During the length of the Merchant Agreement, Belly will provide the Belly services and/or programs (collectively, “Belly Programs”) described in the Merchant Agreement separately executed by you, together with all exhibits attached thereto (the “Merchant Agreement”). In the event of any inconsistency among terms and conditions of the Merchant Agreement and these Terms and Conditions (collectively, sometimes referred to herein as the “Agreement”), the order of control shall be: (i) these Terms and Conditions, (ii) the Merchant Agreement, and (iii) any other exhibits, addenda or attachments to these Terms and Conditions including any links contained in the Merchant Agreement or these Terms and Conditions, which are incorporated by reference herein. Any capitalized terms that are not defined in these Terms and Conditions have the meanings ascribed to them in the Merchant Agreement. For purposes of clarity, these Terms and Conditions are incorporated by reference into the Merchant Agreement executed by you, and, together with the Merchant Agreement and all attachments thereto, govern your use of all Belly Programs and services.
(i) Belly is the sole and exclusive owner of all right, title and interest in and to any data provided to Belly by your customers or any end user to Belly in connection with the Belly Programs, including without limitation all e-mail and/or other contact information (“Customer Data”). As such, you shall not, unless the applicable customer has separately taken all steps necessary to opt in to provide contact information to you, be provided with or otherwise have access to the Customer Data.
(ii) Belly owns all right, title and interest in and to the Belly Programs (which include, for purposes of clarity, all software and/or mobile applications related thereto) including, without limitation, any intellectual property rights and any improvements, modifications, enhancements or refinements thereto. Except as set forth in the Agreement, all rights not expressly granted to you are reserved. You agree not to decipher, decompile, disassemble, reconstruct, translate, reverse engineer, or discover any of the Belly Programs, intellectual property or ideas, algorithms, file formats, programming, or interoperability interfaces underlying or such intellectual property.
(iii) Belly hereby grants to you a limited, non-transferable, non-exclusive, revocable license to access and use Belly’s hosted Merchant Web Portal (the “Portal”) for internal business purposes so long as your account with Belly remains current and active. If Belly provides you with a password to access the Portal, you are solely responsible for protecting the password and for any authorized or unauthorized use made of the password. The Portal, and all source code, object code, software, copyrights and other intellectual property associated therewith, are and shall remain the sole and exclusive property of Belly. You shall refrain from permitting any third party to use your password or otherwise access the Portal. Belly shall have the right to terminate the license granted hereby immediately in the event that you have breached any terms or conditions set forth in the Agreement or your Belly account is otherwise terminated for any reason.
(iv) Without limiting any of Belly’s rights set forth in the Agreement, Belly reserves the right, in its sole discretion but without any obligation on its part, to reject, remove, delete and/or cancel any information or content displayed or posted on any tablet, the Belly website, any portion of the Belly Program, and/or within any print materials, including without limitation any information and/or content that, in Belly’s view, contains content or links which do not meet Belly’s specifications or requirements. In addition, Belly shall be entitled, in its sole discretion and without notice to any party, to redesign and/or modify all or any portion of the Belly Program (including without limitation any mobile application and/or software) at any time.
You: (i) will use the Belly Programs solely for your internal business purposes; and (ii) will not, for yourself, any of your affiliates or any third party (a) sell, rent, lease, license or sublicense, assign, distribute, or transfer the Belly Programs, (b) modify, change, alter, create derivative works of, decipher, decompile, disassemble, reconstruct, translate, reverse engineer, or discover any source code of the underlying ideas, algorithms, file formats, programming, or interoperability interfaces of the Belly Programs, (c) copy any tangible versions of the Belly Programs, or (d) remove from any of the Belly Programs any language or designation indicating the confidential nature thereof or the proprietary rights of Belly. In addition, you will not export, re-export or permit any third party to export or re-export, directly or indirectly, the Belly Programs where such export or re-export is prohibited by applicable law without appropriate licenses and clearances. Belly retains the right, in its sole discretion but without any obligation on the part of Belly to monitor or evaluate any communications, to approve, modify or refuse any Belly-related communications or proposed communications or messages to your customers or any Belly end users.
(i) Belly’s current fees for the Belly Programs and its services are set forth in the Merchant Agreement. Belly reserves the right to amend the fees payable for the Belly Programs at any time upon thirty (30) days’ prior notice to you; provided, however, that such amendment to the fees will not be applicable until the beginning of the next Subscription Period.
(ii) When you provide your payment information to Belly, you are providing Belly with an authorization to process any and all payments as outlined in this Agreement. In certain instances, the payment processing may not occur immediately, and your payment may show as “pending” during this time period. In addition, Belly may request an authorization for the amount of your anticipated transaction in advance and may estimate the final value of the transaction, which may be more than the amount of the actual transaction. Belly will release any funds authorized in excess of the amount of the actual transaction at the time the transaction settles.
(iii) You will be responsible for any sales, use, value-added or import taxes, customs duties or similar taxes assessed in accordance with applicable law with respect to the provision of the Belly Programs.
(iv) Notwithstanding anything herein to the contrary, Belly, in its sole discretion, may suspend or terminate the Agreement and corresponding access and right to use all or any portion of the Belly Programs, at any time, upon electronic or other notice to you, if you have not paid all amounts due on or before the payment due date, or for any other breaches of the Merchant Agreement, these Terms and Conditions, or any other exhibits, addenda or attachments to these Terms and Conditions including any links contained in the Merchant Agreement or these Terms and Conditions, which are incorporated by reference herein. You are responsible for amounts that remain outstanding as of the date of such termination including early cancellation fees. You agree to pay reasonable attorneys’ fees and court costs incurred by Belly to collect any unpaid amounts owed by you.
(v) Belly will repair or replace damaged tablets due to normal wear and year or any hardware/software malfunction at no cost to any merchant in good standing. A merchant in good standing is primarily defined as having no outstanding balance due to Belly, but may be defined by other criteria as specified by Belly.
The Belly solution term, as further described below, is effective upon the earlier of the arrival date or estimated arrival date of the solution as stated within the Merchant Agreement. All other subsequent changes or modifications to the merchant agreement are effective upon the completion of the merchant purchase order. You may amend your contract to include additional Belly features through your Web Command Center. When you make changes through your Web Command Center, you are providing explicit authorization for Belly to process payment on your existing Belly account and method of payment without any further authorization necessary from you.
The Agreement will remain in full force specified in the Merchant Agreement. At the end of any Subscription Plan, unless you select a new Subscription Plan, your Subscription Plan will automatically renew on a month–to–month Subscription Plan at the then-current rates. Effective January 1, 2015, new agreements and/or subscriptions may automatically renew for successive 1-year terms upon expiration of the initial term of any Subscription Plan at the then-current standard rates until such time as either party provides written notice of termination to the other party, in accordance with terms below. Current fees will be charged to the payment method on file unless Belly is otherwise notified of a cancellation in writing. Although Belly may choose to send a reminder email prior to charging a customer for a renewal fee, Belly is not responsible for notifying a customer of this automated renewal.
A merchant may cancel its subscription, thereby terminating this Agreement, solely in accordance with the following cancellation policies:
Money Back Guarantee – If your Merchant Agreement specifies that you are entitled to a “30 day Money Back Guarantee” you shall, by providing written termination notice to Belly within thirty (30) days of the Installation Date, be entitled to have the Belly Kit uninstalled. In order to qualify for your Money–Back–Guarantee, we simply require that you speak to your Merchant Success Manager to set up your program and enroll a minimum of 5 customers during the Money–Back–Guarantee period. If you do not meet these qualifications you will be charged a restocking fee of $50 upon cancellation. Within thirty (30) days of Belly’s receipt of the Belly Kit, Belly will refund you any money collected for the initial monthly subscription fee in the same manner in which the initial fee was paid. All Onboarding, Activation, or Setup fees are non-refundable. If, after thirty (30) days from the Installation Date and prior to the subsequent Subscription Period, you desire to terminate the Belly Program, you agree to pay an early cancellation fee equal to six (6) months of your monthly subscription fee, as well as a $50 restocking fee via the credit card or ACH on file with Belly. If you subscribe to a variable subscription fee plan, your early cancellation fee is equal to (6) months at the most recent monthly billed rate along with a $50 restocking fee.
Renewal – At the end of any Subscription Plan, unless you select a new Subscription plan, your Subscription Plan will automatically be renewed on an annual or monthly (as applicable) basis at the then-current standard rates. Current fees will be charged to the credit card or ACH on file unless Belly is otherwise notified of a cancellation in writing. Customers renewed on a monthly basis must provide written cancellation notice at least sixty (60) days prior to the beginning of the next monthly or annual term (as applicable). Customers renewed on an annual basis must provide written cancellation notice sixty (60) days prior to or within the first thirty (30) days of their renewal period. Although Belly may choose to send a reminder email prior to charging a customer for a renewal fee, Belly is not responsible for notifying a customer of this automated renewal.
Subscription Cancellation within the Contract Term – Customers enrolled in Monthly or Annual subscription plans shall provide at least sixty (60) days’ written cancellation notice. If, prior to the subsequent Subscription Period, you desire to terminate the Belly Program, You agree to pay an early cancellation fee equal to six (6) months of your monthly subscription fee, as well as a $50 restocking fee via the credit card or ACH on file with Belly. If you subscribe to a variable subscription fee plan, your early cancellation fee is equal to six (6) months at the most recent monthly billed rate along with a $50 restocking fee. You will not be entitled to any refund of any pre-paid or prior subscription payments.
Other Events – Each party shall have the right to terminate the Agreement upon written notice to the other party: (i) upon the institution of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of debts of the other party that is not otherwise dismissed within sixty (60) days of such institution; (ii) upon the making of an assignment for the benefit of creditors by the other party; or (iii) upon the dissolution of the other party. Notwithstanding the foregoing, Belly may terminate the Agreement and/or your access to one or all Belly Programs in the event you fail to remain current in all fees due and owing to Belly or in the event you breach any of your obligations under the Agreement. Belly will cease to collect the monthly subscription fee at the point in time in which Belly has received your returned Belly Kit.
In the event of any termination of the Agreement or any Belly Program, Belly shall be entitled to send e-mail and/or other communications to some or all of your loyalty program members, notifying each such member of your termination of the Belly Program. In addition to the foregoing permissible e-mail, Belly shall be entitled to take other actions, at its discretion, to assist your loyalty program members in protecting the points earned within the Belly Program and providing them an opportunity to redeem points earned.
In addition, all items in the Belly Kit must be returned to Belly in specified return packaging provided by Belly. If you were not previously provided with specified return packaging, Belly will provide you with specified return packaging at no cost to you, otherwise you will be charged for packaging materials. You are responsible for all return shipping charges and for any damage incurred in the shipping process. If any item in the Belly Kit is not returned, Belly will charge you for the cost of the item not returned. Belly will prorate the last monthly subscription fee based on the date the Belly Kit is received by Belly. You may be required to fill out an exit survey in order to complete any cancellation request. Belly may refuse to accept the return of its equipment until the exit survey is completed. If You do not complete the exit survey in a timely fashion, You may be charged a fee for missing equipment until the exit survey is completed. Any provision of the Agreement which contemplates performance or observance subsequent to any termination or expiration of the Agreement shall survive any termination or expiration of the Agreement and continue in full force and effect. Upon expiration or termination of this agreement all items in the Belly Kit must be returned to Belly within 14 days. If the tablet is lost or not returned within 14 days, you will be charged a penalty fee to cover the tablet equipment costs as well as a non–refundable late fee.
(i) Belly warrants that Belly has the authority to enter into this Agreement.
(ii) You represent, warrant and covenant to Belly that: (a) you have the authority to enter into this Agreement; (b) you will take proper care of the Belly Kit and/or all equipment provided by Belly to you and maintain all such equipment in good working order; (c) you will only use the Belly Programs for lawful purposes and will not violate any law of any country or the intellectual property rights of any third party; and (d) you will not use any Belly Program to send any e-mail or other communications which violate any applicable regulation, rule, industry protocol or law (including, without limitation, the CAN-SPAM Act).
(iii) EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 6, BELLY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF QUALITY, ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN ADDITION, BELLY DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AS TO ANY MINIMUM LEVEL OF UPTIME FOR THE BELLY PROGRAM OR THE RESULTS THAT YOU MAY ACHIEVE ON ACCOUNT USING ANY BELLY PROGRAM OR SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU EXPRESSLY AGREE THAT THE USE OF BELLY PROGRAMS OR SERVICES AND THE INTERNET IS AT YOUR SOLE RISK. BELLY PROGRAMS AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND UNDER NO CIRCUMSTANCES SHALL BELLY BE LIABLE TO YOU OR ANY OTHER PARTY ON ACCOUNT OF ANY DOWNTIME WITHIN ANY BELLY PLATFORM OR APPLICATION. YOU HEREBY ACKNOWLEDGE THAT YOU ARE SOLELY RESPONSIBLE FOR OBTAINING AND/OR PROVIDING INTERNET SERVICE TO ALL LOCATIONS IN WHICH THE BELLY PROGRAMS ARE TO OPERATE.
Any information that a receiving party knows or has reason to know (either because such information is marked or otherwise identified by the disclosing party orally or in writing as confidential or proprietary, has commercial value, or because it is not generally known in the relevant trade or industry) is “Confidential Information” of the disclosing party and will remain the sole property of the disclosing party. Such Confidential Information includes but is not limited to data, information (including personally identifiable information), ideas, materials, specifications, procedures, schedules, software, technical processes and formulas, source code, product designs, sales, cost and other unpublished financial information, product and business plans, advertising revenues, usage rates, advertising relationships, projections, marketing data and other similar information provided by a party. For avoidance of doubt, Customer Data shall be deemed Confidential Information of Belly. Each party agrees that it will not disclose, use, modify, copy, reproduce or otherwise divulge such Confidential Information to any third party without the prior written approval of the disclosing party except that the receiving party shall have the right to disclose such Confidential Information to the extent required by applicable law or to the directors, officers or employees of the receiving party who have a need to know such Confidential Information in order to perform its obligations under the Agreement and to the extent such directors, officers or employees are subject to obligations of confidentiality and non-disclosure that are substantially similar to the obligations set forth in the Agreement. The prohibitions contained in this Section will not apply to information (i) already lawfully known to the receiving party prior to disclosure by the disclosing party; (ii) independently developed by the receiving party without access to or use of the disclosing party’s Confidential Information; (iii) disclosed in published materials; (iv) generally known to the public; or (v) lawfully obtained from any third party. In addition, a party will not be considered to have breached its obligations under the Agreement to the extent Confidential Information is required to be disclosed by any governmental authority, provided that, to the extent legally practicable, the receiving party advises the disclosing party prior to making such disclosure in order that the disclosing party may object to such disclosure, take action to ensure confidential treatment of the Confidential Information, or take such other action as it considers appropriate to protect the Confidential Information.
In the event of a reward dispute or mistake between a Merchant and User, Belly may in its sole discretion and without liability of any kind unilaterally make adjustments to User reward points (it being understood that Belly shall not be (i) obligated to make any such adjustment or otherwise get involved with or provide any assistance towards resolving any such dispute, or (ii) be liable to any party for any damages, expenses or liabilities arising out of any such dispute). To the extent any disputes arise under the Agreement or otherwise between the parties, the parties will first attempt in good faith to resolve their dispute informally. This Agreement is governed by the State of Illinois and you expressly agree to the exclusive jurisdiction for any claim or dispute with Belly in the federal and state courts within the jurisdiction of the United States District Court for the Northern District of Illinois. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the Agreement.
You will defend, indemnify, and hold Belly and its affiliates and their respective directors, officers, employees, agents and representatives harmless from and against any third party suit, proceeding, assertion against any damages, judgments, liability, costs and expenses (including without limitation any reasonable attorneys’ fees) incurred arising from your breach of this Agreement, your negligence or misconduct, any dispute you may have with any other party in connection with any Belly Program or otherwise related in any way to any Belly Program, your unauthorized use or misuse of the Belly Programs or any unauthorized combination of any Belly Program with any hardware, software, products, data or other materials not specified or provided by Belly.
Belly’s aggregate liability for all claims (including claims for indemnification of third party damages) arising out of the Agreement, whether in contract, tort or otherwise, will not exceed the amount of fees paid by you to Belly under the Agreement during the twelve (12) months preceding the date on which the applicable claim occurred. To the maximum extent permitted by applicable law, in no event will Belly be liable for any loss of business profits, business interruption, loss of data or any special, indirect, exemplary, incidental or consequential damages arising from or in relation to the Agreement or the use of the Services or any Belly Program, however caused and regardless of theory of liability. In addition, Belly will not be liable for damage (physical or otherwise) incurred by you upon any asset or property from the installation or removal of any Belly product or add-on in-store and will not be responsible for replacement or cost of repair if damages occur. This limitation will apply even if such damages were foreseeable and you have been advised or are aware of the possibility of such damages.
Except where explicitly provided otherwise herein, any notice required or permitted hereunder will be delivered to the contact person listed on the Order Information as follows (with notice deemed given as indicated): (i) by personal delivery when delivered personally; (ii) by established overnight courier upon written verification of receipt; (iii) by facsimile transmission when receipt is confirmed orally; (iv) by certified or registered mail, return receipt requested, upon verification of receipt; or (v) by electronic delivery when receipt is confirmed orally.
You may not, without the prior written consent of Belly, assign the Agreement, in whole or in part, either voluntarily or by operation of law, and any attempt to do so will be a material default of the Agreement and will be void; provided, however, that in the event of a sale of substantially all of your assets or equity to a third party or any merger of your entity with an into a third party, this Agreement shall be deemed, without any further action on the part of any party, to automatically be assigned to and assumed by the acquirer in such transaction and as such, shall be binding on such acquirer. The Agreement will be binding upon and will inure to the benefit of the respective parties hereto, their respective successors in interest, legal representatives, heirs and assigns.
The Agreement is solely for the benefit of the parties and their successors and permitted assigns, and does not confer any rights or remedies on any other person or entity.
This Agreement may be changed by Belly upon posting an updated version of the Agreement at Belly’s website and/or within the applicable Belly Program, any such change to become effective 10 business days after posting such updated version of the Agreement as described above. The failure of either party to exercise or enforce any of its rights under the Agreement will not act as a waiver of subsequent breaches and the waiver of any breach will not act as a waiver of subsequent breaches.
If any provision of the Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be enforced to the maximum extent permissible under applicable law and the other provisions of the Agreement will remain in full force and effect.
Neither party shall be liable to the other if such party is prevented from performing any of its obligations under the Agreement (excluding fee payment obligations) due to any cause beyond the party’s reasonable control including, without limitation, an act of God, fire, flood, explosion, terrorism, war, embargo, government regulation, civil or military authority, acts or omissions of carriers, transmitters, providers, or acts of vandals, or hackers. The time for that party’s performance will be extended for the period of the delay or failure to perform due to such occurrence, except that you will not be excused from the payment of any sums of money owed by you to Belly provided prior to the force majeure event.
The Agreement will not be construed as creating or constituting a partnership, joint venture, or agency relationship between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
Each party will comply with all applicable laws, regulations, and ordinances relating to their performance hereunder.
The Agreement (including, without limitation, the Merchant Agreement and these Merchant Terms) constitute the entire agreement between Belly and you with respect to the subject matter hereof and all prior oral or written agreements, representations or statements with respect to such subject matter are superseded hereby.
Belly may, at its sole discretion from time to time, elect to make point adjustments for first-time member visits (such as, by way of example, offering members the opportunity to earn extra points in connection with the first visit to a given Merchant location). These adjustments are intended to encourage greater follow-up participation to your program. This feature is automatically enabled with the onboarding of your loyalty program; provided, however, that you may elect to opt out of this program by providing written notice of such opt-out to Belly.
The following terms shall, in addition to all of the other terms set forth in this Agreement, govern your use of Belly’s “Campaign” platform (the “Campaign Platform”), which, at a general level, allows you to communicate with Belly members.
You shall, as a condition to making any use of the Campaign Platform, be required to follow these rules:
1. You won’t send Spam! While you are responsible for making yourself of aware of current anti-SPAM and similar regulations that may be in effect from time to time, as a general rule, you should assume that if you send people mass email without their permission, you’re spamming.
2. You won’t violate Belly’s Acceptable Use guidelines, established below, as they may be in effect from time to time, which is part of this Agreement. If you violate any of these rules, Belly, in addition to any other rights or remedies that Belly may have hereunder or otherwise, may suspend or terminate your account.
3. In the event you have purchased a subscription which allows unlimited use of Campaign Platform, to the extent that Belly, in its sole discretion, determines that you are abusing the Campaign Platform, violating any law or regulation, violating the CAN-SPAM Act or any other e-mail regulation or otherwise abusing or misusing the Campaign Platform in any way, Belly shall, in addition to any other remedies available to Belly in this Agreement and/or at law, be entitled to unilaterally adjust your allowed use of the product.
You hereby agree and acknowledge that Belly may, from time to time, offer and administer a program currently referred to as the “Membership Status” program. Pursuant to such program, Belly members that are sufficiently active using the Belly Programs can achieve various levels of status. Belly shall have sole discretion in determining the activity required to obtain each of the status levels within the Membership Status program from time to time. Belly members that have achieved any such level of status may be entitled to receive discounts on points and/or other benefits across the entire Belly network, including without limitation at each of your locations. You hereby agree to honor all such discounts and recognize such status, except to the extent you have opted out of participation in the Belly Membership Status program by written notice.
You represent and warrant that your use of the Campaign Platform will comply with all applicable laws and regulations. You are responsible for determining whether Belly’s services are suitable for you to use in light of any regulations such HIPAA, GLB, EU Data Privacy Laws and/or other laws. If you are subject to regulations (such as HIPAA) and you use the Campaign Platform or any other Belly service, then Belly will not be liable if any such service does not meet those requirements.
You shall refrain from using the Campaign Platform to send anything offensive, to promote anything illegal, or to harass anyone. Not in limitation of the foregoing, you may not send:
1. Pornography or other sexually explicit Emails
2. Emails offering to sell illegal goods or services
3. Emails that violate CAN-SPAM Laws or any other applicable laws or regulations
Belly works hard to keep its system clean, but Belly also counts on its customers to pitch in. As such, you may not:
1. Send Spam (as noted above).
2. Share your password.
3. Use any of the Campaign Platform to create a competing product.
4. Import or incorporate any of this information into any lists, emails or uploads to our servers: Social Security numbers, passwords, security credentials, or sensitive personal information of any kind.
5. Send any messages through the Campaign Platform that are not appropriate for its intended use.
6. Use an outside unsubscribe process.