– Terms of Service
These terms and conditions (“Terms”), and any executed agreement incorporating these Terms expressly, constitute the complete agreement (“Agreement”) between you (“you” or “Client”) and SCVNGR, Inc. d/b/a LevelUp (“LevelUp”) for the use of LevelUp websites and related LevelUp services including, as applicable:
- the initiation of orders for the purchase of goods or services to your retail locations by Users of mobile and/or web applications (“LevelUp-Integrated Apps”) integrated to the LevelUp mobile payment, ordering, and customer engagement platform (“LevelUp Platform”) via a third-party ordering provider engaged separately by you (“Ordering Provider”);
- access, delivery, and/or analysis of data concerning such orders (“Order Data”);
- payment to you directly by LevelUp for completed orders; and/or
- the creation and execution of marketing campaigns directed to LevelUp App Users;
(collectively, the “Services”). By acknowledging these Terms upon registration on and/or login to a LevelUp website (“Site”), and/or by using any of the LevelUp Services, you agree to be bound by these Terms. LevelUp reserves the right to modify these Terms at any time in its discretion by publishing updates to these Terms on this site. Please review the Terms periodically. All changes and updates are effective immediately upon publication by LevelUp. Your continued use of the Services following an update to the Terms shall constitute your acceptance of such Terms. THESE TERMS INCLUDE AN ARBITRATION CLAUSE UNDE WHICH CERTAIN CLAIMS MAY NOT BE BROUGHT IN COURT OR DECIDED BY A JURY.
1. Use of LevelUp Broadcast.
LevelUp grants to Client, during the Term of this Agreement, a limited, revocable, non-exclusive, non-transferable, license to use the LevelUp Sites and Services solely for the purposes of receiving and fulfilling orders initiated by Users, retrieving and analyzing data concerning such orders, creating and executing marketing campaigns via the LevelUp Platform, and such other purposes as are authorized expressly in this Agreement.
1.1. Distribution You authorize LevelUp to initiate orders for goods and/or services to your retail locations on behalf of Users via your Ordering Provider through all LevelUp-Integrated Apps. To the extent that you have engaged and utilize more than one Ordering Provider, LevelUp will make reasonable commercial efforts to initiate orders via your expressed preferred Ordering Provider, such as via an online ordering website or via API-driven ordering integration. LevelUp does not warrant that all preferences may be accomodated. Some Ordering Providers may impose additional fees, for which LevelUp shall not be responsible.
1.2. Client Content. You shall retain and have exclusive ownership of, and all rights to and in, all Client trademarks, service marks, logos, images, descriptions, menu content, and any Client-provided or Client-designed elements protected by or protected as its copyrightable material (“Client Content”). You hereby grant to LevelUp, and to the owner of any LevelUp-Integrated App, during the Term of this Agreement, a limited, non-exclusive license to acquire, use, copy, reproduce, distribute, and publish Client Content for the sole purpose of initiating orders by Users of a LevelUp-Integrated App to your retail locations via your third-party Ordering Provider(s), and for promoting the use of the LevelUp-Integrated Apps for the initiation of orders at your locations. All use of Client Content, and all goodwill derived from such use, shall inure to Client. LevelUp shall not be obligated to use any Client Content submitted to LevelUp. You represent and warrant to LevelUp that you have the right to license and provide any Client Content submitted to LevelUp and/or acquired by LevelUp via your third-party Ordering Provider, and that the use, copying, modification and publication of such Client Content by LevelUp and by LevelUp’s affiliates and advertising partners: (i) will not infringe, violate or misappropriate any third party copyright, patent, trade secret or other proprietary rights, (ii) will not infringe any rights of publicity or privacy, and (iii) will not be defamatory or obscene or otherwise violate any law, including without limitation laws and regulations governing required disclosures of nutritional and/or allergen information.
1.4. LevelUp Content. All LevelUp Sites, applications, Services, and all content, information, and data, including Order Data, provided to you by LevelUp (“LevelUp Content”) are and shall remain the sole and exclusive property of LevelUp. LevelUp Content includes without limitation all intellectual property rights (including without limitation all copyright, patent, trademark, and trade secret rights), title, and interest to and in the LevelUp Sites, APIs, and all source and object code and software libraries created by LevelUp, the LevelUp Platform, LevelUp mobile applications, and LevelUp integrations to third party sites and systems; any inventions, technology, tools, design, ideas, layouts, interfaces, campaigns, and schemes embodied therein; all LevelUp trademarks, service marks, logos, and descriptions; and all tangible representations of the foregoing. No license or right to LevelUp Content is granted by these Terms except as set forth expressly herein.
1.5. User Support LevelUp provides User technical support for Users of LevelUp-Integrated Applications (“User Support”) at no cost to you. LevelUp is not responsible for support issues relating to the goods and services provided, or the systems offered by you or your Ordering Provider.
1.6. Client Support. LevelUp provides support to you during regular business hours for any technical issues related to your use of the LevelUp Sites and Services (“Client Support”) at no additional cost. Client support is available by contacting a Levelup Client Support Agent at firstname.lastname@example.org or 1-855-538-3542.
- Disclose your LevelUp Site access credentials to any unauthorized person, or use the LevelUp Site access credentials of any other person without authorization;
- Engage in any copying, modifying, decompiling or reverse engineering any LevelUp software, source code or object code, comprising or in any way making up a part of the Levelup Sites or Services or the LevelUp Platform;
- Engage in any automated use of the LevelUp websites or Services, or any system or component thereof, such as using scripts, scraping, data mining, robots or similar data gathering and extraction tools (other than tools expressly authorized by LevelUp to export Order Data to your CRM system);
- Circumvent or attempt to bypass any measures of the LevelUp Sites or Services designed to prevent or restrict access to Order Data or Services;
- Engage in unauthorized framing of or linking to the LevelUp Sites or Services;
- Interfere with, disrupt, or create an undue burden on the LevelUp Sites or Services or the networks or services connected or linked thereto;
- Provide cash or anything of value to any person other than the ordered goods or services in connection with a payment to you by LevelUp; and/or
- Requests that a User divulge their credit or debit card account number, PIN number, or other personal identifying information such as address, telephone number, email address, or name, in connection with or as a condition to any LevelUp order at your Controlled Locations.
2. LevelUp Direct Payments.
LevelUp enables you, at your election and to the extent enabled by your Ordering Provider, to receive payments directly from LevelUp via ACH transfer in connection with orders placed at your locations via the LevelUp platform (“Direct Payments”). Direct Payments by LevelUp are made subject to the terms of this Section. If you do not elect Direct Payments, the provisions of this Section shall not apply; LevelUp will provide a credit card to be charged by your existing Ordering Provider and/or payment processor, and you are responsible for all transaction fees imposed by your Provider or processor.
2.1. Identity Information. You agree to provide LevelUp with complete identifying information as requested by LevelUp, including without limitation a Federal Employer or Tax ID Number of your business, as well as account information for a valid financial account connected to the ACH network. LevelUp does not share your personal, business, or bank account information except as required to complete payments. You represent and warrant that all information provided by you to LevelUp is complete and accurate, and you agree to update all such information promptly in the event of any changes. The provision of inaccurate information shall be grounds for revocation of this Agreement, without limiting other available remedies.
2.2. Payments. For orders initiated at your Controlled Locations via the LevelUp Platform, LevelUp pays to you the Net Sales Proceeds as follows:
- 2.2.1. For purposes of this Section, the term “Net Sales Proceeds” means the total transaction amount of the order as communicated to LevelUp by you or your Ordering Provider, inclusive of sales tax, gratuity, and other fees imposed on the User by you or your Ordering Provider, and subtracting: (a) any Client Campaign Credit redeemed; and (b) LevelUp’s standard transaction fee as specified to you prior to your use of the Services and/or in any agreement between you and LevelUp. Transaction Fees quoted based on LevelUp’s experienced processing costs include the average cost to LevelUp of transactions on the LevelUp platform, an average experienced fraud cost of ten basis points, and transfer costs of ten basis points, and are adjusted regularly. LevelUp may modify the average fraud cost to the extent that your experienced fraudulent activity deviates materially from LevelUp’s experienced rate.
- 2.2.2. LevelUp pays Client aggregate Net Sales Proceeds via direct deposit to your specified bank account via the ACH network. Payment cycles begin and end at 5:00 a.m. Eastern Time. LevelUp submits payments shortly after the payment cycle has ended. Transfers typically take 24 hours to arrive in the your associated bank account. Some banks may take longer than 24 hours to process payments, particularly on weekends and holidays. Standard ACH transfer fees apply.
- 2.2.3. If, in LevelUp’s determination, you did not provide the goods or services specified in the User order, or otherwise violated these Terms in connection with a User order, including without limitation by committing, or aiding or colluding to commit, fraud against LevelUp, any User, or any payment card holder or issuer, LevelUp may withhold and not to pay you such Net Sales Proceeds in connection with said order, may deduct such transaction amount from future deposits of Net Sales Proceeds, or may debit your associated bank account for the transaction amount. You hereby authorize such transfers.
2.3. No Charge-Backs. LevelUp’s payments of Net Sales Proceeds to Client are independent of LevelUp’s charges to the LevelUp User. To the extent that LevelUp receives a dispute or chargeback for any order received and fulfilled by your Controlled Locations, LevelUp will not seek reimbursement from you other than as provided above, or otherwise as set forth expressly in any agreement between you and LevelUp.
2.4. Sales Tax. You represent and warrant that you, and/or your Ordering Provider, are registered for sales and use tax collection purposes in all jurisdictions in which your goods and services will be provided. You will make and be solely responsible for the proper calculation of, and payment to the appropriate taxing authority of, all required tax on all sales of goods and services provided by you to a User in connection with a LevelUp order. You are responsible communicating the proper sales tax amount to LevelUp at the time the order is initiated. The amount of applicable sales tax as calculated by you will be included to the Net Sales Proceeds transferred by LevelUp pursuant to these Terms for you to pay to the appropriate taxing authority.
3. Rewards Campaigns.
3.1. LevelUp offers, via the Sites, a flexible framework for designing, constructing, delivering, redeeming and tracking customer rewards, programs, incentives, and promotions (“Campaigns”) in connection with orders initiated by Users via the LevelUp Platform at your Controlled Locations. You authorize the promotion and redemption of such Campaigns in connection with orders at your Controlled Locations. Campaigns initiated by third parties will be promoted and redeemed at no cost to you.
3.2. If contracted for in a separate agreement between you and LevelUp, you may design and initiate your own Campaign constructs (“Client Campaigns”) through the Sites, or you may engage LevelUp via separate agreement to design, implement, and execute Campaigns on your behalf. Additional fees may apply to the design, implementation, and execution of Client Campaigns. To the extent that you use the LevelUp Platform to execute Client Campaigns, you and/or your Controlled Location(s) shall jointly be solely responsible for the amount (or, if in the form of specified goods or services, the list amount for such goods or services) (“Credit”) of any Client Campaign reward or promotion offered to and/or earned or claimed by a User for redemption in connection with an order, which Credit amount will be deducted from Net Sales Proceeds paid to Client. You authorize LevelUp to promote Client Campaigns to Users of any LevelUp-Integrated Apps.
3.3. Client is solely responsible for ensuring that all Client Campaigns are designed, initiated, and executed in accordance with all applicable laws. LevelUp and/or Client shall have the right to reject or terminate or modify any Client Campaign at any time if it is determined, in LevelUp’s or Client’s discretion, that the Client Campaign violates any law or regulation.
4. LevelUp Fees; Payment Terms.
4.1. No fees shall apply to your use of LevelUp Sites and Services pursuant to these Terms except as provided expressly herein and/or as specified expressly in any agreement between you and LevelUp incorporating these Terms. To the extent you have agreed with LevelUp for the provision of additional or alternative Services, including without limitation for professional services, any fees for such Services will be invoiced and/or collected via direct ACH debit to a specified account on a monthly basis or such other regular interval as agreed (“LevelUp Fees”).
4.2. If any applicable LevelUp Fees become thirty (30) days past due, LevelUp may issue an ACH debit to the United States bank account specified for the payment of Net Sales Proceeds, and/or offset such LevelUp Fees against Net Sales Proceeds paid to you. You hereby authorize these ACH transfers and/or offsets as payment to LevelUp. In the event that any LevelUp is unable to collect LevelUp Fees due after such Fees become more than thirty (30) days past due, the Fees will accrue interest at the rate of one percent (1%) per month until paid to LevelUp and/or collected by LevelUp
5. Disclaimer of Warranties; Indemnification; Limitation of Liability
5.1. Disclaimer. The LevelUp Sites and Services are provided on an “AS-IS” basis. LevelUp does not warrant that the LevelUp Sites or Services will operate error-free or without downtime, or that Order Data will be error-free. LevelUp may pause or interrupt the Sites or Services at any time, and you should expect periodic downtime for updates to the Sites and Services. LevelUp makes no warranty that the Sites and/or Services will meet Client’s specific objectives or needs or will that Client will achieve any level of sales. TO THE MAXIMUM EXTENT PERMITTED BY LAW, LEVELUP DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT, AND ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING AND USAGE OF TRADE. ANY CONTENT OBTAINED THROUGH THE USE OF THE SITES OR SERVICES IS OBTAINED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR LOSS OF DATA THAT RESULTS FROM SUCH CONTENT. NO ADVICE OR INFORMATION, ORAL OR WRITTEN, OBTAINED BY YOU FROM LEVELUP OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
5.2. Indemnification. Each Party shall indemnify and hold harmless the other, or any of its affiliates, employees, officers, agents, directors or representatives (collectively, the “Indemnitees”), from all all third-party claims, actions, suits, proceedings, investigations, liabilities, losses damages, penalties, fines, costs and expenses, including without limitation reasonable attorney’s fees and costs, whether direct or indirect, in each case as and when incurred (“Damages”) arising out of or relating to: (i) any breach of these Terms or of the representations, warranties, or covenants set forth herein; (ii) violations of any federal, state, or local law, rule or regulation; (iii) misuse of Order Data. Client shall additionally indemnify and hold harmless LevelUp Indemnitees from Damages arising out of or relating to (iv) failure, to grant, redeem, or honor a Campaign incentive or reward, or Campaign Credit; and (v) any physical injury (including death or bodily injury) or loss or damage to tangible property caused by Client or its employees, agents or subcontractors, or the goods or services provided by each party, or occurring at Client’s Controlled Locations. Each Party’s indemnification obligations shall be conditioned upon the indemnified Party notifying the indemnifying Party promptly in writing of such action, the indemnified Party giving the indemnifying Party sole control of the defense thereof and any related settlement negotiations. The indemnified Party, at the indemnified Party’s request and expense, may assist in such a defense. Notwithstanding the foregoing, in no event shall the indemnifying Party settle any Claim in a manner that does not provide for a full release of the indemnified Party.
5.3. Limitation of Liability. LevelUp’s liability to Client pursuant to this Agreement shall not exceed the amounts paid by Client, if any, to LevelUp pursuant to this Agreement or, if related to a specific transaction, to the fees paid to LevelUp in connection with said transaction. LevelUp shall not be liable for any fees, increased fees, damages, or other charges to Client by any third-party with which Client deals or contracts, including without limitation Client’s Ordering Provider or point-of-sale software or hardware provider, resulting from Client’s use of the Sites or Services. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES TO THE OTHER PARTY, INCLUDING DAMAGES ON ACCOUNT OF LOST PROFITS, REVENUES, AND BUSINESS OPPORTUNITIES. The limitations and exclusions of liability in this paragraph shall apply notwithstanding the basis for the liability or damages, whether arising in contract, tort (including negligence), strict liability, under statute, or otherwise, and whether or not a party knew the damages may have been incurred. The provisions of this paragraph shall survive termination of this Agreement.
6. Termination of Services
Except as may be provided expressly in any agreement between you and LevelUp, LevelUp reserves the right to modify or discontinue, temporarily or permanently, and at any time, your use of and/or access to the LevelUp Sites and/or Services (or any part thereof) with or without notice. You agree that LevelUp shall not be liable to you or to any third party for any modification, suspension or discontinuance of the LevelUp Sites or Services. You may terminate this agreement by for any reason upon one hundred twenty (120) days advance notice to LevelUp subject to your discontinuing the use of all LevelUp Sites and Services.
7. Additional Terms.
7.1. Complete Agreement. These Terms, and any Agreement into which these Terms are incorporated expressly, represent the entire Agreement of the parties as to its subject matter, and supersedes all prior written and oral representations and discussions between the parties. No waiver by any party of a breach of any provision by any other shall be construed to be a waiver of any succeeding breach of the same or any other covenant or condition. These Terms do not create any joint venture or agency. Neither Party has the power or right to bind the other.
7.2. Assignment. This Agreement may not be assigned by either Party to any person or entity without the express written consent of the other Party, which shall not be unreasonably withheld, except that the Agreement may be assigned to a majority owned subsidiary or affiliate, or to a successor in connection with a change of ownership or sale of substantially all of a Party’s assets. The Agreement shall survive any such change.
7.3. Governing Law. This Agreement shall be governed by the laws of the Commonwealth of Massachusetts, without regard to its choice of law rules and without regard to conflicts of laws principles except that the Arbitration provision below shall be governed by the Federal Arbitration Act. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement will remain in full force and effect and will be reformed to be valid and enforceable while reflecting the intent of the Parties to the greatest extent permitted by law; provided, however, that if the court invalidates the prohibition on class, aggregated, mass or consolidated proceedings, then the Arbitration provision shall also be invalid.
7.4. ARBITRATION. All disputes arising out of or relating to these Terms, the Agreement, or the LevelUp Sites, Services, or LevelUp Platform, including the validity, applicability, or enforceability of this provision or any provision herein, shall be resolved exclusively by binding arbitration before a single arbitrator (the “Arbitrator”) in accordance with the Commercial Arbitration Rules of the American Arbitration Association (the “AAA”) then in effect and the further procedures set forth herein. (For information on the AAA and its rules, see https://www.adr.org/). The arbitration shall be conducted in Boston, Massachusetts, unless the Arbitrator shall determine that that venue is not reasonably convenient to all parties, in which case the Arbitrator shall determine another venue that is. In the event that the AAA is unavailable or unwilling to administer the arbitration, and the parties are unable to agree to a substitute, a substitute shall be appointed by the court. The Arbitrator shall have authority to issue any and all remedies authorized by law. Notwithstanding any rules of the AAA to the contrary, any claims shall be adjudicated on an individual basis only, and Client WAIVES ANY RIGHT TO BRING ANY CLAIM AS A REPRESENTATIVE OF A PROPOSED CLASS, ON AN AGGREGATED OR MASS BASIS, OR AS A PRIVATE ATTORNEY GENERAL, OR TO CONSOLIDATE ARBITRATION PROCEEDINGS WITHOUT THE CONSENT OF ALL PARTIES THERETO. Any award rendered by the Arbitrator shall be final, conclusive and binding upon the parties hereto. In connection with any arbitration proceeding pursuant to these Terms, unless the Arbitrator shall determine otherwise, each party shall bear its own costs and expenses. Notwithstanding the foregoing, either party may file an individual claim in any small claims court for disputes or claims within the scope of its subject matter jurisdiction if such court has personal jurisdiction. LevelUp does not hereby waive any defense that such jurisdiction may be lacking in Client’s state. Without derogation of the parties’ obligation to arbitrate as set forth herein, for any claims other than those in small claims court, jurisdiction for any court proceedings arising out of or relating to these Terms or the LevelUp platform shall be vested exclusively in, and venue shall be laid in, the state or federal courts sitting in either or Boston, Massachusetts, except that, following confirmation of an arbitration award in a state or federal court in Boston, Massachusetts, a judgment arising therefrom may be executed in any court of competent jurisdiction.
7.5. Digital Millennium Copyright Act. LevelUp complies with the provisions of the Digital Millennium Copyright Act (“DMCA”). If you believe that any material or Content contained in a LevelUp Site infringes a copyright that you control, you may contact our Designated Agent with a notification of such infringement at the following address:
SCVNGR, Inc. d/b/a LevelUp
1 Federal Street, 6th floor, Boston, MA 02110
LevelUp requests that any notice alleging that materials hosted by or distributed through the LevelUp websites or Services infringe intellectual property rights include the following information (17 U.S.C. § 512(c)(3)): (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right allegedly infringed; (b) a description of the copyrighted work or other intellectual property that you claim has been infringed; (c) a description of the material that you claim is infringing and where it is located on the Services; (d) your address, telephone number, and email address; (e) a statement by you that you have a good faith belief that the use of the materials on the Services of which you are complaining is not authorized by the copyright owner, its agent, or the law; and (f) a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
7.6. All communications between Client and LevelUp, and any notices due hereunder, may use electronic means. Client: (a) consents to receive communications from LevelUp in an electronic form; (b) agrees that all agreements, notices, disclosures, and other communications that LevelUp provides to Client electronically will satisfy any legal requirement that such communications be in writing; and (c) agrees that email sent to the email address on record for Client’s account, and if to LevelUp to email@example.com, will constitute formal written notice under these Terms.
Effective Date of these Terms of Service: October 27, 2017