LevelUp Standard Professional Services Agreement (PSA)

These terms and conditions, as incorporated into any agreement between you (“you” or “Client”) and SCVNGR, Inc. d/b/a LevelUp, a Delaware corporation located at One Center Plaza, Sixth Floor, Boston, MA 02108-1887 (“LevelUp”) (collectively, the “Parties”), constitute LevelUp’s Professional Services Agreement (“PSA,” “PSA Terms,” or the “Agreement”).

1. Scope and Definitions

1.1. This PSA shall govern the provision by LevelUp of all professional services to Client, including the design, development, support, and hosting of custom-branded mobile applications (“Brand Application(s)”) as described herein and as further described in any separately negotiated Statements of Work (“SOWs”), to be hosted on and integrated to the LevelUp mobile payment and customer engagement platform (“LevelUp platform”). LevelUp authorizes Client’s use of the LevelUp platform pursuant to and during the term of this PSA for the purpose of enabling consumers to use LevelUp as a means to initiate orders and/or payment for goods and services at Client’s points of sale (“POS”), and for the development, implementation, execution, and/or management of promotional and marketing Campaigns.

1.2. The Parties may negotiate and enter into one or more SOWs identifying specific services requested by Client. Each SOW shall set forth, to the extent applicable, project scope, schedule, costs, or estimated costs, and various project activities and tasks to be performed by the Parties. Any agreement incorporating these PSA Terms may be referred to and treated as a first SOW. Each SOW shall incorporate and be subject to this PSA. To the extent there are any conflicts between this PSA and any SOW, the provisions of the PSA shall govern, unless expressly provided otherwise in an SOW. Except as expressly restricted herein, LevelUp reserves the right to update and modify these PSA Terms by publishing updated terms to its website.

1.3. Definitions In addition to the terms defined in parentheses throughout this PSA, the following terms shall mean:

• 1.3.1. " Brand Locations " shall refer to the Client locations specified in any SOW or in any agreement incorporating these terms as participating or authorized to participate in the consumer use of the Brand Applications. As new Client locations begin utilizing the Brand Applications, in excess of the number of specified Brand Locations, such locations shall become Brand Locations subject to all terms of these Terms, including without limitation provisions concerning fees, term, and termination. Upon termination for any reason, the term "Brand Locations" shall refer to the greater of: (a) the number of specified Brand Locations; or (b) the number of Brand Locations utilizing the Brand Applications at termination.
• 1.3.2. " Campaigns " shall refer to marketing initiatives, programs, or strategies to attract new or existing Users to your locations, which may include Users earning and/or redeeming Campaign Credit in various ways and/or achieving status levels.
• 1.3.3. " Campaign Credit " shall refer to incentives, rewards, giveaways, discounts, and/or credits offered to Users by LevelUp, Client, 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 Client’s POS via the LevelUp platform.
• 1.3.4. " Merchant Dashboard " means your portal provided at the LevelUp website to enable Client to view and manage its Account and User Data, and to view, manage, and create Campaigns.
• 1.3.5. " Net Sales Proceeds " means the total amount of a transaction initiated by a consumer via LevelUp at any Brand Location POS, after subtracting applicable fees and applied Campaign Credit offered by Client and Merchant Gift Card credit as applicable.
• 1.3.6. " User " means individuals having an established LevelUp user account in good standing, who have accepted the LevelUp User Terms of Service (https://www.levelup.com/user-terms). Users may complete purchase transactions at Brand Locations, and earn and redeem Campaign Credit, via the LevelUp platform using a Brand Application or LevelUp App.
• 1.3.7. " User Data " means all data concerning a LevelUp user collected by the LevelUp platform concerning the use of the Brand Application, including user identifying information and transaction information (such as the date, time, location, and amount of individual purchases). User Data shall not include user payment source information, debit or credit card information, or bank account information, which shall be acquired and retained exclusively and securely by LevelUp in connection with its financial services partners.

2. LevelUp Fees & Payments

2.1. Development Fees. Client shall pay to LevelUp the Development Fee specified in the first SOW or in any agreement incorporating these terms for the design, development, and launch of the initial Brand Application, and any such additional Development Fees specified in each subsequent SOW for modifications to the Brand Application (“Development Fee”). All Development Fees shall be paid within thirty (30) days after the execution of the SOW specifying the Development Fee unless otherwise provided in the SOW

2.2. Monthly and One-Time Fees

• 2.2.1. Monthly Platform Fee. In exchange for access to the LevelUp platform as identified in any SOW or in any agreement incorporating these terms, and related Hosting Services described herein, for the Brand Application(s), Client shall pay to LevelUp a monthly fee as specified in the first SOW for each Brand Location (“Platform Fee”). LevelUp collects Platform Fees once monthly, on the first of each month. The Platform Fee shall apply to each Brand Location upon the execution of a first SOW or agreement incorporating these PSA Terms (“Effective Date”). The Platform Fee starts on the Start Date, as defined in any applicable SOW.
• 2.2.2. Gift Card Fees. If applicable at Client’s election, in exchange for the integration of Client-branded digital and/or physical gift cards to the LevelUp platform and the Brand Applications, Client shall pay to LevelUp a monthly fee as specified in any SOW or in any agreement incorporating these terms for each Brand Location (“Gift Card Fee”). Additional fees may apply for the printing of plastic cards as specified in an appropriate SOW between LevelUp and Client. LevelUp collects Gift Card Fees once monthly, on the first of each month.
• 2.2.3. Hardware Fees. Client shall pay to LevelUp a fee as specified in any applicable SOW or in any agreement incorporating these terms for each LevelUp scanner and other LevelUp hardware delivered to any Brand Location pursuant to Section 7, below (“Hardware Fee”). LevelUp collects Hardware Fees on the first of each month following delivery of Hardware, unless specified otherwise in an SOW. If more than fifty (50) devices are ordered for delivery in any month, LevelUp may collect the Hardware Fee on the first of the month in which the Hardware is to be delivered.
• 2.2.4. Store Set-Up Fee. In exchange for LevelUp’s support for the installation and launch of the LevelUp hardware and service at all Brand Locations, Client shall pay a one-time store set up fee as specified in any SOW or in any agreement incorporating these terms for each Brand Location. The Set-Up fee will be collected by LevelUp on the first of each month following such set up.
• 2.2.5. Payment Terms. LevelUp shall collect Platform Fees, Gift Card Fees, Hardware Fees, Store-Setup Fees, and other monthly and one-time Fees as specified in any SOW or in any agreement incorporating these terms, as applicable, when due to LevelUp via direct ACH debit to a United States bank account designated by Client for the payment of such fees. Client hereby authorizes these ACH transfers.

2.3. Custom Advertising Fees. In exchange for custom marketing services and certain Campaigns targeting non-Brand Application Users, and/or Campaigns outside of a package of included Campaigns specified in any SOW or in any agreement incorporating these terms, enabled at the election of Client, Client shall pay to LevelUp a fee as specified in any effective SOW in connection with any LevelUp transaction (“Advertising Fee”). Advertising Fees are deducted from Net Sales Proceeds pursuant to Section 14.2.

2.4. Transaction Fees. For each transaction on the LevelUp platform at any Brand Location, Client shall pay to LevelUp a Transaction Fee on the total transaction amount as specified in an SOW or in any agreement incorporating these terms (“Transaction Fee”). Transaction Fees are deducted from Net Sales Proceeds pursuant to Section 14.2. Transaction Fees quoted based on LevelUp’s experienced processing costs include the average cost to LevelUp of transactions on the LevelUp platform, an average experienced fraud cost of ten basis points, and transfer costs of ten basis points, and are adjusted regularly as volume increases. LevelUp reserves the right to modify the average fraud cost to the extent that your experienced fraudulent activity deviates materially from LevelUp’s average experienced rate.

2.5. Other Fees. Payment for any additional applicable fee not specified herein or in a subsequent SOW, and for any hourly fees, as invoiced by LevelUp, is due to LevelUp within thirty (30) days of Client’s receipt of an undisputed invoice.

2.6. Past-Due Fees. In the event of non-payment by Client of any specified Fee, or other fees appropriately invoiced to Client, lasting for more than thirty (30) days after the date such fees are due and payable to LevelUp, such fees shall accrue interest on such amounts at a rate of one (1%) percent per month of the then outstanding amount due. In addition to the authorizations above, Client authorizes LevelUp to collect any undisputed fees due to LevelUp from Client that become more than sixty (60) days past due by offsetting such amounts against payments of Net Sales Proceeds by LevelUp to Client and/or via direct ACH debit to an account designated by the Client for the payment of LevelUp fees or payment of Net Sales Proceeds.

3. LevelUp Account Manager and Client Project Sponsor

Upon execution of this Agreement: (i) LevelUp shall identify to Client an assigned Account Manager; and (ii) Client shall identify to LevelUp an assigned Project Sponsor, who will serve as the primary point of contact for Client, including for all notices required under this PSA, and who shall be responsible for providing written approval of all proposed screen designs, user interface flows, and specifications, which approval shall constitute Client’s acceptance. The rate for time for the LevelUp Account Manager shall be set forth in an applicable SOW.

4. Design Phase

Subject to the specifications contained in an applicable SOW, LevelUp will perform necessary design and development work to produce Brand Application(s) for Client for the current versions of iPhone iOS and Android operating systems. The Brand Application shall be similar or identical in design and functionality within the limits imposed by the respective operating systems.

4.1. Initial Design. Given initial guidelines communicated by Client pursuant to an applicable SOW, LevelUp’s designers will produce and provide to Client a mock-up of two sets of four design screens, including Splash, Registration, Navigation, and Pay pages, one set each for the two selected operating systems (a “design iteration”). Client agrees to provide written feedback or approval within five (5) business days of the presentation of any design iteration, including the first design iteration. LevelUp will then implement changes requested by Client and present a revised design iteration for Client approval. In order to complete the design phase in a timely and efficient manner, the limit for design iterations will include three (3) revised design iterations following the first design iteration.

4.2. iOS and Android UI Flow Design. Following approval of initial designs, LevelUp will provide to Client a mock-up of full screen flows for the proposed iOS and Android Brand Applications for approval (a “flow iteration”). LevelUp may elect to complete iOS flows prior to beginning design of Android flows, or vice versa. Client agrees to provide written feedback or approval within five (5) business days of the presentation of any flow iteration, including the first flow iteration. LevelUp will then implement, to the best of its ability, any changes requested by Client to the design of the flow iteration and present a revised flow iteration for Client approval. In order to complete the design phase in a timely and efficient manner, the limit for design iterations will include three (3) revised flow iterations for each operating system following the first iteration.

4.3. Additional Iterations. Requests by Client for any additional iteration versions (either of design screens or full screen flow for iOS or Android) shall be completed by LevelUp at LevelUp’s standard designer hourly rates (see below in Section 6), to be invoiced in addition to any Development Fee for the project.

4.4. Design Limitations. Within the selected operating systems, certain user interface conventions, requirements, and recommendations exist. Moreover, each operating system presents a set of standard free fonts. Client is responsible for all costs and agreements associated with obtaining any necessary licenses to selected fonts. LevelUp's design team shall customize all in-app views for the Brand Application(s) to Client specifications to the greatest extent possible while maintaining compliance with these conventions, requirements, and recommendations. Client acknowledges that adherence to such conventions, requirements, and recommendations are important for enabling a clear and consistent user experience within the Brand Applications on each operating system and for ensuring long-term maintainability of the Brand Application. To the extent Client requests deviations from these conventions, requirements, and recommendations against LevelUp’s recommendations, LevelUp shall not be responsible for, and Client shall indemnify and hold harmless LevelUp against, all losses, claims, costs, and/or damages related to the design of the Brand Application, including without limitation rejection of the Brand Application from the applicable app store. Client also agrees that certain textual, graphical, and/or design elements incorporated into the Brand Application concerning consumer disclosures (such as in connection with screen flows for linking and authorizing a payment source) may not be subject to change by Client. Client agrees to use LevelUp's standard design for adding cards within the Brand Application, which may explain a preference for linking a particular payment source.

4.5. LevelUp User Terms of Service. So long as the Brand Application is used in connection with the LevelUp platform, Users will be required to acknowledge and accept LevelUp’s User Terms of Service in connection with establishing an account or linking a payment account in or to the Brand Application. The current LevelUp User Terms of Service is available at the following link: https://www.levelup.com/user-terms ("User Terms").

5. Development Phase

Following Client approval of all Design Phase deliverables, LevelUp will develop, build, and test (QA) a test build of the Brand Applications (“Test Build applications”) in accordance with the approved designs and flows. Upon approval by LevelUp of the Test Build applications to LevelUp’s QA standards, LevelUp will release the applications to the iTunes and Google Play stores, respectively. Unless specified otherwise in an SOW, the Brand Applications will be released to the Apple iTunes and Google Play stores for distribution using developer accounts of LevelUp Consulting, LLC, a wholly owned subsidiary of LevelUp. LevelUp will bear the costs of maintaining the developer account for distribution of the client apps.

6. Additional Marketing, Design & Development Work

Any marketing, design or development work or services not specified herein or in a separate SOW will be considered out of scope. For any out of scope work, Client may contract with a third party developer, negotiate a separate SOW with LevelUp, or have LevelUp perform work at standard rates as specified in any applicable SOW. LevelUp will invoice Client monthly for time and materials work at specified rates. Invoices are payable pursuant to Section 2.5 of these PSA Terms.

7. LevelUp Hardware; POS Integrations & Installation

7.1. Hardware. Upon delivery of the Brand Application, LevelUp agrees to provide to Client hardware (including LevelUp Scanner Hardware, Beacons, and related hardware) necessary to support customer LevelUp platform transactions at all Brand Locations, subject to specified Hardware Fees. Except as authorized expressly by LevelUp, LevelUp scanner hardware may not be modified, obscured, branded, decorated, or altered in any way without the express written approval of LevelUp, and must be placed in an appropriate location to facilitate ease of consumer use.

7.2. Hardware Limited Warranty. LevelUp warrants that each LevelUp Scanner will perform according to written specifications for a period of two (2) years from the date of delivery to a Brand location (“Warranty Period”). LevelUp will promptly (and in no event later than 5 business days) replace, at no cost to Client, any LevelUp Scanner that fails to operate in accordance with written specifications within the Warranty Period. After the Warranty Period, LevelUp will provide replacement hardware to Client at standard rates. Damaged hardware must be returned to LevelUp, in return-shipping packaging to be provided by LevelUp upon request, within ten (10) days of replacement.

7.3. POS Integration Software. LevelUp will provide to Client the latest software necessary to power a point of sale integration to Client’s current point-of-sale hardware and software (“Client POS System”), as specified in any Agreement incorporating these PSA Terms, with LevelUp Scanners at no charge to Client, subject to the license terms contained herein. LevelUp will support, but is not responsible for, the physical installation or setup of any POS integration with LevelUp Scanners at any Brand Location. LevelUp is not responsible for any fees to Client imposed by Client’s POS provider, dealer, or other third party as a result of such integration, such as license fees, or professional services fees charged by any POS provider, consultant, or IT contractor to facilitate the initial set-up. LevelUp does not warrant compatibility of the LevelUp platform or Brand Application with any POS system other than the presently supported POS systems (a list of currently available POS integrations is available at https://enterprise.grubhub.com/branded-channel).

7.4. POS System Updates. Client is required to properly maintain the LevelUp software supporting its 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 POS system.

8. Brand Application Delivery, Distribution, Ownership

8.1. App Ownership. Upon LevelUp’s receipt of all applicable Development Fees, LevelUp shall deliver control of the Brand Application(s) to Client, including control of all software libraries developed by LevelUp or any 3rd parties, and all open-source libraries necessary to the functionality of the Brand Application. LevelUp shall deliver the source code upon Client’s request to Client or its designated app developer. LevelUp grants Client a fully-paid, perpetual, limited license to use, modify, edit, enhance, make derivative works of, and distribute the Brand Application(s), without notice to LevelUp, subject only to the limitations set forth in these PSA Terms, and to the extent that the source code is used in connection with the LevelUp platform, in LevelUp’s published Developer Terms, available at: https://www.thelevelup.com/developer-terms. In the event of any express conflict between this PSA and the Developer Terms, this PSA shall govern. Client’s use, reproduction and distribution of components of the Brand Application source or object code licensed under a third party and/or an open source software license are governed solely by the terms of such license.

8.2. Limitations on Distribution of Proprietary LevelUp Code. The LevelUp software development kit (“LevelUp SDK”) provided and licensed by LevelUp to Client pursuant to this Agreement includes source and object code components not made available to the public or to third party developers as part of the public LevelUp SDK licensed under the Apache 2.0 license. Other than such source or object code as is designated open source within the Brand Application, Client shall not, without the express written consent of LevelUp: (i) transfer, license, sublicense, distribute, or publish any portion of the source or object code for the Brand Application, including LevelUp software libraries or SDKs, in whole or in part, other than to a successor-in-interest through a sale of Client or substantially all of Client’s assets; or (ii) modify or use the LevelUp SDK or APIs in any manner, including without limitation the development of any software application, 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, publication, or distribution is prohibited and a breach of this PSA.

9. Client Intellectual Property

9.1. Client shall retain and have exclusive ownership of, and all rights to and in, all Client trademarks, service marks, logos, images, and any Client-provided or Client-designed elements protected by or protected as its copyrightable material, as well as any such elements provided or designed by LevelUp at Client’s request, that are incorporated into the Brand Application(s) (“Client Content”). To the extent that LevelUp develops any such Client Content, LevelUp hereby assigns all rights therein to Client.

9.2. Client hereby grants LevelUp, during the Term of this PSA, a limited, non-exclusive license to use, copy, reproduce, distribute, and publish the Client Content in connection with the design, development, hosting, support, and marketing of Brand Application and/or Client’s use of the LevelUp platform for transactions and marketing, and in connection with providing the services specified in this PSA and any SOW (or in any agreement incorporating these terms), including without limitation as necessary to the execution of promotional and marketing initiatives specified by Client. Client represents and warrants to LevelUp that it has the right to license and provide the Client Content to LevelUp, and that the use, copying, modification and publication of the Client Content by LevelUp and by LevelUp’s affiliates and advertising partners: (i) will not infringe, violate or misappropriate any third party copyright, trademark, 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. All use of Client trademarks and logos, and all goodwill derived from such use, shall inure to Client.

10. LevelUp Intellectual Property

10.1. All content other than Client Content created by LevelUp at any time in connection with and/or used with the Brand Application(s) shall be the property of LevelUp (“LevelUp Content”). LevelUp Content includes without limitation all intellectual property rights (including without limitation all copyright, patent, trademark, and trade secret rights), title, and interest to and in the LevelUp SDKs, APIs, including all source and object code and software libraries created by LevelUp, incorporated into the Brand Applications, the LevelUp platform and LevelUp point-of-sale integration software; any inventions, technology, tools, design, ideas, layouts, interfaces, campaigns, and schemes created in connection with the Brand Application(s); and any LevelUp trademarks and logos used in Brand Application(s); and all tangible representations of the foregoing.

10.2. In addition to the license granted above to the Brand Applications, LevelUp hereby grants Client during the Term of this PSA, a limited, revocable, non-exclusive license to use the LevelUp Content in connection with Client’s use and promotion of the Brand Application as permitted by this PSA and all terms and conditions incorporated herein. All other uses of LevelUp Content are prohibited. LevelUp further grants to Client a limited, non-exclusive license to use LevelUp promotional materials for the marketing and promotional purposes specified herein and/or in any SOW (or in any agreement incorporating these terms). Client shall not be permitted to alter or modify any LevelUp trademarks or logos. Client shall not use any LevelUp promotional materials or LevelUp trademarks or logos in any way that suggests or implies that LevelUp endorses Client’s products or services. All use of LevelUp trademarks and logos, and all goodwill derived from such use, shall inure to LevelUp.

11. Data Reporting and Analytics

11.1. Upon launch of the Brand Application, Client shall have access via the LevelUp platform to collect and transfer all User Data, and access via the LevelUp Merchant Dashboard to related reporting and analytics features provided by LevelUp, concerning users of the Brand Application and transactions at Brand Locations, according to the permissions granted by the transacting Users. User Data as collected by Client via the LevelUp platform shall be the property of Client, and Client’s rights in such User Data shall be unlimited. Client shall have all rights to capture, store, copy, use, reproduce, and transfer any and all User Data Client in any way that Client sees fit now and in the future. At Client’s request, LevelUp will provide transaction reports during the term of this Agreement at a frequency and in a form acceptable to Client’s accounting department, to the best of LevelUp’s reasonable abilities, to be agreed upon by the Parties’ representatives.

11.2. Client may request additional or different permissions from Brand Application Users, including without limitation permissions to access, read, create, share, and use LevelUp platform User Data. Client shall not request permissions other than permissions reasonably necessary to the operation of Client’s business. LevelUp reserves the right to restrict Client’s requests for additional permissions. Users of the LevelUp platform shall have the right to control, grant, and/or revoke individual permissions to User Data granted to Client or other parties at any time.

11.3. Consequent to LevelUp’s operation of a mobile payments platform, LevelUp collects, manages, and retains all User Data securely, and in accordance with its Privacy Policy and all applicable permissions granted by individual Users. LevelUp retains rights in User Data acquired by the LevelUp platform as necessary to comply with federal, state and local laws. LevelUp’s use of any retained User Data shall be restricted as set forth in this Agreement and in its Privacy Policy.

11.4. LevelUp shall be prohibited from using User Data obtained via the Brand Application(s) in non-aggregated form for any purpose and from sharing User Data with any third-party other than the User, any agent of LevelUp (having confidentiality obligations to Client identical to those of LevelUp) necessary to support the Brand Application, and any governmental or regulatory entity pursuant to a lawful request. LevelUp will be prohibited from using User Data acquired via the Brand Application(s) to contact users of the Brand Application except as provided in Section 12, below. Other than as set forth in Section 12, LevelUp will not contact for any purpose Users of the Client Brand Application(s) that have not separately granted permissions to LevelUp. LevelUp reserves the right to contact Users of the LevelUp App that have separately granted appropriate permissions to LevelUp for any purpose, including for promotional purposes on behalf of LevelUp or third-parties, regardless of any permissions separately granted by such users to Client.

12. System Notifications and LevelUp Emails

12.1. LevelUp may deliver certain email or other notifications designed by LevelUp to Users of the Brand Application, such as receipts, billing information, card expiry notices, reminders about campaigns and other important messages. Certain parts of these messages may be themed (designed in Client’s brand) when delivered to users of the Brand Application, except that certain fundamental elements, which may be designated at the discretion of LevelUp, cannot be modified or removed including, for example, the total amount spent in email receipts, along with any savings applied, and the address where the transaction took place. LevelUp’s notifications will adhere to all applicable federal and local digital transaction requirements.

12.2. LevelUp may as needed, for any non-marketing purpose, contact users of the Brand Application using non-Client-branded notifications without the advance consent of Client for the purpose of correcting errors in any transaction, concerning any charged-back transaction, concerning any complaint directed to LevelUp or Client, or as otherwise necessary to support the use of the Brand Application on the LevelUp platform.

13. Hosting of the Brand Application

Following delivery of the Brand Application and upon payment of Monthly Platform Fees due to LevelUp, LevelUp shall provide the following Hosting Services to enable the continued operation of the Brand Application on the LevelUp platform: (i) Backend Hosting and LevelUp Connection: the web hosting services for the Brand Applications on the selected operating systems necessary to enable integration to the LevelUp Platform; (ii) Technical Product Support: answering questions from you concerning issues with the use of the Brand Applications and LevelUp Platform; and (iii) Application Updates: LevelUp will maintain the Brand Applications to ensure that existing functionality continues to function with the latest version of the selected mobile operating systems and the LevelUp Platform. Further development of the Brand Applications necessary to upgrade any features or take advantage of new functionality of an operating system or the LevelUp Platform shall be subject to the execution of an appropriate SOW. Unless provided specifically in an applicable SOW, consumer support for the use of the Brand Applications shall be out of scope. To the extent that LevelUp has transferred source code for the Brand Applications to a third-party at your request, LevelUp shall no longer be responsible for Application Updates.

14. LevelUp Transactions; Payments

14.1. In order for LevelUp to make payments to Client for User transactions conducted via the LevelUp platform, and for Client to create and execute LevelUp Campaigns, LevelUp requires that you provide complete identifying information, including without limitation a Federal Employer or Tax ID Number of your business, as well as account information for a valid financial account connected to the ACH network. LevelUp will maintain the security of your account information using a third-party provider. LevelUp does not share your personal, business, or bank account information. You represent and warrant that all information provided by you to LevelUp in connection with the application for a LevelUp 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 this PSA, without limitation to other available remedies.

14.2. Payments. For transactions conducted at your point-of-sale at Brand Locations and any online POS using the LevelUp platform, LevelUp pays Client the Net Sales Proceeds as follows:

• 14.2.1. LevelUp pays Client all Net Sales Proceeds on the next business day following the transaction via direct deposit to your specified bank account via the ACH network. Payment cycles begin and end at 5:00 a.m. Eastern Time. LevelUp submits payments shortly after the payment cycle has ended. Transfers typically take 24 hours to arrive in your associated bank account. Some banks may take longer than 24 hours to process payments, particularly on weekends and holidays.
• 14.2.2. If, in our determination, you have not provided the goods or services in exchange for the Net Sales Proceeds, or otherwise violated this PSA in connection with a submitted transaction, including without limitation by committing, or aiding or colluding to commit, fraud against LevelUp, or any credit card holder or issuer, or to the extent you issue a plastic gift card in any LevelUp platform transaction for which LevelUp is unable to charge the User, you agree that LevelUp shall have the right to withhold and not to pay you such Net Sales Proceeds in connection with said transaction, to deduct such amount from future deposits of Net Sales Proceeds, or to debit your associated financial account for the amount of the Net Sales Proceeds associated with the good/or services not delivered. You hereby authorize such transfers. To the extent that LevelUp pays Net Sales Proceeds to Client in connection with the fraudulent purchase by a User of a Client Gift Card administered by LevelUp, for which LevelUp does not receive payment from User, Client shall refund such Net Sales Proceeds to LevelUp.

14.3. No Charge-Backs. LevelUp’s payments of Net Sales Proceeds to Client are independent of LevelUp’s charges to the LevelUp platform User. To the extent that LevelUp receives a chargeback for any transaction approved by LevelUp at your POS, LevelUp will not seek reimbursement from you other than as provided above in Section 14.2.2 and/or Section 2.4 as set forth in any statement of work. To the extent that the Parties have agreed to permit transactions above the individual transaction limit of the LevelUp platform as specified herein ($100.00), LevelUp may charge Client a fee equal to the amount of any chargeback received by LevelUp in connection with transactions at Brand Locations in excess of said limit.

14.4. Restriction on Use of the LevelUp Platform. Client’s use of the LevelUp platform shall be subject to the following transaction limitations:

• 14.4.1. To the extent you use the LevelUp platform in lieu of payments by Users at the POS, Client shall only engage in transactions 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, at United States locations only. 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.
• 14.4.2. Client shall not utilize the LevelUp platform to accept payments from LevelUp on behalf of an unidentified third-party using the LevelUp platform. Client shall not use the LevelUp platform for the purpose of accepting security or payment for loans, providing cash advances, cash refunds, 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.
• 14.4.3. 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.
• 14.4.4. You shall not use the LevelUp platform for transactions in connection with any illegal activity, in violation of any federal, state, or local law, or in connection with any lottery or gambling activity.
• 14.4.5. You agree to comply with any individual transaction amount limits imposed by LevelUp of $100.00 per transaction (or per any series of transactions by an individual User within 24 hours), and not to attempt to circumvent such individual transaction limits by “structuring” transactions, or breaking a large transaction amount into multiple smaller transaction amounts.
• 14.4.6. 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, unless specifically instructed by LevelUp Support.

15. Campaigns

15.1. LevelUp provides a flexible Campaigning framework capable of delivering, redeeming and tracking customer rewards in many different ways, including a series of highly customizable, pre-built Campaign structures that Client can modify and utilize in connection with the Brand Application or for online or in-app purchases and orders as applicable.

15.2. Client may build custom Campaign constructs through LevelUp’s APIs, subject to the LevelUp Developer Terms, or contract through SOW for LevelUp's engineers to build Campaigns for Client. Costs for developing, deploying and testing custom campaign constructs will vary based on complexity.

15.3. Client shall have the ability to create and initiate Campaigns offering Campaign Credit redeemable at any United States-based Brand Locations. For any such Campaign Credit redeemed by a User, Client shall be responsible for Credit amount, which Credit amount (if in dollars, or if in items, the equivalent dollar amount) will be deducted from Net Sales Proceeds paid to Client on the next business day. Client acknowledges that, to the extent Client permits online orders via the brand website and/or in-app orders using the Brand Application to be made using a payment method other than via the LevelUp platform, such orders will not qualify to participate in any Campaigns or to earn or redeem any Campaign credit offered by Client.

15.4. Client is responsible for ensuring that all Campaigns are run and redeemed in accordance with all applicable laws. LevelUp and/or Client shall have the right to reject or terminate or modify any Campaign at anytime if it is determined, in LevelUp’s or Client’s discretion, that the Campaign violates any law or regulation.

15.5 Groupon Campaigns. LevelUp enables Client to run LevelUp Campaigns integrated to Groupon's voucher marketing service, whereby new customers may purchase Groupon vouchers, redeem Groupon vouchers to their LevelUp accounts within a LevelUp App, and spend the Paid-in Value and Promotional Value redeemed from a Groupon voucher simply by scanning their LevelUp QR code at your POS ("Groupon Campaigns"). Groupon Campaigns via LevelUp must be contracted for directly with Groupon, and may be initiated through the LevelUp Merchant Dashboard. Once a Groupon voucher is redeemed by a LevelUp User via a LevelUp App, the portion of value paid by the User for the Groupon Voucher ("Paid-in Value") shall be converted to Gift Card Credit of the Client within the LevelUp platform, and the Groupon rewards or promotional value over and above the paid-in value offered by the Client ("Promotional Value") shall be converted to Campaign Credit of the Client and may be restricted or expire according to the Client’s terms as disclosed to the User by Client or Groupon. Once redeemed via a LevelUp App, all Paid-in Value and Promotional Value become financial obligations of the Client, and only the Client, to be administered by LevelUp, and cease to be financial obligations of Groupon. LevelUp's standard Campaign Fee does not apply to Groupon Campaigns. Groupon and LevelUp are independent service providers. LevelUp is not responsible for, and makes no representations or warranties concerning, Groupon's performance or accounting for Groupon's voucher marketing service. By enabling a Groupon campaign through LevelUp (in accordance with a separate agreement with Groupon), you authorize LevelUp to provide aggregated User Data to Groupon concerning all Groupon transactions/redemptions at your location(s), including the following: (i) the total number of Users that link a Client Groupon Voucher to a LevelUp User account; (ii) the average number of days between the linking of a Voucher and a User’s first transaction at a Client location; (iii) the average dollar value of a first transaction by a User redeeming a Client Groupon Voucher via LevelUp; and (iv) the total number and dollar value of all follow-on LevelUp transactions by Users redeeming a Client Groupon Voucher for a period of one-hundred and eighty (180) days following a first redemption transaction.

15.6. Client’s Campaigns may additionally be promoted by LevelUp in LevelUp Apps, including by identifying Client as a LevelUp merchant, and its Brand locations shall be identified to users, within the LevelUp Apps.

16. Client Gift Cards

At Client’s election, LevelUp provides the processing and administrative services necessary to issue Client-branded Gift Cards integrated to the LevelUp platform. All Client Gift Cards are issued by Client, and are not financial obligations of LevelUp. Client Gift Cards may only be used as prepayment for the purchase of goods or services by customers at the Client’s Brand Locations and online points of sale. Except where required by law, the balance of a Client Gift Card is nonrefundable and may not be resold or redeemed for cash or other gift cards. Any refund related to a purchase made with the Gift Card must be credited back to the Gift Card used for the initial payment.

16.1. Digital Gift Cards. Client customers may give digital Gift Cards to a designated recipient through the Brand Applications and/or LevelUp Apps, or by electing to pre-load funds for redemption via the Brand Application. Recipients are notified of the gift card by email and or through in-app message. A claimed digital Gift Card may be linked to a User's LevelUp User Account, or printed (from the email containing a gift card QR code) and used as a physical gift card. Digital Gift Cards are not reloadable. Once linked to a recipient's Brand Application User Account, the Gift Card is not transferrable.

16.2. Physical Gift Cards. Customers can be issued physical plastic Gift Cards imprinted with a LevelUp QR code. Plastic Gift Cards may be activated at any LevelUp Scanner. Customers can use a plastic Gift Card simply by scanning the QR code on the physical card at the LevelUp Scanner. Client will be responsible for providing appropriate receipts to customers purchasing plastic Gift Cards through the Client’s point of sale (with means of payment other than LevelUp) or using plastic Gift Cards at the Client for payment. A Brand Application User may, but is not required to, link a plastic Gift Card to their LevelUp User Account by using the existing functionality within the Brand Application to scan the QR code printed on the Gift Card. Once linked to a User's LevelUp User Account, a Gift Card balance will be applied automatically whenever the User scans their Brand Application QR code at a participating checkout locations. Once a plastic Gift Card is linked to a LevelUp User Account, it may no longer be useable as a plastic card, at the user's option.

16.3. No Fees; No Expiration. Client may not charge the customer any fees related to its Gift Card, including for the purchase, issuance, activation or use of the Gift Card. Client Gift Cards do not expire.

16.4. Limits. Client-branded Gift Cards may be purchased in any amount up to $500.00. No more than $1,000.00 of Gift Card value may be associated with a LevelUp User Account at any one time.

16.5. LevelUp Support; Corrections. Recipients of Client-branded Gift Cards will be able to check their remaining balance, report technical issues, and request refunds of balances as required by law, by contacting LevelUp Support at 1-855-538-3542 or by emailing support@thelevelup.com. LevelUp reserves the right to correct the balance of a Gift Card and transaction settlement to Client in the event of a clerical, billing or accounting error. Transactions or corrections may be disputed by a User within 60 days of the disputed transaction or correction.

16.6. Lost Cards. LevelUp will not be responsible for lost, stolen, damaged or destroyed plastic Gift Cards or unauthorized use of a Gift Card. Users can help secure their Gift Cards by linking the card to a Brand Application.

17. Monthly Recurring User Billing

Unless specified otherwise in a SOW or agreement incorporating these terms, in order to reduce “swipe” fees associated with credit card transactions, LevelUp may in its discretion, and as authorized by a Brand Application User, charge the User (i.e., submit charges for approval by a User’s credit card issuing institution) for all LevelUp transactions on a regular recurring monthly basis, as a single monthly charge. A User may request at any time that LevelUp refrain from billing the User monthly pursuant to LevelUp’s User Terms. Client agrees that it will not promote that “opt-out” option to users of the LevelUp or Brand Application.

18. Warranties and Indemnification

18.1. LevelUp hereby represents and warrants that:

• All services pursuant to this PSA and any SOW, or in any agreement incorporating these terms, will be performed diligently and in a good and workmanlike manner and in compliance with all applicable federal, state and local laws, and that the Brand Application will meet the specifications set forth herein and as expressly set forth in any applicable SOW;
• The Brand Application shall be free from “viruses”, unauthorized “time bombs” and “trojan horses” that are known and detectable by industry standard security software and information systems-related security practices at the time of installation and during the course of operation;
• Neither the Brand Application, the LevelUp Platform or Services, the LevelUp Content created by or for LevelUp, nor any of the rights granted by LevelUp to Client hereunder, do or will infringe or violate any patent, copyright, trademark, trade secret, mask work or other proprietary right of any third party; and
• LevelUp shall at all times comply with all applicable privacy laws concerning information that it retains, and if applicable to any information that LevelUp retains, with all standards and rules promulgated by the Payment Card Industry (“PCI”) Security Standards Council (including but not limited to PCI Security Standards Council’s Data Security Standard as modified from time to time), regarding the security and protection of consumer information.

18.2. Client represents and warrant to LevelUp that:

• Client has the right, power and authority to enter into and be bound by these PSA Terms, and that the execution and performance of these PSA 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;
• Client is 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; 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 will be included to the Net Sales Proceeds transferred by LevelUp pursuant to Section 14.2 of these PSA Terms); and
• Client’s use of the 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.

18.3. Subject to LevelUp’s obligations under any SOW and these PSA Terms, LevelUp makes no warranty that the Brand Application will meet Client’s specific objectives or needs or will be free from all errors or bugs, and makes no warranty that there will be uninterrupted operation of the Brand Application. OTHER THAN EXPRESSLY SET FORTH IN THIS SECTION, LEVELUP MAKES NO REPRESENTATIONS OR WARRANTIES UNDER THESE PSA TERMS OR ANY SOW, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTIES ARISING FROM CUSTOM OR USAGE OF TRADE.

18.4. LevelUp shall defend, indemnify and hold harmless Client, or any of its affiliates, employees, officers, agents, directors or representatives (collectively, the “Client Indemnitees”), from all third-party claims, actions, suits, proceedings, investigations, liabilities, losses, damages, penalties, fines, costs and expenses, including without limitation reasonable attorney’s fees and costs, whether direct or indirect, in each case as and when incurred (“Damages”) arising out of (i) any breach by LevelUp of the terms of this PSA, any SOW, or of the representations, warranties, or covenants set forth herein; or (ii) LevelUp’s violations of any federal or state law, rule or regulation in connection with the Brand Application or the performance of the services hereunder.

18.5. Client shall indemnify and hold harmless LevelUp, or any of its affiliates, employees, officers, agents, directors or representatives (collectively, the “LevelUp Indemnitees”), from all Damages arising out of or relating to: (i) any breach by Client of the terms of this PSA, any SOW, or of the representations, warranties, or covenants set forth herein; (ii) Client’s violations of any federal, state, or local law, rule or regulation in connection with its use of the Brand Application; (iii) any misuse by Client of any User Data acquired via the LevelUp platform; (iv) any failure, to grant, redeem, or honor a Campaign incentive or reward, or Campaign Credit; and (v) any physical injury (including death or bodily injury) or loss or damage to tangible property caused by Client or its employees, agents or subcontractors, or the goods or services provided by Client, in connection with any use of the Brand Application at Client locations. To the extent Client makes, or engages any third party to make, alterations to the source code for the Brand Application, Client shall additionally indemnify and hold harmless LevelUp from any and all Damages, whether direct or indirect, arising out of or relating to such modifications to the Brand Application, or the failure of such party to make proper modifications.

18.6. Each Party’s indemnification obligations shall be conditioned upon the indemnified Party notifying the indemnifying Party promptly in writing of such action, the indemnified Party giving the indemnifying Party sole control of the defense thereof and any related settlement negotiations. The indemnified Party, at the indemnified Party’s request and expense, may assist in such a defense. Notwithstanding the foregoing, in no event shall the indemnifying Party settle any Claim in a manner that does not provide for a full release of the indemnified Party.

19. Limitation of Liability

LevelUp’s liability to Client with respect to the design, development, provision, and use of the Brand Application, including without limitation damages incurred by Client for any failure of performance by LevelUp, and/or damage to or loss of business, information or data arising out of Client’s inability to use the Brand Application, shall not exceed the amounts paid by Client to LevelUp pursuant to this Agreement any SOW for the design, development, and delivery of the Application or, if related to a specific transaction, to the fees paid to LevelUp in connection with said transaction. LevelUp shall not be liable for any fees, increased fees, damages, or other charges to Client by any third-party with which Client deals or contracts, including without limitation Client’s POS provider, resulting from Client’s use of the Brand Application or LevelUp hardware, or the use of other software not provided by LevelUp in connection with the Brand Application or LevelUp hardware. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES TO THE OTHER PARTY, INCLUDING DAMAGES ON ACCOUNT OF LOST PROFITS, REVENUES, AND BUSINESS OPPORTUNITIES. The limitations and exclusions of liability in this paragraph shall apply notwithstanding the basis for the liability or damages, whether arising in contract, tort (including negligence), strict liability, under statute, or otherwise, and whether or not a party knew the damages may have been incurred. The provisions of this paragraph shall survive termination of this agreement.

20. Term and Termination; Assignability

20.1. Payments Due Upon Termination. In the event of a termination of any SOW or any agreement incorporating these PSA Terms, by Client for any reason other than a material breach by LevelUp prior to the Start Date (as defined in any applicable SOW) or in the twelve (12) months following the Start Date, Client shall pay to LevelUp immediately: (i) an amount due for all partially and entirely completed design and development work on a time and materials basis at LevelUp’s standard hourly rates, which may exceed the Development Fee specified in any SOW, crediting toward the amount due any Development Fee actually paid to LevelUp; and (ii) all monthly Platform Fee and Gift Card Fee, and Set-Up Fee, amounts that would be paid to LevelUp by Client during remaining Term of the agreement or SOW incorporating these terms absent Client’s breach or termination. LevelUp shall not be obligated to refund to Client any payments made by Client on partially or entirely completed work. Client authorizes LevelUp to collect all termination fees, and any other outstanding fees due at termination, by direct ACH debit to an account specified by Client for the payment of fees and/or the payment of Net Sales Proceeds.

20.2. Survival. The rights and obligations of the parties contained in Sections 8-10 and 18-21 will survive the termination of this PSA.

20.3. Assignability. This PSA, and the parties’ SOW(s), and any agreement incorporating these PSA Terms, may not be assigned by either Party to any person or entity without the express written consent of the other Party, which shall not be unreasonably withheld, except that the Agreement may be assigned to a majority owned subsidiary or affiliate, or to a successor in connection with a change of ownership or sale of substantially all of a Party’s assets. The Agreement shall survive any such change.

21 Miscellaneous.

21.1. This PSA, any agreement incorporating these terms, and the parties’ SOW(s) incorporating this PSA represent the entire agreement of the parties as to its subject matter, and supersedes all prior written and oral representations and discussions between the parties. The Parties’ SOWs may be executed electronically and/or in counterparts. No waiver by any Party of a breach of any provision 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, 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 an SOW to the extent such breach arises solely from factors outside LevelUp’s reasonable control.

21.2. ARBITRATION. All disputes arising out of or relating to this PSA, an SOW incorporating these PSA Terms and Conditions, or the LevelUp platform, including the validity, applicability, or enforceability of this provision or any provision herein shall be resolved exclusively by binding arbitration before a single arbitrator (the “Arbitrator”) in accordance with the Commercial Arbitration Rules of the American Arbitration Association (the “AAA”) then in effect and the further procedures set forth herein. (For information on the AAA and its rules, see https://www.adr.org/. The arbitration shall be conducted in Boston, Massachusetts, unless the Arbitrator shall determine that that venue is not reasonably convenient to all parties, in which case the Arbitrator shall determine another venue that is. In the event that the AAA is unavailable or unwilling to administer the arbitration, and the parties are unable to agree to a substitute, a substitute shall be appointed by the court. The Arbitrator shall have authority to issue any and all remedies authorized by law. Notwithstanding any rules of the AAA to the contrary, any claims shall be adjudicated on an individual basis only, and Client WAIVES ANY RIGHT TO BRING ANY CLAIM AS A REPRESENTATIVE OF A PROPOSED CLASS, ON AN AGGREGATED OR MASS BASIS, OR AS A PRIVATE ATTORNEY GENERAL, OR TO CONSOLIDATE ARBITRATION PROCEEDINGS WITHOUT THE CONSENT OF ALL PARTIES THERETO. Any award rendered by the Arbitrator shall be final, conclusive and binding upon the parties hereto. In connection with any arbitration proceeding pursuant to this PSA or an SOW, unless the Arbitrator shall determine otherwise, each party shall bear its own costs and expenses. Notwithstanding the foregoing, either party may file an individual claim in any small claims court for disputes or claims within the scope of its subject matter jurisdiction if such court has personal jurisdiction. LevelUp does not hereby waive any defense that such jurisdiction may be lacking in Client’s state. Without derogation of the parties’ obligation to arbitrate as set forth herein, for any claims other than those in small claims court, jurisdiction for any court proceedings arising out of or relating to this PSA or SOW or the LevelUp platform shall be vested exclusively in, and venue shall be laid in, the state or federal courts sitting in either or Boston, Massachusetts, except that, following confirmation of an arbitration award in a state or federal court in Boston, Massachusetts, a judgment arising therefrom may be executed in any court of competent jurisdiction.

21.3. This PSA does not create any joint venture or agency. Neither party has the power or right to bind the other.

21.4. All communications between Client and LevelUp, and any notices due hereunder, may use electronic means. Client: (a) consents to receive communications from LevelUp in an electronic form; (b) agrees that all agreements, notices, disclosures, and other communications that LevelUp provides to Client electronically will satisfy any legal requirement that such communications be in writing; and (c) agrees that email sent to the email address on record for Client’s account and or Client’s Project Sponsor, and if to LevelUp to legal@thelevelup.com, will constitute formal written notice under this PSA.

21.5. If any provision of this PSA is found by a court of competent jurisdiction to be invalid or unenforceable, then this PSA 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 21.2 shall also be invalid.

21.6. This PSA 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 21.2 shall be governed by the Federal Arbitration Act.

Effective Date of these Terms of Service: February 22, 2018