Standard Merchant Agreement
This STANDARD MERCHANT AGREEMENT (this “Merchant Agreement”) is entered into by and between you and Scoopup Technologies Private Limited (“Scoopup”). Specific business terms associated with Merchant’s subscription to the Platform are outlined in one or more ordering documents executed by the parties that reference this Merchant Agreement (“Order Form”) and are hereby incorporated into this Merchant Agreement by reference (collectively, the Merchant Agreement and the Order Form shall be the “Agreement”). For this Merchant Agreement, “you” or “Merchant,” means the party identified as the merchant in the applicable Order Form. By executing an Order Form that references this Merchant Agreement, each party signifies that it has read, understands, and agrees to be bound by this Merchant Agreement. This Agreement shall be effective as of the date the first applicable Order Form is executed and/or the date on which the Merchant commences using the Platform, whichever is earlier. This Merchant Agreement governs all Order Forms and any conflicting or additional terms and conditions are of no force or effect unless agreed to in writing and signed by an authorized officer of Scoopup. Subject to the terms of this Agreement, Scoopup will allow Merchant to offer rewards to Merchant’s customers using the customer engagement and retention platform known as “Scoopup,” as may be further described at www.Scoopup.io and includes the Dashboard, Equipment and Software (all as defined in Section 1) (collectively, the “Platform”).
- Scoopup SOFTWARE AND HARDWARE. The Platform consists of two (2) components:
- An online dashboard hosted by Scoopup that allows Merchants to manage and create rewards programs and track customer data (“Dashboard”), and
- Software that is either pre-loaded or downloaded onto the Merchant’s point of sale machine that interacts with the Dashboard (“Software”).
Subject to the terms and conditions of this Agreement, Scoopup hereby grants to Merchant
- A non-exclusive, non-assignable, non-transferable, non-sublicensable, limited right and license to use and display the Software for Merchant’s business purposes, and
- The right to access and use the Dashboard, in the case of both (a) and (b), solely by the documentation related to the Software or the Platform generally published by Scoopup.
- RESTRICTIONS. Merchant agrees that
- it will not decompile, reverse engineer, or otherwise attempt to obtain the source code or underlying ideas or information of or relating to the Software,
- it will not sell, lease, license, sublicense, distribute, rent, transfer, assign, timeshare, or otherwise commercially exploit or provide the Platform to any third party,
- it will only use the Software and Equipment in order to interface with the Dashboard as contemplated by this Agreement, (iv) create internet “links” to or from the Dashboard, or “frame” or “mirror” the Dashboard,
- reverse assemble, reverse compile, reverse engineer, decompile or otherwise attempt to discover the object code, source code, SDKs, non-public APIs or underlying ideas or algorithms of the Platform, except as and only to the extent this restriction is prohibited by law,
- remove or obscure any copyright, trademark or other proprietary notices, legends or Scoopup branding contained in or on the Platform,
- use the Platform in any way that violates any applicable federal, state, local or international law or regulation,
- introduce any viruses, Trojan horses, worms, logic bombs or other material which is malicious or technologically harmful,
- attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Dashboard, the server on which the Dashboard is stored, or any server, computer or database connected to the Platform, and
- use the Platform to send or store materials that is obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or in violation of third party privacy rights. Scoopup may, in its sole discretion, immediately suspend Merchant’s access to the Platform if Merchant violates the terms of this Section.
- PROFESSIONAL SERVICES. From time to time, upon the mutual agreement of the parties, Scoopup and Merchant may enter into ordering documents or statements of work (“Statement of Work”) as mutually agreed and executed between the Parties, for Scoopup providing certain professional services to Merchant (“Professional Services”). Merchant shall pay Scoopup a fee (if applicable) for any Professional Services provided by this Agreement and the applicable Statement of Work agreed between Scoopup and the Merchant from time to time.
- REMOTE ACCESS. Merchant understands and agrees that when the Software is installed, remote access software may also be used by Scoopup for the sole purposes of Scoopup being enabled to maintain and provide remote technical support for such Software
- MERCHANT INFORMATION AND REWARDS PROGRAMS. Merchant grants to Scoopup a non-exclusive, worldwide license and right to display, reproduce and use Merchant’s trademarks and logos (collectively, “Merchant Marks”) and business description solely in connection with the operation of the Platform. As part of the Platform, Merchant will create rewards programs that Merchant will offer to its customers through the Platform (“Merchant Rewards Program”) Merchant represents, warrants and covenants that it will honour any Merchant Rewards Programs it offers, even after any expiration or termination of this Agreement. Merchant further represents, warrants and covenants that the Merchant Rewards Programs will comply with all applicable laws and regulations. Merchant agrees to receive periodic SMS, Email and Whatsapp communication from Scoopup during the use of the service. Following any expiration or termination of this Agreement and if requested by Merchant within seven (7) days of such expiration or termination, Scoopup will provide Merchant with any relevant information in Scoopup’ possession regarding the then-current status of the Customer with the Merchant Rewards Program.
- DATA. Regardless of where the Software is installed, as part of providing the Platform, Scoopup may collect data related to the use and performance of the Platform. The parties acknowledge that Scoopup is free to collect and analyze such data and other information relating to the provision, use and performance of the Platform to improve the Platform provided that Merchant cannot be identified and such data is used solely in an aggregate or other de-identified form.
- FEEDBACK. Merchants may from time to time provide suggestions, comments or other feedback concerning the products or services of the Receiving Party (“Feedback”). Both Parties agree that all Feedback is and shall be given entirely voluntarily. Scoopup shall be free to use, disclose, reproduce, license or otherwise distribute and exploit any Feedback as it sees fit, entirely without obligation or restriction of any kind.
- OWNERSHIP. Merchant acknowledges and agrees that Scoopup and its licensors are the owners of all rights, titles and interests in and to the Platform and all updates, upgrades, and derivative works thereto, including anything developed or created by Scoopup as part of the Professional Services, and all intellectual property rights therein including anything developed or created by Scoopup as part of the Professional Services, and that Merchant will not obtain or claim any ownership interest in the foregoing.
- PAYMENT. Merchants will pay Scoopup following the payment terms set forth on Scoopup’s website. Fees may be due in advance or shall be paid in arrears, as described on the applicable Order Form or the website, as may be applicable. If Scoopup will bill Merchant for fees owed hereunder, Merchant’s payment will be considered delinquent if a payment is not received within thirty (30) days following the receipt of an invoice for such payments. If Merchant is paying via credit card, Merchant authorizes Scoopup to charge the fees due hereunder (and any other charges Merchant may incur in connection with the Platform (such as taxes)) to Merchant’s provided payment instrument in advance periodically by the terms on each Order Form or the website, as may be applicable. Merchant is responsible for keeping their payment instrument and all associated information (such as the expiration date of a credit card) current at all times. If payment is not successfully settled, due to expiration, insufficient funds, or otherwise, and Merchant does not promptly update its payment instrument information, (a) Scoopup reserves the right to suspend Merchant’s access to the Platform until payment is successfully settled, including past due payments, if any and (b) Merchant authorizes Scoopup to continue charging its payment instrument, as it may be updated. If the Merchant’s use of the Platform exceeds the capacities or limits on an Order Form or the website or otherwise requires the payment of additional fees, Merchant at this moment authorises Scoopup to charge such additional fees to Merchant’s payment instrument in the following pay cycle. All fees shall be paid in Indian Rupees (INR) or any other currency as may be mutually agreed between Scoopup and the Merchant. All fees paid are non-refundable. Merchant agrees to pay the costs and expenses incurred by Scoopup or on behalf of Scoopup in connection with the collection of any unpaid charges. Merchant agrees to cover any additional bank charges associated with all Scoopup payments and fees. Scoopup is not obligated to pay any item presented for payment if the Merchant's account does not contain sufficient collected funds. Merchant will be responsible for all taxes in connection with this Agreement (excluding taxes based on Scoopup’ net income). Billing will commence on the first billing date, as specified in the Order Form and the website, as may be applicable.
- TERM AND TERMINATION.
- Term. The term of this Agreement shall start on the effective date of the subscription start date (as applicable) listed on the Order Form or the website, as applicable (“Effective Date”) and continue for the initial term listed on the Order Form or the website, as applicable (“Initial Term”). The Order Form and this Agreement will automatically renew for successive periods equal to the Initial Term, as stated in the Order Form (each, a “Renewal Period”) (collectively, the Initial Term and any Renewal Periods shall be the “Term”) unless either party provides the other with notice of its intent not to renew at least thirty (30) days before the end of the then-current Term.
- Termination. Either party may terminate this Agreement if the other party breaches or defaults on any of its obligations under this Agreement (such that the breach or breaches, individually or in the aggregate, deprive the other party of the intended benefit of this Agreement) and said breach or default continues un-remedied for ninety (90) days after the breaching party’s receipt of written notice. Written notices of breach must specify the grounds of such breach or default in reasonable detail. Except as provided in this Section and Section 11.1 above, Merchant may not otherwise terminate this Agreement or any Order Form except as may be explicitly set forth on the Order Form.
- Effect of Termination. Upon termination of this Agreement, Merchant’s rights to use and access the Platform will immediately cease and Merchant will cease using and accessing the Software and the Dashboard and return all Equipment and pay any associated fees by Exhibit A. Sections 5 through 15 will survive the termination or expiration of this Agreement.
- INDEMNITY. Merchant will defend any third-party claim or action brought against Scoopup relating to (a) the Merchant Rewards Programs, (b) Merchant’s breach of Section 5 (Merchant Rewards Programs), or (c) Merchant’s breach of the representations and warranties contained in Section 6 (Customers) and Merchant will pay (i) any settlements entered into between Scoopup and the third party claimant or (ii) final judgments awarded to the third party claimant by a court of competent jurisdiction. Scoopup shall (a) provide Merchant with prompt written notice of any claim, (b) grant Merchant sole control of the defence and settlement of the claim, and (c) provide reasonable information and assistance to Scoopup in the defence or settlement of the claim at Scoopup’ expense.
- DISCLAIMER. THE Scoopup PLATFORM AND PROGRAM AND ALL PRODUCTS, SERVICES (INCLUDING PROFESSIONAL SERVICES), CONTENT AND ITEMS PROVIDED BY Scoopup HEREUNDER (INCLUDING, WITHOUT LIMITATION, THE EQUIPMENT (AS APPLICABLE)) ARE PROVIDED “AS IS” AND Scoopup DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF UNINTERRUPTED USE AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
- LIMITATION OF LIABILITY. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, AND REGARDLESS OF THE FORM OF ACTION (E.G., WHETHER IN CONTRACT, TORT, NEGLIGENCE, OR OTHERWISE) NEITHER Scoopup NOR ANY OF ITS LICENSORS OR SUPPLIERS SHALL BE LIABLE TO MERCHANT OR TO ANY OTHER PARTY IN CONNECTION WITH ANY SUBJECT MATTER OF THIS AGREEMENT FOR (A) ANY SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR INDIRECT DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION), OR (B) ANY AMOUNTS IN THE AGGREGATE THAT EXCEED THE FEES PAID BY MERCHANT TO Scoopup HEREUNDER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO THE APPLICABLE CLAIM. THE FOREGOING LIMITATIONS SHALL APPLY WHETHER OR NOT Scoopup (OR ITS LICENSOR OR SUPPLIER, AS APPLICABLE) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
- GENERAL PROVISIONS. The terms of this Agreement and any non-public information disclosed by Scoopup to Merchant under this Agreement are confidential, and Merchant agrees not to disclose the terms of this Agreement or any such information to any third party, or use any such information other than for the purposes expressly set forth herein. Customer agrees that Scoopup may use Customer’s name and logo to identify Customer as a customer of Scoopup on Scoopup’ website and in other advertising, marketing and promotional materials. A merchant may not assign this Agreement or any of its rights or delegate any of its duties under this Agreement without Scoopup’s prior written consent, except to a successor to all or substantially all of its business or assets; Scoopup may assign this Agreement and/or any of its rights and/or delegate any of its duties under this Agreement without consent. This Agreement contains the entire understanding of the parties concerning the transactions and matters contemplated hereby and supersedes all previous communications, understanding and agreements (whether oral or written). The Agreement consists of this Merchant Agreement, all exhibits attached hereto and all Order Forms, and represents the entire agreement between the parties; any additional or conflicting conditions, printed or otherwise, appearing on any orders, copy instructions or other documents will be of no effect. Merchant shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding Merchant's use of the Software and the Services.
- General Rules
You shall, as a condition to making any use of the Marketing Campaign Platform, be required to follow these rules:
- You won’t send Spam! While you are responsible for making yourself aware of current anti-SPAM and similar regulations that may be in effect from time to time, as a general rule, you should assume that if you send people mass emails without their permission, you’re spamming.
- You won’t violate Scoopup’s Acceptable Use guidelines, established below, as it may be in effect from time to time, which is part of this Agreement. If you violate any of these rules, Scoopup, in addition to any other remedies that Scoopup may have hereunder or otherwise, may suspend or terminate your account.
- Compliance with Laws
You represent and warrant that your use of the Marketing Campaign Platform, which includes communication through emails and SMSs will comply with all applicable laws and regulations. You also acknowledge and agree that the promotional messages/emails sent by You directly is only your liability, responsibility and that Scoopup is not liable/responsible or answerable for any form of communication, communicated between You and the customer, directly or indirectly. You agree that all claims, queries and complaints arising out of such communication, shall be directly addressed and resolved by you.
You shall refrain from using the Marketing Campaign Platform to send anything offensive, to promote anything illegal, or to harass anyone. Not in limitation of the foregoing, you may not send:
- Pornography or other sexually explicit Emails
- Emails offering to sell illegal goods or services
- Emails that violate Information Technology Act, of 2000 or any other applicable laws or regulations
- Acceptable Use - Prohibited Actions
Scoopup works hard to keep its system clean, but Scoopup also counts on its customers to pitch in. As such, you may not:
- Send Spam (as noted above).
- Share your password.
- Use any of the Marketing Campaign platforms to create a competing product.
- Import or incorporate any of this information into any lists, emails or uploads to our servers: Passwords, security credentials, or sensitive personal information of any kind.
- Send any messages through the Marketing Campaign Platform that are not appropriate for its intended use.
- Use an outside unsubscribe process.
- GOVERNING LAW AND JURISDICTION. This agreement is governed and construed following the laws of the Republic of India. Merchant hereby irrevocably consents to the exclusive jurisdiction and venue of courts in Ahmedabad, Gujarat, India, in all disputes arising out of or relating to the use of the Scoopup products/sites/services. Use of the Scoopup software services is unauthorized in any jurisdiction that does not give effect to all provisions of these terms and conditions, including without limitation this paragraph. If any dispute arises between Merchant and Scoopup during Merchant's use of the software/services or thereafter, in connection with the validity, interpretation, implementation or alleged breach of any provision of this Agreement, the dispute shall be referred to a panel of 3 arbitrators out of which 1 arbitrator shall be appointed by Scoopup, 1 arbitrator shall be appointed by the Merchant and the third arbitrator shall be jointly appointed by the 2 arbitrators appointed by the respective parties. The venue, place and seat of arbitration shall be Ahmedabad. The Arbitration & Conciliation Act, 1996, shall govern the arbitration proceedings. The arbitration proceedings shall be in the English language. All expenses for Arbitrator fees and his expenses shall be borne by the Parties equally. All other expenses of Lawyers' fees and other expenses shall be borne by the respective parties.