appyReward Agreement of Use 2023
Welcome, and thank you for your interest in appyRewards ‐ appyRewards Inc., a Delaware corporation and/or appyReward S.A.S., a French corporation, (“The Company” or “appyRewards” or “appyReward” or “We” or “Us”) and appyRewards’ Web site at www.appyreward.com (the “Site”), as well as all related web sites, networks, embeddable widgets, downloadable software, mobile applications, and other services provided by Us and on which a link to this agreement of use “Agreement of Use” or “Terms of Use” or “Terms of Use & Sale”) is displayed. These Terms of appyRewards are a legally binding contract between Subscriber and appyRewards regarding Subscriber’s use of the appyRewards Application (“appyRewards or appyReward Application”).
PLEASE READ THE FOLLOWING TERMS OF USE & SALE CAREFULLY. BY ACTIVATING YOUR ACCOUNT AND CLICKING “CLICK HERE” IN THE ACCOUNT CONFIRMATION EMAIL, SUBSCRIBER ACKNOWLEDGES THAT SUBSCRIBER HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS, INCLUDING THE APPYREWARD PRIVACY POLICY (COLLECTIVELY, THIS “AGREEMENT”). If Subscriber is not eligible, or does not agree to this Agreement, then Subscriber must not use the appyRewards Application.
1. ELIGIBILITY
appyRewards Application is a Software as a service (Saas) application used by companies for creating and managing incentives, promotions, games, sweepstakes, and loyalty rewards programs with customers, partners, employees, or other users. Subscriber must be at least eighteen (18) years of age to use the appyRewards Application. By agreeing to this Agreement, Subscriber represents and warrants to appyRewards: (i) that Subscriber is at least eighteen (18) years of age; (ii) that Subscriber has not previously been suspended or removed from the appyRewards Application; and (iii) that Subscriber’s registration and Subscriber’s use of appyRewards is in compliance with any and all applicable laws and regulations. If you are using the appyRewards Application on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind such organization to this Agreement and you agree to be bound by this Agreement on behalf of such organization, which is the Subscriber under this Agreement.
2. DEFINITIONS
2.1 “Documentation” means appyRewards-provided user documentation, in all forms, relating to appyRewards Application (e.g., user manuals, on-line help files, etc.).
2.2 “Gift-Card” or “Reward” or “Digital Gift-Card or E-Gift-Card or Digital Reward or Prepaid Virtual card or “Reward Link” means a digital gift-card and/or reward that is purchased and downloaded by Subscriber via the appyRewards Application and can be redeemed by recipient to make purchases at a Merchant or to reverse at a donation.
2.3 “Reward Terms” means the additional terms governing the downloading of Digital Gift-Cards or Rewards that can be updated by appyRewards from time to time.
2.4 “Reward Pricing” means appyRewards’ standard pricing table listing the fees and pricing for the different offerings of appyRewards located on demand at [https://app.appyreward.com/appyreward-pricing], as may be updated by appyRewards from time to time.
2.5 “appyRewards Application” means appyRewards’ web-based digital rewards platform that enables the sending of customizable and trackable Digital Gift-Cards or Rewards.
2.6 “Merchant” means a business that offers Digital Gift-Cards or Rewards that can be purchased by Subscriber and sent to Recipients using the appyRewards Application.
2.7 “Order Form” means an appyRewards order form executed by both parties and specifying any additional terms and conditions applying to Subscriber’s use of the appyRewards Application.
2.8 “Recipient” means a recipient of one or more Digital Gift-Cards or Rewards sent by Subscriber using the appyRewards Application.
2.9 “Use Data” means any data or information other than Subscriber Data that is collected by appyRewards as a result of Subscriber’s access to or use of the appyRewards Application or any Recipient’s interactions with Gift-Card and Reward offers.
2.10 “Subscriber Data” means any data or information provided by or on behalf of Subscriber to appyRewards, in connection with Subscriber’s use of the application.
2.11 “Loyalty Program” or “appyReward Point Pulse” is the appyRewards’ points-based reward management system, allowing Customers to reward its participants and/or recurrent recipients (here “Members”) with loyalty points (“Points”) that can be redeemed for Digital Rewards
3. USE OF THE APPYREWARD APPLICATION
3.1 Use of appyRewards. Subject to the Terms of Use of this Agreement, appyRewards grants to Subscriber a limited, worldwide, non-exclusive, non-transferable (except as permitted in Section 10.2) right during the term of this Agreement to use the appyRewards Application solely to send and manage Digital Gift-Cards or Rewards to Recipients. The Parties understand and agree that appyRewards is only providing access to its software-as-a-service platform.
3.2 Technical Support. Subject to the Terms of Use of this Agreement, appyRewards will provide Subscriber with remote access to the application. For so long as Subscriber is current with its payment of all fees required under this Agreement, appyRewards will use reasonable efforts to provide Subscriber with the technical support services by email, Monday through Friday, excluding holidays.
3.3 Use Restrictions. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Subscriber will not, and will not permit or authorize third parties to: (a) reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer, or create derivative works of the appyRewards Application; (b) rent, lease, or otherwise permit third parties to use the appyRewards Application or Documentation; (c) use the appyRewards Application to provide services to third parties; nor (d) circumvent or disable any security or other technological features or measures of the appyRewards Application.
3.4 Compliance with Laws. Subscriber will use appyRewards Application in compliance with the Reward Terms and all applicable laws and regulations. Individual terms, conditions and limitations may apply for Digital Gift-Cards or Rewards. We have made every reasonable effort to include such terms, conditions and limitations on this Site, but these may change from time to time without notice. It is your responsibility to check any terms, conditions or limitations which may apply with the brand owner of the Digital Gift-Cards or Rewards.
3.5 Subscriber Content. Certain features of appyRewards may allow Subscriber to upload content, including messages, photos, video, images, folders, data, text, and other types of works (collectively, “Subscriber Content”) and to publish Subscriber Content through the appyRewards Application. Subscriber retains copyright and any other proprietary rights that Subscriber may hold in the Subscriber Content. Subscriber grants appyRewards a worldwide, non-exclusive, royalty-free right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify, and distribute the Subscriber Content, in whole or in part, in any media formats and through any media channels (now known or hereafter developed). Any use of the Subscriber Content by appyRewards will be without any compensation paid to Subscriber. Subscriber is solely responsible for Subscriber Content and the consequences of posting or publishing Subscriber Content. By posting or publishing Subscriber Content, Subscriber represents and warrants that (a) Subscriber is the creator and owner of, or has the necessary licenses, rights, consents, and permissions to use and to authorize appyRewards to use and distribute the Subscriber Content as necessary to exercise the licenses granted by Subscriber and in the manner contemplated by appyRewards and this Agreement; and (b) the Subscriber Content, and the use thereof as contemplated herein, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; or (ii) slander, defame, or libel any third-party.
3.6 Subscriber Content Disclaimer. appyRewards is under no obligation to edit or control Subscriber Content that Subscriber or other users post or publish and will not be in any way responsible or liable for Subscriber Content. appyRewards may, however, at any time and without prior notice, screen, remove, edit, or block any Subscriber Content that in appyRewards’s sole judgment violates this Agreement or is otherwise objectionable. Subscriber understands that when using the appyRewards Application Subscriber may be exposed to Subscriber Content from a variety of sources and acknowledge that Subscriber Content may be inaccurate, offensive, indecent or objectionable. Subscriber agrees to waive, and hereby does waive, any legal or equitable rights or remedies Subscriber have or may have against appyRewards with respect to Subscriber Content. appyRewards expressly disclaims any and all liability in connection with Subscriber Content. If notified by a user or content owner that Subscriber Content allegedly does not conform to this Agreement, appyRewards may investigate the allegation and determine in its sole discretion whether to remove the Subscriber Content, which appyRewards reserves the right to do at any time and without notice. For precision, appyRewards does not permit copyright-infringing activities on the appyRewards Application.
3.7 Protection against Unauthorized Use. Subscriber will use reasonable efforts to prevent any unauthorized use of the appyRewards application and immediately notify appyRewards in writing of any unauthorized use that comes to Subscriber’s attention. If there is unauthorized use by anyone who obtained access to the appyRewards Application directly or indirectly through Subscriber, Subscriber will take all steps reasonably necessary to terminate the unauthorized use. Subscriber will cooperate and assist with any actions taken by appyRewards to prevent or terminate unauthorized use of the appyRewards Application or Documentation.
3.8 Prohibited Conduct. By using the appyRewards Application, SUBSCRIBER AGREES NOT TO: (a) use the appyRewards Application for any illegal purpose, or in violation of any local, state, national, or international law; (b) violate, or encourage others to violate, the rights of third parties, including by infringing or misappropriating third party intellectual property rights; (c) post, upload, or distribute any Subscriber Content or other content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate; (d) interfere with security-related features of the appyRewards Application, including without limitation by disabling or circumventing features that prevent or limit use or copying of any content, or reverse engineering or otherwise attempting to discover the source code of the appyRewards Application or any part thereof except to the extent that such activity is expressly permitted by applicable law; (e) interfere with the operation of the appyRewards Application or any user’s enjoyment of the appyRewards Application, including without limitation by uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code, making unsolicited offers or advertisements to other users of appyRewards, attempting to collect, personal information about users or third parties without their consent; or interfering with or disrupting any networks, equipment, or servers connected to or used to provide the appyRewards Application, or violating the regulations, policies, or procedures of such networks, equipment, or servers; (f) perform any fraudulent activity including impersonating any person or entity, claiming false affiliations, accessing the appyRewards Application accounts of others without permission, or falsifying Subscriber’s age or date of birth; (g) sell or otherwise transfer the access granted herein or any Materials or any right or ability to view, access, or use any Materials.
3.9 Third-Party appyRewards Application. appyRewards may provide tools through the appyRewards Application that enable Subscriber to export information, including Subscriber Content, to third party services, including through features that allow Subscriber to link the Subscriber Account with an account on the third-party service, such as Google or Facebook, or through our implementation of third-party buttons (such as “like” or “share” or “comments” buttons). By using these tools, Subscriber agrees that we may transfer such information to the applicable third-party service. Such third-party services are not under our control, and we are not responsible for their use of Subscriber’s exported information.
3.10 Linked Websites. The appyRewards Application may also contain hyperlinks to third-party websites. Such linked websites are not under our control, and we are not responsible for their content or your use of them. The appyRewards Application's inclusion of hyperlinks to such websites does not imply any endorsement of the material on such websites or any association with their operators.
3.11 Proprietary Rights. The appyRewards Application and Documentation are owned and operated by appyRewards. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the appyRewards Application (the “Materials”) provided by appyRewards are protected by all relevant intellectual property and proprietary rights and applicable laws. All Materials contained in the appyRewards Application are the property of appyRewards or its third-party licensors. Except as expressly authorized by appyRewards, Subscriber may not make use of the Materials. appyRewards reserves all rights to the Materials not granted expressly in this Agreement.
3.12 Merchant Terms and Conditions. Subscriber agrees and acknowledges that each Digital Gift-Card or Reward sent via the appyRewards Application is subject to additional terms and conditions issued by the applicable Merchant. In the event of a conflict between the terms of this Agreement and the Merchant terms governing a Digital Gift-Card or Reward, the Merchant terms will prevail solely with respect to the purchase, issuance, redemption, and other use or exploitation of the Gift-Card or Digital Reward. Subscriber is solely responsible for reviewing any and all applicable Merchant terms prior to purchasing the Digital Gift-Cards or Rewards from the Merchant.
4. FEE, PAYMENT, AND REFUND POLICIES
4.1 Subscriber Account. Subscriber will be required to register an account with the appyRewards Application (“Subscriber Account.”). Subscriber always agrees to provide accurate information to appyRewards in connection with the registration process and keep the information accurate and up to date. Subscriber is solely responsible for maintaining the confidentiality of its account and password. Subscriber agrees to accept responsibility for all activities that occur under the Subscriber Account and will immediately notify appyRewards if it has reasonable belief that the Subscriber Account is no longer secure.
4.2 Funding Subscriber Account. Subscriber must purchase credit for the appyRewards Application by funding the Subscriber Account in accordance with the payment terms described in Section 4.4. Payments for any applicable operational fees (on demand or monthly to yearly subscriptions) for the appyRewards Application and all prepaid Digital Gift-Cards and Rewards that Subscriber sends to Recipients will be debited from the Subscriber Account.
4.3 Purchasing Prepaid Digital Gift-Cards and/or Rewards. The appyRewards Application allows Subscriber to offer prepaid Digital Rewards and Gift-Cards to Recipients and to purchase these prepaid Digital Gift-Cards and Rewards that Recipients claim. When Subscriber offers a Gift-Card or a Digital Reward to a Recipient, the then-current balance of the Subscriber Account (“Account Balance”) will be allocated for the order amount of gift cards (“Allocated Gifts Account”) pending claiming of the Gift-Card or Digital Reward by the Recipient or expiration of the Digital Gift-Card or Reward offer. Subscriber must have an Account Balance in excess of any desired purchase amounts in order to make the purchase.
4.4 Fees and Payment Terms. Subscriber will pay appyRewards the fees and any other amounts owing under this Agreement, plus any applicable sales, use, excise, or other taxes, in accordance with the then-current appyRewards Pricing Table. Subscriber can fund the Subscriber Account via credit cards, ACH, SEPA, wire transfer of immediately available funds, or other form of payment agreed by appyRewards, using the payment instructions provided on the appyRewards Pricing Table. The Account Balance will only be updated, and paid amounts will only be available for use, once the payments are processed and credited to the Subscriber Account. Subscriber understands that the processing of payments relies on third parties beyond appyRewards’ control and amounts paid may not be immediately available for use on the appyRewards Application. Gift-Cards and Digital Rewards can be denominated in either U.S. dollars ($) or euros (€) so long as Subscriber has funded the Subscriber Account in the currency, he wishes to send the Digital Gift-Cards or Rewards and the Account Balance in such currency exceeds the amount of Gift-Cards or Digital Rewards that Subscriber wishes to offer in such currency. Subscriber will pay all fees incurred by appyRewards for accepting payment via credit cards, ACH, SEPA, wire, or other agreed upon payment method. All sums payable to appyRewards shall be paid in full by Subscriber, without deducting or allowing the deduction of any currency conversion, wire transfer, remittance or other charges relating to the payment (or any handling of the payment) thereof.
4.5 Redemption of Digital Gift-Cards, Prepaid Cards, and/or Points (“Reward”). If the Recipient claims the Reward (“Claimed Reward”), the Allocated Gifts Account is debited in the amount of the Rewards. The Distributed Amount of each Gift-Card or Digital Reward is non-reversable into the Allocated Gifts Account and non-refundable into the Account Balance once the Recipient claims the Reward code (“Reward Code”). For accuracy, a Recipient claims a Gift-Card or a Digital Reward once the Recipient accepts the offer from Subscriber and downloads the Reward Code, irrespective of whether the Recipient uses the Gift Code to make purchases from a Merchant.
4.6 100% Gifts Refund or Reuse Policy. If Subscriber cancels the offer of Gift-Cards or Digital Rewards prior to their claim and redemption by the Recipients, or if the Digital Gift-Cards or Rewards offer expires prior they are claimed, the Gift-Cards or Digital Rewards will remain into the Allocated Gift Account that is available for new campaigns.
4.7 Refund Account Policy. If for any reason, cancelation of a campaign or modification of the offer, Subscriber wants his Allocated Gift Account refunded in cash into his Account Balance as for example to change Rewards, it would be possible as soon as appyRewards will have accepted the changes. We repurchase, upon acceptation, the remaining gifts that are in the Allocated Gifts to refund the Subscriber Account Balance. In case the Subscriber wishes his Account Balance to be transferred directly to his company account, upon termination of the account or not, we will transfer the full amount of the Account Balance less a convenience fee of 15% (fifteen percent) to the Subscriber.
4.8 Taxes. Subscriber will bear all taxes, duties, VAT if any (Gift-Cards are generally VAT exempt), and other governmental charges (collectively, “taxes”) resulting from this Agreement or the purchase of Gift-Cards or Digital Rewards from Merchants. Subscriber will pay any additional taxes as are necessary to ensure that the net amounts received by appyRewards after all such taxes are paid are equal to the amounts that appyRewards would have been entitled to in accordance with this Agreement as if the taxes did not exist.
5. TERM AND TERMINATION
5.1 Subscription Term. This Agreement will commence upon the Effective Date of subscription and continue unless this Agreement is terminated earlier in accordance with the terms of this Agreement. The Subscription fees, if any, will automatically renew for additional successive terms unless at least, either party provides written notice via email (5 days for 1 month term - 60 days for 1-year terms) before the end of the then-current term to the other party that it does not want to renew.
5.2 Termination for Convenience. Subscriber may terminate this Agreement at any time by cancelling the Subscriber Account using the settings functions in the appyRewards Application or by emailing legal[AT]appyreward.com from the email address associated with the Subscriber Account.
5.3 Termination of Use; Discontinuation and Modification of the appyRewards Application. If Subscriber violates any provision of this Agreement, Subscriber’s permission to use the appyRewards Application will terminate automatically. Additionally, appyRewards, in its sole discretion may terminate Subscriber’s Subscriber Account or suspend or terminate Subscriber’s access to the appyRewards Application at any time, with or without notice. appyRewards also reserves the right to modify or discontinue the appyRewards Application at any time (including, without limitation, by limiting or discontinuing certain features of the appyRewards Application) without notice to Subscriber. appyRewards will have no liability whatsoever on account of any change to the appyRewards Application or any suspension or termination of Subscriber’s access to or use of the appyRewards Application.
5.4 Termination for Material Breach. Either party may terminate this Agreement if the other party does not cure its material breach of this Agreement within 30 days of receiving written notice via email of the material breach from the non-breaching party. If Subscriber fails to timely pay any fees, appyRewards may, without limitation to any of its other rights or remedies, suspend performance of the appyRewards Application until it receives all amounts due.
5.5 Post-Termination Obligations. If this Agreement is terminated for any reason, (a) appyRewards will refund the Account Balance within 30 days of termination; (b) any outstanding offers of Gift-Cards or Digital Rewards that have not been claimed at the time of termination will remain in effect until either claimed by the applicable Recipient or the offer expires or is cancelled by Subscriber; (c) Gift-Card or Digital Reward offers that expire or are cancelled after the termination of this Agreement will be returned to Subscriber, minus 15% (fifteen percent) in value of the remaining amount and any applicable appyRewards transaction fees, and (d) any and all liabilities accrued prior to the effective date of the termination will survive.
6. MODIFICATION OF THE TERMS
appyRewards reserves the right, at its discretion, to change this Agreement on a going-forward basis at any time. Please check this Agreement periodically for changes. In the event that a change to this Agreement materially modifies Subscriber’s rights or obligations, appyRewards will make reasonable efforts to notify Subscriber of such change. appyRewards may provide notice within the appyRewards Application, by sending an email to any address Subscriber may have used to register for an account, or through other mechanisms. If Subscriber does not accept the changed terms and conditions, we may terminate Subscriber’s access to and use of the appyRewards Application. All other changes are effective upon publication of the changed terms and conditions. Disputes arising under this Agreement will be resolved in accordance with the terms and conditions in effect that the time the dispute arose.
7. WARRANTIES AND DISCLAIMER
7.1 Mutual Warranties. Each party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; and (b) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement.
7.2 Digital Gift-Card or Reward Warranties. appyRewards agrees to supply Subscriber with Gift-Cards he selected subject to availability. This Agreement is limited to the supply of the requested Digital Gift-Cards or Rewards. appyRewards in no way guarantees or warrants the availability of the goods and service to which a particular voucher pertains, and is in no way liable for damages, consequential or otherwise, arising from redeeming the Gift-Cards supplied by us in return for goods and services.
7.3 Disclaimer. APPYREWARD EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. APPYREWARD DOES NOT WARRANT AGAINST INTERFERENCE WITH THE USE OF THE APPYREWARD APPLICATION. APPYREWARD DOES NOT WARRANT THAT THE APPYREWARD APPLICATION IS ERROR-FREE OR THAT OPERATION OF THE APPYREWARD APPLICATION WILL BE SECURE OR UNINTERRUPTED. APPYREWARD DOES NOT WARRANT THAT ANY INFORMATION PROVIDED THROUGH THE APPYREWARD APPLICATION IS ACCURATE OR COMPLETE OR THAT ANY INFORMATION PROVIDED THROUGH THE APPYREWARD APPLICATION WILL ALWAYS BE AVAILABLE. APPYREWARD EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF SUBSCRIBER’S USE OF THE APPYREWARD APPLICATION.
8. INTELLECTUAL PROPERTY INFRINGEMENT
8.1 Defense of Infringement Claims. appyRewards will, at its expense, either defend Subscriber from or settle any claim, proceeding, or suit (“Claim”) brought by a third party against Subscriber alleging that Subscriber’s use of the appyRewards Application infringes or misappropriates any United States or Union European patent or registered copyright during the term of this Agreement if: (a) Subscriber gives appyRewards prompt written notice of the Claim; (b) Subscriber grants appyRewards full and complete control over the defense and settlement of the Claim; (c) Subscriber provides assistance in connection with the defense and settlement of the Claim as appyRewards may reasonably request; and (d) Subscriber complies with any settlement or court order made in connection with the Claim (e.g., relating to the future use of any infringing appyRewards Application). Subscriber will not defend or settle any Claim without appyRewards’s prior written consent. Subscriber will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but appyRewards will have sole control over the defense and settlement of the Claim.
8.2 Exclusions from Obligations. appyRewards will have no obligation for any infringement or misappropriation arising out of or based upon (a) use of the appyRewards Application in combination with other products or services if such infringement or misappropriation would not have arisen but for such combination; (b) the appyRewards Application or custom services are provided to comply with designs, requirements, or specifications required by or provided by Subscriber, if the alleged infringement or misappropriation would not have arisen but for the compliance with such designs, requirements, or specifications; (c) use of the appyRewards Application by Subscriber for purposes not intended or outside the scope of the license granted to Subscriber; (d) Subscriber’s failure to use the appyRewards Application in accordance with instructions provided by appyRewards, if the infringement or misappropriation would not have occurred but for such failure; (e) any of the Subscriber Content; or (f) any modification of the appyRewards Application not made or authorized in writing by appyRewards where such infringement or misappropriation would not have occurred absent such modification.
9. SUBSCRIBER INDEMNIFICATION
9.1 Defense. Subscriber will defend appyRewards from any actual or threatened third party Claim arising out of or based upon (a) Subscriber’s use of the appyRewards Application; (b) Subscriber's breach of any of the provisions of this Agreement; or (c) the alleged infringement or misappropriation of any third party right by the Subscriber Content. appyRewards will: (i) give Subscriber prompt written notice of the Claim; (ii) grant Subscriber full and complete control over the defense and settlement of the Claim; (iii) provide assistance in connection with the defense and settlement of the Claim as Subscriber may reasonably request; and (iv) comply with any settlement or court order made in connection with the Claim. appyRewards will not defend or settle any Claim without Subscriber’s prior written consent. appyRewards will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Subscriber will have sole control over the defense and settlement of the Claim.
9.2 Indemnification. Subscriber will indemnify appyRewards from and pay (a) all damages, costs, and attorneys’ fees finally awarded against appyRewards in any Claim; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by appyRewards in connection with the defense of a Claim (other than attorneys’ fees and costs incurred without Subscriber’s consent after Subscriber has accepted defense of the Claim); and, (c) all amounts that Subscriber agrees to pay to any third party to settle any Claim.
10. LIMITATIONS OF LIABILITY
10.1 Disclaimer of Indirect Damages. Notwithstanding anything to the contrary contained in this Agreement, appyRewards will not, under any circumstances, be liable to Subscriber for consequential, incidental, special, or exemplary damages arising out of or related to this Agreement, including but not limited to lost profits or loss of business, even if appyRewards is apprised of the likelihood of such damages occurring.
10.2 Caps on Liability. Under no circumstances will appyRewards’s total liability of all kinds arising out of or related to this Agreement (including but not limited to warranty claims), regardless of the forum and regardless of whether any action or claim is based on contract, tort, or otherwise, exceed the total amount paid by Subscriber to appyRewards during the 12 months immediately preceding the claim (determined as of the date of any final judgment in an action).
11. CONFIDENTIALITY
“Confidential Information.” means any trade secrets or other information of a party, whether of a technical, business, or other nature (including information relating to a party’s technology, software, products, services, designs, methodologies, business plans, finances, marketing plans, customers, prospects, or other affairs), that is disclosed to a party during the term of this Agreement and that such party knows or has reason to know is confidential, proprietary, or trade secret information of the disclosing party. The parties agree that all Subscriber Data is the Confidential Information of Subscriber. Notwithstanding the foregoing, Confidential Information does not include any information that: (a) was known to the receiving party prior to receiving the same from the disclosing party in connection with this Agreement; (b) is independently developed by the receiving party without use of or reference to the Confidential Information of the disclosing party; (c) is acquired by the receiving party from another source without restriction as to use or disclosure; or (d) is or becomes part of the public domain through no fault or action of the receiving party. If either party is required by law to disclose the Confidential Information or the terms of this Agreement, the disclosing party must give prompt written notice of such requirement before such disclosure and assist the non-disclosing party in obtaining an order protecting the Confidential Information from public disclosure.
12. PRIVACY POLICY
12.1 Collection of Use Data. Subscriber agrees and acknowledges that (a) the appyRewards Application automatically log all user activity conducted on the appyRewards Application, and (b) appyRewards owns all right, title and interest in and to the Application Use Data. appyRewards will not publicly disclose any Application Use Data in a manner that would reasonably likely identify Subscriber as being the source of such Use Data.
12.2 Subscriber Data. Subscriber owns all right, title and interest in and to the Subscriber Data. Subscriber hereby grants appyRewards: (a) a nonexclusive, royalty-free, transferrable, worldwide license (with right to sublicense) to store, process, and otherwise use the Subscriber Data during the term of this Agreement (and for a reasonable amount of time after the term) in connection with the provision of the appyRewards Hosted Services, any Custom Services, or as otherwise necessary or helpful to perform its obligations under this Agreement, and (b) a nonexclusive, royalty-free, perpetual, irrevocable, transferrable, worldwide license (with right to sublicense) to store, process and otherwise use the Subscriber Data in connection with the conduct by appyRewards of its business operations; provided that it is never disclosed to any third party except in an aggregated or anonymous, de-identified form (i.e., in a form that cannot be used itself to identify Subscriber or its Clients). appyRewards will at all times protect and maintain any Subscriber Data that constitutes the Confidential Information of Subscriber in accordance with Section 8; provided, however, that notwithstanding anything to the contrary herein, any Subscriber Data that is in an aggregated or anonymous, de-identified form (i.e., in a form that cannot be used itself to identify Subscriber) will not be considered to be the Confidential Information of Subscriber.
12.3 Personal Information. appyRewards collects information about Subscribers for two reasons: (a) to process their order, and (b) to provide them with the best possible service. Your Personal Information will not, however, be used or disclosed for purposes for which you have not given consent, or which are not permitted under EU General Data Protection Regulation (GDPR) and US or applicable laws. In general We collect Personal Information about you from information you submit directly via the appyRewards Application or the Site, such as your name, e-mail address, and date of birth, and from any social networking service whose platform you have used in order to connect to appyRewards. When you make a purchase through appyRewards, you will be required to submit your credit card or other payment information. All payments are subject to appropriate security and data protection measures. Additionally, we collect any information that you voluntarily enter, including Personal Information, into any postings, or comments within the appyRewards Application. We are committed to protecting user privacy, Subscriber can check all information We hold about him and if he finds any inaccuracies he could delete or correct it promptly. We use a variety of industry-standard security technologies and procedures to help protect your Personal Information from unauthorized access, use, or disclosure. Even though we have taken significant steps to protect your Personal Information, no company, including Us, can fully eliminate security risks associated with Personal Information.
12.4 Cookies. We may use technology to provide you with a more personal and interactive experience with the appyRewards Application. This can include using Cookies to gather information regarding the date and time of your visit and the information for which you searched and viewed or clicked. This type of information is collected to make appyRewards more useful to you; however, you can usually modify your browser settings to disable Cookies and prevent this happening. Be aware that if you choose to disable Cookies, some aspects of the appyRewards Application may not work properly.
12.5 Data Retention. We will retain your personal information for as long as it remains necessary for the identified purpose or as required by law, which may extend beyond the termination of our relationship with you. All retained personal information will remain subject to the terms of this privacy policy. You can review and change your personal information by logging into the Site and visiting your account profile page. You can also request that your name be removed from our databases by sending us an email at legal@appyreward.com. We may not be able to delete all your personal information except by also deleting your user account. It may also not be possible to completely delete all your personal information due to legal constraints.
You reside in the European Union (EU), If you reside in the European Union (EU), you have legal rights set forth under the EU’s General Data Protection Regulation (GDPR). GDPR requires that we hold a journal for processing your data. We process your personal data with your consent when applicable by law.
You reside in the State of California (CA) If you reside in California, you may have legal rights set forth under the California Consumer Privacy Act (CCPA). You can request information we have collected about you in the previous twelve months, why we collected it, and with whom (category of entities) we have shared it.
13. GENERAL
13.1 Relationship. appyRewards will be and act as an independent contractor (and not as the agent or representative of Subscriber) in the performance of this Agreement.
13.2 Assignability. Neither party may assign its right, duties, and obligations under this Agreement without the other party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that a party may assign this Agreement without the other party’s consent to a successor (including a successor by way of merger, acquisition, sale of assets, or operation of law) if the successor agrees to assume and fulfill all of the assigning party’s obligations under this Agreement.
13.3 Subcontractors. appyRewards may utilize a subcontractor or other third party to perform its duties under this Agreement so long as appyRewards remains responsible for all of its obligations under this Agreement.
13.4 Force Majeure. Neither party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, so long as that party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.
13.5 Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the laws of Delaware that will govern these terms and conditions if you agree with appyRewards Inc., and the laws of France and Europe Union if you agree with appyRewards S.A.S.
13.6 Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the appyRewards Application under this Agreement is found to be illegal, unenforceable, or invalid, Subscriber’s right to use the appyRewards Application will immediately terminate.
13.7 Counterparts. This Agreement may be executed in any number of identical counterparts, notwithstanding that the parties have not signed the same counterpart, with the same effect as if the parties had signed the same document. All counterparts will be construed as and constitute the same agreement.
13.8 Dispute Resolution. The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). The parties agree to use good faith efforts to resolve the claim directly within 30 days after the Notice is received.
13.9 Electronic Communications. By using the appyRewards Application, Subscriber consents to receiving certain electronic communications from appyRewards as further described in its Privacy Policy. Subscriber agrees that any notices, agreements, disclosures, or other communications that appyRewards sends to you electronically will satisfy any legal communication requirements, including that such communications be in writing.
13.10 Contact Information. The services hereunder are offered by appyRewards ‐ Subscriber may contact appyRewards by sending correspondence to the foregoing addresses ‐ appyRewards Inc., located at 295 Madison Avenue Suite 1130, New York, NY 10017 USA ‐ or appyRewards S.A.S. located at 40, avenue de La Concorde, 93700 Drancy, France ‐ or by emailing appyRewards at legal[AT]appyreward.com.
13.11 Entire Agreement. This Agreement is the final and complete expression of the agreement between these parties regarding Subscriber’s use of the appyRewards Application. This Agreement may be changed only by a written agreement signed by an authorized agent of the party against whom enforcement is sought.
EXHIBIT A:
By entering an appyRewards sweepstakes, instant win, (each, a “Sweepstakes”), or an appyRewards customer loyalty program (here “Loyalty Program” or “Points Pulse”) you will be bound by the Terms & Conditions of the Subscriber that offers and manages the Sweepstakes or the Loyalty Program (here the “Sponsor” and the “Sponsor Terms”) and you acknowledge that you satisfy all eligibility requirements. Neither appyRewards is a Sponsor of the Sweepstakes or the Loyalty Program.
APPYREWARDS SWEEPSTAKES & INSTANT WIN PROGRAMS
The Sponsor will award a prize to one or more individuals who enter at the Sweepstakes. Potential winner(s) will be selected at random from among all eligible entries received. If you are a winner, an e-mail notification will be sent to you by appyReward on behalf of the Sponsor. NO PURCHASE OR PAYMENT OF ANY KIND IS NECESSARY TO ENTER OR WIN.
Sponsor, together with appyRewards, reserves the right to modify or cancel a Sweepstakes at any time. Sponsor and appyRewards are not responsible for: (a) lost, misdirected, late, or incomplete entries or for inaccurate entry information; (b) any operation or transmission error, theft, unauthorized access to, or alteration of, entries; or (c) damage to any computer or device resulting from downloading Sweepstakes materials. Sponsor, together with appyRewards, may disqualify any individual found to be: (x) tampering with a Sweepstakes; (y) violating these Terms & Conditions; or (z) acting in an unsportsmanlike or disruptive manner or with intent to threaten or harass any person. Incomplete and robotic, automatic, programmed, or similar entries will be disqualified.
APPYREWARDS CUSTOMER LOYALTY PROGRAM (POINTS PULSE)
Point pulse is the appyRewards ’points reward management system, allowing Sponsor to reward his participants with loyalty points (“Points”) that can be redeemed for Rewards. appyRewards does not serve as the issuer of Points within Loyalty Program. The Parties understand and agree that appyRewards is only providing access to its software-as-a-service platform.
Sponsor is responsible for making available to Recipient the applicable reward program, the Sponsor Terms and Conditions, including but not limited to redemption rules, expiration policies, cancellation terms, transfer rules, and all other terms of use regarding said Points, and Recipient’s participation in Sponsor’s Reward Program.
Sponsor is responsible for making available to Recipient all terms and conditions relating to any taxing liability, including disclosure connected with the receipt or use of Points in Customer’s or Employee’s Reward Program.
appyRewards makes no representation or warranties, expressed or implied, to Recipient with respect to Sponsor Terms and Customer’s Loyalty Program.
Customer’s Reward Program is developed, maintained, and solely operated by Sponsor, appyRewards may only serve as a management system for the tracking of points within Customer’s or Employee’s Reward Program.
