Merchant Customer License Terms
These Terms and Conditions of Use (the “Terms”) govern your participation in the AllXS Media (Pty) Limited (“ALLXS” or “We” or “Us”) Merchant Program (the “Program”).
BY ACCEPTING THESE TERMS, BY EITHER CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THESE TERMS, YOU (hereafter, “You”, “Your” or “Customer”) AFFIRM THAT YOU HAVE READ AND AGREE TO THESE TERMS AND THE TERMS OF ANY APPLICABLE ORDER FORM (TOGETHER, THE AGREEMENT) AND AGREE TO BE BOUND BY THESE TERMS.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERMS "YOU" OR "YOUR" OR “CUSTOMER” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
- “App” means the ALLXS mobile application which We offer as a mobile experience to Users that are interested in dining, shopping, entertainment and other hospitality related information and recommendations located within the User’s geographically specified area and which includes the ability for merchants with subscriptions to the Platform to push notifications to Users that have opted in to receive push notifications.
- “Intellectual Property” means the Platform, the App, all Data, Beacons, Documentation, Marks and all patents, copyrights, moral rights, trademarks, trade secrets and any other form of intellectual property or proprietary rights recognized in any jurisdiction, including applications and registrations for any of the foregoing (“Intellectual Property Rights”).
- “Marks” means all ALLXS and its licensor’s trademark and logos used in connection with the App and the Platform.
- “Platform” means the hosted platform We offer comprised of proprietary software and systems that allows You to transmit Your Content to and receive Messaging and User Information from Users of the App and that includes interfaces that allow you to view Data regarding the Users and their interactions with Your Location and Content through the App.
- “Beacon” means one or more beacons leased by You from Us and made available to you during the Term.
- “Data” means any information or data We share with You regarding the User interactions with Your Location and/or Your Content, that could include by way of example, but not limitation, number of visits, length of visit, rewards redeemed, etc, that you will be able to view on the Platform.
- “Documentation” means any materials that We make available regarding the Platform, Beacons and/or Apps which could include but is not limited to technical specifications, support instructions and/or training or installation materials.
- “Fee” means any fees that You and Us mutually agree shall be paid by You in connection with Your license and use of the Platform as set forth on the applicable Order Form.
- “Location” means Your retail location where you have installed a working Beacon.
- “Messages” mean electronic messages and push notifications that are sent either by You to Users through the Platform or by Users to You.
- “Services” means any services We provide to You in connection with Your use of the Platform.
- “User” means any person that downloads the App and who may have agreed to (a) provide location information that can be tracked via various methods including Beacons; and (b) to receive Messages from You.
- “User Information” means all information provided by a User through the App and made available to You through the Platform, which could include without limitation the name and profile of the User and other Messages and personal information of such User.
- “Rewards Program” means any program developed by You to incentivize Users to engage with You by way of example, to develop loyalty, encourage visits to You Location or purchase Your Products that You offer to Users through the Platform.
- “Your Content” means all information that You transmit, upload or store on or through the Platform.
- Your Marks” means all trademarks and logos that You own that are specific to Your retail business.
- “Your Products” means any products or services You offer to Users either through the Platform at Your Location or otherwise.
- Your Users’ means employees and contractors under your direction and control who you have authorized to access and use the Platform on Your behalf.
These Terms govern your access to and use of the Platform and the Beacon(s), that allows you to track Users that enter Your Location based upon communication between the App and a Beacon within the Location. The Platform allows you to send Messages to Users that have entered your Location who have consented to push notifications through the App and allows you to send Messages to those Users who have elected to receive Messages from You. If the User provides such information, You will be provided the name and certain profile of each User and if the User agrees to message with you directly, you may receive other User Information as supplied by such User. You will have the ability to push Your Content to Users, including in connection with promotions and Messaging and Rewards Programs that could include Your Marks. We will share certain Data with You regarding the Users interactions with your Location and/or Your Content, that could include by way of example, but not limitation, number of visits, length of visit, rewards redeemed, etc, that you will be able to view on the Platform.
Subject to all terms and conditions of this Agreement, We hereby grants You during the Term, a nonexclusive, nontransferable, nonsublicensable, revocable and limited license to (a) use the Platform, the Beacon(s) and the Data for Your internal business purposes and (b) use and display the Marks solely for the purposes of indicating that the Platform is provided by Us and our licensors and otherwise to comply with the attribution requirements set forth in these Terms.
Your Users may use and access the Platform only for Your benefit and subject to all terms and conditions of these Terms (including but not limited to the restrictions set forth in Section 5 below). You shall be responsible for all actions of all Your Users.
- You acknowledge that the Platform and Intellectual Property constitute Our and our licensor’s valuable property and trade secrets and You agree not to do nor allow any of the following, and that none of Your Users shall do nor allow any of the following, without the express written authorization of Us: (a) make the Platform available to any third party other than You and Your designated Users; (b) sell, resell, rent, lease, modify, translate or create derivative works of any part of the Platform; (c) decompile, reverse engineer or reverse assemble any portion of the Platform, or attempt to discover any source code or underlying ideas or algorithms of the software underlying the Platform; (d) access the Platform in order to build a competitive product or service, or copy any features, functions or graphics of the Services; (e) use the Platform to store or transmit material in violation of third party privacy rights or applicable privacy laws; (g) transmit unsolicited commercial or non-commercial email via the Platform; (f) use the Platform to store or transmit malicious code; (g) interfere with or disrupt the integrity or performance of the Platform or third party data contained therein; (h) disparage Our products or services; (i) attempt to gain unauthorized access to the Platform or related systems or networks; (j) remove or alter any trademark, logo, copyright or other proprietary notices associated with the Platform; or (k) upload onto the Platform any data or software in violation of any Intellectual Property Rights of any third party. In addition, the Platform shall not be used by You or any User (i) as a computational or CPU resource (ii) as a data storage resource, (iii) as a device for sending or receiving communication or network traffic other than that required for the purposes permitted herein, or (iv) for any unlawful purpose or otherwise in violation of any applicable law. The Documentation may include additional restrictions or limitations on the use of the Platform, and You and each of Your Users agree to comply with any such restrictions or limitations.
- You may not do any of the following while accessing or using the Platform: (i) access, tamper with, or use non-public areas of the Platform, Our or our licensor’s computer systems, or the technical delivery systems of Our providers; (ii) probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures; (iii) access or search or attempt to access or search the Platform by any means (automated or otherwise) other than through our currently available, published interfaces that are provided by Us (and only pursuant to those terms and conditions), unless you have been specifically allowed to do so in a separate agreement with Us (NOTE: crawling the Platform is permissible if done in accordance with the provisions of the robots.txt file, however, scraping the Services or Platform without Our prior consent is expressly prohibited); (iv) forge any TCP/IP packet header or any part of the header information in any email or posting, or in any way use the Platform to send altered, deceptive or false source-identifying information; or (v) interfere with, or disrupt, (or attempt to do so), the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, mail-bombing the Platform, or by scripting the creation of Content in such a manner as to interfere with or create an undue burden on the Platform or Services.
- Without limiting Section 5.1 above, You acknowledge that You are solely responsible for Your Content and You shall (i) not transmit any Content that promotes or constitutes illegal activity, that contains obscene, pornographic, offensive, defamatory or illegal materials of any kind (text, graphics, images, photographs, etc.) that is adult-themed, contains sexual, violent or criminal material, that relates to the sale of tobacco or alcohol to individuals under the age of legal consumption, that relates to gambling, “get-rich-quick” or similar schemes, or firearms, fireworks or ammunition, that advocates violence or any act of intimidation, harassment, physical force or discrimination motivated by hostility to a person’s race, ethnic background, religious belief, sex, age, disability or sexual orientation, or otherwise violates any civil or criminal law or is otherwise illegal to transmit under law.; (ii) not transmit any Content that is false or misleading and otherwise comply at all times with all laws related to advertising and marketing, (iii) not transmit Content that violates, infringes or misappropriates the rights of any third party, including but not limited to copyright or trademarks of any third party; and (iv) comply at all times with all applicable laws. You also acknowledge and agree that as part of the functioning of the Platform, Your Content may be downloaded or populated from third party sites, such as Foursquare or be supplemented by other third party content, such as from third party publishers (“Third Party Content”). We and our licensors hereby disclaim any and all liability in connection with the foregoing.
- Without limiting Sections 5.1 and 5.2 above, You acknowledge and agree that You will use all User Information provided to You through the Platform (including but not limited to the User’s name and profile) in accordance with the following additional restrictions:
a. You may use the User Information solely for lawful purposes and shall comply with all relevant laws and regulations that govern use, including, by way of example, laws governing privacy, mass email, spam, export control, consumer protection, unfair competition and false advertising;
b. You may not use the User Information as part of an activity that is perceived as threatening, harassing, anti-competitive, misleading, libelous, defamatory, obscene, pornographic, profane or otherwise objectionable; and
- You acknowledge and agree that We and our licensor’s have the right, but not the obligation, to monitor Your use of the Platform to determine compliance with the terms of this Agreement. We reserve the right, without limiting any other right or remedy, to immediately suspend Your access (and therefore, all Your Users access) to and use of the Platform and/or immediately terminate this Agreement if We determine that You are engaging (or have engaged) in any of the prohibited activities set forth in this Section 5. Upon request, you will provide Us with information, access and means to evaluate your use of the Platform and Data and Our Marks free-of-charge in order to determine compliance with the Terms.
You acknowledge and agree that Users of the Platform may make comments (“Comments”) regarding You and your business and services or other Content you provide through the Platform, which could be posted through the App and which could be negative or defamatory. Although User Terms of Service require Users not to post defamatory Comments, We do not monitor all postings and neither We nor our licensors are responsible for any such Comments nor any damage to Your business or reputation directly or indirectly arising out of such Comments. You also acknowledge and agree that Users may take Your Content and share such Content with others. As a result, You acknowledge that none of Your Content is confidential information and all such Content may be made publicly available once it is uploaded into the Platform.
- Without limiting any of the above, You acknowledge and agree that You are solely responsible for all terms and conditions of any Rewards Programs that You offer through the Platform and compliance with all applicable laws in connection with the foregoing. You further acknowledge that errors could arise related to a User’s participation in a Rewards Program, that could be caused by, without limitation, latencies or errors in the performance of the Beacons, failure of participants in the Rewards Program to follow rules set forth in the Rewards Program or other causes, whether or not within Our control, and in no event shall We or our licensors be responsible or liable directly or indirectly for any loss, damage or claims of any kind arising out of or related to Your Rewards Programs.
- General. These Terms constitute the entire agreement between you and Us regarding the subject matter hereof, supersedes any and all prior or contemporaneous agreements between the parties with respect to its subject matter, and does not give any third party any rights or remedies hereunder. Any waiver of any term or condition shall not be effective unless in a written document signed by an authorized representative of Ours. You and Us agree that if any portion of these Terms is found to be illegal or unenforceable, such portion(s) shall be limited or excluded from these Terms to the minimum extent required and the balance of these Terms shall remain in full force and effect. Neither party will, for any purpose, be deemed to be an agent, franchisor, franchisee, employee, representative, owner or partner of the other party, and the relationship between the parties will solely be that of independent contractors.
- Amendment. We may update or revise these Terms from time to time in Our sole discretion without notice to you, and We recommend that You review these Terms on a regular basis to stay abreast of the most current version. Your continued use of the Platform after any update or revision to these Terms constitutes Your acceptance of the updates or revisions.
- Force Majeure. Neither Party shall be responsible for any failure or delay in performance under this Agreement due to circumstances beyond its reasonable control including, without limitation, Acts of God, accident, labor disruption, acts, omissions and defaults of third parties, and official, governmental and judicial action not the fault of the party failing or delaying in performance.
- Attorney’s Fees. In any action or proceeding brought by Us to enforce any provision of this Agreement, We shall be entitled to recover the reasonable costs and expenses incurred by it in connection with that action or proceeding including, but not limited to, attorneys fees.
- Assignment. You may not assign or transfer this Agreement by operation of law or otherwise without Our prior written consent, such consent not to be unreasonably withheld. Notwithstanding the foregoing, You may assign or otherwise transfer its rights and obligations under this Agreement to a third party who assumes the obligations of You through a merger or acquisition other than a merger or acquisition that results in a change in control of You. Any assignment or transfer in violation of this section shall be void. We may assign or otherwise transfer this Agreement and/or Our rights and obligations hereunder without Your consent. Subject to the foregoing limitation, these Terms will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns
SUPPORT - Support Services include technical support, escalation and incident management.
- Tier 1 (Licensee) – initial resolution attempts and Customer and User facing communications.
- Tier 2 (Company) – support specialist providing further issue resolution attempts; software fixes and communication to Licensee of final resolution.
- Methods: Email, Telephone & Online Portal
1. Error Management. Company shall use its reasonable efforts to identify, prioritize and correct any confirmed Errors in the White Labeled Solution in accordance with Company Error correction procedures (where “Error” means code that exists in the White Labeled Solution and causes the White Labeled Solution to fail to materially execute in the manner specified by the applicable documentation), provided the Error can be recreated by Company at Company's facility. Licensee will give Company prompt written notice describing any Error it observes in the White Labeled Solution.
2. Licensee Assistance. Licensee agrees to provide Company with logs or other documentation, as requested, and with reasonable support and test time on Licensee's equipment so that Company may duplicate the Error, determine that the Error is with the White Labeled Solution covered hereunder, correct the Error and determine that the Error has been corrected.
3. Licensee Contact. Licensee will designate at least 1 technical contact ("Licensee Contacts") and an alternate who will submit Error reports and receive all Error corrections, Updates, Upgrades, correspondence and other communications concerning the White Labeled Solution. Licensee agrees that during the Term it shall at all times employ not less than one person (and one backup) trained in the operation of the White Labeled Solution.
4. Telephone/Email/Web Support. Company will provide consultation and advice to Licensee Contacts regarding technical support of the Software. Assistance will be available via telephone and email, and may be available via web, between the hours of 9 a.m. and 5 p.m. Pacific Time, Monday through Friday, excluding Company holidays. Up to 8 hours of support will be provided per month.
5 Limitations. Company shall have no obligation under this Exhibit for the correction of Errors which are due to Licensee system failures or failure of the Merchant Customer or User’s devices or systems. The support services described herein apply solely to the White Labeled Solution described herein, and do not include any additional services. If Company agrees to provide any support not covered by the terms of this Exhibit (including but not limited to any time spent by Company in investigating and/or correcting Errors or issues not caused by the White Labeled Solution), Licensee shall pay Company for all such work performed at rates established at that time. Such amount shall be due and payable within thirty (30) days of Company’s invoice date. Unless specifically listed in a separate Exhibit or SOW executed by the Parties, Company is under no obligation to perform services with respect to any hardware or any software that is not the White Labeled Solution. Licensee is