Whereas, the merchant understands that Synergy Loyalty Solutions, Inc. (SLS) is a California Corporation, which markets Synergy World, Inc. (SWI) Gift & Loyalty Programs. SWI processes an electronic Gift Card and Rewards Card program, whereby SWI is able to route, process and settle gift and reward card transactions at certain point of sale terminals: and Whereas the Merchant desires to have SWI perform Card processing services. Now, therefore, in consideration of the foregoing recitals, and of the mutual promises hereinafter set forth, SLS and Merchant hereby agree as follows:
- Payment and Fees
Upon execution of this agreement by Merchant’s authorizing signature, Merchant agrees to the pricing packages as selected on the front of this agreement. A monthly email statement detailing the previous month’s transactions will be sent no later than the 25thof the following month. Additional fees will apply for gift card “tracking”.
(Issuing gift cards to certain groups and receiving monthly reports on group usage). Additional fees will apply for custom “thank you” email receipts and changes to them.
Fees the first month are prorated. If a merchant does not pay monthly fees for 60 consecutive days, SLS reserves the right to discontinue processing Gift Cards.
If a merchant selects Corporate Pooling, all loads minus redemption at each store are transferred monthly to the Corporate Bank Account. If a merchant selects Location Pooling option, money is transferred from the load location to the redemption location. Location and Corporate pooling is initiated prior to the 25th of the following month.
- System Down Time: Merchant agrees that in the event that the SLS system is down and not able to verify transactions, Merchant will call our 24-hour customer service number at 858-259-8283 to process the transaction. The Merchant accepts sole responsibility if any transactions are authorized by Merchant without SLS’s knowledge. Such merchant authorized transactions will be the sole responsibility of the merchant, and the Merchant will hold harmless SLS from and against any damages, loss, liability, consequential damage, expense, claim or obligation arising in connection herewith.
- Marketing & Consumer Data
Merchant agrees to the use of its name and artwork in SLS’s marketing, advertising or in any other medium. Merchant’s loyalty database is 100% confidential and will never be used by Synergy or re-sold to third party companies. Merchant can view reports and export the data anytime via the merchant portal.
- Equipment, Supplies and Support
In the event the Merchant’s authorization terminal requires additional software, Merchant will participate in a dial in line download procedure. Merchant is responsible for replacing supplies. Merchants can call Synergy Loyalty Solutions at (858) 259-8283 to order supplies. Upon prior verbal authorization from the merchant, cost of supplies and shipping costs will be deducted from merchants designated checking account. Synergy Loyalty Solutions will replace non-working terminals free of charge within the first year. This does not include terminals that have been damaged by improper use. (Spilled drinks, dropping equipment, etc). If a terminal is damaged due to merchant negligence and a new terminal is required, merchants will be required to purchase a replacement terminal. Synergy is not responsible for any costs that may be associated with the installation of the dial up or internet based terminals. These costs may include but are not limited to: phone line installation, running additional cables, routers, switches, splitters, etc. SLS reserves the right to charge $75.00/hour to troubleshoot Synergy Gift & Reward Card connectivity after initial successful installation.
SLS and Merchant agree that they shall each indemnify and hold harmless the other party and its officers, directors and shareholders, from any and all loss, cost, expense, claim, damage and liability (including attorney’s fees and courts costs) paid or incurred by any one or more of them, to the extent it arises from, is caused by, or is attributable to (i) the failure of such party or representatives to abide by the provisions of this agreement; (ii) the violation by such party or its representatives, of any applicable laws, regulation or court relating to this Agreement; or (iii) gross negligence, willful misconduct or any act or omission by such party or its representatives.
- Limitation of Liability
Synergy Loyalty Solutions, Inc. shall not be liable for personal injury or property damage to Merchant or others. Neither SLS or Merchant cumulative liability for all losses, claims, suits, breaches, or damages for any cause whatsoever and regardless of this form of action or legal theory, shall exceed the amount of fees and charges incurred by Merchant to SLS to this Agreement for services performed in the immediately preceding 3 months.
- Term and Termination
This Agreement shall commence on the date set forth in this Agreement and remain in full force and effect for an initial 90-day period and shall be automatically extended forsuccessive 90 day periodson the same terms and conditions expressed herein, or as may be amended.
- Termination by SLS.The merchant understands and agrees that this agreement may be terminated immediately for “good cause” by SLS. For purposes of this Agreement, “good cause” shall mean (i) a material breach of this Agreement by Merchant; (ii) failure to pay at the time specified any fees, charges or other amounts owed by the Merchant to SLS in accordance with the terms of this Agreement; (iii) a determination by SLS that all Merchant transactions have ceased and its business relationship with the Merchant has ceased; or (iv) the violation of any law or regulation applicable to the Merchant that has an adverse effect upon the operation of the system. Notwithstanding the foregoing, SLS may also terminate this Agreement at any time.
- Termination by Merchant.SLS understands that this Agreement may be terminated by the Merchant upon 30-days written notice to SLS in the event (i) a material breach of this Agreement by SLS; (ii) an increase of fees and charges; or (iii) an amendment to this Agreement pursuant to section 7 of this Agreement.
Except as otherwise provided herein, no amendment to this Agreement shall be effective or bind any party unless set forth in writing and signed by the duly authorized representatives of the parties.
No course of dealing and no failure by a party to enforce any provision of or exercise any right under this agreement shall be construed as a waiver of such provisions or right of affect the validity of this Agreement, or limit, prevent or impair the right of any party subsequently to enforce such provisions or exercise such right.
If any provision of this Agreement or portion thereof is held to be unenforceable, such a determination will not affect the remainder of this Agreement. In the event that any portion of the Agreement is deemed unenforceable, said portion shall be stricken, and the remainder of the Agreement shall remain in full force and effect. Any provision hereof prohibited by law shall be ineffective to the extent of such prohibition without invalidating the remaining provisions hereof.
Except as otherwise provided herein, any notice required or permitted to be given hereunder shall be given in writing to Merchant at its shipping address set forth on the first page of this Agreement and to SLS at its designated address. Notice shall be given by hand delivery, certified mail or next day delivery, and the date upon which any such notice is received at the designated address shall be deemed to be the date of such notice.
- Force Majeure
SLS may not be liable for failure to perform due to any contingency beyond its reasonable control such as acts of God, acts of Government, war or other hostility, civil disorder, weather, fire, power, labor dispute, or other causes which are unavoidable and all of which will be deemed to be the one instrument.
- Legal Compliance
Both the Merchant and SLS understand that both parties shall be responsible for their own compliance with federal, state and local laws, rules and regulations that are applicable with respect to this Agreement. This includes escheatment laws and acknowledges that SLS is not responsible for Merchant’s compliance with escheatment or other laws, and agrees to wholly indemnify SLS for all related liabilities.
- Effective date/governing law
This agreement constitutes the entire Agreement and shall become effective only upon execution by Synergy Loyalty Solutions, Inc. This agreement supersedes all previous negotiations, commitments and writings, including any all representations made by agents, resellers and representatives of SLS whether oral or in writing. This agreement shall be governed by and construed in accordance with the laws of the State of California. The parties agree that any claim, dispute or other difference between them shall be resolved by binding arbitration pursuant to the Commercial Arbitration Rules of the American Association with arbitration to occur at San Diego, California. The prevailing party shall be entitled to recover its reasonable attorney’s fees and arbitration costs.