Last Updated April 16, 2021
Description of Service. The “Service” includes (a) the Site, (b) Hownd’s merchant services and related technologies, (c) hardware devices (“Devices”) (including wireless access points, screens, screen controllers, and other similar devices), and (d) all software (including the Software, as defined below), data, reports, text, images, sounds, video, and content made available through any of the foregoing (collectively referred to as the “Content”). Any new features added to or augmenting the Service are also subject to this TOS. The Service is designed to provide merchants (“Merchant(s)”) a platform for collecting customer information, communicating with customers and offering customers or prospective customers access to data, information, special deals, vouchers, coupons and offers (collectively, “Promos”)
General Conditions/ Access and Use of the Service.
As part of the registration process, you will identify an administrative user name and password for your account (“Account”). Subject to the terms and conditions of this TOS, you may access and use the Service only for lawful purposes. All rights, title and interest in and to the Service and its components will remain with and belong exclusively to Hownd. You shall not (a) sublicense, resell, rent, lease, transfer, assign, time share or otherwise exploit or make the Service available to any third party; (b) use the Service in any unlawful manner (including without limitation in violation of any data, privacy, export control laws or the CAN-SPAM Act of 2003 and CASL of 2017 and EU GDPR 2018 and CCPA of 2020) or in any manner that interferes with or disrupts the integrity or performance of the Service or its components, or (c) modify, adapt or hack the Service to, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks. You shall comply with any codes of conduct, policies or other notices Hownd provides you or publishes in connection with the Service, and you shall promptly notify Hownd if you learn of a security breach related to the Service.
Any software that may be made available by Hownd in connection with the Service (“Software”) contains proprietary and confidential information that is protected by applicable intellectual property, patent, and other laws. Subject to the terms and conditions of this TOS, Hownd hereby grants you a non-transferable, non-sublicensable and non-exclusive right and license to use the object code of any Software solely in connection with the Service, provided that you shall not (and shall not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code or sell, assign, sublicense or otherwise transfer any right in any Software. You agree not to access the Service by any means other than through the interface that is provided by Hownd for use in accessing the Service. Any rights not expressly granted herein are reserved and no license or right to use any trademark of Hownd or any third party is granted to you in connection with the Service.
You are solely responsible for all customer information, data, information, feedback, suggestions, text, content and other materials that you (or your customers) upload, post, submit, deliver, provide or otherwise transmit or store (hereafter “post(ing)”) in connection with or relating to the Service (“Your Content”). Data added or appended to Your Content by Hownd or the Hownd Service, including demographic and behavioral information, remains the exclusive property of Hownd. For all content sent outside of your organization via the Services, you acknowledge and agree that Hownd shall have the right to automatically add reasonable branding and an identifying footer in accordance with our standard policies then in effect and may use or share this information with other parties in order to reach a broader audience. With respect to customer information (including but not limited to email lists), you agree that you will not use any purchased or rented lists or any other lists you obtained from a third party. Without limiting the generality of the foregoing in this section, you may not use the Service to directly or indirectly send, transmit, handle, distribute or deliver: (a) unsolicited email (“spam” or “spamming”) in violation of applicable law; (b) email to an address obtained via Internet harvesting methods or any surreptitious methods (e.g., scraping or harvesting) and you agree to demonstrate consent to marketing upon Hownd’s request; or (c) email to an address that is incomplete, inaccurate and/or not updated for all applicable opt-out notifications, using best efforts and best practices in the industry. You accept direct and fiscal responsibility, and agree to hold Hownd harmless, for any and all assessed fines or fees resulting from any known or unknown violation of the above.
You are responsible for maintaining the confidentiality of your login, password and Account and for all activities that occur under your login or Account. Hownd reserves the right to access your Account in order to respond to your requests for technical or campaign support. By posting Your Content on or through the Service, you hereby do and shall grant Hownd a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, modify, append, reproduce, distribute, display, publish and perform Your Content. Hownd has the right, but not the obligation, to monitor the Service, Content, or Your Content. You further agree that Hownd may remove or disable any Content at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content), or for no reason at all.
You understand that the operation of the Service, including Your Content, may be unencrypted and involve (a) transmissions over various networks; (b) changes to conform and adapt to technical requirements of connecting networks or devices and (c) transmission to Hownd’s third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Service. Accordingly, you acknowledge that you bear sole responsibility for adequate security, protection and backup of Your Content. Hownd will have no liability to you for any unauthorized access or use of any of Your Content, or any corruption, deletion, destruction or loss of any of Your Content.
You shall be responsible for obtaining (except to the extent you enter into a Device Lease Agreement with Hownd) and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services (collectively, “Equipment”). You shall also be responsible for maintaining the security of the Equipment and for all uses of your Account or the Equipment.
The failure of Hownd to exercise or enforce any right or provision of this TOS shall not be a waiver of that right. You acknowledge that this TOS is a contract between you and Hownd, even though it is electronic and is not physically signed by you and Hownd, and it governs your use of the Service.
Subject to the terms hereof, Hownd may (but has no obligation to) provide technical support services, through email or telephone in accordance with our standard practice.
Data Protection Addendum. The parties agree to comply with the terms of the Data Protection Addendum attached as Exhibit A.
Merchant Promos. You are the holder and issuer of each Promo made or distributed in connection with the Service. As a holder and issuer of the Promo, you represent, warrant and agree that you shall fully honor and redeem all Promos and shall be solely and fully responsible for any and all injuries, illnesses, damages, claims, liabilities, losses and costs suffered by or related to a customer concerning any Promo or caused in whole or in part the you, as well as for any unclaimed property liability arising from unredeemed Promos or portions thereof. You hereby waive and release and will hold harmless Hownd and its officers, directors, employees and agents from any claim, liabilities, losses, damages, or injury arising from or related to any Promo or any act or omission by you in connection with a Promo or the services or goods provided in connection therewith and/or as it relates to compliance with applicable unclaimed property and other laws relating to the redemption of Promos or any portion thereof.
Payment to Merchants. For amounts collected from the sale of any Promos you create with Hownd, Hownd will endeavor to remit the Remittance Amounts (defined below) to you, less the Transaction Fees (if applicable) and credit card transaction fees, within thirty (30) days after the end of the calendar month in which they are received. For any Auto-Generated Full-Priced Promos (defined below), the Remittance Amounts will be remitted after a confirmed consumer redemption. For purposes hereof, “Remittance Amounts” means the gross revenue actually received by Hownd from users of the Service who purchase your Promos, less any taxes, refunds (if granted in Hownd’s sole discretion), chargebacks, and bad debt. Any Remittance Amounts will be paid to you in accordance with the payment information provided to Hownd by you through the Service, and you are solely responsible for ensuring such information remains accurate and up to date.
Pay Per Visit Fees. When a MyHownd user visits your physical business location and activates or redeems a Promo, we may charge a fee (“PPV Fee”). The applicable PPV Fee for your business is typically shown during signup and in the Settings section of the Hownd merchant portal. All PPV Fees will be collected within thirty (30) days but may occur at more regular intervals based on the volume of activations. Hownd reserves the right to periodically review and change the PPV Fee applicable to your business, either up or down, for any reason.
Booking Visit Fees: The Service may include promos designed to incentivize consumers to book a reservation, either by phone or online. In these cases, Hownd may charge all (or a portion) of a PPV Fee, even though the user has not yet visited your physical business location.
Other Upfront Visit Fees: There may be other situations in which Hownd may charge all (or a portion) of a PPV Fee even though the user has not yet visited your physical business location. For example, in the situation in which you do not have a valid credit card on file for your business and/or you receive money from purchases of your Promos, we may draw the PPV fees from the proceeds of the purchase. If the PPV Fee is charged upfront, you will not be charged again when the user actually visits your physical business location.
Refunds. If any MyHownd user redeems a Promo for less than the amount the user paid for such Promo (“Price Paid”), then, upon request, you will issue a credit or cash equal to the difference between the Price Paid and the amount redeemed. If any user who has paid for a Promo for your goods/services requests a cash refund in lieu of redeeming such Promo, you will promptly refund the Price Paid to such user. If any user requests a refund from Hownd because of an obvious error (e.g., an unwanted duplicate purchase), Hownd may refund such customer; for any other refund requests, Hownd will endeavor to obtain your consent in advance of granting any refunds, but Hownd shall have the right to grant refunds in its sole reasonable discretion. In the event of any customer refunds, you will (i) refund to Hownd any Remittance Amounts paid by Hownd with respect to customer refunds provided by you or by Hownd, and you will reimburse Hownd for actual credit card transaction fees incurred by Hownd for the original transaction plus credit card transaction fees incurred by Hownd in processing the refund, or (ii) at Hownd’s option, the amounts in (iii) may be deducted from your next Remittance Amount payment for the applicable Promo or any future Promo.
Promotional Vouchers. You are responsible for permitting MyHownd users to redeem Promotional Vouchers for at least the amount paid, even after the promotional value has expired. The amount paid WILL NEVER EXPIRE.
Consumer Service Fees. When a MyHownd user purchases a Promo, we may charge them a fee (“Service Fee”) on each purchase, which will be added to their transaction total. If the Promo is refunded, any Service Fee applied will also be refunded to the user. For partial refunds, the Service Fee will be refunded pro rata. Service fees may vary based upon the total transaction amount.
Sharing of performance results. Hownd may share high-level performance results about your Merchant Promos with other affiliated parties, such as the marketing manager of your location’s shopping center or the brand manager of your franchise. For example, Hownd may share foot-traffic data to help others to understand business conditions at that property or across a brand.
Matching of Promotions from other Sites. Unless you explicitly request otherwise, Hownd reserves the right to proactively and without further notice add any generally-available promotions you may be offering on other sites, including DoorDash, Google, Groupon, Uber, and Yelp, to Hownd and make the same offers available to MyHownd users. Payments to Merchants for these Promos will follow the same terms as above.
Auto-Generated Full-Priced Promotions. In an effort to create a vibrant platform for both merchants and consumers, Hownd reserves the right to automatically create full-priced promotions on your behalf. These full-priced promotions typically consist of a gift card that never expires and, perhaps, a special promo card that expires after a certain period. For these Auto-Generated Full-Priced Promotions, Hownd will reimburse you at the time of consumer redemption for the full face value of the gift card and the value of any non-expired promo card, as per the “Remittance Amounts” defined in Section 1 above. You may opt out of this Auto-Generated Full-Priced Promotion by requesting such change from Hownd.
Duration of Initial Offerings. To help ensure positive results, merchants new to the Hownd platform must authorize at least one Promo that remains active for a minimum of six months that can be presented to consumers through (at minimum) the MyHownd mobile app and any relevant promo portal(s).
Integrated Services. You may enable various online services (such as social networking services like Facebook or Twitter) to be directly integrated into your Hownd experience (“Integrated Services”). By directly integrating these services into the Service, we make your online experiences richer, and more personalized. For example, you may be able to communicate with or publish Promos directed to Integrated Services. To take advantage of these features, we may ask you to register for or log into the Integrated Services on the websites of their respective providers. By enabling Integrated Services within the Service, you are allowing us to pass your log-in information to these Integrated Services for this purpose. However, please remember that the manner in which Integrated Services use, store and disclose your information is governed solely by the policies of such third parties, and Hownd shall have no liability or responsibility for the privacy practices or other actions of any third party site or service that may be enabled within the Service. In addition, Hownd is not responsible for the accuracy, availability or reliability of any information, content, goods, data, opinions, advice or statements made available in connection with Integrated Services. As such, Hownd is not liable for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such Integrated Services. Hownd enables these features merely as a convenience and the inclusion of such features does not imply an endorsement or recommendation.
Representations and Warranties. You represent and warrant to Hownd that (i) you have full power and authority to enter into this TOS; (ii) you own all Your Content, including without limitation your customer information, or have obtained all permissions, releases, rights or licenses required to engage in your emailing, posting and other activities (and allow Hownd to perform its obligations) in connection with the Services without obtaining any further releases or consents (including without limitation, customer releases or consents); (iii) Your Content and other activities in connection with the Service, and Hownd’s exercise of all rights and license granted by you herein, do not and will not violate, infringe, or misappropriate any third party’s copyright, trademark, right of privacy or publicity, or other personal or proprietary right, nor does Your Content contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing; and (iv) you are eighteen (18) years of age or older.
Termination. The Term of this Agreement (“Agreement Term”) is monthly, unless otherwise agreed to in writing by the parties. The Agreement Term will auto-renew at the end of each term unless notification is provided as described herein. Customer may terminate the Agreement without cause upon thirty (30) days prior written notice to Hownd and Customer will be charged the remainder of the subscription fees, if any, due for the Agreement Term (“Termination Fee”). Customer will be billed for the full Agreement Term during which the written notification is received. Termination will be effective at the end of the then-current Agreement Term. For a period of 90 days after termination, customer agrees to pay Hownd any PPV Fees (existing or new) related to promos distributed to consumers prior to termination. Hownd reserves the right to cancel at any time upon thirty (30) days prior written notice. All fees paid up front are non-refundable. Any Device(s) not paid up front and in full as set forth in the Order Form remains property of Hownd and must be returned or will be charged off at $300 per Device. Subject to earlier termination as provided below, Hownd may terminate your Account and this TOS at any time by providing thirty (30) days prior notice to the administrative email address associated with your Account. In addition to any other remedies we may have, Hownd may also terminate this TOS upon ten (10) days’ notice if you breach any of the terms or conditions of this TOS. Hownd reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof). If Hownd terminates your account without cause, or if you terminate your account for convenience in accordance with this TOS, then Hownd will, upon your written request, provide a file of Your Content (in .csv format) existing on the Service as of the date of such termination of your Account, for a period of sixty (60) days following notice of termination. After such sixty (60) day period, Hownd may delete Your Content on the Service. All accrued rights to payment and the terms of Section 4-16 shall survive termination of this TOS.
Unredeemed Purchase Value and Location Closing / Bankruptcy. If your business closes a location or ceases operations, Hownd reserves the right to immediately collect, by any and all means at Hownd’s disposal, from you the monies previously paid to you by consumers for any unredeemed purchases related to the closed location(s). For example, if 10 consumers each paid $50 for a gift card ($500 total), but only 5 of those consumers had visited and redeemed prior to the location closing, the value of the unredeemed purchases would be $250, and this would be the amount due.
DISCLAIMER OF WARRANTIES. The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Hownd or by third-party providers, or because of other causes beyond our reasonable control, but Hownd shall use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption HOWEVER, THE SERVICE, INCLUDING THE SITE AND CONTENT, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN ‘AS IS’ AND ‘AS AVAILABLE’ BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND HOWND EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON- INFRINGEMENT. YOU ACKNOWLEDGE THAT HOWND DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES, AND NO INFORMATION, ADVICE OR SERVICES OBTAINED BY YOU FROM HOWND OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS TOS.
Account Information from Third Party Sites.
Through the Service, you may direct Hownd to retrieve certain information maintained online by third-party providers with which you have a customer relationship, maintain accounts or engage in transactions (‘Account Information’). You agree to provide your username, password and other log-in information and credentials necessary to access your account with such providers (‘Access Information’), and you hereby grant Hownd permission to use the Access Information and Account Information for the purposes contemplated by this TOS.
By using the Service and providing your Access Information, you expressly authorize Hownd to access and use your Account Information maintained by identified third parties, on your behalf as your agent. You hereby authorize Hownd to use your Access Information to accomplish the foregoing and to configure the Service so that it is compatible with the third party sites for which you submit Account Information. YOU ACKNOWLEDGE AND AGREE THAT WHEN HOWND ACCESSES AND RETRIEVES ACCOUNT INFORMATION FROM THIRD PARTY SITES, HOWND IS ACTING AS YOUR AGENT, AND NOT AS THE AGENT OF OR ON BEHALF OF THE THIRD PARTY. You acknowledge and agree that the Service may not be sponsored or endorsed by the third party services accessible through the Service. You represent and warrant that neither the foregoing (or anything else in this TOS) nor your use of the Services will violate any agreement or terms to which you are subject, including without limitation, those with respect to any third party site. Hownd does not guarantee that any such third party services will continue to be made available within the Service, and such services may be removed or disabled by Hownd at any time without notice to you.
LIMITATION OF LIABILITY.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL HOWND BE LIABLE TO YOU OR ANY THIRD PARTY FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA OR BUSINESS INTERRUPTION, OR (B) FOR ANY DIRECT DAMAGES, COSTS, LOSSES OR LIABILITIES IN EXCESS OF THE FEES ACTUALLY PAID BY YOU IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM OR, IF NO FEES APPLY, ONE HUNDRED ($100) U.S. DOLLARS. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS TOS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS TOS.
Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. IN THESE STATES, HOWND’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
Indemnification. You shall defend, indemnify, and hold harmless Hownd from and against any claims, actions or demands, including without limitation reasonable legal and accounting fees, arising or resulting from your breach of this TOS, any of Your Content, or your other access, contribution to, use or misuse of the Service. Hownd shall provide notice to you of any such claim, suit or demand. Hownd reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting Hownd’s defense of such matter.
U.S. Government Matters. You may not remove or export from the United States or allow the export or re-export of the Services or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the software and documentation installed by Hownd on any Equipment (if applicable) are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this TOS and will be prohibited except to the extent expressly permitted by the terms of this TOS.
Assignment. You may not assign this TOS without the prior written consent of Hownd. Hownd may assign or transfer this TOS, in whole or in part, without restriction.
Miscellaneous. If any provision of this TOS is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this TOS will otherwise remain in full force and effect and enforceable. Both parties agree that this TOS, together with any Device Lease Agreement and Order Form signed by the parties hereto (if any), is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this TOS, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this TOS and you do not have any authority of any kind to bind Hownd in any respect whatsoever. In any action or proceeding to enforce rights under this TOS, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this TOS will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
Governing Law. This TOS shall be governed by the laws of the State of Arizona in the United States of America without regard to the principles of conflicts of law. Unless otherwise elected by Hownd in a particular instance, you hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts of the State of Arizona for the purpose of resolving any dispute relating to your access to or use of the Service.