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12.1 Notices
All notices, demands, requests or other communications that may be or are required to be given, served or sent by any party to any other party pursuant to this contract shall be in writing and shall be sent by courier service or mailed by registered or certified mail, return receipt requested, postage prepaid, or transmitted by facsimile or email, addressed to the other party as set forth in Section 15.
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12.1.1 Changes
Each party may disignate by notice in writing a new address to which any notice, demand, request for communication may thereafter be so given, served or sent, or additional persons or addresses for notice.
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12.1.2 Deliver
Each notice, demand, request or communication sent in the manner described above shall be deemed received at the time shown on the delivery receipt if delivered by courier service; three days after being mailed if sent by registered or certified mail, return receipt requested; at the time shown on the sender's confirmation of sending notice (if sent by facsimile); or at the time sent by email; provided that any notice of breach or termination, or any demand for indemnification, that is sent via facsimile or email must also be sent promptly by courier service or registered or certified mail, as described in Section 12.1.
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12.2 Effectiveness of Email Communications
Any notice or contract called for by this contract to be in writing, other than notices of breach or termination, or demands for indemnification, shall be effective if sent by email from an address at the sending party's domain to an individual designated by the other party for receipt of such notices, at the email address provided by the other party, and need not be sent by any other method.
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12.3 Severability
If any term, provision, covenant or restriction of this contract is held by a court of competent jurisdiction or other authority to be invalid, void, unenforceable or against regulatory policy, the remainder of the terms, provisions, covenants and restrictions of this contract shall remain in full force and effect to the maximum extent permitted by law and shall in no way be affected, impaired or invalidated.
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12.4 Relationship between Parties
The parties agree that each of them is an independent contractor with respect to the other. Neither party is an express or implied agent of the other, has authority to assume or create any obligation, express or implied, on behalf of the other party, or has authority to represent the other party as agent, employee, or in any other capacity; and neither party will make any representation to the contrary.
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12.5 Use of Customer Data by RewardPads
RewardPads reserves the right to gather and store data regarding Merchant's customers who sign up for RewardPads Services, interact with Merchant's Loyalty Program through the Tablet, Kiosks, RewardPads Apps, Merchant's Facebook page or other Program Sites, or respond to Merchant's Coupons or Campaigns ("Merchant's Customers"). Such data may include the Merchant's Customer's use of Merchant's Loyalty Program and responses to Coupons or Campaigns, including (i) the personal information submitted by Merchant's Customers (e.g., telephone number, email address, zip code, birthdate or other registration information ("Customer Personal Information"); optional information such as name, gender and other information) and (ii) such customers' responses to Coupons and Campaigns (whether from Merchant or another client of RewardPads), enrollment in Loyalty Programs (of Merchant and/or other RewardPads clients) and accrued visits, purchases from Merchant and other RewardPads clients, and other habits of such customers. Merchant acknowledges that all such customer data is owned exclusively by RewardPads. RewardPads may use such information to generate reports and analysis based on such data, including pattern recognition and benchmarking against data from other clients of RewardPads and their customers and other information available from third parties. Information about Merchant's Customers gathered by RewardPads may also be used by RewardPads for contacting, including marketing to, Merchant's Customers or allowing others to do so. If RewardPads uses information about individuals that is gleaned solely from one or more other client's participation in RewardPads Services and from publicly available sources (including commercially available mailing lists), such individuals shall not be considered Merchant's Customers for purposes of the preceding sentence, whether or not they are also customers of Merchant.
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12.6 Use of Customer Data by Merchant
Merchant may not store data, including but not limited to name, email address or other Customer Personal Information (as defined in Section 12.5), regarding Merchant's Customers obtained through the use of the Services. Merchant may use data relating to Merchant's Customers obtained through the use of the Services solely to market Merchant's goods and services to Merchant's Customers through the Services. Merchant will not provide any information obtained through the use of the Services, including any information that would personally identify, or facilitate personal contact with, any Merchant Customer (e.g., name, email, telephone number, zip code, birthdate, gender or other identifying information) to any third party other than (i) to an acquirer in the event of a sale or merger of Merchant's business, provided that the acquirer agrees to maintain and use such data regarding Merchant's Customers in accordance with the Privacy Policy, (ii) as necessary to fulfill an order for such customer, (iii) to service providers to Merchant who need to know such information and are obligated to keep it confidential, or (iv) if required by law or subpoena, in response to an inquiry from law enforcement authorities or if Merchant believes the release of such information is necessary to address or prevent illegal or harmful activity.
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12.7 User IDs and Passwords
Merchant's use of RewardPads Services, including Merchant Portal, will be controlled by user IDs and passwords, in accordance with RewardPads access policies in effect from time to time. Merchant understands and agrees that RewardPads will provide access to Merchant's information, in accordance with access levels and controls offered by RewardPads, to anyone using an active user ID and password combination selected by Merchant and associated with the appropriate level of access, and that RewardPads will rely on all messages and may post all Coupons and Campaigns sent using active user IDs and passwords assigned to Merchant with the appropriate level of access. Merchant will be responsible for selecting secure passwords and for safeguarding all user IDs and passwords. Merchant will notify RewardPads in writing of any user IDs and/or passwords that may have been compromised or that Merchant wishes to terminate or change for any reason.
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12.8 Use of Chat Facilities
RewardPads may provide, as part of the Services, discussion blogs, bulletin board services, chat rooms and/or other means of communication for use by RewardPads, Merchant, other clients of RewardPads and possibly by third parties such as operators of Program Sites (collectively, "Chat Facilities"), but RewardPads is under no obligation to provide any Chat Facilities. If RewardPads does provide Chat Facilities, Merchant acknowledges that such facilities are not for private communications, that all other persons with access to such Chat Facilities may read any of Merchant's communications posted there, that RewardPads does not control or endorse the messages posted by users and that RewardPads disclaims any responsibility or liability for any messages posted on the Chat Facilities or any action taken as a result of such messages. Merchant agrees that its use of, and any reliance on, the Chat Facilities or any messages posted on them is at Merchant's own risk. Any message posted to the Chat Facilities by Merchant will be treated by RewardPads as non-confidential. Merchant hereby consents to RewardPads posting of all such messages, with or without attribution to Merchant, to any and/or all Chat Facilities and for any other lawful purposes, such as advertising, promoting or enhancing the Services. Such consent shall be irrevocable and shall apply to all forms of media and transmission, whether now existing or created in the future. All submissions by Merchant to Chat Facilities will be subject to Merchant's representations, warranties and covenants of non-infringement and no Inappropriate Content, as set forth in Section 7.6. RewardPads may refuse to post any message or may remove any message of Merchant or any third party at any time, at RewardPads sole determination, without any obligation or explanation.
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12.9 Marketing
RewardPads reserves the right to use Merchant's name in promotional, marketing and presentation materials for the purpose of marketing RewardPads Services and promoting RewardPads, and in communications with investors and prospective investors and with third parties with which RewardPads does, or seeks to do, business. Merchant agrees that the Tablet(s), Kiosk(s), RewardPads Apps, RewardPads websites, and all Program Sites may bear a logo, tag line and/or other message attesting to RewardPads role in offering the Services (e.g., "Powered by RewardPads") may disclaim any responsibility of RewardPads for Merchant's products, services or communications, and may contain other information regarding the respective responsibilities of Merchant and RewardPads.
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12.10 No Waiver, Amendment
The failure of either party to exercise in any respect any right or remedy provided for herein shall not be deemed a continuing waiver or a waiver, partial or complete, of any future breach or any other right or remedy hereunder. This contract may be amended only in a writing that is accepted by the party to be bound thereby.
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12.11 Force Majeure
Except for each party's payment obligations, neither party shall be liable under, or in default of, this contract for failure to perform its obligations under this contract if such failure arises out of causes beyond such party's reasonable control and without its fault or negligence. Such causes or conditions include, but are not be limited to, acts of God, terrorism, acts of a government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, shortages of labor or materials, freight embargoes, unusually severe weather, electrical power failures, telecommunications or internet outages, riots, or wars.
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12.12 Entire Contract; Assignment
This contract constitutes the entire contract and supersedes all prior contracts and understandings, both written and oral, among the parties, with respect to the subject matter hereof. This contract is binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns.