The purpose of this Agreement is to set forth the terms and conditions under which, among other things, (i) TBP will license to You use of certain of TBP’s technology, software and/or services such that You can utilize the Application through your mobile device, and (ii) You can access and/or use the Website (collectively, the “Purpose”). As stipulated elsewhere in this Agreement, TBP does not exert any control over any merchants, retailers, commercial ventures or other third parties, and as such is not liable or responsible for any actions taken or omitted to be taken by any such third party.
TBP hereby grants You a non-transferable, non-exclusive, revocable, limited license to access and use TBP’s promotional software platform commonly referred to as “Consumer Biz Pro” (the “Application”) as made available through its website located at (the “Website”) and/or via mobile application during the Term (as defined below) solely for the Purpose. TBP may, from time to time, update or modify the Application, release new versions of the Application or create new modules related thereto, each of which may, at TBP’s discretion, be included within the license described above. You shall not be permitted to sublicense or transfer any of Your rights hereunder including, without limitation, access to the Application.
You shall not directly or indirectly copy or reproduce all or any part of the Application or the Website, whether electronically, mechanically or otherwise, in any form including, but not limited to, the copying of presentation, style or organization. You shall use the Application solely for its intended purposes and shall not use the Application for the benefit of any third party except as specifically contemplated under this Agreement. You shall not use the Application to post, transmit, convey, submit, distribute, store or destroy any content, photographs, descriptions, drawings, content, audio materials, text, messages or other information (collectively, “Posted Information”): (a) in violation of any applicable law, statute, ordinance or regulation; (b) in a manner that will infringe the intellectual property rights of others; (c) that is defamatory, obscene or trade libelous; (d) that contains any viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (e) that is false, misleading or inaccurate in any way; or (f) in violation of the any acceptable use policy or other policy posted at the Website or within the Application from time to time. You shall not violate or attempt to violate the security of the Application. You shall not reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from the Application, including, without limitation, any of the software comprising or in any way making up a part of the Application. In addition, You will not export, re-export or permit any third party to export or re-export, directly or indirectly, the Application where such export or re-export is prohibited by applicable law without appropriate licenses and clearances. You shall defend and indemnify TBP, at Your sole cost and expense, from and against any claims, damages, liabilities and/or expenses arising out of Your breach of any of Your obligations or representations set forth in this Section 3.
You shall be solely responsible for: (i) all Posted Information you input into the Application; (ii) ensuring that all Posted Information is appropriate in tone and is accurate; (iii) complying with all applicable laws, rules and regulations at all times; and (iv) maintaining all passwords and access codes to the Application, and refraining from sharing or otherwise permitting third parties to use any such passwords and/or access codes to access the Application.
TBP shall be entitled, at its sole discretion, to suspend, restrict and/or terminate, without notice of any kind, Your access to the Application or Your TBP account for any reason. Notwithstanding the foregoing, TBP shall not be required to review or monitor any Posted Information entered into the Application or otherwise submitted by You, and You shall be solely responsible for the veracity and accuracy of all such data, content and information.
TBP currently charges its users a $149 - 169 Monthly Subscription or a $1,548 - $1,788 Annual Subscription to access and use the Application, however TBP may, at any point and in its discretion, elect to begin charging additional fees for use of various portions of the Application and/or for different levels of subscription or account.
Term and Termination.
This Agreement shall continue in full force until the earlier to occur of (i) either party providing written or electronic notice of termination to the other party (at which point You shall no longer be entitled to access or use the Application), or (ii) TBP electing to terminate Your access to the Application, with or without notice (the “Term”). For purposes of clarity, You are entitled to terminate your TBP account at any time. Upon termination of this Agreement for any reason, You shall no longer be entitled to access or use the Application or any other non-public portions of the Website. In addition to the foregoing, in the event that TBP determines, in its sole and absolute discretion, that You have breached this Agreement, threatened to breach this Agreement, committed any fraud or deception, breached any TBP policy in effect from time to time or otherwise failed to perform to the standards required of TBP, TBP shall be entitled, at its discretion and in addition to any other remedies it may have hereunder and/or at law, to terminate, cancel or suspend Your access to the Application, in each of the foregoing cases at any time and for any period of time. TBP shall not be responsible for the return of any Posted Information of any kind to You upon any termination of this Agreement or suspension of Your access to the Application, including without limitation any information input into the Application by You. Sections 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15 of this Agreement shall survive any termination of this Agreement.
(a) General Ownership.
All trademarks, patents, copyrights and other intellectual property rights owned by either party on the date hereof shall continue to be owned solely by such party, and except as set forth herein, nothing in this Agreement shall be deemed to confer any rights to any such intellectual property on the other party. For purposes of clarity: (i) as between You and TBP, You shall be deemed to be the sole owner of all Posted Information entered into the Application or otherwise posted by You; and (ii) TBP is the sole owner of the name “TBP” as well as the Website, the Application, and all source code, object code, software, content, copyrights, trademarks, patents and other intellectual property related thereto or included therein. All suggestions, recommendations, bug-fixes, error-fixes or other communications from You to TBP regarding the Application or the Website shall, upon submission to TBP, be owned solely and exclusively by TBP. In addition, TBP shall be entitled to post feedback at the Website and within the Application (and/or allows others to do so), both positive and negative, regarding any user. You acknowledge and agree that the applicable supplier(s) of any third-party software included within the Application shall own all worldwide rights, title and interest in and to such third party software (and any intellectual property rights therein), subject to such suppliers’ license, if any, of such third party software to TBP.
(b) Use of Posted Information.
In exchange for Your use of the Website and/or the Application, You hereby grant to TBP an unlimited, perpetual, irrevocable, fully-paid, transferable, assignable, sub-licensable, worldwide license to use, reproduce, modify, publish, edit, translate, distribute, commercially exploit, repurpose, perform and display any and all Posted Information You post to the Website, submit to TBP or post through the Application, alone or as part of other works in any form, media or technology whether now known or hereafter developed, and to sublicense such rights through multiple tiers of sublicensees, in connection with TBP performing the services described herein. Finally, You irrevocably waive, and cause to be waived, against TBP and its users any claims and assertions of moral rights or attribution with respect to Your Posted Information. TBP shall be entitled to display advertising and/or any other content at locations of its choosing within the Website and/or Application, including without limitation adjacent to Your Posted Information.
You agree to treat as confidential all confidential information of TBP, not to use such confidential information for any purpose other than to the limited extent necessary to use the Application and not to disclose such confidential information to any third party except as may be reasonably required pursuant to this Agreement and subject to confidentiality obligations at least as protective as those set forth herein. Without limiting the generality of the foregoing, You shall use at least the same degree of care which You use to prevent the disclosure of Your own confidential information of like importance to prevent the disclosure of confidential information disclosed by True Biz, provided, however, that in no event shall such degree of care be less than reasonable in light of general industry practice. In addition, during the Term and for a period of one year thereafter, You shall refrain from directly or indirectly soliciting, enticing, persuading or inducing any individual who is then, or has been within the 1-year period prior to the applicable date, an employee of TBP to terminate employment with TBP or to become employed by or enter into contractual relations with any other individual or entity.
(a) No Warranties.
Except as explicitly set forth herein, neither TBP, its affiliates or any of any such party’s equity holders, directors, officers, employees, agents, suppliers, licensors nor the like, makes any warranties of any kind, either expressed or implied, including, without limitation, (a) warranties of merchantability or fitness for a particular purpose, (b) that the Website or the Application will be error-free, (c) as to a minimum level of uptime for the Application or the Website, or (d) as to the results that may be obtained by You by entering into this Agreement and/or using the Application. You agree and acknowledge that the Application and Website are licensed and/or provided hereunder on an “as is” basis. In addition, You hereby agree and acknowledge that: (i) TBP shall not be responsible for any actions taken by any other party using the Application or reviewing any of Your Posted Information; (ii) TBP does not recommend or endorse any third parties hereunder, and makes no representations or warranties whatsoever regarding any such third party; (iii) TBP is not a party to any transaction between you and any store, retailer or business with which TBP has a business relationship, and as such, any disputes regarding purchases, rewards and/or any other aspect of any transaction or other commercial dealings is solely between You and such third party; (iv) TBP is not responsible for any other party’s compliance with applicable laws, rules or regulations; (v) TBP services are administrative in nature and TBP is not responsible for ensuring that any third party honor any reward, loyalty or other obligations such third-party may have towards You; (vi) TBP shall not, under any set of circumstances, be responsible or liable for an content, text, photographs and/or other Posted Information, including any Posted Information which may violate applicable law and/or a third party’s intellectual property rights; and (vii) the Application and/or Website may not function properly or as intended at times.
(b) Unavailability of Website or Application.
You are responsible, at your sole cost and expense, for providing all equipment necessary to access the Internet, the Website and/or the Application. While it is TBP’s objective to make the Website and Application accessible at all times, the Website and/or Application may be unavailable from time to time for any reason including, without limitation, routine maintenance. In addition, various portions of the Website or Application may operate slowly from time to time. You understand and acknowledge that due to circumstances both within and outside of the control of TBP, access to the Website and/or the Application may be interrupted, suspended or terminated from time to time. In particular, and not in limitation of the foregoing, TBP shall not be liable in any way for any delay in responding to an inquiry or question forwarded by You or the effects any delay or unavailability may have on You. YOU AGREE THAT TBP SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM ANY SUCH INTERRUPTION, SUSPENSION OR TERMINATION OF THE WEBSITE AND/OR APPLICATION AND THAT YOU SHALL PUT IN PLACE CONTINGENCY PLANS TO ACCOUNT FOR SUCH PERIODIC INTERRUPTIONS OR SUSPENSIONS OF THE WEBSITE AND/OR APPLICATION.
Limitation on Liability.
TBP SHALL NOT, UNDER ANY SET OF CIRCUMSTANCES, BE LIABLE TO YOU FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR DATA, ARISING OUT OF THIS AGREEMENT OR YOUR USE OF THE APPLICATION OR WEBSITE, WHETHER BASED IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, TBP TOTAL LIABILITY TO YOU FOR ANY CLAIM ARISING HEREUNDER OR RELATED HERETO SHALL NOT EXCEED $50.
TBP shall not be liable to You for failure or delay in performing any obligations hereunder if such failure or delay is due to circumstances beyond its reasonable control.
The following terms and conditions govern general use of the Website:
(a) You agree to abide by all restrictions displayed on the Website and/or within the Application, as and when they are updated from time to time, including, without limitation, the rules in this Section 13. TBP reserves the right to remove any content You post to the Website or within the Application, block the sending of any inquiry or other content TBP deems inappropriate in its sole discretion, and may terminate all access to the Website and/or Application at any time in its sole discretion for any or no reason. While TBP reserves the right to monitor all postings and/or content posted at the Website and/or within the Application, it has no obligation to do so.
Permitted Uses. You may use the Website only in good faith for the purposes described herein. You may download and print out portions of the content from the Website for non-commercial purposes provided that You follow the rules in this Agreement. You may not use the Website or Application, or any business listings, contact information or other content, to promote another business or commercial venture.
Distribution. Except as expressly permitted under other provisions of this Agreement, You may not modify, reproduce, duplicate, copy, photocopy, print, republish, display, translate, transmit, distribute, sell, resell, rent, lease, loan, exploit, reduce to any electronic medium or machine-readable form, or otherwise make available in any form or by any means all or any portion of the Website, the content or any information or materials retrieved from either of them, including, without limitation, graphics and logos, in whole or in part, for any purpose.
Derivative Works. You may not create compilations or derivative works of the Website or the Application, the Website or Application content or any other materials from the Website or Application.
Infringement. You may not use the Website, Application, the Website and/or Application content or any other materials from the Website or Application in any manner that may infringe upon any copyright or other intellectual property rights, proprietary right, or property right of TBP or any third party.
Information Distribution. You may not use the Website and/or Application or any communications service, chat room, message board, blog, forum, newsgroup, or other interactive service that may be available to You on or through the Website or Application to transmit, upload, post, distribute or facilitate distribution of, or otherwise make available any information or content, including text, communications, software, images, sounds, data or other information, that:
· is false;
· contains explicit or graphic descriptions or accounts of sexual acts, including, without limitation, sexual language of a violent or threatening nature directed at another individual or group of individuals;
· includes any inside information and/or proprietary or confidential information learned or disclosed under nondisclosure agreements;
· You are restricted from using under any law;
· infringes upon the intellectual property rights of any third party;
· or contains software viruses or any other computer code, files or programs that are designed or intended to disrupt, damage, or limit the functions of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any data or other information of any other party.
Other Prohibited Uses. You may not use the Website or Application for any purpose that:
· is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, or otherwise violates TBP’s rules or policies;
· victimizes, harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, disability, or any other classification protected by law;
· invades any person’s or entity’s privacy or other rights;
· constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (also known as “spamming”), chain letters, any other form of unauthorized solicitation, or any form of lottery or gambling;
· misidentifies You or impersonates any person or entity, including, without limitation, any employee or representative of TBP, or falsely states, implies, or otherwise misrepresents Your affiliation with a person or entity by, for example, pretending to be someone other than You or pretending to represent a company or organization that You are not affiliated with or authorized to represent; or
· could otherwise reasonably be deemed or viewed to be unethical, illegal or offensive.
Others’ Personal Information. You may not knowingly solicit or collect personal information from a child 12 years old or younger without appropriate prior verifiable parental consent.
Harm to Minors. You may not take any action on the Website or within the Application or use the Website and/or Application content to harm minors in any way.
Solicitation. You may not use the Website or Application or any Website or Application content in a manner that violates any state or federal law regulating commercial e-mail, facsimile transmissions or telephone solicitations.
(b) The Website, the Application and the Website and Application content may contain and/or provide access to content provided by third parties, including, without limitation, information, dialogue, opinions, stories, advice, statistical data, text, software, music, sound, photographs, graphics, video, messages, and other materials, whether publicly or privately posted to or e-mailed or otherwise transmitted through the Website or Application (“Third-Party Content”) that may include content You find to be offensive, indecent or objectionable. The third-party from whom or which any such Third-Party Content originates is solely responsible for it and TBP assumes no responsibility to verify, has no control or influence over, makes no representations regarding, and does not guarantee the accuracy, integrity or quality of any Third-Party Content. Accordingly, TBP has no liability of any kind to You or any other person relating to any Third Party Content, including, without limitation, mistake, misstatement of law, omission, falsehood, defamation, obscenity, pornography, profanity, opinion, representation and any other content contained in the Third Party Content or for any loss or damage of any kind incurred as a result of the use of any Third Party Content. Statements of opinion and commentary in Third Party Content are those of the third party and, unless TBP expressly states in writing to the contrary, TBP neither endorses nor adopts as its belief any such statements. TBP may provide information in articles TBP posts or links to through the Website only for educational and general informational purposes and not as professional advice. TBP has made no attempt to verify any information contained in any such articles.
(c) As a convenience to You and other Website visitors, the Website may contain links to websites that are owned and operated by third parties that are not affiliated with TBP. When You use these links, You will leave the Website and TBP will have no ability to protect Your interests. You visit linked websites at Your own risk and it is Your responsibility to take any protective measures to guard against viruses and other destructive elements. TBP is not responsible for and, unless it expressly states otherwise in writing, makes no warranty or representation regarding and does not endorse any linked website or any service, product or information provided on or through the linked website.
If You believe that Your intellectual property or work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, please provide TBP’s Agent for Notice with the following information in English (Your “Notice”):
· an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
· a description of the copyrighted work or other intellectual property that You claim has been infringed;
· a description of where the material that You claim is infringing is located on the Website or within the Application;
· Your address, telephone number, and email address;
· a statement by You that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law;
· a statement by You, made under penalty of perjury, that the above information in Your Notice is accurate and that You are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
In some circumstances, in order to notify the individual or entity who or which provided the allegedly infringing content to which TBP has disabled access, TBP may forward a copy of a valid Notice including name and email address to such individual or entity. TBP’s Agent for Notice of claims of copyright or other intellectual property infringement can be reached as follows:
c/o True Biz Pulse, LLC.
33962 Blue Lantern St.
Dana Point, CA 92629
Each party shall pay its own costs and expenses in connection with this Agreement and its activities hereunder. The rights and obligations of the parties under this Agreement shall be governed by the laws of the State of California, without reference to conflict of law principles, and all disputes arising hereunder or in connection with this Agreement, the Website and/or the Application shall be resolved in the appropriate Federal or state court located solely and exclusively in Orange County, California. You hereby consent to exclusive jurisdiction in Orange County, California, and agree not to raise any defense of forum non conveniens or any similar defense. The relationship between the parties under this Agreement is that of independent contractors and neither shall be, nor represent itself to be, the joint venture, franchiser, franchisee, partner, agent or representative of the other party for any purpose whatsoever. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns, but shall not be assignable by You without TBP’s prior written consent. If any provision of this Agreement is held to be unenforceable or invalid for any reason, or if any governmental agency rules that any portion of this Agreement is illegal or contrary to public policy, the remaining provisions, to the extent feasible, will continue in full force and effect with such unenforceable or invalid provision to be changed and interpreted to best accomplish its original intent and objectives.
During the length of the Merchant Agreement, TBP will provide the TBP services and/or programs (collectively, “TBP Programs”) described in the Merchant Agreement separately executed by you, together with all exhibits attached thereto (the “Merchant Agreement”). In the event of any inconsistency among terms and conditions of the Merchant Agreement and these Terms and Conditions (collectively, sometimes referred to herein as the “Agreement”), the order of control shall be: (i) these Terms and Conditions, (ii) the Merchant Agreement, and (iii) any other exhibits, addenda or attachments to these Terms and Conditions including any links contained in the Merchant Agreement or these Terms and Conditions, which are incorporated by reference herein. Any capitalized terms that are not defined in these Terms and Conditions have the meanings ascribed to them in the Merchant Agreement. For purposes of clarity, these Terms and Conditions are incorporated by reference into the Merchant Agreement executed by you, and, together with the Merchant Agreement and all attachments thereto, govern your use of all TBP Programs and services.
Intellectual Property Rights.
(i) TBP is the sole and exclusive owner of all right, title and interest in and to any data provided to TBP by your customers or any end-user to TBP in connection with the TBP Programs, including without limitation all e-mail and/or other contact information (“Customer Data”). As such, you shall not, unless the applicable customer has separately taken all steps necessary to opt-in to provide contact information to you, be provided with or otherwise have access to the Customer Data.
(ii) TBP owns all right, title and interest in and to the TBP Programs (which include, for purposes of clarity, all software and/or mobile applications related thereto) including, without limitation, any intellectual property rights and any improvements, modifications, enhancements or refinements thereto. Except as set forth in the Agreement, all rights not expressly granted to you are reserved. You agree not to decipher, decompile, disassemble, reconstruct, translate, reverse engineer, or discover any of the TBP Programs, intellectual property or ideas, algorithms, file formats, programming, or interoperability interfaces underlying or such intellectual property.
(iii) Without limiting any of TBP’s rights set forth in the Agreement, TBP reserves the right, in its sole discretion but without any obligation on its part, to reject, remove, delete and/or cancel any information or content displayed or posted on any tablet, the TBP website, any portion of the TBP Program, and/or within any print materials, including without limitation any information and/or content that, in TBP’s view, contains content or links which do not meet TBP’s specifications or requirements. In addition, TBP shall be entitled, in its sole discretion and without notice to any party, to redesign and/or modify all or any portion of the TBP Program (including without limitation any mobile application and/or software) at any time.
You: (i) will use the TBP Programs solely for your internal business purposes; and (ii) will not, for yourself, any of your affiliates or any third party (a) sell, rent, lease, license or sublicense, assign, distribute, or transfer the TBP Programs, (b) modify, change, alter, create derivative works of, decipher, decompile, disassemble, reconstruct, translate, reverse engineer, or discover any source code of the underlying ideas, algorithms, file formats, programming, or interoperability interfaces of the TBP Programs, (c) copy any tangible versions of the TBP Programs, or (d) remove from any of the TBP Programs any language or designation indicating the confidential nature thereof or the proprietary rights of TBP. In addition, you will not export, re-export or permit any third party to export or re-export, directly or indirectly, the TBP Programs where such export or re-export is prohibited by applicable law without appropriate licenses and clearances. TBP retains the right, in its sole discretion but without any obligation on the part of TBP to monitor or evaluate any communications, to approve, modify or refuse any TBP-related communications or proposed communications or messages to your customers or any True
Biz end users.
Fees; Pricing and Payment Terms; Taxes.
(i) TBP’s current fees for the TBP Programs and its services are set are $149 monthly plus a $350 setup and activation fee. TBP reserves the right to amend the fees payable for the TBP Programs at any time upon thirty (30) days’ prior notice to you; provided, however, that such amendment to the fees will not be applicable until the beginning of the next Payment or Subscription Period.
(ii) When you provide your payment information to TBP, you are providing TBP with an authorization to process any and all payments as outlined in this Agreement. In certain instances, the payment processing may not occur immediately, and your payment may show as “pending” during this time period. In addition, TBP may request an authorization for the amount of your anticipated transaction in advance and may estimate the final value of the transaction, which may be more than the amount of the actual transaction. TBP will release any funds authorized in excess of the amount of the actual transaction at the time the transaction settles.
(iii) You will be responsible for any sales, use, value-added or import taxes, customs duties or similar taxes assessed in accordance with applicable law with respect to the provision of the TBP Programs.
(iv) Notwithstanding anything herein to the contrary, TBP, in its sole discretion, may suspend or terminate the Agreement and corresponding access and right to use all or any portion of the TBP Programs, at any time, upon electronic or other notice to you, if you have not paid all amounts due on or before the payment due date, or for any other breaches of the Merchant Agreement, these Terms and Conditions, or any other exhibits, addenda or attachments to these Terms and Conditions including any links contained in the Merchant Agreement or these Terms and Conditions, which are incorporated by reference herein. You are responsible for amounts that remain outstanding as of the date of such termination including early cancellation fees. You agree to pay reasonable attorneys’ fees and court costs incurred by TBP to collect any unpaid amounts owed by you.
(v) TBP will repair or replace damaged tablets due to normal wear and tear or any hardware/software malfunction at no cost to any merchant in good standing. A merchant in good standing is primarily defined as having no outstanding balance due to TBP, but may be defined by other criteria as specified by TBP.
Term; Termination; Survival.
The TBP solution term, as further described below, is effective upon the earlier of the arrival date or estimated arrival date of the solution as stated within the Merchant Agreement. All other subsequent changes or modifications to the merchant agreement are effective upon the completion of the merchant purchase order. You may amend your contract to include additional TBP features through your TBP Web App. When you make changes through your TBP Web App, you are providing explicit authorization for TBP to process payment on your existing TBP account and method of payment without any further authorization necessary from you.
The Agreement will remain in full force specified in the Merchant Agreement. At the end of any Annual Subscription Plan, unless you select a new Subscription Plan, your Subscription Plan will automatically renew on a month–to–month Subscription Plan at the then-current rates. Effective January 1, 2018, new agreements and/or subscriptions may automatically renew for successive 1-year terms upon expiration of the initial term of any Subscription Plan at the then-current standard rates until such time as either party provides written notice of termination to the other party, in accordance with terms below. Current fees will be charged to the payment method on file unless TBP is otherwise notified of a cancellation in writing. Although TBP may choose to send a reminder email prior to charging a customer for a renewal fee, TBP is not responsible for notifying a customer of this automated renewal.
A merchant may cancel its subscription, thereby terminating this Agreement, solely in accordance with the following cancellation policies:
Renewal – At the end of any annual or monthly Subscription Plan, unless you select a new Subscription Plan, your Subscription Plan will automatically be renewed on an annual or monthly (as applicable) basis at the then-current standard rates. Current fees will be charged to the credit card or ACH on file unless TBP is otherwise notified of a cancellation in writing. Customers renewed on a monthly basis must provide written cancellation notice at least sixty (30) days prior to the beginning of the next monthly term (as applicable). Customers renewed on an annual basis must provide written cancellation notice sixty (60) days prior to or within the first thirty (30) days of their renewal period. Although TBP may choose to send a reminder email prior to charging a customer for a renewal fee, TBP is not responsible for notifying a customer of this automated renewal.
Subscription Cancellation within the Contract Term – Customers enrolled in Monthly subscription plans shall provide at least thirty (30) days’ written cancellation notice. Customers enrolled in Annual subscription plans shall provide at least sixty (60) days’ written cancellation notice. If, prior to the subsequent Subscription Period, you desire to terminate the Annual Subscription Plan, You agree to pay an early cancellation fee of $350 via the credit card or ACH on file with TBP. You will not be entitled to any refund of any pre-paid or prior subscription payments.
Other Events – Each party shall have the right to terminate the Agreement upon written notice to the other party: (i) upon the institution of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of debts of the other party that is not otherwise dismissed within sixty (60) days of such institution; (ii) upon the making of an assignment for the benefit of creditors by the other party; or (iii) upon the dissolution of the other party. Notwithstanding the foregoing, TBP may terminate the Agreement and/or your access to one or all TBP Programs in the event you fail to remain current in all fees due and owing to TBP or in the event you breach any of your obligations under the Agreement.
In the event of any termination of the Agreement or any TBP Program, TBP shall be entitled to send e-mail and/or other communications to some or all of your program members, notifying each such member of your termination of the TBP Program. In addition to the foregoing permissible e-mail, TBP shall be entitled to take other actions, at its discretion, to assist your program members in protecting the points or rewards earned within the TBP Program and providing them an opportunity to redeem points or rewards earned.
In addition, You may be required to fill out an exit survey in order to complete any cancellation request. TBP may refuse to cancel Your service until the exit survey is completed. Any provision of the Agreement which contemplates performance or observance subsequent to any termination or expiration of the Agreement shall survive any termination or expiration of the Agreement and continue in full force and effect.
Representations and Warranties; Disclaimer.
(i) TBP warrants that TBP has the authority to enter into this Agreement.
(ii) You represent, warrant and covenant to TBP that: (a) you have the authority to enter into this Agreement; (b) you will take proper care of the TBP Kit and/or all equipment provided by TBP to you and maintain all such equipment in good working order; (c) you will only use the TBP Programs for lawful purposes and will not violate any law of any country or the intellectual property rights of any third party; and (d) you will not use any TBP Program to send any e-mail or other communications which violate any applicable regulation, rule, industry protocol or law (including, without limitation, the CAN-SPAM Act).
(iii) EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 6, TBP EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF QUALITY, ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN ADDITION, TBP DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AS TO ANY MINIMUM LEVEL OF UPTIME FOR THE TBP PROGRAM OR THE RESULTS THAT YOU MAY ACHIEVE ON ACCOUNT USING ANY TBP PROGRAM OR SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU EXPRESSLY AGREE THAT THE USE OF TBP PROGRAMS OR SERVICES AND THE INTERNET IS AT YOUR SOLE RISK. TBP PROGRAMS AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND UNDER NO CIRCUMSTANCES SHALL TBP BE LIABLE TO YOU OR ANY OTHER PARTY ON ACCOUNT OF ANY DOWNTIME WITHIN ANY TBP PLATFORM OR APPLICATION. YOU HEREBY ACKNOWLEDGE THAT YOU ARE SOLELY RESPONSIBLE FOR OBTAINING AND/OR PROVIDING INTERNET SERVICE TO ALL LOCATIONS IN WHICH THE TBP PROGRAMS ARE TO OPERATE.
Any information that a receiving party knows or has reason to know (either because such information is marked or otherwise identified by the disclosing party orally or in writing as confidential or proprietary, has commercial value, or because it is not generally known in the relevant trade or industry) is “Confidential Information” of the disclosing party and will remain the sole property of the disclosing party. Such Confidential Information includes but is not limited to data, information (including personally identifiable information), ideas, materials, specifications, procedures, schedules, software, technical processes and formulas, source code, product designs, sales, cost and other unpublished financial information, product and business plans, advertising revenues, usage rates, advertising relationships, projections, marketing data and other similar information provided by a party. For avoidance of doubt, Customer Data shall be deemed Confidential Information of TBP. Each party agrees that it will not disclose, use, modify, copy, reproduce or otherwise divulge such Confidential Information to any third party without the prior written approval of the disclosing party except that the receiving party shall have the right to disclose such Confidential Information to the extent required by applicable law or to the directors, officers or employees of the receiving party who have a need to know such Confidential Information in order to perform its obligations under the Agreement and to the extent such directors, officers or employees are subject to obligations of confidentiality and non-disclosure that are substantially similar to the obligations set forth in the Agreement. The prohibitions contained in this Section will not apply to information (i) already lawfully known to the receiving party prior to disclosure by the disclosing party; (ii) independently developed by the receiving party without access to or use of the disclosing party’s Confidential Information; (iii) disclosed in published materials; (iv) generally known to the public; or (v) lawfully obtained from any third party. In addition, a party will not be considered to have breached its obligations under the Agreement to the extent Confidential Information is required to be disclosed by any governmental authority, provided that, to the extent legally practicable, the receiving party advises the disclosing party prior to making such disclosure in order that the disclosing party may object to such disclosure, take action to ensure confidential treatment of the Confidential Information, or take such other action as it considers appropriate to protect the Confidential Information.
Dispute Resolution; Governing Law.
In the event of a reward dispute or mistake between a Merchant and User, TBP may in its sole discretion and without liability of any kind unilaterally make adjustments to User reward points (it being understood that TBP shall not be (i) obligated to make any such adjustment or otherwise get involved with or provide any assistance towards resolving any such dispute, or (ii) be liable to any party for any damages, expenses or liabilities arising out of any such dispute). To the extent any disputes arise under the Agreement or otherwise between the parties, the parties will first attempt in good faith to resolve their dispute informally. This Agreement is governed by the State of California and you expressly agree to the exclusive jurisdiction for any claim or dispute with TBP in the federal and state courts within the jurisdiction of the United States District Court for the Southern District of California. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the Agreement.
You will defend, indemnify, and hold TBP and its affiliates and their respective directors, officers, employees, agents and representatives harmless from and against any third-party suit, proceeding, assertion against any damages, judgments, liability, costs and expenses (including without limitation any reasonable attorneys’ fees) incurred arising from your breach of this Agreement, your negligence or misconduct, any dispute you may have with any other party in connection with any TBP Program or otherwise related in any way to any TBP Program, your unauthorized use or misuse of the TBP Programs or any unauthorized combination of any TBP Program with any hardware, software, products, data or other materials not specified or provided by TBP.
Limitation of Liability.
TBP’s aggregate liability for all claims (including claims for indemnification of third-party damages) arising out of the Agreement, whether in contract, tort or otherwise, will not exceed the amount of fees paid by you to TBP under the Agreement during the twelve (12) months preceding the date on which the applicable claim occurred. To the maximum extent permitted by applicable law, in no event will TBP be liable for any loss of business profits, business interruption, loss of data or any special, indirect, exemplary, incidental or consequential damages arising from or in relation to the Agreement or the use of the Services or any TBP Program, however caused and regardless of theory of liability. In addition, TBP will not be liable for damage (physical or otherwise) incurred by you upon any asset or property from the installation or removal of any TBP product or add-on in-store and will not be responsible for replacement or cost of repair if damages occur. This limitation will apply even if such damages were foreseeable and you have been advised or are aware of the possibility of such damages.
Except where explicitly provided otherwise herein, any notice required or permitted hereunder will be delivered to the contact person listed on the Order Information as follows (with notice deemed given as indicated): (i) by personal delivery when delivered personally; (ii) by established overnight courier upon written verification of receipt; (iii) by facsimile transmission when receipt is confirmed orally; (iv) by certified or registered mail, return receipt requested, upon verification of receipt; or (v) by electronic delivery when receipt is confirmed orally.
You may not, without the prior written consent of TBP, assign the Agreement, in whole or in part, either voluntarily or by operation of law, and any attempt to do so will be a material default of the Agreement and will be void; provided, however, that in the event of a sale of substantially all of your assets or equity to a third party or any merger of your entity with an into a third party, this Agreement shall be deemed, without any further action on the part of any party, to automatically be assigned to and assumed by the acquirer in such transaction and as such, shall be binding on such acquirer. The Agreement will be binding upon and will inure to the benefit of the respective parties hereto, their respective successors in interest, legal representatives, heirs and assigns.
No Third-Party Beneficiaries.
The Agreement is solely for the benefit of the parties and their successors and permitted assigns, and does not confer any rights or remedies on any other person or entity.
This Agreement may be changed by TBP upon posting an updated version of the Agreement at TBP’s website and/or within the applicable TBP Program, any such change to become effective 10 business days after posting such updated version of the Agreement as described above. The failure of either party to exercise or enforce any of its rights under the Agreement will not act as a waiver of subsequent breaches and the waiver of any breach will not act as a waiver of subsequent breaches.
If any provision of the Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be enforced to the maximum extent permissible under applicable law and the other provisions of the Agreement will remain in full force and effect.
Neither party shall be liable to the other if such party is prevented from performing any of its obligations under the Agreement (excluding fee payment obligations) due to any cause beyond the party’s reasonable control including, without limitation, an act of God, fire, flood, explosion, terrorism, war, embargo, government regulation, civil or military authority, acts or omissions of carriers, transmitters, providers, or acts of vandals, or hackers. The time for that party’s performance will be extended for the period of the delay or failure to perform due to such occurrence, except that you will not be excused from the payment of any sums of money owed by you to TBP provided prior to the force majeure event.
The Agreement will not be construed as creating or constituting a partnership, joint venture, or agency relationship between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
Compliance with Laws.
Each party will comply with all applicable laws, regulations, and ordinances relating to their performance hereunder.
The Agreement (including, without limitation, the Merchant Agreement and these Merchant Terms) constitute the entire agreement between TBP and you with respect to the subject matter hereof and all prior oral or written agreements, representations or statements with respect to such subject matter are superseded hereby.
Goal Gradient Loyalty Participation
TBP may, at its sole discretion from time to time, elect to make point adjustments for first-time member visits (such as, by way of example, offering members the opportunity to earn extra points in connection with the first visit to a given Merchant location). These adjustments are intended to encourage greater follow-up participation to your program. This feature is automatically enabled with the onboarding of your loyalty program; provided, however, that you may elect to opt-out of this program by providing written notice of such opt-out to TBP.
The following terms shall, in addition to all of the other terms set forth in this Agreement, govern your use of TBP’s “Campaign” platform (the “Campaign Platform”), which, at a general level, allows you to communicate with TBP members.
You shall, as a condition to making any use of the Campaign Platform, be required to follow these rules:
1. You won’t send Spam! While you are responsible for making yourself of aware of current anti-SPAM and similar regulations that may be in effect from time to time, as a general rule, you should assume that if you send people mass email without their permission, you’re spamming.
2. You won’t violate TBP’s Acceptable Use guidelines, established below, as they may be in effect from time to time, which is part of this Agreement. If you violate any of these rules, TBP, in addition to any other rights or remedies that TBP may have hereunder or otherwise, may suspend or terminate your account.
3. In the event you have purchased a subscription which allows unlimited use of Campaign Platform, to the extent that TBP, in its sole discretion, determines that you are abusing the Campaign Platform, violating any law or regulation, violating the CAN-SPAM Act or any other e-mail regulation or otherwise abusing or misusing the Campaign Platform in any way, TBP shall, in addition to any other remedies available to TBP in this Agreement and/or at law, be entitled to unilaterally adjust your allowed use of the product.
Compliance with Laws
You represent and warrant that your use of the Campaign Platform will comply with all applicable laws and regulations. You are responsible for determining whether TBP’s services are suitable for you to use in light of any regulations such HIPAA, GLB, EU Data Privacy Laws and/or other laws. If you are subject to regulations (such as HIPAA) and you use the Campaign Platform or any other TBP service, then TBP will not be liable if any such service does not meet those requirements.
You shall refrain from using the Campaign Platform to send anything offensive, to promote anything illegal, or to harass anyone. Not in limitation of the foregoing, you may not send:
1. Pornography or other sexually explicit Emails
2. Emails offering to sell illegal goods or services
3. Emails that violate CAN-SPAM Laws or any other applicable laws or regulations
Acceptable Use – Prohibited Actions
TBP works hard to keep its system clean, but TBP also counts on its customers to pitch in. As such, you may not:
1. Send Spam (as noted above).
2. Share your password.
3. Use any of the Campaign Platform to create a competing product.
4. Import or incorporate any of this information into any lists, emails or uploads to our servers: Social Security numbers, passwords, security credentials, or sensitive personal information of any kind.
5. Send any messages through the Campaign Platform that are not appropriate for its intended use.
6. Use an outside unsubscribe process.
DATE LAST MODIFIED: September 21, 2019
Importance of Your Privacy.
A Special Note About Children.
Important Categories of Information for you to Know:
1. Who we are
2. Information we may collect at the Website or through the Application
3. How your information is used
4. Altering the information you submit through the Website and/or Application
TBP operates a website located at and the Application through which certain promotions, rewards, and/or loyalty programs may be administered.
Information We Collect.
There are several areas on the Website and/or within the Application where you may be asked to enter both personal and non-personal information including, by way of example and without limitation, your name, address, phone number, credit card information, birthday, Facebook and/or Twitter usernames, and information regarding your cell phone and/or other mobile device. In addition, when you use the Application TBP automatically receives and records information on our server logs from your browser or mobile platform, including your IP address and location. TBP also collects and uses additional information from users such as transaction location, purchase activity, Application open date and time, idle time, and all clicks and/or swipes within the application (together with time and order). TBP may also collect information posted by users on social media sites for users that have opted to connect to or otherwise link TBP with social media accounts including Facebook and Twitter. We treat this data as non-personal information for purposes of providing the Services, except where we are required to treat it as personal information under applicable law. We DO NOT sell or share any personal information about you to or with any person or organization except (i) as authorized by you, (ii) as set forth in the relevant portion of the Website, Application or within any agreement between us, (iii) in connection with providing various products or Services to you (either directly or through one or more third parties), (iv) as may be required by law or court order, or (vi) as otherwise set forth herein. In particular, and not in limitation of the foregoing, information you enter at the Website and/or Application (i) will be shared with the merchants or third-party service providers with which TBP has entered into a business relationship in order to provide the Services, and (ii) may be shared with various third parties in connection with making available to you certain offers (which offers may be based on or related to your location at the time the offer is made available to you). In addition, TBP may sell, disclose or otherwise use information gathered on the Website or within the Application to third parties on an aggregated basis.
(a) Information we receive from you. To use certain of TBP’s Services and/or to access the Application, you’ll need to provide certain personal information which may include, without limitation, your name, address, birthday, phone number, credit card information, Facebook and/or Twitter user names, e-mail address, information regarding your cell phone or mobile device and other information.
(b) Technical information we collect. In order for TBP to ensure that we are providing the best possible consumer experience on the Website and within the Application, we collect and track certain user information. When you visit the Website, our Web server may send a cookie to your computer. This cookie would be intended to store a limited amount of information about your site visit. The cookie tracks aggregate information on how our site is being used, including session counts, navigation patterns, pages visited, etc. These cookies, however, do not store any personally identifiable information such as your name, email address or phone number as you browse the site. When you submit a question, we store your cookie identification in our system. This cookie allows our site to recognize you when you return. TBP may also utilize Web Logs to track aggregate information about how our site and/or the Application is being used. Web Logs track anonymous user information, including the number of visitors to the Website, operating systems, Internet Provider addresses (if publicly available), and browser type. Unlike cookies, Web Logs are maintained only on TBP servers and do not store or place anything on the user’s computer.
If you come to the TBP Website from an online banner ad, an anonymous identification number may be passed to the Website. This information cannot be used to gather any personally identifiable information about you. It will only allow us to track the overall effectiveness of our online advertising, marketing and banner advertisement campaigns.
(c) Other Information we get from your use of the Services. We may collect information about the Services that you use and how you use them. This information includes:
We may collect device-specific information (such as your hardware model, operating system version, unique device identifiers, and mobile network information including phone number).
When you use the Service or access the Application, we may collect and process information about your actual location. We may also use various technologies to determine location, some of which may be made available through third-party licensors.
(d) Information from surveys. You may have the option of completing an online survey at the Website or within the Application from time to time. Participation in surveys is completely voluntary and it is your choice whether or not you wish to disclose your personal information to us in connection with any such survey.
(e) Information from the “Contact Us” section of the Website or Application. You may contact TBP through the “Contact Us” feature. Participation in this area is completely voluntary and it is your choice whether or not you wish to disclose your personal information to us.
(f) Information collected other sections of the Website or Application. TBP may, from time to time, make various resources available to you at the Website or within the Application. At times we may collect personal information in connection with providing such services.
How Your Information Is Used.
In addition to the uses of the information described above, TBP may, from time to time, collect purchasing information and/or data from other sources. TBP may collect this information for purposes of performing analytics and conducting consumer research. This information may be used to communicate and provide additional information that may be of interest to you and our merchants.
In addition, TBP may disclose account or other personal information when we have reason to believe that disclosing this information is necessary to identify, contact or bring legal action against someone who may be causing injury to or interference with TBP’s rights or property, other Website or Application users or anyone else that could be harmed by such activities.
We may, from time to time, sell leads to third parties that we believe might be of interest to you, and such leads may contain certain information you have provided to us. Such third parties may use such information to contact you with offers and/or other information they believe may be of interest to you. If you do not want us to include your information in any such sale of leads, you are free to opt-out by emailing us at firstname.lastname@example.org.
Altering Information You Submit.
(a) Deleting your information. Federal and state regulations may require that we store questions or submissions for various periods of time. In order to comply with these regulations, we may be unable to delete information from our databases.
(b) Altering Information. TBP may alter, modify or delete any information you submit to the Website or through the Application if it believes, in its sole discretion, it is necessary or desirable to do so.
(c) Request to stop receiving emails from us. Periodically, TBP may send you emails to alert you to various opportunities or offers available at the Website or within the Application. If you do not wish to receive any of these offers, please send an e-mail to remove yourself from our mailing list.
TBP uses extensive and sophisticated secure technology to protect your data and transmissions between you and TBP. Transmission between browsers and our web server is implemented using either Secure Sockets Layer (SSL) technology or TBP’s proprietary mobile application that utilizes SSL-encrypted communication. This technology requires an SSL-capable browser. Although TBP has taken these reasonable and appropriate measures to ensure that your personal information is delivered and disclosed only in accordance with your instructions, TBP cannot and does not guarantee that the personal information you provide will not be intercepted by others and decrypted.
We may, in the future, sell or otherwise transfer some or all of our assets or equity to a third party. Your personally identifiable information and other information we obtain from you via the Website or the Application may be disclosed to any potential or actual third party purchasers of such assets or equity and may be among the assets transferred.
PLEASE PRINT AND RETAIN A COPY OF THIS AGREEMENT FOR YOUR RECORDS.
General Site Terms
These General Website Terms govern all visits to and/or any use of any portion of the website located at and/or any affiliated websites.
All information, images, designs and/or content posted at the TBP website from time to time is owned solely and in full by True Biz Pulse, LLC., and may not be accessed or used in any way except to the extent explicitly set forth in these General Website Terms.
You may not use any page-scrape, deep-link, robot, crawl, index, spider, click spam, macro programs, Internet agent, or other automatic device, program, algorithm or methodology which is intended to approximate any of the foregoing actions, to use, access, copy, acquire information, generate impressions or clicks, input information, store information, search, generate searches, or monitor any portion of the TBP website or take any action in respect of merchants and/or other company information listed at the TBP website from time to time.
You may not modify, re-render, frame, mirror, truncate, add to, inject, filter or change the order of the information contained on any page of the TBP web pages or any merchant information on any other web site or for any purpose without our express written permission.
You may not copy, display, distribute, download, license, modify, publish, re-post, reproduce, reuse, sell, transmit, use to create a derivative work or otherwise use the content of this website for public or commercial purposes without our express written permission. Nothing on this website shall be construed to confer any grant or license of any intellectual property rights, whether by estoppel, by implication or otherwise.
You may not copy, derive, edit, translate, decompile, reverse engineer, modify, use, or reproduce any code or source relating to our website, including without limitation, any service or product TBP offers.
You may not cause to appear any pop-up, pop-under, exit windows, expanding buttons, banners advertisement, or anything else which minimizes, covers or otherwise inhibits the full display of the TBP website.
You may not use the TBP website in any way which depletes web infrastructural resources, slows the transferring or loading of any web page or interferes with the normal operation of our website.
You may not upload or transmit to the TBP website any device, software, program or file that may damage the operation of any computer or the TBP website, including without limitation, viruses or corrupt files.
You may not disguise the origin of information transmitted to, from, or through the TBP website. You may not circumvent any measures implemented by TBP aimed at preventing violations of these General Website Terms. You may not violate the restrictions in any robot exclusion header.
When you use the TBP website or any information included therein for an authorized purpose, you must include all proprietary notices without changing, hiding or deleting them.
TBP makes no representations or warranties regarding any content or information posted at the TBP website from time to time, including as to whether or not such content or information is accurate.