Last Revision: 05/16/2019

These BayIQ Terms and Conditions (the “Terms and Conditions”) are a legal agreement between BayIQ, Inc. (“BayIQ”), a Delaware corporation with its principal place of business located at 7135 East Camelback Road, Suite 360, Scottsdale, AZ 85251 and You (“You”, “Your” or the “Customer”) regarding Your use of the BayIQ Services and associated Content during the Term of the Services acquired by You.

BY ACCEPTING THESE TERMS AND CONDITIONS THROUGH EXECUTION OF THE BAYIQ ORDER FORM, BY USE OF THE SERVICE, OR OTHERWISE ELECTRONICALLY INDICATING YOUR ACCEPTANCE, YOU AGREE TO THE TERMS OF THIS AGREEMENT (AS DEFINED BELOW). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

THESE TERMS AND CONDITIONS AND ANY ASSOCIATED ORDER FORMS OR STATEMENTS OF WORK GOVERN YOUR ACQUISITION AND USE OF THE SERVICE AND SHALL SUPERSEDE ALL PRIOR TERMS OR AGREEMENTS BETWEEN YOU AND BAYIQ.

1.              DEFINITIONS

As used in this Agreement, the following terms shall have the respective meaning as follows:

“Affiliate” is any person which Controls a party to this Agreement, which that party Controls, or which is under common Control with that party.

“Agreement” means collectively these Terms and Conditions and any applicable Order Form, Statement of Work, and Content.

“Authorized User” means Customer and its Affiliate’s employees, consultants, contractors, and agents who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement.

“BayIQ IP” means the Services, the Content, and any and all intellectual property used by BayIQ to provide the Services. For the avoidance of doubt, BayIQ IP includes Aggregated Statistics and any information, data, or other content derived from BayIQ’s monitoring of Customer’s access to or use of the Services but does not include Customer Data.  

“BayIQ Affiliate” means collectively, the Affiliates of BayIQ, and BayIQ’s Licensors, distributors, and partners.

“Content” means all BayIQ’s end user documentation relating to the Services. 

“Control” means the power to direct or cause the direction of the management and policies of a Person, directly or indirectly, through voting securities, contract or otherwise.

“Customer Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services.

“Fees” means those fees attached to the Order Form and accepted by Customer by execution of the Order Form.

“Licensors” means collectively BayIQ’s third party licensors and suppliers. 

“Marks” means collectively all Bay IQ, or its Licensor’s as applicable, trademarks, trade names, service names or logos associated with the Services.

“Order Form” means the BayIQ order form.

“Person” means any individual, company, firm, business, corporation, partnership, limited liability company, trust, estate, association, governmental authority, or any other entity of any kind.

“Professional Services” means the professional services identified on a Statement of Work for Professional Services, for a separate and additional charge, to assist with Service implementation and training.

“Service(s)” means collectively the Subscription Services, Professional Services, Content, and any Third Party Products.

“Subscription Services” means collectively the BayIQ marketing and loyalty platform and its component business applications.

“Subscription Term” means the term set forth in the applicable Order Form for the Customer’s use of and access to the Subscription Services.

“Terms and Conditions” means these BayIQ Terms and Conditions.

“Third Party Products” has the meaning set forth in Section 4.4.

2.              LICENSES AND USE RIGHTS

2.1.          License Grant

Subject to Customer’s adherence to this Agreement and in consideration for the Fees paid, BayIQ hereby grants Customer, during the Subscription Term, a limited, non-exclusive, non-transferable license (without the right to sublicense) to use and access the Service for purposes consistent with this Agreement and only during the Subscription Term. All rights not expressly granted to Customer are reserved by BayIQ and its Licensors.

2.2.          Restrictions

Customer shall not: (a) license, sublicense, sell, resell, transfer, assign, encumber, lease, distribute or otherwise commercially exploit or make available to any third party the Service or any Content in any way; (b) modify or make derivative works based upon the Service or the Content, including without limitation, customization, translation, or localization; (c) create Internet “links” to the Service or “frame” or “mirror” any Content on any other server or wireless or Internet-based device; or (d) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code of the Service, or the underlying ideas or algorithms of the Service (e.g. in an effort to develop other applications or services that provide competitive or similar or substitute or complimentary functionality to such Service); (e) use the Service to develop software or other services; (f) use the Service to provide services to any third party on an application service provider or service bureau basis; (g) use the Service in any way that violates this Agreement or any law; or (h) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in or on the Service.

2.3.          Updates

This Agreement shall apply to all updates and upgrades (if any) subsequently provided by BayIQ to Customer for the Service. BayIQ shall host the Service and may update the functionality, user interface, usability, and other user documentation, training, and educational information of, and relating to the Service from time to time in its sole discretion.

3.              OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS AND CUSTOMER DATA

3.1.          BayIQ IP

Customer acknowledges and agrees that, subject to the license grants contained in this Agreement, BayIQ owns all right, title and interest, including all intellectual property rights, in and to the BayIQ IP and, with respect to Third Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third Party Products. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the BayIQ IP, or any other intellectual property or rights therein except for the limited licenses granted to Customer under the terms and conditions set forth in this Agreement. Any and all software, algorithms, applications, source codes, structures, sequences, routines, subroutines and related programming, engineering or technological matter developed or created by BayIQ or its Licensors (and all copyrights, patents, trademarks and other proprietary rights related thereto) shall remain the sole, exclusive and perpetual property of BayIQ or its Licensors, as applicable.

3.2.          Customer Data

BayIQ acknowledges that, as between BayIQ and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data, which includes without limitation customer information in Customer’s customer relationship management system, website, and/or point-of-sale systems, electronic lists of customer’s and employee’s email addresses, a history of transactions via the Services and Customer locations (i.e. the date, time, location and amount of each customer’s individual purchases), and the customer’s progress in Customer campaigns (i.e. campaign credit earned and redeemed, and status in any ongoing campaigns), and any other information, data, or content in any form submitted, posted, or otherwise transmitted by or on behalf of Customer or its Authorized User through the Service, excluding Aggregated Statistics. Customer hereby grants to BayIQ a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for BayIQ to provide the Services to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, publish, sublicense the consumer review data and any surveys BayIQ conducts on Customer’s behalf, and otherwise use and display Customer Data incorporated within the Aggregated Statistics.

3.3.          Security

BayIQ shall maintain commercially reasonable administrative, physical and technical safeguards for the protection, confidentiality, and integrity of Customer Data.

3.4.          Data Protection in Canada

To the extent that the Content, Order Form, or Customer Data that Customer sends, receives, or stores via the Services provided to a Customer location in Canada includes “personal information” as defined under the Personal Information Protection and Electronic Documents Act (2000, c. 5) (PIPEDA) (“Canada Personal Information”), BayIQ shall use and disclose such Canada Personal Information solely (a) for the purpose of fulfilling BayIQ’s obligations or exercising BayIQ’s rights under the Agreement (which shall, for clarity, include providing, supporting, or enhancing (e.g., performing quality control functions) the Services); (b) as approved in advance in writing by Customer; (c) in accordance with Customer’s instructions; or (d) for the purpose of complying with applicable laws, including without limitation in response to legal process. 

3.5.          Feedback

If Customer or any its Authorized Users sends or transmits any communications or materials to BayIQ by mail, email, telephone, or otherwise, suggesting or recommending changes to the BayIQ IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), BayIQ is free to use such Feedback without any other or limitation between the parties governing such Feedback.

3.6.          Aggregated Statistics

BayIQ collects anonymized, aggregate data in order to provide such additional products and services to Customer, including to compile statistical and performance information related to the provision and operation of the Service. Notwithstanding anything to the contrary in this Agreement, BayIQ may monitor Customer’s use of and access to the Service and collect and compile Aggregated Statistics. As between BayIQ and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by BayIQ. Customer acknowledges that BayIQ may compile Aggregated Statistics based on Customer Data input into the Service and agrees that BayIQ may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer, its Authorized Users or either of their Confidential Information.

3.7.          Trademarks

The Marks are trademarks of BayIQ or its Licensors, and no right or license is granted to Customer to any Mark. Customer hereby acknowledges BayIQ’s or its Licensors’ perpetual and exclusive ownership of and title to the Marks and the goodwill attaching thereto. Customer agrees not to use or attempt to use any Mark or register any Mark that is confusingly or deceptively similar to the Marks.

4.              SERVICES

4.1.          Order Forms and Statements of Work

The Services shall be subscribed to by Customer or its Affiliates pursuant to Order Forms and shall include, at a minimum, a listing of the Services and related deliverables. Professional Services (defined below) shall be ordered by Customer or its Affiliates pursuant to Order Forms and shall include, at a minimum, a description of the Professional Services. Except as otherwise mutually agreed in this Agreement, each Order Form and/or Statement of Work is non-cancellable and shall be subject to This Agreement. For any order by Customer or its Affiliate for the benefit of Customer Affiliate(s), the terms “You” and “Customer” shall refer to Customer and such Affiliate(s).

4.2.          Professional Services

Customer may elect to purchase Professional Services, for a separate and additional charge, to assist with Service implementation and training. If Customer elects to purchase Professional Services, then Customer must fully utilize the purchased Professional Services within ninety (90) days of such election, unless explicitly agreed otherwise by both BayIQ and Customer. Failure to utilize such Professional Services will result in the forfeiture of any unused Professional Services and no refund or credit for such Professional Services shall be issued.

4.3.          Subscription Services

Subscription Services are licensed by Customer from BayIQ via an initial Order Form and any subsequent Order Form from time to time. Subscription Services may include offline components that are installed on Customer controlled devices but excludes Professional Services.

4.4.          Third Party Products

The Services contains third party application programming interfaces that are included in the Services or otherwise made available to Customer (“Third Party Products”). Customer’s use of any Third Party Products, whether stand alone or integrated into the Service, in each case, is subject to any additional terms and conditions or limitations set forth the applicable Order Form. Such limitations may include a limitation or throttle on the number of calls that Customer may make to the Third Party Product or similar usage restrictions. BayIQ may utilize technical measures to prevent over usage and/or stop usage of the Third Party Product by Customer after any usage limitations are exceeded. By execution of this Agreement, Customer acknowledges and agrees to the Third Party Product’s terms and conditions and will abide by the terms therein.

4.5.          Customer Support

As part of the Subscription Services, BayIQ will provide Customer with support Content and other online resources to assist Customer in its use of the Subscription Services. BayIQ training courses and consultations are available for an addition Fee. Customer acknowledges that BayIQ has extensive experience helping customers improve utilization and realization of benefits of the Subscription Services and that not following the advice of BayIQ and/or not engaging BayIQ in the provisioning of Professional Services may substantially limit its ability to successfully utilize the Subscription Services or to enjoy the power and potential of the Subscription Services.

4.6.          Modifications or Discontinuation of Services

BayIQ may make modifications to the Subscription Services or particular components of the Subscription Services and will use commercially reasonable efforts to notify Customer of any material modifications. BayIQ reserves the right to discontinue offering the Subscription Services at the conclusion of Customer’s then current Subscription Term for such Subscription Services in its sole discretion.

5.              MARKETING AND PUBLICATION

In order to promote the success and accelerated use of the Services following integration at Customer locations, BayIQ suggests that Customer engage in all or some of the following marketing initiatives, which BayIQ has found to be particularly effective, specifically including the following: (a) in-store promotion including stickers on windows and posters in store; (b) handing out cards promoting the Services to customers for four (4) weeks post launch at each location; (c) staff employees on-site during the week of application launch to promote usage of the Services; (d) email promotion to Customer’s existing customer base; and (e) social media promotion of Services on Customer’s websites.

BayIQ will list and/or promote Customer location(s) to customers in a manner as determined by BayIQ. In connection with such efforts, Customer grants BayIQ, BayIQ Affiliates and its advertising partners, a limited, non-exclusive license to use, copy, reproduce, modify, license, distribute and publish any of Customer trademarks, service marks, logos, photographs, text, images or other content for publication (“Customer Marketing Content”) as part of marketing or promotion of Customer’s use of the Services to BayIQ users and new users, including in applications, and through the online services of BayIQ Affiliates and advertising partners. Customer represents and warrants to BayIQ that Customer has the right to provide the Customer Marketing Content to BayIQ, and that the use, copying, modification and publication of the Customer Marketing Content by BayIQ and by its BayIQ 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.

6.              DATA AND THIRD PARTY ACCOUNT CONSENT

6.1.          Data Consent for Services

In connection with the provision of the Services, customer support, training and other services, Customer agrees that BayIQ may remotely log-in to Customer computers, devices and systems, which remote login may be conducted through the use of third party entities: (a) for purposes of providing or maintaining the Services or customer support, which customer support, includes, without limitation, technical troubleshooting, answering questions, or benchmarking and providing training to Customer or its personnel; (b) to quarantine suspected messages; (c) to modify any domain and user settings with or without notice, including without limitation, altering settings so that spam or bulk email is denied, in lieu of quarantine to avoid space capacity issues; (d) to check the version of Subscription Services utilized and provide updates or upgrades as necessary, which Customer hereby consent to such updates and/or upgrades.

Customer agrees to keep its computers powered on during the Subscription Services runtimes that it specifies. Customer must add BayIQ or its third party affiliate to the “allowed” list of programs and ensure that its firewall and anti-virus software programs do not block BayIQ access. Additionally, Customer’s point-of-sale software must always be accessible by BayIQ. It is Customer’s responsibility to contact BayIQ if it upgrades or changes its computer systems.

6.2.          Access to Third Party Accounts and Services

The Services may require Customer to give BayIQ access to or require Customer to provide login and password credentials for accounts or services it may have with third party providers. By providing such login credentials to BayIQ or by giving BayIQ access to these third party accounts, Customer represents and warrants that it has complied with all agreements governing BayIQ’s access and that Customer has all the necessary contractual and legal rights to provide BayIQ with such login credentials or access.

7.              CUSTOMER RESPONSIBILITY

7.1.          Customer Responsibility and Passwords

Customer is solely responsible for any and all activity occurring under its and its Authorized User’s user accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with its use of the Services, including those related to data privacy, international communications and the transmission of technical or personal data. Customer will choose a password and a user name and Customer is entirely responsible for maintaining the confidentiality of its password and account. BayIQ will act as though any electronic communications it receives under Customer’s passwords, username, and/or account number will have been sent by Customer. Customer agrees to notify BayIQ immediately of any unauthorized use of its account or any breach of security of its account. BayIQ will not be liable for any loss that Customer may incur as a result of unauthorized use, regardless if Customer had knowledge of such unauthorized use. Customer warrants and represents that: (a) the content to be transmitted by or on its behalf does not constitute SPAM; (b) the content to be transmitted by or on its behalf is not illegal, threatening, hateful, vulgar, obscene, libelous or defamatory and does not and will not infringe upon any trademark, patent, copyright, trade secret or other proprietary, publicity or privacy right of any third party or BayIQ; and (c) Customer has complied and continue to comply with all applicable laws and regulations respecting its execution and performance of this Agreement. If Customer is using any content featuring a model or property with a subject that would be unflattering or unduly controversial to a reasonable person, Customer must accompany such use with a statement that indicates that (i) the content is being used for illustrative purposes only and (ii) any person depicted in the content is a model.

7.2.          Third Party Software

The Services receives data from third party software systems, which Customer will designate in the process of setting up the Service. If Customer elects to change, upgrade or materially alter the third party software system from which BayIQ receives data, BayIQ does not guarantee that all Customer Data or Service functionality will be preserved. BayIQ may offer Professional Services from time to time to assist with changes to third party software systems and will be scoped in a separate Statement of Work. Customer is responsible for communicating any changes in data structure, management system, or hardware upgrades that may impact BayIQ’s ability to receive and process Customer Data. In addition, Customer is responsible for providing BayIQ with accurate instructions and information regarding the third party systems and databases with which the Service will interface, and Customer will bear all responsibility for incomplete, inaccurate or otherwise faulty information regarding third party systems and databases belonging to it as conveyed to BayIQ in connection with set up or maintenance of the Service. BayIQ is not liable for any issues, interruptions or decreases in performance or service as a result of issues with third-party software systems.

7.3.          Customer Data and Account Information

Except for Aggregated Statistics, BayIQ does not own any Customer Data it submits in the course of using the Services. Except in accordance with this Agreement, if applicable, or as required by law, Customer Data in identifiable form will not be disclosed, sold, assigned, licensed or otherwise disposed of by BayIQ to any third party. Customer shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and, except as provided in this Agreement or as required by law, BayIQ shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data, or for the improper or erroneous upload or extraction of any Customer Data. BayIQ reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, non-payment of any amount due under this Agreement. Upon termination for cause, Customer’s right to access or use Customer Data immediately ceases and BayIQ shall have no obligation to maintain or forward any Customer Data.

BayIQ may, but has no obligation to, monitor any content created by Customer or its Authorized Users using the Services. BayIQ may disclose any information necessary or appropriate to satisfy BayIQ’s legal obligations, protect BayIQ or its customers, or operate the Services properly. BayIQ, in its sole discretion, may refuse to post, remove, or require Customer to remove, any of its content, in whole or in part, alleged to be unacceptable, undesirable, inappropriate, or in violation of this Agreement. BayIQ may, in its discretion, require Customer to place all or any portion of its content behind password protection in which event, Customer may not publish the password or similar information in any way that limits the effectiveness of the password. If BayIQ requests that Customer place any of its content behind password protection and Customer fails to do so promptly, BayIQ may (a) place such content behind password protection itself, or (b) immediately terminate this Agreement.

7.4.          Sufficient Electronic Communications

Customer is responsible for operating its own electronic communications capabilities in a manner sufficient for proper transmission of the Subscription Services. Except as otherwise permitted herein, Customer shall be fully responsible for the following: (a) procuring and maintaining the network connections that connect the Customer network to the Subscription Services via a high-speed Internet connection; (b) accessing the Subscription Services only via browsers or applications that support the protocols used by BayIQ, including Secure Socket Layer (SSL) protocol or other protocols accepted by BayIQ; (c) to follow logon procedures for services that support such protocols; and (d) using commercially reasonable efforts to prevent unauthorized access to or use of the Subscription Services.

7.5.          Accurate Contact Information

Customer shall provide accurate, current, timely and complete information on its legal business name, address, email address, and phone number and shall promptly update and give Notice (as defined below) to BayIQ of all contact and billing information if it should change.

7.6.          Exclusions

BayIQ excludes responsibility, without limitation, the following: (a) BayIQ is not responsible for notifying Customer of any upgrades, fixes, or enhancements to any such software, or for any compromise of data transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned or operated by BayIQ; (b) BayIQ shall not be liable to Customer nor any third party for any modification of the Services; and (c) BayIQ shall not be liable for any loss or damage resulting from late delivery, which delivery times and dates are approximations and BayIQ shall use its reasonable endeavors to comply.

8.              CONFIDENTIALITY

From time to time during the Term, either party may disclose or make available to the other party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, and whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) information which at the time of disclosure or acquisition is in the public domain, or which after disclosure or acquisition becomes part of the public domain without violation of this Section; (b) known to the receiving party at the time of disclosure; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party; (d) information that the receiving party develops independently without any use of or reference to the Confidential Information of the disclosing party, as evidenced by contemporaneous written records; or (e) is required to be disclosed to governmental agencies having regulatory authority or other authority of the receiving party, or (f) is required by a court order to disclose or to provide such Confidential Information, provided that receiving party shall use its best efforts, to the extent permitted by law to do so, to promptly give disclosing party written prior notice to any disclosure under this clause (e) or (f) so that disclosing party can seek a protective order by any court orders to provide access to, or copies of, such information. The receiving party shall not disclose the disclosing party’s Confidential Information to any person or entity, except to the receiving party’s employees who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required to establish a party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving party shall promptly return to the disclosing party all copies, whether in written, electronic, or other form or media, of the disclosing party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing party that such Confidential Information has been destroyed. Each party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five (5) years from the date first disclosed to the receiving party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.

9.              LIMITATIONS OF LIABILITY

IN NO EVENT SHALL BAYIQ, BAYIQ AFFILIATES, AND THEIR RELATED ENTITIES, OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, SUB-CONTRACTORS, LICENSORS, OR PARTNERS BE LIABLE FOR: ANY INDIRECT, INCIDENTAL, UNFORESEEABLE, EXEMPLARY, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING WITH NO LIMITED ANY DAMAGES FOR LOSS OF PROFITS, LOSS OF EARNINGS, COSTS OF PROCUREMENT OR SUBSTITUTE GOODS OR SERVICES, OR LOSS OF BUSINESS OPPORTUNITIES OR LOSS OF ANY OTHER ECONOMIC ADVANTAGE) ARISING FROM BREACH OF CONTRACT, OR NEGLIGENCE, OR ANY OTHER LEGAL CAUSE OF ACTION ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING WITHOUT LIMITATION FOR, LOSS OF DATA OR OTHER CUSTOMER CONTENT RESULTING FROM DELAYS, NON-DELIVERIES, MISDELIVERIES, SECURITY BREACHES TO, SERVICE INTERRUPTIONS, OR ERRORS OR OMISSIONS RESPECTING THE SERVICE OR THE OPERATION OF BAYIQ OR ITS LICENSORS’ NETWORKS OR LOSSES OR LIABILITIES DUE IN WHOLE OR IN PART TO INADVERTENT, PREMATURE OR UNAUTHORIZED RELEASE OR DISCLOSURE OF INFORMATION BY CUSTOMER VIA BAYIQ OR ITS LICENSORS’ NETWORKS, REGARDLESS OF WHETHER SUCH LOSS OR DAMAGE WAS FORESEEABLE OR BAYIQ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT SHALL BAYIQ’S AGGREGATE LIABILITY HEREUNDER, TOGETHER WITH ITS PARENT, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, LICENSORS, PARTNERS AND BAYIQ AFFILIATES, EXCEED THE AMOUNT THAT BAYIQ RECEIVED UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENTS FIRST GIVING RISE TO A CLAIM.

NO ACTION OR CLAIM RELATING TO THIS AGREEMENT SHALL BE MADE AGAINST BAYIQ OR ITS PARENT, LICENSORS, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, PARTNERS OR AFFILIATES BY CUSTOMER OR ON CUSTOMER’S BEHALF MORE THAN TWELVE (12) MONTHS AFTER THE EVENT GIVING RISE TO SUCH ACTION OR CLAIM.

10.           INDEMNIFICATION

Customer will indemnify and hold BayIQ (including its BayIQ Affiliates, related entities, officers, directors, employees, contractors, subcontractors, Licensors, partners and agents) harmless from any claim, demand, judgement, liability, damage, cost and expense, including attorneys’ fees and costs, in each case as and when incurred, arising out of, relating to, or incurred in connection with, any of the following: (a) Customer breach of this Agreement; (b) Customer’s failure to grant, redeem, or honor a campaign incentive, credit or reward of any of its reward programs or campaigns; (c) the products or services provided or required to be provided by Customer; (d) Customer’s failure to interact with or maintain its POS integration; (e) Customer’s use or misuse of Customer Data and reporting or analytics services provided by BayIQ.; (f) use of the Services in a manner not authorized by this Agreement; (g) modifications to the Services not made by BayIQ; (h) negligence or willful misconduct; and (i) use of the Services in combination with data, software, hardware, equipment or technology not provided by BayIQ or authorized by BayIQ in writing

BayIQ shall have the right to appoint counsel to defend any claim, action, suit, investigation or proceeding (“Claim”) or third party Claim covered by Customer’s indemnification obligations set forth herein at Customer’s cost and expense. Customer shall have no right to control the defense or settlement of any such Claim, and it shall not settle or compromise any such Claim without BayIQ’s prior written consent.

11.           TERM AND TERMINATION

11.1.       Term

The term of this Agreement shall commence on the effective date set forth in the initial Order Form (“Effective Date”) and shall continue for the term set forth in the Order Form, unless otherwise terminated in accordance with the terms set forth herein (the “Initial Term”). At the end of the Initial Term, this Agreement will automatically renew for consecutive one (1) year periods (each, a “Renewal Term” and collectively with the Initial Term, the “Term”) on a successive and rolling basis unless Customer provides BayIQ with written notice thirty (30) days prior to the expiration of then current Term that: (i) this Agreement will not renew for a then-succeeding Renewal Term; or (ii) the duration of the Renewal Term will not be for a one (1) year Renewal Term and BayIQ has accepted such amended duration of the Renewal Term.

11.2.       Suspension for Delinquent Account

BayIQ reserves the right to suspend Customer and any Authorized User’s access to and/or use of the Subscription Services for any accounts if any payment is due but unpaid only after BayIQ has provided Customer two (2) delinquency notices, and at least thirty (30) days have passed since the transmission of the first notice. With prior written notice, accounts may be suspended in BayIQ’s sole discretion for non-payment without any delinquency notice if Customer has previously had an account suspended for non-payment. The suspension is for the entire account and all users, and Customer understands that such suspension would therefore include affiliate sub-accounts. Customer agrees that BayIQ shall not be liable to Customer or to any Customer affiliate or other third party for any suspension of the Subscription Services pursuant to this Section.

11.3.       Suspension for Ongoing Harm

BayIQ may immediately suspend access to the Subscription Services if BayIQ reasonably believes or concludes that Customer’s Subscription Services is being used to engage in denial of service attacks, spamming, or illegal activity, or any other use of the Subscription Services not authorized in this Agreement. In the event that BayIQ suspends access to the Subscription Services, BayIQ may, in its sole discretion, use commercially reasonable efforts to limit the suspension to the offending portion of the Subscription Services until such issue causing suspension has been resolved. BayIQ shall not be liable to Customer nor to any third party for any suspension of the Subscription Services under such circumstances as described in this Section.

11.4.       Termination for Cause/Expiration

Either party may immediately terminate this Agreement and all Order Forms and Statements of Work issued hereunder in the event the other party commits a material breach of any provision of this Agreement which breach is not cured within thirty (30) days (“Cure Period”) of the receipt of written notice from the non-breaching party. BayIQ may immediately terminate this Agreement and all Order Forms hereunder if Customer commits a material breach of any provision of this Agreement that BayIQ decides in its sole discretion would create a material and ongoing harm to BayIQ or others if such Cure Period was granted. Such notice by the complaining party shall expressly state all of the reasons for the claimed breach in sufficient detail so as to provide the alleged breaching party a meaningful opportunity to cure such alleged breach, if applicable, and shall be sent in compliance with the Notice provision set forth below. Upon termination or expiration of this Agreement, all access to the Subscription Services shall cease. Any attempt by Customer to terminate this Agreement other than as expressly provided herein shall be deemed a breach. Upon termination of this Agreement by BayIQ for Customer’s breach, BayIQ shall be entitled to all of the Fees due under this Agreement for the entirety of the remaining portion of the Term. In the event Customer terminates this Agreement for breach, BayIQ may, but has no obligation to, issue a refund of the pro rata portion of any Fees actually paid by Customer under the Agreement.

11.5.       Customer Data Upon Termination

Customer agrees that following termination of this Agreement, BayIQ may deactivate Customer’s account user access. BayIQ shall not be liable to Customer nor to any third party for any termination of Customer’s access to the Subscription Services or deletion of Customer Data. If Customer requires support to retrieve Customer Data following termination, it may engage BayIQ under a formal Statement of Work for Professional Services at an additional fee.

12.           FEES AND PAYMENTS

12.1.       Price Quotes

Prices, which are expressed herein in U.S. Dollars (if not clearly stated otherwise), are only valid if expressed in writing by BayIQ and only for the period stated in the quotation or Order Form. Absent any price validity period, the prices set forth in the quote shall be valid for 21 days from the date received by Customer.

12.2.       Fees

Customer agree to pay all the Fees for the Services as specified in any Order Forms and/or Statements of Work in accordance with the terms of this Agreement. All payment obligations incurred by Customer during the Term of this Agreement are non-cancelable and all amounts paid are non-refundable, except as otherwise explicitly agreed upon in writing by BayIQ and Customer.

12.3.       Invoices and Payments

The Fees for Subscription Services shall accrue and commence upon the earlier of (i) the date in which Customer accesses or uses the Subscription Service platform, or (ii) thirty (30) days following the Effective Date. BayIQ will automatically renew and bill Customer’s credit card or issue an invoice to Customer every month for all Fees, unless otherwise mutually agreed. BayIQ’s failure to invoice Customer on a timely basis does not relieve Customer of responsibility to pay the Fees. Customer expressly agrees that BayIQ is authorized to charge Customer (a) a recurring monthly fee for any applicable Services billed on a monthly basis automatically, (b) any other Fees for the Services Customer may purchase, and (c) any applicable taxes in connection with Customer’s use of the Services to the Bank Card (defined below); (d) to reimburse BayIQ for all collection costs and interest for any overdue amounts. If Customer’s Bank Card declines or BayIQ cannot collect the fees for any reason, Customer will have thirty (30) days to make the payment of all overdue Fees. If such overdue Fees are not paid within such 30 days, such overdue Fees will accrue interest at the rate of 1.5% per month and BayIQ will suspend all Services until all overdue Fees and any applicable interest are paid in full.

12.4.       Bank Card Authorization

By providing credit/debit card information (“Bank Card”) to BayIQ, Customer authorizes BayIQ to automatically charge the designated Bank Card for the Fees as set forth herein and as selected in the Order Form without any further authorization. Customer acknowledges that the foregoing registration will remain in effect until the termination of this Agreement or until Customer provides notice of automatic payment cancellation fifteen (15) days prior to the next billing cycle.

12.5.       Invoice Disputes

If Customer thinks that there is an error on its account, including an incorrect amount or unauthorized transaction, Customer may contact BayIQ at: accounting@bayiq.com or BayIQ Inc, 7135 East Camelback Road, Suite 360, Scottsdale, AZ 85251, or at (480) 752-0310 prior to the next billing cycle. In the event an error has occurred on Customer’s account, BayIQ will issue a credit to Customer’s account in the amount of the error.

12.6.       Taxes

All Fees and other any other fees charged hereunder are exclusive of all taxes or duties imposed by governing authorities, including without limitation sales, use, excise, gross receipts and other taxes and fees (“Taxes”). Customer agrees to be responsible for payment of such Taxes arising from the use of the Services or payment of any Fees hereunder. If BayIQ has the legal obligation to pay or collect Taxes for which it is responsible under this Section, the appropriate amount shall be invoiced and paid by Customer unless it provides BayIQ with a valid tax exemption certificate authorized by the appropriate taxing authority.

13.           REPRESENTATIONS AND WARRANTIES

EXCEPT AS EXPLICITLY SET FORTH HEREIN, THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” AND BAYIQ HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. BAYIQ SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. BAYIQ MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, BAYIQ IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE FREE FROM VIRUSES OR OTHER HARMFUL CODE, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.

FURTHER, BAYIQ AND ANY THIRD PARTIES ACTING ON ITS BEHALF, AND ITS BAYIQ AFFILIATES WILL NOT BE LIABLE FOR ANY DELAY, DIFFICULTY IN USE, INACCURACY OF INFORMATION, COMPUTER VIRUSES, MALICIOUS CODE OR OTHER DEFECT IN THE SERVICE, OR FOR ANY OTHER PROBLEMS EXPERIENCED BY CUSTOMER DUE TO CAUSES BEYOND BAYIQ’S OR ANY THIRD PARTIES ACTING ON ITS BEHALF, OR ITS BAYIQ AFFILIATES’ CONTROL.

FURTHER, BAYIQ EXPRESSLY DISCLAIMS ANY AND ALL RESPONSIBILITY AND LIABILITY WITH RESPECT TO SEPARATE AGREEMENTS CUSTOMER MAY MAKE WITH CONSUMERS OR SITE USERS, AND CUSTOMER WILL LOOK SOLELY TO SUCH PERSONS AND/OR ENTITIES WITH RESPECT TO ANY AND ALL CLAIMS ARISING OUT OF SUCH AGREEMENTS. CUSTOMER WILL BE SOLELY RESPONSIBLE FOR THE PROFESSIONAL AND TECHNICAL SERVICES CUSTOMER PROVIDES. BAYIQ HAS NO LIABILITY FOR THE CONSEQUENCES TO CUSTOMER OR ITS CONSUMERS OR SITE USERS for customer’s USE OF THE SERVICE.

BAYIQ MAKE NO REPRESENTATIONS OR WARRANTIES THAT THE SERVICE OR THE CONTENT ARE APPROPRIATE OR AVAILABLE FOR USE IN ALL GEOGRAPHIC LOCATIONS. IF CUSTOMER USES THE SERVICES OR THE CONTENT OUTSIDE THE UNITED STATES OF AMERICA, CUSTOMER IS SOLELY RESPONSIBLE FOR COMPLIANCE WITH ALL APPLICABLE LAWS, INCLUDING WITHOUT LIMITATION EXPORT AND IMPORT REGULATIONS OF OTHER COUNTRIES.

IN ADDITION, CUSTOMER ACKNOWLEDGES AND AGREES THAT ANY DATA, INFORMATION, CONTENT OR MATERIALS CONTAINED IN OR MADE AVAILABLE IN CONNECTION WITH THE SERVICES ARE NOT INTENDED AS A SUBSTITUTE FOR, THE KNOWLEDGE, EXPERTISE, SKILL AND JUDGMENT, TAX, LEGAL OR OTHER PROFESSIONALS. THE SERVICES DO NOT PROVIDE TAX OR LEGAL ADVICE. CUSTOMER IS RESPONSIBLE FOR OBTAINING SUCH ADVICE.

14.           GENERAL PROVISIONS

14.1.       Entire Agreement

This Agreement, together with any other documents incorporated herein by reference and all related Order Forms and Statements of Work, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Order Forms and Statements of Work, and any other documents incorporated herein by reference, the following order of precedence governs: (i) this Agreement, excluding the Order Forms and Statements of Work; (ii) second, the Order Forms and Statements of Work to this Agreement as of the Effective Date; and (iii) third, any other documents incorporated herein by reference.

14.2.       Amendment and Modification; Waiver

No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

14.3.       Governing Law

This Agreement is governed by and construed in accordance with the internal laws of the State of Arizona without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Arizona. In the event a Claim arises between the parties out of this Agreement, such Claim shall be submitted to binding arbitration pursuant to the rules and regulations of the American Arbitration Association, and such hearing shall be conducted within the city of Phoenix, State of Arizona, in accordance with the laws of such State. Judgment upon award of the arbitrator may be entered into any court having jurisdiction thereof, and may provide for reimbursement of costs, including reasonable attorneys’ fees, to the prevailing party.

14.4.       Waiver of Jury Trial

EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS, AND APPENDICES ATTACHED TO THIS AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS, AND APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.

14.5.       External Sites

BayIQ provides hypertext links to sites on the Internet, which are operated by other people. Using an external hypertext link means that Customer may be leaving BayIQ’s site and BayIQ therefore takes no responsibility for and gives no warranties, guarantees, or representations in respect of the linked sites.

14.6.       Force Majeure

Neither party shall be liable for any loss or delay (Including failure to meet the service level commitment) resulting from any force majeure event, including, but not limited to, acts of God, fire, natural disaster, terrorism, labor stoppage (other than those involving BayIQ employees), Internet service provider failures or delays, civil unrest, war or military hostilities, or criminal acts of third parties. Any payment date or delivery of Subscription Services date shall be extended to the extent of any delay resulting from any force majeure event.

14.7.       Severability

If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

14.8.       Notice

All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the parties at the addresses set forth on the Order Form (or to such other address that may be designated by the party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email to legal@bayiq.com (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving party; and (ii) if the party giving the Notice has complied with the requirements of this Section.

14.9.       Assignment

Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of BayIQ. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the parties and their respective permitted successors and assigns.

14.10.    Export Regulation

The Services utilize software and technology that may be subject to United States of America (“U.S.”) export control laws, including the U.S. Export Administration Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Services or the underlying software or technology to, or make the Services or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services or the underlying software or technology available outside the U.S.

14.11.    Equitable Relief

Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 2.2 or 6, would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.

14.12.    Counterparts

This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.

THE PARTIES ACKNOWLEDGE THAT THEY HAVE READ THIS AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS, AND THE PERSON SIGNING ON BEHALF OF EACH HAS BEEN AUTHORIZED TO DO SO. IF THE PERSON SIGNING BELOW ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH PERSON REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS.