Legals 
TERMS OF SERVICE
These Terms of Service, also referred to as the Terms of Use or the End User License Agreement ("EULA"), constitute a legal agreement between Carrot Company Limited (defined below) and the end user of our services ("you", "your”).
These Terms of Use apply when you download or use the Carrot App, register a Carrot Account, use the Carrot Website, Enroll in our cashback advertising program as a Partner, or when we provide card-linked cashback services to you with respect to any registered payment card.
Carrot Company Limited is a company incorporated and registered in the United States of America, whose registered office is at 1518 S Chapman Rd., Greenacres, WA 99016 (“we”, “us”, “our” or “Carrot”). We are a card-linked, cashback consumer rewards program provider. This is not a regulated service. We do not provide banking or other regulated services.
Our services enable consumers, to receive individual and group reward offers, discounts and cash payments such as Carrot Offers and Carrot Rewards in connection with purchases of goods or services from any of our cashback rewards Partners.
Our services also enable Partners ("Businesses") to acquire or retain customers, through the use of our cashback rewards program.
By downloading the Carrot App, signing-up for, subscribing or using any Carrot Services or accessing your Carrot Account via any web or other interface you agree to be bound by these Terms of Service and EULA which, collectively, form a binding contract between you and us until such time as your Carrot Account is closed by you or us.
You also agree to our Privacy Statement, incorporated herein by reference and located within our Privacy Policy ( "Privacy Statement" ), and acknowledge that you will regularly visit the Terms of Use (defined below) to familiarize yourself with any updates.
The Privacy Statement, together with these terms of use, and any other terms contained herein or incorporated herein by reference, are collectively referred to as the " Terms of Use ." The term "using" also includes any person or entity that accesses or uses the Site with crawlers, robots, data mining, or extraction tools or any other functionality.
IF YOU DO NOT AGREE TO THESE TERMS OF USE, IMMEDIATELY STOP USING THE SITE OR APP AND DO NOT USE ANY CARROT SERVICE, PARTICIPATE IN ANY PROGRAM OR PURCHASE ANY PRODUCT OR OTHER GOOD OR SERVICE OFFERED BY CARROT.
1. DEFINITIONS
| **Carrot | |
| Account** | a Carrot App account in a Carrot User’s name or email address, associated with the payment card(s) linked by the Carrot User, to which the log in and access is limited to that specific Carrot User. |
| **Carrot | |
| App** | the mobile application created, managed, operated and owned by Carrot Company Limited or its successors, agents, employees, or contractors with which a Carrot User may hold a Carrot Account to, for example and without limitation, earn Carrot Reward. |
| **Carrot | |
| Network** | a collection of cashback reward sites or other mobile applications in partnership with Carrot Company Limited or its successors, agents, employees, or contractors through which Carrot Offers are presented and through which, without limitation, Carrot Rewards can be redeemed and/or earned by Carrot Users or Non-Carrot Users. |
| **Carrot | |
| Offer** | a promotional offer in the form of a cashback percentage (%) amount created and presented by Carrot on the Carrot App for a Carrot User, or several Carrot Users as the context may require, to generate, for example and without limitation, Carrot Rewards through the completion of Qualifying Transactions. |
| **Carrot | |
| Services** | the features and benefits of the Carrot App, the Partner Portal, the Carrot Website and all other Carrot services provided to a Carrot User, the Carrot Network, and/or a Partner by Carrot Company Limited or their successors. |
| **Carrot | |
| Rewards** | an amount shown in a Carrot User’s Carrot App wallet screen generated subsequent to the completion of a Qualifying Transaction by a Carrot User which represents the amount that the Carrot User can claim in a cash reward from Carrot subject to the terms of this Agreement. |
| **Carrot Rewards | |
| System** | the process and scheme through which Carrot Offers are created and presented and through which, without limitation, Carrot Rewards and Loyalty Points (as defined below) are generated for Carrot Users. |
| **Carrot | |
| User** | an individual who has created and keeps active a Carrot Account. |
| **Carrot | |
| Website** | the online website available at https://meetcarrot.xyx/ |
| Partner** | a business that has been accepted by Carrot to hold an account on the Partner Portal or Merchant Dashboard and who continues to use the Partner Portal and/or other relevant Carrot goods, products and services and with whom Carrot Users may make Qualifying Transactions and Qualifying Transactions (Loyalty) to earn, without limitation, Carrot Rewards. Partner does not need to complete an Insertion Order to be considered an active Partner. |
| **Partner | |
| Portal** | the website created, managed, operated and owned by Carrot Company Limited or its successors, agents, employees, or contractors with which a Partner may hold an account. |
| **Partner Terms and | |
| Conditions** | the agreement between Carrot and a Partner as applicable in accordance with Section 12 (‘THE PARTNER AGREEMENT’) therein and setting out, amongst other things, the terms upon which Partners may use Carrot Services. |
| **Qualifying | |
| Transaction** | a purchase of goods or services made by a Carrot User from a Partner using a payment card linked to the Carrot App and for which a Carrot Offer applies. |
| **Qualifying Transaction ( | |
| Loyalty)** | a purchase of goods or services made by a Carrot User from a Partner using a payment card linked to the Carrot App and for which a Loyalty Scheme (as defined below) applies |
2. QUALIFICATION FOR USING THE CARROT APP.
2.1 To participate and register in the Carrot Rewards System, you must satisfy the following eligibility criteria:
(a) you must be an individual acting on your own behalf, in your own personal capacity (and not as a business or on behalf of another person, company or other organization);
(b) you must be at least sixteen (16) years of age (or any older age legally required under local law in your country to bind yourself legally to these terms);
(c) you must have a valid mobile phone number that only you have access to;
(d) you must have a valid personal email address that only you control access to and which you check regularly;
(e) you must not already hold a Carrot Account and/or have had a Carrot Account closed by us;
(f) you must pass our standard know your customer (KYC) checks, when applicable. We cannot issue cashback to you if this requirement is not met;
(g) you must link your Carrot Account with a minimum of one (1) supported registered payment card and with third party service providers which we notify you of from time to time;
(h) you must consent to us processing your personal data in accordance with our Privacy Policy (link available below) from time to time; and
(i) you must not attempt to open or hold open more than one Carrot Account at any one time.
3. AGREEMENT
3.1 Please find below a list of user documentation (“User Documents”) which together form your agreement ( “Agreement”) with us, and govern your use of the Carrot App:
(a) Terms of Use / Terms of Service – this document
(b) Privacy Policy – a copy of which can be found at this link https://www.meetcarrot.xyz/legals/
(c) Cookies Policy – a copy of which can be found at this link https://www.meetcarrot.xyz/legals/
(d) Carrot Community Codes of Conduct - a copy of which can be found at this link https://www.meetcarrot.xyz/legals/
3.2 The User Documents are ‘living’ documents and may be amended from time to time.
3.3 The Carrot App is free to use and/or download. You may install and use the Carrot App (including any updates we make available to you) provided that:
(a) we own all rights and title in and to the Carrot App, the Partner Portal, the Carrot Website, all other Carrot Services, and all the content therein and in any messages we send to you. You have no rights in them except as expressly set out in this document;
(b) you use the Carrot App only as permitted by the relevant app store terms and the terms in this document;
(c) you enter your User Credentials (as defined below) into the Carrot App to access your Carrot Account;
(d) you use the Carrot App only to receive Carrot Services and only for your personal, non-commercial purposes;
(e) you do not republish, redistribute, re-transmit, assign, sub-license or grant any rights of use (or other rights) in the Carrot App to any other person;
(f) save as permitted by law, you do not copy or reproduce the Carrot App or any content therein or any message we send you (whether in whole or in part);
(g) save as you are entitled to do so for lawful purposes, you do not decompile or reverse engineer the Carrot App, attempt to derive the source code, or alter, modify, translate, adapt or create derivative works of the Carrot App or any Carrot content in any way (in whole or in part);
(h) you do not remove or tamper with any Carrot copyright or other attribution notice;
(i) you do not attempt to circumvent security features or interfere with the proper working of the Carrot App, your Carrot Account or Carrot Services; and
(j) on any suspension or termination of Carrot Services and/or your Carrot Account, all rights granted to you shall be suspended or cease immediately.
3.4 You may use your Carrot Account and/or Carrot Services only for authorized and lawful purposes (complying with all applicable laws and regulations). You must not use your Carrot Account and/or Carrot Services in connection with any lottery or gambling activity, to further any fraudulent or other illegal activity, to impersonate another person or in a manner harmful to us or any other person.
3.5 The Carrot App and messages we send to you may include links to external sites and third party offers and promotions. We are not responsible for the content of these sites or for anything provided by them and do not guarantee that they will be continuously available. The fact that we include links to such external sites does not imply any endorsement of their operators or promoters.
4. USE OF YOUR CARROT ACCOUNT
4.1 You may use your Carrot Account to view and use Carrot Rewards, Loyalty Points, and other benefits derived from Qualifying Transactions and Qualifying Transactions (Loyalty).
4.2 Qualifying Transactions and Qualifying Transactions (Loyalty) may generate Carrot Rewards, Loyalty Points, and other benefits from, for example, a reconciliation of the relevant Carrot Offer with your transaction information, which may include the nature, value and Partner associated with your purchase.
4.3 All Carrot Rewards are rebates which we provide to you which grant you the right to demand a payment from Carrot for the USD equivalent of the Carrot Rewards amount, less any fees associated with each Carrot Reward. Carrot has no obligation to pay you the USD equivalent of the Carrot Rewards unless and until you make a demand for payment of Carrot Rewards. You may make such a demand for payment by, for example, completing and executing any single process using the “Pay Me” or "Cash Out" functionality in the Carrot App. You may only use the “Pay Me” or "Cash Out" functionality if your Carrot App wallet balance is in credit (not debit). Carrot Rewards are not issued on receipt of funds.
4.4 The Partner has an obligation to pay us certain amounts and fees, including, but not limited to, the USD equivalent of any Carrot Reward amounts, under the Partner Terms and Conditions or another arrangement between us and the Partner. We only have an obligation to pay to you in accordance with the terms of Clause 4.3 herein.
4.5 Carrot does not hold any money, token or other asset on your behalf nor on behalf of any Partner. Carrot is not an agent for any Partner. Carrot has no obligation to pay you any amount Carrot charges its Partners. Carrot Rewards are rebates which may be redeemed for their USD cash equivalent in the manner described in Clause 4.3 herein.
4.6 You are responsible for providing accurate and up-to-date registered bank account details for the “Pay Me” or "Cash Out" functionality, in the Carrot App. Carrot takes no responsibility for inaccurate bank account details provided or any consequences extending therefrom including, but not limited to, issuing of Carrot Rewards using the “Pay Me” or "Cash Out" functionality to a bank account with which you have no association.
4.7 You may be offered an incentive to transact with Partners, by Partners that have agreed to participate in the Carrot Rewards System (“Partner Offer”) such as a discount, unique experience or opportunity. If a Partner makes such an offer via the Carrot App we shall not be responsible for any failure by the Partner to honor their offer or deliver any service to you.
4.8 We will generate Carrot Rewards and Carrot Offers based on the information we receive regarding your payment card linked to the Carrot App and your use of the Carrot App.
4.9 All Carrot Rewards are personal to you. If available, you may transfer any Carrot Rewards that you earn to other Carrot Users using the functionality provided by the Carrot App (including for charitable objects). In all other regards all rights of assignment are excluded. You may not dispose of your Carrot Rewards or use these save for the purposes of participating in the Carrot Rewards System.
4.10 We may only remove, reduce, vary or withhold your Carrot Rewards, Loyalty Points, other Carrot benefits or the validly requested issuance thereof in the case of technical or informational error, as a response to any suspicious activity relating to your Carrot Account, for security reasons, or as a response to any abuse of these terms or of any terms of the Carrot Community Codes of Conduct, rule of law, or any order enforced by a court or official legal body of valid jurisdiction.
4.11 Where you successfully undertake a refund directly with a Partner as to an or part of an underlying transaction that was a Qualifying Transaction and that Partner has not informed us that they operate a goods or services returns policy, we may, in our sole discretion, remove any related Carrot Rewards awarded to you. The amount of Carrot Rewards we may remove will be calculated by taking the average of the cashback percentages (%) applicable to all of the Qualifying Transactions you previously completed with that Partner and multiplying the resulting figure by the amount refunded to you. Where you successfully undertake a refund directly with a Partner as to an or part of an underlying transaction that was a Qualifying Transaction (Loyalty), we may not remove any Loyalty Points awarded to you.
4.12 There may be a delay between the completing of a Qualifying Transaction or a Qualifying Transaction (Loyalty) at a Partner and the corresponding Carrot Rewards or Loyalty Points appearing in your Carrot Account or all functionality in relation to Carrot Rewards or Loyalty Points being available to you, for example, but not limited to, where the Partner with whom you transacted has a returns period or where we haven't received the related transaction data from your financial institution.
4.13 The terms and conditions by which you may earn Carrot Rewards or Loyalty Points or other Carrot benefits may change from time to time. Any new Carrot Services or changes to existing Carrot Services will be announced via the Carrot App.
4.14 We will only provide Carrot Rewards or Loyalty Points earned for Qualifying Transactions or Qualifying Transactions (Loyalty) made with active Partners.
4.15 We may remove Partners from the Carrot Rewards System at any time, in accordance with the Partner Terms and Conditions.
4.16 On that date exactly one (1) calendar year after the most recent of either, (1) any Carrot Reward being displayed in your Carrot App or, (2) your use of the “Pay Me” or "Cash Out" functionality in the Carrot App or, (3) the un-linking of a payment card to the Carrot App, whether done intentionally or not, your ability to redeem the Carrot Rewards you are holding at that time will expire (your Carrot App wallet balance will be reset to zero (0)).
4.17 Every Qualifying Transaction (Loyalty) you complete with a Partner will earn you one (1) loyalty point (a Loyalty Point) which will be associated with your Carrot Account and that Partner. Every such Qualifying Transaction ( Loyalty) will also generate one (1) Loyalty Point which you may elect to assign to a friend by selecting your friend’s account via the Carrot App functionality or by inputting a valid UK mobile phone number.
4.18 A loyalty card is one predetermined set of Loyalty Point milestones (a Loyalty Card). The achievement of all milestones on a Loyalty Card completes that Loyalty Card and resets your Loyalty Points at the associated Partner ( Loyalty Card Completion).
4.19 The Partner may vary the terms of their loyalty scheme in accordance with the Partner Terms and Conditions.
4.20 Where you have earned a minimum of one (1) Loyalty Point in relation to a particular Partner and that Partner subsequently varies the terms of their Loyalty Scheme, you will continue to be a part of the original Loyalty Scheme until Loyalty Card Completion of the particular Loyalty Card on which you had earned at least one (1) Loyalty Point under the original Loyalty Scheme.
4.21 Any outstanding Loyalty Points you hold in association with a particular Partner will expire exactly three (3) years after you last earned a Loyalty Point in association with that Particular Partner.
4.22 On termination of your Carrot Account for any reason your ability to redeem any Carrot Rewards will expire.
4.23 When you reach certain predetermined Loyalty Point milestones on certain Loyalty Cards, you will unlock the ability to activate an increase to the cashback percentage (%) within the live Carrot Offer at the business to which a particular Loyalty Card relates for one (1) fifteen-minute (15 minutes) time period (a Reward Boost). Where you undertake a Qualifying Transaction within the fifteen-minute (15 minutes) subsequent to Reward Boost activation, the Reward Boost will apply to that Qualifying Transaction and you will receive a higher amount of Carrot Rewards for that Qualifying Transaction than if you had undertaken the same Qualifying Transaction without activating a Reward Boost.
4.24 You may earn Carrot Rewards by entering a unique code given to you by a Partner or another Carrot User when you create a Carrot Account.
5. USE OF PERSONAL DATA
5.1 As part of the Carrot Rewards System you agree to share your personal, financial and geo-position data and information with us in accordance with our Privacy Policy.
5.2 You confirm that you have read and agree to our Privacy Policy.
5.3 You agree that we may collect, and instruct third parties to collect on our behalf, personal and financial information from your financial transactions and the Carrot App relating to your purchases from Partners and from your use of the Carrot App which will include the timing, location and nature of any of the goods and services which are offered by Partners or acquired by you.
5.4 By using the Carrot App you agree that we shall be entitled to collect personal data from your payment card including, but not limited to, transaction amount, currency, date and time, identity of the Partner, card ID, the nature of the purchase, the description of each transaction, and the method of payment (e.g. contactless; chip and pin), and location information, all relating to all of your purchases of goods and services, as relating to the Carrot Rewards System, in accordance with our Privacy Policy.
5.5 We will publish information concerning our Privacy Policy from time to time on the Carrot Website.
5.6 Subject to Clauses 5.3 and 5.4 we use the personal information that we collect to:
(a) reconcile financial and financial transaction information, which relate to your interactions with Partners, with Carrot Offers to identify Qualifying Transactions and Qualifying Transactions (Loyalty) in order to calculate the Carrot Rewards and Loyalty Points to which you are entitled;
(b) direct the USD equivalent of redeemed Carrot Rewards to your nominated bank account;
(c) generate marketing information which may be provided to and used by Partners directly or via the Carrot App to provide personalised offers to you, including Carrot Offers;
(d) generate aggregated marketing data to inform the development, promotion and sale by Partners of products and services and the development of the Carrot Rewards System; and
(e) to share with Partners data and information which enables them to understand the performance and impact of the Carrot Rewards System and what specific offers or rewards, including Carrot Offers, are effective at driving key metrics and fundamentals relating to their business performance and you how Carrot Users are interacting with their Carrot Offers.
5.7 We do not store your payment card details and we therefore cannot process card payments on your behalf.
5.8 We do not sell your personal data to advertisers neither will we be sharing any information that directly identifies you (such as your name, email address or other contact information) with advertisers unless you give us specific permission to do so.
5.9 We require each Partner and third parties from whom we receive information to have lawful rights to collect, use and share your data before providing us with any data.
6. SECURITY OF YOUR ACCOUNT
6.1 You are the only authorized user of your Carrot Account. You must not let anyone use your Carrot Account.
6.2 Access will be provided to your Carrot Account when the user credentials (e.g. password, biometrics, or code) ( “User Credentials”) that you have previously created are entered. We are entitled to rely upon the entry of your User Credentials for the purpose of recognising and accepting that such User Credentials are entered by you as the person authorized to access your Carrot Account.
6.3 You are responsible for all use made of your Carrot Account using your User Credentials.
6.4 If you have any concern that your Carrot Account may have been compromised you must notify us immediately by emailing support@meetcarrot.xyz stating the reason why you have such a concern.
6.5 You must use all available security features including multifactor authentication (MFA), when available.
6.6 You are responsible for keeping your devices’ passwords, security measures and personal credentials up to date and confidential.
6.7 Carrot is not liable for any misuse of your Carrot Account.
6.8 If we suspect that your Carrot Account has been compromised or suspect an unauthorized transaction or use, we may communicate with you via your registered email address or via other secure means agreed between you and us. We may also suspend or block your Carrot Account until we have established communication with you, verified your identity, and mitigated internal security risks.
7. TERMINATION, SUSPENSION, ALTERATION
7.1 We reserve the right:
(a) to alter or replace your user credentials, or require you to do so, at any time. We may suspend access to your Carrot Account at any time;
(b) to terminate your Carrot Account at our discretion any time without notice; and
(c) to withhold Carrot Rewards, Loyalty Points, and all other forms of value displayed on the Carrot App in accordance with Clause 4.10 herein, at any time at our discretion.
8. USE OF YOUR PERSONAL AND FINANCIAL INFORMATION
8.1 We will not charge you for the use of Carrot Services, unless and until you elect to upgrade to any paid features or services.
8.2 Third parties may charge you for products and services sold to you that are associated with Carrot Offers or otherwise make use of Carrot Services.
8.3 Partners and other third parties may pay us fees and other amounts in connection with the services we provide to them.
8.4 To use your Carrot Account, you will need to link at least one (1) payment card via the Carrot App.
8.5 The link to your payment card is provided by our third-party data service provider, Plaid Inc., whose registered office is 1098 Harrison St, San Francisco, CA 94103 (“Plaid”). Plaid is Payment Card Industry Data Security Standard (PCI DSS) Level 1 compliant. Plaid uses a proprietary tokenization system and does not store any card numbers. All Plaid application programming interface (API) requests use TLSv1.2 with end-to-end encryption. We may replace Plaid with any other data service provider as we may choose from time to time.
8.6 Your Carrot Account, the Carrot App, the Partner Portal, and all other Carrot Services are operated by us, but we have no responsibility for:
(a) the issuance, acceptance, or operation of your payment card(s) or the making of payments;
(b) Partner stores, websites, their goods and/or services or the operation of any account you hold with them; or
(c) loyalty or rewards schemes and/or promotional offers in relation to the goods and services offered by Partners which are not operated or controlled by us under which you may be eligible to earn “rewards” (for example, free gifts, money off, multi-buy discounts, 'loyalty' points, stamps and similar campaigns).
8.7 Partners alone are responsible for the goods and/or services and any related product/service description, sale, supply, delivery, customer enquiry, after-sale care or complaint and for any offers as to those goods and services and the terms and conditions associated with them.
8.8 Your participation in the Carrot Rewards System may be subject to additional terms and conditions between you and a Partner.
8.9 Carrot Services enable you to earn and receive Carrot Rewards and Loyalty Points and other Carrot benefits. We do not provide any payment services, nor do we hold any monies on your account or on your behalf.
9. THE CARROT REWARDS SYSTEM
9.1 By downloading the Carrot App you agree to participate in the Carrot Rewards System.
9.2 When you enter transactions with Partners you may earn Carrot Rewards, Loyalty Points, and other Carrot benefits.
9.3 We may publish additional guidelines, rules, and limitations in respect of the/any Carrot Rewards System.
10. FEEDBACK, DISPUTES AND INFORMATION
10.1 You agree that we are free to use any feedback, comments, suggestions, information or ideas contained in any communication you may send to us without compensation, acknowledgement or payment to you for any purpose whatsoever ( including, but not limited to, developing, manufacturing and marketing goods and services and creating, modifying or improving your Carrot Account, Carrot Services, the Carrot App, the Partner Portal or other goods, products or services). For the avoidance of doubt, all such comments, suggestions, information, or ideas will be non-confidential and non-proprietary.
10.2 We do not have any authority or influence in resolving any dispute you may have with any Partner and you agree not to involve us in any such dispute. However, if, without being under any obligation to do so, we do intervene to help resolve a dispute relating to a transaction between you and a Partner or make a goodwill gesture (for example, issuing a refund), we do this on behalf of the relevant Partner and it does not affect or widen our limited role.
11. GENERAL
11.1 You may not transfer or assign any or all of your rights or obligations under any of these terms.
11.2 If we fail to enforce any of our rights, that does not result in a waiver of that/those right(s).
11.3 If any provision of these terms is found to be unenforceable, where that unenforceability is only as to part of a term or terms, the other parts of that term or those terms will be enforced to its or their fullest extent and, in all cases, all other provisions shall remain unaffected.
11.4 These terms may not be varied except with our express written consent.
11.5 These terms and any document expressly referred to in them represent the entire agreement between you and us in relation to the subject matter of any of these terms. We are required by law to advise you that the contract formed on these terms may be concluded in the English language only and that no public filing requirements apply.
11.6 Upon request, we will provide you with a copy of these terms or any part of the information contained within them. You can download these terms from our website at any time.
11.7 No third party has the right to enforce any of these terms under the Contracts (Rights of Third Parties) Act 1999, except as otherwise provided in these terms.
11.8 These terms shall be governed by U.S. law.
11.9 You agree that any dispute between you and us regarding these terms or any of Carrot Services or your Carrot Account will only be dealt with by Washington courts.
12. THE PARTNER AGREEMENT
The following sets forth the terms and conditions on which Carrot agrees to provide, to Parnter, also known as "Advertiser" or "Business", their proprietary advertising platform and service, through which it develops and implements digital cashback reward advertising campaigns (the “Services”) to incentivize Advertiser’s current or prospective consumer base (the “Consumers”) through electronic rebates (each, an “Offer” or “Reward”), also known as "Carrot Offers" or "Carrot Rewards", to be earned by Consumers (collectively, the “Campaign”).
These Terms and Conditions are incorporated by reference into an Insertion Order to which these Terms and Conditions are attached (collectively, the “Agreement”). In exchange for the covenants and promises herein, which the Parties agree are sufficient consideration, the Parties agree as follows:
SERVICES
12.1 Engagement.
(a) Advertiser hereby engages Carrot to provide the Services during the Term, and Carrot hereby accepts such engagement and agrees to provide the Services to Advertiser during the Term in accordance with the terms and conditions of this Agreement. Nothing in this Agreement shall prevent Carrot from offering, licensing, distributing, marketing or otherwise selling or providing the Services, Campaigns or any products or services similar thereto to any third party. Advertiser acknowledges and agrees that Carrot may operate similar campaigns at the same time as Advertiser’s Campaign.
12.2 Promotional Materials.
(a) Advertiser Content. In order to facilitate the performance of the Services by Carrot, Advertiser shall submit to Carrot certain content and marketing materials, including, without limitation, names, graphics, images, symbols, trademarks, service marks, logos, trade names and other content (collectively, the “Advertiser Content”) no later than five (5) days prior to the Requested Start Date or as otherwise requested by Carrot. Carrot is authorized to resize, reformat and otherwise render such Advertiser Content to create and format certain content, inserts and digital advertising material (“Promotional Materials”) as necessary for the provision of the Services and the Campaign. Advertiser hereby grants to Carrot and its Partners a nonexclusive, worldwide, transferable, sublicensable license to display, use, perform, publish, copy, reproduce, transmit, distribute, and create derivative works of the Advertiser Content, including the Promotional Materials, if any, solely in order to perform the Services. Advertiser acknowledges and agrees that Advertiser is solely and exclusively responsible and liable for all Advertiser Content, whether or not it is included in any Promotional Material or Campaign. Notwithstanding the foregoing, Carrot shall not be obligated to use any of the Advertiser Content and in no event shall Carrot be required to use any Advertiser Content that violates any applicable law, rule, or regulation.
(b) Modification and Approval. Carrot shall not make any substantive changes to the Advertiser Content without the Advertiser’s prior written consent; provided, that Carrot shall have the right to modify and/or re-format all or any portion of the Advertiser Content without notification to Advertiser or consent in order to format such Advertiser Content as necessary for use in connection with any Promotional Materials and Services. If Advertiser approves any such modification or reformation for one purpose or Campaign, Advertiser shall be deemed to have generally approved such modification and/or reformation and Carrot shall not be obligated to seek Advertiser’s consent for future uses conforming thereto.
12.3 Advertiser Obligations.
(a) Insertion Order. Running a Campaign on Carrot is consideration for all terms outlined herein. If an Insertion Order is executed between the Parties, any terms in the Insertion Order will supersede conflicting terms below. If a specific term is not included or mentioned in the Insertion Order then the terms below will become the default terms. If an Insertion Order was not executed then the Offer or Reward terms below will be the default terms.
(b) Campaign Duration. The standard Campaign duration or term is one (1) year (the “Initial Term”), and on each anniversary of the Effective Date (also known as the “Renewal Date”) it shall auto-renew for successive one-year terms (each a “Renewal Term”) unless one Party notifies the other of its intent not to renew a minimum of 60 days prior to the Renewal Date. The Effective Date is the latter of the execution date of the Insertion Order or the date the reward went live on the Carrot Network.
(c) Dynamic Rewards. Unless otherwise outlined and agreed to in an Insertion Order, Carrot has full authority to determine the cashback Offer and cashback Reward amounts, for any user, within the Carrot App and/or the Carrot Network. This includes, but is not limited to, the Cashback Offer Amount, the Cashback Reward Amount, and any Cashback Reward Restrictions, including but not limited to, the Minimum Spend Amount, the Maximum Savings Amount, and/or the Availability of the Partner's Cashback Offer.
(d) Reward Requirements & Restrictions. Unless otherwise outlined and agreed to in an Insertion Order, Carrot has full authority to determine any Cashback Reward Restrictions or Requirements, including but not limited to, the Minimum Spend Amount, the Maximum Savings Amount, and/or the Availability of the Partner's Cashback Offer.
(e) Information from Consumers and Third Party Vendors. In order to operate the Campaign, Carrot must obtain and use certain types of information ("Platform Data"). Platform Data is required, among other things, to ensure the accuracy of the Campaign's records and accounts; determine eligibility for rewards; and ensure proper crediting of rewards and fees, if applicable. Advertiser agrees that Platform Data will be used or shared with Third Party Vendors only in the operation of the Campaign as defined in this Agreement (“Third Party Vendors” shall mean third party service providers, publishers, contractors, agents, and Financial Institutions involved in the provisioning of the Services to be performed hereunder).
Advertiser agrees to provide all the Platform Data required as Carrot may deem appropriate for the purpose of operating the Campaign. You also agree to notify Carrot of any changes to your Platform Data within 5 business days of such changes.
For merchants agreeing to accept American Express cards, you agree to comply with the data protection requirements set forth in Exhibit A, attached hereto and made apart hereof, for Loyalty Data associated with American Express Payment Cards. You also (i) acknowledge that you are aware of the data security standards of the Payment Card industry (“PCI DSS”) in general and VISA, MasterCard, American Express and Discover, in particular, and the Applicable Laws, rules and regulations to protect against any destruction, loss, alteration, or disclosure of, or unauthorized access applicable to any information relating to an identified or identifiable individual (“PII”), including without limitation the Gramm-Leach-Bliley Act, (ii) represent that you have a comprehensive information security program in compliance with PCI DSS and such Applicable Laws and (iii) agree to protect Loyalty Data in compliance with PCI DSS and such Applicable Laws.
(f) Transaction Records and Reporting. Partner (also known as "Advertiser") acknowledges that Carrot will provide Advertiser with Transaction Records, from their customer's Reward Redemptions, via the Partner Portal (also known as the "Merchant Dashboard"), where Advertiser is able to perform any Reconciliation duties (see below 12.3 g). Advertiser further acknowledges that there could be a delay as to when Transactions Records are reported to Advertiser since there could be a delay from the original Transaction Providers and/or any of Carrot's 3rd-Party solutions providers. Transaction Records will generally be available every Saturday, for the previous week, and Carrot will update the Partner Portal as soon as possible, with any delayed Transaction Records.
(g) Reconciliation. Partner (also known as "Advertiser") acknowledges and agrees that it has the necessary means to Reconcile the Transaction Records from Carrot. Carrot will send to Advertiser the transactional data (also known as "Transaction Records") associated with each verified Cashback Reward Redemption on a weekly basis, which, when available, includes the transaction date, card type or financial institution, last four of card or account and transaction amount. It is further understood that the transaction date and last four may differ from time to time, due to the data being sent and received as authorization vs. settlement data and/or financial mask irregularities (card last four vs. bank account last four). Carrot certifies the transaction against the Advertiser’s unique Merchant ID # (MID) and it is understood by both parties that any reported Transaction Records are considered unquestionably redeemed. Carrot will not provide any refunds for any reported Cashback Reward Redemptions, unless Carrot has determined that any of the Transaction Records are erroneous.
(h) Cashback Mechanics. Partner (also known as "Advertiser") acknowledges that cashback is awarded to Cardholder. For each redemption event, Advertiser is responsible for reimbursing Carrot for the amount invoiced by Carrot.
(i) Payment Methods & Authorization. Carrot accepts payment via Credit Card and/or ACH, via Stripe. By completing an Insertion Order and/or by providing us with your payment details, Advertiser authorizes Carrot to charge merchant for services and cashback reimbursements, accordingly.
(j) Automatic Cashback Reimbursement and Payments. Adertiser acknowldeges that Carrot will automatically charge Advertiser's payment account for any amounts owed, at any time. The standard billing schedule is once a week, at the end of each week but is dependent upon if and when Carrot receives Transaction Records for Advertiser, related to Cashback Offer Redemptions.
(k) Active and Valid Merchant ID Number. In order for Carrot to validate whether a qualifying purchase has been made or not, Advertiser must provide Carrot with an Active and Valid Merchatn Id Number (MID #). This number must be a unique MID so Carrot can properly match purchases to Business. If, at any time, Advertiser changes their MID or the provided MID becomes Inactive or Invalid, Advertiser has 1 week to provide Carrot with an updated MID. If an Active and Valid MID is not provided to Carrot, Carrot has the right to charge Advertiser $25 per week, for breach of their obligations and will continue to charge Advertiser until they either provide Carrot with an Active and Valid MID or until they terminate their agreement; Early Termination Fees may apply (see Section 12.12 b) and the total amount owed will be eligible to be submitted to collections.
(l) Active and Valid Payment Method. In order for Carrot to charge Advertiser for the service and to get reimbursed for cashback, Advertiser must provide Carrot with an Active and Valid payment method. If, at any time, the payment method that was provided becomes Inactive or Invalid, Advertiser has 1 week to provide Carrot with an updated, Active and Valid payment method. If an Active and Valid payment method is not provided to Carrot, Carrot has the right to charge Advertiser $25 per week, for breach of their obligations and will continue to invoice Advertiser until they either provide Carrot with an Active and Valid payment method or until they terminate their agreement; Early Termination Fees may apply (see Section 12.12 b) and the total amount owed will be eligible to be submitted to collections.
(m) Collections. Advertiser is responsible for paying Carrot for any amounts invoiced for any Fees and/or any Cashback, per the Insertion Order and/or the terms herein. Any amount owed to Carrot that is not collected will be sent to Collections and a collection fee of 25%, of the past-due balance, will be added. Advertiser will be resonsible for paying any and all final amounts owed, plus any fees from the Collections Agency.
(n) Termination. Advertiser acknowldeges that the term is 1-year, with an Early Termination Fee. See full details in Section 12.12 - 12.15
(o) Reward Network. Carrot operates a network of cashback technologies, apps and Partners and has full authority to distribute and promote Advertisers Cashback Offer to any Cashback Partner. Any cashback reward redemptions that take place outside of the Carrot App will be reported and invoiced per the same terms.
(p) Commitment. The total amount to be spent by Advertiser for each Campaign (the “Budget”) will be uncapped unless Advertisers and Carrot agree to a Budget Cap which will be set forth in an Insertion Order attached hereto as Exhibits. Insertion Orders shall be determined and agreed to by both parties. The Budget for each Campaign is equal to the total commission to Carrot; provided, however, Carrot shall be entitled to exceed the Budget up to an amount equal to ten percent (10.0%) of the Budget, as required to fund the Campaign. In such instance, Advertiser shall honor any such additional Offers and reimburse Carrot for the discount credited to the Consumer’s payment card account as a result of Consumer’s redemption of such Offers.
(q) Enrollment. Some Consumers may opt to register their payment cards (Payment Card” shall mean any registered payment card, debit card or credit card issued by Financial Institutions and supported by Carrot) with Carrot in order to allow their Financial Institution to automatically apply funds for redeemed offers directly to cardholder accounts (“Financial Institution” shall mean those financial services institutions that have arrangements with the Program to facilitate the validation of Offer Redemptions and the Settlement function, if applicable, including, without limitation, correspondent banks or financial intermediaries, payment network partners (such as MasterCard and VISA), Payment Card issuers or payment processing services).
All participating Consumers including those who register their payment cards with the Program and redeem offers (“Redemption” (and variations thereof) shall mean the act of consummating a purchase of goods or services as advertised in, and in accordance with the terms and conditions of an Offer, with the use of a registered payment card) will become users of the Campaign in accordance with Carrot’s or registering Third Party’s terms of service and privacy policy. Advertiser acknowledges that in performing the Services, Carrot or its Third Party Vendors will collect, use and disclose Platform Data in accordance with the privacy policy as in effect from time to time. Advertiser authorizes the following payment card networks (i.e. Visa, MasterCard, Discover and American Express) or other third party data providers, ie. Linkable Networks, as applicable, to monitor, collect, identify, and match payment transaction records that the payment card networks capture for the benefit of the consumers who register their payment cards with the Carrot and to forward the relevant payment transaction records to Carrot or to its Third Party Vendors.
Carrot owns all right, title and interest in the Program Platform, in data collected and generated from operation of the Services, and in any other technology or materials developed by Carrot, and reserves all right therein; provided, however, that information relating exclusively to the performance of the Services shall be kept confidential and used solely for performance of the Services. We may use, however, Platform Data collected in providing the Services to develop aggregated analytics with respect to performance metrics, so long as such Program Data is not publicly attributable to and no reference is made to Advertiser. You acknowledge and agree that Carrot may use and share Platform Data collected by it hereunder with any Third Party Vendors in order to perform its contemplated services.
(r) Information and Instructions. In addition to the obligations with respect to Promotional Materials set forth above, Advertiser will provide all information and other assistance as necessary for Carrot to perform the Services and implement the Campaign. Carrot may adjust the delivery and performance schedule set forth in the Insertion Orders due to any act or omission of Advertiser or failure by Advertiser to provide such Advertiser Content, information and/or assistance. Carrot shall not be liable for any costs, expenses or liabilities resulting from the acts or omissions of Advertiser or from any Advertiser Content, or information or delivery schedule delays caused by Advertiser or resulting from Advertiser’s failure to fulfill any of its obligations under this Agreement.
12.4 Interaction with Consumers.
(a) Advertiser acknowledges and agrees that Carrot and its participating financial institutions, payment networks and/or processor partners (each, a “Partner”) shall have the sole and exclusive right to (i) communicate the existence and terms of all Offers to Consumers (including any Offer related to Advertiser) and (ii) provide customer support to Consumers in connection with such Offers.
12.5 Partner Statement Credits.
(a) Advertiser acknowledges and agrees that its Offers may be fulfilled through payment card statement credits applied directly to the statement for the Partner card designated by the Partner cardholder to the applicable Offer for this purpose. Any pending statement credits and any associated dollar values represent Offer fulfillment rebates in process, and not participating Advertiser funds or balances maintained or held by a Partner. By processing statement credits to the Partner cardholder for fulfillment of Offers, Partners are not: (i) holding funds or other value for the participating Advertiser for distribution to the Partner cardholder; or (ii) issuing or maintaining any type of financial obligation or deposit or other asset account for the participating Advertiser.
FEES
12.6 Fee.
(a) Carrot reserves the right to collect an annual fee from Advertiser, to enroll in Carrot's Cashback Reward Program. Annual fees will be $0 by default, unless otherwise agreed to, in writing, between Carrot and Advertiser. Additionally, for each Offer redeemed by a Consumer, Advertiser shall pay to Carrot the commission set forth in the applicable Insertion Order and shall also reimburse Carrot for any reported Cashback Offer amounts as a result of any Cashback Redemptions, of such Offer (collectively the “Fee”).
12.7 Payments.
(a) Carrot will use commercially reasonable efforts to provide to Advertiser via email an invoice for all activity since the previous invoice with the number of Offer redemptions and associated Fees and other charges and then automatically charge Advertiser's payment account accordingly. All amounts not paid within three days (3) days of receipt of invoice shall accrue interest at a rate of one and one half percent (1.5%) per month or the maximum rate permitted by law, whichever is higher, from the due date until paid in full. All fees under this Agreement are quoted in, and payable in, United States dollars. Except as expressly provided in this Agreement, all payments made by Advertiser to Carrot hereunder are non-refundable. Carrot will charge Advertiser according to the invoice and any disputed transactions will be handled retroactively.
12.8 Method of Payment.
(a) All Advertiser payments shall be due upon receipt of invoice and payable by credit card or electronic debit from Advertiser’s bank account via the Automated Clearing House network (“ACH”). Before a campaign can be launched, Advertiser must have a valid payment card or account set up with Carrot, for automatic payments. Carrot will invoice at the end of every week and take payment for the full invoice amount automatically.
12.9 Taxes.
(a) Advertiser shall pay all taxes, duties or charges of any kind (including withholding or value added taxes) imposed by any federal, state, or local governmental entity for the Campaign, the Services or any other product or service provided in connection with this Agreement, excluding only taxes based solely on Carrot’s assets and net income. If Carrot has the legal obligation to pay or collect taxes for which Advertiser is responsible under this Section 2(d), the appropriate amount shall be invoiced to and paid by Advertiser.
12.10 Network Dispute.
(a) In the event that a Network Dispute arises and upon verifiable evidence, Carrot agrees to reimburse Advertiser for any duplicate Redemptions.
TERM AND TERMINATION
12.11 Term of this Agreement.
(a) This Agreement shall commence on the Effective Date and shall remain in effect according to the Insertion Order and/or the terms herein. If there is no Insertion Order then the default period is 1-year. Participation in Carrot’s Cashback Reward Program grants Carrot a one (1) year term (the “Initial Term”), and on each anniversary of the Effective Date (the “Renewal Date”) it shall auto-renew for successive one-year terms (each a “Renewal Term”) unless one Party notifies the other of its intent not to renew a minimum of 60 days prior to the Renewal Date. In the event one Party terminates the Agreement pursuant to the provisions, the Agreement shall expire on the Renewal Date or 60 days after the last Campaign ends, whichever is later. Also, consideration of being included in a Carrot Cashback Card, grants Carrot the 1-year term, regradless of whether an Insertion Order was executed and/or if an annual fee was paid.
12.12 Termination.
(a) Termination For Material Breach and Bankruptcy. Either party may terminate this Agreement upon written notice to the other party (a) if the other party commits a material breach of this Agreement and fails to cure such material breach within thirty (30) days after receipt of written notice of the same; (ii) if the other party files a petition for bankruptcy, insolvency or reorganization under any bankruptcy law or is adjudicated bankrupt; (iii) if a petition in bankruptcy is filed against the other party and such petition is not dismissed within sixty (60) days of the filing date; (iv) if the other party becomes insolvent or makes an assignment for the benefit of its creditors pursuant to any bankruptcy or insolvency law; or (v) if a receiver is appointed for the other party or its business.
(b) Termination For Convenience. Either party may terminate this Agreement without cause with sixty (60) days’ prior written notice to the other party. Carrot reserves the right to charge an Early Termination fee of $750 to the business, per location, for terminating the agreement before the 1-year period ends.
12.13 Suspension of Campaigns.
(a) Notwithstanding the foregoing, if Advertiser’s account is overdue in any respect (except with respect to charges then under reasonable and good faith dispute in writing by Advertiser to Carrot), in addition to any of its other rights or remedies, Carrot reserves the right to suspend any and all Campaigns then in effect, without liability to Carrot, until such amounts are paid in full.
12.14 Effect of Termination.
(a) Campaigns; Fees. Notwithstanding any expiration or termination of this Agreement, Advertiser acknowledges and agrees that (i) at Carrot’s option the Campaign shall continue until the Requested End Date of the Campaign; (i) Advertiser shall continue to honor all obligations to Consumers and Carrot set forth in this Agreement with respect to the Campaign until the actual end date of the Campaign; and (iii) Carrot shall be entitled to full payment for all Fees for all Offers redeemed whether accruing prior to or after any expiration or earlier termination of this Agreement.
(b) Additional Obligations. Upon the effective date of expiration or earlier termination (i) Carrot shall cease providing the Services hereunder and (ii) Advertiser shall pay to Carrot any and all Fees due or owing as of the effective date of such expiration or termination. Termination of this Agreement shall not relieve Advertiser of any liability or obligation which accrued hereunder or otherwise relating to the period prior to the effective date of such termination nor preclude Carrot from pursuing all rights and remedies it may have hereunder or at law or in equity with respect to any breach of this Agreement.
(c) Ramp-Down Period. Upon Termination or Suspension of the Campaign, Advertiser acknowledges and agrees that although Carrot has ceased the campaign, Redemptions can still occur due to certain Cardholders who may have previously activated the reward before the campaign was ended, and by law, Advertiser is financially responsible for all redemptions that occur during this “Ramp-Down Period”. Once all activated offers are either redeemed or “timed-out”, the Advertiser will cease to be responsible for any further redemptions. The standard “Ramp-Down Period” is 30 days from the Termination or Suspension Date (for previously activated offers only; no new offers will be activated and redeemed).
12.15 Survival.
(a) The parties acknowledge and agree Sections 2 (Fee), 3(a) (Term of this Agreement), 3(d) (Effect of Termination), 5 (Confidential Information), 6 (Proprietary Rights), 7 (Disclaimers; Limitations on Liability), 8 (Indemnification), 9 (Miscellaneous) and this Section 3(e) (Survival) shall survive the expiration or termination of this Agreement.
REPRESENTATIONS AND WARRANTIES
12.16 Each Party represents and warrants to the other that: (a) it is a corporation or other entity duly organized and validly existing and in good standing under the laws of its jurisdiction of formation and/or place of principal business; (b) the performance of its obligations hereunder has been duly authorized by all necessary actions; and (c) neither the execution and delivery of this Agreement nor the performance of any of its obligations hereunder, nor the consummation of any of the transactions contemplated hereby, will violate the NACHA Operating Rules or any law, regulation or agreement to which it is a party. Carrot additionally represents and warrants that it’s partners are PCI DSS, SOC-1 (formerly known as SAS 70 and SSAE 16) and SOC-2 compliant.
CONFIDENTIAL INFORMATION
12.17 Definition of Confidential Information.
(a) As used herein, the term “Confidential Information” means any and all data or information provided by one party to the other party in connection with this Agreement to the extent that such data or information: (a) is marked as confidential or proprietary, (b) is otherwise identified in writing as confidential or proprietary, or (c) should reasonably be understood to be confidential in nature. Confidential Information includes, without limitation, the terms and conditions of this Agreement, all information relating to Carrot’s technical, marketing, product and business affairs, both current and future, including without limitation products and services and the pricing for the same and any royalty or fee arrangements, customers, prospective customers, suppliers or employees, business methods, procedures and techniques, technology, marketing information or plans, information received from or with respect to any Partner or other Carrot vendor or supplier and all other proprietary and trade secret information, whether oral, graphic, written, electronic or in machine-readable form.
12.18 Obligations.
(a) Each party covenants and agrees that it shall hold (and shall cause its employees, agents, subcontractors and affiliates to hold pursuant to written agreements at least as restrictive as this Agreement or pursuant to fiduciary or other duties) confidential all Confidential Information of the disclosing party and shall not use or disclose such Confidential Information, except as expressly permitted in this Agreement, without the prior written consent of the disclosing party. Any duplication, use, disclosure, or other act or omission by any person or entity that obtains access to or possession of Confidential Information through the receiving party that would be a breach of this Agreement if committed (or, as applicable, omitted) by the receiving party shall be a breach of this Agreement by the receiving party. With respect to any personally identifiable information or sensitive information received, accessed, transmitted or processed by Advertiser, Advertiser shall at all times, be compliant with all data security and data privacy laws applicable thereto, including without limitation, the Gramm-Leach-Bliley Act. With respect to any Confidential Information received from or regarding any Partner, Advertiser shall only use and disclose such Confidential Information to the extent necessary to audit the efficacy of the Campaign.
12.19 Exclusions.
(a) Confidential Information does not include information which the receiving party can show through written documentation (i) was known to the receiving party or in the public domain before disclosure by the disclosing party, (ii) becomes part of the public domain after disclosure by a publication or other means except by a breach of this Agreement by the receiving party, (iii) was received from a third party under no duty or obligation of confidentiality to the disclosing party, or (iv) was independently developed by the receiving party without reference to Confidential Information. Upon expiration or termination of this Agreement, all Confidential Information will be promptly returned to the disclosing party or, upon the consent of the disclosing party, destroyed and certified as destroyed by the receiving party.
PROPRIETARY RIGHTS
12.20 Reservation of Rights.
(a) Carrot and its Partners and licensors reserve all rights, title and interests in and to the Services, Campaign (excluding any Advertiser Content) and any other technology, copyrightable material or other intellectual property or other proprietary information, data or materials provided to Advertiser in connection with this Agreement (collectively, the “Carrot Intellectual Property”). Advertiser acknowledges that no rights are granted to Advertiser hereunder other than as expressly set forth herein. Carrot acknowledges and agrees that Advertiser retains all rights, title and interests in and to the Advertiser Content supplied to Carrot hereunder.
12.21 Developed Data.
(a) Notwithstanding anything to the contrary in this Agreement, subject to Sections 1 and 5, Carrot may, in perpetuity, use any data, redemption information, reports, results, calculations and other output and information generated from the Services and any Campaign for comparative, research and/or analytical purposes as part of the normal course of services it provides to clients, advertisers and prospective clients, including Advertiser; provided, that no such data is shared with any third party that is identifiable to a specific Consumer or Advertiser. The parties acknowledge and agree that Carrot shall have no obligation to account to Advertiser for such use or to pay any consideration to Advertiser for such use.
12.22 Suggestions and Feedback.
(a) Carrot shall have, and Advertiser hereby grants, a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual right and license to use, modify and/or incorporate into the Services, any future Campaigns, and any other Carrot Intellectual Property any ideas, suggestions, enhancements, recommendations or other feedback provided by Advertiser.
DISCLAIMERS; LIMITATIONS ON LIABILITY
12.23 Disclaimer of Warranties.
(a) THE CAMPAIGN, SERVICES AND ALL OTHER Carrot INTELLECTUAL PROPERTY ARE PROVIDED “AS IS” AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY Carrot, ITS LICENSORS, PARTNERS OR SERVICE PROVIDERS, EITHER EXPRESS OR IMPLIED WITH RESPECT THERETO, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ADVERTISER EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE FEES PAYABLE HEREUNDER. Notwithstanding anything herein to the contrary, makes no warranty with respect to the accuracy of any data provided to it by a Partner and shall have no liability to Advertiser with respect thereto.
12.24 Disclaimer of Consequential Damages.
(a) IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12.25 Limitation on Damages.
(a) IN NO EVENT SHALL Carrot’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED AN AMOUNT EQUAL TO THE FEES PAID BY ADVERTISER TO Carrot IN THE SIX MONTH PERIOD PRECEDING THE FIRST INCIDENT TO GIVE RISE TO A CLAIM UNDER THIS AGREEMENT.
12.26 Acknowledgements re: Transaction Data.
(a) Carrot and its Partners may be unable to track and provide every transaction made with an enrolled card, including PIN-based purchases, purchases initiated through identification technology that substitutes for a PIN, payments of existing card balances, balance transfers, cash advances, ATM transactions, convenience checks, payments made for pre-paid and re-loadable cards such as certain gift cards, Visa Buxx and similar cards, payments made for payment instruments that can readily be converted to cash (for example, travelers cheques, money orders, wire transfers, and similar products or services).
INDEMNIFICATION
12.27 Indemnification by Carrot.
(a) Carrot shall defend Advertiser and its officers, directors, employees, agents, successors and assigns from and against any third-party claim, action, suit or proceeding brought by a third party (“Third-Party Claim”) against Advertiser alleging that a Campaign and the Services as contemplated hereunder infringes a U.S. patent issued as of the Effective Date, copyright, trademark or trade secret rights of a third party (each, an “Infringement Claim”). Carrot shall pay any damages awarded in any final judgment entered by a court of competent jurisdiction with respect to any such Infringement Claim or agreed to by Carrot in any settlements arising out of such Infringement Claim; provided, that the alleged infringement does not arise as a result of (i) the Advertiser Content or any other information, data or materials not furnished by Carrot; or (ii) any act or omission of Advertiser. THIS SECTION 8(a) STATES THE ENTIRE OBLIGATION AND LIABILITY OF Carrot, AND THE EXCLUSIVE REMEDY OF ADVERTISER, WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
12.28 Indemnification by Advertiser.
(a) Advertiser shall defend, indemnify and hold Carrot and its Partners, Third Party Vendors, Financial Institutions, affiliates, officers, directors, employees, agents, successors and assigns harmless from and against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with any Third-Party Claim made or brought against Carrot arising out of or related to (i) the Advertiser Content, (ii) Advertiser’s failure to redeem any Offers or otherwise participate in the Campaign or perform any obligation set forth in this Agreement, (iii) the use by Carrot of any intellectual property provided by Advertiser to Carrot (provided that such use by Carrot is consistent with the terms of this Agreement), and (iv) with respect to any acts or omissions of Advertiser, including with respect to a breach of this Agreement, that cause Carrot to suffer damages under or pursuant to any contract or agreement with any Partner.
12.29 Indemnification Procedure.
(a) The party seeking indemnification or contribution under this Section 8 (the “Indemnitee”) shall promptly give to the other party (the “Indemnitor”) written notice of the Third-Party Claim for which Indemnitee claims to be entitled to indemnification under this Agreement. The Indemnitor or its insurer shall retain sole control of the conduct of the defense of the Third-Party Claim, including, without limitation, the selection and management of counsel. The Indemnitor may not, without the Indemnitee's prior written consent, settle, compromise or consent to the entry of any judgment in any such Third-Party Claim, unless such settlement, compromise or consent: (i) includes an unconditional release of the relevant Indemnified Parties from all liability arising out of such Third-Party Claim; and (ii) is solely monetary in nature and does not include a statement as to, or an admission of fault, culpability or failure to act by or on behalf of, any Indemnitor. The Indemnitee may, upon written notice to the Indemnitor, and at the Indemnitee’s sole cost and expense, select its own counsel to participate in and be present for the defense of any such Third-Party Claim.
MISCELLANEOUS
12.30 No Waiver; Cumulative Remedies.
(a) No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Except as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
12.31 References; Press Release.
(a) Advertiser agrees to allow Carrot to use Advertiser’s name, service mark, and logo (in such form as provided by Advertiser to Carrot for such purpose) solely as a reference to Advertiser as a current customer or user of the Services in Carrot’s marketing materials.
12.32 Consents and Approvals.
(a) Except as set forth expressly herein, whenever a consent or approval of the other party is required, such consent and approval shall not be unreasonably withheld, conditioned or delayed.
12.33 Disputes.
(a) Subject to the terms of this Agreement, the parties shall follow the dispute resolution process set forth in this Section 9(d) in connection with all disputes, controversies or claims, whether based on contract, tort, statute, fraud, misrepresentation or any other legal theory (other than equitable relief which either party is entitled to seek for breaches of confidentiality) relating to disputes arising between the parties with respect to performance or non-performance by the parties hereunder (collectively, “Disputes”). The parties will use all reasonable efforts to settle all Disputes through good faith negotiations. For any litigation arising out of or relating to this Agreement, regardless of the form of action or the party that initiates it, the parties irrevocably and unconditionally submit to the exclusive jurisdiction of and venue in the United States District Court for the District of Washington or, if that court does not have jurisdiction, in the Circuit Court of Seattle, King County, State of Washington. The parties expressly and unconditionally waive the jurisdiction of any foreign court or tribunal and additionally waive any trial by jury in any action. The parties irrevocably and unconditionally waive any objection to the laying of venue of any proceeding arising out of or relating to this Agreement in such courts. The parties further consent to the jurisdiction of any state or federal court with subject matter jurisdiction located within a district that encompasses assets of a party against whom a judgment (or award) has been rendered for the sole purpose of the enforcement of the judgment (or award) against the assets of such party. If any action of law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees, costs and necessary disbursements, in addition to any other relief to which such party is entitled.
12.34 Governing Law.
(a) This Agreement is governed by the laws of the State of Washington, excluding its conflict of laws provisions. If any action of law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees, costs and necessary disbursements, in addition to any other relief to which such party is entitled.
12.35 Notices.
(a) Any notices or other communications required or permitted to be given or delivered under this Agreement shall be in writing and shall be sufficiently given if (i) emailed or delivered personally, (ii) mailed by certified or registered mail return receipt requested, postage prepaid, or (iii) sent by overnight guaranteed delivery service, and addressed to the party’s proper address as set forth on the cover page or to such other address or addressee as either party may from time to time designate to the other by written notice. Any such notice or other communication shall be deemed to be given as of the date it is delivered to the recipient.
12.36 Severability.
(a) In the event that any provision of this Agreement is found invalid or unenforceable, it will be enforced to the extent permissible and the remainder of this Agreement will remain in full force and effect.
12.37 Force Majeure.
(a) If either party is unable to perform any of its obligations under this Agreement (except for Advertiser’s payment obligations) due to, including without limitation, a natural disaster, actions or decrees of governmental bodies, telecommunications carriers, terrorist activities or other events beyond such party’s reasonable control, such party’s obligations under this Agreement shall be suspended during the duration of any such event.
12.38 Assignment.
(a) This Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties. Notwithstanding the preceding sentence, neither party may assign this Agreement, in whole or in part, without the prior written consent of the other party, which consent shall not be unreasonably delayed, conditioned or withheld; provided, that (a) either party may assign this Agreement without the consent of the other party to an Affiliate, in conjunction with a change in control or a sale of all or substantially all of such party’s assets; and (b) Carrot may subcontract its obligations hereunder to certain Partners, third-party service providers or subcontractors, provided that Carrot will remain responsible for the obligations performed by any such service providers and subcontractors to the same extent as if such obligations were performed by Carrot hereunder.
12.39 Independent Contractors.
(a) Each party shall remain an independent contractor and nothing in this Agreement shall be deemed to constitute the parties as partners, agents or joint ventures. Further, neither party shall have the authority to act, or attempt to act, or represent itself, directly or by implication, as an agent of the other or in any manner assume or create, or attempt to assume or create, any obligation on behalf of or in the name of the other, nor shall either be deemed the agent or employee of the other.
12.40 Equitable Remedies.
(a) Each Party acknowledges that a breach of its obligations under Section 5 and/or Section 6 of this Agreement could cause irreparable harm to the other party and that monetary damages may be difficult to ascertain. Therefore, without prejudice to the rights and remedies otherwise available to it, each party shall be entitled to seek relief by way of injunction or specific performance.
12.41 Counterparts.
(a) This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which taken together shall constitute one and the same instrument. Signatures to this Agreement transmitted by facsimile transmission, by electronic mail in “portable document format” (“.pdf”) form, affixed as indicated thereon by electronic means or transmitted by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing the original signature.
12.42 No Third Party Beneficiaries.
(a) This Agreement is made and entered into for the sole protection and benefit of the parties hereto, and no other person or entity shall be a direct or indirect beneficiary of, or shall have any direct or indirect cause of action or claim in connection with this Agreement.
12.43 Entire Agreement; Headings.
(a) This Agreement embodies the entire agreement between the parties, supersedes all previous and contemporaneous agreements, understandings and arrangements with respect to the subject matter hereof, whether oral or written. These Terms and Conditions are subject to change upon prior written notice by Carrot to Advertiser, and by continuing to utilize the Services following receipt of any changes, Advertiser agrees to the Terms and Conditions as revised. Except as otherwise set forth in this Section 9(n), this Agreement may be amended only by a written instrument duly signed by the Parties. The headings and subheadings in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement or any provision hereof.
EXHIBIT A
12.44 American Express Data Security Standards.
(a) Data Security. You represent and warrant that You have, and will continue to have for so long as You receive and retain, as applicable, any information relating to an identified or identifiable individual (“PII”) or Loyalty Data associated with American Express Payment Cards (“Protected Data”) a comprehensive information security program in compliance with applicable laws to protect against any destruction, loss, alteration, or disclosure of, or unauthorized access to, any Protected Data and will comply with the data security standards of the payment card industry (PCI DSS) (including, but not limited to, obtaining from a Qualified Security Assessor an annual Report on Compliance (as the foregoing capitalized terms are defined in PCI DSS) that certifies Your compliance with PCI DSS). Such information security program will include commercially reasonable administrative, technical and physical safeguards (a) to maintain the security and confidentiality of such Protected Data, (b) to protect against any anticipated threats or hazards to the security or integrity of such Protected Data and (c) to protect against unauthorized access to or use of such Protected Data, which could result in substantial harm or inconvenience to the owner of such data. You agree that it will promptly notify the Program upon discovering that there has been an actual or suspected material breach in its security safeguards required by this Section 1.3 or if the security of Protected Data has been or may be compromised for any reason. You will comply with (i) all applicable laws, including, without limitation, all applicable data protection, privacy, encryption and security laws and regulations; Directive 95/46/EC; the Gramm-Leach-Bliley Act; laws regulating unsolicited email communications; security breach notification laws; laws imposing minimum security requirements; laws requiring the secure disposal of records containing certain personally identifiable information; and all other similar international, federal, state, provincial and local requirements; (ii) the PCI Standard (if and to the extent applicable) and all other applicable industry standards and relevant policies of Financial Institutions, including, without limitation, the United States American Express Online Privacy Statement, available at https://www.americanexpress.com/us/content/legal-disclosures/online-privacy-statement.html, and the following AXP policies (and any updates to such policies or additional policies): Privacy of Consumer Financial Information/Regulation P Policy (effective May 22, 2012), AXP’s Customer Privacy, Information Sharing and Data Protection Policy (effective July 31, 2012); and (iii) all applicable provisions of written information security requirements applicable to the performance of its obligations under this Agreement. You will make its independent assessment as to which laws, rules and regulations are applicable to it in the performance of its obligations hereunder.
(b) Specific Restrictions on Loyalty Data. In the event You receive any Loyalty Data under this Agreement from transactions associated with American Express Payment Cards, You will use such Loyalty Data solely for the purposes contemplated by this Agreement and solely in accordance with applicable laws.
Furthermore:
(i) You will not sell, lease, license, sublicense, transfer or otherwise dispose of the Loyalty Data (or any portion thereof) to any third party or incorporate Loyalty Data (or any portion thereof) into any services offered by such party to any third party;
(ii) You will not discover, reverse engineer, decompile or decode Loyalty Data in order to, among other things, determine card type;
(iii) You confirm that the Program may collect, use, disclose, and share its data in order to perform its Services hereunder;
(iv) You will comply with the terms of its privacy policy;
(v) You will permit the Program and the Financial Institutions and any of its or their inspectors, regulators and other representatives access: to any facility in which You perform this Agreement, to Your employees and to all of its systems, controls, policies and procedures, and its data and records for the purpose of examining Your performance of this Agreement, and conformance with the terms hereof, and will cooperate with any request by the Program and the Financial Institutions in connection with its assessment and evaluation of the manner in which You safeguard Loyalty Data.
To the fullest extent permitted by law we disclaim and exclude all representations, warranties and guarantees, whether implied or express and whether arising by law, contract or a course of dealings between us.
We do not guarantee the continuous or uninterrupted operability of Carrot services or your Carrot account. There may be periods of downtime for maintenance and upgrade work (whether on a scheduled or unscheduled basis). We are not responsible for the security of information that you choose to communicate with us while it is being transmitted or for any data lost during transmission.
In no event shall we, our agents, officers, employees or sub- contractors be liable to you for any loss or corruption of data, software or hardware; loss of anticipated savings; loss of profit or economic losses; indirect, special or consequential losses and any liability we do have for losses you suffer is strictly limited to losses that were reasonably foreseeable and, in any case, shall not exceed the sum of $150.
We will not be liable or responsible for any failure to perform, or delay in performance of any of our obligations that is caused by any act or omission of a third party or events outside our reasonable control.
These Terms were last updated on May 02, 2022.