Terms and Conditions

Definitions. The following definitions shall apply to this Agreement:

“Affiliate” of a party means a person or entity that controls, is under the control of, or is under common control with, such party, where “control” means the ownership, direct or indirect, of a majority of an entity’s equity, specifically including without limitation, any and all subsidiaries and affiliates of which either party owns directly or indirectly, fifty percent (50%) or more of the voting securities.
“App Store” shall mean any commercial or publicly available application marketplace, such as the Apple App Store or Google Play Store.
“Confidential Information” shall have the meaning established in Section 4.1.
“Consulting Services” means any implementation services, training, support, or other professional services provided by Incentivio to Customer pursuant to an Order.
“Credential” shall mean any user ID, password, or other information used by Customer or its Users to access the Portal or other portions of the Solution.
“Customer Data” shall mean any data transmitted to Incentivio by Customer through the use of the Software. Customer Data does not include any portion of the Solution or any Incentivio Confidential Information.
“Customer Marks” shall mean Customer’s names, logos, and other trademarks.
“Deliverables” shall mean data and materials that are uniquely generated for Customer using Customer Data and are created by Incentivio specifically for Customer in the course of performing the Consulting Services, but specifically excluding any portion of the Solution or any Incentivio Confidential Information.
“Documentation” shall mean specifications, user manuals, and other materials, whether printed or electronic, that describe the design, function, operation or use of the Solution and that is made available by Incentivio in conjunction with the Solution.
“Effective Date” shall mean the Order Date of the initial Order attached to this Agreement.
“End Users” shall mean Customers’ customers that use the Solution as a consumer to purchase Customer’s goods and services.
“End User Apps” shall mean mobile apps, online ordering websites or other digital properties published by Incentivio to be accessed by End Users.
“Gift Cards” means any gift certificates (whether in electronic or paper form), store cards or credits issued by Customer to its End User.
“Hardware” shall mean any physical products, including Incentivio tablets, payment terminals, and other devices that need to be installed in order to deliver the Solution.
“Intellectual Property Rights” means any and all rights under patent law, copyright law, trade secret law, trademark law, moral rights, goodwill, and any and all other intellectual property rights that are in existence now and in the future.
“Order” shall mean Incentivio’s standard form for ordering the Solution, Consulting Services, and other products and services, as applicable, that is signed by Incentivio and incorporates this Agreement by reference. A Customer may execute one or more orders.
“Portal” shall mean the Incentivio web portal through which Customer can access its account for the Solution and that is used to manage Customer’s menus, campaigns, etc.
“Software” shall comprise the hosted software provided by Incentivio under this Agreement, as well as any Documentation and Updates related to the Software.
“Solution” shall comprise the Software and Hardware, Deliverables, End User Apps, Consulting Services, and such other services as may be provided under any Orders.
“Support Terms” shall mean the schedule and terms regarding support provided by Incentivio under this Agreement. The Support Terms may be provided as attached to an Order.
“Update” shall mean any error correction, enhancement, new release or other modification to the Software that Incentivio makes generally available to its customers who have ordered Support.
“User” shall mean any employee or agent of Customer who is authorized to use the Solution pursuant to this Agreement.

The Solution

2.1 Access and Use

Subject to the terms and conditions of this Agreement, including payment of all applicable fees, Incentivio hereby grants Customer, for the term of this Agreement, a non-exclusive, non-transferable, non-sublicensable right to access and use the Solution in accordance with this Section 2, solely for Customer’s internal use and in compliance with the Documentation. In addition, such use will be subject to any quantitative, geographic, subject-matter, or other field-of-use limitations set forth in the applicable Order. Incentivio further grants Customer a non-exclusive, non-transferable, non-sublicensable right and license to display, perform, reproduce, modify, and otherwise use Deliverables provided under this Agreement, solely for Customer’s internal use in connection with Customer’s authorized use of the Solution and Consulting Services. For the avoidance of doubt, the Solution will not provide Customer with payment acceptance capabilities unless Customer has elected to receive the Payment Services and is subject to the Payment Processing Addendum as reflected on the Order.

2.2 Subsidiaries and Affiliates

Upon request by Customer and approval by Incentivio, Customer may implement the Incentivio Solution at specific locations that are Affiliates or franchisees of Customer (each a “Location”) by completing an Order or separate customer application for each Location and paying the applicable fees as set forth in the Order for each Location. An Order may be executed for as many Locations as mutually agreed upon by Incentivio and Customer (in each case as indicated on the applicable Order). For the purpose of this Agreement, when Locations are operated by one or more Affiliates, internal use shall include use by those Affiliates identified on the applicable Order. Customer shall be jointly and severally liable for all acts, omissions, obligations and liabilities of each Location and any claims Incentivio has against any Location, and shall indemnify and hold Incentivio harmless from any and all losses arising from the foregoing. In all cases, Customer shall assist Incentivio in any claims it may have against the Location. Incentivio will first look to the relevant Location for payment of amounts due under the Order with such Location. For amounts or liabilities that Incentivio has been unable to recover (after using reasonable efforts in Incentivio’s discretion) from such Location, Incentivio will use the joint and several liability clause as to Customer.

2.3 End Users

‍Customer acknowledges that Incentivio may condition any User and End User’s access to the Solution or any End User App upon such User or End User agreeing to its terms and conditions governing the use of the Solution or End User App, including the terms located at: order.incentivio.com/termsofuse.html or such other terms and conditions as determined by Incentivio in its sole discretion (each a “User Agreement”). In no event shall any provision of the User Agreement be deemed to abrogate any of Customer’s obligations under this Agreement, and Customer shall remain directly liable to Incentivio for any acts or omissions of any User (including without limitation any breach of the User Agreement).

‍2.4 Additional Orders

‍Customer may order additional Solutions or Consulting Services, which shall be subject to the terms and conditions of this Agreement, by executing and delivering to Incentivio a completed Order. Such Order shall only be effective upon Incentivio’s written acceptance thereof. Any purchase order or equivalent document generated by Customer (a “PO”) shall only be binding upon Incentivio if it explicitly incorporates an Order by reference, and then only to the extent that such PO is consistent with such Order. Any terms of the PO which are inconsistent with or in addition to the terms of this Agreement shall not become part of the agreement between the parties unless such terms are expressly accepted by an Order which specifically incorporates them. In addition, Incentivio will not be bound by a PO unless and until Incentivio confirms acceptance of the PO to Customer in writing signed by an authorized representative of Incentivio.

‍2.5 Support, Implementation, and Other Services

‍Subject to the terms and conditions of this Agreement, including payment of all applicable fees, Incentivio shall provide Customer with Consulting Services as set forth on the applicable Order. If Customer orders any Consulting Services under an Order (including any training), then, upon request from Incentivio, Customer will promptly provide Incentivio with any information, resources, and assistance required by Incentivio to enable the implementation of such Consulting Services or ongoing provision of the Consulting Services for Customer’s purposes as described on the Order and, if applicable, to provide training to the employees. Any dates specified in an Order are estimates only and are contingent upon Customer’s timely compliance with its obligations relative to such implementation and any dependencies on Customer’s performance. It is the responsibility of Customer to ensure Incentivio receives inputs and feedback in a timely and efficient manner to allow Incentivio to complete implementation of the Solution and the Consulting Services within the timelines set forth on the Order. Incentivio will have no obligation or liability for any failure to deliver or complete the Consulting Services or the Solution if caused in whole or in part as a result of Customer’s failure to timely perform its obligations under this Agreement or the Order, or Customer’s failures to timely provide the information, resources, or personnel requested by Incentivio. Unless otherwise indicated in the applicable Order, delivery and implementation of the Solution will be deemed complete on the date that the End User Apps are made publicly available, including but not limited to through one or more App Stores (“App Publication Date”) or Customer begins using the Solution in a production environment.

‍2.6 Gift Cards

‍If Customer elects to issue Gift Cards to its End Users, such Gift Card program must be compliant with and Customer is solely responsible for its compliance with all applicable present and future federal and state laws and regulations and payment network rules relating to Gift Cards and any required consumer disclosures, data privacy, and fee and use restrictions (for example, limits on dormancy fees, monthly charges, or Gift Card expiration) related thereto. Customer is solely liable for and will indemnify and hold harmless Incentivio for any losses, assessments, claims or other amounts resulting from its implementation of Gift Cards including, without limitation, for any unfunded Gift Card balance or fraudulent activity, unauthorized use, or fees or losses related to or associated with a Gift Card.

‍3. Payment

3.1 Fees

‍Customer shall pay to Incentivio all fees set forth in the applicable Order. Incentivio may not increase such fees more than once in any twelve (12) month period (except for the pass-through of increases and additions to third party fees and costs, upon 30 days’ prior written notice). Any increase to Incentivio’s fees (excluding third-party pass-throughs) may not exceed five percent (5%) plus the percentage increase, if any, in the Consumer Price Index (US City Average, All Items, Not Seasonally Adjusted), published by the US Department of Labor over the prior 12 months. Unless a different payment schedule is set forth on the applicable Order, implementation fees are due on the Order Date, and Incentivio will commence billing the monthly subscription fees beginning on the App Publication Date.

‍3.2 Payment Terms; Authorization

‍As a condition to receive the Solution, Customer must provide Incentivio with its bank account or credit/debit card information (“Payment Credential”) to be used for all one-time and recurring fees due under this Agreement. Customer hereby authorizes Incentivio to debit or credit the Payment Credential for all amounts set forth in all applicable Orders. Incentivio will collect all such amounts due on the date or schedule set forth on the applicable Order, and if no due date is specified for a payment, then that payment shall be due within ten (10) days of Customer’s receipt of an invoice therefor. Such authorization will remain in full force and effect for the duration of the Agreement including after termination of this Agreement, until all amounts owed to Incentivio have been paid, or until Customer expressly withdraws or cancels such authorization with written notice to Incentivio. Customer further authorizes Incentivio to relay the Payment Credential and payment information to its banking and processing partners to facilitate the credit or debit to Customer’s Payment Credential. Customer is responsible for all fees and charges in connection with the debit or credit of any Payment Credential hereunder. Client agrees that all ACH transactions (whether debit or credit to Customer’s depositor account designated as its Payment Credential) is authorized pursuant to this authorization and complies with all applicable laws and with the Nacha Operating Rules. Unless expressly provided otherwise in this Agreement, all fees are non-refundable and non-cancelable. If Customer fails to make any payment when due (or if any attempt by Incentivio to debit or credit the Payment Credential is returned, disputed or rejected), Incentivio may suspend the provision of the Solution or any Consulting Services until payment has been made in full upon at least ten (10) days prior written notice to Customer and Customer’s failure to make such payment within such 10-day period. Any amount not paid when due will bear interest from the due date until paid at a rate equal to 1% per month or the maximum allowed by Law, whichever is less. Incentivio may terminate this agreement with immediate effect by delivering notice of the termination to Customer if Customer fails to pay the monthly Subscription Fee on time three times over any 12-month period.

‍3.3 Taxes

‍Customer shall pay all import duties, levies or imposts, and all sales, use, value-added, property, or other taxes of any nature, assessed upon or with respect to any products or services provided to Customer by Incentivio, which are imposed by any community of nations or any nation, or any political subdivision of any nation, but excluding United States taxes based on Incentivio’s net income. Customer shall pay on or before their due dates all such taxes, fees, duties, and charges which arise out of or in connection with this Agreement or any license or sublicense granted herein or any use of the Solution. In the event that Incentivio is required at any time to pay any such tax, fee, duty or charge, Customer shall promptly reimburse Incentivio therefore. Nothing under this section limits Incentivio’s obligation to collect and remit such tax, fee, duty, or charge if required under applicable law. If Customer is required by law to make any deduction or to withhold from any sum payable to Incentivio by Customer hereunder, then the sum payable by Customer upon which the deduction or withholding is based shall be increased to the extent necessary to ensure that, after all, deduction and withholding, Incentivio receives and retains, free from liability for any deduction or withholding, a net amount equal to the amount Incentivio would have received and retained in the absence of such required deduction or withholding.

‍4. Confidentiality; Data Security

4.1 Confidential Information

‍“Confidential Information” means any information that (i) is not generally known or available to others in the trade, (ii) the disclosing party designates in writing as confidential, or (iii) given the nature of the information, would be understood to be proprietary or confidential by a reasonable person. Customer hereby designates the Customer Data as its Confidential Information. Incentivio hereby designates the Solution and any algorithms, mathematical models, business plans, product plans, financial data, or other ideas, techniques or information disclosed in the course of providing the Solution or the Consulting Services as its Confidential Information.

‍4.2 Non-Disclosure

‍The party receiving Confidential Information (“Recipient”) shall, by all appropriate means, protect the confidentiality of the Confidential Information of the other party (“Discloser”); but in no event shall the Recipient use a lesser standard of care with respect to Confidential Information than it does with respect to Recipient’s own most sensitive confidential information, and in no event less than reasonable care. Recipient shall hold the Confidential Information of Discloser in trust and confidence and shall not copy Discloser’s Confidential Information or disclose such information to third parties. Recipient shall not use the Discloser’s Confidential Information for any purpose other than the performance of its duties under this Agreement. Recipient shall cooperate with Discloser in investigating and resolving any suspected breach of confidentiality. Recipient may disclose Discloser’s Confidential Information, on a need-to-know basis, to Recipient’s auditors, attorneys, or governmental authorities exercising a supervisory, examination, or regulatory function in relation to the Recipient. All Confidential Information shall be returned by the Recipient to the Discloser when it is no longer needed or at the termination of this Agreement, whichever comes first. The parties’ obligations under this Section 4.2 shall continue for a period of three (3) years after the termination of this Agreement and shall continue indefinitely for trade secrets.

‍4.3 Exceptions

‍The obligations set forth in Section 4.2 shall not apply to, and Confidential Information shall not include, information which (i) is in the possession of Recipient prior to disclosure by Discloser, (ii) becomes known to the general public through no act or omission of Recipient, (iii) is lawfully disclosed to Recipient by a third party, or (iv) Recipient develops independently without the use of any Confidential Information. If Recipient is required by a court or governmental agency to disclose Confidential Information of Discloser, Recipient shall immediately inform Discloser in writing of the order or request for such disclosure and shall take commercially reasonable steps to maintain the confidentiality of the Confidential Information, at Discloser’s request and expense.

‍4.4 Security, Credentials

‍Customer is (a) solely responsible for maintaining the security and control of its premises, equipment (including Hardware and associated firmware), and any passwords or other credentials used to log in to Customer’s or any User’s account (“Credentials”); and (b) fully liable for all activity of its Users that occur while using the Solution. Customer shall only provide Credentials to Users who are authorized, pursuant to this Agreement, to use the Solution in accordance with the terms of the Order and any applicable Documentation, and Customer shall be responsible for ensuring the security of all Credentials. Incentivio shall be entitled to rely on information it receives using Credentials, or which is otherwise purported to be transmitted by any person on behalf of Customer. In the event of any actual or suspected compromise of any Credential or any other potential unauthorized access to the Solution, Customer shall immediately notify Incentivio thereof and shall provide Incentivio with all reasonable cooperation to mitigate such unauthorized access. Incentivio reserves the right to suspend or terminate any User’s access to the Solution in the event that Incentivio reasonably believes that a User has violated the terms of this Agreement, the User Agreement, or of any applicable laws or regulations.

‍5. Proprietary Rights

5.1 Incentivio Intellectual Property

‍Except as expressly provided otherwise in this Agreement, Incentivio shall retain all rights, titles, and interest, including all Intellectual Property Rights, in and to the Solution, Consulting Services, Documentation, and other materials provided by Incentivio, and any improvements to any of the foregoing (including without limitation any improvements suggested by Customer or by Customer’s usage of the Solution), as well as any other invention, modification, discovery, design, development, improvement, process, algorithm, software, documentation, formula, data, technique, know-how or other invention, innovation or work of authorship, or any interest therein (whether or not patentable or registrable under copyright or similar statutes or subject to analogous protection) discovered, conceived of, reduced to practice, authored or otherwise developed by Incentivio or its agents. All of the foregoing will be deemed Incentivio’s Confidential Information.

‍5.2 Customer Intellectual Property

‍Customer shall retain all right, title, and interest in and to the Customer Data, which will be deemed Customer’s Confidential Information. Customer is solely responsible for the Customer Data and Customer represents, warrants, and covenants that Customer is the owner or licensee of all Customer Data and that Incentivio’s use of such Customer Data in accordance with this Agreement will not violate any right of privacy, personal or proprietary right, or other common law or statutory right of any third party. Customer grants to Incentivio a non-exclusive, royalty-free right and license to use, access, and process the Customer Data solely for the purposes of providing the Solution and Consulting Services. Customer further grants to Incentivio a non-exclusive, royalty-free right and license to use and display the Customer Marks in connection with Incentivio’s provision of the Solution and Deliverables to Customer.

‍5.3 Data Usage

‍Notwithstanding any other provision of this Agreement, Incentivio may prepare and retain an Anonymized Dataset that may be partially derived from Customer Data, and may use the Anonymized Dataset for research, performance tuning, product development, predictive analytics, or any other lawful purpose. Upon creation, as between Customer and Incentivio, Incentivio shall own and retain all Intellectual Property Rights in and to such Anonymized Dataset entirely without obligation to Customer or restriction of any kind. In order to qualify as an “Anonymized Dataset,” the data retained by Incentivio must (a) be de-identified so that any direct or indirect identifiers or codes linking the data to the individual subject’s identify are destroyed or there are no reasonable means for a third party to re-identify the individual; or (b) be aggregated with data from other customers of Incentivio, or otherwise be stripped of any information that would allow a third party to identify Customer or any Confidential Information of Customer.

‍5.4 Third-Party Products

‍The Solution, End User App, or any Deliverables may inter-operate with certain third-party software or hardware products (“Third Party Products”). Incentivio makes no warranty and assumes no liability with respect to any such Third Party Products. Customer’s use of Third Party Products shall be subject to the terms and conditions, if any, imposed by the vendors of such Third Party Products. Without limiting the foregoing, the End User App will be subject to any terms and conditions provided by or associated with the App Stores on which the End User App is made available.

‍5.5 Restrictions

‍The Solution shall not be used for any purpose other than as expressly authorized by this Agreement. In particular, but without limitation, Customer agrees that it will not: (a) make the Solution available to, or use the Solution on behalf of, any third party (including without limitation, any agent or affiliate of Customer), without the written consent of Incentivio, including to any affiliates, subsidiaries or franchisees; (b) use the Solution for purposes of benchmarking or reverse-engineering; (c) compromise the integrity or performance of the Solution or of any system, network or data used to provide the Solution; (d) circumvent, disable or disrupt any technical measures that Incentivio uses to administer, protect, or operate the Solution; (e) use the Solution for any purpose that is deceptive, fraudulent, obscene, defamatory, threatening, harassing, tortious, unlawful, or violative of any applicable Rules or laws; (f) use or access the Solution to build or support, and/or assist a third party in building or supporting, products or services competitive with the Solution; or (g) remove or obscure any proprietary notices or labels from the Solution.

‍5.6 Reservation of Rights

‍Nothing in this Agreement shall be deemed to grant Customer, either directly or by implication, estoppel, or otherwise, any license or rights other than those expressly granted in Sections 2.1 and 2.2 of this Agreement. By virtue of this Agreement, Customer acquires only the right to use the Solution and does not acquire any other rights or ownership interests. Incentivio reserves all rights to the Solution not expressly granted to Customer under this Agreement.

‍5.7 Feedback

‍Incentivio shall be free to use any comments, suggestions, ideas, feature requests, or other feedback provided to Incentivio related to any of Incentivio’s products and services, in any manner and for any reason, including to improve such products and services or incorporate such feedback into future versions of such products and services or Incentivio’s materials, with no obligation of confidentiality or compensation and without restriction of any kind.

‍6. Warranty

6.1 Solution Warranty

‍Incentivio warrants to Customer that, during the term of the Order, the Software will (a) materially conform to the Documentation, as the same may be updated by Incentivio from time to time in the ordinary course of business; (b) comply with the Support Terms as attached to or associated with an Order; (c) comply with the Data Security Addendum as attached to or associated with an Order; and (d) to Incentivio’s knowledge be delivered free of any harmful code, including, without limitation, code, files, scripts, agents, malware, or programs intended to do harm, including but not limited to viruses, worms, time bombs, and Trojan horses. Customer’s sole and exclusive remedy for breach of this limited warranty is limited to (i) any remedies set forth in the applicable Support Terms; (ii) correcting or replacing the Solution so that it conforms to this warranty; or (iii) if such correction or replacement is not commercially reasonable, termination of this Agreement in connection with terms hereof. The warranty for any Hardware provided by Incentivio to Customer hereunder shall be limited to the warranty made available to Customer by the third-party manufacturer. Incentivio may contact Customer in order to assist Incentivio with the Solution and obtain information needed to identify and fix any errors. Incentivio may alter which Hardware is approved as compatible with the Solution in Incentivio’s discretion from time to time, subject to reasonable notice.

‍6.2 Limitations on Warranties

‍Incentivio’s warranty shall not apply to any claim that is not reported to Incentivio in writing within the applicable warranty period or which results from (i) use of the Solution other than in accordance with the Documentation and the terms of this Agreement, (ii) acts or omissions of persons other than Incentivio, (iii) hardware, software, firmware or other products not provided by Incentivio, or (iv) any other cause beyond Incentivio’s reasonable control. Incentivio does not warrant that the Solution will be compatible with Customer’s mobile device or a third-party carrier. Customer’s use of the Solution may be subject to the terms of Customer’s agreements with its mobile device manufacturers and carriers. Such carriers’ normal rates and fees, such as data transfer fees, may apply and Customer is solely liable for the payment of all such carrier fees.

‍6.3 Disclaimer

‍THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 6 ARE THE ONLY WARRANTIES MADE BY INCENTIVIO WITH RESPECT TO THE SOLUTION (HARDWARE OR SOFTWARE) AND CONSULTING SERVICES, AND ARE IN LIEU OF, AND INCENTIVIO HEREBY DISCLAIMS, ANY AND ALL OTHER WARRANTIES, CONDITIONS, OR REPRESENTATIONS (WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN), INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, INFORMATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE (WHETHER OR NOT INCENTIVIO KNOWS OR HAS REASON TO KNOW OF SUCH PURPOSE), WHETHER ARISING BY LAW, CUSTOM, USAGE IN THE TRADE OR BY COURSE OF DEALING. INCENTIVIO SPECIFICALLY DISCLAIMS ANY WARRANTY THAT THE OPERATION OF THE SOLUTION WILL BE UNINTERRUPTED OR ERROR-FREE. IN ADDITION, INCENTIVIO EXPRESSLY DISCLAIMS ANY WARRANTIES TO ANY PERSON OTHER THAN CUSTOMER.

‍7. Indemnification

7.1 Indemnity by Incentivio

‍Incentivio shall defend or, at its option, settle, any claim, action, or proceeding brought against Customer to the extent that it is based upon a claim that the use of the Solution by Customer in accordance with the terms of this Agreement infringes any issued United States patent, copyright, or trade secret of a third party, and shall indemnify Customer against all damages and costs finally awarded against Customer by a court of competent jurisdiction in any such action or proceeding. Incentivio shall have no liability under this Section 7.1 unless Customer (a) promptly notifies Incentivio in writing of the claim, (b) gives Incentivio sole control of the defense of such claim and all negotiations for the compromise or settlement thereof and (c) provides Incentivio with all reasonable cooperation, information and assistance in connection with the claim. Incentivio shall have no liability hereunder for any costs incurred or settlement entered into without its prior written consent. Notwithstanding the foregoing, Incentivio shall have no liability with respect to any infringement claim based upon (i) the combination of the Solution with other products or services not provided by Incentivio, (ii) any use of the Solution other than as authorized by Incentivio, or (iii) Customer’s instructions, advice, assistance or other activity.

‍7.2 Indemnity by Customer

‍Company shall defend, indemnify, and hold Incentivio harmless from and against any loss, liability, damage, penalty, or expense (including attorney’s fees and court costs) based on or arising from: (a) a breach of this Agreement, or any use of the Solution other than as authorized by Incentivio; (b) any violation or non-compliance with applicable law, rule, or regulation, or any negligence or willful misconduct, by Customer or its employees or agents; (c) any data breach or unauthorized access, use, or disclosure of personal information from systems and networks controlled by Customer or its service providers; or (d) any claim that any Customer Data or other materials by Customer infringe or misappropriate the intellectual property rights of a third party.

‍7.3 Mitigation; Remedies

‍If the Solution or any part thereof becomes, or in Incentivio’s opinion is likely to become, the subject of a valid claim of infringement, Incentivio shall have the right, at its option and expense, either to (i) obtain for Customer a license permitting the continued use of the Solution at no cost to Customer, (ii) replace or modify the Solution so that it becomes non-infringing, so long as the Solution continues to provide substantially similar functionality, or (iii) refund any unearned fees to Customer and terminate Customer’s right to use the Solution. THE PROVISIONS OF THIS SECTION 7 STATE THE EXCLUSIVE LIABILITY OF INCENTIVIO AND THE EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT BY THE SOLUTION, ANY PART THEREOF OR THE USE THEREOF, AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTY OF NONINFRINGEMENT, AND INDEMNITIES WITH RESPECT THERETO.

‍8. Limitations of Liability

8.1 Maximum Liability

‍IN NO EVENT SHALL EITHER PARTY’S CUMULATIVE LIABILITY, WHETHER IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THE SOLUTION, CONSULTING SERVICES, OR THIS AGREEMENT, EXCEED THE AMOUNT OF ANY FEES PAID OR DUE TO INCENTIVIO BY CUSTOMER DURING THE TWELVE (12) MONTHS PRECEDING SUCH CLAIM.

‍8.2 Exclusion of Non-Direct Damages

‍IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, OR TORT DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS, OR LOSS OF BUSINESS) ARISING OUT OF OR IN CONNECTION WITH THE SOLUTION, CONSULTING SERVICES, OR THIS AGREEMENT, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

‍8.3 Exclusions

‍The limitations contained in this Section 8 shall survive the termination of this Agreement. The limitations set forth in Sections 8.1 and 8.2 above shall not apply to (i) any breach of Section 4 (Confidentiality), (ii) any claims for indemnification pursuant to Section 7 of this Agreement, (iii) a claim that a party misappropriated the other party’s intellectual property, or (iv) a claim arising due to a party’s violation of applicable law.

‍9. Term and Termination

9.1 Term of Master Agreement

‍The Order Date set forth on the initial Order entered into under this Agreement shall constitute the Effective Date of this Agreement. The term of this Agreement shall continue for the duration of the initial Order and any other Orders entered into hereunder. If at any time all Orders have expired or terminated and there are no Orders then in effect, then this Agreement will automatically terminate. However, termination of this Agreement (without the concurrent termination of any Orders) will not automatically terminate any Orders then in effect, and these T&Cs will survive and apply to all open Orders until the expiration or termination of such Orders in accordance with their terms.

‍9.2 Term of Each Order

‍The initial term of each Order shall begin on the Order Date identified on such Order and shall continue for twelve (12) months, or as otherwise provided in the applicable Order (the “Initial Order Term”). Each Order shall automatically renew for additional periods of twelve (12) months (each, a “Renewal Order Term”), unless either party provides the other with notice of non-renewal at least ninety (90) days prior to the commencement of such Renewal Order Term. If the Order provides for delivery of an End User App, the Initial Order Terms shall be twelve (12) months from the App Publication Date and the Renewal Order Terms shall use the App Publication Date as the anniversary date for renewal, unless otherwise provided in the applicable Order. The Initial Order Term and any Renewal Order Terms shall be collectively referred to as the “Order Term”.

‍9.3 Termination

‍In the event that either party (the “Breaching Party”) materially breaches any of its duties or obligations under an Order and does not cure such breach within thirty (30) days after being given written notice specifying the breach, then the other party (the “Non-Breaching Party”) may terminate the affected Order upon written notice thereof to the Breaching Party. If the breach is such that it necessarily affects all outstanding Orders, or this Agreement itself, then the Non-Breaching Party may elect to terminate this Agreement as well. In the event that Customer’ use of the Solution creates imminent and material risk of loss or liability (including damage to reputation, third party infringement, or legal liability), Incentivio may immediately terminate this Agreement, any Order, or any part thereof without prior notice.

‍9.4 Effect of Termination

‍Termination of an Order or this Agreement shall not limit either party from pursuing any other remedies available to it, including injunctive relief, nor shall such termination relieve Customer’s obligation to pay all fees that accrued prior to such termination. Customer shall immediately pay to Incentivio all amounts outstanding as of the date of, and any amounts outstanding as a result of, termination. Neither party shall be liable to the other party for any costs or damages of any kind, including incidental or consequential damages, or for indemnification, solely on account of the lawful termination of an Order or this Agreement, even if informed of the possibility of such damages. Sections 3 – 5, 6.3, 7, 8, this 9.4, 10, and 11 will survive any expiration or termination of this Agreement.

‍10. Arbitration Agreement

10.1 Agreement to Arbitrate

‍This Section is referred to as the “Arbitration Agreement.” Except where prohibited by applicable law, each party agrees that any and all disputes or claims that have arisen or may arise between Customer and Incentivio, whether arising out of or relating to this Agreement or in connection with Customer’s use of the Solution or Consulting Services or Incentivio’s websites, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that Customer may assert individual claims in small claims court, if Customer’s claims qualify. Each party agrees that, by agreeing to this Agreement, Customer and Incentivio are each waiving the right to a trial by jury or to participate in a class action. The party’s rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. Notwithstanding the foregoing, this Arbitration Agreement shall not preclude either party from pursuing a court action for the sole purpose of obtaining a temporary restraining order or preliminary injunction in circumstances in which such relief is appropriate; provided that any other relief shall be pursued through an arbitration proceeding pursuant to this Arbitration Agreement. In any event, any action or proceeding by a party against another party relating to any Dispute must commence within one year after the cause of action accrues.

‍10.2 Prohibition of Class and Representative Actions and Non-Individualized Relief

‍Except where prohibited by applicable law, Customer and Incentivio agree that each may bring claims against the other only on an individual basis and not as a plaintiff or class member in any purported class or representative action or proceeding. Unless both Customer and Incentivio agree otherwise, the arbitrator may not consolidate or join more than one person’s or party’s claims and may not otherwise preside over any form of a consolidated, representative, or class proceeding. Also, the arbitrator may award relief (including monetary, injunctive, and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party’s individual claim(s).

‍10.3 Pre-Arbitration Dispute Resolution

‍The parties agree that each is interested in resolving disputes amicably and efficiently and, in that way, Customer agrees to initially work with the support team at Incentivio. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written notice of dispute (“Notice”). The Notice to Incentivio should be sent to Incentivio, Inc., at the address of Incentivio set forth on the Order associated with this Agreement, Attn: President; the Notice to Customer should be sent to the address of Customer set forth on the Order associated with this Agreement. The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Customer and Incentivio do not resolve the claim within forty five (45) calendar days after the Notice is received, Customer or Incentivio may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Customer and Incentivio shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which Customer or Incentivio is entitled.

‍10.4 Arbitration Procedure

‍The arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Commercial Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. The arbitrator can award issues relating to, without limitation, the scope, enforceability, and arbitrability of this Arbitration Agreement. The arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under this Agreement and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons. Unless Customer and Incentivio agree in writing, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If Merchant’s claim is for $10,000 or less, Incentivio agrees that Customer may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing or by an in- person hearing as established by the AAA Rules. If Customer’s claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.

‍10.5 Cost of Arbitration

‍Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules unless otherwise provided in this Arbitration Agreement. The arbitrator shall award the prevailing party in any arbitration such party’s reasonable attorney’s fees.

10.6 Confidentiality

‍All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.

‍10.7 Severability

‍If a court or the arbitrator decides that any term or provision of this Arbitration Agreement other than clause 11.2 above is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of clause 11.2 is invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of this Agreement will continue to apply.

‍11. General Provisions

11.1 Entire Agreement’ Amendment

‍This Agreement, including these T&Cs, the Orders made under this Agreement, and any exhibits, schedules, or addenda attached to or referenced in any of the foregoing, constitutes the entire understanding and agreement of the parties with respect to the subject matter hereof, and supersedes any and all prior or contemporaneous representations, understandings, or agreements, whether oral or written, between the parties relating to the subject matter of this Agreement, all of which are merged in this Agreement. If an updated version of these T&Cs is attached to or provided with any future Order made under this Agreement, the new T&Cs will supersede and replace all previous versions of these T&Cs which were attached to any prior Orders, and the new T&Cs will apply to all Orders made under this Agreement and all Solutions and other services provided thereunder. Any amendment proposed by Customer to this Agreement or any Order will not be effective unless accepted in a writing signed by Incentivio. Incentivio reserves the right, in its sole discretion, to modify or replace any part of this Agreement at any time, and such modified terms will be effective upon the stated effective date of such change. Incentivio will notify Customer of such changes by posting them on the website or Portal and possibly by other means (such as email). Customer’s continued use and access of the Services following the effective date of such change to this Agreement constitutes Customer’s acceptance of those changes.

‍11.2 Compliance with Laws

‍Each party shall comply with all applicable laws, regulations, rules, orders, and other requirements, now or hereafter in effect, of any applicable governmental authority in connection with this Agreement (including without limitation, any applicable export control regulations). Customer shall, at its sole cost and expense, obtain and maintain in effect all permits, licenses, and other consents necessary to the conduct of its activities hereunder.

‍11.3 Restricted Rights

‍If Customer is an agency of the U.S. Federal government (the “Government”), or a prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement, or other arrangements with the Government, Customer hereby acknowledges that the Software and any related technical data shall be deemed to be “commercial computer software” pursuant to FAR Section 12.212, DFAR Section 227.7202, or such other acquisition regulations as may be applicable to this procurement. Any use, modification, reproduction, release, performance, display, disclosure, or transfer of the Software or technical data shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by this Agreement.

‍11.4 Independent Contractors

‍The parties to this Agreement are independent parties and nothing herein shall be construed as creating an employment relationship between the parties. Neither party is an agent or representative of the other party and neither party shall have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability, or otherwise bind, the other party. This Agreement shall not be interpreted or construed to create an association, agency, joint venture, or partnership between the parties or to impose any liability attributable to such a relationship upon either party.

‍11.5 Assignment

‍This Agreement shall inure to the benefit of and be binding upon the parties hereto, their successors, and permitted assigns. Customer may not assign this Agreement without the prior written consent of Incentivio, which consent shall not be unreasonably withheld. Incentivio may assign any of its rights or delegate any of its duties under this Agreement to any person or entity.

‍11.6 Publicity

‍Incentivio may not include Customer’s trademarks, name, and logos in its customer lists, press releases, marketing materials, and on its website prior to receiving Customer’s prior written consent which will not be unreasonably withheld, conditioned, or delayed. The foregoing does not in any way preclude Incentivio from using Customer’s trademarks, name and logos for the purposes of providing the Solution and the Consulting Services.

‍11.7 Governing Law and Venue

‍The laws of the Commonwealth of Massachusetts shall govern this Agreement, without giving effect to applicable conflict of laws provisions or to the United Nations Convention on Contracts for the International Sale of Goods. Except as set forth in Section 10 (Arbitration Agreement), the parties agree that the jurisdiction and venue of any action with respect to this Agreement shall be in a court of competent subject matter jurisdiction located in the Commonwealth of Massachusetts, and each of the parties hereby agrees to submit itself to the exclusive jurisdiction and venue of such courts for the purpose of any such action. IF FOR ANY REASON A CLAIM OR DISPUTE PROCEEDS IN COURT RATHER THAN THROUGH ARBITRATION, EACH PARTY KNOWINGLY AND IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS ADDENDUM OR ANY OF THE TRANSACTIONS SUBMITTED IN CONNECTION WITH THIS ADDENDUM.

‍11.8 Remedies; Equitable Relief

‍No remedy referred to in this Agreement is intended to be exclusive, but each shall be cumulative and in addition to any other remedy referred to herein or otherwise available at law, in equity or otherwise. The covenants of Customer in Sections 4 (Confidentiality) and 5 (Intellectual Property) are of a special and unique character, and Customer acknowledges that monetary damages alone will not reasonably or adequately compensate Incentivio for any breach of such covenants. Therefore, Incentivio and Customer expressly agree that in the event of the breach or threatened breach of any such covenants, in addition to other rights or remedies which Incentivio may have, at law, in equity, or otherwise, Incentivio shall be entitled to injunctive or other equitable relief compelling specific performance of, and other compliance with, the terms of such Sections without requiring the posting of any bond.

‍11.9 Force Majeure

‍Neither party shall be liable for any delay or failure in performance hereunder caused by reason of any occurrence or contingency beyond its reasonable control and which renders its performance illegal, impossible, or commercially impracticable, which may include but not be limited to, acts of God, war, riot, civil disturbance, acts of any civil or military authority, judicial action, terrorist act, fire, flood, earthquake, strike, delays in transportation, unavailability or shortages of labor, materials or equipment, failure or delays in delivery of vendor and suppliers, interruption or failure of telecommunication or digital transmission links, Internet disruptions, common carrier interruptions, breakdown in facilities, power failure or other accidents or unforeseen circumstances. The impacted party must promptly provide written notice to the other party of its inability to perform and its best estimate for when performance will resume. The obligations and rights of the party so excused shall be extended on a day‑to‑day basis for a period of time equal to that of the underlying cause of the delay. The foregoing does not apply to Customer’s payment obligations.

‍11.10 Notice

‍All notices to be given in connection with this Agreement shall be effective upon , shall be made in writing and shall be sufficiently given if personally delivered or if sent by courier or other express mail services, postage prepaid, addressed to the party entitled or required to receive such notice at the address for such party set forth on the first page of this Agreement. Either party may by such notice to the other change such address.

‍11.11 Waiver

‍No waiver of any provision of this Agreement, or any rights or obligations of either party under this Agreement, shall be effective, except pursuant to a written instrument signed by the party or parties waiving compliance, and any such waiver shall be effective only in the specific instance and for the specific purpose stated in such writing. The failure of either party to require the performance of any term of this Agreement or the waiver of either party of any breach under this Agreement shall not operate or be construed as a waiver of any other provision hereof, nor shall it be construed as a waiver of any subsequent breach by the other party hereto.

‍11.12 Severability

‍Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provisions of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of this Agreement.

‍11.13 Construction

‍The section and paragraph headings used in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement. All words used in this Agreement will be construed to be of such gender or number as the circumstances require. Unless otherwise expressly provided, the word “including” does not limit the preceding words or terms. Both parties acknowledge that they have been represented by counsel in the negotiation of this Agreement, and hereby waive any canon of construction that would require any portion of this Agreement to be construed against the drafter thereof.