Merchant Terms of Service

Merchant Terms and Conditions of Use
Last modified on 09/09/2024

This Merchant Terms and Conditions of Use (the “Agreement” or “Terms”) is a legal agreement between you (“Merchant” or “You” or “Your”) and Coffey Ventures, Inc., a Delaware corporation, DBA Joe Coffee (the “Company”). This Agreement contains the terms and conditions that govern Your access to and use of all product lines including (the “Apps”), but not limited to, the website, merchant application, mobile application, point-of-sale, and kiosk of the Company. By downloading, subscribing to, or in any way accessing the Apps, You agree to follow and abide by these Terms, and You agree that You are responsible for compliance with all applicable laws and regulations. If You do not agree with any of the Terms herein, You must forego using or accessing the Apps.

In addition, if You choose to use the Square App Market for integration purposes, You understand and acknowledge that You may be bound by the applicable Square terms and conditions of use.

1. Important Information

These Terms govern Your use of the Apps. The Apps must be installed on a compatible mobile device in order to access and use the Company’s Apps. The Company does not warrant that the Company’s Apps will be compatible with Your mobile or other computing device or carrier. Your use of the Apps may be subject to the terms of Your agreements with Your mobile device manufacturer or Your carrier.

By accessing the Apps, You agree to comply with this Agreement, and that Your use of the Apps, and any dispute arising out of Your use, will be governed by this Agreement. If You are using the Apps on behalf of a company or other entity, or if You contract for services on behalf of a company or other entity, You represent and warrant that You have full legal authority to access the Apps on behalf of that entity and bind it to these Terms. If You are not authorized, You may not accept these Terms for someone else.

2. Reliability of Information

The Company does its best to provide the most accurate information possible with regard to our Apps, but it is impossible to guarantee accuracy. The Company does not offer to provide information that is error-free, up-to-date, or appropriate for Your needs.

The Apps are available only for individuals who are thirteen (13) years or older, and the Company does not knowingly collect information from persons under the age of thirteen (13). If You are thirteen (13) or older but under eighteen (18) (or the legal age of majority where You reside if that jurisdiction has an age of majority older than eighteen (18)), You must review the Terms with Your parent or guardian to make sure that both You and Your parent or guardian understand and agree to this Agreement, and Your parent or guardian must accept this Agreement on Your behalf. If You are a parent or guardian agreeing to this Agreement for the benefit of a minor, then You agree to and accept full responsibility for that minor’s use of the Apps.

3. Payments and How It Works

Features of the Apps enable payments, including those from Merchants and consumers, which rely on accurate bank account, credit card, and information provided by parties to the transaction. We collect data necessary to process your payment, such as your payment instrument number (such as a credit card number) and the security code associated with your payment instrument. All payment data is stored by a secure third-party payment gateway. We do not store your payment information, and we only share that information with our secure third-party payment gateway in order to process the payments or refunds required for your account. The Company cannot guarantee the accuracy of payment information, which is the responsibility of the parties, and cannot be responsible for delay or interruption of payments due to inaccurate information. When You provide payment information, You consent to transactions initiated by You and enabled by the Apps. Payment features are enabled through our secured third-party payment gateway, Stripe, which may request additional payment information from time to time to enable certain features of the Apps, which features may become unavailable if You do not provide such additional information.

Because orders, payments, refunds, and rewards incorporate Stripe services, by using the Apps, You also agree to be bound by Stripe’s Terms and Conditions and Privacy Policies, available at: https://stripe.com/us/connect-account/legal.

4. Payments by Merchant

The Company provides payment processing services to Merchants through Stripe, Inc. (“Stripe”). The standard rates for payment processing are 2.6% + $0.10 per transaction for in-person payments and 2.9% + $0.30 per transaction for online and app-based payments.

In addition to these payment processing fees, Merchants shall pay usage-based fees ranging from three percent (3%) to five percent (5%) for additional services provided by the Company, which may include but are not limited to, loyalty card uploads and online payment services.

The Company also centrally manages a proprietary rewards program on behalf of Merchants. The Company funds reward redemptions across the network through a reward redemption budget, which is comprised of five percent (5%) of every loyalty payment made by consumers. The Company shall be responsible for covering the costs of reward redemptions across the network using the allocated reward redemption budget.

Merchants acknowledge and agree that the fees described herein are subject to change, and the Company reserves the right to modify these fees at any time upon providing notice to the Merchant as outlined in this Agreement.

5. Payout Cadence

You may have payment remitted daily or weekly depending on the product line and the terms You negotiate with the Company. Additional fees may apply for daily deposits for shops that don’t utilize the complete Ordering System, including Point-of-Sale.

6. Consumer Rewards Program for Coffee Shops

By participating in the Joe Coffee Consumer Rewards Program (the “Program”), you, as a participating coffee shop (“Merchant”), agree to the following terms and conditions:

Program Enrollment and Benefits:
- Joe Coffee will manage the rewards program centrally, allowing every shop on the platform to offer customer rewards without the typical risks associated with such programs. Customers who load a balance onto their store-specific loyalty card will be enrolled in the "Spend $100, Get 1 Free Drink" program, under which they will receive one free drink after spending a total of $100 at participating locations. Purchases made by customers without a loaded balance will also qualify for rewards but will accrue points at half the rate.
Merchant Costs and Fees:
- To cover the costs associated with managing the rewards, paying for redemptions network-wide, and providing program support, Joe Coffee charges participating Merchants a percentage of loyalty payments, which is agreed upon in advance and capped at a maximum of 10%. This fee ensures that your shop can offer an attractive and effective loyalty program while minimizing the financial burden and risks typically associated with such programs.
Enhanced Customer Engagement Features:
- Joe Coffee provides additional promotional features to help drive customer engagement and increase sales:
  - Weekly Bonuses: Joe Coffee may offer rotating bonuses, such as Double Points Days, a Monday bonus of 100 points, or a Friday bonus for customers who make multiple purchases in a day. These promotions are designed to encourage repeat visits and increase customer loyalty.
  - Refer-a-Friend Program: The Program includes a refer-a-friend component, enabling customers to earn additional rewards by referring new customers to your shop and other participating locations. This encourages organic growth and new customer acquisition.
  - First-Time Purchase Incentives: Joe Coffee may allocate a budget to incentivize new customers to make their first purchase at your shop or other participating locations, driving initial customer engagement.
Reward Management and Technology:
- Joe Coffee manages all rewards, bonuses, and customer engagement activities through its proprietary technology and data systems. This centralized approach ensures a consistent customer experience and reduces administrative overhead for Merchants. Joe Coffee will handle all logistics related to reward accrual, redemption, and program updates.
Redemption and Accessibility:
- Customers can redeem rewards, manage loyalty balances, and apply discounts through various Joe Coffee-enabled platforms, including Point-of-Sale systems, the Joe Coffee App, the Joe Coffee website, and Kiosk systems, where available.
Program Modifications and Notifications:
- Joe Coffee reserves the right to modify, suspend, or terminate the Program or any specific rewards, bonuses, or terms at any time. Merchants will be notified of any material changes to the Program. Continued participation in the Program following such changes constitutes acceptance of the revised terms.
Customer Communication:
- Joe Coffee will handle all customer communication related to the rewards program, including SMS notifications about rewards and promotions. Customers have the option to opt out of receiving these communications at any time.

By participating in the Joe Coffee Consumer Rewards Program, you agree to these terms and conditions and understand that Joe Coffee may adjust the specifics of rewards, promotions, and fees as needed to optimize the effectiveness of the Program for both Merchants and customers.

7. Gift Cards and Shop Loyalty Cards

Consumers may purchase or redeem a Joe Coffee gift card (“Gift Card”) to be used toward the purchase of Merchant goods and services. Consumers may also purchase a Merchant-specific Gift Card, or Merchant may grant Consumers a Merchant-specific Gift Card as part of a loyalty promotion, to be redeemed toward the purchase of goods and services only from Merchant’s location (“Shop Loyalty Card”). Merchant must redeem all Gift Cards, including Shop Loyalty Cards, in compliance with Joe Coffee’s consumer terms and conditions and applicable law. The value of Gift Cards, including Shop Loyalty Cards, will be passed to the Merchant for all payment types, minus the standard fee associated with digital purchases. In the event the Merchant leaves Joe Coffee, or a Customer requests a refund, the Merchant is responsible for any refunds in accordance with their state laws.

8. Invoices and Accounting

For any rewards-related disputes, You shall submit a monthly invoice to the Company for all Rewards, Gift Card redemptions, and Global Code redemptions redeemed by consumers. All invoices shall be submitted electronically to the Company. The Company shall pay or dispute Your invoice within thirty days from receipt of the invoice.

The Company will submit a weekly accounting to You with respect to Charges, Gift Card redemptions, Global Code redemptions, and Rewards. You will need to add the e-mail address you wish to have the weekly reports emailed to in your merchant dashboard under “Notifications.”

9. Merchant Promotions

If You receive “owner” status for Your merchant account, You may have the capability of creating unique promotional codes for Your merchant account with the Company (“Merchant Codes”). “Owner” status may be granted to You if You have provided the Company the information requested by the Company, as needed, to verify Your merchant account. Merchant Codes can be in the form of providing a discounted percentage or Merchant Codes can be in the form of providing a discounted percentage or discounted dollar amount (e.g., 10% off or $1 off) for Your products, goods, or services. You may set certain limitations on the use of Your Merchant Codes. Merchant Codes You promote and honor are Your responsibility and obligation. As an “Owner,” you can also grant Reward Balance to customers and grant credit on Loyalty Cards and Gift Cards. Furthermore, baristas operating the Point-of-Sale may grant a reward balance to a customer and grant store credit to a loyalty card or gift card. You understand and agree that the Company will not be responsible or obligated for any Merchant Codes, Reward Balance adjustments, or Loyalty/Gift Card credits You decide to promote and use.

10. Company Promotions

From time to time, the Company may promote certain unique promotional codes on behalf of the Company, which may be used with all merchants (“Global Codes”). The Company will compensate You for the amounts attributable to Global Codes used at Your store. The Global Codes may be for a limited time, and the Company reserves the right to modify or cancel the offer related to the Global Codes.

11. Taxes Generally

It is Merchant’s responsibility to determine what, if any, taxes apply to the payments Merchant makes or receives, and it is Merchant’s responsibility to collect, report, and remit the correct tax to the appropriate tax authority. The Company is not responsible for determining whether taxes apply to Merchant’s transaction with either consumers or the Company, or for collecting, reporting, or remitting any taxes arising from any transaction with or by Merchant and consumers or the Company.

12. Modifications to the Agreement

The Company may modify this Agreement at any time by giving notice to You, which notice shall be made by posting a revised version of this Agreement on the Apps or by notifying You in accordance with this Agreement. The modified Terms will become effective as stated in the message announcing the change in Terms. Your continued use of the Apps after the effective date of any modification to this Agreement will be deemed Your acceptance of such modifications. Notwithstanding the foregoing, any changes to this Agreement will not apply to any dispute between You and the Company arising prior to the effective date of any such change(s). The Company last modified this Agreement on the date listed at the beginning of this Agreement.

13. Consumer Data Restrictions

Consumer Data. “Consumer Data” means all identifiable information about consumers generated or collected by You or the Company, including, but not limited to, consumers’ names, addresses, email addresses, phone numbers, preferences and tendencies, and financial transaction data. We do not sell Consumer Data.

Merchant shall use Consumer Data only to fulfill its redemption obligations. Merchant expressly agrees that any Consumer Data shall be used only for this purpose, and not to enhance a file or list owned by Merchant, or any third-party. Merchant represents, warrants, and covenants that it will not sell, resell, share, distribute, broker, or otherwise disclose any Consumer Data to any third-party, in whole or in part, for any purpose, unless required by applicable law or required to perform the services herein. If Merchant engages any third-party to facilitate its redemption obligations hereunder, Merchant shall ensure that such third-party implements and complies with reasonable security measures in handling any Consumer Data. Merchant agrees to comply with the Company’s Privacy Policy with regard to any Consumer Data and will be liable for any breach of the Company’s Privacy Policy.

Unauthorized Use. Merchant shall immediately notify the Company if Merchant becomes aware of or suspects any unauthorized access to or use of Consumer Data or any confidential information of the Company, and shall cooperate with the Company in the investigation of such breach and the mitigation of any damages. Merchant will bear all associated expenses incurred by the Company to comply with applicable laws (including, but not limited to, any data breach laws) or arising from any unauthorized access or acquisition of Consumer Data while such data is in Merchant’s reasonable possession or control. Upon termination or expiration of this Agreement, Merchant shall, as directed by the Company, destroy or return to the Company all the Consumer Data in Merchant’s or any agent of Merchant’s possession.

The Company and its business partners may communicate with Merchant with regard to products, promotions, and other services that may be of interest to Merchant. This may include email or other communications. The Company may also solicit Merchant’s opinion for market research purposes. You have the right to opt-out or unsubscribe from any marketing communications sent from us, by emailing us at success@joe.coffee or clicking the “unsubscribe” button at the bottom of our marketing emails. Please note that you may not be able to opt-out of or unsubscribe from communications that are material to your account and are transactional. For Square integrated partners, The Company will automatically pull in Customer data from the Square partner account. Once the partner approves permissions, The Company will send an SMS to the partner’s customers with a marketing promotion. Partners can opt-out of this by emailing their Account Manager or partnersupport@joe.coffee.

14. The Apps

The Apps consist of copyrighted and other proprietary information and materials owned by the Company. Subject to Section 7.2, the Company reserves all right, title, and interest in and to the Apps and all of our proprietary information and materials provided to You through the Apps, including any related intellectual property rights, and You obtain no right, title, or interest under this Agreement in or to the Apps or the Company’s information or materials.

Your License to the Apps. The Company hereby grants You, for the Duration, as defined below, a limited, non-exclusive, non-transferable, non-sublicensable license to access and use the Apps and the Company’s information and materials contained within the Apps in accordance with this Agreement. Without limiting the foregoing, You may not:

Reproduce, modify, or redistribute the Apps;
Knowingly upload any files that contain software viruses or other harmful computer code to the Apps;
Use the Apps to send unauthorized messages, including spam, to harass or engage in illegal conduct, or to induce others by means of deceit or fraud to transact via the Apps;
Interfere with the operation of the Company’s web servers, website, the Apps, computers, or network connections;
Remove any copyright or other proprietary notations from the Apps;
Transfer the Apps to another person or “mirror” the Apps on any other server; and
Use any of the Company’s information or materials in any other way, unless expressly permitted by the Company.

While using the Apps, You may, from time to time, provide certain materials, communications, suggestions, comments, improvements, ideas, or other feedback to the Company related to the Apps (“Feedback”). You hereby grant to the Company all right, title, and interest to any Feedback that You make to the Company concerning the Apps. In the event this grant is not sufficient for the Company to fully realize and use the Feedback, You grant the Company a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use and incorporate into the Apps any of Your Feedback. By providing Feedback, You are representing that the Feedback is not subject to any intellectual property claim by a third-party or any license terms which would require products or services derived from that Feedback to be licensed to or from, or shared with, any third-party.

15. Right to Approve of and Remove Content

The Company reserves the right to approve of, or disapprove of, any of Your information, materials, or content that You provide the Company, or that is posted, or intended to be posted, on the Apps. The Company may withhold approval for any reason, including but not limited to if the Company believes Your information, materials, or content violate this Agreement, any law, or the rights of any third-party. Without limiting the foregoing, the Company reserves the right to remove any of Your information, materials, or content posted, or intended to be posted, on the Apps for any of the reasons listed in the previous sentence, even if the Company previously approved that portion of Your information, materials, or content. Although the Company reserves the right to approve of, and remove, Your information, materials, or content, the Company has no obligation to police You or any of Your information, materials, or content.

The trademark in the Company’s name, Joe Coffee, or similar marks of the Company’s used in connection with the Apps are trademarks in the United States and/or other countries. Other trademarks, service marks, graphics, and logos used in connection with the Apps may be trademarks of the Company’s. You are granted no right or license in any of these trademarks unless otherwise provided in this Agreement.

16. Your Rights and Obligations

You may access and use the Apps solely in accordance with this Agreement. You agree to adhere to all laws, rules, and regulations applicable to Your use of the Apps.

Information Provided. You may be required to create login credentials. In this case, You will provide the Company with information about You, including but not limited to Your email address or other identifying information, in order to access the Apps and features of the Apps. You acknowledge and agree to the following:

Any information, including contact information, You provide in connection with creating Your login credentials must be accurate and complete, and You will update such information as necessary to keep it accurate and complete;
You will not share Your login credentials with any third-party, and You will be responsible for keeping Your login credentials confidential;
You will be responsible for all activity that occurs in connection with Your login credentials;
You will notify the Company promptly if You believe that an unauthorized third-party may be using or have access to Your login credentials;
The Company will not be liable for any loss or damage arising out of Your failure to maintain the security of Your login credentials or for unauthorized access to Your account; and
The Company may suspend, revoke, or limit Your rights to access the Apps if You fail to comply with the terms of this Agreement in any way.

Your Additional Responsibilities. You will:

Be responsible for Your information, materials, or content, including for the accuracy, quality, and legality of Your information, materials, or content, and ensuring Your information, materials, or content does not infringe on or violate the rights of any person or party;
Ensure Your information, materials, or content complies with this Agreement and all applicable law;
Not sell or permit any consumer under 21 years of age from purchasing or picking up any alcohol products or goods from You;
Be responsible for verifying any consumer’s valid government-issued identification proving the consumer is at least 21 years of age if the consumer is purchasing or picking up any alcohol product or good from You;
Be responsible for determining if a consumer who is purchasing or picking up alcohol products or goods is intoxicated to an extent where applicable laws prevent You from permitting the purchase or pickup of the alcohol product or goods;
Be responsible for compliance with any and all alcohol products and goods related laws and obligations when any consumer is purchasing or picking up alcohol products or goods from You;
Handle any claims relating to Your information, materials, or content; and
Properly, and in accordance with applicable law, handle, process, and respond to notices sent to You by any person claiming that Your information, materials, or content violates such person’s rights.

Prohibited Activities. You agree that in using the Apps, You will not, and will not attempt to:

Use the Apps to submit, store, transmit, or process malicious code, worms, or viruses;
Use the Apps to submit, store, transmit, or process information, materials, or content that is or may be: (a) threatening, harassing, degrading, hateful, or intimidating; (b) libelous or defamatory; (c) fraudulent, tortious, or unlawful; (d) obscene, indecent, pornographic, or otherwise objectionable; or (e) infringing of any person’s rights, any applicable laws, or Your obligations to any third-party;
Use the Apps to submit, store, transmit, or process information, materials, or content that would give rise to criminal or civil liability or that encourages unlawful activity;
Gain unauthorized access to the Apps or to the Company’s systems or networks;
Except as otherwise expressly permitted by this Agreement, reproduce, duplicate, copy, sell, resell, rent, sublicense, transfer, lease, make available, or exploit the Apps or any content through the Apps that is not Your own;
Interfere with or disrupt the integrity or performance of the Apps;
Impersonate any person or entity or misrepresent Your affiliation with any person or entity in connection with the Apps;
Reverse engineer, disassemble, or decompile any portion of the Apps or apply any other process or procedure to derive the source code of any software included in the Apps; and
Remove any copyright, trademark, or other proprietary rights notice from the Apps.

17. Third-Party Content or Resources

The Apps may include third-party content and/or hyperlinks to websites, resources, or content owned or operated by third parties, over which the Company has no control. The Company is not responsible for the accuracy or availability of such third-party content or such sites or resources or for any content, advertising, products, or material on or available from such third-party’s sites or resources. The Company is not responsible or liable for any damages that You may incur, directly or indirectly, as a result of Your use of, and/or in reliance upon, any such third-party content, sites, or resources. In furtherance of the foregoing, You are responsible for reviewing such third-party’s policies regarding use and/or reliance upon such third-party content, sites, or resources.

18. Disclaimer of Warranties

THE APPS ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY EXPRESS REPRESENTATIONS OR WARRANTIES OF ANY KIND AND, TO THE FULLEST EXTENT PERMITTED BY LAW, THE COMPANY DISCLAIMS ALL STATUTORY OR IMPLIED REPRESENTATIONS, WARRANTIES, TERMS, AND CONDITIONS WITH RESPECT TO THE APPS, INCLUDING ANY REPRESENTATIONS OR WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND TITLE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. SOLELY TO THE EXTENT SUCH LAW APPLIES TO YOU, SOME OR ALL OF THE EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.

19. Limitation of Liability

THE COMPANY WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR OTHERWISE UNFORSEEABLE DAMAGES OF ANY KIND, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, CONTENT, DATA, SECURITY OF DATA, OR LOSS OF OTHER INTANGIBLES, OR THE COST OF PROCUREMENT OF SUBSTITUTE INFORMATION, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, THE COMPANY WILL NOT BE RESPONSIBLE FOR ANY LIABILITY OR DAMAGES ARISING IN CONNECTION WITH OR RESULTING FROM:

YOUR USE OR INABILITY TO USE THE APPS, INCLUDING AS A RESULT OF ANY: (i) REVOCATION OR SUSPENSION OF YOUR LOGIN CREDENTIALS; (ii) ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME FOR ANY REASON, INCLUDING AS A RESULT OF UPDATES, POWER OUTAGES, SYSTEM FAILURES, OR OTHER INTERRUPTIONS; (iii) THE COST OF PROCUREMENT OF SUBSTITUTE INFORMATION; (iv) ANY INVESTMENT, EXPENDITURE, OR COMMITMENT BY YOU IN CONNECTION WITH ANY INFORMATION OR CONTENT PROVIDED THROUGH THE APPS;
YOUR SALE OF ALCOHOL PRODUCTS OR GOODS, OR PERMITTING ANY CONSUMER TO OBTAIN ANY ALCOHOL PRODUCTS OR GOODS;
ANY CHANGES MADE TO THE APPS OR ANY TEMPORARY OR PERMANENT CESSATION OF THE APPS OR ANY PART THEREOF;
ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR DELETION OF YOUR ACCESS TO THE APPS;
THE DELETION OF, DESTRUCTION, DAMAGE, LOSS, CORRUPTION OF, OR FAILURE TO STORE, SEND, OR RECEIVE ANY OF YOUR INFORMATION, MATERIALS, CONTENT, TRANSMISSIONS, OR DATA ON OR THROUGH THE APPS;
STATEMENTS OR CONDUCT OF ANY THIRD-PARTY VIA THE APPS; AND
ANY OTHER MATTER RELATING TO THE APPS.

IN ANY CASE, THE COMPANY’S AGGREGATE LIABILITY TO YOU IN CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO A MAXIMUM OF $100.00.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. SOLELY TO THE EXTENT SUCH LAW APPLIES TO YOU, SOME OR ALL OF THE EXCLUSIONS OR LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.

20. Indemnification Obligation

You shall defend, indemnify, and hold the Company harmless from and against any and all third-party claims, damages, losses, liabilities, demand, costs, and expenses (including reasonable attorneys’ fees and costs), relating to or arising, directly or indirectly, in whole or in part, from:

Your information, materials, or content, whether or not the Company approves Your information, materials, or content for posting on the Apps;
Any breach or violation by You of this Agreement or of any applicable law;
Your sale of any alcohol products or goods to consumers;
Any action taken by the Company as part of the Company’s investigation of a suspected violation of this Agreement by You or anyone using Your login credentials, or as a result of the Company’s finding or decision that such violation has occurred; or
Your violation of any rights of another, or a dispute between You and another user of the Apps.

The Company reserves the right to assume, at the Company’s sole expense, the exclusive defense and control of any such claim or action and all negotiations for settlement or compromise, and You agree to fully cooperate with the Company in the defense of any such claim, action, settlement, or compromise negotiations, as requested by the Company. In no event will You settle any claim or action related to this Agreement without the Company’s prior written approval.

21. No Action During Investigation

You agree not to sue the Company as a result of the Company’s decision to withhold approval of, or removal of, Your information, materials, or content, to warn You, to revoke or suspend Your access to the Apps, or to take any other action during the investigation of a suspected violation or as a result of the Company’s conclusion that a violation of this Agreement has occurred.

22. Term and Termination

Duration of Terms. The duration of these Terms (the “Duration”) will be from the date upon which You agree to these Terms and will continue until terminated as set forth below.

Your Termination Rights. You may terminate these Terms by discontinuing use of the Company’s Apps; provided, however, that any terms which by their nature survive termination shall continue in effect notwithstanding Your termination. Additionally, You are obligated to pay any fees and costs owed to the Company within 30 days of termination of this Agreement.

Suspension; Termination. The Company may suspend or terminate Your use of all or any of the Apps at any time if the Company believes You have violated this Agreement, or, in the Company’s sole discretion, the Company believes the availability of the Apps to You is not in the Company’s or other users’ best interests.

The Company may discontinue the availability of some or all of the Apps at any time for any reason. The Company shall endeavor to provide You with 30 days’ notice unless the Company discontinues such availability to protect the security or integrity of the Apps and related offerings, to address user security or user privacy issues, for legal compliance reasons, or to the extent necessary to mitigate damages in relation to third-party litigation.

The Company may also impose limits on certain features and services or restrict Your access to some or all of the Apps. Although the Company will endeavor to provide prior notice of the Company’s exercise of the Company’s rights pursuant to this Section 12.3, it may not be practical or commercially reasonable in all circumstances. Accordingly, all of the Company’s rights in this Agreement may be exercised without prior notice or liability to you.

Termination for Cause. Either party may terminate this Agreement: (a) if the other party files a voluntary petition for bankruptcy or a petition or answer seeking a reorganization; (b) if the other party has filed against it an involuntary petition for bankruptcy that has not been dismissed within 60 days thereof; (c) if the other party becomes insolvent, admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of its creditors; (d) if the other party applies for or consents to the appointment of a receiver, trustee, or liquidator for substantially all of its assets or such receiver, trustee, or liquidator is appointed for the other party; or (e) upon the occurrence of a material breach of this Agreement by the other party, if such breach is not cured within 10 days after written notice identifying the matter constituting the material breach is provided by the non-breaching party.

Effect of Termination. Upon termination of this Agreement:

All licenses granted under this Agreement will terminate immediately;
Upon request, each party will promptly return to the other party or delete all tangible embodiments of confidential information of such party in its possession, custody, or control;
You shall pay any fees and costs owed to the Company within 30 days of termination of this Agreement;
Shop Loyalty Card value associated with Merchant’s business, if any, will automatically convert to Gift Card value;
You will delete all stored content received from the Company through the use of the Apps; and
The Company will make commercially reasonable efforts to remove all references and links to Your information, material, and content.

Notwithstanding the above, each party may retain a copy of this Agreement and such other confidential information of the other party as reasonably required for legal and auditing purposes. The Company may require that You certify in writing Your compliance with this Section 12.5.

23. General Terms

Independent Contractor. Merchant and the Company are independent contractors. Nothing in this Agreement is to be construed to create a joint venture, partnership, franchise, or an agency relationship between the parties. Neither party has the authority, without the other party’s prior written approval, to bind or commit the other in any way.

Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington, as if performed wholly within the state and without giving effect to the principles of conflict of law.

You and the Company agree to arbitrate any and all disputes by a neutral arbitrator who has the power to award the same individual damages and individual relief that a court can. ANY ARBITRATION UNDER THIS AGREEMENT WILL ONLY BE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, REPRESENTATIVE ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED. YOU WAIVE ANY RIGHT TO HAVE YOUR CASE DECIDED BY A JURY AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS ACTION AGAINST THE COMPANY. If any provision of this arbitration provision is found unenforceable, the unenforceable provision will be severed, and the remaining arbitration terms will be enforced (but in no case will there be a class or representative arbitration). All disputes will be resolved finally and exclusively by binding individual arbitration with a single arbitrator (the “Arbitrator”) administered by the American Arbitration Association (https://www.adr.org) according to this Section and the applicable arbitration rules for that forum. Any arbitration hearing will occur in Seattle, Washington, or another mutually agreeable location. If the amount in controversy exceeds $10,000.00, the arbitrator’s decision shall include a statement specifying in reasonable detail the basis for and computation of the amount of the award, if any. A party substantially prevailing in the arbitration shall also be entitled to recover such amount for its costs and attorneys’ fees incurred in connection with the arbitration as shall be determined by the arbitrator. The arbitrator’s award will be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. While an arbitrator may award declaratory or injunctive relief, the Arbitrator may do so only with respect to the individual party seeking relief and only to the extent necessary to provide relief warranted by the individual party’s claim. For purposes of this arbitration provision, references to You and the Company also include respective subsidiaries, affiliates, agents, employees, predecessors, successors and assigns as well as authorized users or beneficiaries of the Apps.

If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, invalid, or unenforceable, that provision shall be modified by the court and interpreted so as best to accomplish the objectives and intent of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement, but the remainder of the Agreement will remain in full force and effect.

You may not assign, delegate, or sublicense any of Your rights or obligations hereunder, whether by operation of law or otherwise, without the Company’s prior written consent. Any assignment or transfer in violation of this Section will be void.

The sections which, by their nature, shall survive the termination or expiration of this Agreement include, without limitation: Section 7 [Ownership], Section 9 [Disclaimer of Warranties], Section 10 [Limitation of Liability], Section 20 [Indemnity], and Section 23 [General Terms].

No Waiver. The Company’s failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision or of any other right or provision. All waivers must be in writing to be effective.

Entire Agreement. This Agreement, which incorporates the Privacy Policy, constitutes the entire agreement between You and the Company with regards to use of the Apps and, unless otherwise provided in a written agreement between You and the Company, shall supersede any prior agreements between You and the Company concerning the Apps (including, but not limited to, any prior versions of the Agreement). This Agreement does not amend any other separate agreement You may have with the Company.

Notices to You. The Company may provide You with notices regarding the Apps, including changes to this Agreement, by email to Your email address (and/or other alternate email address associated with Your account if provided), by regular mail, or by postings on the Apps. Notices that are provided by posting on the Apps will be effective three (3) days after posting. Notices that are provided by email will be effective when the Company sends the email. It is Your responsibility to keep Your email address current. You will be deemed to have received any email sent to the email address then associated with Your account when the Company sends the email, whether You actually receive the email.

All communications and notices to be made or given pursuant to this Agreement must be in the English language.

Electronic Transactions. You consent to receiving electronic communications and notifications from the Company in connection with Your use of the Apps and this Agreement. You agree that any such communication will satisfy any legal communication requirements, including that such communications be in writing.