Merchant Terms and Conditions
During the length of the Subscription Period, LoyalTap, LLC will provide the Loyal Tap services and/or programs together with all exhibits attached thereto. For purposes of clarity, these Terms and Conditions govern your use of all Loyal Tap Programs and services.
- Intellectual Property Rights
(i) LoyalTap is the sole and exclusive owner of all right, title and interest in and to any data collected by LoyalTap from your customers or any end user to LoyalTap in connection with the Loyal Tap Programs, including without limitation all e-mail and/or other contact information (“Customer Data”). As such, you shall not, unless the applicable customer has separately taken all steps necessary to opt in to provide contact information to you, be provided with or otherwise have access to the Customer Data.
(ii) LoyalTap owns all right, title and interest in and to the Loyal Programs including, without limitation, any intellectual property rights and any improvements, modifications, enhancements or refinements thereto. Except as set forth in the Agreement, all rights not expressly granted to you are reserved. Should you use the branded materials of any community organization that you receive as part of the Loyal Tap Programs in any way that violates the stipulations of this Agreement, LoyalTap cannot be held liable for those violations. You agree not to decipher, decompile, disassemble, reconstruct, translate, reverse engineer, or discover any of the Loyal Tap Programs, intellectual property or ideas, algorithms, file formats, programming, or interoperability interfaces underlying or such intellectual property.
(iii) LoyalTap hereby grants to you a limited, non-transferable, non-exclusive, revocable license to access and use LoyalTap’s hosted Merchant Web Portal (the “Portal”) for internal business purposes so long as your account with LoyalTap remains current and active. If LoyalTap provides you with a password to access the Portal, you are solely responsible for protecting the password and for any authorized or unauthorized use made of the password. The Portal, and all source code, copyrights and other intellectual property associated therewith, are and shall remain the sole and exclusive property of LoyalTap. You shall refrain from permitting any third party to use your password or otherwise access the Portal. LoyalTap shall have the right to terminate the license granted hereby immediately in the event that you have breached any terms or conditions set forth in the Agreement or your LoyalTap account is otherwise terminated for any reason.
(iv) LoyalTap provides standard installation of its Loyal Tap Programs, however, in the event of a complex installation (including those that may require third party or outside technical support to complete the installation), LoyalTap will provide up to one hour of such technical support. Technical support exceeding one hour will be billed at 125.00 USD an hour at cost to the Merchant. (v) You will be entitled to phone and email support during LoyalTap business hours at no extra cost. Technical support that requires on-site maintenance will be billed at 125.00 USD an hour at cost to the Merchant.
You: (i) will use the Loyal Tap Programs solely for your internal business purposes; and (ii) will not, for yourself, any of your affiliates or any third party (a) sell, rent, lease, license or sublicense, assign, distribute, or transfer the Loyal Tap Programs, (b) modify, change, alter, create derivative works of, decipher, decompile, disassemble, reconstruct, translate, reverse engineer, or discover any source code of the underlying ideas, algorithms, file formats, programming, or interoperability interfaces of the Loyal Tap Programs, (c) copy any tangible versions of the Loyal Tap Programs, or (d) remove from any of the Loyal Tap Programs any language or designation indicating the confidential nature thereof or the proprietary rights of LoyalTap. In addition, you will not export, re-export or permit any third party to export or re-export, directly or indirectly, the Loyal Tap Programs where such export or re-export is prohibited by applicable law without appropriate licenses and clearances. LoyalTap retains the right, in its sole discretion, to approve, modify or refuse any LoyalTap related communications or proposed communications or messages to your customers or any LoyalTap end users.
- Subscription Plan
(i) The subscription period will be twelve (12) months, and will constitute the duration of a Subscription Plan. (ii) As a result of this agreement, you will be enrolled in a Subscription Plan which will begin at any time within sixty (60) days of acceptance of the Agreement, the commencement of which Loyal Tap reserves the discretion to adjust within the given period.
- Fees; Pricing and Payment Terms; Taxes
(i) LoyalTap reserves the right to amend the fees payable for the Loyal Tap Programs at any time upon thirty (30) days’ prior notice to you; provided, however, that such amendment to the fees will not be applicable until the beginning of the next subscription period. The fee for enrollment in a Loyal Tap Subscription Plan is 59.99 USD a month, with usage charges related to the redemption of rewards. There is also a 500.00 USD fee for the setup package that includes hardware and marketing materials. These fees are non-refundable. Should you desire to cancel the automatic renewal of your Subscription Plan prior to the beginning of the new subscription period, you will still be liable for the remaining monthly fees under the current Subscription Plan.
(ii) When you provide your payment information to LoyalTap, you are providing LoyalTap with an authorization to process any and all payments as outlined in this Agreement. In certain instances, the payment processing may not occur immediately, and your payment may show as “pending” during this time period. In addition, Loyal Tap may request an authorization for the amount of your anticipated transaction in advance and may estimate the final value of the transaction, which may be more than the amount of the actual transaction. Loyal Tap will release any funds authorized in excess of the amount of the actual transaction at the time the transaction settles.
(iii) You will be responsible for any sales, use, value-added or import taxes, customs duties or similar taxes assessed in accordance with applicable law with respect to the provision of the Loyal Tap Programs.
(vi) Notwithstanding anything herein to the contrary, LoyalTap, in its sole discretion, may suspend or terminate the Agreement and corresponding access and right to use all or any portion of the Loyal Tap Programs, at any time, upon electronic or other notice to you, if you have not paid all amounts due on or before the payment due date, or for any other breaches of the Merchant Agreement, these Terms and Conditions, or any other exhibits, addenda or attachments to these Terms and Conditions including any links contained in the Merchant Agreement or these Terms and Conditions, which are incorporated by reference herein. You are responsible for amounts that remain outstanding as of the date of such termination including early cancellation fees. You agree to pay reasonable attorneys’ fees and court costs incurred by LoyalTap to collect any unpaid amounts owed by you.
(v) LoyalTap provides standard installation of its Loyal Tap Programs, however, in the event of a complex installation (including those that may require third party or outside technical support to complete the installation), LoyalTap will provide up to one hour of such technical support. Technical support exceeding one hour will be billed at 125.00 USD per hour at cost to the Merchant.
- Term; Termination; Survival
The Agreement will remain in full force. At the end of any Subscription Plan your Subscription Plan will automatically be renewed, unless written confirmation of renewal cancellation is received by Loyal Tap anytime thirty (30) days prior to the beginning of the new Subscription Plan. Each party shall have the right to terminate the Agreement upon written notice to the other party: (i) upon the institution of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of debts of the other party that is not otherwise dismissed within sixty (60) days of such institution; (ii) upon the making of an assignment for the benefit of creditors by the other party; or (iii) upon the dissolution of the other party. Notwithstanding the foregoing, LoyalTap may terminate the Agreement and/or your access to one or all Loyal Tap Programs in the event you fail to remain current in all fees due and owing to Loyal Tap or in the event you breach any of your obligations under the Agreement. In the event of a renewal cancellation, Loyal Tap will cease to collect the monthly subscription fee at the end of the active subscription period. You will be required to fill out an exit survey in order to complete any cancellation request. Any provision of the Agreement which contemplates performance or observance subsequent to any termination or expiration of the Agreement shall survive any termination or expiration of the Agreement and continue in full force and effect.
- Representations and Warranties; Disclaimer
(i) Loyal Tap warrants that Loyal Tap has the authority to enter into this Agreement.
(ii) You represent, warrant and covenant to LoyalTap that: (a) you have the authority to enter into this Agreement; (b) you will take proper care of all equipment provided by LoyalTap to you and maintain all such equipment in good working order; and (c) you will only use the Loyal Tap Programs for lawful purposes and will not violate any law of any country or the intellectual property rights of any third party.
(iii) EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 6, EACH PARTY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF QUALITY, ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN ADDITION, LOYAL TAP DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AS TO THE RESULTS THAT YOU MAY ACHIEVE ON ACCOUNT USING ANY LOYAL TAP PROGRAM OR SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU EXPRESSLY AGREE THAT THE USE OF LOYAL TAP PROGRAMS OR SERVICES AND THE INTERNET IS AT YOUR SOLE RISK. LOYAL TAP PROGRAMS AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. YOU HEREBY ACKNOWLEDGE THAT YOU ARE SOLELY RESPONSIBLE FOR OBTAINING AND/OR PROVIDING INTERNET SERVICE TO ALL LOCATIONS IN WHICH THE LOYAL TAP PROGRAMS ARE TO OPERATE. (iv) Should you continually uphold the stipulations of this Agreement, Loyal Tap agrees to replace damaged or nonfunctioning hardware. LoyalTap agrees to replace nonfunctioning hardware at no cost to you if LoyalTap receives notification of nonfunctioning hardware within thirty (30) days of installation, and LoyalTap in its sole discretion recognizes that the malfunction of the hardware is in no way attributable to your action or inaction. Loyal Tap reserves the right to charge a fee for replacement, not to exceed the original price of the hardware being replaced.
- Confidential Information
Any information that a receiving party knows or has reason to know (either because such information is marked or otherwise identified by the disclosing party orally or in writing as confidential or proprietary, has commercial value, or because it is not generally known in the relevant trade or industry) is “Confidential Information” of the disclosing party and will remain the sole property of the disclosing party. Such Confidential Information includes but is not limited to data, information (including personally identifiable information), ideas, materials, specifications, procedures, schedules, software, technical processes and formulas, source code, product designs, sales, cost and other unpublished financial information, product and business plans, advertising revenues, usage rates, advertising relationships, projections, marketing data and other similar information provided by a party. For avoidance of doubt, Customer Data shall be deemed Confidential Information of Loyal Tap. Each party agrees that it will not disclose, use, modify, copy, reproduce or otherwise divulge such Confidential Information to any third party without the prior written approval of the disclosing party except that the receiving party shall have the right to disclose such Confidential Information to the extent required by applicable law or to the directors, officers or employees of the receiving party who have a need to know such Confidential Information in order to perform its obligations under the Agreement and to the extent such directors, officers or employees are subject to obligations of confidentiality and non-disclosure that are substantially similar to the obligations set forth in the Agreement. The prohibitions contained in this Section will not apply to information (i) already lawfully known to the receiving party prior to such disclosure by the disclosing party; (ii) independently developed by the receiving party without access to or use of the disclosing party’s Confidential Information; (iii) disclosed in published materials; (iv) generally known to the public; or (v) lawfully obtained from any third party. In addition, a party will not be considered to have breached its obligations under the Agreement to the extent Confidential Information is required to be disclosed by any governmental authority, provided that, to the extent legally practicable, the receiving party advises the disclosing party prior to making such disclosure in order that the disclosing party may object to such disclosure, take action to ensure confidential treatment of the Confidential Information, or take such other action as it considers appropriate to protect the Confidential Information.
- Dispute Resolution; Governing Law
In the event of a reward dispute or mistake between a Merchant and User, LoyalTap may in its sole discretion unilaterally make adjustments to User reward points. To the extent any disputes arise under the Agreement or otherwise between the parties, the parties will first attempt in good faith to resolve their dispute informally. This Agreement is governed by the State of Maryland.
You will defend, indemnify, and hold Loyal Tap and its affiliates and their respective directors, officers, employees, agents and representatives harmless from and against any third party suit, proceeding, assertion against any damages, judgments, liability, costs and expenses (including without limitation any reasonable attorneys’ fees) incurred arising from your breach of this Agreement, your unauthorized use or misuse of the Loyal Tap Programs or any unauthorized combination of any Loyal Tap Program with any hardware, software, products, data or other materials not specified or provided by Loyal Tap.
- Limitation of Liability
Loyal Tap’s aggregate liability for all claims (including claims for indemnification of third party damages) arising out of the Agreement, whether in contract, tort or otherwise, will not exceed the amount of fees paid by you to Loyal Tap under the Agreement during the twelve (12) months preceding the date on which the claim occurred. To the maximum extent permitted by applicable law, in no event will Loyal Tap be liable for any loss of business profits, business interruption, loss of data or any special, indirect, exemplary, incidental or consequential damages arising from or in relation to the Agreement or the use of the Services, however caused and regardless of theory of liability. In addition, Loyal Tap will not be liable for damage (physical or otherwise) incurred by you upon any asset or property from the installation or removal of any Loyal Tap product or add-on in-store and will not be responsible for replacement or cost of repair if damages occur. This limitation will apply even if such damages were foreseeable and you have been advised or are aware of the possibility of such damages.
Except where explicitly provided otherwise herein, any notice required or permitted hereunder will be delivered to LoyalTap as follows (with notice deemed given as indicated): (i) by personal delivery when delivered personally; (ii) by established overnight courier upon written verification of receipt; (iii) by facsimile transmission when receipt is confirmed orally; (iv) by certified or registered mail, return receipt requested, upon verification of receipt; or (v) by electronic delivery when receipt is confirmed orally.
You may not, without the prior written consent of LoyalTap, assign the Agreement, in whole or in part, either voluntarily or by operation of law, and any attempt to do so will be a material default of the Agreement and will be void. The Agreement will be binding upon and will inure to the benefit of the respective parties hereto, their respective successors in interest, legal representatives, heirs and assigns.
- No Third Party Beneficiaries
The Agreement is solely for the benefit of the parties and their successors and permitted assigns, and does not confer any rights or remedies on any other person or entity.
- Amendment; Waiver
This Agreement may be changed only by written agreement signed by both Loyal Tap and you. The failure of either party to exercise or enforce any of its rights under the Agreement will not act as a waiver of subsequent breaches and the waiver of any breach will not act as a waiver of subsequent breaches.
- Force Majeure
Neither party shall be liable to the other if such party is prevented from performing any of its obligations under the Agreement (excluding fee payment obligations) due to any cause beyond the party’s reasonable control including, without limitation, an act of God, fire, flood, explosion, terrorism, war, embargo, government regulation, civil or military authority, acts or omissions of carriers, transmitters, providers, or acts of vandals, or hackers. The time for that party’s performance will be extended for the period of the delay or failure to perform due to such occurrence, except that you will not be excused from the payment of any sums of money owed by you to Loyal Tap provided prior to the force majeure event.
The Agreement will not be construed as creating or constituting a partnership, joint venture, or agency relationship between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
- Compliance with Laws
Each party will comply with all applicable laws, regulations, and ordinances relating to their performance hereunder.
- Entire Agreement
The Agreement will constitute the entire agreement between Loyal Tap and you with respect to the subject matter hereof and all prior oral or written agreements, representations or statements with respect to such subject matter are superseded hereby.