Merchant
Terms and Conditions

Last Updated March, 2014

Spendgo, Inc., ("we" or "Company" or "Spendgo"), hosts Marketing Programs ("Program") via our www.spendgo.com website, in-store technology and our mobile applications, and enables the entity ("Merchant" or "you") that has signed the Merchant Agreement ("Order Form") to develop a Program personalized to your business in accordance with the Spendgo Merchant Terms and Conditions and Order Form (collectively, the "Agreement"). This Agreement, set forth the terms and conditions on which the Merchant and Spendgo have agreed to conduct the Program. By signing the Order Form or using Spendgo, Merchant agrees to also follow and be bound by these Merchant Terms and Conditions.

1. TERM

The Initial Term of this Agreement shall commence on the Term Commencement Date as described in the Spendgo Order Form, and generally will be deemed month to month unless subject to a minimum term or opting to prepay in the Order Form. The Agreement shall automatically renew at the end of each term for a renewal term ("Renewal Term") of the same length as the previous term (whether month to month, annual or as otherwise stated in the Order Form) unless (a) either party gives the other party thirty days (30) days advance written notice prior to the end of Term, or (b) the Agreement is otherwise terminated pursuant to the terms of Section 7.

2. COMPANY SERVICES

In connection with the Spendgo Program, Spendgo shall perform the following Services on behalf of Merchant:

1. Service Equipment ("Equipment"), including but not limited to the Transaction Link and Interactive Display, Coupon Printer ("Printer") and necessary cables and mounting equipment at Merchant location(s) at no additional cost to Merchant;

2. Provide SMS and Email messaging services to communicate with opted-in Merchant customers;

3. Assist Merchant in configuration of Transaction Link to Merchant's Internet connection;

4. Providing log-in credentials for Merchant and access to and use of the Spendgo website;

5. Providing Digital Receipts to Merchant (provided Merchant has purchased Spendgo product with such feature), and also to Merchant Customers (provided Merchant Customers activate their Consumer Account with Spendgo);

6. Advertise the Program to on our online site at www.spendgo.com or other sites we specify, on certain of our mobile properties, or through our affiliate network and advertising partners;

7. Provide advertising copy and artwork best practices to use when promoting your Spendgo Program;

8. Provide Design and Implementation services to create a Branded Experience subject to a written request by Merchant and quote provided by Spendgo;

9. Work with you to try and resolve any Merchant Customer ("User") complaints related to the Spendgo Program;

10. Provide you with incentives redemption tracking and summary for your Program;

3. MERCHANT OBLIGATIONS

In connection with the Spendgo Program, Merchant agrees to:

1. Work with Spendgo to design the Spendgo hosted Program, provide complete and accurate information when requested in connection with the Program and maintain the accuracy of all such information;

2. Authorize Spendgo to advertise the Program and make adjustments to the Program, advertising copy and artwork as deemed necessary or desirable to run your Program, which authority is hereby granted;

3. Honor all incentives earned by Users as part of your Program and provide Users with goods and/or services that are promised under each Program;

4. Immediately notify Spendgo of any suspected unauthorized use, fraud or suspect fraud, or other breach of security of the Spendgo Program;

5. Accept responsibility for any User complaints and customer service issues that may arise in connection with any User's redemption or attempted redemption of Incentives associated with your Program; unless complaints and customer service issues are due to the sole negligence of Spendgo's Services and/or Equipment;

6. During the term of this agreement to not participate in any restrictive promotional Program in locations installed with Spendgo. Restrictive promotional Programs include, but are not limited to, other rewards programs that disincentives' or encourage Users not to use your Spendgo Program;

7. During the thirty (30) day period prior to the launch of your Spendgo Program and during the first sixty (60) days after your Spendgo Program launches, Merchant will not participate in any 3rd party rewards/loyalty program that offers to the User the same or better terms than those available within your Spendgo Program at installed stores;

8. Provide access to Merchant's Point-of-Sale ("POS") administrative portal, contact information for POS support (if applicable) and a reliable High Speed Internet connection near the POS for installation of the Transaction Link;

9. Place the Interactive Display next to your existing POS (if applicable); and

10. Display Spendgo provided in-store marketing material.

4. PROGRAMS

When we advertise incentives or rewards associated with your Program, we do so as your agent. You, as principal, retain the legal obligation to redeem the Incentives for the goods and/or services promised to the Users under the Spendgo Program. Use of any Incentives for alcoholic beverages is at the sole discretion of the Merchant, and is subject to compliance with applicable law. You agree that in providing the goods and/or services that are the subject of the Program, you will not impose any restrictions on redemption, extra fees, charges or conditions that contradict the terms set forth in connection with the Spendgo Program. You understand and agree that we have the right to promote your Spendgo program, and you agree to honor all Incentives associated therewith. Except as provided herein, each Incentive associated with your Program will expire on the date on which the Incentive is set to expire as set forth thereon or herein (the "Incentive Expiration Date"). You will be solely responsible for ensuring that the Incentive Expiration Date and terms of your Spendgo Program comply with applicable law. You acknowledge and agree that in certain jurisdictions applicable law regulates the permitted expiry of any Incentive, and may require you to allow such redemption beyond their stated Incentive Expiration Date and/or to provide the User with a refund equal to the cash value of the Incentive if the User requests a refund after the Incentive Expiration Date, and you agree to do so to the extent so required.

5. LICENSE GRANT AND RESTRICTIONS

Spendgo grants Merchant a non-exclusive right to use the Services and hardware and software necessary to use the Services for the Term of the Agreement, provided Merchant (a) shall not (i) reverse engineer or access the Services to copy or build similar Services or a portion of the Services, (ii) send spam, unsolicited messages, viruses or other harmful code, scripts, files, agents or programs using the Services, (iii) interfere with or disrupt the integrity or performance of the Services, (iv) impersonate another Spendgo user or a Spendgo employee, (v) violate other applicable laws in connection with Merchant's use of the Services, or (vi) damage or destroy hardware, software or peripheral support items needed to provide the Services, and (b) makes payment on time per Section 6 of this Agreement, which non-payment shall be considered a material breach of the Agreement. Merchant confirms and agrees that all Equipment at Merchant location, as well as all software used by Spendgo in the performance of its Services, are the sole and exclusive property of Spendgo or its agents. Merchant shall solely have a right to use such Equipment during the term of this Agreement, but shall have no rights of ownership. Merchant shall be fully responsible and liable for any damage to such Equipment that may occur while such Equipment is in the possession of the Merchant, including bearing the costs of repairing or replacing any damaged Equipment ("Damage Reimbursement"), excluding normal wear and tear.

Merchant grants Spendgo, our affiliates and our advertising partners a non-exclusive worldwide license to use, copy, reproduce, modify, license, distribute and publish any of your trademarks, service marks, logos, photographs, text, images or other content ("Merchant Content") for publication as part of marketing or promotion of the Program pursuant to this Agreement. You also agree that we may publish your corporate name, artwork, text and logo on the Spendgo website and our online services, and on the websites and online services of our affiliates and advertising partners, to acknowledge you as a Spendgo customer. You represent and warrant to us that you have the right to provide the Merchant Content to us, and that the use, copying, modification and publication of the Merchant Content by us and by our affiliates and advertising partners: (a) will not infringe, violate or misappropriate any third party copyright, patent, trade secret or other proprietary rights, (b) will not infringe any rights of publicity or privacy, and (c) will not be defamatory or obscene or otherwise violate any law.

You agree to allow us and our agents the right to enter your property at which the Service(s) and/or Spendgo Equipment will be provided (the "Premises") at reasonable times, for purposes of installing, configuring, maintaining, inspecting, upgrading, replacing and removing the Service(s) and/or Spendgo Equipment used to receive any of the Service(s). You warrant that you are either the owner of the Premises or that you have the authority to give us access to the Premises. If you are not the owner of the Premises, you are responsible for obtaining any necessary approval from the owner to allow us and our agents into the Premises to perform the activities specified above. In addition, you agree to supply us or our agent, if we ask, the owner's name, address, and phone number and/or evidence that the owner has authorized you to grant access to us and our agents to the Premises.

6. FEES AND PAYMENTS

Unless subject to pre-pay or promotional arrangement in the Order Form, you will generally be billed Quarterly, in advance, for recurring service charges and Fees, except, other than for pre-pay or promotional arrangement, first 90 days services plus all 1-time fees are due immediately upon contract signing, in which case, the following 2nd Quarter and final QuarterÕs Fees will be prorated. Fees may include, but are not limited to Damage Reimbursement, Franchise Rewards Cost-Reallocations, Promotional Material Printing, Early Termination and Installation charges (if applicable). If you receive Service(s) under a promotion, after the promotional period ends, regular charges for the Service(s) will apply.

Any payment not received at contract signing for pre-pay, promotional arrangement, or first 30 days service plus all 1-time fees, or any other payment not received within thirty (30) days of invoicing, within thirty (30) days of termination of this Agreement for month to month payment arrangements per Section 7 below, or within thirty (30) days of Early Termination Notice, per Section 7 below (if applicable), is considered late, and shall bear interest until paid at a rate of 1% per month (prorated daily based upon a 30-day month). Non-payment of any invoice shall be considered a material breach of the Agreement. Non-payment of any monies due if this Agreement is terminated per Section 7 below, including any Early Termination Fees (if applicable), shall result in non-termination of the Agreement, and the Agreement shall then remain in full force and effect, per Section 7 below, until the payment of any monies owed, including additional Monthly Service Fees for this extended time, and any other outstanding charges, including but not limited to past due amounts for Monthly Service Fees, Damage Reimbursement and/or Early Termination Fees, are received.

We do not waive our rights to collect the full balance owed to us by accepting partial payment. We will apply the partial payment to the outstanding charges in the amounts and proportions that we determine. All pricing terms are confidential.

7. TERMINATION AND AMENDMENTS

Either party may terminate this Agreement if the other party materially breaches this Agreement, and such breach is not cured within thirty (30) days of written notice outlining such alleged breach. We will have the right to terminate any Program at any time for any reason in our discretion (including without limitation, if we believe that the Program is related to any unlawful activity or is not consistent with our reputation or brand identity). We will also have the continuing right, but not the obligation, to reject, revise, or discontinue publishing any Program Incentive and to require you to edit or modify the same for any reason, including, without limitation, to conform your Program to our specifications and applicable law. If your Program is cancelled for any reason, we will cease the advertising of your Program as soon as practicable after we have approved of such cancellation. At any time during a Trial Period, pursuant to the Order From, Merchant may terminate Services without cause upon written notice, with no financial obligation or penalty.

After the Commencement Date, Merchant may terminate Services without cause upon thirty (30) days written notice, however, if Merchant is subject to a minimum term arrangement through a promotional arrangement in the Order Form, Merchant is subject to an Early Termination fee equal to fifty percent (50%) of the remaining term fees and shall be due within thirty (30) days of Merchant submission of the Early Termination Notice .If Merchant has pre-paid for services, no monies are due to Company and no monies will be returned to Merchant.

Unless and until Spendgo receives any monies owes upon termination of this Agreement as described in Section 6 of this Agreement, then the Agreement shall remain in full force and effect, including but not limited to, continuation of Monthly Service Fees accrued and owed to Spendgo. The Early Termination Fee applies only to the initial term of any new Order Form and not to any Renewal Term. Sections 4-16 hereof, and all accrued rights and remedies hereunder, shall survive any termination of this Agreement. We may modify this Agreement from time to time, and such modification shall be effective upon the earlier of (a) thirty (30) days after we have sent a notice, per section 8, of such modifications and (b) the date after such notice that you submit a proposal for a new Spendgo Program. In the event that such modification is unacceptable to you, you may cancel Services upon thirty (30) days written notice to us; all monies are due per Section 6, except the Early Termination Fee (if applicable) is therein waived.

8. NOTICES

All notices shall be delivered to the person and Address of Record specified in the Spendgo Merchant Order Form by any of the following methods: (i) in person, (ii) U.S. Postal Service by certified mail, (iii) via recognized overnight carrier, or (iv) via email.

9. ENTIRE AGREEMENT

The Agreement, including the Order Form constitutes the entire agreement between the parties pertaining to providing and using of the Services, and supersedes all prior agreements, negotiations and discussions, whether oral or written. No amendment shall be binding unless agreed to and signed in writing by duly authorized representatives. Any provision of this Agreement that is held to be illegal or unenforceable shall not invalidate any remaining provisions, sections, or rights and obligations of the parties under this Agreement. The parties hereby agree to and execute this Agreement as of the day and year of signing the Order Form.

If Merchant is entering into this Agreement and Terms on behalf of a company or other legal entity, Merchant represents that it has the authority to bind such entity to these terms and conditions, in which case the terms "you" or "your" or "Merchant" shall refer to such entity. If you do not have such authority, or if you do not agree with these terms and conditions, do not sign this Agreement, and have someone with such authority do so.

10. INDEMNIFICATION

You agree to indemnify and hold harmless Company, its affiliated and related entities, and any of their officers, directors, employees and agents ("Company Indemnitees") against any claims, actions, suits, investigations, liabilities, losses, damages, costs and expenses, including but not limited to attorneys' fees and costs ("Damages"), arising out of, relating to, or incurred in connection with, any of the following: (a) any breach or alleged breach of your representations, warranties or covenants set forth herein; (b) any claim for state sales or use tax obligations arising from the sale of and subsequent redemption of an Incentive associated with your Program, or any claim by any local, state or federal governmental entity for unredeemed Incentives or unredeemed cash values of Incentives or any other amounts under any applicable abandoned or unclaimed property or escheat law, including but not limited to any claims for penalties and interest ("Abandoned Property Claims"), as well as all attorney's fees, related to any action against, or determinations against, Company related to any action to pursue Company for any such taxes or Abandoned Property Claims; (c) any claim concerning your failure, or alleged failure, to redeem an Incentive; (d) any claim arising out of or relating to the products or services provided by you, including but not limited to, any claims for false advertising, product defects, personal injury, death, or property damages; or (e) any failure of your Program to comply with law, except in the case of this subsection (e) to the extent such Damages are caused by the gross negligence or willful misconduct of any Company Indemnitee.

11. REPRESEANTATION AND WARRANTIES

You represent and warrant that (a) you have the right, power and authority to enter into this Agreement, (b) you are registered for sales and use tax collection purposes in all jurisdictions in which your goods and services will be provided pursuant to the Program and presentation of associated Incentives, (c) each Incentive shall be immediately available for redemption by the User, (d) the terms and conditions of the Program, including any discounts or goods and services offered thereunder, comply with all, and do not violate any, local, state, federal or international law, statute, rule, regulation or order, including without limitation those governing rewards, incentives, gift cards, coupons and/or gift certificates, and (e) any advertising or promotion of your products or services relating to the Program will not constitute, and you will not engage in any, false, deceptive or unfair trade practices.

12. MERCHANT PRIVACY POLICY

Spendgo reserves the right to share transaction data, in aggregate, with third parties to aid in statistical analysis, Program structuring and tracking, or feature development. Spendgo will not share Item or SKU specific sales data with any third party for any reason which is not necessary to provide Merchant with its Program services. Where such Item or SKU specific sales data is shared with a third party, Spendgo shall take all reasonable steps necessary to ensure that such third party keeps such information confidential.

You understand and agree that Spendgo reserves the right to share User information in accordance with the Spendgo general Privacy Policy ("Privacy Policy"), which can be found here: https://www.spendgo.com/privacyPolicy.

13. STANDARD OF SERVICE; NO WARRANTY

We will make reasonable efforts to provide the Spendgo Program to you in compliance with the description in this Agreement. OTHER THAN AS EXPLICITLY SET FORTH HEREIN, WE MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO YOUR SPENDGO PROGRAM OR THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WE DO NOT WARRANT OR GURANTEE THAT YOU WILL ACHIEVE ANY LEVEL OF SALES, REVENUE OR PROFIT. WE DO NOT WARRANT OR GUARANTEE THAT THE SPENDGO WEBSITES OR SERVICES WILL ALWAYS BE AVAILABLE OR OPERATE ERROR-FREE, THAT THE INCENTIVES WILL BE ERROR-FREE, OR THAT ANY ERRORS, OMMISSIONS OR MISPLACEMENTS IN THE PROGRAM WILL BE CORRECTED. No statement, either orally or in writing, made by any of our officers, employees or agents will vary this paragraph.

14. DISCLAIMER OF WARRANTIES

OTHER THAN AS EXPLICITLY SET FORTH HEREIN, WE MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO YOUR SPENDGO PROGRAM OR THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WE DO NOT WARRANT OR GURANTEE THAT YOU WILL ACHIEVE ANY LEVEL OF SALES, REVENUE OR PROFIT. WE DO NOT WARRANT OR GUARANTEE THAT THE SPENDGO WEBSITES OR SERVICES WILL ALWAYS BE AVAILABLE OR OPERATE ERROR-FREE, THAT THE INCENTIVES WILL BE ERROR-FREE, OR THAT ANY ERRORS, OMMISSIONS OR MISPLACEMENTS IN THE PROGRAM WILL BE CORRECTED. No statement, either orally or in writing, made by any of our officers, employees or agents will vary this paragraph.

15. LIMITATION OF LIABILITY

IN NO EVENT WILL WE BE LIABLE OR OBLIGATED TO YOU OR ANY THIRD PARTY IN ANY MANNER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES ON ACCOUNT OF LOST PROFITS, LOST REVENUES OR FAILURE TO REALIZE ANTICIPATED BUSINESS BENEFITS, ARISING IN CONNECTION WITH THIS AGREEMENT OR ANY SPENDGO PROGRAM, REGARDLESS OF THE FORM OF ACTION, WHETHER OCCURRING IN CONTRACT, TORT, NEGLIGENCE, STRICT PRODUCT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT WE KNEW THAT SUCH DAMAGES MAY HAVE BEEN INCURRED. IN NO EVENT WILL OUR LIABILITY FOR ANY DAMAGES ARISING IN CONNECTION WITH THIS AGREEMENT OR ANY SPENDGO PROGRAM EXCEED THE AMOUNT OF COMMISSIONS PAID TO AND RETAINED BY US IN CONNECTION WITH THE SPENDGO PROGRAM RELATED TO THE DAMAGES. THIS LIMITATION OF LIABILITY SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF ANY LIMITED REMEDY.

16. GOVERNING LAW

The Agreement shall be governed in all respects by and construed under the laws of the United States of America and the State of California, without reference to choice or conflict of law principles and provisions. The parties hereby submit to the exclusive jurisdiction of and waive any venue objections against the United States District Court for the Northern District of California, San Francisco, and the Superior Court of the State of California, County of San Francisco, in any litigation arising out of the Agreement.
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