Merchant Terms and Conditions
1. General Description
1.1. SCVNGR, Inc., doing business as LevelUp ("we" or "Company" or "LevelUp") provides Merchants (also "you") access to the LevelUp mobile payment and customer engagement platform ("LevelUp platform"), and provides LevelUp Merchant Accounts, subject to your acceptance of and compliance with the following LevelUp Merchant Terms and Conditions ("Merchant Terms").
1.2. LevelUp authorizes use of the LevelUp platform by Merchants, subject to the terms and conditions set forth in these Merchant Terms, strictly for the purpose of accepting LevelUp as a method of payment at Merchant's points of sale (POS), and/or Online points of sale, and for the development, implementation, execution, and/or management of promotional and marketing Campaigns. By applying for a LevelUp Merchant Account, and by accessing and utilizing the LevelUp platform, and as an express condition of such use and access, you agree to comply with all of the following Merchant Terms. These Merchant Terms, as amended by LevelUp from time to time, constitute a complete and binding legal agreement between you and LevelUp. THESE MERCHANT 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 Merchant Terms at any time by posting the updated terms on the LevelUp 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 Merchant Terms for changes. Your continued use of the LevelUp platform and services will constitute your consent to such changes. If you do not agree to the changes, you must cease your use of the LevelUp platform and notify LevelUp of your termination of this Agreement. In the event of a conflict between these Merchant Terms and any other content provided by LevelUp, unless specifically provided otherwise, these Merchant Terms shall govern.
1.4. Definitions. In addition to the terms defined in parentheses throughout these Merchant Terms, the following terms shall mean:
1.4.1. "User" means individuals having an established LevelUp user account, with at least one financial account and/or payment instrument linked to such account, who have accepted the LevelUp User Terms of Service (https://www.thelevelup.com/terms) ("User Terms"). Users may initiate payments, earn and redeem Campaign Credit, via the LevelUp platform using a LevelUp App and/or through a LevelUp Online POS.
1.4.2. "LevelUp App" means any software application, including without limitation mobile applications for iOS Android, or Windows operating systems, or other software or web applications, 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.
1.4.3. "Online POS" means any piece of software that enables orders to be tendered with LevelUp online.
1.4.4. "Campaign Credit" shall refer to incentives, rewards, discounts, and/or credits offered to Users by LevelUp and/or Merchants and/or Third Parties, 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.
1.4.5. "User Credit" shall refer to credit, other than Campaign Credit, granted to a LevelUp user by a party other than the redeeming Merchant, that may be applied toward the purchase of merchant goods and/or services at a Merchant's POS or Merchant's LevelUp Online POS, via the LevelUp platform.
1.4.6. "User Data" means all data collected by LevelUp in operating and otherwise concerning the use of the LevelUp platform.
1.4.7. "Campaigns" shall refer to marketing initiatives, programs, or strategies to attract new or existing LevelUp Users to your locations, which may include Users earning and/or redeeming Campaign Credit in various ways.
1.4.8. The term "Net Sales Proceeds" means the sum total of all monies paid using LevelUp as the payment method at your POS location, after subtracting applicable fees and applied Campaign Credit offered by Merchant.
1.4.9. The term "Merchant Dashboard" means your portal provided at the LevelUp website to view and manage your Merchant Account and User Data, and to view, manage, and create Campaigns.
2. LevelUp's Principal Obligations
In connection with your usage of the LevelUp platform, and subject to the more detailed Merchant Terms set forth herein, LevelUp agrees that we will:
2.1. Work with you to enable you to accept LevelUp as a method of payment at your physical POS locations and/or Online POS locations;
2.2. Permit you to leverage the LevelUp platform to run Campaigns to engage LevelUp Users and new users;
2.3. Advertise your Campaigns on our digital and mobile properties to Users, and, in some cases, through our network of LevelUp App providers;
2.4. Provide you with rich analytics about your customer Users' activities via our LevelUp Merchant Business Dashboard, in accordance with applicable Users' permissions;
2.5. Provide you access to the latest generally available POS integrations for supported POS systems at no charge to you;
2.6. Work with you to try to resolve promptly and professionally any User complaints related to the usage of the LevelUp platform and any LevelUp Campaigns at your locations;
2.7. Provide fast payment to you of the Net Sales Proceeds from LevelUp transactions at your POS locations, without the risk of chargebacks; and
2.8. Provide you with Campaign Credit redemption tracking and summary analytics for your Campaigns run on the LevelUp platform.
3. Merchant's Principal Obligations
In connection with your usage of the LevelUp platform, and subject to the more detailed Merchant Terms set forth below, you agree that you will:
3.1. Work with LevelUp to provide complete and accurate information concerning your business as may be requested in connection with your usage of the LevelUp platform, and to maintain the accuracy of all such information;
3.2. Authorize LevelUp to advertise your Campaigns to Users and to make adjustments to any advertising or messaging as we deem necessary or desirable to promote your Campaigns more effectively;
3.3. Maintain a POS integration or a standalone LevelUp implementation permitting Users to use a LevelUp App as a form of payment for goods and services, while offering to Users the same prices generally available to any customer using any other payment method including cash, credit/debit cards and any other form of payment;
3.4. Honor and redeem all Campaign Credit rightfully earned by Users as part of your selected Campaigns, and provide Users with the Campaign Credit, and goods and/or services that are promised under each Campaign you choose to run;
3.5. Immediately notify LevelUp of any actual or suspected unauthorized use, fraud, violations of any state or federal laws or regulations, or other breach of these Merchant Terms or LevelUp's User Terms;
3.6. Accept responsibility for any User complaints and/or customer service issues that may arise in connection with any User's redemption or attempted redemption of Campaign Credit;
3.7. Publicize your relationship with LevelUp and encourage your customers to use LevelUp and/or engage in LevelUp Campaigns, including by messaging via Twitter, Facebook, Text, and/or email to your existing customers;
3.8. Place the LevelUp point of sale scanner or other hardware in a prominent and visible location next to your existing point of sale (if applicable) and agree to not modify the LevelUp hardware in any way shape or form; and
3.9. Agree to add a sticker to your physical storefront and a digital badge to your website explaining that customers may pay with LevelUp (LevelUp will provide such materials free of charge).
4. Merchant Application, Registration, and Approval
4.1. In order for LevelUp to effect payments to you by Users via the LevelUp platform, and for you to leverage the LevelUp platform for Campaigns, you must be registered with LevelUp and have an established LevelUp Merchant Account. You may request a LevelUp Merchant Account by contacting LevelUp directly, by phone or email, or by entering your information on the LevelUp website at: https://www.thelevelup.com/what-is-levelup. A LevelUp representative will contact you with information needed to complete an application to register for a LevelUp Merchant Account.
4.2. In order to establish a LevelUp Merchant Account, LevelUp requires that you provide LevelUp certain information, including without limitation your full legal name and/or the legal name of your business, your Social Security Number and/or the Federal Employer or Tax ID Number of your business, and account information for a valid financial account connected to the ACH network. LevelUp will maintain the security of your account information using a third-party provider. LevelUp does not store or share your personal, business, or bank account information.
4.3. By establishing a LevelUp Merchant Account associated with one or more financial accounts, you authorize LevelUp to credit your associated financial account directly, including without limitation for the payment of Net Sales Proceeds, and to debit your associated financial account directly for all fees due to LevelUp, including without limitation any Campaign Fees and/or Transaction Fees if same are not withheld at the time of payment of Net Sales Proceeds.
4.4. You represent and warrant that all information provided by you to LevelUp in connection with the application for a Merchant Account is complete and accurate. 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 your Merchant Account, without limitation to other available remedies.
4.5. US Patriot Act Notice: To help the government fight the funding of terrorism and money laundering activities, federal law requires financial institutions to obtain, verify, and record information that identifies each person who registers for a Merchant Account with LevelUp. Merchants will be required to provide such information to the satisfaction of LevelUp prior to establishing a Merchant Account.
4.6. LevelUp reserves the right to reject an application or registration for a LevelUp Merchant Account, for any reason.
5.1. Upon a completed registration by you, and acceptance and approval by LevelUp of your Merchant Account application, LevelUp will offer to you the LevelUp hardware required for you to begin accepting payments from, and engaging in loyalty programs with, LevelUp Users.
5.2. If you will be integrating the LevelUp system into an existing, supported POS system, LevelUp agrees to offer you the LevelUp-branded, Cube wired scanner hardware (White Cube Scanner with LED) at the cost of $50/ea. One scanner will be required for each physical POS integrated to LevelUp. Alternatively, non-traditional LevelUp hardware arrangements may be available upon inquiry to LevelUp.
5.3. LevelUp reserves the right to change, or to waive, the hardware fees at anytime for any reason. Any hardware provided free of charge to Merchant remains the property of LevelUp, and shall be returned to LevelUp upon the termination of Merchant's use of the LevelUp service for any reason. Failure to return the hardware in accordance with this section will result in a penalty equal to the cost of the hardware stated herein, which shall be deducted from the Net Sales Proceeds next remitted to you.
5.4. Wireless scanning hardware may be offered, at LevelUp's discretion, at additional cost.
5.5. Wired LevelUp hardware, whether purchased by Merchant or provided free of charge by LevelUp, may not be modified, obscured, branded, decorated, or altered in any way and must be placed in a prominent appropriate location at Merchant's POS to facilitate ease of consumer use.
5.6. If any item of LevelUp hardware malfunctions or breaks, LevelUp will send you a return shipping label for the return and replacement of the item. You agree to package the item appropriately, to use the return shipping label, and to send the damaged hardware back to LevelUp within ten (10) days.
6. POS Integrations & Installation
6.1. The LevelUp platform is currently supported by integration software packages for many POS systems (and more are currently under development). A list of currently supported POS integrations is available at https://www.thelevelup.com/pos-partners. If you are using a POS system that presently supports a LevelUp platform integration, LevelUp grants you with a limited, royalty-free, non-exclusive, non-transferable license to the latest software to power such integration ("POS software") free of charge. Please note that LevelUp is not responsible for installing or integrating your LevelUp hardware to your POS. Your POS provider, IT contractor, and/or other third-parties with which you contract may charge fees, such as license fees, or professional services fees, in order to facilitate the initial integration of the LevelUp platform into your POS system and/or to support the integration. LevelUp is not responsible for such fees. LevelUp, or such third parties as may be specifically identified within portions of the POS software, owns all legal right, title and interest in and to the POS software, and any updates to same that may be released in the future by LevelUp, including any Intellectual Property Rights that subsist in the POS software (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 herein, LevelUp reserves all such rights.
6.2. For many POS systems that support a LevelUp platform integration, you may manually install the necessary integration software utilizing the protocols found at http://setup.thelevelup.com/ ("Self-Install"). If you choose to utilize a Self-Install, you agree to utilize the most up- to-date version of POS integration software (including any necessary interfaces) and LevelUp install documentation and integration files found at http://setup.thelevelup.com/. If your LevelUp system was Self-Installed, LevelUp will attempt to resolve any problems associated therewith provided your LevelUp installation was performed using the most up-to-date POS software.
6.3. As an alternative to POS integration, LevelUp may offer and/or provide a standalone option that enables LevelUp to work without POS integration. Further information is available upon request from LevelUp.
6.4. Once LevelUp software is installed on your POS system, you authorize LevelUp to remotely access your POS system for the purposes of general maintenance, issue resolution, communication, and/or upgrades using software tools including the LogMeIn program ("LogMeIn") and the TeamViewer program ("TeamViewer"). Merchant agrees to keep all LevelUp LogMeIn and TeamViewer account and password information strictly confidential and further to limit those employees of Merchant who may access such information. You agree to indemnify and hold harmless LevelUp for any loss resulting from another's use of any LevelUp LogMeIn and TeamViewer password or account, as may be applicable, either with or without your knowledge.
6.5. You are required to properly maintain the LevelUp software supporting your POS integration, including but not limited to performing all POS system updates, anti-virus updates, firewall maintenance, OS updates and security patches, and you will be solely responsible for any and all losses incurred as the result of a failure to properly maintain such software.
7. Payments Using LevelUp; No Chargeback Guarantee
7.1. Payments. For transactions using LevelUp as a method of payment at Merchant's point-of-sale, LevelUp pays Merchants the Net Sales Proceeds collected as follows:
7.1.1. LevelUp pays Merchant all Net Sales Proceeds on the next business day following the transaction via direct deposit to the bank account associated with your established LevelUp Merchant 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 Merchant's associated bank account. Some banks may take longer than 24 hours to process payments, particularly on weekends and holidays.
7.1.2. If, in our determination, you have not provided the goods or services in exchange for the Net Sales Proceeds, or otherwise violated these Merchant Terms in connection with a submitted transaction, you agree that LevelUp shall have the right to withhold and not to pay you such Net Sales Proceeds in connection with said transaction, and/or to pay a refund to any User following a distribution of Net Sales Proceeds to you, and to deduct such refund amount from future deposits to your account or to debit your associated financial account for the amount of the Net Sales Proceeds associated with the good/or services not delivered.
7.2. No Charge-Back Guarantee. LevelUp's unique security model means that when we approve a LevelUp transaction, we mean it. To the extent that LevelUp receives a chargeback for any transaction approved at your POS, LevelUp will not seek reimbursement from you. This Guarantee shall not apply, however, to a transaction in which Merchant or a Merchant employee actively commits or colludes to commit fraud against LevelUp, or any credit card holder or issuer, by utilizing the LevelUp platform and/or any LevelUp application or the White Label Applications.
8.1. LevelUp offers a series of highly customizable, pre-built Campaign structures that can be selected, modified, and implemented by Merchant, via the Merchant Business Dashboard interface, at no additional cost to Merchant beyond the Campaign Fee explained below, based only on redeemed Campaign Credit. LevelUp reserves the right to discontinue support for any Campaign at any time, for any reason.
8.2. You have complete control over your Campaign strategy. You can choose to run as many, or as few, Campaigns as you'd like, via the LevelUp platform.
8.4. You are required to honor and redeem all Campaign Credit rightfully earned by Users as part of your selected and offered Campaigns, and agree that LevelUp shall provide Users with the earned Campaign Credit, and apply redeemed Campaign Credit to transaction amounts at the time of a transaction as set forth in these Merchant Terms. You are responsible for providing to Users all goods and/or services that are promised under each Campaign you choose to run. You are solely responsible for any claim or damages arising out of your failure to grant or honor or redeem any Campaign credit.
8.5. You shall not be charged for Campaign Credit or User Credit redeemed at your locations or points of sale where such Campaign Credit was offered or granted to Users by LevelUp or by a third-party. Such Credit will not be deducted from Net Sales Proceeds.
8.6. You agree that in providing goods and/or services to LevelUp Users, you will not impose any restrictions on redemption, award, or application of Campaign Credit, or any extra fees, charges or conditions that contradict these Merchant Terms and/or the terms established by LevelUp in connection with any individual Campaign.
8.7. When LevelUp advertises Campaigns, and related Campaign Credit (including rewards and incentives) associated with your use of the LevelUp platform, including within a LevelUp App, we do so as your marketing service. You retain the legal obligation to award, redeem, and/or apply Campaign Credit to Users' purchases of goods and/or services as promised to Users.
8.8. All Campaigns run on the LevelUp platform, including the manner in which User Credit is awarded, redeemed, and applied, must comply with all applicable federal, state, and local laws and regulations.
8.9. Redemption or application of Campaign Credit for alcoholic beverages is at the sole discretion of the Merchant, and is subject to compliance with applicable federal, state, and local laws and regulations.
8.10. LevelUp shall have the right to terminate any Campaign at anytime for any reason in its sole discretion. LevelUp shall have the continuing right, but not the obligation, to reject, revise, or discontinue publishing any Campaign and to require you to edit or modify the same for any reason, including, without limitation, to conform your use of LevelUp to our specifications and applicable law.
9. Data Reporting and Analytics
9.1. LevelUp provides to Merchants, via the Merchant Business Dashboard interface, access to User Data and related reporting and analytics features concerning transactions conducted on the LevelUp platform at Merchant's locations, as authorized by LevelUp's Users. The User Data provided to Merchants pursuant to these Merchant Terms includes a history of a User's transaction on the LevelUp platform at your locations (i.e., the date, time, location, and amount of each customer's individual purchases) and the customer's progress in your active Campaigns (i.e., Campaign Credit earned and redeemed, and status in any ongoing Campaigns).
10. Use of the LevelUp Platform
10.1. Your use of the LevelUp platform, the LevelUp Merchant business dashboard, and your LevelUp Merchant Account, is authorized by LevelUp for the limited purposes set forth in these Merchant Terms.
10.2. You represent and warrant that all information provided by you to LevelUp is complete and accurate. You agree that the entity identified in connection with your LevelUp Merchant Account shall be the only entity for which payments are accepted by the LevelUp platform. Merchants are not authorized to accept payments on behalf of an unidentified third party using the LevelUp platform.
10.3. You agree that, to the extent the LevelUp platform is used to facilitate payments by Users, payments shall only be accepted for goods and/or services actually delivered or provided by you in the ordinary course of your business, as described by you to LevelUp in the application and registration process, or as updated from time to time by contacting LevelUp. You are required to notify LevelUp of any material change or expansion in the nature of goods and services offered by your business, for which you intend to accept LevelUp as a method of payment.
10.4. You agree that, to the extent the LevelUp platform is used to execute Campaigns, you shall honor and redeem all Campaign Credit rightfully earned and/or granted to Users.
10.5. You shall not use the LevelUp platform for the purpose of accepting security or payment for loans, providing cash advances, check cashing, or otherwise distributing cash to any person or entity. You warrant to LevelUp that you comply with all applicable laws and regulations concerning the prevention of money laundering and/or funding of terrorist organizations.
10.6. You shall not use the LevelUp platform to accept payments for or in connection with any illegal activity, in violation of any federal, state, or local law, or in connection with any lottery or gambling activity.
10.7. You agree to ensure that none of your employees or agents requests that a LevelUp 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 transaction.
10.8. As a Merchant utilizing the LevelUp platform, your conduct and business practices reflect upon LevelUp and the community of Merchants accepting LevelUp as a payment method. LevelUp reserves the right to terminate your use of the LevelUp platform if, in its sole discretion, it determines that your business, conduct, or business practices reflect poorly upon LevelUp.
11. Marketing and Referrals
11.1. As a condition of your use of the LevelUp platform, you grant LevelUp a limited, non-exclusive license to use your business name, logo, and related information in order to promote your use of LevelUp to Users.
11.2. In order to promote the success and accelerated use of LevelUp following integration at your Merchant locations, LevelUp suggests that Merchant engage in all or some of the following marketing initiatives, which LevelUp has found to be particularly effective, specifically including the following:
11.2.1. In-store promotion including stickers on windows and posters in store;
11.2.2. Handing out cards promoting the White Label Applications to customers for four (4) weeks post launch at each Client location;
11.2.3. Staff employees on-site during the week of application launch to promote usage of the White Label Applications;
11.2.4. Email promotion to existing Client's customer base; and
11.2.5. Social media promotion of the White Label Applications on Client's sites.
11.3. LevelUp will assist Merchants to a reasonable degree in planning and coordinating all of the above marketing initiatives. Costs and expenses associated with such marketing initiatives, or other marketing initiatives concerning the use of LevelUp at Merchant locations, are to be paid solely by Merchant.
11.4. In order to facilitate the above-listed marketing initiatives, Merchant is granted a limited, non-exclusive license to use LevelUp promotional materials and LevelUp trademarks and logos for the above-enumerated purposes. Merchant shall not be permitted to alter or modify any LevelUp trademarks or Logos. All other use of LevelUp trademarks and logos shall be subject to the prior approval of LevelUp. Merchant shall not use any LevelUp promotional materials or LevelUp trademarks or logos in any way that suggests or implies that LevelUp endorses Merchant's products or services.
11.5. LevelUp will list and/or promote Merchant's location(s) to Users within the LevelUp platform in a manner as determined by LevelUp. In connection with such efforts, you grant us, our affiliates and our advertising partners, a limited, non-exclusive license to use, copy, reproduce, modify, license, distribute and publish any of your trademarks, service marks, logos, photographs, text, images or other content ("Merchant Content") for publication as part of marketing or promotion of your use of LevelUp to LevelUp Users and new users, including in applications, on the LevelUp website, through the online services of our affiliates and advertising partners. You represent and warrant to us that you have the right to provide the Merchant Content to us, and that the use, copying, modification and publication of the Merchant Content by us and by our affiliates and advertising partners: (a) will not infringe, violate or misappropriate any third party copyright, patent, trade secret or other proprietary rights, (b) will not infringe any rights of publicity or privacy, and (c) will not be defamatory or obscene or otherwise violate any law.
11.5. Referrals. Spread the word about LevelUp. If you refer a new merchant to LevelUp, pursuant to LevelUp's standard Reseller Terms (https://www.thelevelup.com/reseller-terms), you will receive $50 in campaign credit for each standard location that launches and $2,500 in campaign credit for any referred merchant that launches a White-Label App built by LevelUp.
12. LevelUp Fees
In addition to the hardware fees identified above LevelUp charges only the following fees:
12.1. LevelUp charges a standard payment processing fee of 1.95% on the total value of a transaction made by a User with the LevelUp platform ("Transaction Fee"). LevelUp does not charge any fixed "swipe" or per transaction fee for LevelUp payments.
12.2. In addition to the standard payment processing fee, LevelUp charges a fee of twenty-five cents ($0.25) for every dollar of Campaign Credit redeemed through your Campaigns ("Campaign Fee"). The Campaign Fee is calculated as 25% of the total amount of Campaign Credit redeemed.
13. Intellectual Property
13.1. You agree and acknowledge that LevelUp owns and retains all ownership of all right, title and interest (including without limitation all copyright, trademark, patent, and/or trade secret rights) in and to the inventions, software, hardware, technology, tools, content, Campaigns, User Data, confidential information, websites, guides, online services, trademarks, logos, data, and other materials related to the LevelUp platform and LevelUp Apps, other than the Merchant Content, defined above, or otherwise used by us to promote, sell, generate, or distribute the use of the LevelUp platform (collectively, the "LevelUp Content"). You may use the LevelUp Content solely for the purposes of and as specified by these Merchant Terms. Otherwise, LevelUp reserves all rights in the LevelUp Content, and no licenses or other rights to the LevelUp Content are granted to you by your use of the LevelUp Platform, or by these Merchant Terms. Certain of the LevelUp Content may be licenses to you as provided in the LevelUp Developer Terms at https://www.thelevelup.com/developer-terms. Except as expressly provided herein or in the Developer Terms, you shall not rent, lease, publish, license, distribute, transfer, copy, reproduce, display, or modify the LevelUp Content or any portion thereof, or use such LevelUp Content as a component of or a base for products or services prepared for commercial sale, sublicense, lease, access or distribution. You shall not prepare any derivative work based on the LevelUp Content, nor shall you translate, reverse engineer, decompile or disassemble the LevelUp Content.
13.2. The LevelUp Content shall include any custom campaigns created by you using the LevelUp Merchant Dashboard tools provided by LevelUp. To the extent that you have or at any time acquire any ownership of or rights in any custom campaigns, any related materials or any copyright, trademark, patent or trade secret rights therein ("Custom Campaign Materials"), you hereby assign to LevelUp all of your right, title and interest, including all copyright, trademark, patent or trade secret rights, in and to such Custom Campaign Materials, whether now existing or created in the future.
14. Bundling and Debit Card Preference
14.1. LevelUp employs a number of business strategies to continue to lower our costs associated with enabling the LevelUp platform to be used by Users as a payment method. In order to be eligible for the low LevelUp Transaction Fee set forth above (currently 1.95%), you agree to support such strategies. One such strategy is the practice of "bundling" (grouping User transactions together to avoid incurring multiple swipe fees). Bundling is a common business practice utilized by many businesses. LevelUp currently bundles Users' transactions according to User- granted permissions and the applicable User Terms, based on proprietary algorithms used to predict risk and frequency of use. LevelUp reserves the right to group Users' transactions into payment bundles at any time, and to change our bundling algorithms at any time, without notice to Merchant or User.
14.2. As a Merchant, you will always be paid for transactions using LevelUp as a payment method on the next business day after the transaction, regardless of LevelUp's bundling strategy. LevelUp holds all risk associated with LevelUp's inability to collect User funds at a later time. All Users are required to accept LevelUp's User Terms of Service, which also describes LevelUp's bundling practices in a similar level of detail (User Terms, Section 4).
15. User Complaints; Fraud
15.1. If LevelUp receives any User complaints related to your use of LevelUp as a payment method, or your Campaigns, 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, and so we reserve the right to refund payments to Users, and adjust the Net Sales Proceeds owed to you correspondingly, as determined to be necessary in our sole discretion.
15.2. LevelUp employs a number of strategies to prevent fraudulent use of the LevelUp platform and fraudulent transactions by LevelUp Users, including for example immediate email receipts to Users to confirm transactions made using their LevelUp account. In the event a User suffers a loss associated with fraudulent use of their LevelUp account, LevelUp will fully reimburse you, or the User, for any confirmed loss resulting from the fraudulent use.
16. Representations and Warranties
You represent and warrant to LevelUp that:
16.1. You have the right, power and authority to enter into this agreement to be bound by these Merchant Terms, including the right to bind your employer if your access to the LevelUp platform is undertaken or requested on behalf of your employer, and your execution and performance of these Merchant 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;
16.2. You 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 LevelUp platform and presentation and redemption of associated Campaigns;
16.3. You shall not prevent an authorized Campaign being immediately available for redemption by a User;
16.4. The use of your LevelUp platform, 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; and
16.5. Any advertising or promotion of your products or services relating to the LevelUp platform will not constitute, and you will not engage in any, false, deceptive or unfair trade practices.
17. Disclaimer of Warranties
We will make reasonable efforts to provide the LevelUp platform and other services described in these Merchant 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 Merchant Terms; and (b) if LevelUp fails to or is unable to remedy the error, LevelUp will refund to you the Transaction Fee(s) applicable to the transaction related to the error. OTHER THAN AS EXPLICITLY SET FORTH IN THIS SECTION 17, WE MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THIS AGREEMENT OR THE LEVELUP PLATFORM 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 MERCHANT RELATIONSHIP WILL BE CORRECTED. No statement, either orally or in writing, made by any of our officers, employees or agents will vary this paragraph.
18. Limitation of Liability.
18.1. IN NO EVENT WILL WE 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 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.
18.2 IN NO EVENT WILL OUR LIABILITY FOR ANY DAMAGES ARISING IN CONNECTION WITH THIS AGREEMENT OR THE LEVELUP PLATFORM EXCEED: (A) IF THE DAMAGES RELATE TO A PARTICULAR TRANSACTION OR TRANSACTIONS, THE AMOUNT OF TRANSACTION FEE(S) PAID TO AND RETAINED BY LEVELUP IN CONNECTION WITH SUCH TRANSACTION(S); AND (B) IF THE DAMAGES DO NOT RELATE TO PARTICULAR TRANSACTIONS, THE TOTAL AMOUNT OF TRANSACTION FEE(S) PAID TO AND RETAINED BY US 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.
19.1. 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, fines, penalties, 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:
19.1.1. Your breach or alleged breach of these Merchant Terms, or of your representations, warranties or covenants set forth herein;
19.1.2. Your failure, or alleged failure, to grant, redeem, or honor a Campaign incentive or reward, or Campaign Credit;
19.1.3. The products or services provided or required to be provided by you, including but not limited to any claims for false advertising, product defects, personal injury, death, or property damages related to your products or services;
19.1.4. Your failure to maintain your POS integration to the LevelUp platform; and
19.1.5. 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 such data, and/or the revocation of any applicable permissions.
19.2 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.
In connection with these Merchant Terms, and the actions contemplated hereunder, LevelUp and Merchant 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 Merchant 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.
21.1. These Merchant Terms, as amended from time to time, shall apply until terminated pursuant to this section.
21.2. 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 Merchant, without recourse, in the event that: (i) you are in material breach of these Merchant 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.
21.3. Upon the termination of this Agreement for any reason, you agree to immediately cease all use of the LevelUp platform, and to erase and destroy all copies, full or partial, 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.
21.4. You may cancel your use of LevelUp with 30 days' prior written notice to LevelUp. If you choose to cancel your use of LevelUp, or any individual Campaign, within one calendar week following the termination of your use of LevelUp, you will pay to LevelUp a brand protection fee equal to 17% of the outstanding Campaign Credit that has been unlocked (earned) but not yet redeemed by Users. Additionally, if you cancel your use of LevelUp and were not charged the full Hardware Fee (hereinafter defined) you will be responsible for returning the LevelUp Hardware to LevelUp within thirty days immediately following the cancellation. We will provide a pre-paid mailing label. Please see Section 5 ("Hardware") for additional information.
23.1. 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 any rule of construction to the contrary. LevelUp shall not be liable for any breach of these Merchant Terms to the extent such breach arises from factors outside LevelUp's reasonable control.
23.2. All disputes arising out of or relating to this Agreement or the LevelUp platform, including without limitation the validity, applicability, and/or enforceability of 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 http://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, 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 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.
23.3. The parties are independent contractors. Except for our right to advertise on your behalf in accordance with these Merchant Terms, this Agreement does not create any joint venture or agency. Neither party has the power or right to bind the other.
23.4. All communications between Merchant and LevelUp, and any notices due hereunder, may use electronic means. Merchant: (a) consents to receive communications from LevelUp in an electronic form; (b) agrees that all Merchant Terms, agreements, notices, disclosures, and other communications that LevelUp provides to you 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 your Merchant account will constitute formal written notice under these Merchant Terms.
23.5. 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 23.2 shall also be invalid.
23.6. 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 23.2 shall be governed by the Federal Arbitration Act.
23.7. These Merchant Terms are void where prohibited by law.
Effective Date of these Terms of Service: April 16, 2014