terms and conditions set out herein.
2.3 Intellectual Property Rights. Any right not explicitly granted herein is reserved by Loyalty Gator. The license granted herein does not grant any right to market, sell, resell, rent, loan, distribute or create derivative works of any of the Services or the Portals (or any of the underlying software therein). Loyalty Gator reserves the right to make changes to the Portals (including changes to the look and feel of the Portals) at any time, without notice to the Clients or its customers.
2.4 Prohibited Conduct. The Client shall not access or use, or permit the access or use of, the Portals, or any related servers, data connections, databases, scripts or programs, in any manner that does, or could, undermine its integrity (collectively, “Prohibited Conduct”). Such Prohibited Conduct includes: disrupting, disabling or placing unreasonable burdens on computer systems, servers or networks; attempting to gain unauthorized access to the Portals or prohibited areas within the Portals; or, disassembling, decompiling, translating, reverse engineering or copying the Portals (or any of the underlying software therein).
2.5 Software Administration. Loyalty Gator shall use reasonable efforts to configure the administrative functionality of the Client Portal with respect to employee access and privileges.
2.6 Promotional Tent Card Signage. Loyalty Gator shall provide the Client with ten (10) checkout countertop signage pieces for placement at the Client’s reception or check-out area. Such signage will include a promotional message intended to showcase program benefits and create customer awareness.
2.7 Point of Sale Materials. Loyalty Gator shall provide the Client with the items listed in an accepted Client Service Order Form (“POS Materials”) for the fees set out in such Client Service Order Form.
2.8 Materials Design. Loyalty Gator shall provide the Client with the custom design of the POS Materials, and other materials as set out in an accepted Client Service Order Form, if applicable. If the requested by the Client, Loyalty Gator shall make up to two (2) creative revisions to the design at no charge; the Client shall pay Loyalty Gator for any further revisions at a rate of fifty dollars ($50.00 CAD) per hour. The Client is required to provide written confirmation to Loyalty Gator that it is satisfied with materials design prior to Loyalty Gator delivering such materials.
2.9 Rewards Calculator. Loyalty Gator shall provide the Client with access to its ‘Rewards Calculator’ application. This application is intended to assist the Client in determining what products/services are best suited for its particular loyalty program by providing ‘points per dollar’ ratios and the cost/profit associated with various rewards. Loyalty Gator is providing this application solely as a reference tool and makes no representations as to the suitability of the various products/services for the Client’s intended purposes; the Client is advised to consult with its financial, business and legal advisors prior to making any such decision.
2.10 Balance Checker. Loyalty Gator shall provide the Client with a ‘Balance Checker’ internet hyperlink that the Client can provide to its customers for them to check their rewards points balance.
2.11 Reporting. Loyalty Gator shall provide the Client with access to all reports for the purpose of tracking customer purchase activity. Such reports may also be exported for use of Client.
2.12 Support. Loyalty Gator shall provide support for the Services to the Client via email. Loyalty Gator will endeavour to respond to all email requests for support within one (1) business day of receiving such email. Clients intending to modify/host their own web files, or create their own application using the available API documentation acknowledge that any potential issues or errors related to such may not be supported.
2.13 Best Practices Guide. Loyalty Gator shall provide the Client with a ‘Best Practices Guide’ which sets out protocols intended to maximize the effectiveness of the Client’s loyalty program. The Client acknowledges that in order to achieve the best results possible, strict compliance with the provided ‘Best Practices Guide’ is essential. The Client agrees to review the ‘Best Practices Guide’ with it legal counsel in order to determine compliance with applicable law.
Section 3 - Term & Payment
3.1 Monthly Contract Term. The initial term of this agreement shall commence on the Effective Date and continue until the last day of the calendar month of the Effective Date. Unless terminated in accordance with the terms herein, the aforementioned initial term, and any subsequent renewal terms, will automatically renew for one (1) calendar month. The initial term and all subsequent renewal terms are collectively referred to herein as the “Term”.
3.2 Start Date. Notwithstanding the Effective Date of this agreement, Loyalty Gator will not commence providing the Services until twenty one (21) days after the Client has provided approval on all marketing materials.
3.3 Payment. The Client shall pay Loyalty Gator the Set Up Fee set out in Client Service Order Form on the Effective Date. The Client shall also pay Loyalty Gator the Maintenance Fee set out in Client Service Order Form, at the end of each calendar month in the Term, with the first such payment commencing on the last day of the month of the Effective Date (irrespective of when Loyalty Gator commences providing the Services). Loyalty Gator will invoice the Client for the Maintenance Fee at the end of each calendar month and each invoice is due upon receipt. Any late payment of Maintenance Fee(s) shall accrue interest at a rate of 1% per month (or, 12% per annum) from the time such amounts become due and payable by the Client. Interest on late payments will be compounded monthly. All payments must be made by credit card. Loyalty Gator reserves the right to change any fee payable hereunder upon providing the client with written notice one (1) month in advance. If the Client chooses to pay annually, payment must be made in full for the period of (12) months prior to the program start date. All fees and charges hereunder are subject to applicable taxes. No refunds will be issued for annual payments or custom development/design.
3.4 Fair Usage Policy. In effort to maintain a high quality of service, Clients planning on high peak usage or large amounts of data for transactions must notify Loyalty Gator in advance to ensure that bandwidth can be increased accordingly. Failure do so may result in your account being temporarily suspended. In addition, should the Client exceed 100,000 transactions in a given month, additional bandwidth may be required to accommodate for the increased volume on the servers. In this case, an additional bandwidth fee may be charged.
3.5 Termination. Either party may terminate this agreement at any time by providing the other party with written notice. Such termination will become effective at the end of the calendar month in which such notice is provided.
3.6 Immediate Termination. This agreement terminates immediately upon the occurrence of any of the following:
(1) the Client fails to make any payment as required, or such payment is returned as NSF or cancelled;
(2) the Client breaches any of the terms of this agreement and fails to immediately remedy such breach upon receiving written notice from Loyalty Gator; or
(3) the Client declares bankruptcy or makes an assignment for the benefit of its creditors generally.
3.7 Effect of Termination. If this agreement is terminated for any reason, then:
(1) Loyalty Gator will immediately cease providing any further Services to the Client and the Client will cease using the Services (including the Customer Portals);
(2) the Client will forthwith pay any amounts owing to Loyalty Gator (including any payments returned as NSF or cancelled, and all associated bank or service charges);
(3) the Client will not be entitled to any refund of monies paid to Loyalty Gator (including with respect to any pre-paid Maintenance Fees); and,
(4) the Client will return and/or destroy all Loyalty Gator IP (including software).
The termination of this agreement shall not prejudice or affect the accrued rights or claims of Loyalty Gator nor shall it release the Client from any of the restrictions of this agreement concerning use, possession, copying, or disclosure of the Loyalty Gator IP or confidential information, all of which shall survive termination.
Section 4 - Representations, Warranties & Acknowledgments
4.1 Client Content. Loyalty Gator will design membership Rewards Cards if required (and potentially other materials) based upon the logos, colours, content and other information (collectively, the “Client Content”) that the Client provides. The Client represents and warrants to Loyalty Gator that the Client is the owner of all Client Content that the Client provides to Loyalty Gator and that such Client Content does not infringe upon the property rights, intellectual property rights or other rights of others. The Client grants to Loyalty Gator a non-exclusive, non-revocable, worldwide license to use the Client Content to design and create membership loyalty cards (and any other requested materials), and as otherwise required in order to provide the Services.
4.2 Non-exclusive Relationship. The Client acknowledges that the Services being provided by Loyalty Gator pursuant to this agreement are not being provided on an exclusive basis and that Loyalty Gator may provide similar products and services to other parties who may, directly or indirectly, compete with the Client.
4.3 No Results Promised. The Client acknowledges that Loyalty Gator has not made any representations with respect to results (including any projected increases in revenue or profitability) the Client can expect upon implementing any of the products or services offered by Loyalty Gator, and the Client is not relying upon such in entering this agreement.
4.4 Compliance with Laws. The Client acknowledges that all contact with customers or potential customers will be made by, or on behalf and on the instructions of, the Client. The Client acknowledges and agrees that it shall be solely responsible for ensuring that its use of the Services and all contact with customers or potential customers facilitated by use of the Service are in compliance with all applicable laws and regulations (including laws and regulations governing contests, advertising, privacy, unfair business practices and do-not-contact rules). The Client covenants that its use of the Service will not violate any applicable law.
4.5 Duly Authorized. The Client represents and warrants to Loyalty Gator that:
(1) this agreement has been duly and validly executed and delivered by the Client and constitutes a legal, valid and binding obligation, enforceable against the Client in accordance with its terms; and,
(2) the execution, delivery and performance by the Client of this agreement: is within such Client’s legal capacity and power; has been duly authorized by all requisite action; requires the approval or consent of no other persons; and, neither violates nor constitutes a default pursuant to the provision of any law, rule, regulation, order, judgment or decree to which the Client is subject or bound, or pursuant to the terms of any other agreement, document or instrument applicable to or binding on the Client.
Section 5 - Proprietary Rights
5.1 No Rights Granted Unless Expressly Provided. Except as expressly set forth herein, neither party grants, nor should be construed to grant, any licenses or rights, by implication, estoppel or otherwise, under copyright or other intellectual property rights.
5.2 Loyalty Gator’s Intellectual Property. The Client acknowledges and agrees that all intellectual property rights in Loyalty Gator’s IP (defined below) are owned by, and remain with, Loyalty Gator and/or its suppliers or licensors, and are all protected by copyright, patent, trade mark and other applicable laws. For the purposes of this agreement, “Loyalty Gator’s IP” shall mean all intellectual property made available or delivered to the Client in connection with the Services, including, (1) the “Loyalty Gator” and “rewardbooth” trademarks, logos and domain names, (2) the software, databases, scripts, program and user manuals associated with the Services (including the Portals and the Rewards Calculator and Balance Checker applications), (3) the Loyalty Gator Samples (defined below) and (4) all registered and unregistered copyright, patents, trademarks, know-how, confidential information, trade-secrets and other similar intellectual property rights associated with Paragraphs 5.2(1), (2) and (3). Loyalty Gator’s IP shall not include Client Content (as defined in Subsection 4.1).
5.3 Proofs, Samples and Templates. For greater certainty, any proofs, samples, and templates provided to the Client by Loyalty Gator (“Loyalty Gator Samples”) (and all applicable property rights therein) are, and will at all times remain, the sole property of Loyalty Gator.
Section 6 - Customer Information & Confidentiality
6.1 Remains Client Property. The Client acknowledges that provision of the Services require Loyalty Gator to access, view, collect, store and in some case edit the Client’s customer’s data. The Client hereby authorizes Loyalty Gator to access, view and edit customer data for the sole purpose of providing the Services. All such customer data is, and will at all time remain, the sole property of the Client.
6.2 Confidentiality of Customer Data. Loyalty Gator shall not disclose customer data, except: (1) as required in order to administer the Services (e.g. to its affiliates or licensors), (2) to its service providers (e.g. lawyers, accountants, etc.), (3) with the written consent of the Client or (4) as may be required or permitted by law.
6.3 Confidentiality of Loyalty Gator Materials. The Client shall not disclose any materials provided to it by Loyalty Gator (including any samples, proofs or marketing materials), pricing, or other information related to Loyalty Gator’s business or operations to any third party, without Loyalty Gator’s written consent.
Section 7 - Indemnity
7.1 Client to Indemnify. The Client shall indemnify and hold Loyalty Gator and its officers, directors, employees, agents and licensors, harmless from all losses, injuries, claims, liabilities or damages of any kind (including any special, direct, indirect, incidental or consequential damages) resulting from, arising out of, or in any way related to: (1) the Client’s breach of any term of this agreement, (2) any inaccuracy in any representation or warranty made by the Client in this agreement and (3) the Client’s use of the Service (including uses in violation of applicable law). None of the aforementioned indemnified parties will be under any duty mitigate.
Section 8 - Disclaimer
8.1 IMPORTANT NOTICE. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE API FOR CUSTOM APPLICATION, INTERFACE, SCRIPT, OR ANY INTEGRATION IS SOLELY THE RESPONSIBILITY OF THE CLIENT AND THE CLIENT WILL BE RESPONSIBLE FOR ALL DESIGN, SECURITY, HOSTING, TESTING, SUPPORT, AND LEGAL IMPLICATIONS RELATING TO ANY CUSTOM WORK THAT USES THE LOYALTY GATOR API. LOYALTY GATOR, ITS AFFILIATES, AGENTS, LICENSORS AND EMPLOYEES EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THE RIGHTS OF THIRD PARTIES. LOYALTY GATOR DISCLAIMS ALL RESPONSIBILITY FOR, BUT NOT LIMITED TO, ANY LOSS, INJURY, CLAIM, LIABILITY, OR DAMAGE OF ANY KIND (INCLUDING ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES) RESULTING FROM, ARISING OUT OF, OR IN ANY WAY RELATED TO:
(1) ANY ERRORS IN OR OMISSIONS FROM THE SERVICES, INCLUDING TECHNICAL INACCURACIES AND TYPOGRAPHICAL ERRORS;
(2) THE UNAVAILABILITY OF THE SERVICES, OR ANY PORTION THEREOF;
(3) THE CLIENT’S USE OF THE SERVICES;
(4) PROBLEMS OR TECHNICAL MALFUNCTION OF ANY TELEPHONE NETWORK OR LINES, COMPUTER ON-LINE SYSTEMS, SERVERS, INTERNET ACCESS PROVIDERS, COMPUTER EQUIPMENT, SOFTWARE, OR ANY COMBINATION THEREOF, INCLUDING ANY INJURY OR DAMAGE TO THE CLIENT’S, OR ANY OTHER PERSON’S, COMPUTER AS A RESULT OF USING THE SERVICES; OR,
(5) THE CLIENTS USE OF ANY EQUIPMENT OR SOFTWARE IN CONNECTION WITH THE SERVICES.
ALL WARRANTIES, TERMS AND CONDITIONS, EXPRESS OR IMPLIED BY STATUTE, COMMON LAW OR OTHERWISE, ARE EXCLUDED TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAWS; TO THE EXTENT THIS LIMITATION ON LIABILITY IS PROHIBITED, THE CLIENT ACKNOWLEDGES THAT LOYALTY GATOR’S SOLE OBLIGATION FOR DAMAGES IS LIMITED TO THE MAINTENANCE FEE PAID TO LOYALTY GATOR BY THE CLIENT FOR THE IMMEDIATELY PRECEDING THREE (3) CALENDAR MONTHS.
Section 9 - Restrictive Covenant
9.1 No Representations on Behalf of Loyalty Gator. The Client shall not make, or misrepresent to any third party that it has the authority to make, any representations or warranties on behalf of Loyalty Gator or Loyalty Gator’s licensors.
9.2 Non-Poaching. The Client shall not, during the Term and for twelve (12) months thereafter, directly or indirectly, offer employment to or hire any of Loyalty Gator’s employees.
Section 10 - Assignment
10.1 Assignment of Agreement. The Client may not assign, directly or indirectly, any part of this agreement, without the written consent of Loyalty Gator (which consent may be unreasonably withheld). Loyalty Gator may assign this agreement, in whole or in part, without consent of, or notice to, the Client.
Section 11 - General
11.1 Binding Nature of Agreement. The agreement is binding on and enures to the benefit of the parties hereto and their respective heirs, administrators, executors and legal personal representatives, successors and permitted assigns.
11.2 Waiver. No waiver of any provision of this agreement is binding unless it is in writing and signed by all the parties hereto. No failure to exercise, and no delay in exercising, any right or remedy pursuant to this agreement is, or should be construed to be, a waiver of such right or remedy. No waiver of any breach of any provision of this agreement is, or should be construed to be, a waiver of any subsequent breach of that provision or any other provision of this agreement.
11.3 Severance. The invalidity or unenforceability of any provision of this agreement does not affect the validity or enforceability of any other provisions hereof, and any such invalid or unenforceable provision is deemed to be severable.
11.4 Survival. Any terms which, by their nature, are intended to survive the termination of this agreement will continue in full force and effect after termination.
11.5 No relationship created. This agreement is not intended to create a partnership, joint venture or agency relationship, nor does it confer any third party beneficiary rights.
11.6 Jurisdiction. This agreement will be construed and enforced in accordance with, and the rights of the parties hereto are governed by, the laws of the Province of Ontario, excluding any conflict of laws, rule or principle which might refer such construction to the laws of another jurisdiction.
11.7 Independent Legal Advice. The Client acknowledges having read, understanding and agreeing with all of the provisions of this agreement. The Client further acknowledges that having had the opportunity to obtain independent legal advice with respect to this agreement, and having either obtained such legal advice or freely chosen not to.
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