1. General Description of the LevelUp-Developer Relationship

1.1. SCVNGR, Inc., doing business as LevelUp ("we" or "LevelUp" or "Company"), provides a proprietary mobile payment and customer engagement platform (the "LevelUp platform") facilitating payment acceptance and the design and execution of customer loyalty and rewards campaigns for LevelUp's merchant and advertiser partners, via mobile applications at merchants' physical points of sale and other software applications at merchants' online points of sale.

1.2. LevelUp provides open access to the LevelUp Software Development Kits ("SDK") and/or associated LevelUp Application Programming Interfaces ("APIs"). Use of the SDK and/or APIs is subject to the terms and conditions set forth herein ("Developer Terms."). By registering your Developer App with LevelUp, and/or by accessing, downloading, copying, and/or using the SDK and/or APIs, You agree to these Developer Terms. The Developer Terms, as amended by LevelUp from time to time constitute a complete and binding legal agreement between You and LevelUp, effective upon your first access of the LevelUp SDK and/or APIs, and govern your use of the SDK and/or associated APIs, as well as the use of any applications developed by you using the SDK and/or associated APIs. THESE DEVELOPER TERMS INCLUDE AN ARBITRATION CLAUSE UNDER WHICH CERTAIN CLAIMS MAY NOT BE BROUGHT IN COURT OR DECIDED BY A JURY.

1.3. LevelUp reserves the right to change, update or otherwise alter these Developer Terms at any time by publishing the revised Developer Terms on our website. All changes are effective immediately. We will do our best to notify you of any significant changes, but it shall remain your responsibility to monitor these Developer Terms for changes. The continued use of the SDK and/or APIs following a revision to these Developer Terms will constitute your consent to such changes. In the event of a conflict between these Developer Terms and any other content provided to you by LevelUp, unless specifically provided otherwise, these Developer Terms shall govern.

1.4. Definitions. In addition to the terms defined in parentheses throughout these Developer Terms, the following terms shall mean:

• 1.4.1. "API(s)" means the LevelUp-documented Application Programming Interface(s) provided by LevelUp, whether used in conjunction with or separate from the LevelUp SDKs.
• 1.4.2. "Campaign Credit" means any and all incentives, rewards, discounts, and/or credits offered to Users by merchants, which can be redeemed by Users for goods and/or services, and/or applied as payment, in whole or in part, for goods and/or services at a merchant's POS or merchant's Online POS, via the LevelUp platform.
• 1.4.3. "Developer App" means one or more software programs developed using a LevelUp SDK and/or APIs for use with the LevelUp platform, LevelUp API's, and/or any software or application for integrating a point of sale system with the LevelUp platform and/or LevelUp POS hardware.
• 1.4.4. "Developer Dashboard" means your portal provided at the LevelUp website to view and manage your applications on LevelUp.
• 1.4.5. "LevelUp App" means any software application, including without limitation a mobile software application for iOS, Android, or Windows mobile operating system, or other software or web application, authorized by LevelUp and the application's User to access the LevelUp platform, including without limitation by securely requesting and receiving payment tokens and accessing User Data, in whole or in part.
• 1.4.6. "Online POS" means any piece of software that enables orders to be tendered with LevelUp online.
• 1.4.7. "Permissions" means the set of data rights and/or action rights granted to your Developer App by Users on the LevelUp platform.
• 1.4.8. "SDK" (Software Development Kit) means the documentation, software (including source code and object code), applications, sample code, simulator, tools, libraries, APIs, data, files, and materials provided or made available by LevelUp for use by You in connection with Your Developer App and/or your point of sale integration.
• 1.4.9. "Updates" means bug fixes, updates, upgrades, modifications, enhancements, supplements, and new releases or versions of the SDK and or APIs, in whole or in part.
• 1.4.10. "User" means individuals having an established LevelUp User Account, with at least one financial account linked to such account, who have accepted the LevelUp User Terms of Service (https://www.thelevelup.com/user-terms) ("User Terms").
• 1.4.11. "User Credit" means any credit, other than Campaign Credit, granted to a LevelUp user that may be applied toward the purchase of merchant goods and/or services at a merchant's POS or merchant's Online POS, via the LevelUp platform.
• 1.4.12. "User Data" means all data collected by LevelUp in operating and otherwise concerning the use of the LevelUp platform.
• 1.4.13. "You," "Developer," or "your" means the person(s) or entity registering the Developer App with LevelUp and/or using or accessing the LevelUp SDK and/or APIs or otherwise exercising rights under these Developer Terms, and that person's employees, agents, affiliates, successors, and assigns. If You are entering into this Agreement on behalf of your company or educational institution, "You" or "Your" refers to your company or educational institution, and its employees, agents, affiliates, successors, and assigns, as well.

2. Principal Company Obligations

In connection with your use of the SDK, subject to these Developer Terms, LevelUp agrees that we will:

2.1. Provide you with access to the LevelUp Developer Dashboard at no cost, where you can access the latest LevelUp SDK and register your Developer App for a unique Developer ID, which will permit you to access to the LevelUp APIs;

2.2. For a fee, provide you access to the Enterprise Components of the LevelUp SDK and associated APIs (for more information concerning Enterprise functionality, please contact enterprise@thelevelup.com);

2.3. Provide a test environment, including test merchants and test users, for you to test the transaction functionality of your Developer App prior to a live deployment;

2.4. Provide a written guide for triggering responses from the LevelUp APIs to simulate transaction approvals, rejections and other error conditions;

2.5. Provide you with access to sample integration source code;

2.6. Provide an optional demonstration package that includes a standard LevelUp scanner that can be integrated into a number of POS devices and systems. The first such package shall be free, any additional packages will cost $100 each;

2.7. Provide you and/or your merchant clients with a Merchant Account, subject to LevelUp's Merchant Terms and Conditions ("Merchant Terms"), found here, and incorporated herein. In order to process payments through LevelUp, or participate in Campaigns, you and each of your merchant clients will need to apply for a LevelUp Merchant Account.

3. Principal Developer Obligations.

In connection with your use of the SDK, subject to these Developer Terms, you agree that you will:

3.1. Comply with all of the LevelUp Developer Terms;

3.2. Appropriately inform and educate users of your Developer App concerning the functionality within your Developer App that leverages the LevelUp platform;

3.3. Perform proper and complete testing and evaluation of the LevelUp integration to your Developer App to ensure that you launch a fully functional Developer App;

3.4. Maintain your Developer App to be compatible with the latest LevelUp API, within a reasonable timeframe, in order to continue to provide a fully functional Developer App and to receive the latest available features from LevelUp;

3.5. Never attempt to store Users' restricted information such as financial account information;

3.6. Immediately and privately report any potential security concern that you discover to security@thelevelup.com, so that we may investigate it immediately;

3.7. Always ask Users for appropriate permissions when taking action on a User's behalf, and never take any actions that may surprise Users;

3.8. Always charge LevelUp's base processing rate if you charge sub-merchants, clients, or authorized merchant uses for payment processing;

3.9. Comply fully with LevelUp's policies against money laundering (available upon request) and all applicable laws and regulations concerning your business to the extent that you initiate LevelUp transactions on behalf of third parties that do not have LevelUp merchant accounts;

3.10. Not hit the LevelUp APIs with excessive speed; if you do so, your requests will be throttled or rejected; and,

3.11. Not use the LevelUp SDK or APIs or the LevelUp platform to facilitate any illegal activity.

4. Developer Dashboard

In connection with your use of the SDK, subject to these Developer Terms, you agree that you will:

4.1. In order to access the LevelUp APIs licensed pursuant to these Developer Terms, you must first register your Developer App via the LevelUp Developer Dashboard, accessible at https://developer.thelevelup.com/, or by emailing your Developer App information to LevelUp at support@thelevelup.com.

4.2. A LevelUp User Account is required in order to register a new Developer App with LevelUp.

4.3. You warrant that all information that you provide to LevelUp in connection with your User Account, and the registration of your Developer App, shall be true, accurate, and complete.

4.4. Upon registration of your Developer App, you will be granted a unique LevelUp Developer App ID to identify your Developer App, and will be granted access to a LevelUp API key to enable your access to the LevelUp APIs.

4.5. If you have purchased the Enterprise Components of the LevelUp SDK and associated APIs, LevelUp will grant to you a LevelUp API key that will include access to such added components.

4.6. Upon the successful launch of your Developer App, you agree to grant LevelUp a limited, non- exclusive, non-transferrable license to use your name, logo, and or graphic design elements, and any Developer Content (defined below) within the Developer App for the purpose of publicly promoting your Developer App, and your Developer App's affiliation with LevelUp, to Users and merchants within the LevelUp platform, LevelUp Apps, in the LevelUp App Center, and/or on LevelUp's website, in print materials, and on the websites and online services of our affiliates and advertising partners. You represent and warrant to us that such materials shall not infringe or violate the intellectual property rights of any third parties.

5. SDK/API License

5.1. License Grant.

• 5.1.1. LevelUp SDK. LevelUp makes its LevelUp SDK available to you for download under the Apache 2.0 software license. The terms of the Apache 2.0 license are available at: https://www.apache.org/licenses/LICENSE-2.0. You may not use the LevelUp SDK files subject to the Apache 2.0 License except in compliance with such License. The LevelUp SDK is provided on an "AS-IS" basis, without warranties of any kind, express or implied.
• 5.1.2. Proprietary SDKs and Software. LevelUp also makes available for download certain other SDKs and associated APIs and software that are not identified as subject to the Apache 2.0 license ("Proprietary SDKs"). LevelUp hereby grants to you a limited, royalty-free, non-exclusive license to such Proprietary SDKs and, upon successful registration of your Developer App as set forth above, to associated APIs, to download, copy, and modify such SDKs and APIs for the purposes of designing, developing, building, testing, launching, using and supporting software application(s) that integrate with the LevelUp platform, and/or with LevelUp Apps, and for any other purposes reasonably related thereto. The use of such Proprietary SDKs and/or associated APIs, and/or any applications derived therefrom, as distributed by you shall continue to be subject these Developer Terms.

5.2. Open Source Licenses. Any use, reproduction and distribution of components of the LevelUp SDKs licensed under an open source software license are governed solely by the terms of that open source software license and not these Developer Terms. Each component or file within the LevelUp SDK subject to an open source license agreement is clearly identified within such file. The LevelUp SDKs incorporate files subject to the following open source license agreements: Apache 2.0; MIT License; and zLib License.

5.3. Enterprise Components. Unless you have made an accepted payment to LevelUp of the Enterprise Fee, as specified in the Developer Dashboard (or upon request from LevelUp), the license granted hereunder shall EXCLUDE any rights to the Enterprise Components of the LevelUp SDK, and associated APIs. Enterprise Components of the LevelUp SDK, and associated APIs, enable functionality including without limitation in-app account management, in-app login, in-app card management, and expanded permissioning ability. To the extent that you have purchased such Enterprise Components, your use of the Enterprise Components shall be subject to these Developer Terms and pursuant to the license granted in Section 5.1.2 above to Proprietary SDKs.

5.4. Non-Permitted Uses. All uses of the Proprietary SDKs other than as specifically authorized herein are prohibited. Pursuant to the license granted hereunder, you are NOT authorized to use, modify, or make derivative works of any Proprietary SDK or APIs for any purpose, including without limitation the development of any software application, that is incompatible with the LevelUp platform, or in any manner that damages or interferes adversely with, or threatens damage or interference with, the LevelUp platform and/or the operation, security, data management, or authentication mechanisms of the LevelUp platform, or any LevelUp App or other software application integrated with the LevelUp platform. Any such use, copying, modification, making derivative works or distribution is prohibited and a breach of these Developer Terms.

5.5. Copyright Notices. You agree to retain and reproduce in full the LevelUp copyright, disclaimers, attribution, and all other proprietary notices (as they appear in the LevelUp SDKs and documentation provided), whether by LevelUp or any third party, in all copies of the SDK and documentation that you may make.

5.6. Updates to the SDK and APIs. From time to time, LevelUp may extend, enhance, or otherwise modify the LevelUp SDK and/or APIs without notice. If LevelUp releases an update to the LevelUp SDK and/or APIs, LevelUp's Developer Terms shall govern your use of and access to such updates. LevelUp shall not be obligated to make available any updates to the SDK and/or APIs. Should an update be made available, it may have features, services or functionality that are different from those found in the SDK and/or APIs licensed hereunder. It shall be Developer's sole responsibility to update the Developer Apps as necessitated by any update to the LevelUp SDK and/or APIs.

5.7. Notice of SDK and API Updates, Developer Terms Updates. If you wish to be notified of upgrades to the SDK and/or APIs by LevelUp, and/or of any revisions or changes to these Developer Terms, by email, you may notify LevelUp by emailing support@thelevelup.com.

5.8. Ownership. LevelUp, or such third parties as may be specifically identified within portions of the SDK and/or APIs, owns all legal right, title and interest in and to the SDK and/or APIs, and any updates to same that may be released in the future by LevelUp, including any Intellectual Property Rights that subsist in the SDK and/or APIs (including any and all rights under patent law, copyright law, trade secret law, trademark law, and any and all other proprietary rights). Except as expressly licensed to you under the identified license terms, and/or by these Developer Terms as applicable, LevelUp reserves all such rights.

5.9. Comments. LevelUp is pleased to hear from you and welcomes your comments about the LevelUp platform, SDK, and/or APIs. If you submit ideas or suggestions for the LevelUp platform, SDK or APIs ("Comments"), you agree that all Comments will be deemed, and will remain, the sole property of LevelUp. None of the Comments will be subject to any obligation of confidence on the part of LevelUp, and LevelUp will not be liable for any use or disclosure of any Comments. Without limiting the foregoing, LevelUp will be entitled to unrestricted use and other exploitation of the Comments for any purpose whatsoever, commercial or otherwise, by any means, by any media, without compensation to the provider, author, creator or inventor of the Comments.

6. Developer App Requirements and Specifications

6.1. Subject to these Developer Terms, LevelUp encourages you to create software applications freely using the LevelUp SDK and/or APIs and to broaden the scope of User interaction with the LevelUp platform. Unfortunately, there are some restrictions associated with the LevelUp platform that are unavoidable, set forth below:

6.2. LevelUp Platform and Mobile Interface Conventions. As with any platform, certain core architectural decisions were made in building out the core functionality of the LevelUp platform. You agree that any Developer App built using the SDK and or APIs for use with the LevelUp platform shall operate within limits imposed by the architecture of the existing LevelUp platform. Because the LevelUp platform is constantly under development by LevelUp, changes or upgrades to the platform may affect the design and development, or operation, of your Developer App. Likewise, within most mobile operating systems, certain user interface conventions, requirements, and recommendations exist, including without limitation restrictions on available fonts. You agree to maintain compliance with these conventions, requirements, and recommendations.

6.3. Keep the User's information secure. You agree that any Developer App created using the SDK and/or APIs for use with the LevelUp platform shall never store User personal information, passwords, login information, or financial account numbers. You agree that any mobile Developer App shall always use app- private storage (Android) and the keychain (iOS) to store sensitive information like access or payment tokens. Developer Apps for Android shall disallow backups of app data and screenshots of activities that include the user's QR code. Developer Apps shall never expose User Data to other applications via intents, content providers, or shared storage.

6.4. Don't make the User worry about their network state. You agree that the Developer App for use with the LevelUp platform may cache, but will refresh in the background when possible, especially for the User's LevelUp payment token. Letting the user pay quickly regardless of network state is a core feature of LevelUp, but fresh data is better when you can get it. You agree that the Developer App shall log the User out if you get a login-required response (HTTP 401 Unauthorized) –meaning the user needs to re-authenticate.

6.5. Keep the User informed. You agree that the Developer App for use with the LevelUp platform will always inform the User that, by first using the Developer App in connection with the LevelUp platform, the User is agreeing to create a LevelUp User Account and to be bound by LevelUp's User Terms of Service. You agree that the Developer app shall always show the following language or equivalent when prompting a User to create a LevelUp User Account: "By tapping below you agree to the LevelUp User Terms and Conditions." with a link to https://www.thelevelup.com/user-terms.

6.6. Only Ask For The Permissions You Need. The LevelUp platform provides a powerful tool enabling you to act on behalf of merchants and Users. You agree that the Developer App used with the LevelUp platform will always request from merchants and/or Users the minimum LevelUp platform permissions necessary to the functionality employed by the Developer App, rather than asking for all possible permissions and seeing what comes in handy. LevelUp reserves the right to revoke without notice unused permissions requested by the Developer App.

6.7. Always Charge LevelUp's Rate. You agree that, to the extent the Developer App uses LevelUp to process payments, and passes the cost on to another entity, you will transparently charge such entity no more than LevelUp's current Transaction Fee rate. Developer may add fees in addition to the Transaction Fee for value-added services provided by Developer, which shall be transparently broken out and communicated to Merchants and Users, and LevelUp.

6.8. Payment Source Linking. Within the LevelUp SDKs and related documentation, certain textual, graphical, and/or design elements incorporated into the SDK (and/or resources referenced and hosted at developer.thelevelup.com) in connection with code for prompting and enabling a consumer to link a payment source (such as a debit card, credit card, bank account, or telecom carrier account) may be designated as a required inclusion in your Developer App. You agree to comply with such indications and include all such elements in any Developer App used in connection with the LevelUp platform. All logos and trademarks of third parties within the LevelUp SDKs or hosted at developer.thelevelup.com remain the exclusive property of such party.

6.9. Non-Exclusivity Within the LevelUp Ecosystem. LevelUp shall not obtain any ownership interest in any software applications you create or develop using the SDK and/or API's provided pursuant to these Developer Terms for use with the LevelUp platform or otherwise. However, in order to promote and protect the free, open, creative, and widespread development and use by all parties of the LevelUp platform, and recognizing the rights of all parties to engage in independent app development, and as a condition to accessing the LevelUp platform, you hereby grant LevelUp a perpetual, royalty- free, irrevocable, non-exclusive license to any patent obtained by you for any invention arising out of your use of the LevelUp SDK and/or APIs and concerning a Developer App for use on the LevelUp platform, which shall be transferrable and sublicensable by LevelUp for the benefit of any Developer, User, and/or merchant utilizing the LevelUp platform. This provision shall not prevent you from enforcing all other valid intellectual property rights in your Developer IP, including without limitation all trademarks, trade names, logos, graphics, designs, text, copyrights, trade secrets, software, and source code incorporated into your Developer App, whenever and however developed, and any patents, patent applications, and inventions developed independent of the LevelUp SDK and APIs.

6.10. Comply with the Law. You agree that you will not use the LevelUp SDK and/or APIs in any Developer App utilizing the LevelUp platform for any unlawful or illegal activity, or to facilitate payment for any illegal activity via the LevelUp platform. You agree that you will not develop, launch, or offer any Developer App using the LevelUp platform that would effect, commit, or facilitate the commission of a crime, or other tortious, unlawful, or illegal act. You represent and warrant to LevelUp that you have obtained all necessary licenses and authorizations from federal, state, and local authorities required in order to operate your business.

6.11. Respect the Valid intellectual Property of Others. You agree and warrant that you have all right and title to use in connection with your Developer App any trademarks, service marks, names, logos, designs, layouts, photographs, text, images or other content within the Developer App ("Developer Content"), and that your, and LevelUp's, use, copying, modification and publication of the Developer Content: (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.

6.12. Anti-Money Laundering. You shall not use the LevelUp platform for the purpose of accepting security for or repayment of loans or debts, providing cash advances, check cashing, or otherwise distributing cash to any person or entity. You warrant to LevelUp that you and your merchant clients comply with all laws and regulations concerning the prevention of money laundering and/or funding of terrorist organizations. To the extent that you initiate transaction on behalf of third parties: (i) you represent and warrant to LevelUp that you comply with LevelUp's policies against money laundering (available upon request) and agree to provide LevelUp with copies of your current policies against money laundering, and to permit LevelUp to audit your compliance with such policies, upon request.

6.13. LevelUp Logo. You agree that, to the extent your Developer App operates in connection with the LevelUp platform, the Developer App shall prominently display the LevelUp name and logo, accompanied by a tag indicating "Powered by LevelUp" or equivalent attribution. Such prominent attribution must be placed either: (i) on the application splash screen; (ii) on the "pay" screen displaying the LevelUp QR code; and/or (iii) as a top level menu item in the Settings screen, linking to LevelUp's policies screen. You are hereby granted a limited, non- exclusive license to use the LevelUp name and logo exclusively for such purpose. To the extent that you have purchased and are using the Enterprise components of the LevelUp SDK to connect to the LevelUp platform, the LevelUp name and logo must also be displayed on the screen where the User is prompted to link a payment instrument.

6.14. Be Responsible For Your Content. You are solely responsible for the development, content, operation, maintenance, and use of your Developer App, including without limitation for (i) the technical operation of your Developer App, including ensuring that calls you make are compatible with then-current APIs; (ii) compliance of Your Developer App with these Developer Terms, as well as the LevelUp Privacy Policy, and Merchant Terms; (iii) any claims relating to the use of your Developer App; and (iv) properly handling and processing notices sent to you (or any of your affiliates) by any person claiming that you Developer App violates such person's rights.

6.15. Acting on Behalf of Third Parties. To the extent you or your Developer App initiate LevelUp transactions on behalf of third party providers of goods and/or services that have not established Merchant Accounts with LevelUp ("Clients"), you agree that: (i) you are solely responsible for making all payments to your Clients, independent of any payment to you by LevelUp; (ii) that LevelUp shall have no responsibility for payment to such clients whatsoever, and (ii) that such Client entities are not intended beneficiaries of these Developer Terms.

6.16. As a Developer utilizing the LevelUp platform, your conduct and business practices reflect upon LevelUp and the community of LevelUp Users. Merchants, and Developers. LevelUp reserves the right to terminate the license granted hereunder, and/or your access to the LevelUp platform if, in its sole discretion, it determines that your business, conduct, or business practices reflect poorly upon LevelUp or pose a threat to the LevelUp platform or any other user of the LevelUp platform.

7. Access to LevelUp Platform

7.1. In order for any person or Merchant to use any Developer App in connection with the LevelUp platform for the purpose of accepting payments, either at a physical or online point of sale, and/or for designing, developing, implementing, and executing Campaigns, the person or Merchant must apply, and be approved by LevelUp, for a LevelUp Merchant Account.

7.2. The receipt of a LevelUp Merchant Account, and the use of a Developer App in connection with the LevelUp platform for the purpose of accepting payments, either at a physical or online point of sale, and/or for designing, developing, implementing, and executing Campaigns, shall be subject to LevelUp's Merchant Terms and Conditions, including without limitation all applicable fees set forth therein, which are available at https://www.thelevelup.com/merchant-terms.

7.3. For uses of a Developer App on the LevelUp platform other than in connection with accepting payments and/or engaging in Campaigns, including awarding User or Campaign Credit to Users, a LevelUp Merchant Account shall not be required. Such uses may include, for example, accessing data within the LevelUp platform in accordance with appropriately granted User permissions.

8. Permissions and Use of LevelUp Data

8.1. The ability of your Developer App, and indeed any LevelUp App or other software application connected to the LevelUp platform, to access, collect, copy, retain, share, and use User Data within the LevelUp platform, or from or among any LevelUp App or other software application connected to the LevelUp platform, is governed exclusively by the permissions that individual Users may in their sole discretion grant to your Developer App or other such applications.

8.2. You and/or your merchant clients, through your Developer App, shall have the right to request permissions from Users of your Developer App, including without limitation permissions to access, read, create, share, and use LevelUp platform User Data. Other such permissions may include, for example the ability to charge a User for an order, the ability to place an order on behalf of a merchant, the ability to read a User's transaction history, and other permissions.

8.3. User permissions, once granted to your Developer App, persist until revoked. User permissions granted to your Developer App may be revoked at any time by any individual User, and/or by LevelUp, without notice and without further recourse.

8.4. You may also request certain permissions from parties that have established Merchant Accounts with LevelUp, such as permission to access transaction history data and to create orders on behalf of such party. Such permissions must be obtained in writing in a form approved by LevelUp (available upon request), and may be revoked by the granting party and/or LevelUp at any time. To the extent you acquire permission to act on behalf of a third party merchant, you agree: (i) to keep all permission tokens provided by LevelUp secure and confidential; (ii) to use such tokens only to take actions duly authorized by the merchant; and (iii) to keep and use all merchant data, including User Data, only in accordance with the merchant's published privacy policy and applicable laws and regulations.

8.5. Permissions granted to Developer or to a Developer App are non-transferrable to any other party, or to any other LevelUp App or software applications operated or owned by the same party.

8.6. To the extent you use any API to retrieve data from the LevelUp platform, you acknowledge and agree that you shall only attempt to retrieve User Data only in accordance with the User duly granted permissions, and shall not seek to circumvent such permissions or attempt to gain access to data for which permissions have not been granted.

8.7. Consequent to LevelUp's operation of a financial platform, LevelUp retains ownership of all data, including User Data, collected by the LevelUp platform and all copyright, patent, trade secret and other intellectual property rights therein. The collection, management, and retention of data is performed securely, in accordance with federal and state laws, and all applicable permissions granted by its Users. LevelUp's management of and access to such data is used primarily by LevelUp to comply with all applicable federal and state laws and regulations, and to provide services (analytics, receipts, campaign platform, app functionality etc…) to LevelUp merchants.

9. Support

9.1. You shall be solely responsible for supporting and maintaining your Developer App with the latest LevelUp SDK and APIs, and the latest version of any mobile operating system.

9.2. In order to assist you in maintaining your Developer App, LevelUp currently offers a support forum at https://levelup.zendesk.com that includes Developer Documentation, as well as a form for the submission of support requests employing a support ticketing system.

9.3. LevelUp reserves the right to terminate its support service for any Developer App at any time. LevelUp shall not be responsible for any claims, complaints, costs, expenses, liabilities or damages to any person arising out of LevelUp's provision of support for any Developer App, any delays in such support, or the accuracy of any information provided by LevelUp in connection with the support service.

10. Third-Party Applications

10.1. If you use the LevelUp SDK and/or associated APIs to integrate to the LevelUp platform a Developer App developed in whole or in part by a third party, or that accesses data, content or resources provided by a third party, you agree:

• 10.1.1. LevelUp is not responsible for those applications, data, content, or resources. You understand that all data, content or resources which you may access through such third party applications are the sole responsibility of the person from which they originated and that LevelUp is not liable for any loss or damage that you may experience as a result of the use or access of any of those third party applications, data, content, or resources.
• 10.1.2. You are aware the data, content, and resources presented to you through such a third party application may be protected by intellectual property rights which are owned by the providers (or by other persons or companies on their behalf). You may not modify, rent, lease, loan, sell, distribute or create derivative works based on these data, content, or resources (either in whole or in part) unless you have been specifically given permission to do so by the relevant owners.
• 10.1.3. You acknowledge that your use of such third party applications, data, content, or resources may be subject to separate terms between you and the relevant third party. In that case, these Developer Terms do not affect your legal relationship with these third parties.

11. User Complaints.

11.1. You agree to respond promptly and to take full responsibility for any User complaints arising out of the use of your Developer App.

11.2. If we receive any User complaints related to the usage of LevelUp as it pertains to your Developer App, you will cooperate with us as we investigate such complaints. While we will seek to resolve complaints to the satisfaction of all parties, we might not be successful in doing so.

11.3. If any complaint arises from an erroneous charge from your Developer App to a User, we reserve the right to refund payments to Users who paid with LevelUp via your application and charge you for any errors associated with the failure of your application to function properly, pursuant to the applicable Merchant Terms.

11.4. If LevelUp receives an abnormal volume of complaints about your Developer App, we reserve the right to terminate your access at any time. Any appeals must be made through support@thelevelup.com.

12. Representations and Warranties.

You represent and warrant to LevelUp that:

12.1. You have the right, power and authority to enter into this agreement and to be bound by these Developer Terms, including the right to bind your employer if your access to the SDK and/or APIs is undertaken on behalf of your employer. Your execution and performance of these Developer Terms will not conflict with or violate any agreements or instruments by which you are bound, any applicable law, or any rights of any third party.

12.2. You and/or your merchant Client(s), if any, are registered for sales and use tax collection purposes in all jurisdictions in which your goods and services will be provided pursuant to the use of the Developer App and presentation and redemption of associated Campaigns, and that 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 carried out in connection with the LevelUp platform (the amount of applicable sales tax as calculated by you or your merchant Client will be included to the Net Sales Proceeds transferred by LevelUp pursuant to its Merchant Terms);

12.3. You shall not impede a authorized Campaign being immediately available for redemption by the User;

12.4. The use of your Developer App, including any discounts or goods and services offered thereunder, will comply with all, and will not violate any, local, state, federal or international law, statute, rule, regulation or order, including without limitation those governing rewards, incentives, gift cards, coupons and/or gift certificates;

12.5. If your product stores, processes or exchanges any cardholder data, that your product complies and adheres to all of the requirements or control objectives set forth in the PCI Security Standards Council, LLC Payment Application Data Security Standard (PA-DSS), as in effect from time to time, and that all future versions of your product will comply with such requirements; and

12.6. Any advertising or promotion of your products or services relating to an association with the LevelUp platform will not constitute, and you will not engage in any, false, deceptive or unfair trade practices.

13. Disclaimer of Warranties.

13.1. We will make reasonable efforts to provide the SDK, APIs and other benefits described by these Developer Terms to you in a workmanlike manner and in compliance with the applicable descriptions herein. Your sole and exclusive remedy, and LevelUp's sole and exclusive liabilities, for breach of the foregoing covenant shall be as follows: (a) if you notify LevelUp of any such breach within thirty (30) days of its occurrence, LevelUp shall promptly remedy the error in accordance with the requirements of these Developer Terms; and (b) if LevelUp fails to or is unable to remedy the error, you may terminate these Developer Terms immediately on written notice to LevelUp. OTHER THAN AS EXPLICITLY SET FORTH, WE MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THIS AGREEMENT, the LevelUp SDK and/or any associated APIs, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, OR ANY WARRANTIES ARISING FROM CUSTOM OR USAGE OF TRADE. WE DO NOT WARRANT OR GUARANTEE THAT YOU WILL ACHIEVE ANY LEVEL OF SALES, REVENUE OR PROFIT. WE DO NOT WARRANT OR GUARANTEE THAT THE LEVELUP WEBSITES OR SERVICES OR USER DATA WILL ALWAYS BE AVAILABLE OR OPERATE ERROR-FREE, THAT THE CAMPAIGNS WILL BE ERROR-FREE, OR THAT ANY ERRORS, OMISSIONS OR MISPLACEMENTS IN THE DEVELOPER RELATIONSHIP WILL BE CORRECTED. No statement, either orally or in writing, made by any of our officers, employees or agents will vary this paragraph.

14. Limitation of Liability.

14.1. IN NO EVENT WILL LEVELUP BE LIABLE OR OBLIGATED TO YOU OR ANY THIRD PARTY IN ANY MANNER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES ON ACCOUNT OF LOST PROFITS, LOST REVENUES OR FAILURE TO REALIZE ANTICIPATED BUSINESS BENEFITS, ARISING IN CONNECTION WITH THIS AGREEMENT, OR YOUR USE OF THE LEVELUP SDK AND/OR ANY ASSOCIATED APIS OR THE USE OF THE DEVELOPER APP IN CONNECTION WITH THE LEVELUP PLATFORM, REGARDLESS OF THE FORM OF ACTION, WHETHER OCCURRING IN CONTRACT, TORT, NEGLIGENCE, STRICT PRODUCT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT WE KNEW THAT SUCH DAMAGES MAY HAVE BEEN INCURRED.

14.2. IN NO EVENT WILL LEVELUP'S LIABILITY FOR ANY DAMAGES ARISING IN CONNECTION WITH THIS AGREEMENT, THE LEVELUP PLATFORM, THE SDK OR APIS EXCEED THE FOLLOWING AMOUNTS: (A) IF THE DAMAGES RELATE TO A PARTICULAR TRANSACTION OR TRANSACTIONS, THE AMOUNT OF TRANSACTION FEES (AS DEFINED IN THE LEVELUP MERCHANT TERMS) PAID TO AND RETAINED BY LEVELUP IN CONNECTION WITH SUCH TRANSACTION OR TRANSACTIONS; AND (B) IF THE DAMAGES DO NOT RELATE TO PARTICULAR TRANSACTIONS, THE TOTAL AMOUNT OF TRANSACTION FEES PAID TO AND RETAINED BY LEVELUP IN THE THREE (3) MONTH PERIOD BEFORE THE LIABILITY AROSE. THIS LIMITATION OF LIABILITY SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WHETHER THE DAMAGES ARISE IN CONTRACT, TORT, NEGLIGENCE, STRICT PRODUCT LIABILITY, OR OTHERWISE, AND NOTWITHSTANDING THE FAILURE OF ANY LIMITED REMEDY.

15. Indemnity.

15.1. You will indemnify and hold harmless LevelUp, its affiliated and related entities, and any of their officers, directors, employees and agents ("Company Indemnitees") against any claims, actions, suits, investigations, proceedings, liabilities, losses, damages, penalties, fines, costs and expenses, including but not limited to attorneys' fees and costs in each case as and when incurred ("Damages"), arising out of, relating to, or incurred in connection with, any of the following:

• 15.1.1. Your breach or alleged breach of these Developer Terms, or of your representations, warranties or covenants set forth herein;
• 15.1.2. The design of, or any failure of, your Developer App, including without limitation your Developer App's failure, or alleged failure, to grant, redeem, or honor a Campaign incentive or reward, or Campaign Credit;
• 15.1.3. The products or services provided or required to be provided by you, or your authorized users or merchant Clients, including but not limited to, any claims for false advertising, product defects, personal injury, death, or property damage related to your product or service;
• 15.1.4. Your failure to maintain the Developer App to operate in connection with any update to the LevelUp SDK and/or associated APIs, and/or any updated to any mobile operating system;
• 15.1.5. The User Data and reporting or analytics services provided by LevelUp pursuant to User granted permissions, including the completeness or accuracy of such data, your use or misuse of any such data, the unauthorized disclosure by you of such information, whether intentional or unintentional, and/or the revocation of any applicable permissions;
• 15.1.6. Any misuse or unauthorized disclosure of merchant permission tokens granted to you by LevelUp or any LevelUp merchant and/or any actual or alleged unauthorized action by you on behalf of a third-party LevelUp merchant or your merchant Clients, including without limitation non-payment by you to your merchant Client(s);
• 15.1.7. Any violation of any applicable federal, state, or local law or regulation including without limitation failure to obtain all required licenses, permits, and authorizations; and
• 15.1.8. Any violation or infringement, or allegation of violation of infringement, by you, your authorized users or merchants, or your Developer App of any intellectual property right of any third party.

15.2. LevelUp shall have the right to appoint counsel to defend any claim, action, suit, investigation or proceeding ("Claim") covered by your indemnification obligations set forth above, at your cost and expense. You shall have no right to control the defense or settlement of any such Claim, and you shall not settle or compromise any such Claim without LevelUp's prior written consent.

15.3. You agree to monitor and be responsible for your authorized users and merchants use of the SDK and associated APIs, and your Developer App, and their compliance with these Developer Terms; and you will be solely responsible for all costs, expenses, losses and liabilities incurred, and activities undertaken by you and your authorized users and merchants in connection with the SDK and associated APIs, and your Developer App.

16. Confidentiality.

In connection with these Developer Terms, and the actions contemplated hereunder, LevelUp and Developer may disclose to each other certain confidential and proprietary information relating to their respective businesses, customers, suppliers, prices, products, and technologies that is not generally publicly known ("Confidential Information"). Each of us shall keep confidential the expressly designated Confidential Information of the other party, not disclose it to any third party, and not use it except for the purposes contemplated by these Developer Terms. The obligations of confidentiality herein shall not apply to (a) information in the public domain without fault of the receiving party; (b) information disclosed to the receiving party or in the possession of the receiving party without any breach of any obligation of confidentiality owed by the receiving party or any third party to the disclosing party; (c) information independently developed by the receiving party without use of the Confidential Information of the disclosing party; and (d) information required to be disclosed in order to comply with law.

17. Termination

17.1. These Developer Terms, as amended from time to time, shall apply until terminated pursuant to this section.

17.2. LevelUp reserves the right to terminate this Agreement, and any other agreements you may have with LevelUp, to revoke any license(s) granted hereunder, and/or to revoke access to the LevelUp platform for any Developer App, without recourse, in the event that: (i) you are in material breach of these Developer Terms, (ii) you violate any laws or otherwise engage in any conduct that may adversely affect our business or reputation; or (iii) LevelUp is required to terminate by law. Such determinations are in the sole discretion of LevelUp. All accrued rights and remedies granted to LevelUp hereunder shall survive any termination of this Agreement.

17.3. Upon the termination of this Agreement for any reason, you agree to immediately cease all use of the SDK and associated APIs, and to erase and destroy all copies, full or partial, of the SDK and APIs, and any copies of LevelUp Confidential Information in your and your authorized users' possession or control. At LevelUp's request, you agree to provide written certification of such destruction to LevelUp. LevelUp will not be liable for compensation, indemnity, or damages of any sort as a result of terminating this Agreement in accordance with its terms, and termination of this Agreement will be without prejudice to any other right or remedy LevelUp may have, now or in the future.

18. Developer Privacy Policy

18.1. You understand and agree that LevelUp reserves the right to share User and app information in accordance with the LevelUp Privacy Policy ("Privacy Policy"), which can be found here: https://www.thelevelup.com/privacy-policy. The Privacy Policy is incorporated by reference herein. LevelUp reserves the right to share User Data and data concerning the use of your Developer App, in aggregate, with third parties to aid in statistical analysis, loyalty program structuring and tracking, or feature development.

19. General.

19.1. This Agreement represents 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 of this Agreement by any other party shall be construed to be a waiver of any succeeding breach of the same or any other covenant or condition. Ambiguities, if any, in this Agreement shall not be construed against any party, irrespective of which party authored the ambiguous provision, and any rule of construction to the contrary shall not apply. LevelUp shall not be liable for any breach of these Developer Terms to the extent such breach arises from factors outside LevelUp's reasonable control.

19.2. All disputes arising out of or relating to this Agreement or the LevelUp platform, including without limitation the validity, applicability, and/or enforceability of 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 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 YOU WAIVE 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 this Agreement, unless the Arbitrator shall determine otherwise, each party shall bear its own costs and expenses. Notwithstanding the foregoing, you or we 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 your 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 this Agreement or the LevelUp platform shall be vested exclusively in, and venue shall be laid in, the state or federal courts sitting in 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.

19.3. The parties are independent contractors. Except for our right to advertise on your behalf in accordance with the Developer Terms, this Agreement does not create any joint venture or agency. Neither party has the power to bind the other.

19.4. All communications between Developer and LevelUp, and any notices due hereunder, may use electronic means. Developer (a) consents to receive communications from LevelUp in an electronic form, and (b) agrees that all Developer Terms, agreements, notices, disclosures, and other communications that LevelUp provides to you electronically will satisfy any legal requirement that such communications be in writing. The foregoing does not affect Developer's statutory rights.

19.5. 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 clause in Section 19.2 shall also be invalid.

19.6. 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 in Section 19.1 shall be governed by the Federal Arbitration Act.

19.7. These Developer Terms are void where prohibited by law.

Effective Date of these Terms of Service: January 28, 2015