Terms of Service Agreement
EFFECTIVE: November 30, 2016
By signing up for the Thirdshelf service (“Service”) or any of the services of Thirdshelf Inc. (“Thirdshelf”) you are agreeing to be bound by the following terms and conditions (“Merchant Terms of Service”). Any new features or tools which are added to the current Service shall be also subject to the Merchant Terms of Service. You can review the current version of the Merchant Terms of Service at any time here. Thirdshelf reserves the right, with or without notice to you, to update and change the Merchant Terms of Service by posting updates and changes to the Thirdshelf website. You are advised to check the Merchant Terms of Service from time to time for any updates or changes that may impact you.
ALL OF THE THIRDSHELF SERVICES ARE AVAILABLE ONLY FOR INDIVIDUALS AGED 13 YEARS OR OLDER. IF YOU ARE 13 OR OLDER BUT UNDER THE AGE OF 18, THEN YOU AGREE TO REVIEW THIS AGREEMENT WITH YOUR PARENT OR GUARDIAN TO MAKE SURE THAT BOTH YOU AND YOUR PARENT OR GUARDIAN UNDERSTAND AND AGREE TO THESE TERMS AND CONDITIONS. YOU AGREE TO HAVE YOUR PARENT OR GUARDIAN REVIEW AND ACCEPT THIS AGREEMENT ON YOUR BEHALF. IF YOU ARE A PARENT OR GUARDIAN ENTERING INTO THIS AGREEMENT FOR THE BENEFIT OF A CHILD OVER 13, THEN YOU AGREE TO AND ACCEPT FULL RESPONSIBILITY FOR THAT CHILD’S USE OF THE SERVICES, INCLUDING ALL FINANCIAL CHARGES AND LEGAL LIABILITY THAT HE OR SHE MAY INCUR.
If a parent or guardian becomes aware that his or her child has provided us with information without their consent, he or she should contact us at email@example.com.
1. General Description
1.1. Thirdshelf Inc., (“we” or “Company” or “Thirdshelf”) provides Merchants (also “you”) access to the Thirdshelf loyalty marketing platform (“Thirdshelf platform”), subject to your acceptance of and compliance with the following Thirdshelf Merchant Terms of Service (“Merchant Terms”).
1.2. Thirdshelf authorizes use of the Thirdshelf platform by Merchants, subject to the terms and conditions set forth in these Merchant Terms, strictly for the purpose of operating a loyalty program and for the development, implementation, execution and management of promotional and marketing Campaigns. By applying for a Thirdshelf Merchant Account, and by accessing and utilizing the Thirdshelf platform, and as an express condition of such use and access, you agree to comply with all of the following Merchant Terms. These Merchant Terms, as amended by Thirdshelf from time to time, constitute a complete and binding legal agreement between you and Thirdshelf.
1.3. Thirdshelf reserves the right to change, update or otherwise alter these Merchant Terms at any time, with or without notice to you, by posting the updated terms on the Thirdshelf website here. All changes are effective immediately. It shall remain your responsibility to monitor these Merchant Terms for changes. Your continued use of the Thirdshelf platform and services will constitute your consent to such changes. If you do not agree to the changes, you must cease your use of the Thirdshelf platform and notify Thirdshelf of your termination of this Agreement. In the event of a conflict between these Merchant Terms and any other content provided by Thirdshelf, unless specifically provided otherwise, these Merchant Terms shall govern.
1.4. Definitions. In addition to the terms defined in parentheses throughout these Merchant Terms, the following terms shall mean:
1.4.1. “User” means an individual having established an account with a Thirdshelf Merchant, who has accepted the Thirdshelf User Terms of Service (https://thirdshelf.com/user_terms) (“User Terms”). Users may receive, earn and redeem rewards and offers from a Thirdshelf Merchant, via the Thirdshelf platform using the Thirdshelf App and/or through the Thirdshelf website.
1.4.2. “Thirdshelf App” means any software application, including without limitation mobile applications for iOS, Android, or Windows operating systems, or other software or web applications, authorized by Thirdshelf and the application’s User to access the Thirdshelf platform, including without limitation by accessing Merchant or User Data, in whole or in part.
1.4.3. “Rewards and Offers” shall refer to incentives, rewards, discounts or credits offered to Users by Thirdshelf Merchants which can be redeemed by Users for goods or services or applied as payment, in whole or in part, for goods or services, at participating Thirdshelf Merchants.
1.4.4. “Campaigns” shall refer to marketing initiatives, programs, or strategies to attract new or existing Users to your physical store or online locations, which may include Users earning or redeeming Rewards and Offers in various ways.
1.4.5. “Content” shall refer to User and Merchant generated content and materials that are published directly or via a Third Party to the Thirdshelf platform. User generated content includes but is not limited to user profiles, comments, feedback, ratings, likes and referrals, social media feeds, as well as images and videos. Merchant generated content includes but is not limited to product catalogues, images, videos, product and merchant descriptions, logos and branding elements, text and any materials developed for use in Campaigns, Rewards and Offers.
1.4.6. “Data” means all Merchant and User data collected by Thirdshelf in operating and otherwise concerning the use of the Thirdshelf platform.
1.4.7. “Merchant Account” shall refer to your dedicated instance of the Thirdshelf platform that you access via your unique credentials through the Merchant Console.
1.4.8. “Merchant Console” means your portal provided at the Thirdshelf website to view and manage your Merchant Account and User Data, and to view, manage, and create Campaigns, Rewards and Offers.
2. Thirdshelf’s Principal Obligations
In connection with your usage of the Thirdshelf platform, and subject to the more detailed Merchant Terms set forth herein, Thirdshelf agrees that we will:
2.1. Permit you to leverage the Thirdshelf platform, on a best effort basis,m to operate a customer loyalty program and run Campaigns to engage Users;
2.2. Advertise your Campaigns on our digital and mobile properties to Users, and, in some cases, through our network of partners;
2.3. Provide you with rich analytics about your customers’ and Users’ activities via our Thirdshelf Merchant Console, in accordance with applicable Users’ permissions;
2.4. Provide you access to the latest generally available POS and eCommerce integrations for supported POS and eCommerce systems at no additional charge to you;
2.5. Work with you to try to resolve promptly and professionally any User complaints related to the usage of the Thirdshelf platform or any Campaigns, Rewards and Offers at your locations;
2.6. Provide you with Rewards and Offers redemption tracking and summary analytics for your loyalty program and Campaigns run on the Thirdshelf platform.
3. Thirdshelf Rights
3.1. We reserve the right to update and/or modify the service, for any reason, without notice, at any time.
3.2. We reserve the right to terminate the service for a breach of these terms of service or any commercially reasonable purpose. For details please refer to section 20. Termination.
3.3. We reserve the right to refuse service to anyone for any reason at any time.
3.4. We may, but have no obligation to, remove Content and Merchant Accounts containing Content that we determine in our sole discretion are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property or these Terms of Service.
3.5. Verbal or written abuse of any kind (including threats of abuse or retribution) of any User, customer, Merchant, Thirdshelf employee, member, or officer will result in immediate Merchant Account termination.
3.6. Thirdshelf does not pre-screen Content and it is in our sole discretion to refuse or remove any Content that is available via the Thirdshelf platform and/or Thirdshelf App.
3.7. We reserve the right to provide our services to your competitors and make no promise of exclusivity in any particular market segment. You further acknowledge and agree that Thirdshelf employees, contractors, advisors or shareholders may also be Thirdshelf Merchants and that they may compete with you, although they may not use your confidential information in doing so.
3.8. In the event of a dispute regarding Merchant Account ownership, we reserve the right to request documentation to determine or confirm account ownership. Documentation may include, but is not limited to, a scanned copy of your business license, government issued photo ID, the last four digits of the credit card on file, etc.
3.9. Thirdshelf retains the right to determine, in our sole judgment, rightful Merchant Account ownership and transfer an account to the rightful owner. If we are unable to reasonably determine the rightful account owner, Thirdshelf reserves the right to temporarily disable a Merchant Account until resolution has been determined between the disputing parties.
4. Merchant’s Principal Obligations
In connection with your usage of the Thirdshelf platform, and subject to the more detailed Merchant Terms set forth below, you agree that you will:
4.1. Work with Thirdshelf to provide complete and accurate information concerning your business as may be requested in connection with your usage of the Thirdshelf platform, and to maintain the accuracy of all such information;
4.2. Authorize Thirdshelf to advertise your loyalty program and Campaigns to Users and to make adjustments to any advertising or messaging as we deem necessary or desirable to promote your Campaigns more effectively;
4.3. Maintain a POS integration or a standalone Thirdshelf implementation permitting Users to earn and redeem Rewards and Offers or Campaigns.
4.4 Maintain, at your sole expense, equipment and appropriate telecommunication service adaptable to, compatible with, and suitable for communication with the Thirdshelf platform.
4.5. Honor all Rewards and Offers rightfully earned by Users as part of your loyalty program and selected Campaigns, and provide Users with the goods or services that are promised under your loyalty program and each Campaign you send;
4.6. Immediately notify Thirdshelf of any actual or suspected unauthorized use, fraud, violations of any provincial, state or federal laws or regulations, or other breach of these Merchant Terms or Thirdshelf’s User Terms;
4.7. Accept responsibility for any User complaints or customer service issues that may arise in connection with your loyalty program, the Campaigns you run or any User’s earning, redemption or attempted redemption of Rewards and Offers;
4.8. If Thirdshelf receives any User complaints related to your use of the Thirdshelf platform, you will cooperate with us as we investigate such complaints.
5. Merchant Application, Registration, and Approval
5.1. In order for you to leverage the Thirdshelf platform, you must be registered with Thirdshelf and have an established Thirdshelf Merchant Account. You may request a Thirdshelf Merchant Account by contacting Thirdshelf directly, by phone or email, or by entering your information on the Thirdshelf website at: https://thirdshelf.com. A Thirdshelf representative will contact you with information needed to complete an application to register for a Thirdshelf Merchant Account.
5.2. In order to establish a Thirdshelf Merchant Account, Thirdshelf requires that you provide Thirdshelf certain information, including without limitation: your full legal name, the legal name of your business, your contact information, the contact information and exact locations of your business, a valid credit card held by you personally or by your business. Thirdshelf will maintain the security of your credit card information using a third-party provider. Thirdshelf does not store or share your credit card information.
5.3. By establishing a Thirdshelf Merchant Account associated with one or more financial accounts (credit card on file), you authorize Thirdshelf to debit your associated financial account directly for all fees due to Thirdshelf.
5.4. You represent and warrant that all information provided by you to Thirdshelf in connection with the application for a Merchant Account is complete and accurate. You agree to update all such information promptly in the event of any changes. The provision of inaccurate information shall be grounds for revocation of your Merchant Account, without limitation to other available remedies.
5.5. Thirdshelf reserves the right to reject an application or registration for a Thirdshelf Merchant Account, for any reason.
6. POS and eCommerce Integrations & Installation
6.1. The Thirdshelf platform supports integration to POS and ecommerce systems via their publicly available API’s. If you are using a system that presently supports a Thirdshelf platform integration, Thirdshelf grants you with a limited, royalty-free, non-exclusive, non-transferable license to the latest software to power such integration free of charge. Please note that your POS or eCommerce provider, IT contractor, and/or other third-parties with which you contract may charge fees, such as license fees, or professional services fees, in order to enable or facilitate the integration of the Thirdshelf platform into your POS or eCommerce system or to support the integration. Thirdshelf is not responsible for such fees. Thirdshelf, or such third parties as may be specifically identified within portions of the POS or eCommerce software, owns all legal right, title and interest in and to the POS or eCommerce software integration, and any updates to same that may be released in the future by Thirdshelf, including any Intellectual Property Rights that subsist in the POS or eCommerce software (including any and all rights under patent law, copyright law, trade secret law, trademark law, and any and all other proprietary rights). Except as expressly licensed to you herein, Thirdshelf reserves all such rights.
6.2. As an alternative to POS integration, Thirdshelf may offer or provide a standalone hardware-based option that enables Thirdshelf to work without POS integration. Further information is available upon request from Thirdshelf and can be found in section 7 (Hardware) of these Terms of Service.
6.3. Once Thirdshelf software is installed on or connected to your POS and eCommerce system, you authorize Thirdshelf to remotely access your POS and eCommerce system for purposes including but not limited to retrieving aggregate and itemized transactional data, retrieving and creating customer records, associating transactional data and customer records, retrieving and creating product information, retrieving inventory availability data, retrieving and creating store credits or gift cards, creating or modifying inventory items and related pricing, as well as general maintenance, issue resolution, communication, or upgrades. You agree to indemnify and hold harmless Thirdshelf for any loss resulting from said integration to your POS or eCommerce system.
6.4. You are required to properly maintain the Thirdshelf software supporting your POS or eCommerce integration, including but not limited to performing all POS and eCommerce system updates, anti-virus updates, firewall maintenance, OS updates and security patches, and you will be solely responsible for any and all losses incurred as the result of a failure to properly maintain such software.
7.1. Upon a completed registration by you, and acceptance and approval by Thirdshelf of your Merchant Account application, in the event Thirdshelf does not support integration to your existing POS system, we will recommend a combination of Thirdshelf and/or Third Party hardware and Thirdshelf software required for you to operate a loyalty program and Campaigns.
7.2. If you will be integrating the Thirdshelf platform with an existing, supported POS system, you may also choose to deploy Thirdshelf and/or Third Party hardware in-store as an extension of the Thirdshelf platform and we agree to recommend appropriate options.
7.3. Thirdshelf reserves the right to change, or to waive, the Thirdshelf and/or Third Party hardware fees at anytime for any reason. Any hardware provided free of charge to Merchants remains the property of Thirdshelf, and shall be returned to Thirdshelf upon the termination of Merchant’s use of the Thirdshelf service for any reason. In the even the hardware is not returned within 45 days of Merchant Account termination, Merchant authorizes Thirdshelf to debit Merchant’s credit card on file for the cost of any hardware provided free of charge but not returned.
7.4. Wireless scanning hardware may be offered, at Thirdshelf’s discretion, at additional cost.
8. Loyalty Program & Campaigns
8.1. Thirdshelf offers a flexible platform on which you can select and adapt pre-built loyalty program templates and customer engagement Campaigns or design and deploy a fully customized loyalty program and customer engagement Campaigns. Thirdshelf reserves the right to discontinue support for any Campaign at any time, for any reason.
8.2. You have complete control over your loyalty program and Campaign strategy. You can choose to run as many or as few Campaigns as you’d like via the Thirdshelf platform. Depending on the plan you are on, the volume of campaigns you can send will vary, please refer to our pricing & plans information for more details.
8.3. You are required to honor and redeem all loyalty program and Campaign commitments rightfully earned by Users. You are responsible for providing to Users all goods or services that are promised under your loyalty program and each Campaign you choose to run. You are solely responsible for any claim or damages arising out of your failure to grant or honor or redeem commitments made through your loyalty program or any Campaign.
8.4. You agree that in providing goods or services to Users, you will not impose any unreasonable restrictions on redemption, award, or application of the loyalty program and Campaigns, or any extra fees, charges or conditions that contradict these Merchant Terms.
8.5. When Thirdshelf advertises your loyalty program and Campaigns associated with your use of the Thirdshelf platform, including within a Thirdshelf App, we do so as your marketing service. You retain the sole legal obligation to fulfill the commitments made to Users through your loyalty program and Campaigns.
8.6. All loyalty programs and Campaigns run on the Thirdshelf platform, including the manner in which Rewards and Offers are awarded, redeemed, and applied, must comply with all applicable federal, provincial, state, and local laws and regulations. You retain the sole legal obligation to ensure compliance with these laws and regulations.
8.7. Redemption or application of your loyalty program and Campaigns for alcoholic beverages is at the sole discretion of the Merchant, and is subject to compliance with applicable federal, provincial, state, and local laws and regulations.
8.8. Thirdshelf shall retain the right to terminate any loyalty program or Campaign at anytime for any reason in its sole discretion. Thirdshelf shall have the continuing right, but not the obligation, to reject, revise, or discontinue publishing any loyalty program or Campaign and to require you to edit or modify the same for any reason, including, without limitation, to conform your use of Thirdshelf to our specifications or applicable laws.
9. Rewards and Offers
Thirdshelf enables Thirdshelf Merchants to issue and distribute Merchant Rewards and Offers, through their loyalty program or Campaigns, in the form of digital or physical coupons that may be redeemed by Users for goods or services, or applied as payment, in whole or in part, for goods or services, at that Merchant. These Rewards and Offers are integrated with the Thirdshelf platform but assigned to and redeemable only with the originating Merchant. Merchant Rewards and Offers are not issued by or financial obligations of Thirdshelf. The following terms in this section apply to all Merchants:
9.1. Creation and Distribution of Reward and Offers. Thirdshelf provides the services necessary to issue Rewards and Offers in the form of digital or physical (paper copy) coupons. All Rewards and Offers are issued by the identified Merchant, and are not financial obligations of Thirdshelf. Rewards and Offers may only be used to redeem goods or services, or applied as payment, in whole or in part, for goods or services, at the Merchant’s participating locations. Except where required by law, the balance of a Reward or Offer is nonrefundable and may not be resold or redeemed for cash, gift cards or store credit.
9.2. Transfer or Gifting of Rewards and Offers. Users may transfer or gift Merchant Rewards and Offers to a designated recipient by email or other means, through the Thirdshelf website, or within Thirdshelf Apps. Recipients are notified of the Reward or Offer by email or other means. Redemption of the Reward or Offer by the recipient requires them to have or obtain a User account with the Merchant originating the Reward or Offer.
9.3. Thirdshelf Support; Corrections. Recipients of Rewards or Offers will be able to check available Rewards and Offers via the Thirdshelf App, as well as report technical issues, and request corrections as required by law, by contacting the issuing Merchant directly. Thirdshelf reserves the right to correct the Merchant Rewards or Offers in the event of a clerical, billing or accounting error. Transactions or corrections may be disputed by a User within 30 days of the disputed transaction or correction.
9.4. Lost Rewards and Offers. Thirdshelf will not be responsible for lost, stolen, damaged or destroyed Rewards and Offers, or unauthorized use of Rewards and Offers.
9.5. Limitation of Liability. Thirdshelf disclaims all express or implied warranties as to the Merchant Rewards and Offers, including warranties of merchantability or fitness for a particular purpose.
9.6. Termination. Thirdshelf may discontinue a Merchant’s Rewards or Offers at any time, in its sole discretion.
10. Data, Reporting and Analytics
10.1. Thirdshelf provides to Merchants, via the Merchant Console, access to User Data and related reporting and analytics features concerning transactions conducted at the Merchant’s locations, as authorized by Users. The User Data provided to Merchants pursuant to these Merchant Terms includes but is not limited to a detailed User profile (for example their gender, age, location, preferences, wishlist etc.), a history of a User’s transactions (for example the date, time, location, items and amount of each customer’s individual purchases) and the User’s interactions with your loyalty program and your Campaigns (for example the current loyalty status and available Rewards and Offers, the response rate and conversion rates associated specific Campaigns as well as redemption rates and other metrics).
10.2. Thirdshelf collects from all Merchants and makes available to all Merchants, anonymized and aggregated benchmarking information and best practices regarding the loyalty programs, Rewards and Offers and Campaigns that are generated by our Merchants. This data is collected in order to improve the Thirdshelf service, to inform our Merchants on their performance and assist them to improve their performance, and to measure and illustrate the value that our Merchants derive from the Thirdshelf service.
11. Use of the Thirdshelf Platform
11.1. Your use of the Thirdshelf platform, the Thirdshelf Console, and your Thirdshelf Merchant Account, is authorized by Thirdshelf for the limited purposes set forth in these Merchant Terms.
11.2. You represent and warrant that all information provided by you to Thirdshelf is complete and accurate. You agree that the entity identified in connection with your Thirdshelf Merchant Account shall be the only entity using the Thirdshelf platform and Thirdshelf Apps.
11.3. You agree that you will not engage in any of the following activities:
- defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others
- upload, post, email or transmit or otherwise make available any inappropriate, defamatory, infringing, obscene, or unlawful Content
- upload, post, email or transmit or otherwise make available any Content that infringes any patent, trademark, copyright, trade secret or other proprietary right of any party, unless such party is the owner of such rights or has the permission of the owner to post such Content
- upload, post, email or transmit or otherwise make available messages that promote pyramid schemes, chain letters or disruptive commercial messages or advertisements, or that violate Can-Spam Laws, or anything else prohibited by law, these Merchant Terms or any applicable policies or guidelines.
- download any file posted by another that such downloader knows, or reasonably should know, cannot be legally distributed in such manner
- impersonate another person or entity, or falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material
restrict or inhibit any other user from using and enjoying the Thirdshelf platform use Thirdshelf for any illegal or unauthorized purpose
- remove any copyright, trademark or other proprietary rights notices contained in or on Thirdshelf services
- interfere with, disrupt or diminish the quality of Thirdshelf services or servers or networks connected to Thirdshelf services, or disobey any requirements, procedures, policies or regulations of networks connected to Thirdshelf services
- use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of Thirdshelf services or collect information about users for any unauthorized purpose
- submit Content that falsely expresses or implies that such Content is sponsored or endorsed by Thirdshelf
- create user accounts by automated means or under false or fraudulent pretenses
- promote or provide instructional information about illegal activities or promote physical harm or injury against any group or individual
- transmit any viruses, worms, defects, Trojan horses, or any items of a destructive nature
- submit Content that includes personal or identifying information about another person without that person’s explicit consent
- submit Content that is false, deceptive, misleading, deceitful, misinformative, or constitutes “bait and switch”
- submit Content that constitutes or contains any form of advertising or solicitation if posted in areas of the Thirdshelf platform or Thirdshelf App which are not designated for such purposes or send such Content to Thirdshelf Users who have not indicated in writing that it is ok to contact them about other services, products or commercial interests
- and submit Content that includes links to commercial services or web sites, except in areas of the Thirdshelf platform or Thirdshelf App which are designated for such purposes.
11.4. You agree that, to the extent the Thirdshelf platform is used to execute a loyalty program and Campaigns, you shall honor and redeem all Campaigns, Rewards and Offer rightfully earned and/or granted to Users.
12. Marketing and Referrals
12.1. You grant Thirdshelf a limited, non- exclusive license to use your business name, logo, and related information in order to promote your use of Thirdshelf to other Merchants.
12.2. In order to promote the success of your loyalty program and use of Thirdshelf, following deployment at your Merchant locations, Thirdshelf suggests that you engage in all or some of the following marketing initiatives, which Thirdshelf has found to be particularly effective, specifically including the following:
- In-store promotion including stickers on windows, tags on products and posters in store;
- Training staff and employees in-store to effectively promote and explain the benefits of your loyalty program to your customers;
- Email promotion to your existing customer base;
- Online (on your website if applicable) and social media promotion.
12.3. Thirdshelf will assist Merchants to a reasonable degree in planning and coordinating all of the above marketing initiatives. Costs and expenses associated with such marketing initiatives, or other marketing initiatives concerning the use of Thirdshelf at Merchant locations, are to be paid solely by Merchant.
12.4. Referrals. Spread the word about Thirdshelf. If you refer a new merchant to Thirdshelf, you and the Merchant you referred will receive a free month of Thirdshelf service.
13. Payment of Thirdshelf Fees
13.1. One-time setup fees and hardware fees, if applicable, are to be paid upfront, upon submission of an order.
13.2 Merchants will be able to opt between monthly, annual or multi-year subscription plans charged on a monthly or annual basis. Additional service charges invoiced are due and payable upon receipt. If charges are not paid within sixty (60) days of the invoice date, a one and one half percent (1.5%) per month interest charge shall be assessed until date of payment. Thirdshelf retains the right to disable Merchant Accounts and access to the Thirdshelf platform or Thirdshelf App to prevent further use until payments for all charges on an account have been received. Accounts with outstanding balances over ninety (90) days in arrears may be referred for legal collection action.
13.3 Merchant is required to keep a valid credit card on file with Thirdshelf to pay for service charges. At no time does Thirdshelf see or store the credit card information, it is handled by our payment-processing partner.
13.4 All fees are exclusive of all taxes. Taxes imposed by Government agencies, whether based upon the software, its use, or the Agreement, shall be paid by the Merchant. If you or your legal entity are a resident of Canada , you are responsible for all applicable Taxes that arise from or as a result of your subscription. These Taxes are based on the rates applicable to the Canadian billing address you provided to us. Such amounts are in addition to payment for the subscription plan and will be billed to you. If you are exempt from payment of such Taxes, you must provide us with an original certificate that satisfies applicable legal requirements attesting to tax-exempt status. Tax exemption will only apply from and after the date we receive such a certificate.
13.5. Thirdshelf does not provide refunds. You can cancel your Thirdshelf Merchant Account at any time but any prepaid fees are non-refundable and you will be able to access your Merchant Account until the end of your original subscription term.
14. Intellectual Property
14.1. You agree and acknowledge that Thirdshelf owns and retains all ownership of all right, title and interest (including without limitation all copyright, trademark, patent or trade secret rights) in and to the inventions, software, hardware, technology, tools, content, Campaigns, User Data, confidential information, websites, guides, online services, trademarks, logos, data, and other materials related to the Thirdshelf platform and Thirdshelf Apps, other than the Merchant Content, defined above, or otherwise used by us to promote, sell, generate, or distribute the use of the Thirdshelf platform (collectively, the “Thirdshelf Content”). You may use the Thirdshelf Content solely for the purposes of and as specified by these Merchant Terms. Otherwise, Thirdshelf reserves all rights in the Thirdshelf Content, and no licenses or other rights to the Thirdshelf Content are granted to you by your use of the Thirdshelf Platform, or by these Merchant Terms. You shall not prepare any derivative work based on the Thirdshelf Content, nor shall you translate, reverse engineer, decompile or disassemble the Thirdshelf Content.
14.2. The Thirdshelf Content shall include any custom Campaigns created by you using the Thirdshelf Merchant Console tools provided by Thirdshelf. To the extent that you have or at any time acquire any ownership of or rights in any custom Campaigns, any related materials or any copyright, trademark, patent or trade secret rights therein (“Custom Campaign Materials”), you hereby assign to Thirdshelf all of your right, title and interest, including all copyright, trademark, patent or trade secret rights, in and to such Custom Campaign Materials, whether now existing or created in the future.
15. Representations and Warranties
You represent and warrant to Thirdshelf that:
15.1. You have the right, power and authority to enter into this agreement to be bound by these Merchant Terms, including the right to bind your employer if your access to the Thirdshelf platform is undertaken or requested on behalf of your employer, and your execution and performance of these Merchant Terms will not conflict with or violate any agreements or instruments by which you are bound, any applicable law, or any rights of any third party;
15.2. You are registered for sales and use tax collection purposes in all jurisdictions in which your goods and services will be provided pursuant to the use of the Thirdshelf platform and presentation and redemption of associated Campaigns;
15.3. You shall not prevent an authorized Campaign being immediately available for redemption by a User;
15.4. Your use of the Thirdshelf platform, including any discounts or goods and services offered thereunder, will comply with all, and will not violate any, local, state, provincial, federal or international law, statute, rule, regulation or order, including without limitation those governing rewards, incentives, gift cards, coupons or gift certificates; and
15.5. Any advertising or promotion of your products or services relating to the Thirdshelf platform will not constitute, and you will not engage in any, false, deceptive or unfair trade practices.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, (A) THE SOFTWARE AND SERVICES ARE PROVIDED “AS-IS” AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THIRDSHELF AND ITS DIRECTORS, OFFICERS, LICENSORS, SUBCONTRACTORS AND AGENTS (“THIRDSHELF PARTIES”) DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE SOFTWARE AND SERVICES OR OTHERWISE RELATING TO THIS AGREEMENT, INCLUDING WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT AND ACCURACY; (B) NEITHER THIRDSHELF NOR ANY THIRDSHELF PARTY WARRANTS THAT THE SOFTWARE AND SERVICES ARE OR WILL BE ACCURATE, COMPLETE, UNINTERRUPTED, WITHOUT ERROR, OR FREE OF VIRUSES, WORMS, OTHER HARMFUL COMPONENTS, OR OTHER PROGRAM LIMITATIONS; (C) MERCHANT ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION OF PROBLEMS CAUSED BY VIRUSES OR OTHER HARMFUL COMPONENTS, UNLESS SUCH ERRORS OR VIRUSES ARE THE DIRECT RESULT OF THIRDSHELF’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; (D) EACH OF THIRDSHELF AND THE THIRDSHELF PARTIES DISCLAIM AND MAKE NO WARRANTIES OR REPRESENTATIONS AS TO THE ACCURACY, QUALITY, RELIABILITY, SUITABILITY, COMPLETENESS, TRUTHFULNESS, USEFULNESS, OR EFFECTIVENESS OF THE REPORTS, DATA, SCORES, RESULTS OR OTHER INFORMATION OBTAINED, GENERATED OR OTHERWISE RECEIVED BY MERCHANT FROM ACCESSING AND/OR USING THE SOFTWARE AND/OR SERVICES OR OTHERWISE RESULTING FROM THIS AGREEMENT, AND (E) USE OF THE SOFTWARE, SERVICES AND REPORTS IS ENTIRELY AT MERCHANT’S OWN RISK AND THIRDSHELF AND EACH OF THIRDSHELF PARTIES SHALL HAVE NO LIABILITY OR RESPONSIBILITY THEREFOR.
17. Limitation of Liability
17.1. IN NO EVENT WILL WE BE LIABLE OR OBLIGATED TO YOU OR ANY THIRD PARTY IN ANY MANNER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES ON ACCOUNT OF LOST PROFITS, LOST REVENUES OR FAILURE TO REALIZE ANTICIPATED BUSINESS BENEFITS, ARISING IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF THE THIRDSHELF PLATFORM, REGARDLESS OF THE FORM OF ACTION, WHETHER OCCURRING IN CONTRACT, TORT, NEGLIGENCE, STRICT PRODUCT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT WE KNEW THAT SUCH DAMAGES MAY HAVE BEEN INCURRED.
17.2 IN NO EVENT WILL OUR LIABILITY FOR ANY DAMAGES ARISING IN CONNECTION WITH THIS AGREEMENT OR THE THIRDSHELF PLATFORM EXCEED THE PAYMENTS RECEIVED FROM A MERCHANT, IN THE PREVIOUS THREE (3) MONTHS, UNDER THIS AGREEMENT. THIS LIMITATION OF LIABILITY SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WHETHER THE DAMAGES ARISE IN CONTRACT, TORT, NEGLIGENCE, STRICT PRODUCT LIABILITY, OR OTHERWISE, AND NOTWITHSTANDING THE FAILURE OF ANY LIMITED REMEDY.
18.1. You will indemnify and hold harmless Thirdshelf, its affiliated and related entities, and any of their officers, directors, employees and agents (“Company Indemnitees”) against any claims, actions, suits, investigations, proceedings, liabilities, losses, damages, fines, penalties, costs and expenses, including but not limited to attorneys’ fees and costs, in each case as and when incurred (“Damages”), arising out of, relating to, or incurred in connection with, any of the following:
- Your breach or alleged breach of these Merchant Terms, or of your representations, warranties or covenants set forth herein;
- Your failure, or alleged failure, to grant, redeem, or honor a loyalty program or Campaign incentive, Reward or Offer;
- The products or services provided or required to be provided by you, including but not limited to any claims for false advertising, product defects, personal injury, death, or property damages related to your products or services;
- Your failure to maintain your POS or eCommerce integration to the Thirdshelf platform; and
- The User Data and reporting or analytics services provided by Thirdshelf pursuant to User granted permissions, including the completeness or accuracy of such data, your use or misuse of such data, and/or the revocation of any applicable permissions.
18.2 Thirdshelf shall have the right to appoint counsel to defend any claim, action, suit, investigation or proceeding (“Claim”) covered by your indemnification obligations set forth above, at your cost and expense. You shall have no right to control the defense or settlement of any such Claim, and you shall not settle or compromise any such Claim without Thirdshelf’s prior written consent.
In connection with these Merchant Terms, and the actions contemplated hereunder, Thirdshelf and Merchant may disclose to each other certain confidential and proprietary information relating to their respective businesses, customers, suppliers, prices, products, and technologies that is not generally publicly known (“Confidential Information”). Each of us shall keep confidential the expressly designated Confidential Information of the other party, not disclose it to any third party, and not use it except for the purposes contemplated by these Merchant Terms. The obligations of confidentiality herein shall not apply to (a) information in the public domain without fault of the receiving party; (b) information disclosed to the receiving party or in the possession of the receiving party without any breach of any obligation of confidentiality owed by the receiving party or any third party to the disclosing party; (c) information independently developed by the receiving party without use of the Confidential Information of the disclosing party; and (d) information required to be disclosed in order to comply with law.
20.1. These Merchant Terms, as amended from time to time, shall apply until terminated pursuant to this section.
20.2. Thirdshelf reserves the right to terminate this Agreement, and any other agreements you may have with Thirdshelf, to revoke any license(s) granted hereunder, or to revoke access to the Thirdshelf platform for any Merchant, without recourse, for breach of these terms of service or any commercially reasonable purpose. In the event of breach of these terms of service that affect only the Merchant in question or commercially reasonable purposes, notice will be provided and the Merchant will have 30 days to remedy the breach and/or make the necessary arrangements after which Thirdshelf reserves the right to take action with no further notice. In the event of breach of these terms of service that affect other Merchants accounts in addition to the Merchant in question, Thirdshelf reserves the right to take action immediately and the Merchant in question has 10 days to contest the action or remedy the breach to restore service. All accrued rights and remedies granted to Thirdshelf hereunder shall survive any termination of this Agreement.
20.3. Upon the termination of this Agreement for any reason, you agree to immediately cease all use of the Thirdshelf platform, and to erase and destroy all copies, full or partial, of Thirdshelf Confidential Information in your and your authorized users’ possession or control. At Thirdshelf’s request, you agree to provide written certification of such destruction to Thirdshelf. Thirdshelf will not be liable for compensation, indemnity, or damages of any sort as a result of terminating this Agreement in accordance with its terms, and termination of this Agreement will be without prejudice to any other right or remedy Thirdshelf may have, now or in the future.
20.4. You may cancel your use of Thirdshelf at any time without prior written notice to Thirdshelf. If you cancel your use of Thirdshelf and were not charged the full Hardware Fee you will be responsible for returning the Thirdshelf Hardware to Thirdshelf within fourteen (14) days immediately following the cancellation.
22.1. This Agreement represents the entire agreement of the parties as to its subject matter, and supersedes all prior written and oral representations and discussions between the parties. No waiver by any party of a breach of any provision of this Agreement by any other party shall be construed to be a waiver of any succeeding breach of the same or any other covenant or condition. Ambiguities, if any, in this Agreement shall not be construed against any party, irrespective of any rule of construction to the contrary. Thirdshelf shall not be liable for any breach of these Merchant Terms to the extent such breach arises from factors outside Thirdshelf’s reasonable control, including acts of God, acts of terrorism, war, riot, embargoes, acts of civil or military authorities, national disasters, strikes and the like.
22.2 Thirdshelf retains the right to subcontract without Merchant’s consent the Services contracted for in this Agreement to third parties; however, no subcontract will relieve Thirdshelf of its obligations hereunder. Except as provided in the preceding sentence, neither this Agreement nor any rights hereunder may be assigned or otherwise transferred by either party, except to any corporation controlled by or under common control with the assigning party, or in connection with the acquisition of, or the sale of substantially all of, the assets of the business to which this Agreement pertains.
22.3. This Agreement shall be governed by the laws of the Province of Quebec, Canada. All disputes arising out of or relating to this Agreement or the Thirdshelf platform, including without limitation the validity, applicability, and/or enforceability of this provision or any provision herein, shall be governed by the laws of the Province of Quebec, Canada.
22.4. The parties are independent contractors. Except for our right to advertise on your behalf in accordance with these Merchant Terms, this Agreement does not create any joint venture or agency. Neither party has the power or right to bind the other.
22.5. All communications between Merchant and Thirdshelf, and any notices due hereunder, may use electronic means. Merchant: (a) consents to receive communications from Thirdshelf in an electronic form; (b) agrees that all Merchant Terms, agreements, notices, disclosures, and other communications that Thirdshelf provides to you electronically will satisfy any legal requirement that such communications be in writing; and (c) agrees that email sent to the email address on record for your Merchant account will constitute formal written notice under these Merchant Terms.
22.6. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement will remain in full force and effect and will be reformed to be valid and enforceable while reflecting the intent of the parties to the greatest extent permitted by law.
22.7. These Merchant Terms are void where prohibited by law.