Revised date: 03.11.2023
These GTCs govern the Services (as defined below) to be provided by Liquid Barcodes, Inc., a Delaware corporation (“LB”), to the customer ordering services from LB (the “Customer”). These GTCs, the Order form and the DPA are sometimes hereinafter referred to collectively as “this agreement”.
The particulars of the Services, including the scope and price, will be governed by a separate project description, order form, attachment or similar document.
LB may update these GTCs from time to time. Each party’s respective rights and obligations are governed by the then-current GTCs at any time. Any updated version will be indicated by an updated ‘Revised’ date and the updated version will be effective as soon as it is accessible. If LB makes material changes to these GTCs, LB may notify Customer either by prominently posting a policy of such changes or by directly sending Customer a notification. Customer’s continued use of the Services constitutes acceptance of the GTCs then in effect.
For the purpose of this agreement, the following terms shall have the following meaning:
“Completion” means the point in time when LB communicates to Customer that the Set up and Integration Services have been completed;
“Customer Data” means information, data and other content that is submitted or otherwise transmitted by or on behalf of Customer or its users through the Services;
“Dashboard” means LB’s proprietary web-based interface where Customers manage programs and campaigns and access certain data;
“DPA” means the Data Processing Agreement (“DPA”) located at [insert url].
“Order form” means the order form that has been signed by Customer and LB;
“POS” means Point of Sale;
“Program” means a program that LB provides to Customer as set forth in the Order form, which may include rewards programs, subscription programs, payment programs or similar programs or campaigns;
“Services” means the services and/or provision of the Platform as described in the Order form;
“Set up and Integration Services” means the services described in Section 4 below, or as otherwise set forth in the Order form.
“Platform” shall mean LB’s interfaces, API integration points, Dashboard, reporting system, software and similar deliverables.
“Term” means the Initial Term and any renewal terms described in the Order form, subject to termination as set forth herein.
Subject to Customer’s payment of applicable fees and Customer’s performance of its obligations hereunder, during the Term, LB shall provide Services relating to the Programs or other related services to the extent expressly specified in the Order form.
LB shall perform Services for the purpose of configuring Customer’s account with LB, creating an app and enabling integration between LB’s Platform and Customer’s hardware, software or other equipment, to the extent expressly specified in the Order form. This may include Platform and app development.
Customer shall itself arrange for preparations (including but not limited to modifications and upgrades) of its hardware, software or other equipment if required to enable these to efficiently interoperate with LB’s Platform. This may require Customer to perform all or part of the integration activities, unless otherwise specified. Customer is responsible for ensuring that any subsequent modifications of its hardware, software or other equipment does not prevent or impede interoperability with LB’s Platform.
LB will notify Customer upon Completion of the Set up and Integration Services. Customer shall notify LB in writing of any issues with respect to such Services within 30 days after such notification. In absence of such notification, the Set up and Integration Services shall be deemed approved. Additional support fees will be billable to Customer after this 30-day period.
Commencing on the date of Completion of the Set up and Integration Services, LB shall operate the Platform, or parts thereof, to the extent expressly specified in the Order form, provided that appropriate fees have been paid to date and continue to be paid for services rendered and monthly licenses.
Unless otherwise is agreed, and in each case subject to the Order form, LB’s operational Services generally consist of making available a self-service dashboard where Customer can provide input to, extract information from and control the use of the Services as permitted by the Platform, such as managing applicable Programs.
LB shall use commercially reasonable efforts to cause the Platform App API and POS API to have an availability rate of 99.5% per month (except during planned down time or down time as a result of the immediately measures described below). Availability rate is calculated as follows:
Availability rate = Number of Requests responded to successfully / Total number of requests.
Total number of requests is adjusted for planned downtime and downtime. Total number of requests excludes erroneous requests and requests above workload threshold.
For example:
Planned down time shall be performed with 7 days’ notice and shall preferably be performed between 22:00 and 05:00 on weekdays Central European Time.
LB reserves the right to take immediate measures (including take down the service) without prior consultation with Customer to avoid high-risk, high impact incidents, e.g. imminent Platform failure, fraud, or security breach.
During the Term, LB shall make such Customer Data available to be accessed by Customer and downloadable via manually downloadable csv files, automatically downloadable csv files via API or visual statistics via dashboard. Extra charges may apply to the extent LB incurs costs to address specific Customer formatting requested regarding Customer Data download requirements.
If set forth in the Order form, LB shall maintain the consent opt-in information of program members which is, or will be, established in connection with the Services. This includes collecting information regarding opt-ins and opt-outs of Customers. Such opt-in or opt-out information shall be Customer Data owned by Customer, and Customer shall remain liable for regulatory responsibility relating thereto, such as responsibility for the validity of customers’ opt-in consent.
As between Customer and LB, Customer shall remain the owner of all Customer Data. Customer hereby grants to LB and its subcontractors a non-exclusive, royalty-free, worldwide right and license to use Customer Data for purposes of providing the Services and Platform to Customer in this agreement, including the right to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for LB to provide the Services and Platform to Customer.
Customer shall indemnify, hold harmless, and defend LB from and against any claims, losses, penalties, fines or other damages resulting from any claim that any use of the Customer Data by LB in accordance with this agreement infringes or misappropriates a third party’s trade secrets or personal, privacy or intellectual property rights.
LB shall upon request supply support Services (including technical follow-up) within working hours (08.00-16.00 Eastern time zone) on US working days. All enquiries preferably take place via https://support.liquidbarcodes.com/support/home. It is also possible to contact the support services via email: support@liquidbarcodes.com or other agreed points of contact.
Without limiting any other obligations and responsibilities set out in these GTCs or the Order form, Customer undertakes to perform the obligations and to undertake the responsibilities as set out in this Clause 9.
Customer undertakes to allocate enough resources to facilitate LB’s provision of Services and to ensure timely cooperation.
Customer is responsible for managing the Programs through the Dashboard. This includes, but is not limited to, creating and managing campaigns, consuming data to provide end user support and managing Dashboard access.
Customer is responsible for ensuring that LB may efficiently interoperate with third-party applications and services, such as those relating to granting access to third party solutions relating to POS integration, to the extent required for the operation of the Services.
Customer is responsible for ensuring that third parties that require credentials to the LB Platform maintain the confidentiality of such credentials, and such credentials shall be subject to the Confidentiality clause set forth below. Customer shall ensure that such third parties store and distribute these credentials in such a way that minimizes risk of unauthorized access to the LB Platform.
Customer shall comply with all applicable export control, economic sanctions, anti-boycott, and anti-bribery/corruption laws and regulations, including, but not limited to, any requirements arising under the Export Administration Regulations (“EAR”), the International Traffic in Arms Regulations (“ITAR”), the various economic sanctions regimes administered by the U.S. Treasury Department’s Office of Foreign Assets Control, the anti-boycott laws administered by the U.S. Commerce Department’s Bureau of Industry and Security/Office of Antiboycott Compliance, and the U.S. Foreign Corrupt Practices Act (“FCPA”). Customer agrees to comply with these laws and regulations and to inform LB immediately of any obstacle to such compliance. Furthermore, Customer hereby certifies and warrants that neither it nor any of its directors, officers, employees, agents, or representatives is or is owned or controlled by a) a person who appears on any applicable proscribed party lists, b) the government, including any political subdivision, agency, instrumentality or national thereof, of any country or territory against which the United States or any other relevant jurisdiction maintains economic sanctions or embargos, or c) a person acting or purporting to act, directly or indirectly, on behalf of any of the aforementioned.
LB may periodically inspect, monitor and audit Customer’s records (and usage of the Services and Platform) to ensure compliance with this agreement.
The parties agree that mutual cooperation is required for optimizing the Customer’s result of the Services. Therefore, each party shall respond to requests from the other party without undue delay. Further, joint status meetings shall be held at an agreed frequency for the purposes of assessing the status and discussing future Services.
Upon signing of the Order form, LB has the right to issue a press release, subject to the approval of Customer, to communicate the cooperation agreement in general terms.
In consideration for the Services, Customer shall pay to LB the fees specified in the Order form. The fees are exclusive of (and Customer shall be responsible for) all sales, use, VAT and excise taxes and similar taxes, duties and charges of any kind imposed by any federal, state or local government or regulatory authority based on the payments by Customer under this agreement, except for taxes imposed on LB’s income.
The fees shall be in the currency specified in the Order Form.
On each anniversary of the agreement, and upon thirty days prior notice, LB shall be entitled to up to 10% adjustments of its fees to reflect inflation.
Customer is responsible for any third-party costs such as, but not limited to, POS integration costs from POS vendors, app store registration costs, payment service provider costs.
“Intellectual Property Rights” include any intellectual property rights, whether registered, non-registered or applied for, including but not limited to patents, designs, trademarks, service marks, copyright, copyright-related rights (neighboring rights), database rights, trade secrets, know-how, rights in the nature of unfair competition, and all similar property or proprietary rights, including those subsisting in inventions, performances, computer programs, software, source code, business names, goodwill, and the layout, style and presentation of goods or services.
Subject to Customer’s payment of applicable fees, LB grants to Customer during the Term a limited, non-exclusive, non-transferrable license to use the Platform and Services solely for Customer’s internal business purposes.
LB shall remain the sole and exclusive owner of all Intellectual Property Rights in and to the Platform and Services, including any modifications or derivative works thereof. Except as expressly specified in the Order form or the immediately preceding paragraph, nothing in the agreement shall be deemed to assign any rights or grant any license to Intellectual Property Rights of LB. For the avoidance of doubt, LB remains the owner of Intellectual Property Rights to the Platform, derivative works thereto, and to any results of the Services.
“Confidential Information” includes any information provided or made available by a party hereunder (in such case, the “Disclosing Party”) to the other party (in such case, the “Receiving Party”), whether in tangible or intangible form, including but not limited to information relating to concepts, methods, techniques, processes, documentation, trade secrets, know-how, results, manuals, software, products, services, offerings, partners and pricing. However, “Confidential Information” shall not include information which the Receiving Party can establish (i) was publicly known and made generally available in the public domain prior to the time of disclosure to the Receiving Party; (ii) becomes publicly known and made generally available after disclosure to the Receiving Party through no action or inaction of the Receiving Party or its representatives or agents; or (iii) was rightfully in the possession of the Receiving Party without confidentiality restrictions (and without any breaches of any confidentiality obligations owed to Disclosing Party) at the time of disclosure by the Disclosing Party.
The Receiving Party shall not disclose any Confidential Information of the Disclosing Party to any third party unless required by law. Either party shall however be entitled to disclose Confidential Information on a need-to-know basis to each party’s affiliates, and on a need-to-know basis to each party’s or affiliate’s accountants, auditors, legal counsel and employees, all of which shall agree to be bound by confidentiality undertaking at least as strict as those imposed herein.
The Receiving Party shall not use any Confidential Information of the Disclosing Party for any purpose other than as required to perform the obligations and to exercise the rights under this agreement.
In its performance of the Services, LB may process personal data on behalf of the Customer. For such processing, LB shall be considered data processor (a service provider under the California Consumer Privacy Act), whereas Customer shall be considered data controller. For this purpose, the DPA shall apply and govern these matters.
The parties may use subcontractors for the performance of their respective obligations. Each of the parties is liable for its subcontractors’ performance and remains liable for the fulfillment of the agreement. For the use of subcontractors that access personal data, the DPA applies.
Force majeure includes any event reasonably outside the control of the party which causes delay or which renders it commercially unreasonable to perform its obligations, including, but not limited to, insurrection or civil disorder, war or military operations, national or local emergency, acts or omissions of governmental authority or other competent authority, strike, errors or downtime in networks, power supply, gateway, or similar failures of telecommunication companies.
In a force majeure event, the party experiencing a force majeure shall not be in breach of such obligations affected by such force majeure under this agreement (but specifically excluding payment obligations, which are not excused by force majeure). The agreement will however continue to be in force during the period of force majeure.
LB warrants the Services and the Platform will be provided with reasonable skill, care and efficiency and in conformance in all material respects with the requirements set forth in the Order form to the extent such Services and the Platform are used in accordance with all documentation, materials or manuals provided or made available by LB (the “Limited Warranty”). In the event of any non-compliance with the Limited Warranty, LB shall use commercially reasonable efforts to rectify such non-compliance.
EXCEPT FOR THE LIMITED WARRANTY, ALL SERVICES, INCLUDING THE PLATFORM AND SUPPORT SERVICES, ARE PROVIDED “AS IS” AND LB HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. .
IN NO EVENT WILL LB BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; OR (B) COST OF REPLACEMENT SERVICES. IN NO EVENT WILL LB’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT OR STRICT LIABILITY, EXCEED THE TOTAL AMOUNTS PAID TO LB UNDER THIS AGREEMENT IN THE [12 MONTH] PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
In the event of material breach by a party, the other party shall have the right to terminate this agreement with immediate effect, provided that the breaching party has not been capable of remedying the breach within 60 days after receipt of notice of the breach from the non-breaching party. Without limiting the foregoing, LB may terminate this agreement if Customer fails to make any payments due under this agreement (including the Order form) within 10 days after receipt of non-payment from LB.
Within two weeks after termination, LB shall submit to Customer the Customer Data in the format stored by LB or otherwise reasonably agreeable by the parties.
This agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Delaware. Any legal suit, action, or proceeding arising out of or related to this agreement will be instituted exclusively in the federal courts of the United States in the State of Delaware or the state courts of the State of Delaware, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
Customer may not assign this agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of LB. Any purported assignment or delegation in violation of this Clause will be null and void. This agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
If any provision of this agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties shall negotiate in good faith to modify this agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.