Terms & Conditions

Merchant Terms

1. General

During the length of the Merchant Agreement, Clearstone Communications Corp (hereinafter “Clearstone”) will provide the Spark 2 Loyalty services and/or programs (collectively, “Spark 2 Loyalty 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 Spark 2 Loyalty Programs and services.

2. Intellectual Property Rights.

(i) Clearstone is the sole and exclusive owner of all right, title and interest in and to any data provided to Clearstone by your customers or any end user to Clearstone in connection with the Spark 2 Loyalty 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) Clearstone owns all right, title and interest in and to the Spark 2 Loyalty 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 Spark 2 Loyalty Programs, intellectual property or ideas, algorithms, file formats, programming, or interoperability interfaces underlying or such intellectual property.

(iii) Clearstone hereby grants to you a limited, non-transferable, non-exclusive, revocable license to access and use Clearstone’s hosted Merchant Web Portal (the “Portal”) for internal business purposes so long as your account with Clearstone remains current and active. If Clearstone 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 Clearstone. You shall refrain from permitting any third party to use your password or otherwise access the Portal. Clearstone 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 Clearstone account is otherwise terminated for any reason.

(iv) Without limiting any of Clearstone’s rights set forth in the Agreement, Clearstone 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 Spark 2 Loyalty or Clearstone website, any portion of the Spark 2 Loyalty Program, and/or within any print materials, including without limitation any information and/or content that, in Clearstone’s view, contains content or links which do not meet Clearstone’s specifications or requirements. In addition, Clearstone shall be entitled, in its sole discretion and without notice to any party, to redesign and/or modify all or any portion of the Spark 2 Loyalty Program (including without limitation any mobile application and/or software) at any time.

3. Restrictions.

You: (i) will use the Spark 2 Loyalty 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 Spark 2 Loyalty 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 Spark 2 Loyalty Programs, (c) copy any tangible versions of the Spark 2 Loyalty Programs, or (d) remove from any of the Spark 2 Loyalty Programs any language or designation indicating the confidential nature thereof or the proprietary rights of Clearstone. In addition, you will not export, re-export or permit any third party to export or re-export, directly or indirectly, the Spark 2 Loyalty Programs where such export or re-export is prohibited by applicable law without appropriate licenses and clearances. Clearstone retains the right, in its sole discretion but without any obligation on the part of Clearstone to monitor or evaluate any communications, to approve, modify or refuse any Clearstone-related communications or proposed communications or messages to your customers or any Clearstone end users.

4. Fees; Pricing and Payment Terms; Taxes.

(i) Clearstone’s current fees for the Spark 2 Loyalty Programs and its services are set forth in the Merchant Agreement. Clearstone reserves the right to amend the fees payable for the Spark 2 Loyalty 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 Clearstone, you are providing Clearstone 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, Clearstone 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. Clearstone 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 Spark 2 Loyalty Programs.

(iv) Notwithstanding anything herein to the contrary, Clearstone, in its sole discretion, may suspend or terminate the Agreement and corresponding access and right to use all or any portion of the Spark 2 Loyalty 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 Clearstone to collect any unpaid amounts owed by you.

5. Term; Termination; Survival.

The Spark 2 Loyalty 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 Spark 2 Loyalty features through your Portal. When you make changes through your Portal, you are providing explicit authorization for Clearstone to process payment on your existing Spark 2 Loyalty 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 March 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 Clearstone is otherwise notified of a cancellation in writing. Although Clearstone may choose to send a reminder email prior to charging a customer for a renewal fee, Clearstone 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 Clearstone within thirty (30) days of the Installation Date, be entitled to have the Spark 2 Loyalty hardware uninstalled. In order to qualify for your Money–Back–Guarantee, we simply require that you speak to your Account Manager to set up your program and enroll a minimum of 25 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 Clearstone’s receipt of the Spark 2 Loyalty hardware, Clearstone 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 Spark 2 Loyalty 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 Clearstone. 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 Clearstone 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 Clearstone may choose to send a reminder email prior to charging a customer for a renewal fee, Clearstone 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 Spark 2 Loyalty 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 Clearstone. 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, Clearstone may terminate the Agreement and/or your access to one or all Spark 2 Loyalty Programs in the event you fail to remain current in all fees due and owing to Clearstone or in the event you breach any of your obligations under the Agreement. Clearstone will cease to collect the monthly subscription fee at the point in time in which Clearstone has received your returned Spark 2 Loyalty hardware.

In the event of any termination of the Agreement or any Spark 2 Loyalty Program, Clearstone shall be entitled to send e-mail, mobile SMS text and/or other communications to some or all of your loyalty program members, notifying each such member of your termination of the Spark 2 Loyalty Program. In addition to the foregoing permissible e-mail, Clearstone shall be entitled to take other actions, at its discretion, to assist your loyalty program members in protecting the points earned within the Spark 2 Loyalty Program and providing them an opportunity to redeem points earned.

In addition, all items in the Spark 2 Loyalty hardware kit (including but not limited to the tablet, the stand and the security tether) must be returned to Clearstone in specified return packaging provided by Clearstone. If you were not previously provided with specified return packaging, Clearstone 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 Spark 2 Loyalty hardware kit is not returned, Clearstone will charge you for the cost of the item not returned. Clearstone will prorate the last monthly subscription fee based on the date the Spark 2 Loyalty hardware kit is received by Clearstone. You may be required to fill out an exit survey in order to complete any cancellation request. Clearstone 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 Spark 2 Loyalty hardware kit must be returned to Clearstone 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.

6. Representations and Warranties; Disclaimer.

(i) Clearstone warrants that Clearstone has the authority to enter into this Agreement.

(ii) You represent, warrant and covenant to Clearstone that: (a) you have the authority to enter into this Agreement; (b) you will take proper care of the Spark 2 Loyalty harware kit and/or all equipment provided by Clearstone to you and maintain all such equipment in good working order; (c) you will only use the Spark 2 Loyalty 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 Spark 2 Loyalty Program to send any SMS text, e-mail or other communications which violate any applicable regulation, rule, industry protocol or law (including, without limitation, the CAN-SPAM Act).

(iii) Short Codes. You acknowledge that the maintenance and preservation of the designated numeric code utilized by Clearstone, Clearstone’s employees, independent contractors and/or licensors/licensees (hereinafter “Short Code”) is of the utmost importance to Clearstone and the owner of the Short Code. You acknowledge further that any misuse by You or by Your customer/client would result in irreparable harm to Clearstone and the owner of the Short Code. You covenant and agree to refrain from, and make all available efforts to prevent any of Your customers/clients and/or any other entities or individuals from, the following activities utilizing the Short Code:

(a) sending any transmissions to any person or entity without receiving the prior consent of the person or entity;

(b) sending any transmissions to any person or entity without first receiving an “Opt-In” communication from the person or entity;

(c) sending any transmissions to any person or entity who expresses their/its desire to discontinue receiving any communications (or “Opts-Out”);

(d) violating any law and/or any carrier rules concerning short codes; and

(e) sending any transmissions which contain pornographic material, content concerning the use of illegal firearms, content concerning illegal goods or services, content concerning illegal drugs and related products, content concerning the use of tobacco products, and any other content which Clearstone and/or the owner of the Short Code may prohibit from time to time.

(iv) Short Code Misuse. Your right to utilize the Short Code may be revoked in the event that Your use of the Short Code is determined by Clearstone or the owner of the Short Code to be in violation of this Agreement, violation of any law(s) and/or a violation of any agreements between the Short Code owner and a wireless carrier. Indirect or attempted violations, and actual or attempted violations by Your customers/clients or a third party on Your behalf, shall be considered a violation by You. In addition to the other remedies available to Clearstone or the Short Code owner within this Agreement, Clearstone and the Short Code owner reserve the right to strictly enforce this Agreement by, without limitation, suspending or terminating use of the Short Code prior to actively investigating a violation.

(v) Terms of Use, Privacy Policy and Sweepstake Offers. You acknowledge and agree that any information provided to You by Clearstone or posted on the Clearstone Webpage, including, but not limited to, the Terms of Use and Privacy Policy utilized by Clearstone on its website, is provided for information and/or convenience purposes only and Clearstone makes no warranties or representations as to the contents of the Terms of Use and/or Privacy Policy. You must make your own determination as to the information’s applicability to You and the protection afforded by the Terms of Use and Privacy Policy based on Your specific business relationships. You acknowledge and agree that the Clearstone Services do not include any services associated with sweepstake offers, and the like, and that You must make Your own determination regarding the terms and laws associated with any sweepstakes offered by You and/or Your customers/clients.

(vi) EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 6, Clearstone 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, Clearstone DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AS TO ANY MINIMUM LEVEL OF UPTIME FOR THE SPARK 2 LOYALTY PROGRAM OR THE RESULTS THAT YOU MAY ACHIEVE ON ACCOUNT USING ANY SPARK 2 LOYALTY PROGRAM OR SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU EXPRESSLY AGREE THAT THE USE OF SPARK 2 LOYALTY PROGRAMS OR SERVICES AND THE INTERNET IS AT YOUR SOLE RISK. SPARK 2 LOYALTY PROGRAMS AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND UNDER NO CIRCUMSTANCES SHALL Clearstone BE LIABLE TO YOU OR ANY OTHER PARTY ON ACCOUNT OF ANY DOWNTIME WITHIN ANY SPARK 2 LOYALTY PLATFORM OR APPLICATION. YOU HEREBY ACKNOWLEDGE THAT YOU ARE SOLELY RESPONSIBLE FOR OBTAINING AND/OR PROVIDING INTERNET SERVICE TO ALL LOCATIONS IN WHICH THE SPARK 2 LOYALTY PROGRAMS ARE TO OPERATE.

7. Confidential Information.

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 Clearstone. 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.

8. Dispute Resolution; Governing Law.

In the event of a reward dispute or mistake between a Merchant and User, Clearstone may in its sole discretion and without liability of any kind unilaterally make adjustments to User reward points (it being understood that Clearstone 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 Pennsylvania and you expressly agree to the exclusive jurisdiction for any claim or dispute with Clearstone in the federal and state courts within the jurisdiction of the closest United States District Court to Philadelphia, Pennsylvania. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the Agreement.

9. Indemnification.

You will defend, indemnify, and hold Clearstone 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 Spark 2 Loyalty Program or otherwise related in any way to any Spark 2 Loyalty Program, your unauthorized use or misuse of the Spark 2 Loyalty Programs or any unauthorized combination of any Spark 2 Loyalty Program with any hardware, software, products, data or other materials not specified or provided by Clearstone.

10. Limitation of Liability.

Clearstone’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 Clearstone 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 Clearstone 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 Spark 2 Loyalty Program, however caused and regardless of theory of liability. In addition, Clearstone will not be liable for damage (physical or otherwise) incurred by you upon any asset or property from the installation or removal of any Clearstone Spark 2 Loyalty 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.

11. Notice.

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.

12. Assignment.

You may not, without the prior written consent of Clearstone, 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.

13. No Third Party Beneficiaries.

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.

14. Amendment; Waiver.

This Agreement may be changed by Clearstone upon posting an updated version of the Agreement at Clearstone’s Spark 2 Loyalty website and/or within the applicable Spark 2 Loyalty 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.

15. Severability.

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.

16. Force Majeure.

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 Clearstone provided prior to the force majeure event.

17. Independent Contractor.

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.

18. Compliance with Laws.

Each party will comply with all applicable laws, regulations, and ordinances relating to their performance hereunder.

19. Entire Agreement.

The Agreement (including, without limitation, the Merchant Agreement and these Merchant Terms) constitute the entire agreement between Clearstone 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.

20. Goal Gradient Loyalty Participation

Clearstone 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 Clearstone.

21. Texting Platform Terms of Use

The following terms shall, in addition to all of the other terms set forth in this Agreement, govern your use of the Spark 2 Loyalty SMS text messaging platform (the “Texting Platform”), which, at a general level, allows you to communicate with Spark 2 Loyalty members.

General Rules

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 Clearstone’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, Clearstone, in addition to any other rights or remedies that Clearstone 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 Texting Platform, to the extent that Clearstone, in its sole discretion, determines that you are abusing the Texting Platform, violating any law or regulation, violating the CAN-SPAM Act or any other e-mail regulation or otherwise abusing or misusing the Texting Platform in any way, Clearstone shall, in addition to any other remedies available to Clearstone in this Agreement and/or at law, be entitled to unilaterally adjust your allowed use of the product.

Compliance with Laws

You represent and warrant that your use of the Texting Platform will comply with all applicable laws and regulations. You are responsible for determining whether Clearstone’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 Texting Platform or any other Clearstone service, then Clearstone will not be liable if any such service does not meet those requirements.

Acceptable Use

You shall refrain from using the Texting 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 content

2. Texts offering to sell illegal goods or services

3. Texts that violate CAN-SPAM Laws or any other applicable laws or regulations

Acceptable Use – Prohibited Actions

Clearstone works hard to keep its system clean, but Clearstone 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 Texting 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 Texting Platform that are not appropriate for its intended use.

6. Use an outside unsubscribe process.

List of Carriers Support by the Texting Platform

AT&T

Sprint

Verizon Wireless

U.S. Cellular®

T-Mobile

Cellular One Dobson

Cincinnati Bell

Alltel

Virgin Mobile USA

Cellular South

Unicel

Centennial

Ntelos

Metro PCS