THIS END USER AGREEMENT (the "Agreement") made effective as of the registration of the iSharePoint Card (the "Effective Date"):
BETWEEN: iSharePoint INC., a Federally incorporated body, having its place of business at Toronto, in the Province of Ontario, Canada, ("iSharePoint"),
AND: MERCHANT, any and all corporations/businesses having entered into a licensing and services agreement with iSharePoint to use the iSharePoint System, ("The Merchant"),
AND: END USER a customer of the Merchant ("The Customer"),
(each a "party," and collectively, the "parties").
A. iSharePoint is the provider of a reward point system that includes software, hardware, and accompanying card system, applications and processes that provide, among other things, a system which allows for the efficient tracking and management of client loyalty points redeemable at a client's place of business;
B. The Merchant has engaged the Services of iSharePoint to provide the iSharePoint System to their Customers;
C. The Merchant desires to utilize the iSharePoint System to provide a customized rewards program for their Customers, at Approved Locations, as well as the ability to manage their own iSharePoint Account to adjust rewards and to track Customer usage, in exchange for a monthly membership fee paid by the Merchant;
D. The Customer desires to obtain a iSharePoint Card and begin collecting reward points from The Merchant, using the system provided by iSharePoint;
NOW, THEREFORE, in consideration of the mutual promises and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
Section 1.1 Definitions. In addition to certain other terms defined in the Recitals to this Agreement, the following terms shall have the following meanings, respectively:
"Ancillary Agreements" shall mean collectively this Agreement, the Services Agreement and any other agreements which may be necessary.
"Approved Location" shall mean a client's business location that has been approved by iSharePoint an appropriate location to install and use.
"Confidential Information" of a party shall mean any and all confidential or proprietary information retained in any format or medium of, or concerning, such party (including its Affiliates, customers and clients), including without limitation trade secrets, commercial, financial, technical information, pricing, customer or client lists, software, technology, programs, procedures, data, documents, computer information and databases, business plans, architecture documents, budget forecasts, business arrangements, information regarding specific transactions, financial information and estimates, and long-term plans and goals. Confidential Information of iSharePoint shall also include without limitation the Documentation, the Data and all other information relating to the iSharePoint System. Confidential Information shall exclude information that a Receiving Party can demonstrate was (a) at the time of such disclosure to the Receiving Party already in (or thereafter enters) the public domain other than as a result of actions of the Receiving Party or its Personnel in violation hereof; (b) rightfully known to the Receiving Party prior to the date of disclosure to the Receiving Party; (c) independently developed by the Receiving Party without any use of or reference to the disclosed information as demonstrated by company documentation; or (d) received by the Receiving Party on an unrestricted basis from a source unrelated to any party to this Agreement and not under a duty of confidentiality to the other party.
"Dispute" shall mean any dispute as between the Customer and the Merchant with respect to collected points or the iSharePoint System.
"Documentation" shall mean that portion of the iSharePoint System consisting of all user guides, operation manuals and descriptions in connection with any aspect of the iSharePoint System.
"iSharePoint Card" shall mean that portion of the iSharePoint System consisting of the smart card.
"iSharePoint Software" shall mean that portion of the iSharePoint System consisting of the software developed and protected by iSharePoint to allow the iSharePoint System to function.
"iSharePoint App" shall mean that portion of the iSharePoint Software which the Customer and Merchant will interact with at the Approved location, or through their mobile device.
"End Users" shall mean the Customers and Clients of the Merchants accepting the terms and conditions herein who interact with the iSharePoint System for the purpose of collecting rewards points with The Merchant.
"Fees" shall have the meanings set forth in Article IV.
"Infrastructure Hardware" shall mean that portion of the iSharePoint System consisting of the infrastructure hardware.
"Intellectual Property" means intellectual property of whatever nature and kind, including all domestic and foreign trademarks, business names, trade names, domain names, trading styles, logos, patents, trade secrets, industrial designs and copyrights, whether registered or unregistered, and all applications for registration renewals, modifications and extensions thereof, and inventions, formulae, product formulations, processes and processing methods, technology and techniques, know-how, trade secrets, research and technical data, studies, finding, algorithms, instructions, guides, manuals and designs, in all cases whether patented and patentable and whether or not fixed in any medium whatsoever.
"Membership Fee"shall mean the fee that is charged on an annual basis for The Merchant's use of the iSharePoint System
"Membership / Member"shall mean the Customers who agree to the terms and conditions of this Agreement for the term set out herein.
"Personal Information" shall mean all information that is about an identifiable individual pursuant to any laws or regulations related to privacy or data protection that are applicable to iSharePoint, including without limitation any information that constitutes "personal information" as such term is defined, from time to time, pursuant to the Access to Information and Protection of Privacy Act (NL) and the Personal Information Protection and Electronic Documents Act (Canada).
"Personnel" shall have the meaning set forth in Section 5.1.
"iSharePoint Services" shall have the meaning set forth in Section 2.1.
"Term" shall have the meaning set forth in Section 3.6.
Section 2.1 iSharePoint Services. Subject to the terms and conditions of this Agreement, The Merchant shall provide a loyalty rewards program to the Customer based on a point collection concept (iSharePoint, at their Approved Locations, using the iSharePoint Software and Hardware which has been supplied to the Merchant subject to the licensing and services agreement with iSharePoint (the "iSharePoint Services");
Section 2.2 Collection of iSharePoint. The Customer shall collect points through the iSharePoint System on a "per transaction" basis, not based on value of a transaction. The iSharePoint System shall record and maintain the collected points of the customer;
Section 2.3 Redemption of iSharePoint. The Merchant shall honour the redemption of iSharePoint from the Customer, provided the reward sought by the Customer is offered by the Merchant through the iSharePoint System;
Section 3.1 Membership. The Customer agrees to become a member of the iSharePoint System by virtue of acquiring and using a iSharePoint Card and through interacting with the iSharePoint App. Each Customer shall register their iSharePoint Card and membership through the iSharePoint App before acquiring any iSharePoint.
Section 3.2 Use of iSharePoint Card and iSharePoint App. The iSharePoint Card shall be usable at any client of iSharePoint offering the iSharePoint System, through the use of the iSharePoint App. Points collected are specific to each Merchant and are not transferable to another business's rewards program through the iSharePoint System. For clarity, points earned at Merchant ABC cannot be redeemed for a reward at Merchant XYZ, however the iSharePoint Card and Software will keep track of the Customer's earned points at each Merchant separately and simultaneously. The iSharePoint Card and App shall only be used at an Approved Location so long as the Merchant remains a client of iSharePoint.
Section 3.3 Rewards. The loyalty rewards which Customers may collect upon redeeming earned iSharePoint are offered by The Merchant to the Customer. iSharePoint does not provide any rewards directly to Customers, nor does it have any obligation to provide rewards advertised or promised by Clients to Customers. For further clarity, The iSharePoint System, consisting of the iSharePoint Card and iSharePoint App provides the necessary software and hardware for the Merchant to provide their own reward incentives. Any rewards offered and claimed through the use of the iSharePoint System remains an obligation as between The Merchant and the Customer.
Section 3.4 Registration of Members. Upon acquiring a iSharePoint Card a customer shall register their account with iSharePoint, through the iSharePoint App, either on their mobile device or using the iSharePoint hardware at the Approved Location. Once a Customer has registered a iSharePoint Card to their name, this allows for The Merchant or iSharePoint to retrieve the Customer's information, including the balance of collected iSharePoint. If the iSharePoint Card is lost or misplaced the Customer will have the ability to have a new card created with access to their ongoing points collection data.
Section 3.5 Cash Value of Points. The iSharePoint are not redeemable for any cash value.
Section 3.6 Term of Membership. The term of membership in the iSharePoint System by the Customer shall endure until such earlier time as (a) The Merchant terminates their Licensing and Services Agreement with iSharePoint or (b) the Customer cancels and terminates their membership pursuant to Section 3.7 below or (c) The Merchant or iSharePoint cancel and terminate the Customer's membership pursuant to Section 3.7 below. iSharePoint do not expire, however, if a customer has a balance of iSharePoint with a Merchant at the time The Merchant terminates their relationship with iSharePoint, the said balance shall be lost with no redeemable cash value. Any dispute as to redemption of iSharePoint collected shall be between the Merchant and the Customer. If at any point iSharePoint alters the terms and conditions of this Agreement pursuant to Section 7.9, the Merchant and Customer shall be given an opportunity to accept the new terms and conditions on their next use of the iSharePoint System. If the Merchant or Customer do not accept the new Terms and Conditions, then the Customer's membership term and/or the Merchant's licensing term shall be terminated.
Section 3.7 Cancellation of Membership. The Customer may at their discretion cancel their membership with iSharePoint, however, any and all points collected shall be forfeited by the Customer upon cancellation. The Merchant and iSharePoint reserve the right to cancel a Customer's membership and void a iSharePoint Card, as well as the right to void collected iSharePoint, based on misuse or tampering with the iSharePoint System by the Customer.
Section 3.8 Site. The Customer may only use the iSharePoint Card at such locations as have been approved by iSharePoint and for which a Fee has been paid by The Merchant. Neither iSharePoint, nor The Merchant represent that every location The Merchant operates will allow for the collection or redemption of iSharePoint for rewards.
Section 3.9 Lost Cards. The Customer is solely responsible for safe guarding their personal iSharePoint Card. A iSharePoint Card can be used by anyone, and neither iSharePoint, nor the Merchant shall be responsible for any unauthorized use of a iSharePoint Card. In the event that the Customer loses a iSharePoint Card, or suspects a iSharePoint Card has been stolen, the Customer may at their discretion cancel and void that card through the iSharePoint App to prevent any unauthorized use of the card and or collected points. It is not the responsibility of iSharePoint or the Merchant to cancel lost or stolen cards.
Section 4.1 Fees. There are no associated fees with Membership or use of the iSharePoint Card or iSharePoint App for the Customer. The Merchant has agreed to pay a monthly fee to iSharePoint to license and use the iSharePoint System.
Section 5.1 Confidentiality. Each party agrees that, during and after the Term, such party shall maintain in confidence all Confidential Information of the other party, and shall not, unless expressly agreed to by the disclosing party in advance of such disclosure, disclose any Confidential Information to any third party, or use any Confidential Information for any purpose whatsoever except as contemplated by this Agreement. In maintaining the confidentiality of Confidential Information of the other party, each party shall exercise the same degree of care that it exercises with its own Confidential Information and in no event less than a reasonable degree of care. Without limiting its obligation to maintain the confidentiality of the Confidential Information of the other party, each party shall use commercially reasonable efforts to ensure that each of its directors, officers, employees, independent contractors, subcontractors, consultants and agents (collectively, "Personnel") holds in confidence and makes no use of any Confidential Information of the other party for any purpose other than those permitted by this Agreement. Each party shall use its best efforts to ensure that no person other than its Personnel shall have access to Confidential Information of the other party without the prior written consent of the other party, and shall restrict access to such Confidential Information to those of its Personnel having a need for access thereto.
Section 5.2 Exceptions. The obligation of confidentiality contained in this Agreement shall not apply to the extent that either party (the "Receiving Party") is required to disclose Confidential Information by law, order or regulation of a governmental agency or a regulatory authority having jurisdiction over that party or a court of competent jurisdiction; provided, however, that such party shall not make any such disclosure without first notifying the other party and allowing the other party a reasonable opportunity to seek injunctive relief from, or a protective order with respect to, the obligation to make such disclosure.
Section 5.3 Unauthorized Disclosure. Each party acknowledges and confirms that the Confidential Information of the other party constitutes proprietary information and trade secrets valuable to the other party, and that the unauthorized use, loss or outside disclosure of such Confidential Information shall cause irreparable injury to the other party. Each party shall notify the other party immediately upon discovery of any unauthorized use or disclosure of Confidential Information, and shall cooperate with the other party in every reasonable way to help regain possession of such Confidential Information and to prevent its further unauthorized use. Each party acknowledges that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential Information of the other party and that the other party shall be entitled, without waiving other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction. Each party shall be entitled to recover reasonable legal fees for any action arising out of or relating to a disclosure of Confidential Information of such party by the other party.
Section 5.4 Return of Information. Without prejudice to any other rights provided herein, upon termination of this Agreement, each party shall return to the other party all Confidential Information of the other party in its possession or control or, with the permission of the other party, destroy such Confidential Information, including any copies or reproductions thereof in any format or medium, with the exception of any information collected through the iSharePoint System which is not directly linked to any party's Confidential Information, however does provide data with respect to anonymous usage.
Section 5.5 Privacy. The parties agree to comply with all privacy and data protection laws, rules and regulations that are or may in future be applicable to this Agreement (it being understood that if laws, rules or regulations are enacted or amended after the signature of this Agreement, the iSharePoint System may have to be modified and/or enhanced to comply with the same, in which case, the parties shall enter into good faith negotiations to identify the scope of the modifications and/or enhancement required, the feasibility and the fees associated with such modifications and/or enhancements). It is understood and agreed by the parties that iSharePoint may collect from The Merchant/Customer, use and/or disclose Personal Information obtained by The Merchant in providing the Services or in determining the success of the iSharePoint System. Except as expressly stated herein, iSharePoint agrees not to use (other than for its own internal needs) and/or disclose and/or sell Personal Information to any other person or entity.
Section 5.6 Loss of Data. iSharePoint shall have no liability for, and The Merchant shall indemnify iSharePoint against, any injury or loss arising or resulting from disclosure or loss of data or information caused by or related to unauthorized entry or access to the iSharePoint System installed at any of the Approved Locations except to the extent caused by the failure of the iSharePoint Software to perform the functionalities set forth. In addition, The Merchant agrees to maintain a secure internet connection for the protection of all data collected and used by the iSharePoint System.
Section 5.7 Use of Data. The Merchant agrees that it will not use any information collected from their Customers through the iSharePoint System for any purpose besides assessing the success of the iSharePoint System, or adjustments to the current reward/loyalty offerings by The Merchant, or for general internal business analysis. The Merchant expressly agrees to not sell or distribute any Personal Information collected by their customers or clients obtained through the iSharePoint System.
Section 6.1 Mutual Representations. Each party hereby represents and warrants to the other party as follows:
(a) Due Authorization. The execution, delivery and performance of this Agreement by such party have been duly authorized by all necessary actions by such party.
(b) Due Execution. This Agreement has been entered into by the parties upon the Customer acquiring a iSharePoint Card from a Client or iSharePoint and registering the card using the iSharePoint App.
Section 6.2 Disclaimer. Except as expressly set forth in this Agreement, iSharePoint makes no representations or warranties, either express or implied, with respect to the iSharePoint System, including without limitation any implied warranty of merchantability or fitness for a particular purpose, or arising from course of performance or course of dealing, or that the iSharePoint System will provide error-free or uninterrupted functionality. Furthermore, iSharePoint repeats that it is not responsible for lost cards, and any loss incurred by the Customer or Client as a result of that loss including unauthorized use of the card or use of the associated collected points.
Section 6.3 Limitation on Liability. Notwithstanding any other provision contained herein, in no event shall iSharePoint be liable for any of the following arising out of or related to this Agreement: (a) special, indirect, incidental, punitive, consequential damages or loss of profit, loss of data, business interruption, loss of use, loss of revenues whether in contract or tort, even if iSharePoint has been advised of the possibility of such damages, including but not limited to any claims made by Customers for redemption of points collected against The Merchant through the iSharePoint System; and (b) except for breach of the confidentiality and privacy obligations set forth in 5.1, any damages, losses or injuries under any claim or theory of action whatsoever under the Ancillary Agreements.
Section 7.1 Governing Law and Venue. In any action or proceeding arising out of or relating to this Agreement or for recognition or enforcement of any judgment arising out of or relating to this Agreement, this Agreement shall be governed by and interpreted in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein and each of the parties hereto agrees irrevocably to conform to the nonexclusive jurisdiction of the courts of such Province.
Section 7.2 Entire Agreement. The Ancillary Agreements constitute and embody the entire agreement between the parties regarding its subject matter, supersedes all prior proposals, agreements and understanding between the parties, whether oral or written, and may not be amended or modified in any respect except by written instrument signed by the parties hereto. The execution of this Agreement has not been induced by, nor do any of the parties rely upon or regard as material, any representations or writings whatever not incorporated herein and made a part hereof. The exhibits referred to in this Agreement are incorporated herein to the same extent as if set forth in full in this Agreement. In the event of any inconsistency between any exhibit and the main body of this Agreement, the terms and conditions of the main body shall prevail unless otherwise expressly provided to the contrary in such exhibit.
Section 7.3 Currency. Unless otherwise provided for herein, all monetary amounts referred to herein shall refer to the lawful money of Canada.
Section 7.4 Headings for Convenience Only. The division of this agreement into articles and sections is for convenience of reference only and shall not affect the interpretation or construction of this Agreement.
Section 7.5 Gender. In this Agreement, words importing the singular number shall include the plural and vice versa, and words importing the use of any gender shall include the masculine, feminine and neuter genders and the word "person" shall include an individual, a trust, a partnership, a body corporate, an association or other incorporated or unincorporated organization or entity.
Section 7.6 Calculation of Time. When calculating the period of time within which or following which any act is to be done or step taken pursuant to this Agreement, the date which is the reference date in calculating such period shall be excluded. If the last day of such period is not a business day in Toronto, ON, then the time period in question shall end on the first business day following such nonbusiness day.
Section 7.7 Legislation References. Any reference in this Agreement to any regulation, order or act of any government, governmental body or other regulatory body shall be construed as a reference thereto as amended or reenacted from time to time or as a reference to any successor thereto.
Section 7.8 Electronic Transmission. The parties agree that this Agreement may be transmitted by facsimile or such similar device and that the reproduction of signatures by way of telecopy or electronic mail in personal document format (PDF) devices will be treated as binding as if originals, and each party undertakes to provide the other party with a copy of this Agreement bearing original signatures forthwith upon demand.
Section 7.9 Changes to the Terms. iSharePoint reserves the right to unilaterally and in their sole discretion change or alter this End User Agreement from time to time. iSharePoint shall inform the Merchant and End User of any changes by posting the updated Agreement on the iSharePoint website, and through an email notification which shall ask the Merchant and End User to review the changes to the terms. The continued use of the iSharePoint System after the time the changes are communicated as set out in this section will indicate the Merchant and End User's acceptance of the End User Agreement, including those changes.