Merchant Agreement

TERMS & CONDITIONS

Warranties and Limitations of Liability
INFORMATION IN THIS WEB SITE IS PROVIDED AS IS WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. Memorable SHALL NOT BE LIABLE TO ANY PARTY FOR ANY COMPENSATORY, DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES WITH REGARD TO THE USE OF THIS WEB SITE OR ANY OTHER HYPERLINKED WEB SITES. THIS SECTION SURVIVES TERMINATION OF THIS AGREEMENT.

Your agreement with Memorable includes these Terms and Conditions (T&Cs), your Service Agreement, applicable supplemental terms and conditions for other services, and your Rate Plan terms (collectively Agreement). Your Rate Plan includes your monthly Service allotments for messages, rates, and other terms (Rate Plan).

Please read these T&Cs carefully. They cover important information about all Memorable services provided to you (Service). These T&Cs include fees for early termination and late payments, limitations of liability, and privacy.

You represent that you are at least 18 years old. If you sign for an organization, you represent that you are authorized to sign. You agree to pay all access and usage charges, taxes, fees and other charges we bill you or that were accepted (Charges). You may designate others to manage or make changes to your account (Authorized User). You and Authorized Users will have access to all account information. If you give your personal account validation information to someone, they can access and make changes to your account just as you can. Those changes will be binding on you. You may request to switch to another Rate Plan, and if we authorize the change, a transfer fee may apply. Changes may require your agreement to a new minimum term and/or new T&Cs (for example, if you select a new Rate Plan or special Memorable pricing).

1. Acceptance.

   YOUR AGREEMENT WITH Memorable STARTS WHEN YOU ACCEPT. You accept by doing any of the following: (a) giving us a written or electronic signature, or telling us orally that you accept; (b) activating Service; (c) using your Service after you make a change or addition; (d) paying for the Service. IF YOU DON’T WANT TO ACCEPT, DON’T DO ANY OF THESE THINGS.

2. The exclusive remedy for all disputes arising out of purchase or use of service through the company, except for those taken to small claims court, is arbitration. YOUR DISPUTE WILL NOT BE HEARD BY A JURY OR IN COURT AND MAY NOT BE MADE PART OF A CLASS ACTION.

3. Your Term of Service and Termination Fees.

   All plans are prepaid month to month unless other separate agreement is negotiated. You may cancel at anytime by contacting Memorable. Cancellations in the middle of a period will not result in a prorated refund. If you bought your Device from an independent Memorable dealer or other third-party vendor, they may charge a separate termination fee. Your Memorable unique SMS longcode number, subscribers, & subscriber history are non-transferable. Payment failure will result in automatic account suspension. A $39 reactivation fee applies. If the account is not reactivated within 30 days, you may lose your Memorable unique SMS longcode number, subscribers, & subscriber history.

4. Our Rights to Make Changes.

   Your Service is subject to our business policies, practices, and procedures, which we can change without notice. UNLESS EXPRESSLY PROHIBITED BY LAW, WE CAN CHANGE PRICES, CHARGES AND ANY TERMS IN THE AGREEMENT AT ANY TIME. IF WE MATERIALLY MODIFY THESE T&Cs IN A WAY THAT IS MATERIALLY ADVERSE TO YOU, OR IF A CHANGE INCREASES YOUR SET MONTHLY RECURRING CHARGE(S), WE WILL PROVIDE YOU WITH AT LEAST 30 DAYS NOTICE AND YOU MAY TERMINATE YOUR SERVICE WITHOUT AN EARLY TERMINATION FEE (WHICH IS YOUR ONLY REMEDY) BY NOTIFYING US WITHIN 30 DAYS AFTER YOU RECEIVE THE NOTICE. IF YOU FAIL TO TERMINATE WITHIN THOSE 30 DAYS, YOU ACCEPT THE CHANGES.

5. Taxes and Fees.

   You agree to pay all taxes, fees, and surcharges (Taxes & Fees) imposed by the government. We may not always give advance notice of changes to these items. To determine Taxes & Fees, we will use the street address you identified as your Place of Primary Use (PPU). If you did not identify the correct PPU, or provided us with an address (such as a PO box) that is not a recognized street address, does not identify the applicable taxing jurisdictions or does not reflect the Service area associated with your telephone number, you may be assigned a default PPU. You agree to pay all other charges we assess to recover or defray governmental charges or costs we incur in connection with the services we provide, such as Federal Universal Service, regulatory and administrative charges, or gross receipts taxes, without regard to whether these governmental charges or costs fund programs that provide benefits to you or in your location. These charges are not taxes or regulatory fees imposed directly on you, nor required by law to be billed to you, may be kept by us in whole or in part, and the amounts and what is included in these charges are subject to change without notice.

6. Payments, Late Fees & Deposits.

   If we do not receive payment in full by the due date on your bill, you may be charged a late fee of the greater of 1.5% per month (18% annually) or $5/ month, subject to the maximum allowed by law. We may use a collection agency and you agree to pay collection agency fees we incur to collect payment. If we accept late or partial payments, we do not waive our right to collect all amounts that you owe, including late fees. If your check is dishonored or returned, we may charge you up to $20, require another payment method, and/or immediately suspend or cancel your Service. We will not honor limiting notations you make on or with your checks. Deposits: We may require a deposit. You agree that only we can apply deposits, payments, or prepayments in any order to any amounts you owe us on any account. We refund deposits and final credit balances of less than $5 only upon request. We pay simple interest on deposits at the rate the law requires and will hold the money for you for up to 1 year, at which time you forfeit to us any portion of the money left.

7. Your Right to Dispute Charges.

   If you have a dispute regarding your bill or charges to your account, you agree to notify us of the dispute within 60 days after the date you first receive the disputed bill or charge (Dispute Period), unless otherwise provided by law. If you do not notify us of your dispute in writing within this time period, you may not pursue a claim in arbitration or in court. You must pay disputed charges until the dispute is resolved. If you accept a credit, refund or other compensation or benefit to resolve a disputed bill or charge, you agree that the issue is fully and finally resolved. For unresolved disputes see above. This paragraph is notice to Puerto Rico customers that payment of undisputed charges is due when stated on your bill, regardless of any dispute.

8. Misuse of Service.

   You agree not to misuse the Service, including: (a) reselling or rebilling our Service; (b) using the Service to engage in unlawful activity, or engaging in conduct that adversely affects our merchants, customers, employees, business, or any other person (s), or that interferes with our operations, network, reputation, or ability to provide quality service; (c) tampering with or modifying our Service; (d) spamming or engaging in other abusive or unsolicited communications; (e) reselling Memorable for profit, (f) assisting or facilitating anyone else in any of the above activities. You agree that a violation of this section harms Memorable, which cannot be fully redressed by money damages, and that Memorable shall be entitled to immediate injunctive relief in addition to all other remedies available.

9. Our Rights to Limit or End Service or the Agreement.

   WE MAY LIMIT, SUSPEND OR TERMINATE YOUR SERVICE OR AGREEMENT WITHOUT NOTICE FOR ANY REASON, INCLUDING, WITHOUT LIMITATION, if you, any user of your Service, or any user on your account: (a) breaches the Agreement; (b) incurs Charges greater than any billing or credit limitation on your account (even if we haven’t yet billed the Charges); (c) provides inaccurate information or credit information we can’t verify; (d) transfer(s) Service to another person without our consent; (e) becomes insolvent, goes bankrupt or threatens bankruptcy (except as prohibited by law); (g) misuses your Service as described above; (g) uses our Service in a manner that is excessive, unusually burdensome, or unprofitable to us; or (h) are on a Rate Plan that we determine is no longer available to you. We may impose credit, usage or other limits to your Service, suspend your Service, or block certain types of messages or sessions, in our sole discretion and without notice. If your Service or account is suspended or terminated and then reinstated, you may be charged a reactivation fee.

10. Intellectual Property.

    You agree not to infringe, misappropriate or injure the intellectual property rights of Memorable or any third party. Except for a limited license to use the Services arising from the sale of a product, your purchase of Memorable Services does not grant you any license to copy, modify, reverse engineer, download, redistribute, or resell the intellectual property of Memorable or others related to the Services, which may be used only with Memorable Service unless expressly authorized by Memorable. You agree that a violation of this section harms Memorable, which cannot be fully redressed by money damages, and that Memorable shall be entitled to immediate injunctive relief in addition to all other remedies available.

11. Best Practices.

    You agree to follow all the rules and regulations of the Mobile Marketing Association (MMA).

12. Privacy.

    Personal information provided generally will not be disseminated to third parties. We do not sell, rent or provide personal information to unaffiliated third-parties to market their products and services to you. We may disclose personal information to unaffiliated third-parties who complete transactions or perform services on our behalf and under certain other limited circumstances, subject to restrictions on the third- parties use of such information. Memorable may divulge information as necessary to comply with state and federal laws (e.g., subpoenas, search warrants, etc.). In most cases Memorable will not allow you to access the customer cell number. Each customer will be identified by a customer ID.

13. Information we collect and use.

    For full details see Privacy Policy We collect information from your customers on our site, once they subscribe at one of our an iPad kiosk to a merchants digital rewards platform, respond to a survey, or fill out a form. Any data we request that is not required will be specified as voluntary or optional. When registering on our site or at a kiosk, as appropriate, to subscribe your customer may be asked to enter your: name, e-mail address, mailing address, or phone number. Like most websites, we use cookies to enhance your experience, gather general visitor information, and track visits.

    How we use information we collect

    We use personal information collected through our Sites & Kiosks for the purposes described in below and in our detailed Privacy Policy or disclosed to you on our Sites & Kiosks or otherwise in connection with our services. For example, we may use your customers information to:

    • Offer or provide you customer with products and services, such as merchant discounts, gift cards and other pertinent offers.
    • Operate and improve our Sites, products, and services.
    • Understand customer’s preferences to enhance, personalize, and customize experience and enjoyment using our Sites, products, and services, such as understand buying history to make recommendations about other products or services they may like;
    • Process and deliver contest entries and rewards.
    • Display and deliver relevant adverting.
    • Respond to comments and questions and provide customer service.
    • Send information related to our products and services, including updates, security alerts, and support and administrative messages.
    • Communicate about contests, offers, promotions, rewards, upcoming events, and other news about products and services offered by Memorable, select merchants; our subsidiaries, and affiliates; and other selected partners.
    • Link or combine with other personal information we get from third parties to help understand you needs and provide you with better service.

    By your customer providing their mobile phone number, they expressly consent to receive direct dial calls, autodialed and prerecorded message calls, and text messages from us relating to our product and services at that number.

    Targeted Advertising: We will not use the data we collect on our opted-in subscribers to target unique specific competitive business interest.

14. Indemnification. You agree to defend, indemnify, and hold us harmless from any claims arising out of use of the Service, breach of the Agreement, or violation of any laws or regulations or the rights of any third party by you or any person on your account or that you allow to use your Service.

15. Security.

    Memorable uses reasonable precautions to protect the privacy of your credit card and other ordering information by utilizing a Secure Socket Layer (SSL) connection. Accordingly, your credit card and other ordering information, such as your name and address, is encrypted using the SSL connection and is not expected to be read in an intelligible form as it travels to the order processing system.

    Please protect your username and password. If you access your account from a public computer be sure to log off before closing the browser window.

16. Purchasing Products and Services On Line

    A. General. You agree to purchase the products and services ordered on the various order screens once you click on the ?SUBMIT? or similar button on the product or service order screens. The terms of the purchase agreement include, without limitation, the information included on the various order screens and the terms of this section. Such purchase agreement is in addition to and not in lieu of the agreement into which you are deemed to have entered with Memorable by virtue of your use of this site.

    B. No Warranties by Memorable. Memorable MAKES NO EXPRESS REPRESENTATIONS OR WARRANTIES ABOUT ITS SERVICES AND DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Memorable DOES NOT AUTHORIZE ANYONE TO MAKE A WARRANTY OF ANY KIND ON ITS BEHALF AND YOU MAY NOT RELY ON ANY SUCH STATEMENT OF WARRANTY. Memorable IS NOT THE MANUFACTURER OF ANY OF THE PRODUCTS, AND THE ONLY WARRANTY APPLICABLE TO THE PRODUCTS USED IN CONNECTION WITH THE SERVICES IS THAT PROVIDED BY THE PRODUCT MANUFACTURER(S). THIS SECTION SURVIVES TERMINATION OF THIS AGREEMENT.

    C. Limitation of Liability. Neither Memorable, nor its parent or any of its affiliates, nor the directors, officers, employees, or other representatives of any of them, is liable for any type or amount of damages arising out of or in connection with the use of the Products. This is a comprehensive limitation of liability that applies to all damages of any kind, including without limitation compensatory, direct, indirect, consequential, incidental, special, exemplary, or punitive damages; loss of data, income, or profit; loss of or damage to property; and any and all claims of third parties.

    D. Prices, Taxes and Shipping & Handling. All prices are stated and payable in US dollars. The prices for products and services quoted on this Internet site do not include taxes. You are responsible for all applicable federal, state, local, and other taxes on all products and services.