Client desires to subscribe to the web-based electronic engagement and gifting platform (the “Service”) provided by Company upon the terms and conditions (“Terms and Conditions”) set forth herein and in the INCENTCO Platform Agreement (“CRA”) between the parties.
(a) General. The Service is as customized for Client and Client’s customers and/or employees (hereafter referred to as “Recipients”) and as provided for in the CRA between the parties. The Service provides a platform whereby the Client may grant web-based electronic awards of points (“Grants”), with a dollar-denominated value, to Recipients of the Client’s choosing which Grants the Recipient may access at Recipient’s convenience and utilize to secure electronic codes from Commerce Partners, as hereinafter defined for use in acquiring merchandise or services from the Commerce Partners.
(b) Operating the Service. During the Term of the CRA, which incorporates these Terms and Conditions by reference, Company shall, subject to Client’s fulfillment of obligations set forth in the CRA and these Terms and Conditions, establish, operate and maintain the Service for the benefit of the Recipients. Company may, from time to time in its sole discretion, modify or amend these Terms and Conditions; provided, that without Client’s consent no such modification or amendment shall materially and adversely affect Client’s rights or obligations under these Terms and Conditions, or operate to reduce the value of Grants awarded prior to the modification of these Terms and Conditions. .
(c) Commerce Partners. For purposes of the CRA and these Terms and Conditions, a “Commerce Partner” means any business that enters into an agreement with the Company to offer redemption codes to Recipients (“Codes”) in exchange for Grants through the Service that may be used to make retail purchases of goods and services from the Commerce Partners. Company shall provide Recipients with access to a national database of Commerce Partners through the Service. Company may add or subtract Commerce Partners from the database from time to time. Company will use its commercially reasonable efforts to maintain and/or enhance the quality and diversity of the Commerce Partners participating in the Service throughout the Term.
(d) Service Web Pages. During the Term, Company will create and/or maintain a portion of its website where Recipients and Client (“Service Web Pages”) will be provided access on Company’s servers. Company will have and maintain sole and exclusive control of the Company Website.
(e) Client Recipient Changes. Client shall be solely responsible for identifying each Recipient that may or may not participate in or access the Service. Client agrees that it is solely responsible for the accuracy of all identification information furnished to Company and that Company may rely upon all information Client provides about Recipients without inquiry, investigation or verification.
(f) Licenses/Ownership of Content.
(i) Client Content. Client hereby grants Company a limited, non-exclusive, non-transferable, royalty-free, fully paid-up license to post and maintain Client’s trade names, trademarks, service marks and other proprietary marks and copyrightable material (“Marks”), logos, banners, and other identifying and promotional material that Client requests, and Company agrees, be incorporated in the Service Web Pages accessible by the Recipients participating in the Service (the “Client Content”) on the Service Web Pages and the Company servers; provided, however, that the Client Content shall only be posted on the Service Web Pages.
(ii) Company Service. Company reserves all rights whatsoever in and to the Service, the Service Web Pages, and any and all Marks, logos, and Confidential Information (as defined below) associated directly or indirectly therewith. Client shall have no rights to any of the foregoing except to the extent expressly provided in the CRA and these Terms and Conditions.
(g) Service Level Standards and Requirements. Each Party agrees to use commercially reasonable efforts to comply with the terms of the Service and requirements incorporated into the Service as detailed in the CRA executed by Client and Company.
2. Compliance with Applicable Laws. Client and the Company acknowledge that state and federal laws may apply to the Service and the issuance and redemption of Codes, including federal laws promulgated by the Financial Crimes Enforcement Network limiting the amount of Codes that may be granted to a single user in a single day and state laws applicable to Codes that are never redeemed. Each party acknowledges that each is independently responsible for consulting with its legal counsel and for taking any necessary steps to ensure that the Service is in compliance with all applicable laws. The parties agree to indemnify one another in accordance with Section 6 below with respect to any alleged violations of federal or state laws as they apply to the Service, the Service Web Pages the Grants or the Codes.
3. Payments to Company for Service; Accounting and Compliance; Reports; Financial Information.
(a) Payments for Service. Client is obligated to make payments to Company for the Service as provided in the CRA.
(b) During the term of the CRA, Client may make Grants to Recipients, with the payment for each Grant to be made by a deduction from the balance remaining in the Client Account(s). At the time of a Grant, the value of the Grant may not exceed the balance remaining in Client’s Account(s) at that time. Client shall be responsible for monitoring the remaining balance in its Account(s) and for making additional deposits in advance of the making Grants so as to maintain a positive balance in the Account(s).
(c) Grant Award Expirations. Company will be responsible for tracking the expiration of Recipients’ Grants in accordance with the terms of the Service (“Expirations”).
(d) Invoices. The Party responsible for payment as reflected on each invoice will pay the other Party the amount due within 10 days after Client’s receipt of the invoice.
(e) Payments. Client will cause all payments due Company to be made in accordance with Company’s instructions. Client may similarly provide Company with payment instructions in the event Company is required to make payment to Client as a result of the reconciliation set forth in any invoice. Should either party fail to make any monthly installment payment or final payment required by Section 9(c) within five (5) days of the due date therefore, such payment will accrue interest at a rate of one and one-half percent (1.5%) per month, or the highest rate allowed by applicable law, whichever is lower.
(f) Accounting and Compliance. During the Term and for three (3) years thereafter, each Party shall maintain true and complete books of account at its principal place of business containing an accurate record of all data necessary to confirm such Party’s compliance with its financial and other obligations under this and the other Party shall have the right, at its own expense, to examine such books at all reasonable times (but no more than once per calendar year) for the purpose of verifying compliance with the terms hereto.
4. Customer Service and Resident Adjustments. Company, or its designee, shall be responsible for responding to inquiries from Recipients regarding the Service. Client understands and acknowledges that Client is solely responsible for making Grants to Recipients. Accordingly, Client will respond to all Recipient inquiries regarding whether a Recipient was entitled to, and did not receive, Grants. Notwithstanding anything to the contrary set forth in this Agreement, the Parties agree that in the event a Recipient claims that he or she is entitled to, but did not receive a Code or Codes, or has encountered difficulty in using the Code for a purchase from a Commerce Partner, Company will respond to the claim and assist in resolving the claim with the appropriate Commerce Partner. Because Client is solely responsible for, and has complete control over, the identification of Recipients eligible for participation in the Service as well as the awarding of Grants to Recipients, Client understands and acknowledges that it bears all risk of loss occasioned by fraudulent or erroneous identification of eligible Recipients as well as Grants and Codes issued as a result thereof and that Company cannot be held be responsible or liable therefor.
5. Representations, Warranties and Covenants. Each Party represents and warrants to the other that (a) it has the power and authority to enter into and perform its obligations under this Agreement, (b) in its performance of this Agreement, it will comply with all applicable laws, regulations, orders and other requirements, now or hereafter in effect, of governmental authorities having jurisdiction, (c) neither its performance of its obligations under this Agreement nor any content posted on its own website by or at its direction does or will violate any third-party rights, including any third-party intellectual property rights. Without limiting the generality of the foregoing, each Party will pay, collect, and remit such taxes as may be imposed with respect to any compensation, royalties or transactions under this Agreement. Each Party represents and warrants that (a) its website and all actions occurring thereon are in compliance with all applicable laws, and (b) it operates its website in material compliance with its privacy policies and terms and conditions concerning its website.
(a) Client’s Obligations. Client will defend, indemnify and hold harmless Company and any individual or entity that controls, is controlled by or is under common control (an “Affiliate”) with Company (and their respective employees, officers, directors, stockholders, managers, members and representatives) from and against any claims, losses, expenses, damages, settlements, liabilities, expenses and actions brought by a third party (including, without limitation, reasonable attorney’s fees), to the extent arising from or relating to: (a) the operation of Client’s website, (b) Client’s sale and distribution of products and services to customers, including, without limitation, Recipients, (c) any negligent act, omission or misrepresentation by Client, any of the Recipients or any of their respective agents or employees, including, without limitation, Client’s input of data and Grants via its portal to the Company website, (d) any breach of its obligations under this Agreement (including, without limitation, any alleged breach of the representations and warranties contained herein), (e) the violation of third-party intellectual property rights, or proprietary rights by any content or other materials included in the Client Site, unless such content or materials were provided by Company, or the unauthorized use of Company’s Marks, (f) any content or materials provided by Client to Company, or (g) negligent, erroneous or fraudulent identification of eligible Recipients furnished to Company pursuant to Section 1(e) or awards of Grants to Recipients and the issuance of any Codes as a result thereof.
(b) Company’s Obligations. Company will defend, indemnify and hold harmless Client and its Affiliates (and their respective employees, officers, directors, managers, members and representatives) from and against claims, losses, expenses, damages, settlements, liabilities, expenses and actions brought by a third party (including, without limitation, reasonable attorney’s fees), to the extent arising from or relating to: (a) the operation of Company’s website and the Company Service Web Pages, (b) Company’s operation of the Service (excluding for these purposes Client’s identification of Recipients input of data and Grants via its portal to Company’s website), (c) any negligent act, omission or misrepresentations by Company, its agents or employees with respect to the Service, (d) any breach of its obligations hereunder (including, without limitation, any alleged breach of the representations and warranties contained herein), (e) the violation of third-party intellectual property rights or proprietary rights by any content or other materials included on Company’s website, unless such content or materials were provided by Client, or the unauthorized use of Client’s Marks, and (f) any content or material provided by Company to Client.
(c) Indemnification Procedures. In connection with any claim or action described in this Section, the Party to be indemnified: (a) will give the other Party prompt written notice of the claim, (b) will cooperate with the indemnifying Party (at the indemnifying Party’s expense) in connection with the defense and settlement of the claim, (c) will permit the indemnifying Party to control the defense and settlement of the claim, provided (i) that the indemnifying party diligently defends such claim and (ii) that the indemnifying party may not settle the claim without the prior written consent (which consent will not be unreasonably withheld or delayed) of the Party to be indemnified, and (d) may, at its expense, participate in the defense and settlement of the claim.
7. Intellectual Property Rights.
(a) Client Use of Company’s Marks. Client understands and agrees that all Client marketing efforts which bear Company’s name or any of Company’s Marks or which refer to the Service (including the Service) are subject to review and approval by Company. Company agrees that it will review all such Client marketing materials in a timely fashion and shall notify Client in writing of the results of such review within five (5) business days of receipt of such materials. Company agrees that approval of the marketing materials shall not be unreasonably withheld. Notwithstanding the foregoing, in the event that Company fails to provide such written notice within five (5) business days of receipt by Company, Company agrees that such failure shall constitute an approval by Company. After Company approves any Client marketing materials, Client may reuse the Client marketing materials without need for further submission and approval, unless otherwise specifically stated in writing by Company at the time of the initial approval or thereafter.
(b) Company Use of Client’s Marks. Except to the extent set forth below, Company understands and agrees that all Company marketing efforts which bear Client’s name or any of Client’s Marks or which specifically promote the use of the Service are subject to review and approval by Client. Client agrees that it will review all such Company marketing materials in a timely fashion and shall notify Company in writing of the results of such review within five (5) business days of receipt of such materials. Client agrees that approval of the marketing materials shall not be unreasonably withheld. Notwithstanding the foregoing, in the event that Client fails to provide such written notice within five (5) business days of receipt by Client, Client agrees that such failure shall constitute an approval by Client. Once Client approves any Company marketing materials, Company may reuse the Company marketing materials without need for further submission and approval, unless otherwise specifically stated in writing by Client at the time of the initial approval or thereafter. In addition to the foregoing and notwithstanding anything in this Agreement to the contrary, Client agrees that Company may reuse previously approved copy that includes Client’s name or Client’s Marks or that specifically promotes use of the Service in other Company marketing and/or promotional materials on the Company website and in Company promotional emails and direct mail pieces without the need for further submission and approval.
(c) Continuance of Use. Upon termination of the CRA, neither Party shall produce any new marketing materials that include the other Party’s name; provided, however, that the Parties may continue to use and distribute existing printed marketing materials that include the other Party’s name, any of Company’s Mark or Client’s Marks or which specifically promote the Service until the inventory of such marketing materials is depleted. In no event shall either party’s previously prepared marketing materials be used more than six (6) months after the CRA is terminated.
(d) Use Restrictions. Company and Client shall not use the other Party’s Marks in a manner that (a) disparages the other Party or its products or services, (b) portrays the other Party or its products or services in a false, competitively adverse or poor light; or (c) diminishes the value of the other Party’s Marks. If Company or Client is not complying with such use restrictions in the sole discretion of the other Party, Company or Client shall immediately comply with the other Party’s requests as to the use of the other Party’s Marks.
(e) Improper Uses. Except as contemplated by the CRA, a Party shall not: (a) register any domain name which incorporates the other Party’s Marks, unless otherwise agreed to by that Party (and the Party seeking to register the domain name hereby agrees to transfer such domain name to the other Party if it breaches this provision); (b) register any of the other Party’s Marks or any trademarks or service marks that are confusingly similar to any of that Party’s Marks, unless otherwise agreed to by the Party that owns the Marks; (c) use the other Party’s name or Marks as part of its corporate name, (d) modify or alter the other Party’s website in any way; or (e) make any representations, either express or implied, or create an appearance that a visitor to the other Party’s website is visiting its site, without the other Party’s prior written approval.
(a) Protection of Confidential Information. Neither Party will use, disclose, or grant use of the other Party’s Confidential Information except as expressly authorized by the CRA. Each Party agrees that the Confidential Information of the other Party will be held in confidence at least to the same extent and the same manner as each Party protects its own Confidential Information, but each Party agrees that in no event will less than reasonable care be used to protect the other Party’s Confidential Information. For purposes of this Agreement, “Confidential Information” means, except as otherwise specifically provided for herein, each Party’s trade secrets and any confidential or other proprietary information, whether of a technical, business or other nature, that is of value to the owner of such information and is treated as confidential (including, without limitation, with respect to Company, information regarding discounts received by Company for the purchase of Codes from its Commerce Partners).
(b) Exceptions. Either Party may disclose Confidential Information to its employees, agents and/or contractors who need to know such information for the purposes of fulfilling their obligations for or on behalf of such Party.
(c) Equitable Relief. The receiving Party acknowledges and agrees that due to the unique nature of the disclosing Party’s Confidential Information, there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach may allow the receiving Party or third parties to unfairly compete with the disclosing Party, resulting in irreparable harm to the disclosing Party, and therefore, that upon any such breach or any threat thereof, the disclosing Party may be entitled to appropriate equitable relief, without the requirement of posting a bond, in addition to whatever remedies it might have at law.
9. Term, Termination and Survival.
(a) Term. The Term shall be as provided in the CRA.
(b) Client Recipient Notification. In connection with the expiration or any termination of the CRA, the Parties agree to cooperate in good faith to ensure that any disruption or inconvenience to Recipients is kept to a minimum. In particular, the Parties agree that they will jointly agree on timing and content of any notices sent to Recipients. In the event that either Party terminates this Agreement because of a breach by the other Party, the breaching Party shall bear all costs of notifying Recipients of the termination of this Agreement. In all other instances, the Parties shall jointly bear the cost of notifying Recipients of termination of this Agreement.
(c) Final Payment. Within thirty (30) days after the expiration or termination of the CRA, Company will render a final invoice and the Party responsible for payment as shown on such invoice will pay to the other Party the amount owing within ten (10) days of the invoice date. All Recipient Grants will expire upon termination of this Agreement.
(d) Survival. Sections 2 (Compliance with Applicable Laws), 5 (“Representations and Warranties”), 6 (“Indemnification”), 7 (“Intellectual Property Rights”), 8 (“Confidentiality”), 9(c) (“Final Payment”), this 9(d) (“Survival”), 10 (“Limitations”), 11 (“Dispute Resolution”), and 12 (“General Provisions”) shall survive the termination or expiration of this Agreement.
(a) NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR OTHER INDIRECT DAMAGES OR FOR LOST PROFITS OR LOSS OF DATA ARISING OUT OF THIS THE CRA AND THESE TERMS & CONDITIONS (EXCEPT FOR LIABILITIES ARISING OUT OF A BREACH OF SECTION 7 (INTELLECTUAL PROPERTY)) WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF A PARTY HAS BEEN MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
(b) COMPANY WILL NOT BE LIABLE TO CLIENT OR ANY RECIPIENT ON ACCOUNT OF GRANTS or CODES ONCE IT HAS MADE PAYMENT TO A COMMERCE PARTNER AND THE COMMERCE PARTNER HAS ISSUED THE REQUISITE CODE TO OR FOR THE ACCOUNT OF THE APPLICABLE RECIPIENT.
11. Dispute Resolution. The Parties shall follow the following dispute resolution processes in connection with all disputes, controversies or claims, whether based on contract, tort, statute, fraud, misrepresentation or any other legal theory, except as otherwise provided in this Section, arising out or relating to the CRA or these Terms & Conditions or the breach or alleged breach hereof (collectively, “Disputes”). The Parties will attempt to settle all Disputes through good faith negotiations. If those attempts fail to resolve the Dispute within forty-five (45) days of the date of initial demand for negotiation, then the Dispute shall be determined and settled by arbitration in Palm Beach Gardens, Florida administered by and pursuant to the rules then in effect of the American Arbitration Association, and each party hereby consents to the jurisdiction thereof. Any award rendered shall be final and conclusive upon the Parties and a judgment thereon may be entered in a court having competent jurisdiction. All costs and expenses, including any attorney’s fees, of the Parties incurred in any Dispute shall be borne by the Party that is determined to be liable in respect of such Dispute; provided, however, that if complete liability is not assessed against any one Party, the Parties shall share the total costs in proportion to their respective amounts of liability as determined by the arbitrator. Except where clearly prevented by the area in Dispute, both Parties agree to continue performing their respective obligations under this Agreement while the Dispute is being resolved.
12. General Provisions.
(a) EXCEPT AS EXPRESSLY PROVIDED IN THE CRA AND THESE TERMS & CONDITIONS, COMPANY HEREBY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES REGARDING THE SERVICE, COMPANY’S WEBSITE OR ANY PORTION THEREOF OR SERVICES RELATED THERETO, INCLUDING (WITHOUT LIMITATION) IMPLIED WARRANTIES OR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COMPANY DOES NOT WARRANT THAT THE SERVICE OR COMPANY’S WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE AND DOES NOT WARRANT AGAINST FAILURE OF PERFORMANCE DUE TO FAILURE OF COMPUTER HARDWARE OR COMMUNICATION SYSTEMS.
(b) Company Website. Except as expressly provided in the CRA and these Terms & Conditions, Company will remain solely responsible for the operation of Company’s website. Client acknowledges that (i) Company’s website may be subject to temporary shutdowns due to causes beyond Company’s reasonable control, and (ii) subject to the specific terms of the CRA and these Terms & Conditions, Company retains sole right and control over the programming, content, and conduct of transactions over its own website.
(c) Insurance. Each of Company and Client shall maintain general liability, workman’s compensation and a standard commercial package of insurance from a reputable and financially sound insurance company in amounts considered commercially reasonable within their respective industries. Such insurance shall be in effect during the Term and remain in effect for three (3) years beyond expiration or termination of the termination of the CRA.
(d) Relationship. Neither Company nor Client will have any authority to bind the other by contract or otherwise to make representations as to the policies and procedures of the other, other than as specifically authorized herein. Company and Client acknowledge and agree that the relationship arising from the CRA does not constitute or create a general agency, joint venture, partnership, employee relationship or franchise between them and that each is an independent contractor with respect to the services provided by it under this Agreement.
(e) Notices. All written notices required must be delivered by a means evidenced by a delivery receipt and will be effective upon receipt. Notwithstanding the foregoing, facsimile receipt shall not be deemed a delivery receipt for purposes of this Agreement. Notices to Company shall be addressed to Greg H. Smith, President and CEO, INCENTCO LLC at Company’s address set forth in the CRA. Notices to Client shall be addressed to the attention of its Chief Operating Officer at Client’s address set forth in the CRA. Either Party may change its address for notice purposes by providing written notice of same in accordance with this Section.
(f) Assignment. Neither Party may assign its rights under the CRA, in whole or in part, without the other Party’s prior written consent (which will not be withheld unreasonably or delayed), except such consent shall not be required with respect to assignments to: (i) any Affiliate of the assigning Party; (ii) any entity resulting from any merger, consolidation, or other reorganization involving the assigning Party, or (iii) any individual or entity to which the assigning Party may transfer all or substantially all of its capital stock or assets related to the transactions contemplated by the CRA; provided, that the assignee agrees in writing to be bound by all the terms and conditions of the Terms & Conditions. Subject to the foregoing, the CRA and these Terms & Conditions will be binding on and enforceable by the Parties and their respective successors and permitted assigns.
(g) Commercially Reasonable Delays; Force Majeure. Neither Company nor Client will be liable for, or will be considered to be in breach of or default hereunder on account of, any delay or failure to perform as required hereunder (other than payment obligations) as a result of any causes or conditions that are beyond such Party’s reasonable control and that such Party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs, the affected Party will give prompt written notice to the other Party and will use commercially reasonable efforts to minimize the impact of the event.
(h) Consents; Waiver. The failure of a Party hereto at any time or times to require performance of any provision hereof shall in no manner affect its right at a later time to enforce the same unless the same is waived in writing. No waiver by a Party of any condition or breach of any term, covenant, representation or warranty contained shall be effective unless in writing, and no waiver of any one or more instances shall be deemed to be a further or continuing waiver of any such condition or breach in other instances or a waiver of any other condition or breach of any other term, covenant, representation or warranty.
(i) Entire Agreement; Amendment. The CRA and these Terms & Conditions together with the attached Exhibits, (i) constitute the entire agreement between the Parties with respect to the subject matter hereof and supersedes any previous or contemporaneous oral or written agreements regarding such subject matter, and (ii) may be amended or modified only by a written instrument signed by a duly authorized agent of each Party.
(j) Severability. If any provision of the CRA or these Terms & Conditions is held to be invalid, such invalidity shall not effect the remaining provisions.
(k) Choice of Law; Venue. The CRA and these Terms & Conditions shall be interpreted and enforced in all respects in accordance with the laws of the State of Florida, without reference to its choice of law rules.
(l) Acknowledgement. These Terms & Conditions are the Terms & Conditions referenced in the CRA between the Parties and, together with the CRA, comprise the complete and final agreement between the Parties governing the Service and all related matters.