fbpx

Merchant Terms of Service

Effective Date:  2 April 2024

 

AGREEMENT TO TERMS

PLEASE READ THE FOLLOWING TERMS AND CONDITIONS (“TERMS”) CAREFULLY, AS, TOGETHER WITH THE TERMS SET FORTH IN THE FRANKI APP, THE BUSINESS PORTAL, THE SITE (ALL OF WHICH TERMS ARE INCORPORATED HEREIN BY REFERENCE), AND TOGETHER WITH ANY OTHER AGREEMENT ENTERED INTO BY YOU AND US, THEY CONSTITUTE A BINDING LEGAL AGREEMENT (THE “AGREEMENT”) BETWEEN YOU AND US. BY USING OUR SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THIS AGREEMENT AND ANY FUTURE MODIFICATIONS THEREOF. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU MAY NOT USE THE SERVICES (AS DEFINED HEREIN).

 

Agreement to Terms. The Agreement constitutes a legally binding contract, as of the date of your first use of any of the Services (as defined below), by and between you and FRANKI GLOBAL, INC., a Delaware Corporation (including our Affiliates, as defined below) (collectively, “FRANKI,” “we,” “us”), and governs (1) your use of our website or our Business Portal (as defined below) (the “Site”), (2) your use of any Applications (the “FRANKI App”, including any features such as gigs, cash back programs and others that may be included in future releases), (3) your use of any FRANKI software, and (4) your use of or participation in any other product or service owned or operated by FRANKI (each a “Service” and collectively, the “Services”).

 

By accessing, browsing, and/or using any of the Services, you acknowledge that you have read, understand, and agree to be bound by these Terms specifically and the Agreement more broadly, and to comply with all Applicable laws and regulations, including U.S. export and re-export control laws and regulations. You may not use any of the Services and may not accept the Agreement if: (a) you are not of legal age to form a binding contract with FRANKI, and/or (b) you are a person barred from using or receiving any of the Services under the applicable laws of the United States or other countries, including the country in which you are resident, or from which you use any of the Services. If you use any of the Services, you acknowledge that you have read, understood, and agree to be bound by, these Terms and the Agreement.

Please note that these Terms include a disclaimer of warranties, a disclaimer of liability, as well as a release and indemnification by you.

 

If you are accepting these Terms on behalf of a company or other legal entity, you represent that you have the authority to enter into these Terms on behalf of such entity, its affiliates, and all individuals who will use or otherwise access any of the Services, including visitors, users and others who access any of the Services (each, “Your User” and collectively, “Your Users”).  In such event, the terms “you” and “your” shall refer to such entity, its Affiliates, and individuals associated with it.

 

If you do not have such authority or do not agree to these Terms, do not use any of the Services; you may not use any third party user owned data, text, files, information, names, usernames, images, graphics, photos, profiles, audio and video clips, sounds, musical works, works of authorship, applications, links and other content or materials submitted, posted or displayed on or via any of the Services (collectively, the “Content”).

Fees; Payment Terms.

Fees.  You agree to fully and timely pay to FRANKI all fees for each of the Services that you use.  All fee amounts are determined as set forth in the “Business Portal, (that is, the web page(s) through which you log in, access and interact with the Services).

Invoicing.  FRANKI will invoice you as set forth in the Business Portal.

 

Payment Terms. All amounts due hereunder will be charged as set forth in the Business Portal, at such times and subject to other terms and conditions as are set forth in the Business Portal. 

Expenses; Taxes. Each party shall bear its own costs and expenses that may be incurred in connection with your use of the Services.  All fees payable hereunder are exclusive of taxes. If any governmental authority levies any taxes with respect to the services performed by FRANKI in connection with your use of the Services (excluding taxes on income), FRANKI will identify such amount through the Business Portal and shall charge you for the amount of such taxes.

 

Changes to Services and Pricing. We reserve the right to modify, restrict access to, or discontinue any or all of the Services, temporarily or permanently, with or without notice to you, and are not obligated to support or update any of the Services. Unless explicitly stated otherwise, any new features that augment or enhance any of the current Services shall be subject to these Terms.

 

Pricing for the Services are subject to change upon 30 days’ notice. Such notice may be provided at any time by posting the changes to FRANKI’s Website (www.frankiapp.com), or in the Business Portal, through the applicaale Service(s) itself, or through email or other written contact method we have established with you.

 

FRANKI shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of any or all of the Services.

 

Conflicts. In the event of any conflict between the provisions contained in these Terms and any other part of the Agreement, the provisions in these Terms shall control unless the language explicitly states otherwise and provided, however, that the fact that a provision appears elsewhere in the Agreement but not in these Terms, or in these Terms but elsewhere in the Agreement, shall not be deemed to be a conflict for purposes of this sentence.

Grant of Limited License. Subject to these Terms, we hereby grant you a limited, revocable, non-exclusive, non-transferable and non-sublicensable right to access and use the Services as made available by us from time to time, and any documentation associated with the Services. Except for the foregoing license, no other rights in the Services or documentation are granted to you hereunder, and the Services and documentation are and will remain the sole and exclusive property of FRANKI and its licensors, if any, whether the Services are separate or integrated with any other products, services or deliverables.

 

Provision of Services. Subject to the terms and conditions of these Terms and contingent upon performance by you of your obligations herein and in the Agreement as a whole, FRANKI shall use commercially reasonable efforts to make the Services available to you, 24 hours a day, seven days a week, except for: (i) planned downtime (which we will schedule, to the extent practicable, during hours to minimize interruptions), and (ii) any unavailability caused by circumstances beyond our reasonable control. The Services includes support and maintenance as described in the Agreement.

 

FRANKI shall have no liability whatsoever for the resulting unavailability of the Services, or any portion thereof, or for any loss of data or transactions caused by planned or unplanned system outages, corrupted data, or any other reason, or the resulting delay, incorrect delivery, or non-delivery of data or other information caused by such system outages, or any other reason including, but not limited to, bugs, corrupted data, third-party acts or any other outages of Web hosting providers or the Internet infrastructure and network external to the Services. In order to allow FRANKI to mitigate any issues you may experience, you agree to immediately notify us of any outages or concerns.

 

Restrictions on Use of Services. You may not copy, duplicate, reproduce, modify or otherwise adapt, reverse engineer, decompile, disassemble, trade, sell or resell any of the Services for any purpose (except to the extent specifically permitted by applicable law).

 

No Improper Uses. You will not use any of the Services in any manner which exceeds the scope of your license, or which violates your obligations, as set forth in these Terms, or for illegal activities, “spam” or distribution to any person who has not been given specific permission to be included in such a process. You may not frame any part of our Services. You may not use, or attempt to use, any of the Services through any means not explicitly and intentionally made available, provided or intended with respect to the Services. You may not download and/or use information about any third party user of any of the Services for any purpose competitive with the FRANKI system or any of the Services. You may not use any of the Services in any manner that could damage, disable, overburden, or impair any or all of the Services or that harms FRANKI, its service providers, suppliers, other users, or any other person (all the foregoing “Improper Uses”).

 

If you use any of our Services for any Improper Uses, we may immediately suspend or terminate your access to the Services. You are still responsible for full payment of all fees then owing to FRANKI under the Agreement, which are non-refundable.

 

You shall not do the following in connection with the Services: (1) introduce any “malware,” such as, but not limited to, viruses, worms, and Trojan horses; (2) use deep-links, page scrapes, web crawlers, web robots, spiders, wanderers, web scutters, ants, automatic indexers, bots, worms, or other such devices, or programs, algorithms or methodologies which do the same things; (3) send or store, post, transmit or link from, infringing, obscene, threatening, or otherwise unlawful or tortious material, including material that violates privacy rights; (4) damage, disable, undermine, overburden, interfere with, disrupt, or impair the Services or the servers on which they run or interfere with any other party’s use of the Services; (5) obtain or attempt to obtain any content through any means not intentionally made available or provided for through the Services; (6) use any of the logos, trademarks, service marks, or other indicators of origin appearing on any of the Services, except as otherwise set forth in the Agreement; (7) attempt to gain access to any of the Services or its related systems or networks in a manner not set forth in the Agreement or these Terms; or (8) permit access to any of the Services by any third party hardware or software not authorized by us.

 

Responsibilities of Parties.

FRANKI will assign ID(s) and password(s) that will enable you to access the Services. You shall take reasonable precautions to protect against theft, loss or fraudulent use of such ID(s) and password(s), and you are solely responsible for any losses arising from another party’s use of such ID(s) and password(s), either with or without your permission and/or knowledge. You agree that you will use the Services only for lawful purposes, in accordance with these Terms, and not for any malicious, willful or wanton purposes. We will each comply with applicable laws and regulations including applicable security breach notifications laws, provided that FRANKI is not responsible for compliance with laws or regulations applicable to your industry that are not also generally applicable to information technology service providers.

 

You represent and warrant that all data, materials and content (“Your Data”) you provide for use with the Services are owned by you or you have the right to provide Your Data to FRANKI for use with the Services. You also represent and warrant that any use or transmission of Your Data does not and shall not violate or infringe the intellectual property, privacy or publicity rights of any third party, and you shall defend, indemnify and hold FRANKI harmless from and against all claims, damages, liabilities, fines, costs and expenses including reasonable legal fees incurred by FRANKI or which are agreed by FRANKI to be paid by way of settlement or compromise, arising out of any third-party claim due to a breach of the foregoing representations and warranties or any violation of applicable law by you. You shall not be entitled to settle or compromise any such claim made against FRANKI without FRANKI’s prior written consent, such consent not to be unreasonably withheld.

 

We shall have exclusive ownership of all right, title and interest in and to all suggestions, enhancement requests, recommendations or other feedback provided by you or any users relating to the operation, features or functionality of the Services without compensation to you.

 

You further represent and warrant that the information provided by you to FRANKI and entered by you into your account is complete and accurate, that FRANKI may rely upon its accuracy, and that you will take reasonable efforts to regularly validate such information by identifying and correcting all errors and updating the information as necessary. In the event of conflicting information, the information entered by you into your account shall control. It is solely your responsibility to maintain accurate information in your account.

 

Subject to the parameters and restrictions set forth in our Privacy Policy, FRANKI is under no obligation to refrain from reproducing, publishing, or otherwise using communications or other data or content that you send to or receive from the Site or otherwise send to or receive from FRANKI by electronic mail or other electronic means, including any ideas, inventions, concepts, techniques, or know-how disclosed therein, for any purpose, including business collaboration, networking, the developing, manufacturing, and/or marketing of products or services incorporating such information. You hereby give FRANKI your consent to use your personal data consistent with FRANKI’s Privacy Policy.

 

You agree you will not disclose your password(s) to anyone and you will notify us immediately of any unauthorized use(s) of your account. You are responsible for all activities that occur in your account, even if you do not know about them.

 

You are responsible for any use of any of the Services, including without limitation for any data, materials and content uploaded to or transmitted using the Services by you or your employees or agents. You are responsible for the updating and backup of your data used in conjunction with the Services.

 

You acknowledge and agree that FRANKI has entered into agreements with other third party users of the Services who may elect to participate in certain offerings that you may make available to such users through the Services.  You further acknowledge and agree that each such third party user must comply with the terms of their agreement with FRANKI in order to participate in any offering made available by you through the Services.  FRANKI may suspend, ban or otherwise limit any third party user from participating in any such offering for violation of such agreement or for any other reason or no reason.

 

Links from the Services. The Services may contain links to third-party websites, account websites or industry websites that are not owned or controlled by us. We have no control over, and assume no responsibility for, the content, privacy policies, or practices of any third-party website, and you access and use these third-party websites solely at your own risk. These links are provided for your reference and convenience only and do not imply any endorsement, sponsorship or recommendation of the material on these third-party websites or any association with their operators. BY USING THE SERVICE, YOU EXPRESSLY RELEASE US, OUR AFFILIATES, AND OUR AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONTRACTORS, SHAREHOLDERS, LICENSORS, LICENSEES, SUPPLIERS AND SERVICE PROVIDERS FROM ANY AND ALL LIABILITY ARISING FROM YOUR USE OF ANY THIRD-PARTY WEBSITES AND FROM ANY LOSS OR DAMAGE OF ANY SORT YOU MAY INCUR FROM DEALING WITH ANY THIRD PARTY. Accordingly, we encourage you to be aware when you leave any of the Services; FRANKI is not responsible for the data collection policies of these sites. Consult the Terms of Use, Acceptable Use Policies, or other agreements of each Web site you visit.

 

By using any third-party website or Application Programming Interface (“API”), you agree to be bound by their respective Terms of Service.

 

Ownership and Use of Data.

You hereby grant FRANKI a limited, non-exclusive, right to use Your Data (including copyright, trademark, patent, publicity or other rights) and to disclose Your Data to third-party service providers, if any, in connection with FRANKI’s provision of the Services.

 

You retain any and all rights you may possess to Your Data provided by you to FRANKI though the Services or collected from others by FRANKI on your behalf. Your Data will only be used by FRANKI as reasonably required for providing the Services as contemplated hereunder and in accordance with the confidentiality obligations set forth in these Terms. Unless we have your permission, FRANKI will not disclose or share personally identifiable information collected on the Site with any third party (except as required by law, pursuant to a governmental request, for the purposes of providing you the Services, or by a successor in connection with a change of control of FRANKI or our business). FRANKI may retain copies of Your Data following expiration or termination of any  Agreement.

 

Confidentiality.

Any party receiving Confidential Information hereunder (“Recipient”) agrees that (a) it will treat all Confidential Information of another party with the same degree of care as such Recipient accords to its own Confidential Information, but in no case less than reasonable care; and (b) it will not use, disseminate, or disclose to third parties any Confidential Information of the disclosing party (“Discloser”), except for the purpose of providing or utilizing the Services and for any other purpose Discloser may authorize. For purposes of these Terms, “Confidential Information” means any information, regardless of form, proprietary to or maintained in confidence by either party, including, without limitation, any of Your Data, information, technical data or know-how relating to discoveries, ideas, inventions, software, designs, specifications, processes, systems, diagrams, research, development, business plans, strategies or opportunities, and information related to finances, costs, prices, suppliers, vendors, customers and employees which is disclosed by either party or on its behalf whether directly or indirectly, orally, visually, or in writing, to the other party or any of its employees or agents. Both your request for Your Data and the terms and conditions of any proposal for FRANKI’s products or Services shall be deemed to be Confidential Information. All documentation, other than what is publicly available, that FRANKI provides in association with the Services is exclusively our Confidential Information.

 

Additionally, all information you receive from an authorized FRANKI third party user/account, that is in response to your request, shall be treated as Confidential Information as between the requestor and you, the recipient, of the information.

 

Recipient will have no obligation with respect to any portion of the Confidential Information which (a) is now, or hereafter becomes, through no act or failure to act on the part of Recipient, generally known or available to the public; (b) was acquired by Recipient before receiving such information from Discloser and without restriction as to use or disclosure; (c) is hereafter rightfully furnished to Recipient by a third party, without restriction as to use or disclosure; (d) is information that was independently developed by Recipient without reference to Confidential Information received hereunder; or (e) is disclosed with the prior written consent of Discloser. Recipient may disclose Confidential Information pursuant to the requirements of a governmental agency or operation of law, provided it gives Discloser reasonable advance notice sufficient to contest such requirement of disclosure, unless it is prevented from providing such notice by the government agency or operation of law.

 

Proprietary Rights.

The Services, including all material and information, and the selection, arrangement and composition of such information are proprietary property of FRANKI and its licensors and suppliers and are protected by United States’ and international intellectual property laws, including trademark and copyright laws. You agree not to remove, alter or obscure any copyright, trademark or proprietary rights notices incorporated in or accompanying any or all of the Services for any purpose, including, without limitation, your internal use.

 

You acknowledge that FRANKI or its licensors retain all ownership of, and copyright, trademark, trade secret, patent and other proprietary and intellectual property rights in, the Services, and any or all modifications to the Services, related documentation and marketing materials regardless of (i) whether such intellectual property notices appear on the materials or (ii) whether such intellectual property notices have been filed with governmental agencies. Nothing in these Terms will directly or indirectly be construed to assign or grant you any right of ownership, title or interest in the Services, or any intellectual property rights relating thereto.

 

You agree that you shall not disclose to anyone any proprietary or confidential information of FRANKI which you may receive through the Services or which you may have access to on the Site, FRANKI App or alternative sources, and that you will not use any such information to compete against or otherwise harm the business interests of FRANKI or reverse engineer our product offerings.

 

No competitors or future competitors are permitted access to the Site, FRANKI App or Services, and any such access by third parties is unauthorized. You agree that you will not copy, record, publish, compile, reproduce, republish, use or resell for any competing commercial purpose any information on our Site or FRANKI App or which you receive through the Services. In addition, you agree to pay all reasonable attorney’s fees and costs incurred in enforcing these provisions.

 

To the best of FRANKI’s knowledge, all material published by FRANKI on its web pages and other media properties, are done in full agreement with the original copyright owners (be that FRANKI or another party). If you come across a situation where you suspect that this may not be the case, we ask that you contact: [email protected]

You understand and agree that any third party data, content, materials or software (“Third Party Content”) which may be published on the FRANKI website or FRANKI App or otherwise made available through the Services may be subject to third party licenses, that such licenses may be altered or revoked at any time by the applicable FRANKI third party licensor, and that, provided there is no material reduction of functionality in the Services, removal or alteration of Third Party Content shall not constitute a material breach of these Terms or the Agreement.

 

Service Mark and Trademark Rights

“FRANKI, any FRANKI Logo, and any other marks designated with “®” are registered service marks or trademarks, and those designated with ™ or “SM” are pending and/or common law service marks or trademarks of FRANKI in the United States and/or other countries (collectively, “FRANKI Marks”). Unless FRANKI has consented to your use in writing in accordance with the terms of the Agreement, you may not use any of the FRANKI Marks, trade names, logos, icons, images, domain names and other distinctive brand features.

 

The look and feel of the Services are copyrighted as follows: “©2020 Franki Global, Inc. All Rights Reserved.” You may not copy, duplicate or reuse any portion of the visual design elements or concepts without FRANKI’s express prior written consent.

 

All third party trademarks, logos and brand names displayed through the Services are the property of their respective owners. Use of these names, trademarks and brands does not imply endorsement.

 

General Disclaimer.

Any written materials published by FRANKI (the “Materials”) have been compiled by FRANKI from internal and external sources. However, while FRANKI has attempted to provide accuracy in the provision of the Services, including on its Site or in the FRANKI App, no representation is made, or warranty given as to the completeness or accuracy of the Materials. You should be aware that the Materials may be incomplete, may contain errors, or may have become out of date. You should therefore verify information obtained from the Site or FRANKI App before you take any action upon it, and you agree that any copy of the Materials (or any portion of the Materials) that you make shall retain all copyright and other proprietary notices contained herein or therein.

 

No advice or information, whether oral or written, obtained by any of Your Users from FRANKI shall create a warranty not expressly made herein.

Warranty Disclaimer.

THE SERVICE AND INFORMATION ON THE SITE AND IN THE FRANKI APP ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMITTED BY LAW, FRANKI, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONTRACTORS, SHAREHOLDERS, LICENSORS, LICENSEES, SUPPLIERS AND SERVICE PROVIDERS (COLLECTIVELY, THE “FRANKI PARTIES”) DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY, AND OTHERWISE IN CONNECTION WITH THE SERVICE AND YOUR USE OF, OR TRANSACTIONS WITH, THIRD PARTIES, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, SECURITY, ACCURACY, AVAILABILITY, USE OF REASONABLE CARE AND SKILL, AND NON- INFRINGEMENT, AS WELL AS WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING, AND COURSE OF PERFORMANCE. FRANKI DOES NOT REPRESENT OR WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVER(S) USED FOR THE SERVICE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

 

Disputes. In the event of any dispute between you and FRANKI, you agree that your sole and exclusive remedy shall be service credits which may be applied against future fees payable to FRANKI.   You further agree that you waive any other claims, rights, or remedies against FRANKI for any loss suffered in connection with your use of the Services, including FRANKI’s use of your content or other data, service interruptions or any other service deficiencies of any kind.

 

Limitation of Liability.

FRANKI’s liability to you, your affiliates, registered agents, assignees, registrants or any third party claims, for claims seeking indemnity, or for any recoverable losses, damages, or litigation and attorneys’ fees or costs arising under the Agreement shall be limited to the amount of your actual direct damages, not to exceed (in the aggregate for all claims) the total amount paid by you to FRANKI for your use of the applicable Service giving rise to the dispute during the preceding twelve-month period calculated from the time of the incident giving rise to liability. If no fee is paid to FRANKI, FRANKI does not retain any liability.

 

IN NO EVENT WILL FRANKI OR ANY PERSON OR ENTITY INVOLVED IN THE CREATION, MANUFACTURE OR DISTRIBUTION OF ANY SOFTWARE, SERVICE OR OTHER MATERIALS PROVIDED UNDER THE AGREEMENT BE LIABLE OR INDEMNIFY YOU FOR: (i) ANY DAMAGES CAUSED BY YOUR FAILURE OR THAT OF YOUR CLIENTS, INVITEES, EMPLOYEES, AGENTS, AFFILIATES OR SUPPLIERS TO PERFORM THEIR RESPONSIBILITIES; (ii) ANY CLAIMS OR DEMANDS OF THIRD PARTIES OR (iii) ANY LOST PROFITS, LOSS OF BUSINESS, BUSINESS INTERRUPTION, COST OF COVER, LOSS OF USE, LOSS OF DATA, LOST SAVINGS OR OTHER CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE FURNISHING, PERFORMANCE OR USE OF THE SITE, THE FRANKI APP, OR SERVICE PERFORMED OR INFORMATION PROVIDED HEREUNDER, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF FRANKI OR ITS PARTNERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

These limitations of liability will survive and apply notwithstanding the failure of any limited or exclusive remedy for breach of warranty set forth in the Agreement.

 

Indemnification.

YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS THE FRANKI PARTIES FROM AND AGAINST ANY CLAIMS, DISPUTES, LOSSES, OBLIGATIONS, DEMANDS, LIABILITIES, EXPENSES, DAMAGES, COSTS, AND ATTORNEY’S FEES DUE TO OR ARISING OUT OF (1) YOUR ACCESS TO OR USE OF THE SERVICE, (2) YOUR USE OF, OR TRANSACTIONS WITH, THIRD PARTIES, AND (3) YOUR VIOLATION OF ANY OF THESE TERMS. FRANKI RESERVES THE RIGHT, AT ITS OWN COST AND SOLE DISCRETION, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU, IN WHICH EVENT YOU WILL FULLY COOPERATE WITH FRANKI IN ASSERTING ANY AVAILABLE DEFENSES.

Gig Terms and Conditions

A Gig is a promotional feature offered as part of the Services that will allow you to run a contest within your venue to help you promote your venue to third party users run as a contest (each, a “Gig” or “Contest”). If you choose to participate in Gigs, you agree to become the Contest Sponsor and agree to comply with all federal, state, and local laws and regulations relating to Contests and Sweepstakes.  You further agree to indemnify the FRANKI Parties in the event that any such FRANKI Party incurs any loss as a result or any such Gig.

 

If you choose to participate in Gigs, you will be given access to an interface within the Business Portal that will allow you to manage your Gig and provide you with the ability to input the information needed to comply with applicable law, including:

 

  1. Start and end date of the Gig;
  2. Clear Gig rules around entry requirements and how the entries will be judged; and
  3. Statement on when winners will be awarded;

FRANKI may in its sole discretion elect to include an example of generic contest terms and conditions rules to assist you in preparing the actual contest terms and conditions for your Gig.  Should FRANKI elect to do so, FRANKI disclaims any responsibility that such generic terms and conditions will be (i) applicable to your Gig, or (ii) sufficient fully comply with applicable law.

Franki Cash Back Partnership Program

The Franki Cash Back Partnership Program allows Franki merchant partners to acquire new customers and build customer loyalty by offering cash back rewards to third party users to earn cash back for purchases using a linked debit or credit card.  Cash back reward offers are displayed and made available to third party users through the Franki App.

To join the Franki Cash Back Partnership Program, you must join through the Business Portal.  By participating in the partner program, you agree to the following:

Program Details

Reward Terms.  The specific business terms governing your participation in the Franki Cash Back Partnership Program (your “Program”) are set forth within the Business Portal, and are incorporated herein by reference.

Tracked Purchases.  A “Tracked Purchase” is a purchase by a third party user in response to a cash back rewards offer posted through your Program and accepted by such third party user during the term of the Program, provided that such third party user then makes a purchase from you using such accepted cash back rewards offer within the period of time set forth in the Business Portal immediately following such third party user’s acceptance of such offer.  Franki will determine in good faith all Tracked Purchases during the Term, and you agree that absent evidence of bad faith or manifest error, such determination will be binding upon you.

 

Franki Services.

Matching of Tracked Purchases.  Franki shall, within 30 days of the end of each month during the term of your Program, identify all Tracked Purchases and determine fees due and cash back rewards amounts payable to third party users.  Franki may choose, in its sole discretion, to provide more frequent reports of Tracked Purchases.

Reporting. On the first day of each calendar month during the term of your Program, FRANKI shall provide to you through the Business Portal a report for the prior calendar month showing all Tracked Purchases and all fees payable by you during such period.

Distribution of Cash Back Rewards.  Franki agrees to promptly distribute to applicable third party users all cash back rewards payments earned by such third party users through Tracked Purchases during the applicable transaction period.

No Guarantee of Program Success.  Franki does not guarantee or warrant that you will achieve any level of third party user activity, revenues or other results from your participation in your Program.

 

Program Partner Obligations

Fees.  You agree to fully and timely pay to FRANKI the applicable fee on each Tracked Purchase.

Determination of Tracked Purchases.  Although a transaction must occur during the term of your Program to qualify as a Tracked Purchase, you acknowledge and agree that FRANKI shall have not less than 30 days to identify and to report to you all Tracked Purchases from the immediately prior reporting period.

Non-Circumvention. You agree that, during the term, you will not by act or omission circumvent, directly or indirectly, any third party user’s qualifying Tracked Purchase through your Program and/or FRANKI’s determination of fees and/or cash back rewards otherwise payable by you during the term.

Conduct of Partnership Program Campaigns.

Offer Information. You agree to provide to FRANKI all necessary information regarding the cash back rewards offer, including participating locations, restrictions or other limitations, applicable Advertiser Marks and Creative, if any, and any other information reasonably requested by FRANKI in connection with your Program.  You agree to deliver such items to FRANKI via email or other means as mutually determined by the Parties.

Purchase Methods. You agree that the third party user’s linked debit card or credit card is the only permitted means for obtaining cash back rewards under your Program.

Term; Termination.

Term. These Program Terms shall be effective as of the date that you join the Franki Cash Back Partnership Program through the Business Portal and shall continue until terminated by either party.

Termination.  Either party may terminate your participation in your Program immediately by electing to terminate your Program through the Business Portal.  Termination of your Program shall not relieve either party of any obligation or liability accruing prior to such termination.

Wind-Down. Upon any termination or expiration of your Program, the Parties shall collaborate as reasonably necessary to effectuate an orderly wind-down of your Program, and all provisions of these Program Terms shall survive termination to the extent necessary to govern and enforce such wind-down.

General

 

Assignment. These Terms, and any rights and licenses granted hereunder, may be transferred or assigned by you only with FRANKI’s prior written consent, but may be assigned by FRANKI without restriction and without notice to you.

 

Export Control. Software and the transmission of applicable technical data, if any, in connection with the Services may be subject to export and/or import controls. You agree to comply with all applicable laws regarding software and the transmission of technical data exported to and from the United States or the country in which you reside.

 

Governing Law, Jurisdiction, Venue and Arbitration. The Agreement will be governed by, construed under and enforced in accordance with the laws of the State of Delaware without reference to its choice of law principles or the United Nations Convention on the International Sale of Goods; and (ii) in the event any party brings a civil action or initiates judicial proceedings of any kind related to this Policy (except for actions to enter or collect on judgments), you consent to the exclusive personal jurisdiction and venue of the federal and state courts located in the State of California.

 

Any dispute, controversy or claim arising out of, or in relation to, any of the Services, these Terms, the Agreement or any relationship between us, including the validity, invalidity, breach, or termination thereof, shall be resolved by arbitration in accordance with the Rules of the American Arbitration Association in force on the date on which the Notice of Arbitration is submitted in accordance with these Rules. The number of arbitrators shall be one; the seat of the arbitration shall be Los Angeles, California, unless otherwise agreed by the Parties; and, the arbitral proceedings shall be conducted in English.

 

Entire Agreement, Severability. These Terms, together with the Agreement, constitute the entire agreement between you and FRANKI concerning the Services and supersede all prior or contemporaneous communications of any kind between you and FRANKI with respect to the Service. If any provision of these Terms is held by a court or other tribunal of competent jurisdiction, to be invalid, void, or unenforceable, such provision shall be limited or eliminated to the minimum extent necessary and replaced with a valid provision that best embodies the intent of these Terms, so that these Terms shall remain in full force and effect.

 

Waiver. No waiver of any provision of these Terms shall be deemed a further or continuing waiver of such term or any other term, and FRANKI’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.

 

AffiliatesAs used in these Terms, an “Affiliate” of a person means any other person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such person. The term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract or otherwise.

Updates to Terms. The Materials published on the Site or on the FRANKI App may include technical inaccuracies or typographical errors. Changes – including, but not limited to, quoted prices – may be made periodically to the Materials. FRANKI may also make improvements and/or changes in the Services described in the Materials at any time without notice. FRANKI shall have the right to revise these Terms at any time by updating this posting. By linking, accessing, browsing, and/or using the Site or any of the Services, you agree to be bound by any such revisions and should therefore periodically visit the Site or FRANKI App to determine the then-current Terms to which you are bound.

 

Term and Termination. Your license to use the Services as provided herein commences on the date that you first use any of the Services and continues for the term specified therein. Except as may otherwise be specified in the Agreement, all licenses shall automatically expire at end of the relevant term.

 

On termination or non-renewal of the Agreement, the Agreement (including but not limited to these Terms) shall automatically terminate. You also expressly understand that if your account is terminated by FRANKI, you may not establish a different account without FRANKI’s prior written consent.  FRANKI reserves the right to immediately terminate any account you establish at its sole discretion.

 

We reserve the right, with or without notice, and in our sole discretion, to terminate any license to the Services, in whole or in part, and to block or prevent future access to and use of the Services.

 

Effect of Termination. On termination of the Agreement between us under these Terms, without limiting either party’s rights or remedies at law or in equity, but subject to any exclusive remedies herein:

(a) termination for any reason shall not affect any past sums due under the Agreement;

(b) upon termination of the Agreement, no refunds shall be given and all fees that would have become due during the applicable term shall be accelerated and shall become due on termination;

(c) except for the license to FRANKI regarding Your Data, all licenses hereunder shall immediately terminate, and you shall, and shall ensure that all your users shall, immediately cease use of the Services; and

(d) each party shall promptly return to the other party any Confidential Information of the other party in whatever form or media originally provided.

 

Surviving Provisions. All provisions of these Terms relating to ownership of assets and intellectual property, confidential information, limited warranties, disclaimers, releases and limitation of liability, and effects of termination and dispute resolution, and any terms stated to survive in the Agreement, shall survive any expiration or termination of the agreement between us under these Terms.

 

Third Party Beneficiaries. These Terms do not create any right of action on the part of any third party, except for the FRANKI Parties, licensors and suppliers or others who are party to written agreements with us explicitly giving them third party beneficiary rights.

 

Attorney Fees. If the FRANKI Parties take legal action against you as a result of your violation of these Terms, the FRANKI Parties will be entitled to recover from you, and you agree to pay, all reasonable attorneys’ fees and costs of such action, in addition to any other relief granted to the FRANKI Parties.

Contact Us. If you have questions, please contact us by email at:

 

  • General Inquiries [Information, Requests to be Contacted, etc.]: [email protected]
  • Technical Support [Platform Technical Support, Functionality, Improvement Suggestions etc.]: [email protected]
  • Legal [Media Properties, Use of Confidential Information, Copyright Concerns, Improper Use Issues, etc.]: [email protected]
  • Content Errors [Notice that Content is not Accurate or is Misleading]: [email protected]