Point Access Partner Agreement
This Point Access Partner Agreement (the “Agreement”) governs the terms of partnership between Point Up Inc. (“Company”) and the entity named (“Partner”) in the Point Access Partnership document which references these terms (“Partnership Form”) and is hereby therein incorporated. Specific business terms associated with the partnership activities (“Point Access Campaign”) will be set forth in the Partnership Form. All Partnership Forms shall be executed by Partner and Company. Together with the Partnership Form, this Agreement is a legally binding contract between Partner and Company.
The parties agree as follows:
“Eligible Cardholder” means an individual with an active, individual Point Account with Company.
“Eligible Spend” means gross amounts spent by an Eligible Cardholder using their Point Account as agreed by Partner and Company in the Partnership Form.
“Point Account” means a debit card account of an Eligible Cardholder with Point Up Inc. that has been approved and is in good standing.
“Reward Point” means a reward point associated with a Point Card account as described at https://point.app/rewards.
2.1 Point Access Campaign. Partner hereby grants a license to Company to promote its products and services and refer potential customers to Partner, on a non-exclusive basis as described in the Partnership Form or contemplated by the Point Access Campaign. Without limitation, Company may (a) present and promote Partner’s products and services to the public in connection with the Point Access Campaign, and (b) present and promote the Partner’s products and services to current Eligible Cardholders. Within thirty (30) days after the end of each calendar month, Company will provide a reporting to Partner of all qualifying Eligible Spend that has occurred, Reward Points earned in such calendar month and the applicable payments due (“Monthly Report”).
2.2 Partner Materials. Partner will provide Company with certain materials (such as, for example, marketing collateral and logos) for use in promoting the Partner’s products and services in connection with the Point Access Campaign (“Partner Materials”).
2.3 Joint Marketing. To the extent indicated on the Partnership Form, the parties agree to use commercially reasonable efforts to engage in the marketing and promotional activities described on the Partnership Form (“Joint Marketing Activities”). The parties may agree to engage in further activities upon mutual agreement in writing (email being sufficient for such purposes).
2.4 Trademark License. Partner hereby grants Company a revocable, non-exclusive, non-transferable, royalty-free license during the Term to use the Partner logos or trademarks provided to Company (“Partner Marks”), solely for use in connection with the Point Access Campaign and Joint Marketing Activities. Company hereby grants Partner a revocable, non-exclusive, non-transferable, royalty-free license during the Term to use the Company logos or trademarks provided to Company (“Company Marks”), solely for use in connection with the Joint Marketing Activities. Each party shall use the Partner Marks or Company Marks (as applicable) only in such forms and with such graphics as authorized by the other party and in compliance with trademark guidelines as provided in writing from time to time. Upon the request of the other party, each party shall promptly remove all such materials that are unacceptable to the licensor (in its sole discretion) or modify all such materials to become acceptable to licensor. Nothing contained in this Agreement shall be construed to vest in licensee any right, title or interest in or to the other party’s Marks or in the goodwill now or hereafter associated therewith, and all goodwill generated from licensee’s use of the other party’s Marks shall inure to the sole and exclusive benefit of licensor.
3.1 Fees and Expenses. Partner will reimburse Company with respect to Reward Points earned for Eligible Spend as specified in the Partnership Form. Company may invoice upon distribution of the Monthly Report and all payments are due within thirty (30) days of the date of the applicable invoice. Except as expressly provided otherwise, each party will be responsible for all costs and expenses incurred in connection with its performance.
3.2 Taxes. Each party is responsible for, and will pay any and all, applicable federal, state, local, and foreign taxes, duties, tariffs, levies, withholdings, and similar assessments (including without limitation, sales taxes, use taxes, and value added taxes) resulting from its own activities under this Agreement.
4. Proprietary Rights
4.1 No Implied License. Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted, and each party (and its licensors) retains all right, title, and interest in, and to, its products, services, and Confidential Information (including all intellectual property and proprietary rights embodied therein).
4.2 Confidentiality. “Confidential Information” means all trade secrets, know-how, software, pricing, customer, and other financial, business, or technical information disclosed by, or for, a party in relation to this Agreement that is designated as confidential or which a reasonable person would understand its confidential or proprietary nature. Confidential Information does not include any information the receiving party can demonstrate is (a) rightfully furnished to it, without restriction, by a third party without breach of any separate nondisclosure obligation to the disclosing party, (b) generally available to the public without breach of this Agreement, or (c) contained in a Lead Form. Except for the specific rights granted by this Agreement, neither party will use, or disclose, any of the other's Confidential Information without its prior written consent. A party receiving Confidential Information must use reasonable care to protect it. Each party is responsible for any breach of confidentiality by its employees and contractors. If required by law, the receiving party may disclose Confidential Information of the disclosing party but will give adequate prior notice of such disclosure to permit the disclosing party to intervene and request protective orders or other confidential treatment therefor.
4.3 Irreparable Harm. Any breach, or threatened breach, of this Section 4 will cause irreparable harm to the non-breaching party for which money damages will not be an adequate remedy. Therefore, the non-breaching party is, in addition to any other legal or equitable remedies, entitled to an injunction, or similar equitable relief, against any such breach, or threatened breach, without the necessity of posting any bond.
5. Warranties and Disclaimers5.1 Warranties. All warranties concerning the Partner’s products or services, Partner Materials, or otherwise run directly from Partner to the Eligible Cardholder.
5.2 Disclaimers. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY SPECIFICALLY DISCLAIMS ALL WARRANTIES IN CONNECTION WITH THIS AGREEMENT, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. Company will not make any representation, warranty, or offer concerning the Partner products and services, except as authorized by Partner.
6. Limitation of LiabilityEXCEPT FOR EITHER PARTY'S BREACH OF CONFIDENTIALITY, IN NO EVENT IS EITHER PARTY LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY ACTION OR CLAIM (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE), FOR ANY (I) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUES or PROFITS, or (II) ANY DIRECT DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE AMOUNTS PAID BY PARTNER TO REPRESENTATIVE HEREUNDER DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7. Term and Termination
7.1 Term & Termination. This Agreement is effective for the term specified in the Partnership Form and, unless otherwise specified in the Partnership Form, automatically renews for successive terms of the same length until either party terminates this Agreement as provided herein. After the initial Term, either party may, at its option, terminate this Agreement upon ninety (90) days written notice to the other party for any reason or for no reason whatsoever. If one party materially breaches the terms of this Agreement, the nonbreaching party may terminate the Agreement upon thirty (30) days’ notice if such breach is not cured before that period.
7.2 Effects of Termination. Upon any termination of this Agreement, all rights, obligations, and licenses of the parties hereunder cease, except that (a) any compensation due to Company that accrued prior to the termination date is due and payable within thirty (30) days, (b) Company will stop promoting the Point Access Campaign, (c) each party must promptly return to the other or, if so directed by the other party, destroy all originals and copies of any Confidential Information and all information, records, and materials developed therefrom (including any Partner Materials or Company Materials) and (d) the provisions of Sections 3 (Payments), 4 (Proprietary Rights), 5.2 (Disclaimers), 6 (Limitation of Liability), 8 (Miscellaneous), and this Section 7 (Term and Termination), and any remedies for breach of this Agreement, survive any termination.
8. MiscellaneousThe parties are independent contractors and not partners, joint venturers, or otherwise affiliated and neither has any right, or authority, to bind the other in any way; Company is not an agent of Partner. This Agreement is construed in accordance with the laws of California, without regard to the conflict of laws provisions thereof. Any notice required, or permitted, in this Agreement will be in writing and delivered personally, via e-mail, or by registered or certified mail, postage prepaid, addressed to the respective party at the addresses set forth within this Agreement. Neither party may assign, without the prior written consent of the other, this Agreement to any entity, provided that this Agreement may be assigned by either party without consent to any entity that acquires all, or substantially all, of the assigning party’s relevant assets or business. If any provision of this Agreement is held invalid or unenforceable in any respect, that provision is limited, or eliminated, to the minimum extent necessary so that this Agreement otherwise remains in full effect and enforceable. This Agreement (including the attached exhibits and schedules) constitutes the entire agreement between the parties and supersedes any, and all, prior agreements with respect to the subject matter hereof, and may not be amended, modified, or provision hereof waived, except in a writing signed by the parties hereto. No waiver by either party constitutes a continuing waiver or waiver of any other provision of this Agreement.