THIS AGREEMENT GOVERNS CUSTOMER’S PURCHASE AND USE OF FOND SERVICES. BY ACCEPTING THIS AGREEMENT, BY CLICKING A BOX INDICATING CUSTOMER’S ACCEPTANCE; BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT; OR BY USING THE SERVICES, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. IF CUSTOMER IS ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, THE INDIVIDUAL ENTERING INTO THIS AGREEMENT REPRESENTS THAT SUCH INDIVIDUAL HAS THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF THE INDIVIDUAL TO WHOM FOND PRESENTS THESE TERMS DOES NOT AGREE TO THESE TERMS, THEN SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE FOND SERVICES.
This Agreement was last updated on September 30, 2017. It is effective as of the date of Customer accepting this Agreement.
1.1 “Affiliate” means with respect to a party, any other entity which directly or indirectly controls, is controlled by, or is under common control with such party, where “control” means ownership or control, directly or indirectly, of more than 50% of the voting interests of the subject entity or otherwise having the power to direct its activities.
1.2 “Agreement” means these Terms and Conditions, including any Order Form(s) (if applicable).
1.3 "Confidential Information" means all confidential and proprietary information of a party (“Discloser”) disclosed to the other party (“Recipient”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms in Order Forms hereunder), the Customer Data, the Services, and nonpublic business, financial, product, and technical information. Confidential Information will not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser; (ii) was known to Recipient prior to its disclosure by Discloser without breach of any obligation owed to Discloser; (iii) was independently developed by Recipient without breach of any obligation owed to Discloser; or (iv) is received from a third party without breach of any obligation owed to Discloser.
1.4 “Content” means information, including information about Third Party Offerings, that Fond obtains from third parties or publicly available sources and makes available to Customer through the Services.
1.5 “Customer” means the company accepting this Agreement (or on whose behalf this Agreement has been accepted), as may be identified on an Order Form. If a Customer Affiliate accepts an Order Form pursuant to these Terms and Conditions, then all references to “Customer” hereunder will be deemed to mean such Affiliate.
1.6 “Customer Data” means all data stored by Customer in the Service for processing by Fond in providing the Services, excluding Content and Third Party Offerings.
1.7 “Documentation” means Fond’s online support center information relating to the Service, as updated from time to time.
1.8 “Effective Date” with respect to this Agreement, means the date on which Customer first accepts this Agreement. The effective date of an Order Form will be the date on which Customer executes such Order Form.
1.9 “Fond” means AnyPerk, Inc., doing business as Fond.co and/or Fond.
1.10 “Fond Technology” means Fond’s proprietary software and other technology provided via the Services, including any enhancements, modifications, and derivative works to any of the foregoing, as well as any and all suggestions, ideas, enhancement requests, and feedback relating thereto.
1.11 “Intellectual Property Rights” means patents, copyrights, trademarks, service marks, trade names, domain name rights, know-how and other trade secret rights, and all other intellectual property rights.
1.12 “Malicious Code” means computer viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
1.13 “Order Form(s)” means an ordering document or online order, if applicable, that is entered into between Customer and Fond (or its Affiliates), including any addenda and supplements thereto, that specifies the Services to be provided and paid forhereunder. By entering into an Order Form, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. Customer agrees that each Order Form (if applicable) will be signed by a representative having the authority to bind Customer, and that Fond may presume that such representative has such authority. When an Order Form is used, a binding order is created when Fond accepts the Customer-accepted Order Form. Upon acceptance, each Order Form is deemed incorporated by reference into the Agreement and subject to the terms hereof.
1.14 “Service” means the services that are ordered by Customer under an Order Form or provided to Customer by Fond, as described in the Documentation. Among other products and services, the Service includes a hosted, web-based employee benefits solution by which Users can review and redeem various offers, discounts, products, services and other benefits provided by third party merchants and vendors.
1.15 “Subscription Term” means the period during which Fond will make the Service available to Customer. Subject to the terms and conditions of this Agreement, the applicable Subscription Term may be specified in an Order Form, or alternatively, in the Documentation or otherwise by Fond.
1.16 “Taxes” means any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including VAT (subject to reverse charge), GST (subject to reverse charge), excise, sales, use, consumption and withholding taxes.
1.17 “Third Party Offering” means either: (i) any offer, discount, product, service, or other benefit that Users may review and/or redeem through the Services; or (ii) a third party service fulfillment provider, such as a credit card processor, that Fond utilizes in providing the Services.
1.18 “Users” means Customer’s employees, agents, consultants or contractors working in the United States and who are authorized by Customer to access a Service for whom Customer has purchased a subscription. Unless otherwise set forth in the Order Form, Users must access and use the Services in the United States only.
2.1 Purchase and Provision of Services. Unless otherwise provided in an Order Form or Documentation: (a) Services are provided on a subscriptions basis, and (b) subscriptions may be added during a Subscription Term at Fond’s then-current pricing as the underlying subscription pricing,. Fond will provide the Services in accordance with this Agreement. Fond will host the Services (either directly or through a third party hosting services provider) and may update the Services from time to time. Fond will be responsible for the performance of Fond personnel and their compliance with Fond’s obligations under this Agreement. Fond will provide Customer and Users with standard support services for the Services (which, as of the Effective Date, are available Monday through Friday (excluding holidays) during normal business hours of 9 AM – 5 PM Pacific Time). Support services do not include services such as User training, assisting Customer with internet service provider (ISP) issues, assisting Customer with issues relating to hardware, software or network equipment not owned by or under control of Fond, resolving issues caused by circumstances outside Fond’s reasonable control, or diagnosing or resolving issues involving a Third Party Offering, or a denial of service attack. Customer agrees to reasonably cooperate with Fond and provide relevant information to enable Fond to support the Services.
2.2 Access Grant and Restrictions.
2.3 Security/Data Integrity. Fond will maintain reasonable administrative, physical, and technical safeguards designed for the protection, confidentiality, and integrity of Customer Data. Such safeguards will include, but not be limited to, measures designed for preventing access, use, modification, or disclosure of Customer Data by Fond personnel except: (a) to provide the Services and endeavor to prevent or address service or technical problems; (b) as compelled by law, or (c) as Customer expressly permits in writing (email sufficing). Customer acknowledges that it is not feasible for Fond to accommodate conflicting data security requirements from multiple Fond Customers; accordingly, failure to accommodate any such Customer request will not be deemed a breach of this Agreement.
2.4 Third Party Offerings.
2.5 Rewards Credits. The following provisions apply if and to the extent that Customer has purchased the Service commonly referred to as “Rewards”. Provided that Customer remains in good standing under this Agreement (and, if applicable, all Order Forms), Fond will enable Customer to purchase Rewards credits (“Credits”), which Customer may distribute solely within Customer’s organization to enable the Credit recipient to redeem various offers as part of the Service. Customer may order Credits through the administrative dashboard. Credits may not be transferred or applied to any other employee within Customer’s account. Any unused Credits will expire upon the expiration or early termination of the applicable Subscription Term (in which such Credits were purchased) or this Agreement (whichever occurs first).
3.1 By Fond. Fond warrants that the Services platform, when used in accordance with the instructions in the Documentation and this Agreement, will materially conform to the applicable Documentation. Customer will have thirty (30) days following the commencement of the initial Subscription Term hereunder to notify Fond of a breach of the foregoing warranty. As Fond’s entire liability and Customer’s sole and exclusive remedy for such breach, Fond will either: (a) reperform, modify, or replace the Service so that it so conforms to such warranty; or (b) refund the prepaid unearned fees for the affected Service, and solely as to the refunded fees (and applicable Service), this Agreement, and Customer’s right to access such Service will immediately terminate. Any remedy provided by Fond will not extend the original warranty period. Fond also warrants that the Service, when used in accordance with the instructions in the Documentation and this Agreement, does not and will not infringe or misappropriate any third party’s Intellectual Property Rights; provided, however, that as Fond’s sole and exclusive obligation and Customer’s sole and exclusive remedy for breach of the foregoing warranty, Fond will indemnify Customer pursuant the indemnification provisions below. Fond will have no obligation under this Agreement to resolve, and Fond makes no warranty with respect to, issues caused by or relating to: (i) use of the Service in a manner inconsistent with the Documentation or this Agreement; (ii) third party hardware or software misuse, modification, or malfunction; (iii) any Services offered as a free trial, beta services; or (iv) Content, or Third Party Offerings.
3.2 By Customer. Customer warrants that the Customer Data is accurate and complete, and does not and will not violate the terms or conditions of this Agreement or applicable law, or infringe or misappropriate any third party’s Intellectual Property Rights. As Customer’s sole and exclusive obligation and Fond’s sole and exclusive remedy for breach of the foregoing warranty, Customer will indemnify Fond pursuant to pursuant the indemnification provisions below.
3.3 Warranty Disclaimers. EXCEPT AS OTHERWISE EXPRESSLY WARRANTED HEREIN, ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, QUALITY, ACCURACY, OR QUIET ENJOYMENT, ARE DISCLAIMED BY FOND, ON BEHALF OF ITSELF AND ITS SUPPLIERS AND LICENSORS, AND ALL SERVICES ARE PROVIDED “AS IS” AND “WITH ALL FAULTS”. FOND DOES NOT WARRANT THAT USE OF THE SERVICES IS RISK-FREE. FOND DOES NOT PROVIDE REPRESENTATIONS, WARRANTIES, OR ASSURANCES AGAINST INTERCEPTION OR ACCESS, AND WITHOUT LIMITING FOND’S DATA SECURITY OBLIGATIONS HEREUNDER, FOND IS NOT RESPONSIBLE FOR ANY UNAUTHORIZED ACTS RESULTING IN LOSS OF OR DAMAGE TO CUSTOMER DATA OR OTHER PROPERTY IN CONNECTION WITH CUSTOMER’S USE OF THE SERVICES. FOND MAY, IN PERFORMING ITS OBLIGATIONS PURSUANT TO THIS AGREEMENT, BE DEPENDENT UPON OR USE DATA, MATERIAL, AND OTHER INFORMATION FURNISHED BY CUSTOMER WITHOUT ANY INDEPENDENT INVESTIGATION OR VERIFICATION THEREOF, AND FOND MAY ASSUME THAT SUCH INFORMATION IS ACCURATE, COMPLETE, AND LEGALLY COMPLIANT.
Customer retains all ownership rights and Intellectual Property Rights in Customer Data and Customer Confidential Information. Fond retains all ownership rights and Intellectual Property Rights in and to the Services, Fond Technology, Fond Confidential Information, any and all Perk and Reward usage and redemption information, and all suggestions, enhancement requests, recommendations or other feedback provided by Customer or its Users relating to the foregoing (collectively, the “Fond Property”). Customer has no rights to collect, use, copy, store, transfer, disclose, or otherwise process information about the Fond Property. Notwithstanding the foregoing, at Customer’s request Fond will provide Customer with aggregate information regarding the number of Customer’s Perks and Rewards distributed and redeemed. No jointly owned intellectual property is created under or in connection with this Agreement. Customer acknowledges that the Fond name, the Fond logo, and the product names associated with the Services are trademarks of Fond or third parties, and no license to such marks is granted herein.
5.1 Purchase Orders. To the extent Customer uses purchase orders, Customer agrees to make reasonable efforts to promptly provide Fond with purchase orders corresponding to each Order Form hereunder (if applicable). In the event of a conflict between any Customer Purchase Order and an Order Form, the Order Form will be controlling.
5.2 Fees. Customer will pay all fees specified in any applicable Order Forms, or otherwise, as applicable to the Services ordered. Except as otherwise specified herein or in an Order Form: (i) fees are based on Services purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant Subscription Term.
5.3 Payment by Credit Card. If the applicable Order Form permits or requires payment by credit card, Customer will provide Fond with valid and updated credit card information. If Customer provides credit card information to Fond, Customer authorizes Fond to charge such credit card for all Services ordered for the initial Subscription Term and any renewal Subscription Term(s). Such charges will be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form.
5.4 Invoice Disputes. Any disputes as to charges must be reasonable and in good faith and communicated to Fond within 30 days of the date of invoice. The parties will work together in good faith to promptly resolve any such disputes.
5.5 Late Payments. Overdue undisputed amounts are subject to interest at 1.5% per month, or the maximum rate permitted by law, whichever is lower. Customer will reimburse Fond for all reasonable, actual costs (including reasonable attorneys’ fees) incurred by Fond in collection of overdue amounts.
5.6 Suspension of Service and Acceleration. If any amount owing by Customer under this or any other agreement for the Services is 30 or more days overdue (or 10 or more days overdue in the case of amounts Customer has authorized Fond to charge to Customer’s credit card), Fond may, without limiting Fond’s other rights and remedies, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend the Services to Customer until such amounts are paid in full. Other than for customers paying by credit card or direct debit whose payment has been declined, Fond will give Customer at least 10 days’ prior notice that Customer’s account is overdue, before suspending services to Customer. Should Customer wish to restore suspended Services, Customer will pay any and all unpaid fees (and, if Fond so requires, future fees) in advance.
5.7 Taxes. Fond’s fees do not include any Taxes, and Customer is responsible for paying all Taxes associated with its purchases hereunder. In the event that any taxing authority requires that Taxes be withheld on payments made by Customer hereunder, Customer will pay such Taxes to the appropriate taxing authority in addition to the amounts owed to Fond and without deduction from the amounts owed to Fond.
6.1 Term. This Agreement begins on the Effective Date and remains in effect until the termination or expiration of all Order Forms hereunder. Except as otherwise provided in an Order Form: (i) the subscription may not be cancelled (except for material breach) during the Subscription Term, and (ii) the subscription will automatically renew for additional one-year renewal terms and on the terms in effect immediately prior to each renewal, unless either party gives the other notice of non-renewal at least 30 days prior to the end of the relevant Subscription Term.
6.2 Termination for Cause. Either party may terminate this Agreement for cause: (i) upon 30 days prior written notice to the other party of a material breach by the other party, if such breach remains uncured at the end of such period; (ii) immediately upon written notice if the other party becomes the subject of a bankruptcy, insolvency, receivership, liquidation, assignment for the benefit of creditors or similar proceeding; or (iii) immediately upon written notice if the other party undergoes a change of control in favor of a direct competitor of the terminating party.
6.3 Effect of Termination. Upon expiration or termination of this Agreement (or any Subscription Term): (a) if Customer terminates for cause, then Fond will refund any prepaid and unearned fees applicable to the period remaining in the then-current Subscription term; otherwise, (b) all contractually committed fees under all Order Forms entered into hereunder will become immediately due; (b) all subscriptions granted under this Agreement and Fond’s obligation to provide (and Customer’s right to access and use) the Services and Fond Technology, will terminate; (c) Customer Data will be returned or deleted; and (d) Sections 1, 2.2(b), 3, 4, 5, 6.3, 7, 8, 9 and 10 will survive.
7.1 General. The Recipient will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Discloser for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Discloser in writing, limit access to Confidential Information of the Discloser to those of its and its Affiliates’ employees and contractors (including legal counsel and accountants) who need that access for purposes consistent with this Agreement and who are bound by confidentiality obligations with the Recipient not materially less protective of the Confidential Information than those herein, and Recipient will remain responsible for its and such Affiliates’ employees and contractors acts and omissions in connection with this “Confidentiality” section. Notwithstanding the foregoing, Fond may disclose the terms of this Agreement and any applicable Order Form to a subcontractor or Third Party Provider to the extent necessary to perform Fond’s obligations to Customer under this Agreement, under terms of confidentiality materially as protective as set forth herein.
7.2 Compelled Disclosure. The Recipient may disclose Confidential Information of the Discloser to the extent compelled by law to do so, provided the Recipient gives the Discloser prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Discloser's cost, if the Discloser wishes to contest the disclosure. If the Recipient is compelled by law to disclose the Discloser’s Confidential Information as part of a civil proceeding to which the Discloser is a party, and the Discloser is not contesting the disclosure, the Discloser will reimburse the Recipient for its reasonable cost of compiling and providing secure access to that Confidential Information.
8.1 By Fond. Fond will defend Customer from and against any third party lawsuit to the extent arising out of or relating to an infringement claim described in Section 4.1, and will indemnify and hold Customer harmless from any and all damages, losses, liabilities, costs, expenses, and other amounts to the extent awarded by a court of final jurisdiction relating to such claim, or agreed to in a monetary settlement of such claim. Fond will have no indemnification obligation for infringement or misappropriation claims to the extent arising from: (i) Customer’s or any User’s use of the Services other than as permitted under this Agreement; (ii) the combination of the Services with any Customer Data or any Customer or third party products, services, hardware, data, content, or business process(s); (iii) any custom conformance or modifications relating to Customer-generated or Customer-supplied specifications; (iv) from the modification of the Services or any Fond Technology by any party other than Fond or Fond’s agents; or (v) from any claim to the extent arising under any of the exclusions in Section 4.1. THE FOREGOING IS FOND’S SOLE AND EXCLUSIVE OBLIGATION FOR THE CLAIMS DESCRIBED IN THIS SECTION.
8.2 By Customer. Customer will defend Fond from and against any third party lawsuit to the extent: (a) alleging that the Customer Data directly infringe or misappropriate any Intellectual Property Rights; (b) Customer’s use of the Services or Fond Technology in such manner as may or does infringe or misappropriate any Intellectual Property Rights; (c) arising out of or relating to a breach of this Agreement by Customer or any Users; or (d) arising out of relating to any use of any third party products or services offered through the Services (such as “perks” or “rewards”), and Customer will indemnify and hold Fond harmless from any and all damages, losses, liabilities, costs, expenses, and other amounts to the extent awarded by a court of final jurisdiction relating to such claim, or agreed to in a monetary settlement of such claim.
8.3 Indemnity Process. Each party’s indemnification obligations are conditioned on the indemnified party: (a) promptly giving written notice of the claim to the indemnifying party; (b) giving the indemnifying party sole control of the defense and settlement of the claim (provided that the indemnifying party may not settle any claim unless the settlement unconditionally releases the indemnified party of all liability for the claim); (c) providing to the indemnifying party all available information and assistance in connection with the claim, at the indemnifying party’s request and expense; and (d) not compromising or settling such claim. The indemnified party may participate in the defense of the claim, at the indemnified party’s sole expense (not subject to reimbursement).
Neither party’s aggregate liability arising out of this Agreement, whether in contract, tort, or under any other theory of liability, will exceed the aggregate amounts actually paid by and/or due from Customer in the 12 months preceding the incident giving rise to the liability. In no event will either party have any liability to the other for any lost profits or indirect, special, incidental, punitive, or consequential damages however caused and, whether in contract, tort or under any other theory of liability, whether or not the party has been advised of the possibility of such damages.
10.1 Assignment. Neither party may assign any of its rights or obligations hereunder without the other party’s prior written consent (not to be unreasonably withheld); except that either party may upon written notice, but without the requirement of consent, assign this Agreement in connection with a merger, acquisition, or sale of all or substantially all of such party's business or assets. Any attempted assignment in breach of this section will be void.
10.2 Notices. Notices will be sent either by confirmed email, or by first-class mail or overnight courier to the address set forth above and will be deemed given 72 hours after mailing or upon confirmed delivery or confirmed receipt. Notices to Fond will be addressed to its CFO or CEO.
10.3 Governing Law. This Agreement will be governed by California law, without regard to conflicts of law provisions. Neither the U.N. Convention of Contracts for the International Sale of Goods nor UCITA will apply.
10.4 Remedies. Except as otherwise specified herein, all rights and remedies hereunder are cumulative.
10.5 Independent Contractors. The parties are independent contractors. No joint venture, partnership, employment, or agency relationship exists between the parties as a result of this Agreement or use of the Services. Except for Fond’s suppliers and licensors, there are no third party beneficiaries under this Agreement.
10.6 Export Compliance. Customer will not and will not allow any export of the Services or Fond Technology: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations. Customer warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list.
10.7 Waiver; Severability. A party’s failure to enforce any provision in this Agreement will not constitute a waiver unless in writing. No modification hereof will be effective unless in writing and signed by both parties. If any provision of this Agreement is unenforceable, it will be changed and interpreted to accomplish the objectives of such provision to the extent legally permissible; remaining provisions will continue in full force and effect. However, the limitation of liability provisions will remain in effect notwithstanding the unenforceability of any failure of the essential purpose of any remedy provided hereunder. Neither party will be liable for failure to perform due to causes beyond its reasonable control.
10.8 Complete Agreement. This Agreement, including all Order Forms hereunder, represents the entire agreement of the parties and supersedes all prior or contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Any effective amendment of this Agreement must be in writing and signed by both parties. No additional click-through or purchase order terms will be effective. This Agreement may be executed by scan or facsimile, and in counterparts. Section headings are provided for ease of reference and have no legal import. As used herein, “including” means “including without limitation”.