THIS AGREEMENT (the “Agreement”) is between Loyalty Superstore, Inc.® a Florida corporation having an address at Financial Center East, 1701 W. Hillsboro Blvd. Suite 305, Deerfield Beach, FL 33442 USA (“Loyalty Superstore®”), and Merchant as indicated on the Local Thanks℠ website sign up page (“Merchant”), and entered into as of the date the online form was completed and payment approved (the “Sign Up Date”). This Agreement, together with the other agreements and schedules referenced in it, contains the complete terms and conditions between the parties.
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING Loyalty Superstore®’S PRODUCTS AND/OR SERVICES. BY USING SUCH PRODUCTS AND/OR SERVICES AND/OR CLICKING THE “I ACCEPT” BUTTON AT THE END OF THIS AGREEMENT, MERCHANT INDICATES MERCHANT’S ACCEPTANCE OF, AND AGREES TO BE BOUND BY, THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT, YOU MUST EXIT IMMEDIATELY.
WHEREAS: Loyalty Superstore® is a developer and supplier of marketing platforms and business builder products and services, including Local Thanks℠ and National Mall℠ programs (“Products and Services”);
WHEREAS: Merchant was referred to Loyalty Superstore®/Local Thanks℠ by either a Merchant service provider or independently; and
WHEREAS: Merchant desires to use Loyalty Superstore®’s and Local Thanks℠ Products and Services, and Local Thanks℠ agrees to build their business platform in accordance with the terms and conditions contained in this Agreement and as set forth on Loyalty Superstore®’s and Local Thanks℠ website(s) and the Products and Services.
NOW THEREFORE in consideration of the recitals, the mutual covenants hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:
1.1 Merchant hereby agrees to use the Local Thanks℠ platform in a manner consistent with good sales procedure and customer relations.
1.2 Merchant hereby agrees to abide by and comply with the terms and conditions set forth on Loyalty Superstore®’s website(s) and the Products and Services and all other policies and procedures of Loyalty Superstore®, so long as they are not in conflict with governmental regulations and/or applicable law. In the event of a conflict between the terms of this Agreement and those set forth on Loyalty Superstore®’s website(s) and the Products and Services or other policies and procedures of Loyalty Superstore®, and Local Thanks℠ then the terms of this Agreement shall take precedence and control.
1.3 Merchant hereby agrees to use best efforts and act in a professional manner, which reflects favorably on Loyalty Superstore® and Local Thanks℠.
1.4 Merchant shall cooperate with Loyalty Superstore® to maintain minimum technical configuration and security features.
1.5 Merchant hereby agrees to maintain Merchant’s website(s) in a professional manner consistent with industry standards.
1.6 Merchant hereby agrees that Merchant shall assist Loyalty Superstore® and Local Thanks℠ in marketing and presenting the Merchant Products and Loyalty Superstore®’s Products and Services to customers.
2. OTHER OBLIGATIONS
2.1 Merchant shall have sole responsibility for processing all customer orders for Merchant Products. (if applicable)
2.2 Merchant is the sole provider of the Merchant Products directly to online customers visiting Merchant’s website(s), and Loyalty Superstore® shall have no responsibility for making or completing the sale, credit or collection, charging and reporting sales or other applicable taxes, delivery or compliance.
3.1 Merchant shall pay Loyalty Superstore® for the Local Thanks℠ signup fee and monthly fee as outlined on the Local Thanks℠ website sign up pricing page at the Signup Date. Merchant is hereby given a 30 day money back guarantee. Simply notify Loyalty Superstore® in writing of your wish to cancel within the first 30 days of service and the one month fee paid for will be refunded. There is no refund of the setup fee.
3.2 Payment of fees shall be month to month, and the form of payment shall be through ACH or credit card. In the event payment is not made timely, Merchant access to their Local Thanks℠ Platform, Products and Services may be denied.
3.3 Pricing subject to change after first year
4. LIMITATION OF LIABILITY
4.1 Merchant warrants and represents it has the right to enter into this Agreement and fully perform its obligations stated herein; and furthermore, that it shall comply with all federal, state and local laws and regulations in the performance of its obligations hereunder. Merchant hereby agrees to indemnify and hold harmless Loyalty Superstore® against any and all third party claims, contrary to these representations and warranties and additionally against any and all claims brought with respect to Merchant’s use of the Platform, Products and Services pursuant to this Agreement.
4.2 IN NO EVENT SHALL Loyalty Superstore® BE LIABLE TO MERCHANT OR ANY OTHER ENTITY FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE CUMULATIVE LIABILITY OF Loyalty Superstore® TO MERCHANT FOR ALL CLAIMS RELATING TO THIS AGREEMENT, IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED $1,000. THE FOREGOING LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES SHALL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF OTHER REMEDIES.
5. TERMS AND TERMINATION
5.1 Term. The term of this Agreement shall commence on the Signup Date and continue month to month unless earlier terminated as set forth in this Agreement. Merchant may terminate this agreement at any time with 30 days written notice.
5.2 Termination for Breach. A party shall have the right to terminate this Agreement on written notice if the other party materially breaches the terms of this Agreement.
5.3 Survival. All relevant paragraphs of this Agreement shall survive termination.
6.1 If a third party claims that the Merchant's business website(s), including the Merchant Products or related content or advertising, infringes any patent, copyright, trade secret or comparable intellectual property right, Merchant shall indemnify, defend, and hold harmless Loyalty Superstore® against that claim at Merchant's expense and pay all damages that a court finally awards or arises from an Merchant-approved settlement. In such case, Loyalty Superstore® shall promptly notify Merchant of the claim when known by Loyalty Superstore® and provide reasonable assistance, at Merchant's expense, so Merchant can manage the defense of the claim or any related settlement negotiations.
6.2 Merchant and Loyalty Superstore® shall indemnify, defend, and hold harmless each other, and their respective directors, officers, employees, and agents, from and against all claims, losses, damages and expenses (including reasonable attorney’s fees) resulting from (i) the breach of this Agreement by the indemnifying party; or (ii) negligent acts or omissions or the willful misconduct of the indemnifying party; provided the indemnified party provides the indemnifying party with (a) prompt written notice of such claim or action, (b) sole control and authority over the defense or settlement of such claim or action and (iii) proper and full information and reasonable assistance to defend and/or settle any such claim or action.
8.1 Assignment. This Agreement shall be binding upon and inure to the benefits of the parties hereto and their permitted successors and assigns. Merchant may not assign or otherwise transfer this Agreement without the Loyalty Superstore®s prior agreement.
8.2 Waiver and Amendment. No modifications, amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party to be charged. No failure or delay by either party in exercising any right, power, or remedy under this Agreement shall operate as a waiver of any such right, power or remedy.
8.3 Governing Law. The laws of the State of Florida shall govern this Agreement, without reference to conflicts of law provisions.
8.4 Notices. Any notice required or permitted by this Agreement shall be deemed given if delivered by registered mail, postage prepaid, addressed to the other party at the address shown at the beginning of this Agreement or at such other address for which such party gives notice pursuant to this Agreement. Delivery shall be deemed effective 3 days after deposit with postal authorities.
8.5 Severability. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain in full force and effect.
8.6 Complete Understanding. This Agreement constitutes the final, complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes any prior or contemporaneous agreement, either written or oral.
8.7 Force Majeure. Neither party shall be deemed in default pursuant to this Agreement, nor shall a party hold the other party responsible for, any cessation, interruption or delay in the performance of the other party’s obligations pursuant to this Agreement due to causes beyond the other party’s reasonable control including, but not limited to: earthquake, flood, fire, storm or other natural disaster, act of God, labor controversy or threat thereof, civil disturbance or commotion, disruption of the public markets, war, terrorism, or armed conflict, the inability to obtain sufficient material, supplies, labor, transportation, power or other essential commodity or service required in the conduct of its business, including internet access, or any change in or the adoption of any law, ordinance, rule, regulation, order, judgment or decree.
8.8 No Disparagement. Each party agrees that, during the term of this Agreement and for a period of five (5) years thereafter, neither shall make written or oral comments regarding the other that are negative, disparaging, tend to bring the other into disrepute or call into question the business acumen, character, honesty or integrity of the other.
8.9 Confidentiality. Merchant acknowledges that by reason of its relationship to Loyalty Superstore® pursuant to this Agreement, Merchant may have access to certain information and material concerning Loyalty Superstore®’s and Local Thanks℠ business, plans, customers, technology and products that are confidential and of substantial value to Loyalty Superstore®, which value would be impaired if such information were disclosed to third parties. Merchant agrees that it shall not use in any way for its own account or the account of any third party, nor disclose to any third party, any such confidential information revealed to it by Loyalty Superstore®. In the event of termination of this Agreement, there shall be no use or disclosure by Merchant of Loyalty Superstore® and disclosure by Merchant of any confidential information of Loyalty Superstore® and any materials related to Loyalty Superstore® shall be immediately returned to Loyalty Superstore®. Merchant acknowledges that the provisions of this Section are reasonable and necessary for the protection of Loyalty Superstore® and that Loyalty Superstore® shall be irrevocably damaged if such covenants are not specifically enforced. Accordingly, Merchant agrees that, in addition to any other relief to which Loyalty Superstore® may be entitled in the form of actual or punitive damages, Loyalty Superstore® shall be entitled to seek and obtain injunctive relief from an arbitration panel or a court of competent jurisdiction, without any requirement to post a bond, for the purposes of restraining Merchant from any actual or threatened breach of such provision. The terms of the Section shall survive termination of this Agreement.