Gift & Loyalty Card Terms and Conditions
UPDATED: October 1st 2019
The following Terms & Conditions are applicable to the Gift & Loyalty Agreement between ProMedia/HeLe (COMPANY) and a participating or signed Merchant.
ALL INFORMATION CONTAINED IN A PROMEDIA/HELE GIFT & LOYALTY APPLICATION WAS COMPLETED BY OWNER(S) AND/OR OFFICER(S) OF MERCHANT AND THEY WARRANT THAT ALL INFORMATION INDICATED THROUGHOUT THIS APPLICATION IS ACCURATE. NO BLANK SPACES WERE LEFT INCOMPLETE. N/A OR NONE HAS BEEN FILLED IN ANY SPACES WHERE APPLICABLE. THIS AGREEMENT SHALL NOT BE BINDING UNLESS MERCHANT APP HAS BEEN APPROVED BY A PROMEDIA/HELE OFFICER.
Recitals: PROMEDIA recently changed the administrator and name of the services herein to the brand name of HELE MARKETING. As such, HELE MARKETING hereafter shall be referred to as COMPANY. COMPANY has developed the COMPANY gift & loyalty service (Service). The Service together with its related software and documentation may integrate with various retail store locations or eCommerce merchants to provide a prepaid / stored value tracking system for customer activity at the retail business or eCommerce merchant.
Agreements: NOW, THEREFORE, for and in consideration of the mutual covenants contained herein and other good and valuable consideration, COMPANY and Customer (Merchant) agree
as follows (the words “Customer” and “Merchant” may be used interchangeably):
I. COMPANY‘s LICENSE:
a. COMPANY hereby grants to Customer the right to use the COMPANY Service at its specified locations. Further, Customer agrees that each COMPANY Gift/Loyalty Card issued may contain an account number and magnetic stripe encoded to COMPANY’s specifications, and/or barcode. Such cards may only be purchased from COMPANY. Should card stock be purchased elsewhere, COMPANY has the right, in its sole discretion, to assess a $0.20 (twenty cents) per card fee for programming purposes.
b. If Customer fails to perform any of its obligations hereunder or shall commit an act of bankruptcy within the meaning of the Federal Bankruptcy Act or if the
bankruptcy, receivership, insolvency, liquidation, or other similar proceeding shall be instituted by or against Customer on all or any part of its property, COMPANY may
terminate the limited license granted in this Section 1 immediately upon written notice. No payments made to COMPANY by Customer hereunder shall be refunded to it; and
the obligations of Customer under this Agreement shall survive any termination thereof.
II. FEES, PAYMENTS, AND OBLIGATIONS
a. Merchant shall pay a transaction fee for any instance the terminal (stand-alone terminal, or web-service, or virtual terminal, or app-based) connects to the system and a monthly service fee as long as the account with COMPANY is open and available, as per the schedule of fees in the Agreement. In addition, Merchant shall pay an annual network fee up to $59.95 per year. If this Agreement is executed in first half of calendar year, Merchant account will be billed this annual fee during the month of December. If this Agreement is executed in the second half of calendar year, Merchant account will be billed this annual fee during the month of June. Examples of transaction fees that shall be charged as per fee schedule of this Agreement include:
· Issuance (single or group), Purchase (redemption), Balance Inquiry, Add Value, Void, Transfer, Clerk Maintenance, Reports, SMS, Download Fee, Loyalty Point, Transfer.
b. Payment for the service of all COMPANY cards ordered by Customer shall be in advance and concurrent with the Customer’s signed COMPANY Service Agreement. See cost of set-up, card reorders, and training and download fees under the schedule of fees section of the application. Fees for such costs may change at any time, at the sole discretion of COMPANY. Monthly Service costs and/or transaction fees may be changed by COMPANY upon thirty (30) days notice to Merchant. Continued use of Services by Merchant after this aforementioned 30-day period represents acknowledgement and acceptance of the revised costs and/or fees.
c. Should any payment due or owed by Merchant to COMPANY result in a rejected payment, for any reason including but not limited to, insufficient funds, closed account, frozen account, unauthorized, rejection, COMPANY may charge a non-payment or rejected payment fee of $45.00 (forty-five dollars) per occurrence. NOTE: In the event of non-payment (regardless of reason), COMPANY reserves the right to immediately and permanently suspend the service available to Merchant related to this Agreement, including any ability to perform service functions including any Balance Inquiries.
III. SERVICE PROVIDED
a. COMPANY will provide the following functions and capabilities to Customer:
· Authorization: COMPANY will provide authorization of a COMPANY Card Program transaction requested and initiated by the retail location via a dial telephone network and/or internet or cellular connection, at the sole discretion of COMPANY. COMPANY may respond to each request with an approval or decline.
· Online Reports: COMPANY may provide periodic reports to enable customer to monitor and manage the program implemented at each of its affiliated retail store locations. Customer will have access to a web site secured with login credentials.
· Emergency Service: In the event an act of God, a drastic machine failure, or clerical error renders Customer’s system using the COMPANY Service inoperable, COMPANY agrees to use its best efforts to provide reasonable service, however COMPANY is under no obligation or liability in the event reasonable efforts are unsuccessful for acts or events beyond COMPANY’s control.
· Response Time: COMPANY agrees to provide to Customer an estimated resolution time within forty-eight (48) business hours of the time a problem which materially impacts Customer’s operation is reported.
· Support: COMPANY agrees to establish support for problem diagnosis and to provide file transfer capabilities for downloading and uploading software. Customer agrees to install a COMPANY approved device on their customer premises.
IV. AUTHORITY OF PARTIES
Each party represents and warrants that, if a business entity, it is duly authorized, validly existing, and in good standing under the laws of the jurisdiction under which it is incorporated and the execution of this Agreement is valid, binding, and enforceable in accordance with its terms.
V. WARRANTY/LIMITATION OF REMEDY
a. COMPANY warrants that any maintenance or other services rendered to Customer in accordance with the terms of this Agreement will be performed in a professional manner by qualified personnel.
EXCEPT FOR THE WARRANTY STATED IMMEDIATELY ABOVE (Item V.a.), COMPANY MAKES NO WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES
FOR MERCANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
VI. LIMITATION OF LIABILITY
a. COMPANY agrees to indemnify and hold Customer harmless from any liability, expense, cost, damage settlement obligation arising from any claim, suit, or cause of action relating to the use of the COMPANY Service, which resulted from COMPANY’s gross negligence or willful, knowing and intentional misconduct of either itself or any of its agents or employees.
b. COMPANY’s liability under this Agreement shall not exceed the fees paid by Customer to COMPANY under this Agreement. COMPANY will in NO event be liable for lost profits or other consequential or incidental damages, even if COMPANY has been advised of such damages. Customer agrees to indemnify and hold COMPANY harmless from any liability, expense (including reasonable attorney’s fees), cost, damages, settlements, or obligations suffered by COMPANY other than any liability, loss or expense suffered by COMPANY as a result of the gross negligence or willful, knowing and intentional misconduct to COMPANY, its employees or agents.
c. Customer shall have no claim for any liability that is brought more than six (6) months from the occurrence of any events that may rise to such liability.
d. Customer agrees to indemnify and hold COMPANY harmless from any claim of third parties relating to Customer’s use of the COMPANY Service or any liability resulting from the gross negligence or willful, knowing and intentional misconduct of Customer or its agents or employees.
e. COMPANY makes no guarantee of lawful verbiage for back of card or in any marketing by Merchant, regarding dormancy fees, escheatment, expiration of card funds or point, or unclaimed property in any particular state. Merchant agrees to consult legal counsel regarding these issues and accepts full responsibility for legality of verbiage on back of card and/or the terms & conditions of their own card program for their own business, or such regarding cardholders or recipients of Merchant’s gift and/or loyalty cards. Merchant agrees that COMPANY has not provided recommendations or guidance regarding legal verbiage regarding this item. Merchant hereby indemnifies and holds COMPANY harmless from any liability, claims, or legal action related to the verbiage Merchant chooses to utilize or not utilize regarding the aforementioned dormancy fees and expiration of funds.
f. The terms and conditions in this Agreement are applicable to the Gift & Loyalty Agreement between COMPANY and Merchant. These terms & conditions are not applicable to customers or cardholders of Merchant, as Merchant is solely responsible for such.
The situs for all transactions covered by this Agreement shall be the State of Mississippi.
Customer may not assign its rights and obligations hereunder to a third party, without prior written consent of the other party, which consent shall not be unreasonably withheld, provided that such consent shall not relieve the assigning party of any of its obligations hereunder. Notwithstanding the foregoing, either party may assign this Agreement to a parent, affiliated or subsidiary corporation, or a partnership, limited liability company or other entity consisting of the majority of existing shareholders without consent upon notice to the other party.
IX. TERM AND TERMINATION
a. This Agreement shall be effective upon the date hereof for a term of twelve (12) months. This Agreement will automatically renew for additional 1 (one) year terms, unless notice is provided in writing by Customer to COMPANY between thirty (30) days to ninety (90) days prior to the termination or renewal of the Agreement. In the event of the termination or non-renewal of this Agreement and upon the written request of Customer, COMPANY shall provide a list of existing cards in the COMPANY database which are applicable to the MERCHANT’s program and gift/loyalty card processing, as well as the respective outstanding balances on each, if any (Liability Report). The cost of providing such a Liability Report may not exceed $500 (five hundred dollars) per Merchant location, or per Merchant location if pooling exists and should be provided to Merchant within thirty (30) days of written request and appropriate payment being paid to COMPANY.
b. Merchant may cancel this Agreement upon 30 (thirty) days written notice if COMPANY provides notice of any price or rate change for Services, or within 30 (thirty) days notice from COMPANY of any change in these Terms and Conditions. Should Merchant continue processing Services per this Agreement for 30 (thirty) days or more after receiving notice of any price or rate change or any change in these Terms and Conditions, such is hereby considered as acceptance by Merchant of such change(s).
c. COMPANY may cancel this Agreement upon 30 (thirty) days written notice to Merchant, at any time.
d. In the event of a material breach, this Agreement shall terminate at the sole discretion of COMPANY.
e. Merchant may terminate this Agreement without penalty of any kind during the first 6 (six) months after date on Agreement. After those initial 6 (six) months, If merchant terminates this Agreement prior to its term being completed, a one-time fee of $299.00 (two hundred ninety-nine dollars) will be assessed and electronically debited from the merchant’s account for administrative processing. Should this fee be assessed and unpaid for any reason, COMPANY reserves the right to withhold any requested Liability Report until termination fee and fee for such Report is paid in full.
f. Upon termination of this Agreement, Merchant understands and agrees that outstanding card balances may not be obtained via any method other than the aforementioned Liability Report. Balance inquiries or lookups on Merchant cards may not function upon termination of this Agreement.
There shall be effected no waiver by failure on the part of COMPANY to exercise, or delay in exercising, any right under this Agreement, nor shall any single or partial exercise or any right under this Agreement preclude any other future exercise of any right. The remedies provided hereunder are cumulative and not exclusive of any remedies provided by law or equity.
XI. AGGREGATION OF CLAIMS
All parties to this Agreement acknowledge and agree that any disputes that may arise between or among them are unique enough to justify dispute resolution on an individual basis.
Agreement is not valid and binding unless countersigned and executed by an officer of COMPANY.
XIII. POOLING OF MULTIPLE LOCATIONS
a. COMPANY may provide pooling in a centralized or de-centralized format for a party with multiple locations, in its sole discretion. If pooling is utilized, COMPANY is NOT responsible or liable in any way for funds that are not able to be collected from an individual location(s). As such, COMPANY will transfer those funds to any corporate pooling account that COMPANY has been able to reasonably collect.
b. Should a location be part of a centralized pooling formatted program, COMPANY has full right to debit (typically via ACH, or other acceptable method in the sole discretion of COMPANY) Merchant’s account accordingly in order to properly fund any pooling account, as well as credit back to Merchant’s account accordingly in order to properly transfer funds that may be due to Merchant.
Binding Forces: This Agreement shall be binding upon and inure to the benefit of and be enforceable by the administrators, legal representatives, agents, successors, and assigns of the parties hereto.
NOTICES: All notices provided for by this Agreement shall be made in writing and shall be deemed received by the intended recipient:
(i) on the fifth business day after the date placed in United States Mail or 10 (ten) days after email communication of such has been sent to either party.
(ii) All notices to Merchant shall be delivered to the physical address or email address indicated on this Agreement, unless the party giving any such notice has been notified, in writing, of a change of such address or email address.
(iii) All notices to COMPANY shall be addressed to: HELE MARKETING LLC, 1490 W Government St #7-286, Brandon MS 39042. Ph: 888-326-0959.
This Agreement and any Exhibits attached hereto shall constitute the entire agreement between the parties with respect to the subject of this Agreement and the parties represent that there are no collateral agreements or side agreements not otherwise provided for within the terms of this Agreement. The terms and conditions of the Agreement supersede those of all previous agreements, if any, between the parties with respect to the subject matter of this Agreement.
Standard for Interpretation. If it shall be determined by a court or other competent body that any provision or wording of this Agreement shall be invalid or unenforceable under state, federal, or other applicable law, such invalidity or unenforceability shall not invalidate the entire Agreement. Whenever two or more interpretations of the provisions or wording of this Agreement shall be possible, the interpretation or construction which leads to the enforcement and validity of any provision of this Agreement shall be favored and deemed to be the intended interpretation of the parties to this Agreement.
GOVERNING LAW, JURISDICTION, AND EXCLUSIVE VENUE:
This Agreement shall be governed and construed and enforced in accordance with the laws of the State of Mississippi. Any claims or charge made hereunder shall be brought exclusively in a court of appropriate jurisdiction in Rankin County, in the State of Mississippi. The parties hereto irrevocably consent to the jurisdiction and venue of such court and waive any present or future objections to venue or jurisdiction in such court. The parties agree that service of process may be made upon them by certified or registered mail as provided in paragraph (b) above or any other method authorized under local rules of civil procedure. All legal actions addressing, relating to or touching upon any element of this contract, sums due, conduct alleged, interpretation of terms or any other contractual legal obligation set our herein, whether in law or equity, may only be filed in a court of appropriate jurisdiction in Rankin County, Mississippi. Rankin County, Mississippi shall act as the exclusive venue of all such actions and any filing outside thereof must be immediately dismissed without prejudice. Should COMPANY be compelled to defend any legal action filed in any jurisdiction other that the exclusive venue provided in this Agreement, Merchant agrees and understands that COMPANY shall be entitled (from Merchant) to court costs and legal fees for such defense.
Contact: HeleMarketing LLC, 1490 W Government St #7-286, Brandon MS 39042 Ph: 888-326-0959 Fax: 888-326-0959 Email: Support@HeLeMarketing.com
Updated October 1st 2019