1. SERVICES & PAYMENT
1.1. Loyalty Plus Inc. will provide marketing services for Client as provided in this Agreement and stated on the attached Product Information Statement (“Services”). Additional Services may be provided for Client, which will be stated on a specific Product Information Statement.
1.2. Client will pay the amount(s) at the frequency set forth on the Product Information Statement for the Services. All payments are due upon receipt and any payment not timely made by Client pursuant to the Product Information Statement, and within three (3) days after Loyalty Plus Inc. has provided notice to Client of late payment, may be charged a five percent (5%) late fee per Billing Cycle charged upon the unpaid amount. If any payment due is not received by the last day of the month, the corresponding profile page and Services will be suspended and the amount due will be submitted to our collections team. A reconnection fee of $100 will be required to restore Services.
2. DURATION, TERMINATION, USAGE AND COMPLIANCE
2.1. This Agreement shall commence on the Effective Date, and this Agreement and/or any additional Services shall only be terminated as provided in this Agreement.
2.2. Client or Loyalty Plus Inc. may terminate this Agreement or reduce the scope or terminate any additional Services at any time without liability, fee or penalty (except to pay for the Services rendered prior to such termination) upon thirty (30) days prior written notice from Client’s start date of Billing Cycle as stated on the Product Information Statement and must be sent to cancel@LoyaltyPlusInc.com. Without appropriate notice from Client, billing will continue pursuant to the Product Information Statement. Loyalty Plus Inc. may, at its sole discretion, terminate this Agreement and suspend Services immediately and without prior notice upon Client’s breach of this Agreement.
2.3. If the equipment (“Equipment”) has been provided which includes but is not limited to Tablets, Stands and or Kiosks to Client by Loyalty Plus Inc., the Equipment shall be returned to Loyalty Plus Inc. upon termination of this Agreement. If the Equipment is not returned to Loyalty Plus Inc. within thirty (30) days of the termination of this Agreement, Client shall pay to Loyalty Plus Inc. $245 per tablet, $1000 per kiosk and the fair market value of any other provided Equipment. Loyalty Plus Inc. may impose an
additional $25 non usage fee for each day after the 30 day termination date until the equipment is returned.
2.4. Client’s Legal Compliance and TCPA Consent—By signing this agreement, Client represents, warrants, covenants, and agrees that all information it uploads, obtains through the Equipment, or otherwise provides to Loyalty Plus Inc.’s platform or Loyalty Plus Inc. has been obtained and is being provided legally, including in accordance with the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, the FTC’s Telemarketing Sales Rule, and state and local telemarketing laws.
2.4.1. Client represents, warrants, covenants, and agrees that for each telephone number it uploads, obtains through the Equipment, or otherwise provides to Loyalty Plus Inc.’s platform or Loyalty Plus Inc., Client has obtained “prior express written consent” as required under the TCPA and the TCPA’s “Delivery restrictions,” 47 CFR § 64.1200, for Client to make or cause to be made to the person called or texted advertisements or telemarketing messages using an automatic telephone dialing system (“ATDS”) or an artificial or prerecorded voice and that such consent has not previously been revoked.
2.4.2. Client represents, warrants, covenants, and agrees that it has obtained “prior express written consent” for each telephone number uploaded or provided through a clear and conspicuous disclosure that satisfies all the requirements of 47 CFR § 64.1200(f)(8), including that Client clearly and conspicuously disclosed or caused to be disclosed Client’s name as the “seller” in the disclosure as that term is defined under 47 CFR § 64.1200(f)(9).
2.4.3. Client represents, warrants, covenants, and agrees that it shall maintain or cause to be maintained written and/or electronic records affirmatively demonstrating “prior express written consent” for each telephone number provided by Client to Loyalty Plus Inc. (“Consent Records”). Upon request by Loyalty Plus Inc., Client shall provide Loyalty Plus Inc. with any and all Consent Records within three (3) business days of the request. Client represents, warrants, covenants, and agrees that it shall maintain or cause to be maintained all Consent Records for a minimum period of at least five (5) years following the date of termination or expiration
of this Agreement. Client’s foregoing obligation to retain Consent Records and provide Consent Records to Loyalty Plus Inc. upon request shall survive the termination or expiration of this Agreement.
2.4.4. Client represents, warrants, covenants, and agrees that it shall notify Loyalty Plus Inc. in writing within two (2) business days of any and all verbal, written or electronic requests made by persons to stop receiving calls or text messages from Client or Loyalty Plus Inc. and that Client shall immediately update its Consent Records to reflect the revocation of consent.
2.4.5. Client agrees that Loyalty Plus Inc. shall, in its sole discretion, be permitted to provide telephone numbers and related consumer information that Loyalty Plus Inc. receives from Client or is otherwise uploaded to Loyalty Plus Inc.’s platform to third-party vendors for the purpose of determining whether a telephone number has been reassigned to another consumer.
2.4.7. Client represents, warrants, covenants, and agrees that any and all text messages it places using Loyalty Plus Inc.’s systems shall include the phrase “Text STOP to end” or “Reply STOP to end.”
2.5. If Client is using the texting/loyalty feature and chooses a tiered plan (“Tiered Plan”), Client understands it will pre-pay for a certain number of texts or messages (“Messages”) to be forwarded over ninety (90) days from the date of payment. Under the Tiered Plan, if Client does not use or cause to be forwarded the Messages New Order Replacement Order within the ninety (90) days from date of payment, Client forfeits (“Forfeiture”) the remaining or unused Messages (“Prior Pur chased Messages”). However, if Client makes another purchase for Messages within this ninety (90) day period from the date of last payment Client will then have another ninety (90) days from the date of the most recent purchase to use any Prior Purchased Messages and all Messages purchased via the later order. If Client does forfeit any number of Messages and has yet to purchase any Messages within thirty (30) days after the expiration of the ninety (90) day period causing the Forfeiture, Client shall pay a $50 Non-Usage Fee and be credited twenty-five hundred messages each month until Client purchases a new Tiered Plan. If Client chooses a monthly plan (“Monthly Plan”), client understands they will pay for a certain number of Messages to be forwarded each month. Under the Monthly Plan, any number of Messages exceeding the amount purchased for that month by Client will incur an additional fee of $.03 per message charge.
3. NONDISCLOSURE OF CONFIDENTIAL INFORMATION
3.1. If the parties have entered into a separate mutual non-disclosure agreement (“NDA”), then as between the NDA and this Section 3, the provisions that afford the disclosing party the greatest protection shall apply.
3.2. During the term of this Agreement and after its termination or expiration, each party (the “Receiving Party”) which receives or has access to Confidential Information (as defined below) of the other party (the “Disclosing Party”) shall not use, other than in connection with the provision or receipt of the Services, or disclose to anyone, other than officers, employees or representatives of the Receiving Party with a need to know for purposes of this Agreement and who are subject to confidentiality obligations
consistent with the terms of this Agreement (“Representatives”), any Confidential Information disclosed or made available to the Receiving Party by or on behalf of the Disclosing Party. Notwithstanding the foregoing, Loyalty Plus Inc. may also, in its sole discretion, disclose Consent Records to consumers or third parties to respond to and/or defend against any allegations or claims of a violation of the TCPA or any other consumer protection law or regulation. The Receiving Party shall safeguard disclosure of such Confidential Information to the same extent as with the Receiving Party’s own Confidential Information but shall at least use reasonable care. At the written request of the Disclosing Party, the Receiving Party shall promptly return to the Disclosing Party or destroy the Disclosing Party’s Confidential Information in its possession or under its control provided, that the Receiving Party shall be permitted to retain a back-up copy of such Confidential Information as required by law, rule, regulation or internal compliance policies, which retained Confidential Information shall continue to be subject to the provisions of this Section 3.
3.3. For purposes of this Agreement, the term “Confidential Information” means all information, material and data of the Disclosing Party relating to past, present or future business affairs, including without limitation, research, development, equipment, sales information, products, pricing information, trade secrets, business plans, financial information, marketing methods and plans, customers, operations and systems which (i) is labeled or designated in writing as confidential or proprietary, (ii) the Receiving Party is advised is proprietary or confidential, or (iii) in view of the nature of such information and/or the circumstances of its disclosure, the Receiving Party knows or reasonably should know is confidential or proprietary.
3.4. Confidential Information shall not include information which the Receiving Party can demonstrate by competent evidence (i) is or becomes publicly known without any fault of or participation by the Receiving Party or its Representatives in violation of Section 3, (ii) was in Receiving Party’s possession prior to the time it was received from Disclosing Party or came into Receiving Party’s possession thereafter, in each case lawfully obtained from a source other than Disclosing Party or its Representatives and which source is not known to the Receiving Party to be subject to any obligation of confidentiality or restriction on use, or (iii) is independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information. The Receiving Party may disclose Confidential Information that is required to be disclosed by judicial, arbitral or governmental order or process or operation of law, in which event the Receiving Party shall, unless prohibited by law, promptly notify the Disclosing Party of the requirement of disclosure so that the Disclosing Party may seek a protective order or other limitation on disclosure before the Receiving Party makes such disclosure, if any. The Receiving Party shall comply with any protective order or other limitation on disclosure obtained by the Disclosing Party.
3.5. Any use or disclosure of the Disclosing Party’s Confidential Information in a manner inconsistent with the provisions of this Agreement may cause the Disclosing Party irreparable damage for which remedies other than injunctive relief may be inadequate, and both parties agree that the Disclosing Party may request injunctive or other equitable relief seeking to restrain such use or disclosure.
4. REPRESENTATIONS AND WARRANTIES
4.1. Loyalty Plus Inc. represents and warrants that: (i) it will perform the Services in conformity in all material respects with the specifications provided in the Product Information Statement (“Specifications”), and (ii) it will perform all Services in a professional and workmanlike manner, consistent with generally accepted industry standards and good commercial practices. Loyalty Plus Inc. expressly disclaims any and all responsibility or liability for Client’s performance or satisfaction of obligations owed by Client to Client’s employees.
4.2. Loyalty Plus Inc. and Client each represent and warrant that it will comply with all applicable federal, state and local laws, regulations and ordinances, be duly licensed and otherwise authorized to provide or receive the Services. Client specifically represents and warrants that it shall comply with all requirements and obligations of Section 2.4 and its subparts.
5.1. Loyalty Plus Inc. retains all right, title and interest in and to the Loyalty Plus Inc. platform and network including, without limitation, know-how, ideas, concepts, procedures, routines, techniques, web content, methods, systems, processes, models, templates, tools, generalized features of the structure, sequence and organization of software, user interfaces, screen designs and the like, and any enhancements made to the foregoing (collectively, “Loyalty Plus Inc. Tools”). Subject to the terms of this Agreement, Loyalty Plus Inc. hereby grants to Client a limited, revocable, non-exclusive, non-transferable, non-sublicensable license, exercisable solely during the term of this Agreement to use the Loyalty Plus Inc. Tools as provided by Loyalty Plus Inc., in its sole discretion, to Client solely in collection with Loyalty Plus Inc.’s performance of the Services under this Agreement. Client shall not (a) access, use, copy or distribute the Loyalty Plus Inc. Tools in a manner that exceeds or violates any limitation set forth in this Agreement; (b) use or allow the use of the Loyalty Plus Inc. Tools for rental in the operation of a service bureau or time-sharing arrangement, hosting or ASP model; (c) remove or obscure any copyright or proprietary rights notice in or on the Loyalty Plus Inc. Tools; or (d) interfere with, disrupt, alter, translate or modify the Loyalty Plus Inc. Tools.
5.2. As between the parties, Loyalty Plus Inc. owns all right, title and interest in and to all information, including, without limitation, subscriber information, personal information, transaction reports and information about marketing campaign results collected or otherwise obtained through the operation of the Loyalty Plus Inc. Tools, including, without limitation, through Loyalty Plus Inc.’s performance of the Services hereunder (collectively, the “Loyalty Plus Inc. Information”). Loyalty Plus Inc. hereby grants to Client a
limited, revocable, non-exclusive, non-transferable, non-sublicensable license to access and review the Loyalty Plus Inc. Information provided, in Loyalty Plus Inc.’s sole discretion, by Loyalty Plus Inc. to Client solely for Client’s internal business purposes. Notwithstanding the foregoing, Loyalty Plus Inc. shall not be under any obligation to provide Client with specific Loyalty Plus Inc. Information except as necessary to perform the Services. For clarity, any information collected through the Loyalty Plus Inc. Tools, as described herein, shall be deemed Loyalty Plus Inc. Information regardless of whether such information also constitutes Client Information (defined below).
5.3. Subject to the express license rights granted herein to Loyalty Plus Inc., as between the parties, Client owns all right, title and interest in and to the customer information that Client collects or otherwise obtains outside of its use of the Services and the Loyalty Plus Inc. Tools as permitted herein (“Client Information”). In the event Client elects to use any such Client Information in connection with the Services, Client hereby grants Loyalty Plus Inc. a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to use the Client Information as necessary to provide the Services hereunder. Client represents and warrants that, prior to Loyalty Plus Inc.’s receipt of any Client Information and prior to any ingestion of any Client Information into any portion of the Loyalty Plus Inc. Tools, Client has made, and will continue to make, all required disclosures to consumers and applicable third parties, whether required by applicable law, contract or otherwise, and has obtained, and will obtain, all rights necessary (including, but not limited to, all necessary consumer and other third party consents), to allow Loyalty Plus Inc. to use such Client Information as contemplated by this Agreement and to ensure such use, as contemplated by this Agreement, does not and will not violate any privacy or other rights of a third party or violate any applicable law.
6. DEFENSE AND INDEMNITY
6.1. Client shall at its sole expense defend, indemnify, and hold Loyalty Plus Inc., including its officers, directors, employees, members, managers, agents, legal representatives, subsidiaries, affiliates, successors, or assigns (each a “Loyalty Plus Inc. Indemnitee”) harmless from and against any and all any liabilities, losses, claims, demands, costs, expenses, or attorneys’ fees incurred by any of them arising from or in any way relating to (a) any claims or demands against a Loyalty Plus Inc. Indemnitee of infringement of any patent, copyright, trademark, service mark, trade name, trade dress, trade secret, or similar property right conferred by contract or by common law or by any law of any country or jurisdiction alleged to have been incurred because of or relating to any Services, Work, or other deliverables, and any other materials, information technology, information management and communication services, equipment, software or other resources provided by Client or its subcontractors in connection with
this Agreement or any Service provided; (b) any claims or demands for amounts, including, but not limited to taxes, benefits, interest and penalties, assessed against any Loyalty Plus Inc. Indemnitee which are the obligation of Client; and (c) Client’s breach of its obligations, representations, warranties or covenants under this Agreement or any Product Information Statement, including, but not limited to, a breach of Client’s obligations, representations, warranties or covenants under Section 2.4 and its subparts. Client will pay the entire cost of such defense and settlement and any costs and damages awarded against a Loyalty Plus Inc. Indemnitee. The Loyalty Plus Inc. Indemnitee may, at its sole option, elect to control or participate in such investigation, trial, defense and settlement of such claim or demand and any appeal arising therefrom, through its attorneys of choice or otherwise, and Client will reimburse the Loyalty Plus Inc. Indemnitee for all reasonable and customary expenses related thereto, including attorneys’ fees. No settlement of a claim or demand against a Loyalty Plus Inc. Indemnitee shall be entered into by Client without the consent of the Loyalty Plus Inc. Indemnitee, which consent will not be unreasonably withheld.
6.2. Loyalty Plus Inc. shall have no indemnity obligation or other liability for any claim of infringement or misappropriation arising from information, design, specification, instruction, software, data, or material provided by Client.
6.3. Loyalty Plus Inc. shall at its expense defend, indemnity, and hold Client including its officers, directors, employees, members, managers, agents, legal representatives, subsidiaries or affiliates (each an “Client Indemnitee”) harmless from and against any and all losses incurred by any of them arising from or in connection with any claims by a party that is not a Client Indemnitee: resulting from Loyalty Plus Inc.’s violation of any law or government regulation. Notwithstanding the foregoing, Loyalty Plus Inc. shall have no obligation to defend, indemnify, or hold harmless a Client Indemnitee where the claim or demand against Client Indemnitee arises from in whole or in part or in any way relates to Client’s breach of its obligations, representations, warranties or covenants under this Agreement or any Product Information Statement, including but not limited to a breach of Client’s obligations, representations, warranties or covenants under Section 2.4 and its subparts. Loyalty Plus Inc. also shall have
no obligation to defend, indemnify, or hold harmless a Client Indemnitee in connection with any claims or demands arising from or relating to text messages placed directly by Client using Loyalty Plus Inc.’s systems. Except as provided in the preceding sentence, if a loss is caused only in part by Loyalty Plus Inc., then its liability hereunder shall be only such amount as is attributable to its fault.
6.4. EXCEPT WITH RESPECT TO LIABILITY FOR LOYALTY PLUS INC.’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL LOYALTY PLUS INC. OR ITS AFFILIATES BE LIABLE TO CLIENT, UNDER THIS AGREEMENT OR OTHERWISE, REGARDLESS OF THE FORM OF CLAIM OR ACTION, IN AN AMOUNT THAT EXCEEDS THE TOTAL FEES RECEIVED BY LOYALTY PLUS INC. UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
6.5. The party seeking indemnification hereunder shall: (i) give the indemnifying party prompt written notice of the claim, (ii) tender to the indemnifying party control of the defense and settlement of the claim (except as otherwise provided above), and (iii) reasonably cooperate with the indemnifying party in defending or settling such claim.
The indemnifying party may not consent to the entry of any judgment or enter into any settlement that adversely affects the rights or interests of the other party without such party’s prior written consent, which may not be unreasonably withheld or delayed.
6.6. Loyalty Plus Inc. does not guarantee the accuracy or completeness of the coupons, coupon codes, discounts or any other information contained in or on any of its websites. Loyalty Plus Inc. makes no warranties, express or implied, and assumes no liability or responsibility for any errors, inaccuracies or omissions in any of its online coupons, listings, offers or any other data. Loyalty Plus Inc. will not, under any circumstances, be liable for damages of any kind relating to the use of any materials from
its websites, including without limitation, any special, direct, indirect, incidental or consequential damages, that may arise from any use of, inability to use, or reliance on the site and/or the materials contained on the site whether the materials contained on the site are provided by Loyalty Plus Inc. or a third party. Loyalty Plus Inc. will not, under any circumstances, be liable for any damages relating to the inability to access or use its sites or materials. The information and references contained in or on the website(s) are provided as an informational service, and do not constitute advice. Inclusion of a link on one of Loyalty Plus Inc.’s websites does not imply an endorsement of the site nor does Loyalty Plus Inc. accept any responsibility for the content, or the use, of such websites. Client is responsible for any information they may provide on any Loyalty Plus Inc. website. Loyalty Plus Inc. websites may contain links to websites which are not maintained by Loyalty Plus Inc. and Loyalty Plus Inc. is not responsible for nor has control over the content of those sites nor does Loyalty Plus Inc. guarantee the content of such sites. All products, services, prices and deals mentioned on any of the websites are provided by third parties and are subject to change without notice and are subject to conditions, restrictions, limitations, over twenty-one age restrictions, availability and qualifications. Loyalty Plus Inc. is not responsible for any damages to Client’s website(s), computers or other equipment due to Client’s use of any application, links to websites or other related software or items. Any applications services or services related to applications are “As Is” and
Loyalty Plus Inc. expressly disclaims any and all warranties regarding or related to the application services or applications.
6.7. Client may provide Promotional Content (“Promotional Content”) to Client’s customers and other third parties chosen by Client through the Services as permitted by Loyalty Plus Inc.. Client shall remain at all times solely responsible for the full functionality, accuracy, reliability, integrity, quality or validity of all Promotional Content. Client shall remain at all times solely responsible for maintaining necessary and sufficient WIFI service at the location where Equipment is deployed. Client represents
and warrants that no Promotional Content is illegal, contains profanity or pornography, or infringes the intellectual property rights or moral rights or any third party. Loyalty Plus Inc. reserves the right, at its sole discretion, to remove any Promotional Content that violates this Agreement at any time, without prior notice, or require Client to do so. Client shall remain solely liable for any loyalty plans or rewards offered to Client’s customers and shall fully indemnify Loyalty Plus Inc. (which indemnification shall not reduce Client’s other indemnification obligations under this Agreement) for Client’s failure to satisfy any of Client’s obligations pursuant to such plans or rewards. Loyalty Plus Inc. does not claim ownership of the Promotional Content. However, Client grants Loyalty Plus Inc. a non-exclusive, royalty-free, worldwide license of all rights to use, edit, modify, include, incorporate, adapt, record and reproduce Promotional Content including the right to exercise this license through independent contractors.
7. INDEPENDENT CONTRACTOR
7.1. Loyalty Plus Inc. is an independent contractor and not a partner, employee, agent or joint-venturer of Client.
8. DISPUTE RESOLUTION AND MANDATORY MEDIATION AND ARBITRATION
8.1. The parties will use their reasonable efforts to resolve any dispute, claim or controversy (a “Dispute”) arising out of or relating to this Agreement through good-faith negotiation in the spirit of mutual cooperation.
8.2. IF THE PARTIES ARE UNABLE TO RESOLVE A DISPUTE THROUGH NEGOTIATION, THEN THE DISPUTE WILL BE SUBMITTED TO JAMS OR ITS SUCCESSOR FOR NON-BINDING MEDIATION IN DENVER, COLORADO BEFORE A SINGLE MEDIATOR. THE PARTIES WILL COOPERATE WITH JAMS AND WITH ONE ANOTHER IN SELECTING A MEDIATOR FROM THE JAMS PANEL OF NEUTRALS AND IN SCHEDULING THE MEDIATION PROCEEDINGS. THE PARTIES AGREE THAT THEY WILL PARTICIPATE IN THE MEDIATION IN GOOD FAITH AND THAT THEY WILL SHARE EQUALLY IN ITS COSTS.
8.3. IN THE EVENT THE PARTIES ARE UNABLE TO RESOLVE A DISPUTE THROUGH GOOD-FAITH NEGOTIATION AND MEDIATION, THE PARTIES AGREE THAT ANY DISPUTE ARISING FROM OR RELATING IN ANY WAY TO THIS AGREEMENT SHALL BE FINALLY SETTLED AND RESOLVED THROUGH BINDING CONFIDENTIAL ARBITRATION AS DESCRIBED IN THIS SECTION 8.
8.4. THE PARTIES AGREE THAT THIS AGREEMENT TO ARBITRATE IS INTENDED TO BE INTERPRETED BROADLY. THE ARBITRATION WILL BE GOVERNED BY THE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION (“AAA”), AS MODIFIED BY THIS ARBITRATION PROVISION. THE ARBITRATION WILL BE CONDUCTED USING ONE ARBITRATOR WITH SUBSTANTIAL EXPERIENCE IN RESOLVING COMMERCIAL CONTRACT DISPUTES, WHO SHALL BE SELECTED FROM THE APPROPRIATE LIST OF ARBITRATORS IN ACCORDANCE WITH THE ARBITRATION RULES AND PROCEDURES OF ANY ARBITRATION ORGANIZATION OR ARBITRATOR THAT THE PARTIES AGREE UPON IN WRITING OR THAT IS APPOINTED PURSUANT TO SECTION 5 OF THE FEDERAL ARBITRATION ACT. THE PARTIES AGREE THAT ALL CHALLENGES TO THE VALIDITY AND APPLICABILITY OF THE ARBITRATION PROVISION—I.E. WHETHER A PARTICULAR CLAIM OR DISPUTE IS SUBJECT TO ARBITRATION—SHALL BE DETERMINED BY THE
8.5. FOR ANY CLAIM WHERE THE TOTAL AMOUNT OF THE AWARD SOUGHT IS $10,000 OR LESS, THE PARTIES AGREE TO ABIDE BY THE FOLLOWING RULES: (A) THE ARBITRATION SHALL BE CONDUCTED SOLELY BASED ON TELEPHONE OR ONLINE APPEARANCES AND/OR WRITTEN SUBMISSIONS; AND (B) THE ARBITRATION SHALL NOT INVOLVE ANY PERSONAL APPEARANCE BY THE PARTIES OR WITNESSES UNLESS OTHERWISE MUTUALLY AGREED BY THE PARTIES. IF THE CLAIM EXCEEDS $10,000, THE RIGHT TO A HEARING WILL BE DETERMINED BY THE AAA RULES, AND THE HEARING (IF ANY) MUST TAKE PLACE IN DENVER, CO. THE ARBITRATOR’S RULING IS BINDING AND MAY BE ENTERED AS A JUDGMENT IN ANY COURT OF COMPETENT JURISDICTION, OR APPLICATION MAY BE MADE TO SUCH COURT FOR JUDICIAL ACCEPTANCE OF ANY AWARD AND AN ORDER OF ENFORCEMENT, AS THE CASE MAY BE.
8.6. IF THE ARBITRATION PROVISION IN THIS SECTION 8 IS FOUND UNENFORCEABLE OR TO NOT APPLY FOR A GIVEN DISPUTE, THEN THE PROCEEDING MUST BE BROUGHT EXCLUSIVELY IN THE STATE COURTS OF COMPETENT JURISDICTION OR THE UNITED STATES DISTRICT COURTS LOCATED IN DENVER, CO, AS APPROPRIATE, AND THE PARTIES AGREE TO SUBMIT TO THE PERSONAL JURISDICTION OF EACH OF THESE COURTS FOR THE PURPOSE OF LITIGATING SUCH CLAIMS OR DISPUTES.
8.7. THIS ARBITRATION AGREEMENT WILL SURVIVE TERMINATION OF THIS AGREEMENT AND THE PARTIES’ RELATIONSHIP. THIS ARBITRATION AGREEMENT INVOLVES INTERSTATE COMMERCE AND, THEREFORE, SHALL BE GOVERNED BY THE FEDERAL ARBITRATION ACT, 9 U.S.C. §§ 1-16 (“FAA”), AND NOT BY STATE LAW.
8.8. This Agreement, except the arbitration agreement, is governed by the laws of the State of Colorado, without regard to its conflicts of law rules.
8.9. To the extent permitted by applicable law, the parties hereto irrevocably waive any right to trial by jury in any legal proceeding arising out of or relating to this Agreement.
9.1. Loyalty Plus Inc. shall not assign any part or all of this Agreement or under any Statement of Work, or subcontract or delegate any of such party’s rights or obligations under this Agreement, without Client’s prior written consent, which shall not be unreasonably withheld. Any dissolution, merger, consolidation, reorganization or other business combination or any transfer of all or substantially all of the assets or a controlling percentage of the corporate stock or other interests of Loyalty Plus Inc. shall constitute an assignment of this Agreement and any outstanding Statement of Work. Any purported or attempted assignment will be void and of no force or effect if not done in accordance with this Section. The rights and obligations of the parties shall inure to the benefit of, will be binding upon and will be enforceable by the parties and their lawful successor and representatives.
9.2. Notices under this Agreement are sufficient if given by nationally recognized overnight courier service, certified mail (return receipt requested), or personal delivery, and shall be addressed to the parties at their respective addresses set forth below.
To Client: To Loyalty Plus Inc.: Loyalty Plus Inc. 6888 S Clinton Street, Greenwood Village, Co 80112 Suite 301 Notice is effective: (i) when delivered personally, (ii) three business days after sent by certified mail, or (iii) on the business day after sent by a nationally recognized courier service. A party may change its notice address by giving notice in accordance with this section.
9.3. If any provision of this Agreement is held invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions shall in no way be affected or impaired thereby.
9.4. In the event of any arbitration or other legal action arising out of or relating to this Agreement, the prevailing party shall be entitled to recover from the non-prevailing party all of its costs and expenses incurred in connection with such proceeding, including court costs and reasonable attorneys' fees. Furthermore, any unpaid amounts pursuant to this Agreement may be sent to a third-party collection agency for collection action.
9.5. A party does not waive any right under this Agreement by failing to insist on compliance with any term of this Agreement or by failing to exercise any right hereunder. Any waiver granted hereunder is effective only if it is written and signed by the party granting such waiver. A waiver of any provision of this Agreement shall not imply a subsequent waiver of that or any other provision of this Agreement.
9.6. The rights and remedies of the parties under this Agreement are cumulative, and either party may enforce any of its rights or remedies under this Agreement or other rights and remedies available to it at law or in equity.
9.7. Each Party has had an adequate opportunity to review each and every provision of this Agreement and to submit the same to legal counsel for review and advice. Based on the foregoing, the rule of construction, if any, that a contract be construed against the drafter shall not apply to interpretation or construction of this Agreement.
9.8. The section headings of this Agreement are for convenience only and have no interpretive value. This Agreement and any additional Product Information Statements may be executed by the parties in one or more counterparts by manual or electronic signature or by use of one or more physical or electronic copies that are either physically delivered or electronically transmitted, all of which when taken together constitute one and the same original of the Agreement.
9.9. The rights and obligations of a party which as expressly provided in the Agreement or by their nature must survive termination or expiration of this Agreement in order to achieve its fundamental purposes shall survive any expiration or termination of this Agreement, including but not limited to the parties’ indemnification and defense obligations under Section 6 and its subparts. EXCEPT AS OTHERWISE PROVIDED IN SECTION 6, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER HEREUNDER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, LOST PROFITS, LOST SALES OR ANTICIPATED ORDERS, OR DAMAGES FOR LOSS OF DATA OR GOODWILL, EVEN IF A PARTY WAS INFORMED OR KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS. Neither party will be liable to the other for any delay or failure to perform if that delay or failure results from an unforeseeable cause beyond its reasonable control. This provision shall in no way impair either party’s right to terminate this Agreement under Section 2.
9.10. This Agreement, together with each Product Information Statement and the NDA (if any), constitutes the complete and final agreement of the parties pertaining to its terms and the subject matter hereof, and supersedes the parties’ prior agreements, understandings and discussions relating to the Services. No modification of this Agreement or any Product Information Statement is binding unless it is in writing and signed by Client and Loyalty Plus Inc.. In the event of any conflict or inconsistency between a provision in this Agreement and in a Product Information Statement, the provision in this Agreement will govern unless the Product Information Statement clearly intends to override the related provision in this Agreement, in which case such provision in the Product Information Statement shall apply but only with respect to that Product Information Statement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the Effective Date.