Merchant Terms and Conditions

SCVNGR, Inc., doing business as LevelUp (“we” or “Company” or “LevelUp”) provides retail Merchants (also “Client” or “you”) access to the LevelUp mobile payment and customer engagement platform (“LevelUp platform”) subject to your acceptance of and compliance with the following LevelUp Merchant Terms and Conditions (“Merchant Terms”).

1. Scope and Definitions

1.1. LevelUp authorizes your use of the LevelUp platform, and the LevelUp Merchant Dashboard web interface, strictly for the purpose of enabling customers to initiate transactions with LevelUp using LevelUp Apps at your points of sale (“POS”), and/or online points of sale (“Online POS”), and for the development, implementation, execution, tracking, and/or management of promotional and marketing Campaigns executed through LevelUp Apps as set forth in these Terms. By accessing and utilizing the LevelUp platform and Dashboard, 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 LevelUp from time to time, constitute a complete and binding legal agreement between you and LevelUp. THESE MERCHANT TERMS INCLUDE AN ARBITRATION CLAUSE UNDER WHICH CERTAIN CLAIMS MAY NOT BE BROUGHT IN COURT OR DECIDED BY A JURY.

1.2. LevelUp reserves the right to change, update or otherwise alter these Merchant Terms at any time by posting the updated terms on the LevelUp website. All changes are effective immediately. It shall remain your responsibility to monitor these Merchant Terms for changes. Your continued use of the LevelUp 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 LevelUp platform and notify LevelUp of your termination of this Agreement. In the event of a conflict between these Merchant Terms and any other content provided to you by LevelUp, unless specifically provided otherwise, these Merchant Terms shall govern.

1.3. Definitions. In addition to the terms defined in parentheses throughout these Merchant Terms, the following terms shall mean:

• 1.3.1. "LevelUp 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 LevelUp and the application’s User to access the LevelUp platform, including without limitation by securely requesting and receiving payment tokens and/or accessing User Data, in whole or in part.
• 1.3.2. "Campaigns" means marketing initiatives, programs, or strategies to attract new or existing LevelUp Users to your locations, which may include Users earning and/or redeeming Campaign Credit in various ways
• 1.3.3. "Campaign Credit" means incentives, rewards, discounts, points, and/or credits offered to Users by Merchants, which can be earned, claimed, and/or redeemed by Users for goods and/or services, and/or applied as payment, in whole or in part, for goods and/or services, at the Merchant’s POS or Online POS, via the LevelUp platform
• 1.3.4. "User" means individuals having an established LevelUp user account who have accepted the LevelUp User Terms of Service (https://www.thelevelup.com/user-terms) ("User Terms"). Users may initiate payments, and earn and redeem Campaign Credit, via the LevelUp platform using a LevelUp App and/or through a LevelUp Online POS.
• 1.3.5. "User Credit" means incentives, rewards, discounts, and/or credit, other than Campaign Credit, granted to a LevelUp user by a party other than the redeeming Merchant, that may be applied toward the purchase of merchant goods and/or services at a Merchant’s POS or Online POS, via the LevelUp platform.
• 1.3.6. "User Data" means all data collected by LevelUp in operating and otherwise concerning the use of the LevelUp platform by Users, other than User or Merchant payment instrument or payment account information.
• 1.3.7. "Gift Card Credit" means value prepaid to Merchant or LevelUp by or on behalf of a User in connection with the provisions of these Merchant Terms (including Section 8) and the LevelUp User Terms (including Sections 9 and 10).
• 1.3.8. "Net Sales Proceeds" means the total amount of a LevelUp transaction, inclusive of applicable sales tax, initiated by a User using a LevelUp App at your POS or Online POS location, after subtracting applicable fees to LevelUp (including Transaction Fees and Campaign Fees), and applied Campaign Credit and Merchant Gift Card Credit.

2. POS Hardware, Integrations & Installation

2.1. Upon your acceptance of these terms and LevelUp’s review and approval of your agreement, LevelUp will offer to you the option to purchase LevelUp hardware (including LevelUp Scanners, Beacons, and other related Hardware) required for you to begin accepting LevelUp transactions and engaging in marketing Campaigns with, LevelUp Users at your POS. Fees for LevelUp Hardware will be specified by your LevelUp representative and/or in an agreement with LevelUp incorporating these Merchant Terms.

2.2. One LevelUp Scanner will be required for each physical POS integrated to the LevelUp platform. Alternatively, non-traditional LevelUp hardware arrangements, including stand-alone or wireless scanning hardware, may be available upon inquiry to LevelUp at additional cost.

2.3. LevelUp hardware may not be modified, obscured, branded, decorated, or altered in any way and must be placed in a prominent appropriate location at Merchant’s POS to facilitate ease of consumer use.

2.4. LevelUp warrants that each LevelUp Scanner will perform according to written specifications for a period of two (2) years from the date of delivery to a Merchant location (“Hardware Warranty Period”). LevelUp will promptly (and in no event later than 5 business days) replace, at no cost to Merchant, any LevelUp Scanner that fails to operate in accordance with written specifications within the Hardware Warranty Period. After the Hardware Warranty Period, LevelUp will provide replacement hardware to Merchant at standard rates. Damaged hardware must be returned to LevelUp, in return-shipping packaging to be provided by LevelUp upon request, within ten (10) days of replacement.

2.5. If you are using a POS system that presently supports a LevelUp platform integration, LevelUp grants you during the term of this Agreement a limited, royalty-free, non-exclusive, non-transferable license to the latest software solely for the purpose of powering such integration to the LevelUp platform (“POS software”) in order to permit LevelUp transactions and engage and execute marketing Campaigns, free of charge, subject to the license terms contained herein. LevelUp, or such third parties as may be specifically identified within portions of the POS software, owns all legal right, title and interest in and to the POS software, and any updates to same that may be released in the future by LevelUp, including any intellectual property rights (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, LevelUp reserves all such rights.

2.6. Many POS integrations may be self-installed by Merchant via instructions provided at https://setup.thelevelup.com/. LevelUp will support, but is not responsible for, the physical installation or setup of any POS integration with LevelUp Scanners. LevelUp is not responsible for any fees imposed by your POS provider, dealer, or other third party as a result of such integration, such as license fees, or professional services fees. LevelUp does not warrant compatibility of the LevelUp platform or with any POS system other than the presently supported POS systems (a list of currently available POS integrations is available at https://enterprise.grubhub.com/branded-channel). You are required to properly maintain the LevelUp software supporting your POS integration, including but not limited to performing all POS 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 POS system.

2.7. Once LevelUp POS software is installed on your POS system, you authorize LevelUp to remotely access your POS system for the purposes of general maintenance, issue resolution, communication, and/or upgrades using software tools including the LogMeIn program (“LogMeIn”) and the TeamViewer program (“TeamViewer”). Merchant agrees to keep all LevelUp LogMeIn and TeamViewer account and password information strictly confidential and further to limit those employees of Merchant who may access such information. You agree to indemnify and hold harmless LevelUp for any loss resulting from another's use of any LevelUp LogMeIn and TeamViewer password or account, as may be applicable, either with or without your knowledge

3. LevelUp Transactions; Payments From LevelUp; No Chargeback Guarantee

3.1. In order for LevelUp to make payments to you for User transactions conducted via the LevelUp platform, and for you to create and execute LevelUp Campaigns, LevelUp requires that you provide complete identifying information, including without limitation a Federal Employer or Tax ID Number of your business, as well as account information for a valid financial account connected to the ACH network. LevelUp will maintain the security of your account information using a third-party provider. LevelUp does not share your personal, business, or bank account information. You represent and warrant that all information provided by you to LevelUp in connection with your application for a LevelUp 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 agreement with LevelUp, without limitation to other available remedies. LevelUp reserves the right to reject a Merchant application for a LevelUp account for any reason.

3.2. For transactions initiated by a LevelUp App at your POS, or using a LevelUp User Account at any Online POS, LevelUp pays you the Net Sales Proceeds as follows:

• 3.2.1. LevelUp pays you all Net Sales Proceeds on the next business day following the transaction via direct deposit to the bank account associated with your established LevelUp account via the ACH network. Payment cycles begin and end at 5:00 a.m. Eastern Time. LevelUp submits payments shortly after the payment cycle has ended. Transfers typically take 24 hours to arrive in your associated bank account. Some banks may take longer than 24 hours to process payments, particularly on weekends and holidays. You hereby authorize these payments.
• 3.2.2. If, in our determination, you have not provided the goods or services to the User in connection with the LevelUp transaction, or otherwise violated these Merchant Terms in connection with a submitted transaction, you agree that LevelUp shall have the right to withhold and not to pay you such Net Sales Proceeds in connection with said transaction, and/or to collect a refund from you via cancellation of an ACH payment or ACH debit to your account following a distribution of Net Sales Proceeds, or to deduct such amount of Net Sales Proceeds from future deposits to your account.

3.3. No Charge-Back Guarantee; Limitations. LevelUp's unique security model means that when we approve a LevelUp transaction, we mean it. To the extent that LevelUp receives a chargeback from a LevelUp User for any transaction approved by LevelUp at your POS or Online POS, LevelUp will not seek reimbursement from you.

• 3.3.1. LevelUp’s No Chargeback Guarantee shall not apply to a transaction in which Merchant or a Merchant employee actively commits or colludes to commit fraud against LevelUp, a User, or any credit card holder or issuer, by utilizing the LevelUp platform and/or any LevelUp App.
• 3.3.2. LevelUp’s No Chargeback Guarantee shall not apply to transactions that exceed the standard transaction limit imposed by LevelUp pursuant to these Terms (initially $100.00), to the extent Merchant requests and is approved by LevelUp to exceed such standard transaction limit
• 3.3.3. LevelUp’s No Chargeback Guarantee does not apply to purchases of Gift Cards

3.4. In addition to the above requirements, you agree to the following conditions concerning the submission of transactions to LevelUp:

• 3.4.1. You agree that the entity identified to LevelUp in connection with the establishment of your LevelUp account shall be the only entity for which LevelUp transactions are submitted, and for which payments are accepted from LevelUp via the LevelUp platform. You are not authorized to submit LevelUp transactions or accept payments from LevelUp on behalf of a third party.
• 3.4.2. You agree that, to the extent the LevelUp platform is used by Users at your POS or Online POS locations to initiate transactions, you shall submit transactions to LevelUp only for goods and/or services actually delivered or provided by you in the ordinary course of your business, as described by you to LevelUp in the application and registration process, or as updated from time to time by contacting LevelUp. You are required to notify LevelUp of any material change or expansion in the nature of goods and services offered by your business.
• 3.4.3. You shall not use the LevelUp platform for the purpose of transactions accepting security or payment for loans, providing cash advances, check cashing, or otherwise distributing cash to any person or entity. You warrant to LevelUp that you comply with all applicable laws and regulations concerning the prevention of money laundering and/or funding of terrorist organizations.
• 3.4.4. You shall not use the LevelUp platform for transactions in connection with any illegal activity, in violation of any federal, state, or local law, or in connection with any lottery or gambling activity
• 3.4.5. You agree to comply with any individual transaction amount limits imposed by LevelUp, which will initially be set to one hundred ($100.00) dollars per transaction (or to a series of transactions by the same User within a 24-hour period), and not to attempt to circumvent such individual transaction limits by “structuring” transactions, or breaking a large transaction amount into multiple smaller transaction amounts.
• 3.4.6. You agree that you will immediately notify LevelUp of any actual or suspected unauthorized use, fraud, violations of any state or federal laws or regulations, or other breach of these Merchant Terms or LevelUp’s User Terms by any User;
• 3.4.7. You agree to ensure that none of your employees or agents requests that a LevelUp User divulge their credit or debit card account number, PIN number, or other personal identifying information such as address, telephone number, email address, or name, in connection with or as a condition to any LevelUp transaction, unless specifically instructed by LevelUp Support.

3.5. User Transaction Monthly Billing. LevelUp employs a number of business strategies to continue to lower our costs associated with enabling the LevelUp platform to be used by Users to initiate LevelUp transactions at your locations. In order to be eligible for the low LevelUp Transaction Fee charged by LevelUp, you agree to support such strategies. One such strategy is the practice of "bundling" (grouping User LevelUp transactions together to be billed to Users by LevelUp as a recurring monthly charge to avoid LevelUp incurring multiple swipe fees). LevelUp currently bundles Users’ transactions according to User-granted permissions and the applicable User Terms, based on proprietary algorithms used to predict risk and frequency of use. LevelUp reserves the right to group LevelUp Users’ transactions into payment bundles at any time, and to change our bundling algorithms at any time, without notice to Merchant or User. As a Merchant, you will always be paid by LevelUp for LevelUp transactions on the next business day after the transaction, regardless of LevelUp’s bundling strategy and independent of LevelUp’s charge to the User. LevelUp holds the risk associated with LevelUp's inability to collect User funds at a later time in accordance with these Merchant Terms.

4. LevelUp Campaigns

4.1. LevelUp offers a series of highly customizable, pre-built Campaign structures that can be selected, modified, and implemented by you, via the LevelUp Merchant Dashboard interface, at no additional cost beyond the Campaign Fee specified by your LevelUp representative and/or set forth in your agreement with LevelUp. The Campaign Fee may be monthly or based on redeemed Campaign Credit, or a combination of both. You have complete control over your Campaign strategy. You can choose to run as many, or as few, Campaigns as you'd like, via the LevelUp platform.

4.2. You are not restricted to the existing, pre-built LevelUp Campaign structures, rather most any Campaign construct can be built within the LevelUp platform (“Custom Campaigns”). Custom Campaign constructs can be built by Merchant and/or Merchant’s engineering team through LevelUp’s API, or Merchant can hire LevelUp’s designers and engineers to build a customized Campaign. The costs for developing, deploying and testing custom Campaign constructs will vary based on complexity, and are beyond the scope of this Agreement. LevelUp hereby grants a limited, non-exclusive license for you to use the LevelUp Campaigns API solely for the purpose of building Custom Campaigns, subject to these Merchant Terms and LevelUp’s Developer Terms of Use: (https://www.thelevelup.com/developer-terms).

4.3. You are required to honor and redeem all Campaign Credit rightfully earned by Users as part of your selected and offered Campaigns, and agree that LevelUp shall provide Users with the earned Campaign Credit, and apply redeemed Campaign Credit to transaction amounts at the time of a transaction as set forth in these Merchant Terms. You are responsible for providing to Users all goods and/or services that are promised under 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 any Campaign Credit.

4.4. You agree that in providing goods and/or services to LevelUp Users, you will not impose any restrictions on redemption, award, or application of Campaign Credit, or any extra fees, charges or conditions that contradict these Merchant Terms and/or the terms established by you and/or LevelUp in connection with any individual Campaign

4.5. You authorize LevelUp to advertise your Campaigns to Users via LevelUp channels including through any LevelUp App and through third-party applications that publicize offers and Campaigns available on the LevelUp platform. When LevelUp advertises Campaigns, and related Campaign Credit (including rewards and incentives) associated with your use of the LevelUp platform, including within a LevelUp app, we do so as your marketing service. You retain the legal obligation to award, redeem, and/or apply Campaign Credit to Users’ purchases of goods and/or services as promised to Users. You grant LevelUp a limited, non-exclusive license to use your business name, logo, and related information in order to promote your use of LevelUp to Users, including in LevelUp Apps.

4.6. All Campaigns run on the LevelUp platform, including the manner in which User Credit is awarded, redeemed, and applied, must comply with all applicable federal, state, and local laws and regulations, including laws governing the sale of alcoholic beverages. The Redemption or application of Campaign Credit for alcoholic beverages is at the sole discretion and responsibility of the Merchant. Merchants are solely responsible for ensuring that Campaigns enabled by Merchant comply with laws and regulations applicable to Merchant’s business. LevelUp reserves the right to discontinue support for any Campaign at any time, for any reason

4.7. Groupon Campaigns. LevelUp enables Merchants to run LevelUp Campaigns integrated to Groupon’s voucher marketing service, whereby new customers may purchase Groupon vouchers, redeem Groupon vouchers to their LevelUp accounts within a LevelUp App, and spend the Paid-in Value and Promotional Value redeemed from a Groupon voucher simply by scanning their LevelUp QR code at your POS (“Groupon Campaigns”). Groupon Campaigns via LevelUp must be contracted for directly with Groupon, and may be initiated through the LevelUp Merchant Dashboard. Once a Groupon voucher is redeemed by a LevelUp User via a LevelUp App, the portion of value paid by the User for the Groupon Voucher (“Paid-in Value”) shall be converted to Gift Card Credit of the Merchant within the LevelUp platform, and the Groupon rewards or promotional value over and above the paid-in value offered by the Merchant (“Promotional Value”) shall be converted to Campaign Credit of the Merchant and may be restricted or expire according to the Merchant’s terms as disclosed to the User by Merchant or Groupon. Once redeemed via a LevelUp App, all Paid-in Value and Promotional Value become financial obligations of the Merchant, and only the Merchant, to be administered by LevelUp, and cease to be financial obligations of Groupon. LevelUp’s standard Campaign Fee does not apply to Groupon Campaigns. Groupon and LevelUp are independent service providers. LevelUp is not responsible for, and makes no representations or warranties concerning, Groupon’s performance or accounting for Groupon’s voucher marketing service

5. LevelUp Fees; Payment Terms.

LevelUp charges only the following fees as specified by your LevelUp representative or in your agreement with LevelUp:

5.1. LevelUp charges a Hardware Fee in connection with the delivery of LevelUp POS Hardware selected by you (“Hardware Fee”). LevelUp may also charge a one-time setup fee in connection with the installation of POS hardware at each Merchant location (“Setup Fee”). LevelUp collects Hardware Fees and Setup Fees on the first of each month following delivery of Hardware, unless specified otherwise in an SOW.

5.2. LevelUp charges a transaction fee, to be set by your LevelUp sales representative upon establishment of your LevelUp Merchant Account, on the total value of each transaction made by a User with the LevelUp platform (“Transaction Fee”). Transaction Fees are deducted from Net Sales Proceeds pursuant to Section 3.2.

5.3. LevelUp may charge a monthly fee per location for access to the LevelUp platform and for unlimited access to the LevelUp platform and a specified set of LevelUp Campaigns (“Platform Fee”). LevelUp collects Platform Fees once monthly, on the first of each month. A specified Platform Fee applies to each Merchant location beginning thirty (30) days after the execution of an agreement incorporating these terms

5.4. In addition to the standard Transaction Fee and Platform Fee, LevelUp may charge a fee for Custom Campaigns, calculated as a as a percentage for every dollar of Merchant Campaign Credit redeemed through your Custom Campaigns (“Custom Campaign Fee”). Custom Campaign Fees are deducted from Net Sales Proceeds pursuant to Section 3.2.

5.5. To the extent you have agreed with LevelUp for the provision of additional or alternative services, any additional or alternative fees will be charged on a monthly basis (or such other regular interval as agreed) (“Other Fees”).

5.6. Payment Terms. LevelUp shall collect Platform Fees, Hardware Fees, Setup Fees, Other Fees, and other monthly and one-time Fees as specified in any any agreement incorporating these terms, as applicable, when due to LevelUp via direct ACH debit to a United States bank account designated by Merchant for the payment of such fees. If no account is so designated, or if the applicable Fees become thirty (30) days past due, LevelUp may issue an ACH debit to the United States bank account specified for the payment of Net Sales Proceeds pursuant to Section 3.2, and/or offset such fees against Net Sales Proceeds. Merchant hereby authorizes these ACH transfers as payment to LevelUp.

5.7. Late Fees. In the event that any fees due to LevelUp under any agreement, including these Merchant Terms, become more than thirty (30) days past due, the fees will accrue interest at the rate of one percent (1%) per month until paid to LevelUp and/or collected by LevelUp.

6. Data Reporting and Analytics

6.1. LevelUp provides to Merchants, via the LevelUp Merchant Dashboard interface, access to certain User Data and related reporting and analytics features concerning transactions conducted on the LevelUp platform at Merchant’s locations, as authorized by LevelUp’s Users. The User Data provided to Merchants pursuant to these Merchant Terms includes a history of a User’s transactions via the LevelUp platform at your POS and Online POS locations (i.e., the date, time, location, and amount of each customer’s individual purchases) and the customer’s progress in your active Campaigns (i.e., Campaign Credit earned and redeemed, and status in any ongoing Campaigns). Unless specifically authorized by a User, the User Data provided will not include the user’s full name or email address.

6.2. Subject to these Merchant Terms and LevelUp’s Privacy Policy, LevelUp grants to Merchant a non-exclusive license during the Term of this Agreement to capture, store, use, and transfer any and all User Data provided to or made available to Merchant by LevelUp, in any way that Merchant sees fit. Merchant’s rights in User Data provided by or made available LevelUp shall be unlimited. LevelUp retains ownership of all User Data collected by the LevelUp platform.

6.3. By enabling a Groupon Campaign through LevelUp, you authorize LevelUp to provide certain User Data to Groupon, at LevelUp’s discretion and in accordance with User permissions, concerning Groupon-related transactions/redemptions at your location(s) and transactions by Users who participated in your Groupon Campaign. User Data shared with Groupon may include transaction details (amount, location, and amount of Merchant Campaign Credit and Merchant Gift Card Credit redeemed, items purchased (if available), and Merchant Campaign Credit earned) for transactions redeeming Paid-in Value or Promotional Value, transactions initiated by a Groupon LevelUp App, or transactions by a User for a period of ninety (90) days following said User’s redemption of a Groupon voucher in a LevelUp App.

7. Merchant-Issued Gift Cards.

LevelUp offers LevelUp Merchants the ability to offer and issue digital and/or physical plastic Merchant-branded cards, which may be used by customers for stored-value purchases at that Merchant integrated with and administered by the LevelUp platform (“Merchant Gift Cards”). The following terms in this section apply to all Merchants participating in LevelUp’s Merchant Gift Card service:

7.1. Gift Card Service. LevelUp provides the processing and administrative services necessary to issue Merchant Gift Cards and integrate your Merchant Gift Cards with the LevelUp platform. All Merchant Gift Cards and associated Gift Card Credit are issued by the identified Merchant, and are not financial obligations of LevelUp. Merchant Gift Card Credit may only be used as prepayment for the purchase of goods or services by customers at the Merchant’s participating locations, either physical or online. Except where required by law, the balance of a Merchant Gift Card is nonrefundable and may not be resold or redeemed for cash or other gift cards. Merchant must execute an appropriate statement of work or processing agreement with LevelUp concerning the addition of a Gift Card Service. Additional fees apply. Any refund related to a purchase made with Gift Card Credit must be credited back to the Gift Card used for the initial payment.

7.2. Digital Gift Cards. You agree that, to the extent the LevelUp platform is used by Users at your POS or Online POS locations to initiate transactions, you shall submit transactions to LevelUp only for goods and/or services actually delivered or provided by you in the ordinary course of your business, as described by you to LevelUp in the application and registration process, or as updated from time to time by contacting LevelUp. You are required to notify LevelUp of any material change or expansion in the nature of goods and services offered by your business.

7.3. Physical Gift Cards. You agree that, to the extent the LevelUp platform is used to execute Campaigns, you shall honor and redeem all Campaign Credit rightfully earned and/or granted to Users.

7.4. No Fees; No Expiration. You shall not use the LevelUp platform for the purpose of transactions accepting security or payment for loans, providing cash advances, check cashing, or otherwise distributing cash to any person or entity. You warrant to LevelUp that you comply with all applicable laws and regulations concerning the prevention of money laundering and/or funding of terrorist organizations.

7.5. Limits. You shall not use the LevelUp platform for transactions in connection with any illegal activity, in violation of any federal, state, or local law, or in connection with any lottery or gambling activity.

7.6. Campaign Credit May Not be Redeemed for Gift Cards. You agree to comply with any individual transaction amount limits imposed by LevelUp, which will initially be set to one hundred ($100.00) dollars per transaction (or to a series of transactions by the same User within a 24-hour period), and not to attempt to circumvent such individual transaction limits by "structuring" transactions, or breaking a large transaction amount into multiple smaller transaction amounts.

7.7. Gift Card Purchases Earn Campaign Credit. You agree that you will immediately notify LevelUp of any actual or suspected unauthorized use, fraud, violations of any state or federal laws or regulations, or other breach of these Merchant Terms or LevelUp's User Terms by any User;

7.8. LevelUp Support; Corrections. You agree to ensure that none of your employees or agents requests that a LevelUp User divulge their credit or debit card account number, PIN number, or other personal identifying information such as address, telephone number, email address, or name, in connection with or as a condition to any LevelUp transaction.

7.9. Lost Cards. You agree to accept responsibility for any User complaints and/or customer service issues that may arise in connection with any User's redemption or attempted redemption of Campaign Credit at your POS or Online POS;

7.10. Limitation of Liability. As a Merchant utilizing the LevelUp platform, your conduct and business practices reflect upon LevelUp and the community of Merchants accepting LevelUp transactions. LevelUp reserves the right to terminate your use of the LevelUp platform if, in its sole discretion, it determines that your business, conduct, or business practices reflect poorly upon LevelUp.

7.11. Termination. LevelUp may discontinue a Merchant Gift Card program at any time, in its sole discretion.

8. LevelUp Marketing

8.1. In order to promote the success and accelerated use of LevelUp following integration at your Merchant locations, LevelUp suggests that Merchant engage in all or some of the following marketing initiatives, which LevelUp has found to be particularly effective, specifically including the following: (1) In-store promotion including stickers on windows and posters in store; (2) Handing out cards promoting the LevelUp applications to customers for four (4) weeks post launch at each Client location; (3) Staff employees on-site during the week of application launch to promote usage of the LevelUp applications; (4) Email promotion to existing Client’s customer base; and (5) Social media promotion of LevelUp Apps on Client’s sites.

8.2. LevelUp 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 LevelUp at Merchant locations, are to be paid solely by Merchant.

8.3. In order to facilitate the above-listed marketing initiatives, Merchant is granted, during the Term of this Agreement, a limited, non-exclusive license to use LevelUp promotional materials and LevelUp trademarks and logos for the above-enumerated purposes. Merchant shall not be permitted to alter or modify any LevelUp trademarks or Logos. All other use of LevelUp trademarks and logos shall be subject to the prior approval of LevelUp. Merchant shall not use any LevelUp promotional materials or LevelUp trademarks or logos in any way that suggests or implies that LevelUp endorses Merchant’s products or services. All use of LevelUp trademarks and logos shall inure to the benefit of LevelUp.

8.4. LevelUp will list and/or promote Merchant’s location(s) to Users within the LevelUp platform in a manner as determined by LevelUp. In connection with such efforts, you grant us, our affiliates and our advertising partners, a limited, non-exclusive license to use, copy, reproduce, modify, license, distribute and publish any of your trademarks, service marks, logos, photographs, text, images or other content (“Merchant Content”) for publication as part of marketing or promotion of your use of LevelUp to LevelUp Users and new users, including in applications, on the LevelUp website, LevelUp Apps, and through the online services of our affiliates and advertising partners. You represent and warrant to us that you have the right to provide the Merchant Content to us, and that the use, copying, modification and publication of the Merchant Content by us and by our affiliates and advertising partners: (a) will not infringe, violate or misappropriate any third party copyright, patent, trade secret or other proprietary rights, (b) will not infringe any rights of publicity or privacy, and (c) will not be defamatory or obscene or otherwise violate any law.

9. Intellectual Property

9.1. You agree and acknowledge that LevelUp owns and retains all ownership of all right, title and interest (including without limitation all copyright, trademark, patent, and/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 LevelUp platform and LevelUp Apps, LevelUp POS integration software, other than the Merchant Content, defined above, or otherwise used by us to promote, sell, generate, or distribute the use of the LevelUp platform and LevelUp Apps (collectively, the “LevelUp Content”). During the Term of this Agreement, you may use the LevelUp Content solely for the purposes of and as specified by these Merchant Terms. Otherwise, LevelUp reserves all rights in the LevelUp Content, and no licenses or other rights to the LevelUp Content are granted to you by your use of the LevelUp Platform, or by these Merchant Terms. Except as expressly provided herein or in the LevelUp Developer Terms, you shall not rent, lease, publish, license, distribute, transfer, copy, reproduce, display, or modify the LevelUp Content or any portion thereof, or use such LevelUp Content as a component of or a base for products or services prepared for commercial sale, sublicense, lease, access or distribution. You shall not prepare any derivative work based on the LevelUp Content, nor shall you translate, reverse engineer, decompile or disassemble the LevelUp Content.

9.2. The LevelUp Content shall include any Custom Campaigns created by you using the LevelUp Merchant Dashboard tools provided by LevelUp. 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 LevelUp 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.

10. User Complaints

10.1. If LevelUp receives any User complaints related to your acceptance of LevelUp transactions at your locations, or your Campaigns, you will cooperate with us as we investigate such complaints. While we will seek to resolve complaints to the satisfaction of all parties, we might not be successful in doing so, and so we reserve the right to refund payments to Users, and adjust the Net Sales Proceeds owed to you correspondingly (in accordance with our No Chargeback Guarantee), as determined to be necessary in our sole discretion.

10.2. You agree to accept responsibility for any User complaints and/or customer service issues that may arise in connection with any User’s redemption or attempted redemption of Campaign Credit at your POS or Online POS;

10.3. As a Merchant utilizing the LevelUp platform, your conduct and business practices reflect upon LevelUp and the community of Merchants accepting LevelUp transactions. LevelUp reserves the right to terminate your use of the LevelUp platform if, in its sole discretion, it determines that your business, conduct, or business practices reflect poorly upon LevelUp.

11. Merchant Representations and Warranties

You represent and warrant to LevelUp that:

11.1. 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 LevelUp 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;

11.2. Sales Tax. You are registered for sales and use tax collection purposes in all jurisdictions in which your goods and services will be provided in connection with your use of the LevelUp platform and presentation and redemption of associated Campaigns. You will make and be solely responsible for the proper calculation of and payment to the appropriate taxing authority of all required tax on all sales of goods and services carried out in connection with the LevelUp platform. You are responsible for calculating the applicable sales tax and communicating that amount to LevelUp at the time the goods are delivered. The amount of applicable sales tax as calculated by you will be included to the Net Sales Proceeds transferred by LevelUp pursuant to Section 3.2 of these Merchant Terms for you to pay to the appropriate taxing authority;

11.3. Any advertising or promotion of your products or services relating to the LevelUp platform will not constitute, and you will not engage in any, false, deceptive or unfair trade practices

11.4. Any menu information provided by you to LevelUp or published by you shall comply with all applicable laws and regulations governing required disclosures of nutritional and/or allergen information

12. Disclaimer of Warranties

We will make reasonable efforts to provide the LevelUp platform and other services described in these Merchant Terms to you in a workmanlike manner and in compliance with the applicable descriptions herein. Your sole and exclusive remedy, and LevelUp’s sole and exclusive liabilities, for breach of the foregoing covenant shall be as follows: (a) if you notify LevelUp of any such breach within thirty (30) days of its occurrence, LevelUp shall promptly remedy the error in accordance with the requirements of these Merchant Terms; and (b) if LevelUp fails to or is unable to remedy the error, LevelUp will refund to you the Transaction Fee(s) applicable to the transaction related to the error. OTHER THAN AS EXPLICITLY SET FORTH IN THIS SECTION 17, WE MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THIS AGREEMENT OR THE LEVELUP PLATFORM INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OR ANY WARRANTIES ARISING FROM CUSTOM OR USAGE OF TRADE. WE DO NOT WARRANT OR GUARANTEE THAT YOU WILL ACHIEVE ANY LEVEL OF SALES, REVENUE OR PROFIT. WE DO NOT WARRANT OR GUARANTEE THAT THE LEVELUP WEBSITES OR SERVICES OR USER DATA WILL ALWAYS BE AVAILABLE OR OPERATE ERROR-FREE, THAT THE CAMPAIGNS WILL BE ERROR-FREE, OR THAT ANY ERRORS, OMISSIONS OR MISPLACEMENTS IN THE MERCHANT RELATIONSHIP WILL BE CORRECTED. No statement, either orally or in writing, made by any of our officers, employees or agents will vary this paragraph

13. Limitation of Liability

13.1. IN NO EVENT WILL LEVELUP 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 LEVELUP 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.

13.2. IN NO EVENT WILL OUR LIABILITY FOR ANY DAMAGES ARISING IN CONNECTION WITH THIS AGREEMENT OR THE LEVELUP PLATFORM EXCEED: (A) IF THE DAMAGES RELATE TO A PARTICULAR TRANSACTION OR TRANSACTIONS, THE AMOUNT OF TRANSACTION FEE(S) AND/OR PRORATED MONTHLY FEES PAID TO AND RETAINED BY LEVELUP IN CONNECTION WITH SUCH TRANSACTION(S); AND (B) IF THE DAMAGES DO NOT RELATE TO PARTICULAR TRANSACTIONS, THE TOTAL AMOUNT OF TRANSACTION FEE(S) AND/OR MONTHLY FEES PAID TO AND RETAINED BY US IN THE THREE (3) MONTH PERIOD BEFORE THE LIABILITY AROSE. 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.

14. Indemnity

14.1. You will indemnify and hold harmless LevelUp, 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 attorney 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:

• 14.1.1. Your breach or alleged breach of these Merchant Terms, or of your representations, warranties or covenants set forth herein;
• 14.1.2. Your failure, or alleged failure, to grant, redeem, or honor a Campaign incentive or reward, or Campaign Credit;
• 14.1.3. 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;
• 14.1.4. Your failure to maintain your POS integration to the LevelUp platform; and
• 14.1.5. The User Data and reporting or analytics services provided by LevelUp 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.

14.2. LevelUp 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 LevelUp’s prior written consent.

15. Confidentiality

We will make reasonable efforts to provide the LevelUp platform and other services described in these Merchant Terms to you in a workmanlike manner and in compliance with the applicable descriptions herein. Your sole and exclusive remedy, and LevelUp's sole and exclusive liabilities, for breach of the foregoing covenant shall be as follows: (a) if you notify LevelUp of any such breach within thirty (30) days of its occurrence, LevelUp shall promptly remedy the error in accordance with the requirements of these Merchant Terms; and (b) if LevelUp fails to or is unable to remedy the error, LevelUp will refund to you the Transaction Fee(s) applicable to the transaction related to the error. OTHER THAN AS EXPLICITLY SET FORTH IN THIS SECTION 17, WE MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THIS AGREEMENT OR THE LEVELUP PLATFORM INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON- INFRINGEMENT OR ANY WARRANTIES ARISING FROM CUSTOM OR USAGE OF TRADE. WE DO NOT WARRANT OR GUARANTEE THAT YOU WILL ACHIEVE ANY LEVEL OF SALES, REVENUE OR PROFIT. WE DO NOT WARRANT OR GUARANTEE THAT THE LEVELUP WEBSITES OR SERVICES OR USER DATA WILL ALWAYS BE AVAILABLE OR OPERATE ERROR-FREE, THAT THE CAMPAIGNS WILL BE ERROR-FREE, OR THAT ANY ERRORS, OMISSIONS OR MISPLACEMENTS IN THE MERCHANT RELATIONSHIP WILL BE CORRECTED. No statement, either orally or in writing, made by any of our officers, employees or agents will vary this paragraph.

16. Term; Termination

16.1. These Merchant Terms, as amended from time to time, shall apply from the date of the execution of an agreement incorporating these Terms, or LevelUp’s approval of your LevelUp account if no agreement is executed (“Effective Date”), and shall apply until terminated pursuant to this section (“Term”).

16.2. LevelUp may terminate this agreement, and any other agreements you may have with LevelUp, to revoke any license(s) granted hereunder, and/or to revoke access to the LevelUp platform for any Merchant, without recourse, in the event that: (i) you are in material breach of these Merchant Terms, (ii) you violate any laws or otherwise engage in any conduct that may adversely affect our business or reputation; or (iii) LevelUp is required to terminate by law. Such determinations are in the sole discretion of LevelUp. All accrued rights and remedies granted to LevelUp hereunder shall survive any termination of this Agreement. Terminations pursuant to this section shall be effective immediately upon notice to you.

16.3. Upon the termination of this Agreement for any reason, you agree to immediately cease all use of the LevelUp platform, and to erase and destroy all copies, full or partial, of LevelUp Confidential Information in your and your authorized users’ possession or control. At LevelUp’s request, you agree to provide written certification of such destruction to LevelUp. LevelUp 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 LevelUp may have, now or in the future.

16.4. Unless you have executed a separate agreement with LevelUp specifying a fixed-term agreement (which shall supersede this section), you may cancel your use of LevelUp with 30 days’ prior written notice to LevelUp. To the extent that your agreement with LevelUp specifies a termination date and/or termination terms, such terms shall supersede the entirety of this sub-section.

16.5. If you cancel your use of LevelUp and were not charged the full Hardware Fee, you are responsible for returning the LevelUp Hardware. We will provide a prepaid mailing label. Upon termination of Merchant’s use of the LevelUp service, Merchant authorizes LevelUp to debit Merchant’s designated payment account via ACH transfer for the cost of any hardware provided free of charge, which amount will be credited to Merchant’s account upon receipt of hardware by LevelUp.

16.6. Upon termination, you authorize LevelUp to collect all outstanding unpaid fees by a direct ACH debit to an account specified by you for the payment of LevelUp fees and/or Net Sales Proceeds, and/or to withhold outstanding unpaid fees from Net Sales Proceeds

17. Privacy Policy

LevelUp reserves the right to share User Data in accordance with User-granted permissions and the LevelUp Privacy Policy (“Privacy Policy”), which can be found here: (https://www.thelevelup.com/privacy-policy). The Privacy Policy is incorporated by reference herein. LevelUp reserves the right to share transaction data, in aggregate, with third parties to aid in statistical analysis, Loyalty Program structuring and tracking, or feature development as described in the Privacy Policy.

17.1. You will indemnify and hold harmless LevelUp, 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 attorney 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:

18. General

In connection with these Merchant Terms, and the actions contemplated hereunder, LevelUp 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, if expressly and conspicuously designated in writing as "Confidential Information" ("Confidential Information"). Each of us shall keep confidential for a period of two (2) years from the date of disclosure 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.

18.1. 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. LevelUp shall not be liable for any breach of these Merchant Terms to the extent such breach arises from factors outside LevelUp’s reasonable control.

18.2. All disputes arising out of or relating to this Agreement or the LevelUp platform, including without limitation the validity, applicability, and/or enforceability of this provision or any provision herein, shall be resolved exclusively by binding arbitration before a single arbitrator (the “Arbitrator”) in accordance with the Commercial Arbitration Rules of the American Arbitration Association (the “AAA”) then in effect and the further procedures set forth herein. (For information on the AAA and its rules, see (https://www.adr.org/). The arbitration shall be conducted in Boston, Massachusetts, unless the Arbitrator shall determine that that venue is not reasonably convenient to all parties, in which case the Arbitrator shall determine another venue that is. In the event that the AAA is unavailable or unwilling to administer the arbitration, and the parties are unable to agree to a substitute, a substitute shall be appointed by the court. The Arbitrator shall have authority to issue any and all remedies authorized by law. Notwithstanding any rules of the AAA to the contrary, any claims shall be adjudicated on an individual basis only, and YOU WAIVE ANY RIGHT TO BRING ANY CLAIM AS A REPRESENTATIVE OF A PROPOSED CLASS, ON AN AGGREGATED OR MASS BASIS, OR AS A PRIVATE ATTORNEY GENERAL, OR TO CONSOLIDATE ARBITRATION PROCEEDINGS WITHOUT THE CONSENT OF ALL PARTIES THERETO. Any award rendered by the Arbitrator shall be final, conclusive and binding upon the parties hereto. In connection with any arbitration proceeding pursuant to this Agreement, unless the Arbitrator shall determine otherwise, each party shall bear its own costs and expenses. Notwithstanding the foregoing, either party may file an individual claim in any small claims court for disputes or claims within the scope of its subject matter jurisdiction if such court has personal jurisdiction. LevelUp does not hereby waive any defense that such jurisdiction may be lacking in your state. Without derogation of the parties’ obligation to arbitrate as set forth herein, for any claims other than those in small claims court, jurisdiction for any court proceedings arising out of or relating to this Agreement or the LevelUp platform shall be vested exclusively in, and venue shall be laid in, the state or federal courts sitting in Boston, Massachusetts, except that, following confirmation of an arbitration award in a state or federal court in Boston, Massachusetts, a judgment arising therefrom may be executed in any court of competent jurisdiction.

18.3. 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.

18.4. All communications between Merchant and LevelUp, and any notices due hereunder, may use electronic means. Merchant: (a) consents to receive communications from LevelUp in an electronic form; (b) agrees that all Merchant Terms, agreements, notices, disclosures, and other communications that LevelUp 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.

18.5. 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; provided, however, that if the court invalidates the prohibition on class, aggregated, mass or consolidated proceedings, then the arbitration clause in Section 18.2 shall also be invalid.

18.6. This Agreement shall be governed by the laws of the Commonwealth of Massachusetts, without regard to its choice of law rules and without regard to conflicts of laws principles, except that the Arbitration provision in Section 18.2 shall be governed by the Federal Arbitration Act.

18.7. These Merchant Terms are void where prohibited by law.

Effective Date of these Terms of Service: July 30, 2020