Merchant Terms of Service

Ackroo shall provide the Merchant with products and/or use of Ackroo’s platform and services as set forth in the Agreement (the “Services”) for the Merchant to operate its own customer loyalty and gift card programs (the “Merchant Programs”).

1.1 Ackroo grants to Merchant a non-exclusive, non-transferable, limited-term license to access and use, and provide access and use to its employees, the proprietary software applications developed, owned and hosted by Ackroo remotely via the Internet as described on an Order Form (the “Software”). Ackroo reserves all rights in and to the Software not expressly granted to Merchant. The Software will be made available in a software-as-a-service model. The Merchant will provide hardware, software, and communications equipment at the merchant's location, allowing the Merchant and its employees to access and use the software.

1.2 Ackroo shall provide “self-serve” support for Merchant Programs subscribing to our “Basic” product offering, with availability via Ackroo’s support portal 24/7. 

1.3 Ackroo will offer a reasonable level of support commensurate with the value of your Merchant Program, and allocate a dedicated client success representative to chosen merchants subscribed to our 'Advanced' Merchant Programs, as determined by Ackroo. This assistance will be available during regular business hours, Monday to Friday, from 8am to 6pm EST. Additionally, merchants can utilize the 'self-serve' option via Ackroo’s support portal 24/7. Additional support can be obtained for an extra fee, subject to Ackroo's discretion.

1.4 Additional hours for “professional services”, which entail fees to cover extra time and effort, will be outlined in a separate Statement of Work (SOW) where applicable and will be charged at an hourly rate of $150.00.

1.5 A SOW may also apply to "Advanced" product offerings, which refer to merchants participating in loyalty programs.

2.1 Merchant agrees to pay to Ackroo the fees associated with the Services as set forth in Agreement. As of the Contract Signed Date, Ackroo shall invoice and charge the Merchant for the TOTAL INITIAL FEES as shown on Agreement plus applicable taxes. All future program materials purchased by Merchant are invoiced upon fulfillment is due in full immediately. Upon program setup, the Initial Term of this Agreement shall commence when Merchant is active on the program, which could vary from the Contract Signed Date. Ackroo provides the merchant with all necessary tools and information to facilitate the launch of a program. Ackroo may invoice the merchant no later than 15 days after contract signature. Ackroo invoices monthly program fees at the beginning of each month; payment is applied on the 15th of each month (via credit card or void cheque), or the previous business day, if the 15th falls on a non-business day. The monthly invoice shall include the current month’s program fee, and applicable taxes via the payment method agreed between the Parties. Any delayed or incomplete payment shall be remedied by Merchant within ten days after which Ackroo may in its sole discretion withhold the provision of the Services. Should payment not be remedied within 30 days, Ackroo has the right to suspend services and a re-activation service charge may be applicable. Payments that are not complete due to Non-sufficient Funds or declined Credit Cards will be subject to a charge of $35 that will be billed in the next billing cycle. Late payments may be charged an interest rate of 3% per month until payment is received. We accept:

1. Pre-Authorized Debit/ACH
2. Visa, Mastercard – 3% processing fee plus admin will apply
3. Electronic Funds Transfer – $3.00 admin fee will apply

2.2 eGift. Ackroo provides an application for the Merchant to host eCommerce Gift (eGift) purchasing on the Merchant’s website. The merchant provides their online payment processing gateway information, including, but not limited to, PayPal, Bambora, etc., for processing eGift purchases and allowing customers to buy and send eGifts or reload existing gift cards and present them in-store for redemption. Ackroo charges the applicable monthly fee for this Service outlined in the Merchant Agreement. The Merchant pays the payment gateway, processes the funds online, and pays their associated fees directly. 

2.3 Custom Development. Ackroo provides custom development services at an extra charge. Payment is billed upon completion, although we reserve the right to request a deposit of up to 50% in advance. We will draft a SOW detailing the scope of the work, along with a quotation and timeline.

2.4 Discount Removals & Inflation Increases. During or at the renewal term, merchants may be subject to (a) removal of discounts from current Ackroo listed pricing increases of up to 5% for inflation and/or (b) a change to the monthly program fee to match current program pricing plans. 

2.6 Term and Termination. At the end of the Initial Term, the Agreement shall automatically renew for a successive 12-month period, or as otherwise outlined in the Agreement (each “Renewal Term”) unless terminated earlier as provided for herein, or for convenience by either Party upon 30 days written notice prior to the end of the Initial Term or a Renewal Term. Upon the occurrence of any of the following events of default during the Initial Term or a Renewal Term, the non-defaulting Parties shall have the right to cancel and terminate this Agreement forthwith upon written notice to the defaulting Party: (a) the insolvency of Ackroo or Merchant or the institution of voluntary or involuntary proceedings in bankruptcy or under any other insolvency law, or any arrangement with creditors or corporate reorganization or receivership or dissolution of Ackroo or Merchant; or (b) material breach of this Agreement if not remedied to the satisfaction of the non-breaching Party within fifteen days of notice of the breach. 

2.8 Termination Fee. The cancellation fee is calculated as the total remaining contract value, determined by multiplying the number of contracted months remaining (including current and/or amended months) by the highest monthly program fee within the past 12 months.

Unless otherwise agreed by Ackroo, there is no refund of the pro rata amount of any subscription fee paid at the time Merchant notifies Ackroo of its termination of this Agreement. 

2.9 Effect of Termination. Upon termination or expiration of this Agreement, Merchant will immediately cease use of the Software and verify in writing to Ackroo that it has destroyed, permanently erased or returned to Ackroo any portion of the Software or Confidential Information in its possession or control.

3.1 Canadian Anti-Spam Legislation. We are dedicated to adhering to Canada’s Anti-Spam Legislation (“CASL”). All electronic communications sent by us to external parties are safeguarded by a comprehensive set of business procedures, processes, and policies to ensure compliance with CASL. If you have received a commercial electronic message from us and believe that you should not have, or if you prefer not to receive such messages (even if we are permitted to send them), we will make every effort to honour your inbox preferences. Should you have any questions or concerns regarding our unsubscribe methods, please feel free to email us at privacy@ackroo.com. The option for cardholders/members to unsubscribe is presented when the account is registered either by the cardholder or the merchant acting on behalf of the cardholder. This information is accessible to the Merchant and must be adhered to in accordance with CASL regulations. Ackroo shall not be held liable for any Merchant's failure to comply with CASL.

3.2. Ackroo may contact Merchants subscribed to the Ackroo service to communicate program changes, program updates, and promotions.

1. Publicity. Merchant agrees that Ackroo may use Merchant’s name and brand marks in lists of Ackroo customers, press releases, and other public promotional materials.
2. Restrictions. Merchant shall use the Services solely for its own internal business purposes. Merchant shall use commercially reasonable efforts to make sure a third party does not: (a) sell, resell, lease, etc., the Services to a third party; (b) attempt to reverse engineer the Services or any component; (c) attempt to create a substitute or similar service through the use of, or access to, the Services.
3. Representations and Warranties. Each Party represents its full power and authority to enter into the Agreement. Each Party warrants that it will comply with all laws and regulations applicable to its provision, or use, of the Services, as applicable. Ackroo warrants that it will make commercially reasonable efforts to maintain the continuous availability of the Services.
4. Disclaimers. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, NEITHER PARTY MAKES ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NONINFRINGEMENT. ACKROO MAKES NO REPRESENTATIONS ABOUT ANY CONTENT OR INFORMATION MADE ACCESSIBLE BY, THROUGH OR WITHIN THE SERVICES.
5. Limitation of Liability. NEITHER PARTY OR ITS RESPECTIVE AGENTS, SUPPLIERS, AND SUBCONTRACTORS WILL BE LIABLE UNDER THIS AGREEMENT FOR LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE. NEITHER PARTY MAY BE HELD LIABLE UNDER THIS AGREEMENT FOR MORE THAN THE AMOUNT PAID BY THE MERCHANT TO ACKROO HEREUNDER DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY. These limitations of liability apply to the fullest extent permitted by applicable law but do not apply to breaches of confidentiality obligations, violations of a Party’s intellectual property rights by the other Party, or indemnification obligations.
6. Intellectual Property Rights. Except as expressly set forth herein, this Agreement does not grant either Party any rights, implied or otherwise, to the other’s content or intellectual property. Merchant shall own all rights, title, and interest in the Merchant Data. Ackroo shall own all rights, title, and interest in and to any data entered into the Services by an end user.
7. Merchant will indemnify, defend, and hold harmless Ackroo and its Affiliates from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a third-party claim regarding Merchant’s use of the Services (including claims of breach of privacy) or material breach of this agreement, except to the extent that any liabilities, damages or costs are found in a final, non-appealable, judgment by a court of competent jurisdiction to have resulted primarily from the willful misconduct or negligence of Ackroo or its Affiliates.

4.1 Trademarks. Ackroo retains all rights, titles, and interests in and to its trademarks, service marks, and trade names worldwide. Merchants may only use Ackroo trademarks, service marks, and trade names with Ackroo's express permission.

4.2 Notices. Unless specified otherwise herein, (a) all notices must be in writing and addressed to the attention of the other Party’s legal department and/or primary point of contact and (b) notice will be deemed given: (i) when verified by written receipt if sent by personal courier, overnight courier, or when received if sent by mail without verification of receipt; or (ii) when verified by automated receipt or electronic logs if sent by facsimile or email.

4.3. Assignment. Ackroo reserves the right to assign or transfer any part of this Agreement without the prior written consent of the other Party, except to an Affiliate, provided that: (a) the assignee agrees in writing to be bound by the terms of this Agreement; and (b) the assigning Party remains liable for obligations incurred under the Agreement prior to the assignment. Ackroo also retains the right to freely assign this Agreement without notice to the other Party in the event of a merger, acquisition, or sale of all or substantially all of its assets or stock. If the Merchant intends to merge or sell its assets, they are required to provide notice to us. Any other attempt to transfer or assign this Agreement shall be deemed void.

4.4 Force Majeure. Neither Party will be liable for inadequate performance to the extent caused by a condition (i.e. natural disaster, act of war or terrorism, riot, labour condition, governmental action, or internet disturbance) that was beyond the Party’s reasonable control.

4.5 Severability. If any provision of this Agreement is found unenforceable, the balance of the Agreement will remain in full force.

4.7 Survival. Sections 2 and 5 of this Agreement will survive expiration or termination.

4.8 Entire Agreement. This Agreement, and all documents referenced herein, is the Parties’ entire agreement relating to its subject matter and supersede any prior or contemporaneous agreements.

4.9 Software. The Software is and will remain the sole and exclusive property of Ackroo. This Agreement grants Merchant no title or right of ownership in or to the Software, or any component of the Software, including source code, or to any associated materials, documentation, intellectual property, or in or to any enhancements, modifications or improvements to the Software. The Merchant will not, at any time, take or cause any action that would be inconsistent with or tend to impair the rights of Ackroo or its licensors in the Software. Merchants may not remove or alter any of Ackroo’s proprietary or copyright notices, trademarks or logos. 

4.10 Indemnification. Ackroo will indemnify and defend Merchant and its affiliates, directors, officers, employees and agents with respect to any claims, liabilities, damages and expenses, including reasonable attorneys’ fees, arising out of any third-party claim that the Software infringes any copyright, patent, trademark, trade secret or other intellectual property rights of any third party. Merchant will indemnify and defend Ackroo and its affiliates, directors, officers, employees and agents with respect to any claims, liabilities, damages and expenses, including reasonable attorneys’ fees, arising out of any third-party claim or action arising from or relating to the gross negligence or willful misconduct of Merchant, or any use of software, materials, information, data or other intellectual property (including, without limitation, any customer information or data) provided or made available by Merchant for use by Ackroo as required to perform the Services.

4.11 Governing Law. This Agreement is governed by the laws of the Province of Ontario. The Parties attorn to the exclusive jurisdiction of the federal and provincial courts in the Province of Ontario over any matters arising from this Agreement.

4.12 Maintenance. Ackroo reserves the right to periodically take the software offline for updates or upgrades. These activities will occur after hours to minimize customer impact and will not exceed 1% of the total operating hours in a year. Ackroo will strive to give at least 5 days' notice to all Merchants via email regarding scheduled maintenance. In case of an emergency outage, immediate email notifications will be sent to all customers.

5.1 Definition. “Confidential Information” means any material, data, or information in whatever form or media of a party to this Agreement that is provided or disclosed to the other, including the following categories of information whether disclosed orally or in writing, regardless of whether marked as confidential: algorithms, source code, specifications, software, test results, technical know-how, business or marketing plans, pricing, network configurations, network architecture, financial and operational information, trade secrets, and other matters relating to the operation of the parties’ business. The parties will treat the terms of this Agreement as Confidential Information. 

5.2 Obligations. All Confidential Information belonging to one party and disclosed to the other party remains the sole property of the disclosing party, and its confidentiality will be maintained and protected by the recipient with the same effort used to protect its Confidential Information, to which degree of effort must be reasonable. Each party agrees to take all necessary measures to prevent any such unauthorized use and disclosure by its employees, agents, contractors, dealers or consultants, which parties must be subject to obligations of confidentiality under this Agreement. The parties agree not to use each other’s Confidential Information for any other purpose than as contemplated by this Agreement. Upon termination of this Agreement, each party will comply with any request to return or destroy the other party’s Confidential Information. 

5.3 Exceptions. Confidential Information does not include information which: (a) becomes publicly known through no act or omission of the receiving party; (b) was in the receiving party’s lawful possession prior to the disclosure and had not been subject to limitations on disclosure; (c) is disclosed hereafter to the receiving party by a third party when the receiving party has no knowledge of any impropriety; (d) is developed independently; or (e) is generally furnished by the disclosing party to others without restriction on confidentiality. This Agreement will not prevent either party from disclosing the other party’s Confidential Information to the extent required by a judicial order or other legal obligation, provided that the receiving party shall promptly notify the other party in writing and in advance of such disclosure to provide the other party with the opportunity to contest or minimize the scope of the disclosure.