STANDARD MERCHANT AGREEMENT

This STANDARD MERCHANT AGREEMENT (this “Merchant Agreement”) is entered into by and between you and Fivestars Loyalty, Inc. (“Fivestars”). Specific business terms associated with Merchant’s subscription to the Platform are set forth in one or more ordering documents executed by the parties that reference this Merchant Agreement (“Order Form”) and are hereby incorporated into this Merchant Agreement by reference (collectively, the Merchant Agreement and the Order Form shall be the “Agreement”). For the purposes of this Merchant Agreement, “you” or “Merchant,” means the party identified as the merchant in the applicable Order Form. By executing an Order Form that references this Merchant Agreement, each party signifies that it has read, understands, and agrees to be bound by this Merchant Agreement. This Agreement shall be effective as of the date the first applicable Order Form is executed. This Merchant Agreement governs all Order Forms and any conflicting or additional terms and conditions are of no force or effect unless agreed to in writing signed by an authorized officer of Fivestars. Subject to the terms of this Agreement, Fivestars will allow Merchant to offer rewards to Merchant’s customers using the customer engagement platform known as “Fivestars Connect,” as may be further described at www.fivestars.com and includes the Dashboard, Equipment and Software (all as defined in Section 1) (collectively, the “Platform”). 

1. FIVESTARS SOFTWARE AND HARDWARE. The Platform consists of three (3) components: (a) an online dashboard hosted by Fivestars that allows Merchants to manage and create rewards programs and track customer data (“Dashboard”), (b) certain equipment, including, without limitation, tablets, scanners, and/or other devices provided by Fivestars to Merchant under an applicable Order Form or as described on Exhibit A (the “Equipment”), and (c) software that is either pre-loaded on the Equipment or downloaded onto the Merchant’s point of sale machine that interacts with the Dashboard (“Software”). Subject to the terms and conditions of this Agreement, Fivestars hereby grants to Merchant (a) a non-exclusive, non-assignable, non-transferable, nonsublicensable, limited right and license to use and display the Software for Merchant’s business purposes, and (b) the right to access and use the Dashboard, in the case of both (a) and (b), solely in accordance with the documentation related to the Software or the Platform generally published by Fivestars. Merchant shall only use the Equipment to the extent necessary for Merchant to use the Platform, as provided in this Agreement. Merchant may not use the Equipment for any other purpose or in any manner not expressly authorized by Fivestars. Any and all use of the Equipment is subject to Merchant’s compliance with the terms and conditions contained in the equipment addendum attached hereto as Exhibit A (the “Equipment Addendum”). 

2. RESTRICTIONS. Merchant agrees that (a) it will not decompile, reverse engineer, or otherwise attempt to obtain the source code or underlying ideas or information of or relating to the Software, (b) it will not sell, lease, license, sublicense, distribute, rent, transfer, assign, time share, or otherwise commercially exploit or provide the Platform to any third party, (c) it will only use the Software and Equipment in order to interface with the Dashboard as contemplated by this Agreement, (iv) create internet “links” to or from the Dashboard, or “frame” or “mirror” the Dashboard, (d) reverse assemble, reverse compile, reverse engineer, decompile or otherwise attempt to discover the object code, source code, SDKs, non-public APIs or underlying ideas or algorithms of the Platform, except as and only to the extent this restriction is prohibited by law, (e) remove or obscure any copyright, trademark or other proprietary notices, legends or Fivestars branding contained in or on the Platform, (f) use the Platform in any way that violates any applicable federal, state, local or international law or regulation, (g) introduce any viruses, Trojan horses, worms, logic bombs or other material which is malicious or technologically harmful, (h) attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Dashboard, the server on which the Dashboard is stored, or any server, computer or database connected to the Platform, and (i) use the Platform to send or store materials that is obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or in violation of third party privacy rights. Fivestars may, in its sole discretion, immediately suspend Merchant’s access to the Platform if Merchant violates the terms of this Section.

3. PROFESSIONAL SERVICES. From time to time, upon the mutual agreement of the parties, Fivestars and Merchant may enter into ordering documents or statements of work (“Statement of Work”) (the first of which is attached hereto as Exhibit B) for the purpose of Fivestars providing certain professional services to Merchant (“Professional Services”). Merchant shall pay Fivestars a fee (if applicable) for any Professional Services provided in accordance with this Agreement and the applicable Statement of Work.

4. REMOTE ACCESS. Merchant understands and agrees that when the Software is installed (either as pre-loaded software on the Equipment or installed by Merchant or Fivestars on Merchant’s point of sale machine), remote access software will also be installed. Remote access software is installed and provided for the sole purpose of Fivestars maintaining and providing remote technical support for such Software. 

5. MERCHANT INFORMATION AND REWARDS PROGRAMS. Merchant grants to Fivestars a non-exclusive, worldwide license and right to display, reproduce and use Merchant’s trademarks and logos (collectively, “Merchant Marks”) and business description solely in connection with the operation of the Platform. As part of the Platform, Merchant will create rewards programs that Merchant will offer to its customers through the Platform (“Merchant Rewards Program”) Merchant represents, warrants and covenants that it will honor any Merchant Rewards Programs it offers, even after any expiration or termination of this Agreement. Merchant further represents, warrants and covenants that the Merchant Rewards Programs will comply with all applicable laws and regulations. If Merchant has purchased AutoPilot Campaigns, Fivestars will activate them within 7 days of the Effective Date (as defined herein below) with the settings specified in the Order Form or using standard settings for the Merchant’s industry. Merchant agrees to honor its Fivestars rewards and AutoPilot promotions and can adjust them by notifying Fivestars in writing at [email protected] or by calling at 860-578-2770. Merchant agrees to receive periodic SMS promotions from Fivestars during use of the service. Merchant can opt out at any time by replying “STOP” to a campaign. Standard data and message rates may apply. Following any expiration or termination of this Agreement and if requested by Merchant within seven (7) days of such expiration or termination, Fivestars will provide Merchant with any relevant information in Fivestars’ possession regarding the then-current status of the Customers in relation to the Merchant Rewards Program.


6. CUSTOMERS. Merchant acknowledges and agrees that when one of its customers signs up to be a user of the Platform (or when Merchant enrolls a customer or enables a customer to enroll as a user of the Fivestars service), whether through the Fivestars’ web site or otherwise, such customer shall be deemed a customer of Fivestars (“Customer”), and Fivestars shall have the perpetual and irrevocable right to use, in connection with its business activities, all information made available to Fivestars here under and will continue to have the right to communicate with Customers and provide the Platform in relation to such Customers, in each case even after the expiration or termination of this Agreement. To the extent Merchant enrolls a Customer as a user of the Fivestars service (or enables a Customer to enroll) or provides Fivestars with data and information (including a cellular or mobile number or other personally identifiable information) of any person who provides such information to Merchant, Merchant represents and warrants that Merchant has (a) informed each such person of the Fivestars Terms of Use and Privacy Policy and that such person may receive text messages or other communications from Fivestars, and (b) obtained all necessary consents and rights required (i) to share that information with Fivestars, and (ii) so that Fivestars may so communicate with each such person and otherwise use such data and/or information in any manner that complies with Fivestars’ Privacy Policy. In connection with Merchant’s use of Customer information and the Platform, and Merchant’s administration of its Merchant Rewards Program(s), it shall comply with all applicable law and any written policies provided by Fivestars to Merchant from time to time, including Fivestars’ Privacy Policy located at www.fivestars.com/privacy. Merchant shall include an opt-out notice in any communications that it delivers to any Customers, and will comply with any opt-out requests made by Customers.

7. DATA. Regardless of where the Software is installed, as part of providing the Platform, Fivestars may collect data related to the use and performance of the Platform. The parties acknowledge that Fivestars is free to collect and analyze such data and other information relating to the provision, use and performance of the Platform for the purpose of improving the Platform provided that Merchant cannot be identified and such data is used solely in an aggregate or other de-identified form.

8. FEEDBACK. Merchant may from time to time provide suggestions, comments or other feedback with respect to the products or services of the Receiving Party (“Feedback”). Both Parties agree that all Feedback is and shall be given entirely voluntarily. Fivestars shall be free to use, disclose, reproduce, license or otherwise distribute and exploit any Feedback as it sees fit, entirely without obligation or restriction of any kind. 

9. OWNERSHIP. Merchant acknowledges and agrees that Fivestars and its licensors are the owners of all right, title and interest in and to the Platform and all updates, upgrades, and derivative works thereto, including anything developed or created by Fivestars as part of the Professional Services, and all intellectual property rights therein including anything developed or created by Fivestars as part of the Professional Services, and that Merchant will not obtain or claim any ownership interest in the foregoing. 

10. PAYMENT. Merchant will pay Fivestars in accordance with the payment terms set forth on the Order Form. Fees may be due in advance or shall be paid in arrears, as described on the applicable Order Form. If Fivestars will bill Merchant for fees owed hereunder, Merchant’s payment will be considered delinquent if a payment is not received within thirty (30) days following the receipt of an invoice for such payments. If Merchant is paying via credit card, Merchant authorizes Fivestars to charge the fees due hereunder (and any other charges Merchant may incur in connection with the Platform (such as taxes)) to Merchant’s provided payment instrument in advance on a periodic basis in accordance with the terms on each Order Form. Merchant is responsible for keeping its payment instrument and all associated information (such as the expiration date of a credit card) current at all times. If a payment is not successfully settled, due to expiration, insufficient funds, or otherwise, and Merchant does not promptly update its payment instrument information, (a) Fivestars reserves the right to suspend Merchant’s access to the Platform until such time as payment is successfully settled, including past due payments, if any and (b) Merchant authorizes Fivestars to continue charging its payment instrument, as it may be updated. If Merchant’s use of the Platform exceeds the capacities or limits on an Order Form or otherwise requires the payment of additional fees, Merchant hereby authorizes Fivestars to charge such additional fees to Merchant’s payment instrument in the following pay cycle. All fees shall be paid in U.S. dollars. All fees paid are non-refundable. Merchant agrees to pay the costs and expenses incurred by Fivestars or on behalf of Fivestars in connection with the collection of any unpaid charges and fees. Merchant agrees to cover any additional bank charges associated with all Fivestars payments and fees. Fivestars is not obligated to pay any item presented for payment if Merchant's account does not contain sufficient collected funds. Merchant will be responsible for all taxes in connection with this Agreement (excluding taxes based on Fivestars’ net income). Billing will commence on the first billing date, as specified in the Order Form. 

11. TERM AND TERMINATION.

11.1 Term. The term of this Agreement shall start on the effective date or the subscription start date (as applicable) listed on the Order Form (“Effective Date”) and continue for the initial term listed on the Order Form (“Initial Term”). The Order Form and this Agreement will automatically renew for successive periods equal to the Initial Term, as stated in the Order Form (each, a “Renewal Period”) (collectively, the Initial Term and any Renewal Periods shall be the “Term”) unless either party provides the other with notice of its intent not to renew at least thirty (30) days before the end of the then-current Term.

11.2 Termination. Either party may terminate this Agreement if the other party breaches or defaults on any of its obligations under this Agreement (such that the breach or breaches, individually or in the aggregate, deprive the other party of the intended benefit of this Agreement) and said breach or default continues un-remedied for a period of ninety (90) days after the breaching party’s receipt of written notice. Written notices of breach must specify the grounds of such breach or default in reasonable detail. Except as provided in this Section and Section 11.1 above, Merchant may not otherwise terminate this Agreement or any Order Form except as may be explicitly set forth on the Order Form.

11.3 Effect of Termination. Upon termination of this Agreement, Merchant’s rights to use and access the Platform will immediately cease and Merchant will cease using and accessing the Software and the Dashboard and return all Equipment and pay any associated fees in accordance with Exhibit A. Sections 5 through 15 will survive the termination or expiration of this Agreement.

12. INDEMNITY.Merchant will defend any third party claim or action brought against Fivestars relating to (a) the Merchant Rewards Programs, (b) Merchant’s breach of Section 5 (Merchant Rewards Programs), or (c) Merchant’s breach of the representations and warranties contained in Section 6 (Customers) and Merchant will pay (i) any settlements entered into between Fivestars and the third party claimant or (ii) final judgments awarded to the third party claimant by a court of competent jurisdiction. Fivestars shall (a) provide Merchant with prompt written notice of any claim, (b) grant Merchant sole control of the defense and settlement of the claim, and (c) providing reasonable information and assistance to Fivestars in the defense or settlement of the claim at Fivestars’ expense.
    
    13. DISCLAIMER.THE FIVESTARS PLATFORM AND PROGRAM AND ALL PRODUCTS, SERVICES (INCLUDING PROFESSIONAL SERVICES), CONTENT AND ITEMS PROVIDED BY FIVESTARS HEREUNDER (INCLUDING, WITHOUT LIMITATION, THE EQUIPMENT (AS APPLICABLE)) ARE PROVIDED “AS IS” AND FIVESTARS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF UNINTERRUPTED USE AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
    
    14. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, AND REGARDLESS OF THE FORM OF ACTION (E.G., WHETHER IN CONTRACT, TORT, NEGLIGENCE, OR OTHERWISE) NEITHER FIVESTARS NOR ANY OF ITS LICENSORS OR SUPPLIERS SHALL BE LIABLE TO MERCHANT OR TO ANY OTHER PARTY IN CONNECTION WITH ANY SUBJECT MATTER OF THIS AGREEMENT FOR (A) ANY SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR INDIRECT DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION), OR (B) ANY AMOUNTS IN THE AGGREGATE THAT EXCEED THE FEES PAID BY MERCHANT TO FIVESTARS HEREUNDER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO THE APPLICABLE CLAIM. THE FOREGOING LIMITATIONS SHALL APPLY WHETHER OR NOT FIVESTARS (OR ITS LICENSOR OR SUPPLIER, AS APPLICABLE) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
    
    15. GENERAL PROVISIONS. The terms of this Agreement and any and all non-public information disclosed by Fivestars to Merchant pursuant to this Agreement are confidential, and Merchant agrees not to disclose the terms of this Agreement or any such information to any third party, or use any such information other than for the purposes expressly set forth herein. Customer agrees that Fivestars may use Customer’s name and logo to identify Customer as a customer of Fivestars on Fivestars’ website and in other advertising, marketing and promotional materials. Merchant may not assign this Agreement or any of its rights or delegate any of its duties under this Agreement without Fivestars’ prior written consent, except to a successor to all or substantially all of its business or assets; Fivestars may assign this Agreement and/or any of its rights and/or delegate any of its duties under this Agreement without consent. This Agreement contains the entire understanding of the parties with respect to the transactions and matters contemplated hereby, and supersedes all previous communications, understanding and agreements (whether oral or written). The Agreement consists of this Merchant Agreement, all exhibits attached hereto and all Order Forms, and represents entire agreement between the parties; any additional or conflicting conditions, printed or otherwise, appearing on any orders, copy instructions or other documents will be of no effect. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard for conflict of law principles. The parties irrevocably consent to the exclusive personal jurisdiction of the federal and state courts located in San Francisco County, California.