Updated on March 15th
ARBITRATION AND WAIVER OF CLASS ACTION NOTICE . THESE TERMS CONTAIN IMPORTANT PROVISIONS INCLUDING AN ARBITRATION PROVISION THAT REQUIRES ALL DISPUTES TO BE RESOLVED BY BINDING ARBITRATION, WHICH MEANS THAT YOU WAIVE ANY RIGHT TO HAVE THOSE DISPUTES DECIDED BY A JUDGE OR JURY, AND A WAIVER OF RIGHTS TO PARTICIPATE IN CLASS ACTIONS, CLASS ARBITRATIONS, OR REPRESENTATIVE ACTIONS. PLEASE SEE SECTION 22 - DISPUTE RESOLUTION AND ARBITRATION AND SECTION 23 - WAIVER OF CLASS ARBITRATION OR ACTIONS BELOW.
2. Eligibility. By agreeing to these Terms, You represent and warrant to Us that if You are an individual: (a) You are at least 18 years old; (b) You are not currently and have not previously been suspended or otherwise removed from the Service; and (c) Your registration and Your use of the Service is, and will remain, in compliance with any and all applicable laws and regulations at all times. If You are an entity, organization, or company, the individual accepting these Terms on Your behalf represents and warrants that she/he has authority to agree and bind You to these Terms.
3.1 “3rd Party Applications" means online, Web-based applications or services and offline software products that are provided by 3rd parties, and interoperate with the Service.
3.2 “Active Member” means any Customer who has a minimum balance of one (1) Point. Customers who have zero (0) Points are not considered Active Members.
3.3 "Affiliates" means an entity that directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with a party of this Agreement, by way of majority voting equity ownership.
3.4 An “Award” occurs when Customers satisfy any condition or event created by the Merchant in the Service and, as a result, receive Points on their account.
3.5 “Customer” means any individual, person, persons, or business entity that purchases products or services from the Merchant.
3.6 "Documentation" means the reference, administrative, and user manuals which are published by GLOW LOYALTY and provided by GLOW LOYALTY to the Merchant with the Service, which may be updated from time-to-time, but excluding any sales or marketing materials.
3.7 "Electronic Communications" means any transfer of signs, signals, text, images, sounds, data, or intelligence of any nature transmitted in whole or part electronically received and/or transmitted through the Service.
3.8 "Initial Term" means the first month, excluding any renewal terms.
3.9 "Merchant Data" means all electronic data or information submitted by the Merchant and stored by the Service.
3.10 “Monthly Fees” means the set fee that the Merchant agreed to pay each month by completing the Registration Process.
3.11 A “Point” is the standard unit that is received as an Award for satisfying any condition or event created by the Merchant in the Service and is used for the purpose of measuring the specific Reward(s) that Customers can redeem.
3.12 "Plan" means the specific details of the Service chosen at the stated price by the Merchant through the Registration Process.
3.13 "Registration Process" means the process in which Merchants install the GLOW LOYALTY application using their Shopify account, accept the data permissions requested to allow proper functionality, complete configuration in the setup wizard, select the desired Plan, and enable the application so that it appears on their Shopify store.
3.14 “Reward(s)” are the benefits created by the Merchant in the Service for which Customers can exchange a specified number of Points.
3.15 "Term" means the Initial Term of one month that begins after the free trial period of 7 days and any renewal terms.
3.16 An “Upgrade” occurs when the Merchants change their existing Plan to a new Plan that provides for additional Active Members at an increased price.
4 . General Terms of Access to the Service.
4.1 GLOW LOYALTY Service Overview. GLOW LOYALTY provides You, as a Merchant, with certain hosted software to create a customer loyalty and incentive program. GLOW LOYALTY allows the Merchant to grant Customers an Award of Points based on conditions and events specified by the Merchant. Customers may then redeem Points for Rewards that the Merchant has offers. The Service is fully customizable to Your individual specifications which allows You to dictate the amount of Points Awarded for any condition or event that You create. Additionally, the Rewards offered and the amount of Points required to exchange for each Reward is fully customizable by You. You are solely responsible for all of the terms and conditions of the transactions conducted with Customers, including, without limitation, terms regarding payment, subscriptions, returns, warranties, shipping, handling, transportation, storage, insurance, fees, applicable taxes, text messaging (if applicable), title and licenses, all of which must be in accordance with applicable law.
4.2 Customer Loyalty and Incentive Program. GLOW LOYALTY is a customer loyalty and incentive program and is not a cash-back app. GLOW LOYALTY does not provide any incentive in which Customers can receive money back as a result of making purchases. GLOW LOYALTY functions exclusively with the Award of Points that can be redeemed in exchange for Rewards in the form of discounted products or any other customized Reward that the Merchant offers.
4.3 Points. The minimum Award of Points allowable by the Service is one (1) Point. It is not possible to customize Glow Loyalty to offer fractions of a Point. The term Point is the default setting used by the Service; however, the term Point is fully customizable by the Merchant and may be changed at any time to any other term that the Merchant so chooses. The Merchant’s alteration of the term Point will not serve to alter its meaning within these Terms. The default setting for the value of one (1) Point is one (1) of the specific currency that is set for Merchant’s account. The default value of one (1) of said currency is fully customizable and may be altered by the Merchant to any amount.
4.3.1 Custom Actions. The Merchant has the option to create custom actions that, upon completion by a Customer, will Award Points to that Customer in the amount specified by the Merchant. Custom actions require the Merchant to review the action performed by a Customer before the Customer receives Points to ensure that the action was properly completed. Points will be Awarded to the Customer upon verification of the custom action by the Merchant.
4.3.2 Customer Point Reset. The Merchant has the option to select a timeframe at which inactive Customers’ Points will reset to 0. Because GLOW LOYALTY Plans are provided with specific limits on the number of Active Members permitted, the option for resetting Customers’ Points to 0 prevents Customers who are not interacting with the Merchant in a substantive way from being considered in the total Active Members under the Merchant’s Plan. The default setting for GLOW LOYALTY is not to reset Customers’ Points to 0. If the Merchant selects the option to reset Customers’ Points to 0, the Merchant can select from six (6) months, twelve (12) months, or twenty fours (24) months. Customers are considered inactive for purposes of the amount of time elapsed before their Points reset if they do not make a purchase, use Points, or save or update their details with GLOW LOYALTY. Any one of said actions will reset Customers’ elapsed time and the count will begin from the moment that action is completed. Customer Login or a Customer saving profile details in Shopify do not reset the amount of time elapsed before Points are reset to 0.
4.4 Rewards. The Merchant has the ability to customize the Rewards offered to Customers in the form of discounts on current products sold on the Merchant’s Shopify online store. Discounts may be offered in the form of percentages, specific dollar amounts, or free orders automatically generated and shipped to Customers. Additionally, the Merchant has the option to create any Reward to offer to Customers by using the Reward customization tool in the Service.
4.5 Currencies. GLOW LOYALTY has the capability to work with different currencies. The default currency selected for GLOW LOYALTY is the currency that is set as the primary currency for the Merchant’s Shopify account. GLOW LOYALTY may alter the default currency, upon request from the Merchant, to any other currency that is supported by a Merchant’s Shopify account. GLOW LOYALTY may only support one (1) currency at a time.
4.6 Future Purchases. An Award of Points received by Customers may only be applied toward Rewards on future purchases and may not be redeemed for the purchase for which the Customer receives the Points.
4.7 Service Customizability and Merchant Errors. The Service allows significant customizability, including, but not limited to, the number of Points Awarded to Customers, the actions or events that generate Points for Customers, the Rewards that are made available to Customers, and the number of Points required to exchange for each specific Reward. The Merchant acknowledges that the level of customizability is provided in order to give the Merchant the greatest ability to customize incentives offered to Customers. Therefore, the Merchant agrees to hold GLOW LOYALTY harmless for any damages incurred by the Merchant in the event that the Merchant makes any error while customizing the Service.
4.8 Customer Enrollment in Glow Loyalty Incentive Program. Once You have completed the Registration Process for GLOW LOYALTY, Customers will be enrolled in the program when they login to Your website. All Customers newly enrolled in the GLOW LOYALTY Incentive Program begin with 0 Points with the exception that the Merchant can request that a Customer’s previous Points be imported into the Customer’s new account. Because Customers with new accounts begin with 0 Points, unless otherwise requested by the Merchant, Customers with new accounts will not be considered Active Members until they receive Points.
4.9 GLOW LOYALTY Popup and Prompt. When You complete the Registration Process, Your Shopify store will display a GLOW LOYALTY popup (“Widget”). You may customize the location of the Widget on Your website. Clicking on the Widget will display the details of Your particular GLOW LOYALTY incentive program with a prompt to register for Your Shopify online store.
4.10 Maximum Active Members. Each Plan provides a limit on the number of Active Members that are permitted under that specific Plan. GLOW LOYALTY sends emails and other notifications to the Merchant as the number of Active Members approaches the maximum number permitted. If the maximum number of Active Members is reached, the GLOW LOYALTY Widget will be disabled and the Service may not be viewed on the Merchant’s website until the Merchant Upgrades to a Plan that allows for additional Active Members or the number of Active Members decreases below the maximum limit. The number of Active Members may be manually decreased by the Merchant by removing Active Members or automatically as Active Members reach the maximum amount of time selected by the Merchant for inactivity.
4.11 Customer Referral Program. GLOW LOYALTY offers a customizable option to Award Points for the referral of new Customers to the Merchant’s website. The Merchant may customize the number of Points Awarded, whether the referring Customer and/or the new Customer receive Points, and whether the Points are Awarded when the new Customer registers on the Merchant’s website or upon the completion of the first purchase by the new Customer.
4.12 Limited License. Subject to the terms of this Agreement and payment of the applicable fees, You are granted a limited, non-exclusive, non-transferable, non-sublicensable, revocable license during the Term (as defined in Section 3.15 - Term) to use the Service subject to the terms, conditions and restrictions set forth in these Terms and any other restrictions stipulated to You in the Agreement or by Us in writing. Except and solely to the extent such a restriction is impermissible under applicable law, You may not: (a) reproduce, distribute, publicly display, or publicly perform the Service; (b) make modifications to the Service, except as expressly permitted or directed by GLOW LOYALTY; or (c) interfere with or circumvent any feature of the Service, including any security or access control mechanism. For the avoidance of doubt, if You are prohibited under applicable law from using the Service, You may not use it.
4.13 Commencement of Term and Registration. The Term of this Agreement shall commence as of the date you first register for, access or use the Service, and shall continue until terminated as set forth in Section 14 - Termination With or Without Cause, Expiration. When You complete the Registration Process, Shopify will provide Us with information of a personal nature, including, but not limited to, Your name, email address, website URL, and additional contact information. You agree that the information You provide to Shopify is accurate, current, and complete and that You will keep it accurate, current, and complete at all times. During the Registration Process, You will be asked to provide a password. You are solely responsible for maintaining the confidentiality of Your account and password, and You accept responsibility for all activities that occur under Your account. If You believe that Your account is no longer secure, then You must immediately contact us.
4.14 Merchant Must Have Internet Access. DSL, cable, or another high-speed Internet connection is required for proper transmission of the Service. You are responsible for procuring and maintaining the network connections and all software and equipment that may be necessary to connect Your network to the Service, including, but not limited to, "browser" software that supports protocols utilized by the Service. GLOW LOYALTY assumes no responsibility for the reliability or performance of any computer networks, connections, or systems not owned or operated by GLOW LOYALTY.
4.15 Accuracy of Merchant's Contact Information. You shall provide GLOW LOYALTY with accurate, current, and complete information on your legal business name, address, email address, and phone number, and, throughout your subscription, You shall maintain and promptly update this information if it should change. You shall provide verification of the information provided, both initially and with any update to that information. Your failure to provide accurate and updated contact information and to verify that information may result in a freeze placed on the Your account by GLOW LOYALTY. In the event that GLOW LOYALTY must impose a freeze on Your account under the circumstances stated in this provision, GLOW LOYALTY shall not be held liable for any resulting damages to You or any of Your Customers resulting from the Your account being frozen.
4.16 Merchants: Passwords, Access, and Notifications. Your login information may be reassigned between Your employees as needed. You shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service and any loss, theft, or unauthorized use of any Merchant password or name and/or the Service account numbers. GLOW LOYALTY is not liable for any harm caused by, or related to, the theft of Your IDs, Your disclosure of Your IDs, or Your authorization to allow another person to access and use the Service using Your IDs. Also, you are solely and entirely responsible for any and all activities that occur under Your account including any charges incurred relating to the Service. You agree to immediately notify GLOW LOYALTY of any unauthorized use of Your account or any breach of security known to You. You acknowledge that the complete privacy of Your data and messages transmitted while using the Service cannot be guaranteed.
4.17 Use of the Service. You are responsible for all activities conducted by Your employees, Your employees’ Electronic Communications and for Your employees' compliance with this Agreement, including the content of all Merchant Data.
4.19 Agreement to Pay Fees. You agree to pay for the Service in accordance with Our service fees, as further set forth below in Section 8 - Payment Terms; Taxes, and Your Plan.
4.20 Billing Data Retention. Following any termination or expiration of this Agreement or Your GLOW LOYALTY account, GLOW LOYALTY will retain a copy of Your billing data for a minimum period of thirty (30) days. You acknowledge and agree that (i) You are solely responsible for exporting a copy of Your billing data prior to any such termination or expiration and (ii) if You require access to such data following any such termination or expiration, You may be required to pay professional service fees to GLOW LOYALTY to retrieve such data.
5.1 Confidential Information. For purposes of this Agreement, "Confidential Information" shall include Merchant Data, each party's proprietary technology, business processes and technical product information, designs, issues, all communication between the parties regarding the Service and any information that is clearly identified in writing at the time of disclosure as confidential. Notwithstanding the foregoing, Confidential Information shall not include information which:
(1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the Receiving Party; (4) the Receiving Party becomes aware of from a 3rd party not bound by nondisclosure obligations to the Disclosing Party and with the lawful right to disclose such information to the Receiving Party; (5) is independently developed by the Receiving Party without use of, or reference to, the Disclosing Party's Confidential Information; or (6) is aggregate data regarding use of GLOW LOYALTY's services that do not contain any personally identifiable, Merchant-specific information.
5.2 Non-Disclosure Obligations. Each party agrees: (a) to keep confidential all Confidential Information; (b) not to use or disclose Confidential Information except to the extent necessary to perform its obligations or exercise rights under this Agreement or as directed by the Disclosing Party; (c) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a degree of care in the protection of such Confidential Information) and (d) to make Confidential Information available to authorized persons only on a "need-to-know" basis. Either party may disclose Confidential Information on a "need-to-know" basis to its contractors and service providers who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services in connection with the performance of this Agreement. Notwithstanding the foregoing, this Section will not prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority or a regulation.
7. Payment Terms; Taxes.
7.1 Payment Terms. If you subscribe to the Service, for all charges associated with the Service, Shopify or the relevant e-commerce platform hosting Your store(s) will bill the credit card or bank account that you provided for such purpose. You agree to provide Shopify or the relevant e-commerce platform hosting Your store(s) with accurate and complete billing information, including valid credit card or bank account information, Your name, address, and telephone number, and to provide Shopify or the relevant e-commerce platform hosting Your store(s) with any changes in such information within 30 days of said change taking effect. Shopify or the relevant e-commerce platform hosting Your store(s) will charge You a fee based on Your selected GLOW LOYALTY Plan. Monthly charges for the Service will be at the rates set forth by the Service type and agreed upon by You in the Registration Process when You select your preferred Plan.
GLOW LOYALTY reserves the right to adjust the price of each Plan at any time GLOW LOYALTY so chooses. When GLOW LOYALTY adjusts the price of a Plan, We retain the right to choose whether to apply the change in price exclusively to Merchants who complete the Registration Process after the change in price becomes effective or to all Merchants, including those Merchants who completed the Registration Process prior to the change in price. If GLOW LOYALTY implements a price increase on a Plan that will affect the Merchant, that Merchant will be notified prior to any price change taking effect. Under the circumstances that a current Merchant’s price will increase, the Merchant is providing consent to the new price terms of the Plan by continuing to use the Service after the new price has been enacted.
Prices established in the Agreement, and in any schedule, exhibit, or related agreement hereto, are exclusive of taxes and other fees which may be imposed on GLOW LOYALTY or You for the provision or use of the Service. You agree that until Your subscription to the Service is terminated, You will continue to accrue charges for which You remain responsible, even if You do not use the Service.
7.2 Timing of Charges. Your credit card or bank account will be charged automatically on a recurring monthly basis as payment for the use of the Service. Said charges will be processed on the day that the Merchant typically pays recurring charges to Shopify in accordance with Shopify’s Terms of Service and will be included in Shopify’s total billing. Such fees will continue to be charged until the Merchant removes the application from the Merchant’s Shopify account. GLOW LOYALTY provides the option for a free Plan. If the Merchant selects the free Plan during the Registration Process or at any time subsequent to the Registration Process, the Merchant will not be billed at any time for the use of the Service until such point that the Merchant selects a paid Plan. Upon the Merchant’s selection of a paid Plan, the Merchant will receive recurring monthly charges in the amount stated in the terms for that specific Plan chosen by the Merchant in accordance with this Section.
7.3 Credit Card Company/Banking Institution Refusal to Pay. If, for any reason, Your credit card company or banking institution refuses to pay the amount billed for the Service, You agree that We may, at our option, suspend or terminate Your subscription to the Service. It will be the responsibility of the Merchant to make a successful payment in order for the Merchant’s use of the Service to be reinstated.
7.4 Liability for Fraudulent Actions. GLOW LOYALTY is not liable for any losses relating to fraudulent charges by You or Your Customers that are deceptive or fraudulent ( "Fraudulent Actions"). By using the Service, You hereby release GLOW LOYALTY from any liability arising from Fraudulent Actions. You will also use best efforts to promptly notify GLOW LOYALTY of any Fraudulent Actions which may affect the Service. GLOW LOYALTY reserves the right, in its sole discretion, to terminate Your account if You engage in, or permit any of Your Customers to engage in, Fraudulent Actions.
7.5 Liability for Chargebacks Not Resulting from Fraudulent Actions. GLOW LOYALTY is not liable for any losses relating to chargebacks or otherwise invalid transactions. By using the Service, You hereby release GLOW LOYALTY from any liability arising from chargebacks or otherwise invalid transactions. You will also use best efforts to promptly notify GLOW LOYALTY of any chargebacks or otherwise invalid transactions which may affect the Service.
7.6 Taxes. All fees payable under the applicable Plan are exclusive of, and do not include, taxes or duties of any kind. You will be responsible for, and will promptly pay, all taxes and duties of any kind, including, but not limited to, any applicable sales tax, use tax, and value added taxes (VAT) or other similar taxes, if any, associated with this Agreement or Your receipt or use of the Service, excluding taxes based on GLOW LOYALTY's gross or net income. If the Merchant is a tax-exempt organization and is not obligated to pay taxes arising out of this Agreement, the Merchant will provide GLOW LOYALTY with any required documentation to verify its tax-exempt status with the applicable taxing authorities.
8. Service Use and Limitations.
8.1 Continuation of Service. We will make reasonable efforts to keep the Service operational 24 hours a day for 7 days a week, except for planned downtime (of which We will use reasonable efforts to provide at least 72 hours prior notice).
8.2 Affirmation of Legal Use of the Service. You represent, warrant, and agree that You will only use the Service in compliance with all applicable laws and regulations, and that You will not use the Service to violate, infringe, or misappropriate any intellectual property or other proprietary right of any 3rd party (including, without limitation, any rights of privacy or publicity).
9. 3rd Party Products & Services. The Service may provide You with access to, be integrated with, or contain links or references to, products, services, data, information, sites or other materials which are provided or operated by 3rd parties (collectively, "3rd Party Products or Services"). 3rd Party Products or Services are not under GLOW LOYALTY's control, and You acknowledge that GLOW LOYALTY is not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such 3rd Party Products or Services. You shall comply with all 3rd party terms, and shall indemnify and hold GLOW LOYALTY harmless from all damages, costs, settlements, attorneys' fees and expenses arising from or related to Your breach of any 3rd party terms. Any provision by GLOW LOYALTY of 3rd Party Products or Services, and any exchange of data between You and any 3rd party provider of 3rd Party Products or Services, is solely between You and the applicable 3rd party provider. If You install or enable 3rd Party Products or Services for use with the Service, You agree that GLOW LOYALTY may allow such 3rd Party Products or Services to access Merchant Data as required for the interoperation of such 3rd Party Products or Services with the Service, and any exchange of data or other interaction between You and a 3rd party provider is between you and such 3rd party provider. The continued availability of the 3rd Party Products or Services is subject to the continued effectiveness and terms of the contract between GLOW LOYALTY and the 3rd party provider.
10. Disclaimer of Warranties.
10.1 YOU EXPRESSLY UNDERSTAND AND AGREE THAT: YOUR USE OF THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. GLOW LOYALTY AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
10.2 GLOW LOYALTY MAKES NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (II) THAT YOUR ACCESS TO OR USE OF THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THAT ANY DEFECTS IN THE SERVICE WILL BE CORRECTED, OR (IV) THAT THE SERVICE OR ANY SERVER THROUGH WHICH YOU ACCESS THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
10.3 YOU UNDERSTAND THAT IN USING THE SERVICE, SENSITIVE INFORMATION WILL TRAVEL THROUGH 3rd PARTY INFRASTRUCTURES WHICH ARE NOT UNDER GLOW LOYALTY'S CONTROL (SUCH AS A 3rd PARTY'S SERVERS). GLOW LOYALTY MAKES NO WARRANTY WITH RESPECT TO THE SECURITY OF SUCH 3rd PARTY INFRASTRUCTURES.
10.4 ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS ACCESSED AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
10.5 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM GLOW LOYALTY OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
11. Limitation of Liability.
11.1 Your exclusive remedy and our entire liability, if any, for any claims arising out of the Agreement and Your use of the Service shall be limited to the amount You paid GLOW LOYALTY in Monthly Fees for the Service during the ONE-MONTH PERIOD concurrent with the act giving rise to the liability. Under no circumstances will our liability be greater than the Monthly Fees associated with that SINGLE MONTH.
11.2 EXCEPT FOR ANY INDEMNIFICATION OBLIGATIONS OF THE PARTIES SET OUT HEREIN, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY ON ACCOUNT OF ANY CLAIM (WHETHER BASED UPON PRINCIPLES OF CONTRACT, WARRANTY, NEGLIGENCE OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, THE FAILURE OF ANY LIMITED REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, OR OTHERWISE) FOR (I) ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.3 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
1 2. Modification and/or Amendment and Suspension of Service.
12.1 Modification/Amendment of Service. We reserve the right to either modify or amend the Service, including any features therein, at any time WITHOUT NOTICE to You. We shall not be liable to You or any 3rd party should We exercise such rights. If You don't agree with the modified and/or amended Agreement, You have the right to reject it; however, such a rejection shall constitute an immediate termination of the Agreement as well as Your right to continued use of the Service. If You use the Service in any way subsequent to a modification and/or amendment to this Agreement having become effective, such use constitutes Your agreement to all modifications and/or amendments. Except for modifications or amendments to this Agreement made by GLOW LOYALTY in accordance with this Section, no other modification or amendment of this Agreement shall be effective unless in writing and signed by both You and GLOW LOYALTY.
12.2 Suspension of Service. GLOW LOYALTY may suspend all or any part of the Service at any time, with or without reason, including, without limitation, for failure to make a timely payment for the Service in accordance with this Agreement. You acknowledge that the operation of the Service may encounter technical or other problems on occasion and may not necessarily continue uninterrupted or without technical or other errors. GLOW LOYALTY shall not be liable to You or others for any such interruptions, errors, or problems or an outright discontinuance of the Service. GLOW LOYALTY has no obligation to continue producing or releasing new versions of the Service. You agree to use the Service only through Your website or software application that You own and control (the "Site") and We reserve approval authority as to the implementation and use of the Service on the Site. We may suspend or rate limit the Service in the event We find any implementation issues with the Site. Such suspension or limitation shall remain in effect until you correct any issues specified by GLOW LOYALTY and a suspension or rate limitation shall not relieve You of Your payment obligations under the Agreement.
13. Termination With or Without Cause, Expiration. GLOW LOYALTY may terminate this Agreement at any time, in whole or in part, for any reason (including, without limitation, for Your breach of this Agreement, violation of applicable law, violation of card association rules or regulations, or the threatening or filing of a lawsuit against GLOW LOYALTY) upon notice to the Merchant. The Merchant may terminate this Agreement at any time, in whole or in part, for any reason by uninstalling the application from the Merchant’s Shopify store. Upon termination or expiration of this Agreement for any reason, the Merchant shall have no rights to continue use of the Service. If this Agreement is terminated as a result of the Merchant's material breach of this Agreement, GLOW LOYALTY shall be entitled to all of the Fees due under this Agreement for the entire Term.
14. Merchant Responsibilities. The Merchant will comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with its use of the Service, including, without limitation, those related to privacy, electronic communications, and anti-spam legislation. The Merchant will not:
(a) Sell, lease, license or sublicense the Service; (b) introduce into or transmit through the Service any virus, worm, trap door, back door, and other harmful or malicious code, files, scripts, agents, or programs; (c) transmit or store infringing material in the Service; (d) send any Electronic Communication from the Service that is unlawful, harassing, libelous, defamatory, or threatening. Except as permitted by this Agreement, no part of the Service may be copied, reproduced, distributed, republished, displayed, posted, or transmitted in any form or by any means. The Merchant agrees not to access the Service by any means other than through the interfaces that are provided by GLOW LOYALTY. The Merchant shall not do any "mirroring" or "framing" of any part of the Service or create Internet links to the Service which include log-in information, user names, passwords, and/or secure cookies.
15. Transmission of Data. The Service allows the Merchant to send Electronic Communications directly to GLOW LOYALTY and to 3rd parties. The Merchant understands that the technical processing and transmission of the Merchant's Electronic Communications is fundamentally necessary to use of the Service. The Merchant expressly consents to GLOW LOYALTY's receipt and storage of Electronic Communications and/or Merchant Data, and the Merchant acknowledges and understands that the Merchant's Electronic Communications will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by GLOW LOYALTY. The Merchant further acknowledges and understands that Electronic Communications may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone, or other electronic means. GLOW LOYALTY uses encryption in various locations and methodologies within the Service and the infrastructure working behind it. Merchant Data is encrypted while in transit to and from the Service; however, GLOW LOYALTY is not responsible for any Electronic Communications and/or Merchant Data which are delayed, lost, altered, intercepted, or stored during the transmission of any data across networks not owned and/or operated by GLOW LOYALTY, including, but not limited to, the Internet and the Merchant's local network.
16. Support Services. Support services used by the Merchant will be performed in accordance with GLOW LOYALTY's customary practices for the level of services purchased. You agree that GLOW LOYALTY does not require express permission to access your account for the purpose of administering support services. Typically, GLOW LOYALTY's support team will ask to access your account; however, by entering into this Agreement, GLOW LOYALTY is not legally required to do so and may access Your account at any time in order to facilitate implementation. GLOW LOYALTY is not responsible, and will not be liable, for the Merchant's configuration decisions or the Service's ability to allow the Merchant to comply with all laws and regulations in the Merchant's unique circumstances.
17. Intellectual Property Rights.
17.1 GLOW LOYALTY's and 3rd Party Providers’ Intellectual Property. You agree that all rights, title, and interest in and to all intellectual property rights in the Service and Documentation (including all updates, enhancements and derivative works thereof and thereto) are owned exclusively by GLOW LOYALTY or its licensors. Except as provided in this Agreement, the time-limited access license, in the nature of a subscription, granted to You does not convey any rights in the Service, express or implied, or ownership in the Service or any intellectual property rights thereto. As between the parties, GLOW LOYALTY owns all intellectual property and other proprietary rights to the Service, including, but not limited to, the design, artwork, logos, functionality, and documentation relating thereto (collectively, the “GLOW LOYALTY Property"). In addition, GLOW LOYALTY shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, and perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations, or other feedback provided by You relating to the operation of the Service. Any rights not expressly granted herein are reserved by GLOW LOYALTY. GLOW LOYALTY service marks and trademarks, logos, and product and service names are marks of GLOW LOYALTY (the “GLOW LOYALTY Marks"). You agree not to display or use the GLOW LOYALTY Marks in any manner without GLOW LOYALTY's express prior written permission. The trademarks, logos and service marks of 3rd Party Providers ("Marks") are the property of such 3rd parties. You are not permitted to use these Marks without prior written consent of such 3rd party who may own the Marks.
17.2 GLOW LOYALTY Marketing and Merchant's Intellectual Property Rights. By completing the Registration Process to use the Service, the Merchant agrees that GLOW LOYALTY has the right to use the Merchant's name, trademarks, logos, and service marks for any marketing purposes, including, but not limited to, informing the general public of the Merchant's use of the Service.
17.3 Copyright Infringement. GLOW LOYALTY respects the intellectual property of others. It may, in appropriate circumstances and at its discretion, disable and/or terminate the accounts of Merchants who repeatedly infringe others' rights. If You believe that Your work has been copied in a way that constitutes copyright infringement, or Your intellectual property rights have been otherwise violated, please provide the following information to GLOW LOYALTY's copyright agent:
Pursuant to the Digital Millennium Copyright Act, 17 U.S.C.A. § 512(c), Our Designated Agent for Notice of claims of copyright infringement can be reached as indicated below. Service of repeat infringers of copyright or of Merchants about whom repeat claims of copyright infringement are received will be terminated.
Designated Agent for Claimed Infringement:
9452 Telephone Rd. #140
Ventura, CA 93004
17.4 Termination for Copyright Infringement. You acknowledge and agree that, upon receipt of a notice of a claim of copyright infringement, We may immediately cancel your GLOW LOYALTY account without liability to You or any other party and that the claims of the complaining party and the party that originally posted the materials will be referred to the United States Copyright Office for adjudication as provided in the Digital Millennium Copyright Act.
18.1 Merchant's Indemnity. You agree, at your own expense, to indemnify, defend, and hold harmless GLOW LOYALTY, its licensors and their respective directors, officers, employees, and agents from and against all demands, liabilities, losses, claims, and expenses, including, but not limited to, attorneys' fees and disbursements, arising out of (i) Your or any authorized or unauthorized 3rd party's use of the Service, (ii) 3rd party claims, actions, or allegations of infringement based on information, data, or content You submitted in connection with the Service, (iii) any fraud or manipulation, or other breach of this Agreement by You, (iv) 3rd party claims, actions, or allegations brought against GLOW LOYALTY arising out of Your use of the Service, or (v) for any claim whatsoever resulting from You or Your Affiliates', employees', contractors’, or agents' breach of the Children's Online Privacy Protection Act (COPPA) or the Health Insurance Portability and Accountability Act (HIPAA) or any other state or federal medical privacy or electronic privacy laws. GLOW LOYALTY reserves the right, at its own expense and in its sole discretion, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You.
18.2 Indemnification Procedures and Survival. In the event of a potential indemnity obligation under this Section, the indemnified party shall: (i) promptly notify the indemnifying party in writing of such Claim; (ii) allow the indemnifying party to have sole control of its defense and settlement; and (iii) upon request of the indemnifying party, cooperate in all reasonable respects, at the indemnifying party's cost and expense, with the indemnifying party in the investigation, trial, and defense of such Claim and any appeal arising therefrom. The indemnification obligations under this Section are expressly conditioned upon the indemnified party's compliance with this Section. The indemnification obligations contained in this Section shall survive termination of this Agreement for the later of the conclusion of a Claim or one year.
19. Suspension; Discontinuation of Service.
19.1 Suspension for Delinquent Account. GLOW LOYALTY reserves the right to suspend the Merchant’s, and any of the Merchant's Affiliates', access to and/or use of the Service for any accounts for which payment is due but unpaid without notice. The Merchant agrees that GLOW LOYALTY shall not be liable to the Merchant or to any of the Merchant’s Affiliates or other 3rd party for any suspension of the Service pursuant to this section.
19.2 Suspension for Ongoing Harm. The Merchant agrees that GLOW LOYALTY may suspend access to the Service at any time and WITHOUT NOTICE if GLOW LOYALTY reasonably concludes that the Merchant’s use of the Service: (i) is being used to engage in denial of service attacks, spamming, or illegal activity; or (ii) is causing immediate, material and ongoing harm to GLOW LOYALTY or others. In the extraordinary event that GLOW LOYALTY suspends the Merchant's access to the Service, GLOW LOYALTY will use commercially reasonable efforts to resolve the issues causing the suspension of Service. The Merchant further agrees that GLOW LOYALTY will not be liable to the Merchant or any 3rd party for any suspension of the Service under such circumstances as described in this Section.
20. Refunds. GLOW LOYALTY reserves the right, IN IT'S SOLE DISCRETION, to tender a refund to the Merchant. GLOW LOYALTY will not be obligated to provide a refund under any circumstances. Furthermore, under no circumstances will any refund amount provided by GLOW LOYALTY be in excess of the amount of a SINGLE MONTHLY FEE for the month for which the refund is tendered.
21. Dispute Resolution. In the event of any controversy or claim arising out of or relating to these Terms, or any breach thereof, such controversy or claim shall be determined and finally settled by confidential, binding arbitration, conducted in English, held in Los Angeles County, California, administered by the American Arbitration Association (“AAA”) before a sole arbitrator in accordance with the then-current AAA Commercial Arbitration Rules. The award rendered by the arbitrator shall be final and binding on the parties thereto, and judgment thereon may be entered in any court of competent jurisdiction. Any claimants must file an individual request for arbitration, specifying such claimant’s identity, such claimant’s counsel, and a detailed description of the legal claims being asserted and the requested relief, including a good-faith calculation of the specific amount in dispute. Nothing in this Section shall prevent either party from applying to a court of competent jurisdiction for equitable or injunctive relief.
22. Waiver of Class Arbitration or Actions. Any claims that the Merchant or GLOW LOYALTY assert under these Terms will be brought on an individual basis only and not on a class, consolidated, representative, or collective basis. Only individual relief is available for controversies and claims arising out of or relating to these Terms, or any breach thereof, and the Merchant and GLOW LOYALTY agree that class arbitrations and class actions are not permitted under any circumstances. The Merchant understands that, by agreeing to these Terms, the Merchant and GLOW LOYALTY are waiving the right to participate in any form of class arbitration and/or class action.
23. Export Controls. Services available on or through the Service are subject to United States Export Controls. The Service may not be used (a) in (or by a resident of) Cuba, Iran, North Korea, Syria, or any other country which the United States has embargoed goods; or (b) by anyone on the United States Treasury Department's list of Specially Designated Nationals or the United States Commerce Department's Table of Deny Orders. By using the Service, You represent and warrant that You are not located in, under the control of, or a national or resident of any such country or on any such list.
24. International Use. Although the Service may be accessible worldwide, GLOW LOYALTY makes no representation that materials on the Service are appropriate or available for use in locations outside the United States, and accessing them from territories where their contents are illegal is prohibited. Those who choose to use the Service from other locations do so on their own initiative and are responsible for compliance with local laws. Any offer for any service and/or information made in connection with the Service is void where prohibited.
25. General Provisions.
25.1 Notices. All notices to a party shall be in writing and shall be made either via email, conventional mail, or by posting the notice on the Service. Notices to us must be sent to [email protected], if by email, or to Paywhirl, Inc., 9452 Telephone Rd. #140, Ventura, CA 93004, if by conventional mail. Notices to You may be sent either to the email address supplied for Your account or to the address supplied by You as part of Your Registration Process. In addition, We may broadcast notices or messages through the Service to inform You of any changes to the Service or other matters of importance, and such broadcasts shall constitute notice to You.
Any notices or communication under these Terms will be deemed delivered to the party receiving such communication (1) on the delivery date if delivered personally to the party; (2) two business days after deposit with a commercial overnight carrier, with written verification of receipt; (3) five business days after the mailing date, if sent by US mail, return receipt requested; (4) on the delivery date if transmitted by confirmed facsimile; or (5) on the delivery date if transmitted by confirmed email. Either party may update its address or email address for notice purposes via a notice delivered in accordance with this paragraph.
25.2 Costs and Attorney's Fees. In any action to enforce these Terms, the prevailing party will be entitled to costs and attorneys' fees.
25.3 Limitation. Any cause of action brought by the Merchant against GLOW LOYALTY must be instituted within one year after the cause of action arises or be deemed forever waived and barred.
25.4 Severability. If any part of these Terms is held invalid or unenforceable, the parties agree that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect.
25.5 Headings. The headings in this Agreement are for Your convenience of reference only and have no legal effect.
25.6 No 3rd Party Beneficiaries. This Agreement is intended for the sole and exclusive benefit of the Merchant and GLOW LOYALTY, and is not intended to benefit any 3rd party. Only the parties to this Agreement may enforce it.
25.7 Assignment. The Merchant may not assign, transfer, or delegate any rights and obligations under this Agreement to any other party without the prior written consent of an authorized representative of GLOW LOYALTY, except the Merchant may assign or transfer all or any portion of the Merchant’s rights or responsibilities under this Agreement by operation of law or otherwise to any other party in connection with a merger, acquisition, reorganization, or a sale of substantially all of the Merchant’s assets without prior notice to GLOW LOYALTY. Any assignment in violation of this Agreement shall be void and of no force and effect. GLOW LOYALTY may freely assign its rights and obligations under these Terms. All the terms and provisions of this Agreement will be binding upon and inure to the benefit of the parties, their successors, and permitted assigns.
25.8 Subcontracting. GLOW LOYALTY may subcontract its obligations hereunder (provided that GLOW LOYALTY shall at all times remain fully responsible for the performance of any subcontractor).
25.9 Relationship. Each party hereto is an independent contractor, and neither party is, nor will claim to be, a legal representative, partner, franchisee, agent, or employee of the other. This Agreement sets forth the parties' entire liability and exclusive remedies relating to this Agreement and the Service provided to you under this Agreement.
25.10 Force Majeure. In addition to any excuse provided by applicable law, both parties shall be excused from liability for failure or delay in performance of any of its obligations under this Agreement (except for the payment of amounts due hereunder) to the extent that such failure or delay is caused by circumstances beyond its reasonable control, whether or not foreseeable by either party, including, but not limited to, labor disturbance, war, fire, riot, flood, accident, adverse weather, natural disaster, governmental act or regulation, internet or telecommunication failures, terrorist acts, or other causes or events beyond such party's reasonable control, whether or not similar to those enumerated above, provided that the nonperforming party gives notice of such condition and continues or resumes its performance of such affected obligation to the maximum extent and as soon as reasonably possible.
25.11 Assent to Agreement. The Merchant's completion of the Registration Process shall constitute assent to the provisions of the Terms and any additional terms provided in the specific Plan that the Merchant selects during the Registration Process.
25.13 The Applicable Terms. If GLOW LOYALTY makes a material change to any applicable contract terms contained in a URL, GLOW LOYALTY will notify the Merchant by either sending an email to the notification email address, sending conventional mail to the physical address that the Merchant provided GLOW LOYALTY with, or by posting a notice on the Service. If the change has a material adverse impact on the Merchant and the Merchant does not agree to the change, the Merchant must so notify. If the Merchant notifies GLOW LOYALTY as required, then the Merchant's subscription to the Service will be terminated immediately upon receipt of the notice from the Merchant.
25.14 Governing Law. The Service is controlled by GLOW LOYALTY from our offices within the State of California in the United States of America. It can be accessed from all 50 states, as well as from other countries around the world. As each of these places may have laws that may differ from those of California, by using the Service, the Merchant and GLOW LOYALTY agree that the statutes and laws of the State of California, without regard to the conflicts of laws principals thereof, will apply to all matters relating to the use of the Service.
25.15 Jurisdiction and Venue. Each of us agrees and hereby submits to the personal jurisdiction and venue of the Superior Court of Los Angeles County and the United States District Court for the Central District of California with respect to such matters. The parties waive their right to have an action under this Agreement brought or tried elsewhere.
25.16 No Waiver of Rights or Provisions. Any failure of GLOW LOYALTY to enforce or exercise any provision of the Agreement shall not constitute a waiver of that right or provision.