YouEarnedIt Terms and Conditions
Updated: September 1, 2016
Purpose and Scope. YouEarnedIt, Inc., a Delaware corporation (“YEI”) offers proprietary employee recognition & rewards product (the “Product”) and proprietary mobile applications (each a “Mobile Application”) administered via the Product (together, as updated from time to time, the “Service”). The customer identified on an Order Form (“Customer”) desires to access the Service on a subscription basis and to make the Service available to Customer’s personnel.
In consideration of the mutual promises contained herein, the parties agree as follows:
1.1. Provision of Service and Admins.
During the Term (defined below) and subject to the terms and conditions set forth herein, including without limitation Customer’s payment of all of Fees due hereunder, YEI will use commercially reasonable efforts to provide Customer with access to the Service and make the Service available to Customer’s administrative users who have authority to manage and administer Customer’s account (“Admins”) and other personnel (“Basic Users” and together with Admins, “Users”), in accordance with the parameters set forth in the Order Form. All Users will be required to abide by the terms of this the Order, these Terms and Conditions and any other documents referenced herein (collectively the “Agreement”). Any breach of this Agreement by a User will be deemed to be a breach by Customer. Customer and Admins shall be solely responsible for managing and administering Basic User account, including issuing user names and passwords for Basic User accounts. Customer and Admins shall be responsible for the security and confidentiality of Customer’s account information, including user names and passwords, and will ensure that no third party uses Customer’s account through Customer. Customer and Admins shall promptly notify YEI in the event that Customer or an Admin becomes aware of any unauthorized access to the Service.
1.2. Customer Assistance.
Customer shall provide YEI with all information, materials and assistance as reasonably required for YEI to activate and operate the Service for Customer and its Users pursuant to this Agreement.
1.3. Hosting, Support and Maintenance.
Customer acknowledges that YEI may host the Product using its own infrastructure or it may engage a third party to host the Product on its behalf. Updates that YEI makes available to YEI’s general customer base will be provided at YEI’s discretion at no additional charge. During the Term, YEI will provide Customer with a reasonable amount of telephone, email, and content support regarding use of the Service, in accordance with YEI’s Service Level Agreement.
1.4. Basic Users.
1.5. Points, Rewards and Fulfillment Vendors.
In connection with the Service, Users may earn points as a form of recognition from Customer and other Users (“Points”). Users may be eligible to redeem Points for products, gift cards, experiences or charitable donations (collectively, the “Rewards”). YEI’s third party vendors or service providers (“Fulfillment Vendors”) may fulfill certain Rewards (currently products, gift cards and charitable donations). The Fulfillment Vendors are subject to change at any time and without notice. If YEI makes the decision to no longer use a Fulfillment Vendor, it will use commercially reasonable efforts provide Customer comparable Rewards, catalogs and product offerings, or, if the same cannot be performed, YEI will credit the Points back to the Users for the items the Users attempted to fulfill with the prior Fulfillment Vendor. To the extent Customer or its Users have Rewards fulfilled through the Service, Customer and such Users will be subject to and hereby agree to any applicable terms and conditions of the particular Fulfillment Vendor(s). YEI will use commercially reasonable efforts to ensure that the Fulfillment Vendor remedies any failures to properly fulfill orders by providing the User a replacement or alternative item or, in the event User does not wish to receive the replacement or alternative item, YEI will credit the Points used back to the User. Except as set forth herein, YEI is not responsible for and makes no representations or warranties with respect to the performance of any Fulfillment Vendor. Additionally, Customer may elect to fulfill certain Rewards itself. YEI is not responsible for any Rewards fulfilled by Customer. Customer and Admins shall be responsible for establishing and monitoring any Customer-specific rules for Users’ use of the Service. Points earned by Users will have no cash value and cannot be used in payment of any obligation to YEI or its Fulfillment Vendors. All items are non-refundable once accepted by Users and/or the YEI administrator. YEI does not accept returns for any Rewards. Once Customer or User accepts the ordered item, refunds for any item are not permitted, unless the item was broken in transit, is incorrect or is inoperable upon first use, in which case the Fulfillment Vendor assumes the risk of loss and will remedy the specific issue with Customer with the assistance of the YEI customer service team. YEI will work with the Fulfillment Vendor to resolve any fulfillment customer service issues, include credit back to User of any applicable Points if necessary. Customer acknowledges and understands that any and all gift cards are non-refundable.
1.6. Compliance with Applicable Law.
Customer and each User uses the Service at its own initiative and is responsible for compliance with any applicable laws, including without limitation any federal, state or local employment and/or tax laws. Customer hereby represents and warrants that Customer shall comply with all laws, rules and regulations of each jurisdiction where the Service is accessed by Customer that are applicable to Customer’s business or Customer’s use of the Service. YEI may also impose limits on the use or access to the Service as required by law.
1.7. Third Party Elements.
The Service may contain software or similar components that are either owned by a third party or in the public domain (“Third Party Elements”). Customer’s rights in the Third Party Elements are governed by and subject to the terms and conditions set forth in applicable third party license(s).
2. INTELLECTUAL PROPERTY.
2.1. Rights to Use the Service.
Customer and its Users shall have a limited, non-exclusive, non-transferable, non-sublicensable, royalty-free right and license to access and internally use the Service for its intended purpose during the Term of this Agreement, subject to the terms and conditions of this Agreement (including payment of all amounts due) and any restrictions or parameters set forth in this Agreement.
2.2. Reservation of Rights.
All intellectual property rights in and to the Service (including the Product and all Mobile Applications) remain the sole property of YEI and its licensors. If Customer or any of its Users submits to YEI comments, suggestions, or other feedback regarding the Service (“Feedback”), Customer or the User, as applicable, hereby grants and agrees to grant to YEI at no charge a perpetual, irrevocable, royalty-free, worldwide right and license to use, reproduce, disclose, sublicense, distribute, modify, and otherwise exploit such Feedback for any purpose without accounting or obligation.
2.3. Restrictions and Customer Obligations.
Customer may not rent, lease, lend, sell, redistribute, reproduce or sublicense the Service, or use the Service as a service bureau, without prior written consent from YEI. Customer may not copy, decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, create derivative works of the Service, or any part thereof, or use the Service to violate and law or regulation. If for some reason these restrictions are prohibited by applicable law or by an agreement YEI has with one of its licensors, then the activities are permitted only to the extent necessary to comply with such law or license(s). Customer shall not exploit the Service in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity. Customer will be solely responsible for the following: (i) providing all hardware, software, networking and communications capabilities required for front end consumption of the Service; (ii) at all times complying fully with any and all relevant laws, rules and regulations applicable to Customer’s business, (iii) using the Service in a manner that does not infringe the intellectual property, privacy or other rights of third parties, and (iv) ensuring that Customer and its Users do not upload or transmit viruses or malicious code via the Service.
2.4. Rights in Data.
As between YEI and Customer, Customer shall own all right, title, and interest in and to any data that is collected by YEI from Customer and its Users, and in connection with their use of the Service (“Data”). Customer hereby grants and agrees to grant to YEI a non-exclusive, transferable, sublicensable, royalty free license to use such Data in order to provide the Service to Customer and as necessary to monitor and improve the Service. Additionally, Customer hereby grants and agrees to grant to YEI a perpetual, non-exclusive, transferable, sublicensable, royalty free license to use the Data in order to provide, monitor and improve the Service and to compile, synthesize and analyze the Data to generate anonymous data, including usage statistics, that will not personally identify Customer or any User or the source of the Data (“Blind Data”). Notwithstanding anything in this Agreement to the contrary, to the extent that YEI collects or generates Blind Data, such Blind Data will be owned solely by YEI and may be used for any lawful business purpose without a duty of accounting or obligation, provided that such data is not personally identifiable and does not identify the source of such data. It is Customer’s sole responsibility to back-up its Data and Customer agrees and acknowledges that post termination or expiration of this Agreement, it may not have access to the Data.
2.5. Rights in Content.
Customer and its Users are solely responsible for the content submitted to the Service by Users, including without limitation text, images, videos, photos, sounds, links, works of authorship and/or other materials or User generated content (“Content”). Customer’s Users are, and shall remain, the owner and/or licensor of all of such Users’ Content. By displaying or publishing Content on or through the Service, Customer and its Users hereby grant to YEI a non-exclusive, fully-paid, royalty-free, fully sublicensable, transferable, irrevocable worldwide license to use, modify, publicly perform, publicly display, reproduce, prepare derivative works of and distribute the Content (in whole or in part) in connection with the provision of the Service to Customer and its Users, including without limitation for the purpose of facilitating searches, previews, and the like and Customer and its Users are solely responsible for the consequences of submitting and publishing the Content in conjunction with the Services. YEI reserves the right to remove any Content uploaded to the Service at any time for any reason.
2.6. YEI Communication and Training Materials.
YEI may provide communications materials to support Customer’s internal launch and usage marketing of the Service to its Users (e.g., electronic versions of literature, white papers, logos, etc.). Subject to the terms of this Agreement, YEI hereby grants to Customer a non-exclusive license to distribute any such materials in electronic and print format during the Term of this Agreement. Customer shall distribute such materials solely in conjunction with its communication and training efforts hereunder.
2.7. Trademark and Logo Usage.
Customer agrees to grant and does hereby grant YEI a non-exclusive, royalty-free license to use Customer’s trademarks and other applicable proprietary rights as may be reasonably necessary during the Term in connection with the provision of the Service.
3. PAYMENT TERMS.
Applicable subscription, usage, license, hosting, support and maintenance fees and pricing for the Service (“Subscription Fees”) are set forth on the Order Form or within the Product for Customer to see prior to incurring any expense. All Rewards, redemption, shipping and handling fees (“Fulfillment Fees”) will be billed upon Customer-approved redemptions via a payment method mutually agreed to by Customer and YEI, which may include escrow. All Gift Cards fulfilled by YEI will carry a small processing fee disclosed in writing to the Customer prior to redeeming the applicable Points.
3.2. Payment Terms.
The Subscription Fees set forth on an Order Form do not include local, state or federal sales, use, value-added, excise or personal property or other similar taxes or duties, and any such taxes shall be assumed and paid by the Customer except those taxes based on the net income of YEI. To the extent any Reward received by a User in connection with the Service is deemed taxable income or employee compensation under applicable tax law, Customer will be solely responsible for any applicable income and employment tax withholdings, and will otherwise ensure Customer’s and its Users’ compliance with applicable tax law. Tax implications of any Charitable Donations will be strictly managed by the Customer. YEI shall have no liability for any taxes owed by Customer or its Users as a result of such use of the Service.
4. WARRANTIES AND DISCLAIMER.
4.1. Mutual Warranties.
Each party represents that it is a corporation or organization that is duly organized, validly existing, in good standing in the applicable jurisdiction(s), and that it has the requisite power and authority to execute and deliver this Agreement and to carry out the transactions contemplated by this Agreement and that it will do so in accordance with, and acknowledges that this Agreement is subject to, applicable law. Each party represents and warrants that it has no outstanding agreement or obligation that is in conflict with any of the provisions of this Agreement, or that would preclude it from complying with the provisions hereof.
4.2. YEI Representations.
YEI further represents and warrants to Customer that the Service shall materially operate according to its applicable functional specifications, documentation and this Agreement at all times.
THE FOREGOING CONSTITUTES YEI’S ONLY WARRANTIES REGARDING THIS AGREEMENT, THE SERVICE, AND IS MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, INFORMATIONAL CONTENT, SYSTEMS INTEGRATION, NON-INFRINGEMENT, INTERFERENCE WITH ENJOYMENT OR OTHERWISE. CUSTOMER SHALL NOT AND HAS NO AUTHORITY TO MAKE ANY WARRANTY ON BEHALF OF YEI TO ANY USER REGARDING THE SERVICE.
“Confidential Information” means, without limitation, any proprietary information, customer information, product plans, inventions, technical data, trade secrets, know-how, or other business information, in each case disclosed or made available by a disclosing party hereunder. Subject to Section 5.2, YEI’s Confidential Information includes, without limitation, the Blind Data, Product, the Mobile Applications, the software comprising the same, and the terms and conditions of this Agreement. Customer’s Confidential Information includes, without limitation, the Data.
Nothing received by a receiving party shall be construed as Confidential Information which: (a) is now available or becomes available to the public without breach of this Agreement; (b) is lawfully obtained from a third party without a duty of confidentiality; (c) is known to the receiving party without obligation of confidentiality prior to such disclosure; or (d) is, at any time, independently developed by the receiving party without use of the Confidential Information of the disclosing party.
5.3. Non-Use and Non-Disclosure.
5.4. Disclosure Required by Law.
Notwithstanding Subsection 5.3 above, a receiving party may disclose the other party’s Confidential Information if the information is required by law to be disclosed in response to a valid order of a court of competent jurisdiction or authorized government agency, provided that the receiving party must give the disclosing party prompt written notice and obtain or allow for a reasonable effort by the disclosing party to obtain a protective order prior to disclosure.
6. LIMITATION OF LIABILITY AND REMEDIES.
6.1. DISCLAIMER OF DAMAGES.
EXCEPT FOR LIABILITIES RESULTING FROM A BREACH OF SECTIONS 2 (“INTELLECTUAL PROPERTY”), 5 (“CONFIDENTIALITY”) OR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 7, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, LOSSES OR EXPENSES (INCLUDING BUT NOT LIMITED TO BUSINESS INTERRUPTION, LOST BUSINESS, LOST PROFITS, OR LOST SAVINGS) EVEN IF IT HAS BEEN ADVISED OF THEIR POSSIBLE EXISTENCE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
6.2. MAXIMUM LIABILITY.
EXCEPT FOR LIABILITIES RESULTING FROM A BREACH OF SECTIONS 2 (“INTELLECTUAL PROPERTY”), 5 (“CONFIDENTIALITY”) PAYMENTS OWED HEREUNDER OR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 7, IN NO EVENT SHALL EITHER PARTY’S LIABILITY HEREUNDER (WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY IN TORT OR BY STATUTE OR OTHERWISE) IN THE AGGREGATE EXCEED THE SUBSCRIPTION FEES PAID OR PAYABLE BY CUSTOMER TO YEI HEREUNDER FOR THE TWELVE MONTH PERIOD PRIOR TO THE CLAIM AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
6.3. Allocation of Risk.
The allocations of liability in this Section represent the agreed and bargained-for understanding of the parties and voluntary allocation between them of the risk associated with Customer’s use of the Service and, but for this provision, YEI would not have made the Service available to Customer hereunder.
7.1. By YEI.
YEI shall defend Customer from and against any claim, demand, or action brought by a third party against Customer, and indemnify and hold Customer harmless from any third party damages, liabilities, losses, costs, and expenses, including reasonable attorneys’ and experts’ fees, in each case that are finally awarded to the third party by a court of competent jurisdiction or otherwise owed in any settlement, in each case to the extent arising from any allegation that the Service, including the Product and the Mobile Application, but exclusive of the any Third Party Elements, as provided to Customer and used within the scope of this Agreement), infringes any United States patent, copyright, or trade secret of a third party. Notwithstanding the forgoing, YEI will have no liability for any infringement claim of any kind if the claim results from: (a) modification of the Service made other than by YEI; (b) unauthorized or unlicensed use of the Service; (c) any third-party Fulfillment Vendor; (d) the combination, operation or use of the Service with equipment, devices, data, or software not supplied by YEI, to the extent such a claim would have been avoided if the Service was not used in such combination; (e) use of information, materials, Data, or marks provided to YEI; or (f) or compliance by YEI with designs, plans or specifications furnished by or on behalf of Customer.
7.2. By Customer.
Customer shall defend YEI from and against any claim, demand, or action in any form brought by a third party against YEI (including without limitation any User), and indemnify and hold YEI harmless from any damages, liabilities, losses, costs, and expenses, including reasonable attorneys’ and experts’ fees, including in each case any of the foregoing that are finally awarded to the third party by a court of competent jurisdiction or otherwise owed in any settlement, in each case to the extent arising from or related to: (a) use of the Service by Customer or any User in a manner expressly prohibited by this Agreement; (b) any Content posted by Customer or a User (including without limitation any claim that YEI’s use of the Content as described in the Agreement violates the rights (including any intellectual property rights) of a third party), (c) any claim by a User related to the Service or this Agreement, or (d) violation of an applicable law, rule, regulation or agreement to which Customer is subject.
7.3. Rights Upon Infringement.
If Customer’s use of the Service is, or in YEI’s opinion is likely to be, enjoined due to the type of infringement specified in Subsection 7.1 above, YEI may, at its sole option and expense: (a) procure for Customer the right to continue using the same under the terms of this Agreement; (b) replace or modify the Service so that it is non-infringing; or (c) if options (a) and (b) above cannot be accomplished despite YEI’s reasonable efforts, then YEI may terminate this Agreement and Customer’s rights to the Service and refund a pro-rated portion of any pre-paid Fees paid therefor, based upon Customer’s use to date.
7.4. Conditions Precedent.
The indemnifying party will have no obligation under this Section 7 as to any claim, suit, or proceeding unless: (a) the indemnified party promptly notifies the indemnifying party in writing of such claim, suit, or proceeding; (b) the indemnifying party has sole control of its defense and settlement; and (c) the indemnified party, upon request of the indemnifying party, cooperates in all reasonable respects, at the indemnifying party’s sole cost and expense, with the indemnifying party and such attorneys in the investigation, trial and defense of such lawsuit or action and any appeal arising therefrom; provided, however, that the indemnifying party keeps the indemnified party informed of and consults with the indemnified party in connection with the progress of such litigation or settlement. The indemnified party may choose to participate in the defense or settlement of the claim at its own expense.
7.5. Sole Remedy.
The provisions of this Section 7 set forth YEI’s sole and exclusive obligations, and Customer’s sole and exclusive remedies, with respect to infringement of any intellectual property rights of any kind.
8. Term and Cancellation.
Customer agrees that the term of this Agreement is for the same period of time as it relates to the platform and services described within the Order Form, beginning on the Effective Date and ending when the Customer has no Order Forms in effect.
8.2. Termination for Cause.
In the event that a party is made aware of a breach of the terms of this Agreement in writing and does not cure such breach within thirty (30) days following notice thereof, then the other party may immediately terminate the Agreement by sending thirty (30) days written notice to the breaching party.
8.3. Effect of Expiration or Termination.
Sections 3, 4.3, 5, 6, 7, 8.3 and 9 shall survive any expiration or termination of this Agreement. All other rights and obligations shall cease and be of no further force or effect.
9.1. Entire Agreement.
This Agreement, including any Order Forms, Schedules and/or attachments referenced herein or issued hereunder constitute the entire agreement of the parties with respect to the subject matter contemplated herein, and supersede any prior representations, agreements, negotiations, or understandings between them, whether written or oral, with respect to the subject matter hereof. No waiver, alteration, or except as otherwise provided in a separate agreement, modification of any of the provisions of the Agreement shall be binding unless in writing and signed by duly authorized representatives of the parties, or through a subsequent Click-to-Accept agreement delivered by YEI via the Product or any Mobile Application and accepted by an authorized representative of Customer.
9.2. Governing Law and Jurisdiction.
The Agreement will be governed by and construed in accordance with the laws of the State of Texas applicable to agreements entered into, and to be performed entirely, within Texas between Texas residents without regard to the conflict of laws provisions of any state or jurisdiction. Any legal action or proceeding arising under the Agreement will be brought exclusively in the federal or state courts applicable to Travis County, Texas, and the parties hereby consent to personal jurisdiction and venue therein. The parties expressly agree to exclude the application of the U.N. Convention on Contracts for the International Sale of Goods (1980) to this Agreement and the performance of the parties contemplated herein, to the extent that such convention might otherwise be applicable.
9.3. Relationship of Parties.
The parties are independent contractors and the Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent. YEI reserves the right to utilize subcontractors.
9.4. Attorneys’ Fees.
In any court action at law or equity which is brought by one of the parties to enforce or interpret the provisions of this Agreement, the prevailing party will be entitled to reasonable attorneys’ fees, in addition to any other relief to which that party may be entitled.
9.5. Equitable Relief.
Both parties agree that a material breach of the confidentiality provisions of this Agreement or restrictions set forth herein would cause irreparable injury to other party for which monetary damages alone would not be an adequate remedy, and therefore the party shall be entitled to equitable relief in addition to any other remedies it may have hereunder or at law, without the requirement of posting bond or proving actual damages.
9.6. Force Majeure.
Except for Customer’s payment obligations, neither party shall be deemed to have breached any provision of the Agreement as a result of any delay, failure in performance, or interruption of service resulting directly or indirectly from acts of God, network failures, acts of civil or military authorities, civil disturbances, wars, terrorism, energy crises, fires, transportation contingencies, interruptions in third-party telecommunications or Internet equipment or service, other catastrophes, or any other occurrences which are beyond such party’s reasonable control.
9.7. Government Use.
The use, duplication, reproduction, release, modification, disclosure, or transfer of the Service, no matter how received by the United States Government, is restricted in accordance with the terms and conditions contained herein. All other use is prohibited. Further, the Service was developed at YEI’s private expense and is commercial in nature. By using or receiving the Service, the Government user agrees to the terms and conditions contained in this Agreement including the terms and conditions contained in this paragraph.
Customer may not assign this Agreement, in whole or in part, without YEI’s prior written consent. Any purported assignment in violation of this Section shall be null and void. Subject to the terms of this Section, the Agreement shall be binding on all permitted successors and assigns.
The invalidity or unenforceability of any provision hereof, or any terms thereof, shall not affect the validity of the Agreement as a whole, which will at all times remain in full force and effect.
The failure of either party to enforce at any time the provisions of the Agreement, or the failure to require at any time performance by the other party of any of the provisions of the Agreement, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the ability of either party to enforce each and every such provision thereafter. The express waiver by either party of any provision, condition or requirement of the Agreement shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
9.11. Order of Preference.
All notices required or permitted under the Agreement will be in writing and delivered by confirmed facsimile transmission, by courier or overnight delivery service, or by certified mail, and in each instance will be deemed given upon receipt. All communications will be sent to the addresses set forth in the Product Admin fields or in the Order Form or to such other address as may be specified by either party to the other in accordance with this Section.