Terms of Service

Terms of Service

These Terms of Service (these “Terms”) are a legal agreement between Choice Digital, Corp. (“CDCO”) and the person or entity agreeing to these Terms (“Client”). If you are agreeing to these Terms on behalf of a third party entity, you represent and warrant that you have sufficient right to bind such third party to these Terms, in which case, all references to “Client” in these Terms shall be references to such third party. If Client has entered into a separate agreement with CDCO for services described in these Terms (a “Services Agreement”), then Client’s access to and use of such services is, at all times, subject to the terms and conditions of the Services Agreement. Nothing in these Terms modifies Client’s rights or obligations under the Services Agreement. BY REGISTERING FOR THE PLATFORM OR SERVICE, OR BY OTHERWISE ACCESSING THE PLATFORM OR USING ANY OF THE SERVICES, CLIENT AGREES TO BE BOUND BY THESE TERMS. IF CLIENT DOES NOT AGREE TO THESE TERMS, CLIENT MAY NOT ACCESS OR USE THE PLATFORM OR SERVICES.

1. Services

1.1 General. CDCO provides a proprietary secure, web-based platform (the “Platform”) through which Client may send incentives, payments, and other disbursements to their customers and other third parties (“Recipients”), and/or electronic codes or tokens for Recipients to redeem the same (collectively “Disbursements”). The Platform and all online or offline services which CDCO provides in connection with the Platform are referred to as the “Services.”

1.2 Orders; Fulfillment. Client may purchase Disbursements, selecting the type, quantity, and Recipient(s), by submitting an order through the Platform (an “Order”). All Orders placed by Client are subject to acceptance by CDCO. Disbursements will be fulfilled in accordance with the Order and CDCO’s standard practice. Fulfillment terms may vary based on the Disbursement product purchased and shall be described on the Platform. CDCO’s ability and obligation to issue Disbursements is contingent upon CDCO’s receipt of all information requested by CDCO to issue the Disbursement.

1.3 Physical Disbursements. Disbursements of physical Disbursement products are complete upon CDCO’s delivery of the Disbursements to an applicable carrier. Shipping fees are inclusive of associated postage via regular mail, though all such fees will automatically be adjusted without any action by the Parties following any increase in the relevant postal rates.

1.4 Information Requests. CDCO, the merchant issuer or issuing bank with whom the accounts associated with the Disbursements are held (“Issuer”), the applicable credit card network (the “Network”), and/or applicable third-party vendors may require Client to provide certain information to identify: (i) the intended use of Disbursements issued under an Order, (ii) Client’s identity, and (iii) Client’s ownership structure/owners. Such information may be used to comply with applicable anti-money laundering laws, and to confirm that Order and Disbursements will comply with applicable laws, rules, and regulations. Client represents and warrants that any such information provided to CDCO is true and accurate and shall remain true and accurate prior to the placement of any Order. Based upon the information so provided (or Client’s failure to provide such information), CDCO, the Issuer, the Network, and any third-party vendors reserve the right to withdraw approval for provision of any Disbursement.

1.5 Third-Party Terms. The method of the Disbursement may require Client to comply with certain additional terms applicable to the Disbursement selected (“Third-Party Terms”). CDCO will identify all such Third-Party Terms in advance of purchase. By completing the purchase, Client agrees to the applicable Third-Party Terms, which are incorporated into and made a part of these Terms.

2. Platform

2.1 Platform Registration. Client and its authorized Users may register for and access the Platform using unique credentials. Client acknowledges and agrees that Client is fully responsible for all Orders placed through the Platform through credentials registered to Client or its Users. CDCO shall not be liable for, and shall not be obligated to cancel or correct, any Order made through credentials registered to Client, except to the extent caused due to error by CDCO.

2.2 Limitations. Client may not, and shall ensure that its Users do not: (a) reproduce, display, download, modify, create derivative works of or distribute the Platform, or attempt to reverse engineer, decompile, disassemble or access the source code for the Platform or any component thereof; (b) use the Platform or Services, or any component thereof, in the operation of a service bureau to support or process any content, data, or information of any party other than Client or Client affiliates; (c) permit any party, other than the then-currently authorized Users to independently access or use the Platform or Services; (d) use the Platform or Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third-party, or that violates any applicable law; (e) use the Platform or Services to store or transmit any code, files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses; or (f) access or use the Platform or Services in violation of any applicable law.

3. Fees and Payment

Client shall pay CDCO the fees set forth in the applicable Order(s). Unless otherwise stated, all fees are payable in U.S. dollars within thirty (30) days from the invoice date. Late payments may incur interest and additional charges. Client shall be responsible for any taxes arising out of or relating to these Terms, except for taxes based on CDCO’s net income.

4. Client Obligations

Without limiting Client’s other obligations under these Terms, Client shall: (a) accurately describe the terms and conditions of the Disbursements to Recipients; (b) not market, advertise or promote the availability of Disbursements or the Services under which they are distributed in any way that (i) is misleading or potentially misleading, or (ii) fails to clearly identify eligibility criteria or material terms and conditions of the Disbursements; (c) remain solely responsible for managing and implementing its Disbursement program and determine which Recipients are eligible to receive Disbursements and receive value on the Disbursements; (d) not request that Disbursements be provided to persons who have not reached the age of majority in their jurisdiction; (e) not utilize Disbursements to circumvent any legal requirements; (f) comply with all applicable laws, rules, and regulations in its use of Disbursements.

5. Intellectual Property Rights

5.1 CDCO. CDCO will retain title to and ownership of the Platform, and all designs, text, layouts, media, proprietary technology, documentation, systems, processes, works of authorship, software, hardware, or other proprietary materials utilized by CDCO in providing Services, any work product resulting from such Services (whether or not customized), and any inventions (whether or not patented) and copyrights associated with the foregoing (collectively, “CDCO IP”). CDCO or any of its Affiliates reserves the right to modify, add to, or replace the CDCO IP at any time.

5.2 Client Materials. Client shall remain the sole owner of any trademarks, graphics, images, or other materials provided by Client to CDCO in connection with an Order (“Client Materials”). Client grants to CDCO and each applicable Issuer a non-exclusive, royalty-free, sublicensable, revocable license to use Client’s name and the Client Materials as necessary to provide the Services. CDCO agrees to comply with any guidelines provided by Client with regard to use of its Client Materials.

5.3 Feedback. Client may provide CDCO with input, comments, or suggestions regarding the Services (collectively “Feedback”). In such event, Client hereby grants to CDCO a non-exclusive, perpetual, worldwide, royalty-free license to use such Feedback in connection with improvements to, or delivery of, the Services. CDCO has no obligation to make use of any Feedback.

6. Representations and Warranties

6.1 Mutual Warranties. Each Party represents and warrants that: (i) it is authorized to enter into these Terms and that these Terms does not violate or breach any other agreement to which it may be a party; (ii) its performance under these Terms shall be accomplished by qualified personnel in a professional, workmanlike manner, consistent with the prevailing standards of the industry; (iii) its performance under these Terms is and shall be in compliance with applicable law throughout the Term of these Terms; provided, however, that neither Party shall be liable for noncompliance to the extent that such noncompliance was caused by (1) the actions or inactions of the other Party or (2) to the extent that the other Party assumed, in writing, the responsibility for compliance.

6.2 Disclaimer. THE PARTIES AGREE THAT THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS, AND HEREBY EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

7. Confidentiality

7.1 Confidential Information. In connection with the Services, each Party (as “Disclosing Party”) may disclose to the other Party (as “Receiving Party”) certain information regarding the Disclosing Party’s business, including technical, marketing, financial, employee, planning, and other confidential or proprietary information (“Confidential Information”).

7.2 Exclusions. Confidential Information does not include information that: (a) is known by the Receiving Party prior to disclosure by the Disclosing Party; (b) becomes publicly available through no fault of the Receiving Party; (c) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; or (d) is rightfully received by the Receiving Party from a third party without restriction on disclosure.

7.3 Use and Disclosure Restrictions. The Receiving Party will not use the Disclosing Party’s Confidential Information except as necessary for the performance of these Terms and will not disclose such Confidential Information to any third party, except to those employees, contractors, and advisors of the Receiving Party who have a bona fide need to know such Confidential Information for the performance of these Terms and who are bound by confidentiality obligations at least as protective as those set forth herein.

8. Indemnification

8.1 By Client. Client shall indemnify, defend, and hold harmless CDCO, its affiliates, and their respective officers, directors, employees, and agents from and against any and all losses, damages, liabilities, claims, actions, and expenses (including reasonable attorneys’ fees) arising out of or related to: (a) Client’s breach of these Terms; (b) Client’s use of the Services in violation of applicable law; or (c) Client’s Disbursement program, including without limitation claims by Recipients.

8.2 By CDCO. CDCO shall indemnify, defend, and hold harmless Client, its affiliates, and their respective officers, directors, employees, and agents from and against any and all losses, damages, liabilities, claims, actions, and expenses (including reasonable attorneys’ fees) arising out of or related to: (a) CDCO’s breach of these Terms; or (b) claims that the Platform infringes any third-party intellectual property right.

9. Limitation of Liability

9.1 Exclusion of Damages. EXCEPT FOR LIABILITY ARISING OUT OF A PARTY’S INDEMNIFICATION OBLIGATIONS OR A BREACH OF SECTION 7 (CONFIDENTIALITY), NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF.

9.2 Cap on Liability. EXCEPT FOR LIABILITY ARISING OUT OF A PARTY’S INDEMNIFICATION OBLIGATIONS OR A BREACH OF SECTION 7 (CONFIDENTIALITY), EACH PARTY’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THESE TERMS SHALL NOT EXCEED THE AMOUNTS PAID OR PAYABLE BY CLIENT TO CDCO UNDER THESE TERMS IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM.

10. Term and Termination

10.1 Term. These Terms will commence on the Effective Date and will continue until terminated as set forth herein.

10.2 Termination for Convenience. Either Party may terminate these Terms at any time upon thirty (30) days’ prior written notice to the other Party.

10.3 Termination for Cause. Either Party may terminate these Terms immediately upon written notice if the other Party materially breaches these Terms and fails to cure such breach within thirty (30) days after receiving written notice thereof.

10.4 Effect of Termination. Upon termination of these Terms: (a) all rights and licenses granted hereunder will immediately terminate; (b) Client will pay CDCO all amounts due and payable hereunder; and (c) Sections 5, 6.2, 7, 8, 9, 10.4, 11, and 12 will survive.

11. Governing Law and Dispute Resolution

11.1 Governing Law. These Terms will be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of laws principles.

11.2 Dispute Resolution. Any dispute arising out of or relating to these Terms will be resolved exclusively in the state or federal courts located in Los Angeles County, California, and each Party hereby consents to the personal jurisdiction and venue of such courts.

12. Miscellaneous

12.1 Entire Agreement. These Terms, together with any Orders and any Third-Party Terms, constitute the entire agreement between the Parties with respect to the subject matter hereof and supersede all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning such subject matter.

12.2 Amendments. No modification, amendment, or waiver of any provision of these Terms will be effective unless in writing and signed by both Parties.

12.3 Assignment. Client may not assign these Terms, in whole or in part, without the prior written consent of CDCO. Any attempted assignment in violation of this Section will be null and void. CDCO may assign these Terms without Client’s consent.

12.4 Force Majeure. Neither Party will be liable for any failure or delay in performance due to causes beyond its reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, labor disputes, or failures of third-party service providers.

12.5 Notices. All notices under these Terms will be in writing and delivered to the addresses set forth in the applicable Order or such other address as either Party may specify in writing. Notices will be deemed given: (a) when delivered personally; (b) three (3) days after being sent by certified mail, return receipt requested; (c) one (1) day after deposit with a recognized overnight courier; or (d) upon confirmation of receipt when sent by email.

12.6 Relationship of the Parties. The Parties are independent contractors. Nothing in these Terms will be construed to create a partnership, joint venture, agency, or employment relationship between the Parties.

12.7 Severability. If any provision of these Terms is held to be invalid or unenforceable, the remaining provisions will remain in full force and effect.

12.8 Waiver. The failure of either Party to enforce any provision of these Terms will not constitute a waiver of future enforcement of that or any other provision.