MERCHANT AGREEMENT

TERMS AND CONDITIONS
Effective 1-1-2025

  1. Definitions.
    1. “Branded App” means a white label version of the Thanx mobile application published under Merchant’s brand to enable Program Participants to participate in Merchant’s Loyalty Program.
    2. “Digital Essentials Plan” shall mean access ONLY to Thanx Web Ordering, CRM, and customer marketing tools and shall not include development of a Branded App or Loyalty Program unless otherwise specified in the Order Form.
    3. “Integration” shall mean an integration between a third-party service provider and the Services for purposes of the exchange of Merchant Data as requested and authorized by Merchant pursuant to the terms of this Agreement.
    4. “Locations” shall mean those locations identified by Merchant at the time of implementation or otherwise added pursuant to this Agreement that are receiving the Services.
    5. “Loyalty Program” means the loyalty program created and managed by Merchant through the Thanx Platform.
    6. “Merchant Content” means all text, graphics, information, images, or other materials including all branding materials (e.g., Merchant’s name, tradenames, trademarks, service marks and logos) and information relating to Merchant’s business, products and services, submitted, uploaded, imported, communicated or exchanged with Thanx and the Thanx Platform to facilitate the provision of Services under this Agreement.
    7. “Merchant Data” means any (a) data produced by Merchant without use of or reference to the Purchase Data or Program Data, (b) data provided by Program Participants via the Merchant-branded Services such as Branded App or Web Ordering (including name, email, phone number, and birthdate, etc.), and (c) customer data provided by you and applicable Integration service providers that is uploaded, imported, integrated or otherwise made available to us in connection with your use of the Services.
    8. “Points” means points that may be earned and redeemed for Rewards.
    9. “Program Data” means metrics and data (including the following transaction data attributes: amount, date, time, and location), generated and/or extracted by Thanx with respect to the Services, Rewards, and Loyalty Program, including aggregated and analytical data and insights
    10. “Program Participant” means a person who participates in Merchant’s customer engagement, Loyalty Program or other offerings made available via the Services pursuant to this Agreement.
    11. “Purchase Data” means raw data files regarding the purchase transactions of Program Participants participating in the Loyalty Program received by Thanx from third party credit card networks, such as Program Participant identifier (e.g., user id), last four digits of PAN, transaction ID, credit card network ID, Merchant ID, Merchant Name, Merchant City (city of transaction) Merchant state (state of transaction) Merchant Zip (zip code of transaction), transaction amount (dollar amount authorized), transaction date (authorization date) and transaction time (time authorization occurred), settled amount (dollar amount cleared and settled) settlement date and time.
    12. “Rewards” means the rewards offered to Program Participants participating in Merchant’s Loyalty Program.
    13. “Service Data” means, collectively, Program Data and Purchase Data.
    14. “Services” means the products and services made available to Merchant pursuant to the plan specified in the Order Form, including, as applicable, the Thanx Platform, Branded App, Web Ordering, and Thanx API made available to Merchant during the term of this Agreement.
    15. “Thanx 360 Plan” shall mean the entirety of the Thanx Platform including multi-channel in-store and online guest engagement and loyalty platform with CRM-integrated mobile and/or web experience services as listed on Order Form.
    16. “Thanx Platform” means the Thanx software suite which enables merchants to create and manage customer loyalty programs, customer marketing, and other offerings made available through this Agreement.
    17. “Transition Files” means the set of CSV files that contain a list of all Program Participants in Merchant’s Loyalty Program (including Participant contact information if the Participant opted to share it with Merchant), each Reward issued, status, and Participant’s final progress towards a Reward as of the effective date of termination.
    18. “Web Ordering” means a web ordering interface produced by Thanx that connects to certain third party online ordering platforms enabling Program Participants to execute orders through a web interface.
  2. Licenses.
    1. Services. Thanx will provide Merchant access to the Services selected in the Order Form during the Term. Subject to the terms and conditions of this Agreement, Thanx grants to Merchant a non-exclusive, non-sublicensable, non-transferable (except as permitted under Section 16) license during the Term to access and use the Services.
    2. User Content and Feedback. To the extent that Program Participants submit any content or feedback to Merchant via use of the Services, Merchant grants to Thanx a non-exclusive, transferable, sublicenseable, worldwide, royalty-free license to use, copy, modify, create derivative works based upon, distribute, publicly display, publicly perform and distribute the content and feedback in connection with operating and providing the Services.
    3. Merchant Content. As between you and Thanx, Merchant owns all right, title and interest in and to the Merchant Content. By providing Merchant Content to Thanx, you grant Thanx a worldwide, non-exclusive, sublicensable right and license, during the Term, to use, modify (for formatting and display purposes), publicly perform, publicly display, reproduce, and distribute such Merchant Content on and through the Services.
    4. Merchant Name and Logo. You agree that Thanx may reference you as participating Merchant on the Thanx website. Upon Merchant’s request, Thanx will remove such reference to Merchant on its website.
  3. Thanx Additional Terms. Merchant shall be subject to the additional terms located atThanx Additional Terms, which are expressly incorporated herein by reference, (a) with respect to the minimum compliance requirements as to Points offered, earned, and redeemed, and/or (b) to the extent the Thanx API or additional integrations are selected in the applicable Order Form, and/or (c) with respect to the minimum disclosures required as to the Branded App terms of service.
  4. Reservation of Rights. Thanx and its licensors own all right, title and interest in and to the Services, Service Data, and all intellectual property rights therein.  Except for the rights expressly granted to Merchant herein, nothing in this Agreement gives Merchant any right or license to use, reproduce, display or distribute any Services. Thanx reserves all rights not expressly granted by this Agreement. Except as otherwise expressly contemplated in this Agreement, Merchant shall not (a) modify, adapt, alter or translate the  Services, (b) sublicense, lease, sell, resell, rent, loan, distribute, transfer the Services, (c) allow the use of the Services for the benefit of any third party, except that Services intended for Merchant’s customers’ use may be accessed by Program Participants; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Services, except as permitted by law; or (e) create derivative works based on the Services.
  5. Implementation and Onboarding.
    1. Thanx shall use commercially reasonable efforts to complete implementation and onboarding for purposes of transitioning and launching Merchant Loyalty Program and Services in accordance with the schedule set forth in the Order Form. Merchant agrees to perform the activities set forth in the Implementation and Onboarding Schedule allocated to Merchant and provide Thanx in a timely manner with other cooperation, assistance, and approvals as Thanx reasonably requests to perform such services. To the extent Merchant delays in performing its obligations pursuant to the Order Form, Thanx shall be entitled to a corresponding extension of time in the implementation timeline to complete the implementation and onboarding milestones arising from such failure.
    2. Locations. Merchant shall provide a complete list of all Locations including full address and relevant Merchant identification numbers prior to implementation. Fees are fixed for the stated number of Locations set forth in the Order Form and Fees will not be downward adjusted or suspended by Merchant for any Location(s) for any reason during the Term. Merchant may add locations by providing written notice to Thanx at least fifteen (15) days prior to the desired launch date for the additional Locations. New Locations do not require an addendum to this Agreement and will be billed at the monthly fee for additional Locations set forth in the Order Form.
    3. Branded App. For Services that include a Branded App, Thanx will publish a white label version of the Thanx mobile application to include Merchant Content (within the functional limits of the Thanx Platform) and publish as a Branded App for Merchant on both iOS and Android platforms. Thanx will coordinate with Merchant for publication of the Branded App to the respective App Stores. Upon expiration or termination of the Agreement, Thanx shall remove the Branded App from both the iOS and Android platforms
  6. Data Rights.
    1. Merchant Data.
      1. As between Merchant and Thanx, Merchant owns all right, title and interest in and to the Merchant Data.
      2. Merchant grants to Thanx a nonexclusive, nontransferable (except as permitted in Section 16) license and right to process the Merchant Data for the purpose of performing the Services pursuant to this Agreement.
      3. To the extent Merchant expressly consents, either through an executed data exchange authorization form or via the Thanx Platform (as available) to transfer Merchant Data to Integrations, you grant Thanx the right to transfer and receive such Merchant Data subject to the terms and conditions of this Agreement. Access and use of Integration shall be expressly subject to such Integration service provider’s compliance with Thanx’s applicable data exchange terms and conditions. Thanx expressly disclaims, and shall not be responsible for, such Integration service provider’s use, access, disclosure of deletion of any Merchant Data. Thanx may terminate the Integration at any time (including, without limitation, upon request of such Integration service provider). Merchant may withdraw its consent at any time by emailing Thanx at [email protected].
    2. Program Data. Thanx grants to Merchant a nonexclusive, nontransferable (except as permitted in Section 16) license and right, without right to sublicense, to the Program Data during the Term for the sole purpose of administering Merchant’s Loyalty Program. Program Data may be used solely for purposes of (a) analyzing overall performance to support program-level optimization, and (b) delivering or targeting Loyalty Program offers to Program Participants, subject to lawful consent provided by Program Participant. Following expiration or termination of this Agreement, Thanx grants to Merchant a nonexclusive, nontransferable (except as permitted in Section 16) license and right to the Program Data in connection with any loyalty program operated by Merchant or on Merchant’s behalf for the purposes of developing or maintaining customer or brand loyalty.
    3. Purchase Data. Thanx grants to Merchant a nonexclusive, nonsublicenseable, nontransferable (except as permitted in Section 16) license and right to process and use the Purchase Data during the Term for the sole purpose of administering Merchant’s Loyalty Program, including (a) to perform internal analytics regarding the overall performance of the Loyalty Program, (b) to track transactions by Program Participants for active Loyalty Program offers, and (c) to target Loyalty Program offers to Program Participants subject to lawful consent provided by Program Participants. Except as otherwise permitted pursuant to this Section, Merchant shall not use Purchase Data for purposes of promoting products or services competitive with Thanx’s third party credit card network partners. Purchase Data shared by Thanx with Merchant are subject to restrictions imposed by third party credit card networks and Merchant’s obligations with respect to such data may be modified at any time upon prior written notice of Thanx.
    4. Data Restrictions. Merchant is expressly prohibited from selling, reselling, or leasing all or any portion of the Program Data or Purchase Data to any third party. Merchant may only disclose Program Data or Purchase Data to its employees, agents, contractors and subcontractors (hereinafter “Authorized Personnel”) who have a reasonable need to access the Service Data in connection with performing Merchant’s obligations under this Agreement and administering Merchant’s Loyalty Program. Merchant will ensure all Authorized Personnel are aware of the use and intellectual property restrictions set forth in this Agreement and agree in writing to confidentiality terms no less restrictive than the terms set forth herein. Merchant will be responsible for any acts or omissions of its Authorized Personnel as if they were Merchant’s own acts or omissions, including, without limitation any of any breach of security affecting any Personal Data in Merchant’s possession, custody or control or any accidental or unlawful destruction, loss, alteration, unauthorized disclosure thereof or access thereto they cause. 
    5. Purchase Data. Thanx grants to Merchant a nonexclusive, nonsublicenseable, nontransferable (except as permitted in Section 16) license and right to process and use the Purchase Data during the Term for the sole purpose of administering Merchant’s Loyalty Program, including (a) to perform internal analytics regarding the overall performance of the Loyalty Program, (b) to track transactions by Program Participants for active Loyalty Program offers, and (c) to target Loyalty Program offers to Program Participants subject to lawful consent provided by Program Participants. Except as otherwise permitted pursuant to this Section, Merchant shall not use Purchase Data for purposes of promoting products or services competitive with Thanx’s third party credit card network partners. Purchase Data shared by Thanx with Merchant are subject to restrictions imposed by third party credit card networks and Merchant’s obligations with respect to such data may be modified at any time upon prior written notice of Thanx.
    6. Data Restrictions. Merchant is expressly prohibited from selling, reselling, or leasing all or any portion of the Program Data or Purchase Data to any third party. Merchant may only disclose Program Data or Purchase Data to its employees, agents, contractors and subcontractors (hereinafter “Authorized Personnel”) who have a reasonable need to access the Service Data in connection with performing Merchant’s obligations under this Agreement and administering Merchant’s Loyalty Program. Merchant will ensure all Authorized Personnel are aware of the use and intellectual property restrictions set forth in this Agreement and agree in writing to confidentiality terms no less restrictive than the terms set forth herein. Merchant will be responsible for any acts or omissions of its Authorized Personnel as if they were Merchant’s own acts or omissions, including, without limitation any of any breach of security affecting any Personal Data in Merchant’s possession, custody or control or any accidental or unlawful destruction, loss, alteration, unauthorized disclosure thereof or access thereto they cause. 
  7. Fees.
    1. Invoices; Payment. Thanx will invoice Merchant, and Merchant shall pay, for all Fees pursuant to the terms of the Order Form. All Fees are non-refundable and non-cancellable.
    2. Taxes. Merchant is responsible for paying any applicable taxes assessed or payable in connection with the Services, including, but not limited to, governmental sales, use, value-added, commodity, harmonized, consumer and/or other taxes imposed, unless exempt under applicable law. To the extent Thanx is required to collect such taxes, such taxes shall be invoiced and paid in accordance with this Agreement.
    3. Suspension. Thanx may, in its sole discretion, disable data transfer, suspend all or part of, or otherwise terminate any Services, in whole or in part, for payments that are more than thirty (30) days past due.
    4. Third-Party Delivery Fees. Thanx supports, and Merchant may elect to offer, food delivery via third-parties for orders initiated on Merchant’s Thanx ordering experience; applicable fees are set forth in “Delivery Services” in Thanx Additional Terms.
  8. Confidentiality. To the extent any written or oral information is disclosed by either Party to the other, which has either been identified as confidential or that by the nature of the circumstances the receiving Party has, or should have, reason to believe such information is proprietary, confidential and/or competitively sensitive (“Confidential Information”), the Parties agree as follows:
    1. Mutual Confidentiality Obligations. Each Party agrees: (a) to use the Confidential Information only for the purposes of performing its obligations under this Agreement; (b) to use no less than reasonable efforts to protect the Confidential Information from dissemination to, and use by, any third party in a manner that is not expressly authorized by this Agreement; (c) to restrict access to the Confidential Information to such of its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and have agreed in writing or are otherwise bound to treat such information in accordance with the terms of this Agreement; and (d) to return or destroy all Confidential Information of the other Party upon termination or expiration of this Agreement. Each Party shall retain all right, title and interest in and to its Confidential Information.
    2. Confidentiality Exceptions. Notwithstanding the foregoing, non-disclosure obligations shall not apply to information that (a) is publicly available at the time disclosed; (b) is or becomes publicly available through no fault of the recipient; (c) is rightfully communicated to the recipient by persons not bound by confidentiality obligations; (d) is already in the recipient’s possession free of any confidentiality obligations at the time of disclosure; (e) is independently developed by the recipient without use of or reference to, the disclosing Party’s Confidential Information; or (f) is approved for release or disclosure by the disclosing Party without restriction. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required to comply with the order of a court or other governmental body, provided that the Party compelled to make the disclosure shall first provide prior written notice to the other Party to enable such Party to obtain a protective order.
  9. Privacy and Data Security
    1. Each Party shall comply with any and all applicable privacy laws and regulations relating to the processing of personal information, personally identifiable information, personal data as defined by applicable law (“Personal Information”) in connection with the performance of its obligations under this Agreement, including, without limitation, the California Consumer Privacy Act and all similar applicable state privacy laws, the CAN-SPAM Act of 2003 and the Telephone Consumer Protection Act of 1991 (collectively, “Privacy Laws”). Each Party will maintain administrative, physical and technical safeguards to protect against the unauthorized disclosure and the confidentiality, integrity and availability of Service Data, Merchant Data and Confidential Information in its possession, custody or control. Each Party will ensure such safeguards comply with the standards imposed by applicable law and industry standards.
    2. Merchant acknowledges that Thanx is a “service provider” or “processor” pursuant to Privacy Laws (where applicable) in relation to Thanx’s processing of Personal Information relating to Program Participants and that, where required by Privacy Laws, Thanx will process such Personal Information in accordance with the Data Processing Addendum, available at Thanx Additional Terms. Merchant will be responsible for providing all notices to and obtaining any consents from Program Participants to permit Thanx to process Personal Information in accordance with this Agreement. Without limiting the foregoing, Merchant shall be responsible for publishing a privacy policy that contains all notices and disclosures required by Privacy Laws and includes a description of the processing of Personal Information in connection with the Loyalty Program, a sample of which is available for Merchant’s reference within the Thanx Additional Terms. Merchant is solely responsible for any privacy policies or notices it provides to Program Participants.
  10. Term and Termination.
    1. Term. The term of the Services will commence on the Project Kick-Off date set forth in the Order Form and, unless terminated earlier as provided in this Agreement, shall continue for the Initial Subscription Term identified therein. This Agreement shall automatically renew for additional terms of equal length to the Initial Subscription Term (each a “Renewal Term”), unless either Party notifies the other in writing of its intent not to renew at least sixty (60) days prior to the end of the Initial, or any Renewal, Subscription Term.
    2. Termination. Either Party may terminate this Agreement upon written notice if the other Party materially breaches this Agreement and fails to cure such breach within thirty (30) days following written notice of the breach.
    3. Effect of Termination. Upon any expiration or termination of this Agreement, Merchant will pay all amounts due to Thanx within thirty (30) days from the last day of the month in which the termination is effective. Provided Merchant has paid in full all amounts due to Thanx pursuant to this Agreement, a Transition File shall be provided in a manner reasonably determined by Thanx to be necessary to enable Merchant to transition to an alternative system for tracking redemption code usage. 
    4. Survival. 1, 2.2, 4, 6.2, 6.3, 6.4, 8, 9, 10.3, 10.4, 11-16 will survive any termination, expiration, or cancellation of this Agreement.
  11. Representations and Warranties.Each Party represents and warrants that it: (a) has the requisite power and authority to enter into, deliver and perform the obligations under this Agreement; (b) it will comply with all applicable laws and regulations in connection with the performance of its obligations under this Agreement. Merchant further represents and warrants that it has all rights, licenses, consents and releases that are necessary to display the Merchant Content.
  12. Disclaimers.
    1. All products and services provided by Thanx, including without limitations, the Services and Service Data are provided “AS IS” and on an “AS AVAILABLE” basis. Thanx does not guarantee that the operation of the Services will be error free or uninterrupted. THANX HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. Thanx will not be liable to Merchant or its customers (including Program Participants) for any failures, delays and/or interruptions in the operation of the Services or delivery of data or any other product or service of Thanx due to any events outside Thanx’s reasonable control.
    2. THANX DISCLAIMS ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS AND CONDUCT OF ANY THIRD PARTIES, INCLUDING PROGRAM PARTICIPANTS, INTEGRATION SERVICE PROVIDERS, AND THIRD PARTY CREDIT CARD NETWORKS, IN CONNECTION WITH OR RELATED TO THE THANX SERVICES OR PRODUCTS, INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES ARISING FROM A PROGRAM PARTICIPANT’S BREACH OF THE BRANDED APP TERMS OF SERVICE AND/OR FRAUD, MISUSE, MISREPRESENTATION OR VIOLATION OF APPLICABLE LAW IN THE USE OF THE THANX SERVICES OR PRODUCTS.
  13. Indemnification. Merchant will defend, indemnify and hold Thanx harmless from and against all damages, losses, liabilities, claims, expenses, fees or costs (including, without limitation, reasonable attorneys’ fees and costs) incurred in connection with any third party claim, demand or action arising out of or related to: (a) Merchant’s Loyalty Program, including any Rewards and Points; (b) the Merchant Content, including claims that such Merchant Content infringes or misappropriates the rights of, or has caused harm to, a third party; (c) unauthorized use, access and/or disclosure of Merchant Data by any Integration service provider, (d) Merchant’s use of the Service Data; (e) a violation by Merchant of its representations and warranties; (f) a breach by Merchant of this Agreement; or (g) violation of any applicable laws or regulations, including, but not limited to consumer protection, false advertising and applicable Privacy Laws, resulting from Merchant’s actions or omissions. Thanx will promptly notify Merchant in writing of such claim. Merchant will have sole control of the defense and settlement of the claim (provided that Merchant shall not settle any claim without Thanx’s prior written consent unless it unconditionally releases Thanx of all liability), and Thanx will reasonably cooperate with Merchant in the defense and/or settlement thereof at Merchant’s expense; provided that Thanx may participate in such defense using its own counsel, at its own expense.
  14. Limitation of Liability. IN NO EVENT WILL THANX BE LIABLE TO MERCHANT OR ANY THIRD PARTY FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, THE SERVICE DATA, OR FOR ANY INFORMATION OBTAINED FROM OR THROUGH THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THANX’S AGGREGATE LIABILITY EXCEED THE FEES PAID OR PAYABLE BY MERCHANT TO THANX IN THE 12 MONTH PERIOD PRIOR TO THE EVENT THAT GAVE RISE TO THE CLAIM.
  15. Arbitration. Except for any claims for equitable relief, all disputes, claims or controversies arising from or relating to this Agreement, the breach of this Agreement, or the relationships that result from this Agreement, including but not limited to any dispute regarding the validity of this arbitration clause or the entire Agreement, shall be resolved by binding arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction. The arbitration hearing shall be conducted in San Francisco County, California. Any judicial challenge to the arbitration award shall be filed in a court sitting in San Francisco County, California. Notwithstanding the foregoing, either Party shall be entitled to seek injunctive relief under this Agreement in any court having jurisdiction, as well as such further relief as may be granted by such court.
  16. General. This Agreement is not intended to benefit any third party. This Agreement is also not intended to create an agency, partnership, association, joint venture, employee-employer, or franchisor-franchisee relationship between the Parties. This Agreement will be governed and construed by the laws of the State of California, and without giving effect to any conflict of law principles. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in San Francisco County, California and you consent to such personal jurisdiction and venue. If any provision in this Agreement is found to be void or unenforceable, the remaining provisions will remain in full force and effect. Neither Party may assign this Agreement, in whole or in part, without the other Party’s prior written consent, except that this restriction shall not apply with respect to a Party upon (a) the direct or indirect acquisition of either (i) the majority of voting stock of that Party or (ii) all or substantially all of the assets of that Party, by another entity in a single transaction or a series of transactions; or (b) the merger of that Party with another entity. Any attempt to assign this Agreement other than as permitted above will be null and void. This Agreement, and the Thanx Additional Terms set forth within any hyperlinks to this Agreement incorporated by reference, constitute the complete and exclusive understanding and agreement between the Parties hereto regarding their subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, relating to their subject matter. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by authorized representatives of each Party.