These Additional Terms apply to the provision and use of customer loyalty program management services (“Additional Service”) offered by Tabit Technologies, Inc. (“Tabit”) and are incorporated by reference into the Service Agreement between Tabit and the Customer.
By using or enabling the Additional Service, the Customer agrees to be bound by these Additional Terms in addition to the Service Agreement.
Tabit shall provide the Additional Service in accordance with the terms detailed in the Order Form.
Applicable fees and charges are set out in the Order Form.
Without derogating from the representations and warranties of the Customer in the Order Form and Terms of Service, the Customer hereby represents and warrants that:
a. the Customer operates in general, and manages its customer loyalty program (“Customer Loyalty Program”) in particular, in accordance with all applicable Federal and/or State laws and/or any ruling or guidance of competent authorities (such as the Federal Trade Commission, the Federal Communications Commission, and the Food and Drug Administration), including the provisions of the US Telephone Consumer Protection Act of 1991 (TCPA), the US Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM), the US Children’s Online Privacy Protection Act (COPPA), the California Consumer Privacy Act of 2018 (CCPA), as amended by the California Privacy Rights Act of 2020 (CPRA), the Virginia Consumer Data Protection Act (VCDPA), the Colorado Privacy Act (CPA), the Connecticut Data Protection Act (CTDPA), the Utah Consumer Privacy Act (UCPA) and any similar laws; in each case, all of the foregoing as amended, replaced or supplemented from time to time, and all subordinate legislation made under them; and
b. the Customer has obtained all necessary consents and/or informed its customers (“End Customers”) as required by applicable law or contract to allow Tabit to provide the Additional Service, including providing Tabit with personal information of End Customers for the purposes of the Additional Service, in accordance with all applicable laws, including CAN-SPAM and any applicable State privacy and/or consumer protection laws.
Without derogating from the generality of the foregoing, the Customer undertakes to update its terms and conditions and related privacy notice applicable to End Customers so that they comply with all applicable laws, and to allow Tabit to provide the Additional Services and to process End Customer personal information in accordance with Tabit’s published privacy notice available at Tabit Privacy Notice.
The Customer must create and provide End Customers with loyalty program terms and conditions and related privacy notice compliant with all applicable laws (collectively, “End Customer Terms”). The End Customer Terms must:
a. be accepted by the End Customer before the loyalty program is activated; and
b. include provisions which refer to and require the End Customer to agree to the End Customer’s personal information being processed by Tabit in accordance with the Tabit Privacy Notice.
Upon written request, the Customer may use Tabit’s standard uniform documentation for End Customer Terms (“Documents”). The Documents are offered “As-Is”, at no additional cost, and at the Customer’s sole discretion and liability. Tabit expressly disclaims any representation or warranty of any kind with respect to the Documents. The Customer represents, warrants and agrees that:
a. the Documents are not specifically fit for the Customer and/or its needs and/or circumstances;
b. Tabit does not provide and is not a substitute to professional legal services; and
c. the Customer will use any Documents at its own risk and following consultation and review of its own legal counsel to adjust or modify the Documents to comply with the Customer’s needs and applicable law.
Without derogating from the terms of the Services Agreement, the Customer undertakes to indemnify and hold Tabit and its officers, employees, agents and contractors harmless from and against any claim, demand, loss, cost (including reasonable legal costs), payment, fine, penalty, expense, or damage arising from any third party claim (including infringement notices or other regulatory investigations or proceedings) to the extent arising directly or indirectly from the Customer’s breach of these Additional Terms.
a. Tabit will store and otherwise process the Customer Loyalty Program Data (“Program Data”) in the System, utilizing reasonable security measures.
b. Tabit is not responsible for the content of the Program Data, including with respect to the quality of the Program Data, changes made to the Program Data by the Customer or End Customers, its update, and/or accuracy.
c. The Program Data is the property of the Customer. The Customer hereby grants Tabit a non-exclusive licence to use, modify and adapt the Program Data for the purpose of performing its obligations and entitlements under this Service Agreement and as may be required by applicable law. Tabit will enable the export of the Program Data by the Customer or otherwise provide the Program Data to the Customer within seven (7) business days following the Customer’s written request.
a. The Customer must:
i. only use the System to send marketing communications to End Customers who have consented to receive such marketing communication from the Customer;
ii. not use the System to send any marketing communication to any End Customer who has opted-out of receiving such marketing communications;
iii. ensure that to the extent Program Data includes data about any End Customer that has opted-out as mentioned above, such End Customer is identified as such in accordance with any applicable Tabit Requirements (as defined below);
iv. promptly (in no more than two business days) update the Program Data in accordance with any applicable Tabit Requirements if the Customer receives an opt-out notice from an End Customer whose information is contained in the Program Data, except where that End Customer is already identified in the System as such in accordance with any applicable Tabit Requirements;
v. ensure that the Customer is clearly identified as the sender of any marketing communication that the Customer sends using the System;
vi. ensure that the Customer’s accurate and up to date contact information is included in any marketing communication that the Customer sends using the System; and
vii. ensure that all other information that the Customer includes in any marketing communication (or other message) that the Customer sends using the Systems is truthful, accurate, up to date and in accordance with all applicable laws.
b. The Customer warrants and represents that:
i. the Customer has obtained all necessary approvals and consents and has all rights to enroll End Customers in the Customer Loyalty Program;
ii. all Program Data is accurate as at the date it is provided by the Customer or supplied to Tabit; and
iii. the Customer will ensure that Program Data is kept accurate, reliable and up to date.
c. The Customer will administer and manage its Customer Loyalty Program in accordance with the terms of this Service Agreement and applicable law.
In addition to the rights of termination in the Services Agreement, either party may terminate the Additional Services by providing seven (7) days’ prior written notice to the other party.
a. These Additional Terms are incorporated into and form part of the Service Agreement and the term ‘Services’ in the Services Agreement shall be construed as to include the Additional Services. In the event of any inconsistency between these Additional Terms and another document forming part of the Service Agreement, these Additional Terms shall prevail but only with respect to the Additional Services.
b. This agreement may be executed in counterparts and, if so, the counterparts taken together constitute one agreement.
c. A reference to a business day is to a day on which banks are open for business in New York, New York.
d. A reference to ‘data’ includes any information or content.
e. The meaning of any general language is not restricted by any accompanying example, and the words ‘includes’, ‘including’, ‘such as’, ‘for example’ or similar words are not words of limitation.
f. A reference to legislation includes any amendments, re-enactments or replacements of that legislation.
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