MERCHANT AGREEMENT TERMS AND CONDITIONS
Last Updated: July 7, 2014
These Terms and Conditions (“Terms”) are effective as of the date of the Beacon Deployment Agreement (defined below) are
incorporated into the applicable Beacon Deployment Agreement and made a part thereof which makes up the agreement entered
into between Roximity, Inc. (“Roximity”) and (Merchant defined below). The parties agree as follows:
For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Roximity and Merchant agree
1.1 “Agreement” means collectively, these Terms and Conditions and any Beacon Deployment Agreement.
1.2 “Beacon Deployment Agreement” means a written request from Merchant, accepted by Roximity, that sets forth specific
pricing and terms for one or more Merchant Targeted Messages.
1.3 “Confidential Information” means non-public information that one party (“Discloser”) discloses or makes available to the
other party (“Recipient”).
1.4 “Effective Date” means the effective date of the Agreement as set forth on the Beacon Deployment Agreement.
1.5 “Fees” means all of the Roximity fees identified in the applicable Beacon Deployment Agreement, including but not limited
to: Hardware Fee, Platform Fee, Custom Development Fee, Marketing Fees, Set-Up Fees, Creative Services Fees, Slotting Fees,
and/or Performance Fees.
1.6 “Merchant” means the entity listed on the Beacon Deployment Agreement.
1.7 “Merchant Content” mean artwork, graphics, logos, and copy made available by Merchant to Roximity for use in connection
with the delivery and display of a Merchant Targeted Message.
1.8 “Merchant Panel” means the online element of the Roximity Service that enables Merchants to upload Merchant Content,
modify certain terms of Merchant Targeted Messages, and access information relating to the Merchant Targeted Messages, User
Transactions, and the Roximity Service.
1.9 “Merchant Product” means the product or service that is advertised or promoted in a Merchant Targeted Message.
1.10 “Merchant Site” means the physical locations owned, controlled or utilized by Merchant and identified on the applicable
Beacon Deployment Agreement or entered into the Merchant Panel.
1.11 “Merchant Targeted Message” means an advertisement that presents a User the opportunity to take an action relating to
Merchant Content or a Merchant Product.
1.12 “Roximity Service” means Roximity’s proprietary suite of technology and services, including, but not limited to, technology
and services used to target, display, and make available advertising and offers to Users and partners, process related transactions, and
provide analytics and reporting to Merchants, Merchant and Publishing Partners and shall include all data, information, content,
software, technology, and services provided by Roximity to Merchant hereunder (excluding Merchant Content).
1.13 “Third Party Content Owner” means the third party that owns the Merchant Content, Merchant Product, or Merchant Site, if
1.14 “Tracking Partner” means an entity or organization that directs Users to the Roximity Service.
1.15 “Tracking Technology” means a Roximity-designated technology used to track User actions.
1.16 “User” means a user of the Roximity Service.
1.17 “User Transaction” shall have the meaning set forth in the applicable Beacon Deployment Agreement for each Merchant
2. Scope of Agreement. Merchant desires to advertise and promote Merchant Products to Users through Merchant Targeted
Messages made available through the Roximity Service in accordance with the Agreement. Merchant Targeted Messages shall be
defined in a Beacon Deployment Agreement and/or the Merchant Panel. Nothing in the Agreement shall be construed as limiting in
any manner Roximity’s marketing or distribution activities or its appointment of other affiliates, distributors, merchants, or
representatives of any kind.
3. Roximity Rights and Obligations.
3.1 Throughout the term of the Agreement, Roximity may at its election (a) host or make available Merchant Content and/or (b)
integrate and display the Merchant Targeted Message from the Roximity Service.
3.2 Roximity reserves the right in its sole discretion to reject or remove any Merchant Targeted Message or Merchant Content
from the Roximity Service at any time and for any reason. 3.3 Roximity may make available the Merchant Panel to Merchant. For purposes of the Agreement, Roximity’s posting of
information in the Merchant Panel shall constitute delivery of notice of such information to Merchant.
3.4 Roximity may use any information gathered or received by Roximity in connection with a User Transaction or Merchant
Targeted Message in connection with the Roximity Service.
4. Merchant Rights and Obligations.
4.1 Merchant shall provide Roximity the Merchant Content as directed by Roximity. Subject to the terms of the Agreement,
Merchant hereby grants Roximity a non-exclusive and royalty-free worldwide license during the term of the Agreement to incorporate
the Merchant Content, trademarks, trade names or other designations of source in the Roximity Service.
4.2 Merchant shall enter and maintain accurate and current information in the Merchant Panel. Merchant agrees that all material
terms of each Merchant Targeted Message shall be included in the marketing text and/or completion instruction segments of the
Merchant Panel. Roximity reserves the right to make minor stylistic changes to Merchant Content to ensure consistency of User
experiences with the Roximity Service. Merchant agrees that any changes to a Beacon Deployment Agreement submitted to the
Merchant Panel are effective upon submission by Merchant, provided that all such changes may be subject to review and approval by
Roximity, at its election.
4.3 Merchant represents and warrants that it is not currently subject to an order, litigation, or investigation by any federal, state,
or local or international regulatory or law enforcement organization, and shall notify Roximity immediately in writing of any such
order, litigation, or investigation arising out of or relating to the Merchant Products, Merchant Content, Merchant Targeted Messages,
4.4 Merchant shall strictly comply with the terms of each Merchant Targeted Message and prominently display to Users the
policy on refunds, returns, and recurring charges (if any) applicable to Merchant Product. Merchant is solely responsible for any sales
of the Merchant Product to Users and shall fulfill its obligations with respect to any Merchant Product purchased by a User.
4.5 In the event Merchant is an agency providing services to Third Party Content Owners, Merchant represents and warrants that
(a) Merchant has all necessary right, title, and interest to grant the licenses set forth in the Agreement and (b) at all times during the
term of the Agreement, it will require Third Party Content Owners to comply with the obligations set forth in this Section 4 as if the
Third Party Content Owner is Merchant, provided that Merchant acknowledges that Merchant remains, at all times, solely liable for
Merchant’s, or Third Party Content Owner’s, failure to comply with the provisions set forth herein.
4.6 Mobile SDK. Use of the Roximity Service in connection with a Merchant Application, Merchant Site or Merchant Product
made available to Users of mobile devices requires Merchant to access and use the Roximity Mobile Software Development Kit
(“Mobile SDK”). All use of the SDK is subject to the then-current version of the Mobile SDK License available in the Roximity
merchant portal located at http://www.roximity.com/legal/mobilesdk/
5. User Support. As between the parties (a) Merchant is responsible for all User inquiries relating to Merchant Products and/or
the Merchant Site; and (b) Roximity is responsible for User inquiries relating to the Roximity Service and/or the Merchant Targeted
Messages. Each party shall perform prompt and effective customer service to Users in accordance with prevailing industry standards.
Each party shall maintain and make available to the other party clear and up-to-date points of contact for User support issues,
including an initial User point of contact, a manager of the User support function, and an executive escalation contact.
6. Reporting. Roximity or its tracking partners will track and record each User Transaction.
7. Billing Records. The data and records of Roximity shall be determinative for purposes of calculating the Fees due hereunder.
Roximity may identify User Transactions on the basis of the Tracking Technology as well as documentation or information submitted
by a User, and Merchant shall pay the applicable Fees in all such cases even if this User documentation or information ultimately
cannot be confirmed. Merchant is obligated to pay the relevant Platform Fee once a User Transaction is completed according to the
terms of the Beacon Deployment Agreement and regardless of when or whether such User’s payment is collected by Merchant.
Merchant bears all risk associated with collections, defaults, chargebacks, refunds, fraudulent transactions and the like with respect to
8.1 Payment Schedule. Merchant shall pay Roximity on a monthly basis within thirty (30) days after the end of the month, and
shall include all Fees relating to User Transactions made during the immediately previous month. Any amounts past due shall bear
interest at a rate equal to the lower of 1.5% per month or the maximum rate permitted by applicable law.
8.2 Credit. At Roximity’s request Merchant shall complete and submit a Roximity Credit Application. Roximity reserves the
right to require a deposit or prepayment from Merchant prior to making available any Merchant Targeted Messages on the Roximity
Service. Any deposit or prepayment collected by Roximity shall not bear interest and need not be segregated by Roximity or
maintained by Roximity in a separate account.
8.3 Electronic Payments. At Roximity’s request, Merchant shall accept electronic delivery of invoices and make electronic
payments to Roximity for any Fees due hereunder, whether by wire transfer, ACH, or equivalent payment method. Merchant hereby authorizes Roximity to collect any past due amounts from Merchant by means of ACH transfer from Merchant unless Merchant
revokes this authorization upon written notice to Roximity.
8.4 Taxes. Amounts shall be paid to Roximity free and clear of all taxes, withholdings and other governmental charges and
assessments (“Taxes”) and such amounts shall be grossed up to compensate for any withholdings. Merchant will pay all such Taxes
and all applicable shipping or fulfillment charges in connection with a User Transaction. Merchant is solely responsible for all
reporting obligations to Users related to Taxes.
9. Term; Termination. The Agreement shall commence on the Effective Date and shall remain in effect, unless terminated
earlier as provided herein. Either party may terminate the Agreement if the other party materially fails to perform any of its obligations
and such failure continues for a period of five (5) business days after receipt by the defaulting party of a written notice specifying the
default. Termination or expiration of a Beacon Deployment Agreement will not automatically terminate the Agreement. Further, either
party may terminate the Agreement upon ninety (90) days written notice at any time for any reason. Sections 1, 5, 7, 8, 11, 12, 13, 14,
15, and 17 shall survive any termination of the Agreement, including any provision which by its terms survives for a specified period
following termination and any accrued rights to payment.
10. Representations and Warranties. Each party hereby represents and warrants that (a) it has the authority to enter into the
Agreement and to fully perform its obligations hereunder, (b) the Agreement does not and will not conflict with any of the Party’s
other obligations to any third parties, and (c) it complies and will comply with all applicable laws, rules, platform or network policies,
and regulations in connection with its performance hereunder. EXCEPT AS OTHERWISE EXPRESSLY STATED IN THE
AGREEMENT, NEITHER PARTY MAKES ANY EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH
RESPECT TO THE SUBJECT MATTER OF THE AGREEMENT AND SPECIFICALLY DISCLAIMS ALL WARRANTIES OF
ANY KIND, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS
FOR A PARTICULAR PURPOSE.
11. Confidentiality. Recipient may use Discloser’s Confidential Information only as necessary to exercise rights and perform
obligations under the Agreement. Recipient will protect Discloser’s Confidential Information from disclosure or misuse by using the
same degree of care as for Recipient’s own confidential information of like importance, but will at least use reasonable care. Further,
both parties agree to have each of their employees, independent contractors, or service providers (including their related entities) with
access to any Confidential Information agree to be bound by an enforceable agreement that ensures the protection of the Confidential
Information from disclosure to at least the same extent as does the Agreement. A party shall not be bound by this Section 11 with
respect to information it can document (i) is generally available to the public without breach of the Agreement, (ii) is lawfully
obtained from a third party without a duty of confidentiality, (iii) is known to the Recipient prior to such disclosure without a duty of
confidentiality, or (iv) is, at any time, developed by the Recipient independent of any such disclosure from the Discloser and the
Recipient can reasonably show such independence.
12. Proprietary Rights.
12.1 Roximity Ownership. As between Roximity and Merchant, Roximity owns and retains all rights, title, and interest in and to
all components of the Roximity Service that constitute protectable intellectual property under any intellectual property law (except for
any Merchant Content incorporated therein) (“Roximity Property”), including but not limited to all software, intellectual property
rights, information, and data related thereto, including any usage data and compilations thereof.
12.2 Merchant Ownership. As between Roximity and Merchant, Merchant owns and retains all rights, title, and interest in and to
all components of the Merchant Content, Merchant Products, and Merchant Site that constitute protectable intellectual property under
any intellectual property law (except for any Roximity Property incorporated therein) (“Merchant Property”), including but not limited
to all software, intellectual property rights, information, and data related thereto, including any usage data and compilations thereof.
12.3 License; Conditions; Restrictions. Except as expressly stated herein, neither party grants the other party any license, express
or implied, to the Merchant Property or the Roximity Property.
13. Limitation on Liability. EXCEPT FOR LIABILITY ARISING PURSUANT TO SECTION 15 (“INDEMNIFICATION”),
NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY IN CONNECTION WITH THE AGREEMENT FOR INDIRECT,
INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION,
DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF OR UNAUTHORIZED ACCESS TO
INFORMATION). THIS SECTION WILL NOT LIMIT EITHER PARTY’S ABILITY TO OBTAIN INJUNCTIVE OR OTHER
EQUITABLE RELIEF. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ROXIMITY’S AGGREGATE
LIABILITY TO MERCHANT UNDER THIS AGREEMENT SHALL NOT EXCEED DAMAGES IN EXCESS OF THE
AMOUNTS RECEIVED BY ROXIMITY DURING THE 3 MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO
14. Relationship of Parties. The parties hereto expressly understand and agree that each party is an independent contractor in the
performance of each and every part of the Agreement. Merchant shall be solely responsible for all of its employees and agents and its
labor costs and expenses arising in connection therewith and for any and all claims, liabilities or damages that may arise on account of
Merchant’s activities, or those of its employees or agents, in the performance of the Agreement. Merchant does not have the authority,
right or ability to bind or commit Roximity in any way (including, without limitation, by agreeing to sales of Roximity products or
services) and will not attempt to do so or imply that it may do so.
15.1 Claims Against Roximity. Merchant shall defend, at its own expense, any claim, suit or action against Roximity, Tracking
Partners, and their respective directors, officers, employees, parents, affiliates, agents, successors and assigns (“Roximity
Indemnitees”) against any claim, demand or cause of action brought by a third party against a Roximity Indemnitee to the extent that it
is based upon (a) a breach of Merchant’s representations, warranties, or obligations hereunder or (b) any allegation that the Merchant
Content, Merchant Site, or Merchant Product or other materials or services provided or controlled by Merchant infringe or violate any
trademark, copyright, trade secret, patent or other intellectual property rights of such third party (each, an “Roximity Claim”), and
Merchant shall indemnify and hold the Roximity Indemnitees harmless from and against all losses, damages, liabilities, costs, and
expenses (including reasonable attorneys’ fees) incurred by the Roximity Indemnitees specifically attributable to such Roximity Claim
or those costs and damages agreed to in a monetary settlement of such Roximity Claim. The foregoing obligations are conditioned on
the Roximity Indemnitees: (a) promptly notifying Merchant in writing of such Roximity Claim; (b) giving Merchant sole control of
the defense thereof and any related settlement negotiations; and (c) cooperating and, at Merchant’s request and expense, assisting in
such defense. Notwithstanding the foregoing, Merchant shall have no obligation under this section or otherwise with respect to any
claim to the extent based upon any gross negligence or intentional misconduct of Roximity.
15.2 Claims Against Merchant. Roximity shall defend, at its own expense, any claim, suit or action against Merchant and its
respective directors, officers, employees, parents, affiliates, agents, successors and assigns (“Merchant Indemnitees”) against any
claim, demand or cause of action brought by a third party against a Merchant Indemnitee to the extent that it is based upon any
allegation that the Tracking Technology or any other Roximity proprietary technology (“Roximity Technology”) infringes or violates
any trademark, copyright, trade secret, patent or other intellectual property rights of such third party (“Merchant Claim”), and
Roximity shall indemnify and hold the Merchant Indemnitees harmless from and against all losses, damages, liabilities, costs, and
expenses (including reasonable attorneys’ fees) incurred by the Merchant Indemnitees specifically attributable to such Merchant
Claim or those costs and damages agreed to in a monetary settlement of such Merchant Claim. The foregoing obligations are
conditioned on the Merchant Indemnitees: (a) promptly notifying Roximity in writing of such Merchant Claim; (b) giving Roximity
sole control of the defense thereof and any related settlement negotiations; and (c) cooperating and, at Roximity’s request and
expense, assisting in such defense. Notwithstanding the foregoing, Roximity shall have no obligation under this Section 15.2 or
otherwise with respect to any infringement claim based upon: (1) any use of the Roximity Technology not in accordance with this
Agreement; (2) any use of the Roximity Technology in combination with products, equipment, software, or data not supplied by
Roximity if such infringement would have been avoided without the combination with such other products, equipment, software or
data; or (3) any modification of the Roximity Technology by any person other than Roximity or its authorized agents or
subcontractors. This Section 15.2 states Roximity’s entire liability and Merchant’s sole and exclusive remedy for infringement claims
16. Publicity. Each party may identify the other party as a partner in client lists and other marketing materials, and that Roximity
may issue a mutually-approved press release announcing the existence and general nature of the relationship between the companies.
Any other disclosure of the terms of the Agreement or the uses of either party’s name shall require that party’s prior written consent.
17. Miscellaneous. All notices under the Agreement shall be in writing and shall be deemed given when personally delivered,
when sent by confirmed email, or three (3) days after being sent by prepaid certified or registered U.S. mail to the address of the party
to be noticed as set forth herein or such other address as such party last provided to the other by written notice. Neither party shall
have any right or ability to assign, transfer, or sublicense any obligations or benefit under the Agreement without the written consent
of the other (and any such attempt shall be void), except that a Roximity may assign and transfer the Agreement and its rights and
obligations hereunder, by operation of law or otherwise, without consent to any successor to its business or assets to which this
Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. The parties agree that the Agreement
shall be governed by the laws of the State of Colorado without regard to the conflict of laws provisions thereof. The parties further
agree that if any portion of the Agreement is illegal or unenforceable, such portion shall be limited or excluded from the Agreement to
the minimum extent required and the balance of the Agreement shall remain in full force and effect and enforceable. The prevailing
party in any action under the Agreement shall be entitled to all reasonable attorneys’ fees, collection agency fees, and other costs
incurred in connection with enforcing its rights under the Agreement. The Agreement contains the entire understanding of the parties
regarding its subject matter and can only be modified or waived by a subsequent written agreement signed by both parties, provided
that Roximity may modify these Terms and Conditions from time to time by providing notice to Merchant, which notice may be
electronic or made available in the Merchant Panel.