Merchant Terms and Conditions
During the length of the Merchant Agreement, OfferTraker will provide the OfferTraker services and/or programs (collectively, “OfferTraker Programs”) described in the Merchant Agreement separately executed by you, together with all exhibits attached thereto (the “Merchant Agreement”). In the event of any inconsistency among terms and conditions of the Merchant Agreement and these Terms and Conditions (collectively, sometimes referred to herein as the “Agreement”), the order of control shall be: (i) these Terms and Conditions, (ii) the Merchant Agreement, and (iii) 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. Any capitalized terms that are not defined in these Terms and Conditions have the meanings ascribed to them in the Merchant Agreement. For purposes of clarity, these Terms and Conditions are incorporated by reference into the Merchant Agreement executed by you, and, together with the Merchant Agreement and all attachments thereto, govern your use of all OfferTraker Programs and services.
2. Intellectual Property Rights.
(i) OfferTraker is the sole and exclusive owner of all right, title and interest in and to any data provided to OfferTraker by your customers or any end user to OfferTraker in connection with the OfferTraker 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) OfferTraker owns all right, title and interest in and to the OfferTraker 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. You agree not to decipher, decompile, disassemble, reconstruct, translate, reverse engineer, or discover any of the OfferTraker Programs, intellectual property or ideas, algorithms, file formats, programming, or interoperability interfaces underlying or such intellectual property.
(iii) OfferTraker hereby grants to you a limited, non-transferable, non-exclusive, revocable license to access and use OfferTraker’s hosted Merchant Web Portal (the “Portal”) for internal business purposes so long as your account with OfferTraker remains current and active. If OfferTraker 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 OfferTraker. You shall refrain from permitting any third party to use your password or otherwise access the Portal. OfferTraker 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 OfferTraker account is otherwise terminated for any reason.
You: (i) will use the OfferTraker 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 OfferTraker 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 OfferTraker Programs, (c) copy any tangible versions of the OfferTraker Programs, or (d) remove from any of the OfferTraker Programs any language or designation indicating the confidential nature thereof or the proprietary rights of OfferTraker. In addition, you will not export, re-export or permit any third party to export or re-export, directly or indirectly, the OfferTraker Programs where such export or re-export is prohibited by applicable law without appropriate licenses and clearances. OfferTraker retains the right, in its sole discretion, to approve, modify or refuse any OfferTraker related communications or proposed communications or messages to your customers or any OfferTraker end users.
4. Fees; Pricing and Payment Terms; Taxes.
(i) OfferTraker’s current fees for the OfferTraker Programs and its services are set forth in the Merchant Agreement. OfferTraker reserves the right to amend the fees payable for the OfferTraker 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.
(ii) 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 OfferTraker Programs.
(iii) Notwithstanding anything herein to the contrary, OfferTraker, in its sole discretion, may suspend or terminate the Agreement and corresponding access and right to use all or any portion of the OfferTraker 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 OfferTraker to collect any unpaid amounts owed by you.
(iv) OfferTraker provides standard installation of its OfferTraker Programs, however, in the event of a complex installation (including those that may require third party or outside technical support to complete the installation), OfferTraker will provide up to one hour of such technical support. Technical support exceeding one hour will be billed at cost to the Merchant.
5. Term; Termination; Survival.
The Agreement will remain in full force specified in the Merchant Agreement. At the end of any Subscription Plan, unless you select a new Subscription Plan, your Subscription Plan will automatically convert to a month-to-month Subscription Plan. This will be ongoing until you select a new Subscription Plan or provide at least sixty (60) days’ written cancelation notice, at which time you may be charged a restocking fee. 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, OfferTraker may terminate the Agreement and/or your access to one or all OfferTraker Programs in the event you fail to remain current in all fees due and owing to OfferTraker or in the event you breach any of your obligations under the Agreement. If your Merchant Agreement specifies that you are entitled to a “30 day Money Back Guarantee” and if, within thirty (30) days of the Installation Date, you desire to have the OfferTraker Kit uninstalled, you agree to provide written notice to OfferTraker within such 30-day period. Within thirty (30) days of OfferTraker’s receipt of the OfferTraker Kit, OfferTraker will refund you any money collected for the initial monthly subscription fee in the same manner in which the initial fee was paid. All Onboarding, Activation, or Setup fees, once paid, are non-refundable. If, after thirty (30) days from the Installation Date and prior to the subsequent Subscription Period, you desire to terminate the OfferTraker Program, You agree to pay an early cancellation fee equal to six (6) months of your monthly subscription fee via the credit card or ACH on file with OfferTraker. If you subscribe to a variable subscription fee plan, your early cancellation fee is equal to (6) months at the most recent monthly billed rate. OfferTraker will cease to collect the monthly subscription fee at the point in time in which OfferTraker has received your returned OfferTraker Kit. In the event of a termination, all items in the OfferTraker Kit must be returned to OfferTraker in specified return packaging provided by OfferTraker. If you were not previously provided with specified return packaging, OfferTraker will provide you with specified return packaging at no cost to you, otherwise you will be charged for packaging materials. You are responsible for all return shipping charges and for any damage incurred in the shipping process. If any item in the OfferTraker Kit is not returned, OfferTraker will charge you for the cost of the item not returned. OfferTraker will prorate the last monthly subscription fee based on the date the OfferTraker Kit is received by OfferTraker. 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. If your OfferTraker Bites Agreement specifies that you are entitled to a “Money Back Guarantee” and if, within the specified measurement period, your OfferTraker Bite campaign does not deliver the specified repeat visit rate, OfferTraker will refund you all OfferTraker Bites program payments collected by OfferTraker for the applicable campaign in the same manner in which the initial fee was paid. In order to qualify for the “Money Back Guarantee” you must maintain your subscription with OfferTraker through the end of the specified measurement period and the OfferTraker tablet must be online and displayed 90% of your business hours over the course of the measurement period. In addition, you must honor the program as dictated by the any additional terms within the OfferTraker Bites Agreement. Failure to meet these guidelines will disqualify your eligibility for the “Money Back Guarantee”.
6. Representations and Warranties; Disclaimer.
(i) OfferTraker warrants that OfferTraker has the authority to enter into this Agreement.
(ii) You represent, warrant and covenant to OfferTraker that: (a) you have the authority to enter into this Agreement; (b) you will take proper care of the OfferTraker Kit and/or all equipment provided by OfferTraker to you and maintain all such equipment in good working order; and (c) you will only use the OfferTraker 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, OfferTraker DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AS TO THE RESULTS THAT YOU MAY ACHIEVE ON ACCOUNT USING ANY OfferTraker PROGRAM OR SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU EXPRESSLY AGREE THAT THE USE OF OfferTraker PROGRAMS OR SERVICES AND THE INTERNET IS AT YOUR SOLE RISK. OfferTraker 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 OfferTraker PROGRAMS ARE TO OPERATE.
7. 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 OfferTraker. 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.
8. Dispute Resolution; Governing Law.
In the event of a reward dispute or mistake between a Merchant and User, OfferTraker 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 Illinois and you expressly agree to the exclusive jurisdiction for any claim or dispute with OfferTraker in the federal and state courts within the jurisdiction of the United States District Court for the Northern District of Illinois. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the Agreement.
You will defend, indemnify, and hold OfferTraker 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 OfferTraker Programs or any unauthorized combination of any OfferTraker Program with any hardware, software, products, data or other materials not specified or provided by OfferTraker.
10. Limitation of Liability.
OfferTraker’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 OfferTraker 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 OfferTraker 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, OfferTraker will not be liable for damage (physical or otherwise) incurred by you upon any asset or property from the installation or removal of any OfferTraker 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 the contact person listed on the Order Information 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 OfferTraker, 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.
13. 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.
14. Amendment; Waiver.
This Agreement may be changed only by written agreement signed by both OfferTraker 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.
If any provision of the Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be enforced to the maximum extent permissible under applicable law and the other provisions of the Agreement will remain in full force and effect.
16. 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 OfferTraker provided prior to the force majeure event.
17. Independent Contractor.
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.
18. Compliance with Laws.
Each party will comply with all applicable laws, regulations, and ordinances relating to their performance hereunder.
19. Entire Agreement.
The Agreement will constitute the entire agreement between OfferTraker 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.