Terms of service
CUSTOMER will receive a non-exclusive, non-assignable, royalty free, worldwide limited right to access and use the Solution denominated FIELO LOYALTY up to the number of users licensed to use the service (the “Licensed Users”), under this Order Form, as amended from time to time (the “SERVICE”).
CUSTOMER shall use or permit the use of the Service solely for its internal business purposes as contemplated by this Order Form and shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party; (ii) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) send or store infringing, false, obscene, threatening, libelous, defamatory or otherwise unlawful or tortious material, including material harmful to children or material that violates third party privacy rights; (iv) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (v) send or store material that violate privacy rights or promote bigotry, racism, hatred or harm; (vi) interfere with or disrupt the integrity or performance of the Service or the data contained therein; (vii) send or store material which may constitute an infringement of intellectual property or other proprietary rights; (viii) violate applicable laws, ordinances or regulations, or (ix) attempt to gain unauthorized access to the Service or its related systems or networks. In addition to any other rights and remedies, FIELO reserves the right to remove or disable access to any material that violates the foregoing restrictions. In such event, FIELO shall have no liability against CUSTOMER. CUSTOMER hereby agrees to indemnify, defend and hold FIELO harmless from and against any claim arising out of a violation of CUSTOMER’s obligations under this section.
CUSTOMER shall not (i) assign or transfer any of the rights, duty’s or obligations under this Order Form or make the Service available in any manner to any third party for use in the third party’s business operations; (ii) modify, copy or create derivative works based on the Service or FIELO technology; (iii) "frame" or "mirror" any content forming part of the Service, other than for its own internal business purposes; or (iv) disassemble, reverse engineer, or decompile any part of the Service or FIELO technology, or access the Service with the intent to (A) build a competitive product or service, (B) build a product or service using similar ideas, features, functions or graphics of the Service in violation of applicable intellectual property laws, or (C) copy any ideas, features, functions or graphics of the Service in violation of applicable intellectual property laws.
2. Payment and Termination
CUSTOMER agrees to pay for the SERVICE ordered in accordance with this Order Form (the “Subscription Fee”). All fees due under this Order Form including the Subscription Fee are non-cancelable and the sums paid are non-refundable.
The Subscription Fee does not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, “Taxes”). CUSTOMER shall be responsible for the payment of any and all Taxes associated with the Service to be provided herein, including any bank charges.
This Order Form may be automatically renewed for additional one-year periods (the “Renewed Subscription Term”) unless one of the parties notifies the other of its intent not to renew this Order Form at least forty-five (45) days in advance to the expiration of the Subscription Term or any Renewed Subscription Term.
At the end of the Subscription Term or any Renewed Subscription Term, all rights to access or use the SERVICE shall immediately end.
Either party may terminate this Order Form for cause by delivering a written termination notice to the other party if the other party materially breaches this Order Form and (i) the breaching party has not remedied the breach within thirty (30) days after receipt of a written notice (the “Default Notice”) from the non-breaching party describing the breach and stating the non-breaching party’s intention to terminate this Order Form if the breach is not remedied within thirty (30) days (the “Cure Period”), or (ii) if the breach is by its nature not susceptible to cure.
- In the event CUSTOMER terminates this Order Form, any remaining installment payments relating to the use of SERVICE for the remainder of the original term of the Order Form shall be accelerated and shall be paid in one installment on or before the date of effective termination.
3. Warranty and Limitation of Liability
Each Party represents and warrants that it has the legal power to enter into and perform its obligations under this Order Form and that it has obtained and will maintain any and all consents, approvals, licenses, or other authorizations necessary for the performance of its obligations under this Order Form. Neither Party will make any representations or warranties on the other Party’s behalf without the other Party’s prior written consent.
FIELO warrants that during the Subscription Term it will not materially decrease the overall functionality and security of the SERVICE, and the SERVICE will perform materially in accordance with the applicable law. For any breach of a warranty by FIELO, CUSTOMER’s exclusive remedies are those described in the Section 2 - “Terms and Conditions of Payment and Termination”.
FIELO warrants that the SERVICE and any support services described herein under Section 6 will be performed in accordance with the applicable data protection legislation and regulations. More information on FIELO’s customer data privacy policies and GDPR can be found at https://fielo.gage.com/data-protection-policy/
EXCEPT AS EXPRESSLY PROVIDED HEREIN, FIELO MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND FIELO SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE SERVICE IS PROVIDED “AS IS”, AND EXCLUSIVE OF ANY WARRANTY OTHER THAN THOSE EXPRESSLY INCLUDED IN THIS SECTION 3. FIELO DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
FIELO DOES NOT GUARANTEE THAT THE SERVICE WILL: PERFORM ERROR-FREE OR UNINTERRUPTED; THAT ALL REQUIRED RESOURCES WILL BE IMPLEMENTED IN THE SOLUTION; THAT THE SERVICE WILL MEET THE CUSTOMERS COMMERCIAL REQUIREMENTS; OR THAT FIELO WILL CORRECT ALL SERVICE ERRORS. CUSTOMER ACKNOWLEDGES THAT FIELO DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. FIELO IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
TO THE EXTENT NOT EXPRESSLY PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS INCLUDING FOR HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS OR FOR MERCHANTABILITY, SATISFACTORY QUALITY, COMMERCIALITY AND FITNESS FOR A PARTICULAR PURPOSE.
CUSTOMER acknowledges and agrees that FIELO has no responsibility for errors arising from data entered or uploaded by CUSTOMER, including configuration errors in the rule of accumulating points, and shall not indemnify CUSTOMER for any liability of CUSTOMER against its customers, especially those arising from errors in the rule configuration of points.
NOTHING IN THIS AGREEMENT EXCLUDES OR LIMITS THE LIABILITY OF EITHER PARTY FOR DEATH OR PERSONAL INJURY CAUSED BY EITHER PARTY’S NEGLIGENCE OR FOR FRAUDULENT MISREPRESENTATION.
EXCEPT IF OTHERWISE EXPRESSLY PROVIDED HEREIN AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL FIELO’S AGGREGATE LIABILITY TO CUSTOMER OR ANY THIRD PARTY ARISING OUT OF OR RELATED TO THIS ORDER FORM, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED FIFTY PERCENT (50%) OF THE AMOUNTS ACTUALLY PAID OR PAYABLE TO FIELO UNDER THIS ORDER FORM IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT WILL FIELO HAVE ANY LIABILITY TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOST PROFITS, ECONOMIC ADVANTAGE, REVENUES, GOODWILL, LOST USE, LOSS OR INACCURACY OF DATA OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, BUSINESS INTERRUPTION OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF CUSTOMER’S REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
4. Intellectual Property
Except as expressly stated herein, this Order Form does not grant CUSTOMER any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licenses in respect of the SERVICE and its respective content and documentation. This Order Form gives CUSTOMER only the limited rights to access and use the SERVICE as set forth in this Order Form and reserves all rights for FIELO not expressly granted by this Order Form.
CUSTOMER hereby grants FIELO a worldwide, limited-term license to host, copy, transmit and display CUSTOMER’s data, as reasonably necessary to provide the SERVICE in accordance with this Order Form.
FIELO shall have a royalty-free, worldwide, perpetual license to use or incorporate into the SERVICE any suggestions, ideas, enhancement requests, feedback, recommendations, improvements based upon anonymized data, KPI’s and SERVICE metrics or other information provided by CUSTOMER, Licensed Users or Incentive/loyalty program members relating to the operation and use of the SERVICE.
5. Marketing Permission
CUSTOMER authorizes FIELO to use CUSTOMER’s name and logo as part of its ongoing sales and marketing activities including but not limited to the creation of marketing material in print, PDF, video and web-based formats, upon written notice by FIELO so long as FIELO has followed CUSTOMER supplied branding and trademark guidelines.
By virtue of this Order Form, the Parties may have access to information that is confidential to one another (“Confidential Information”). The Parties hereby agree to disclose only information that is required for the performance of obligations under this Order Form. Disclosed Confidential information shall be limited to the terms and pricing under this Order Form, CUSTOMER’s data residing in the SERVICE environment, and all information clearly identified as confidential at the time of disclosure.
A Party’s Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other Party; (b) was in the other Party’s lawful possession prior to the disclosure and had not been obtained by the other Party either directly or indirectly from the disclosing Party; (c) is lawfully disclosed to the other Party by a third party without restriction on the disclosure; or (d) is independently developed by the other Party.
The Parties agree to hold each other’s Confidential Information in confidence for a period of three years from the date of disclosure. Also, the Parties agree to disclose Confidential Information only to those employees or agents who are required to protect it against unauthorized disclosure in a manner no less protective than under this Order Form. Nothing shall prevent either Party from disclosing the terms or pricing under the Order Form in any legal proceeding arising from or in connection with the Order Form or from disclosing the Confidential Information to a governmental entity as required by law.
The content of this Order Form and any attachment is intended solely for the CUSTOMER and shall not be disclosed outside your organization. May not be duplicated or published in its full or in part, for any purpose other than evaluation of this request.
Anonymous Aggregated Data: CUSTOMER agrees that FIELO will have the right to generate Anonymous Aggregated Data and may use such Anonymous Aggregated Data for any business purpose during or after the term of this Order Form (including, without limitation, to develop and improve FIELO’s products and services and to create and distribute reports and other materials). FIELO will use the Anonymous Aggregated Data in CUSTOMER's benefit and will only disclose Anonymous Aggregated Data externally in a de-identified (anonymous) form that does not identify CUSTOMER, its Affiliates or its users, and that is stripped of all persistent identifiers. For the purpose of this section Anonymous Aggregated Data means data that is derived from CUSTOMER Data that is aggregated and anonymized in such a manner that it is not identifiable in any way to any person or entity (including CUSTOMER)
7. Support Services
CUSTOMER acknowledges and agrees that should CUSTOMER engage FIELO to provide deployment, configuration and application training services for the SERVICE (“Professional Services”), the scope, timing, cost and general conditions of such Professional Services shall be set forth in a statement of work agreed and signed by both parties to be made part of this agreement and attached as Annex 1.
If any conflict exists between the terms and conditions of this FIELO Order form and the attached Annex 1 the terms of this FIELO Order Form will prevail.
FIELO shall provide CUSTOMER with standard support services post go-live for the SERVICE at no additional charge, in accordance with the FIELO Support Desk Service document (“Standard Support”).
During the Term of this Fielo Order Form FIELO shall have ongoing access to the SERVICE to access, analyze and monitor certain solution KPI’s, metrics and anonymized data solely for use by FIELO to provide CUSTOMER with Customer Success and Support.
8. General Provisions
Neither Party may assign or otherwise transfer its rights or obligations hereunder without the prior written consent of the other party. Notwithstanding the foregoing, FIELO may assign this Order Form together with all rights and obligations under this Order Form, without CUSTOMER’s consent to an affiliate of FIELO or in connection with an acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempt by a Party to assign its rights or obligations under this Order Form in breach of this provision shall be void and of no effect.
This Order Form shall be governed by and construed in accordance with the laws of the State of New York.
Any dispute arising out of or relating to the subject matter of this Order Form which cannot be amicably settled within sixty (60) by the parties’ senior management shall be finally settled by arbitration in accordance with the Rules of Arbitration of the International Chamber of Commerce ("ICC Rules of Arbitration"). The arbitration shall take place in New York City, in the English language, and shall be in accordance with the ICC Rules of Arbitration.
The Parties elect the courts of the city of New York, USA, to hold exclusive jurisdiction with respect to any matter that is ancillary to the arbitration, including with respect to any coercive and urgent measures or injunctive or urgent reliefs, as per the ICC Rules. Once the Arbitral Tribunal is seized of the dispute, the provisional measures or early reliefs will be sought exclusively before the Arbitral Tribunal, which can confirm, change or revoke any and all provisional measures or injunctions granted by the courts.
Nothing herein shall be interpreted to prevent FIELO from instituting legal proceedings with respect to matters or disputes arising under CUSTOMER’s payment obligations.
This Order Form together with any Annex, and/or Amendment attached hereto constitute the entire agreement between the Parties relating to the subject matter hereof and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. The terms and conditions of this Order Form shall be controlling over any different or additional term or condition appearing on any form or other document of CUSTOMER. For the avoidance of doubt, any conditions of purchase attached or included in CUSTOMER’s purchase order will not apply.