Whisqr Business Subscriber Terms of Service

1. ATTENTION

THE FOLLOWING TERMS AND CONDITIONS WILL BE LEGALLY BINDING ON CUSTOMER UPON EXECUTION OF THE WHISQR BUSINESS SUBSCRIBER SERVICES AGREEMENT. YOU SHOULD CAREFULLY READ THE FOLLOWING TERMS OF SERVICE BEFORE SUBSCRIBING TO A WHISQR PAID SERVICE.

2. Terms of Service.

Customer acknowledges and agrees to the following terms of service, which together with the terms of the Whisqr Subscription Services Agreement entered into between Customer and Whisqr, shall govern Customer’s access and use of the Service (the “Agreement”). Capitalized terms not otherwise defined herein shall have the meaning given to them in Section 9 (Definitions) below. In addition, Customer agrees that unless explicitly stated otherwise, any new features that augment or enhance the Service, and/or any new service(s) subsequently procured by the Customer will be subject to this Agreement.

2.1. Customer Must Have Internet Access.

DSL, cable or another high speed Internet connection is required for proper transmission of the Service. Customer is responsible for procuring and maintaining the network connections that connect the Customer network to the Service, including, but not limited to, "browser" software that supports protocol used by Whisqr, including Secure Socket Layer (SSL) protocol or other protocols accepted by Whisqr, and to follow logon procedures for services that support such protocols. Whisqr is not responsible for notifying Customer of any upgrades, fixes or enhancements to any such software, or for any compromise of data transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned or operated by Whisqr. Whisqr assumes no responsibility for the reliability or performance of any connections as described in this Section.

2.2. Customer Must Have QR Code scanning capable device or devices.

Customer must have a mobile phone, tablet, laptop (with webcam) or desktop (with webcam). Mobile phone or tablet must have built in camera and be able to install a bar code [QR Code] scanning app (e.g. Android, iOS, Blackberry). Desktop or laptop computer must have a webcam and bar code [QR Code] scanning software. Whisqr provides links to popular scanning programs for popular platforms. Whisqr will also provide scanning software designed specifically for Whisqr sometime in the near future.

2.3. Users: Passwords, Access, And Notification.

Customer shall authorize access to each Employee who requires the ability to Punch Cards, Redeem Rewards, or administrate the Loyalty Program. Employee logins are for designated Employees and cannot be shared or used by more than one Employee, but any Administrator can grant access to Employees to the Loyalty Program. Each Employee will be responsible for the confidentiality and use of that Employee's password. Customer will also be responsible for all Electronic Communications, including those containing business information, account registration, account holder information, financial information, Customer Data, and all other data of any kind contained within emails or otherwise entered electronically through the Service or under Customer’s account. Whisqr will act as though any Electronic Communications it receives under Customer’s passwords and/or email address will have been sent by Customer. Customer shall use commercially reasonable efforts to prevent unauthorized access to or use of the Service and shall promptly notify Whisqr of any unauthorized access or use of the Service and any loss or theft or unauthorized use of any Employee's password or name.

2.4. Customer’s Lawful Conduct.

The Service allows Customer to send Electronic Communications directly to Whisqr and to third parties. Customer shall comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with its use of the Service, including without limitation those related to privacy, electronic communications and anti-spam legislation. Customer is responsible for ensuring that its use of the Service to store or process credit card data complies with applicable Payment Card Industry Data Security Standards (“PCI DSS”) requirements and shall store credit card and social security data only in the designated fields for such data. Customer shall comply with the export laws and regulations of the United States and other applicable jurisdictions in using the Service and obtain any permits, licenses and authorizations required for such compliance. Without limiting the foregoing, (i) Customer represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, (ii) Customer shall not permit Users to access or use the Service in violation of any U.S. export embargo, prohibition or restriction, and (iii) Customer shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which its Users are located. Customer will not send any Electronic Communication from the Service that is unlawful, harassing, libelous, defamatory or threatening. Except as permitted by this Agreement, no part of the Service may be copied, reproduced, distributed, republished, displayed, posted or transmitted in any form or by any means. Customer agrees not to access the Service by any means other than through the interfaces that are provided by Whisqr. Customer shall not do any "mirroring" or "framing" of any part of the Service, or create Internet links to the Service which include log-in information, user names, passwords, and/or secure cookies. Customer will not in any way express or imply that any opinions contained in Customer’s Electronic Communications are endorsed by Whisqr. Customer shall ensure that all access and use of the Service by Users is in accordance with the terms and conditions of this Agreement, including but not limited to those Users that are contractors and agents, and Customer’s Affiliates. Any action or breach by any of such contractors, agents or Affiliates shall be deemed an action or breach by Customer and Customer waives all of those defenses that Customer may have as to why Customer should not be liable for Customer’s contractors’, agents’ or Affiliates' acts, omissions and noncompliance with this Agreement.

2.5. Third Party Web Sites, Products and Services.

Whisqr does depend on third party applications to scan QR codes. Whisqr has no financial relationship with any of the bar code scanning software products that we may recommend. Whisqr does not warrant any such Third Party Applications. Any procurement by Customer of any Third Party Application is solely between Customer and the applicable third party provider. Whisqr is not responsible for any aspect of such Third Party Applications, or any descriptions, promises or other information related to the foregoing. Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider. Whisqr will eventually replace the suggested 3rd party code scanners with a custom application at some future date.

There are no other applications which Whisqr will ask Customer to install; and Whisqr does not link to any other 3rd party websites or market 3rd party products or services.

2.6. Transmission of Data.

Customer understands that the technical processing and transmission of Customer’s Electronic Communications is fundamentally necessary to use of the Service. Customer expressly consents to Whisqr’ interception and storage of Electronic Communications and/or Customer Data, and Customer acknowledges and understands that Customer’s Electronic Communications will involve transmission over the Internet, and over various networks, only part of which is operated by Whisqr. Customer further acknowledges and understands that Electronic Communications may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone or other electronic means. Whisqr is not responsible for any Electronic Communications and/or Customer Data which are delayed, lost, altered, intercepted or stored during the transmission of any data whatsoever across networks not owned and/or operated by Whisqr, including, but not limited to, the Internet and Customer’s local network.

2.7. Service Level.

During the Term, the Whisqr will meet the service level specified in the “Service Level Commitment” listed on Schedule I hereto, which is hereby incorporated by reference. If the applicable Service fails to achieve the service level, then Customer will be entitled, as its sole and exclusive remedy, to a credit for the applicable Service in accordance with the terms set forth in the Service Level Commitment. The respective Service’s system logs and other records shall be used for calculating any service level events.

2.8. Whisqr Support.

As part of the Paid Service, Whisqr will provide Customer with Help Documentation and other online resources to assist Customer in its use of the Service. Whisqr also offers telephone support services. If you have procured Whisqr Business Subscription Package, the current Whisqr URL Terms for support services are located at http://blanc.whisqr.com/termsofservice, or such other URL as specified by Whisqr, which are hereby incorporated by reference. Customer acknowledges that Whisqr has extensive experience helping Customers improve utilization and realization of benefits of the Service, and that not following the advice of Whisqr and/or not engaging Whisqr in the provision of professional services may substantially limit Customer’s ability to successfully utilize the Service or to enjoy the power and potential of the Service.

2.9. Security.

Whisqr shall maintain reasonable administrative, physical and technical safeguards for the protection, confidentiality and integrity of Customer Data. During the Term, Whisqr shall maintain PCI DSS compliance for the portions of the Whisqr Service that store and process credit card data and shall ensure performance of an annual SSAE 16 (SOC 1) / ISAE 3402 Type II Report*. No more than once per year, Customer may request a copy of Whisqr’ final SSAE 16 (SOC 1) / ISAE 3402 Type II Report* that covers the prior calendar year. *or similar third party audit to an established industry standard selected by Whisqr.

2.10. Confidentiality.

For purposes of this Agreement, “Confidential Information” shall include the terms of this Agreement, Customer Data, each party’s proprietary technology, business processes and technical product information, designs, issues, all communication between the Parties regarding the Service and any information that is clearly identified in writing at the time of disclosure as confidential. Notwithstanding the foregoing, Confidential Information shall not include information which: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the Receiving Party; (4) the Receiving Party becomes aware of from a third party not bound by non-disclosure obligations to the Disclosing Party and with the lawful right to disclose such information to the Receiving Party; or (5) is aggregate data regarding use of Whisqr’ products and services that does not contain any personally identifiable or Customer-specific information.

Each party agrees: (a) to keep confidential all Confidential Information; (b) not to use or disclose Confidential Information except to the extent necessary to perform its obligations or exercise rights under this Agreement or as directed by Customer; (c) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information, including but not limited to inputting credit card data and social security numbers only in the fields designated for such data in the Service) and to make Confidential Information available to authorized persons only on a “need to know” basis. Either party may disclose Confidential Information on a need to know basis to its contractors and service providers who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services in connection with the performance of this Agreement. Notwithstanding the foregoing, this Section will not prohibit the disclosure of Confidential Information to the extent that such disclosure is permitted by law or order of a court or other governmental authority or regulation.

2.11. Ownership of Customer Data.

As between Whisqr and Customer, all title and intellectual property rights in and to the Customer Data is owned exclusively by Customer. Customer acknowledges and agrees that in connection with Service, Whisqr as part of its standard Service offering makes daily backup copies of the Customer Data in Customer’s account and stores and maintains such data for a period of time consistent with Whisqr standard business processes, which period shall not be less than one year.

2.12. Whisqr Intellectual Property Rights.

Customer agrees that all rights, title and interest in and to all intellectual property rights in the Service are owned exclusively by Whisqr or its licensors. Except as provided in this Agreement, the license granted to Customer does not convey any rights in the Service, express or implied, or ownership in the Service or any intellectual property rights thereto. In addition, Whisqr shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, and perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Loyalty Card users, relating to the operation of the Service. Any rights not expressly granted herein are reserved by Whisqr. Whisqr and OpenAir service marks, logos and product and service names are marks of Whisqr or OpenAir, respectively (the "Whisqr Marks"). Customer agrees not to display or use the Whisqr Marks in any manner without Whisqr’ express prior written permission. The trademarks, logos and service marks of Third Party Application providers ("Marks") are the property of such third parties. Customer is not permitted to use these Marks without the prior written consent of such third party which may own the Mark.

2.13. U.S. Federal Government End User Provisions.

If User is the US Federal Government, Whisqr provides the Service, including related software and technology, in accordance with the following: Government technical data and software rights related to the Service include only those rights customarily provided to the public as defined in this Agreement. This customary license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Whisqr to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.

2.14. Dispute Resolution.

Each party agrees that before it or any employee, agent or representative of the party files a claim or suit with a federal or state agency or court or other public forum, it shall provide thirty (30) days prior written notice to the other and that, within such thirty (30) day period (or longer, if extended by mutual desire of the parties), authorized representatives of the parties shall meet (or confer by telephone) at least once in a good faith attempt to resolve the perceived dispute.

3. Warranties

3.1. Warranty of Functionality.

Whisqr warrants that:

(i) the Service will achieve in all material respects the functionality described in the Help Documentation applicable to the Service procured by Customer, and

(ii) such functionality of the Service will not be materially decreased during the Term. Customer’s sole and exclusive remedy for Whisqr’ breach of this warranty shall be that Whisqr shall be required to use commercially reasonable efforts to modify the Service to achieve in all material respects the functionality described in the Help Documentation and if Whisqr is unable to restore such functionality, Customer shall be entitled to terminate the Agreement and receive a prorata refund of the subscription fees paid under the Agreement for its use of the Service for the terminated portion of the Term. Whisqr shall have no obligation with respect to a warranty claim unless notified of such claim within sixty (60) days of the first instance of any material functionality problem, and such notice must be sent to billing@whisqr.com. The warranties set forth in this Section 3.1 are made to and for the benefit of Customer only. Such warranties shall only apply if the applicable Service has been utilized in accordance with the Help Documentation, this Agreement and applicable law.

3.2. No Virus Warranty.

Whisqr warrants that the Service will be free of viruses, Trojan horses, worms, spyware, or other such malicious code (“Malicious Code”), except for any Malicious Code contained in Customer-uploaded attachments or otherwise originating from Customer.

4. Disclaimer of Warranties.

EXCEPT AS STATED IN SECTION 3 ABOVE, WHISQR DOES NOT REPRESENT THAT CUSTOMER’S USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR THAT ALL ERRORS IN THE SERVICE AND/OR DOCUMENTATION WILL BE CORRECTED OR THAT THE OVERALL SYSTEM THAT MAKES THE SERVICE AVAILABLE (INCLUDING BUT NOT LIMITED TO THE INTERNET, OTHER TRANSMISSION NETWORKS, AND CUSTOMER’S LOCAL NETWORK AND EQUIPMENT) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE WARRANTIES STATED IN SECTION 3 ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY WHISQR. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. EXCEPT AS STATED IN SECTIONS 2.7, 3.1, and 3.2 ABOVE, THE SERVICE IS PROVIDED TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND IS FOR COMMERCIAL USE ONLY. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICE OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES.

5. Limitations of Liability.

CUSTOMER AGREES THAT THE CONSIDERATION WHICH WHISQR IS CHARGING HEREUNDER DOES NOT INCLUDE CONSIDERATION FOR ASSUMPTION BY WHISQR OF THE RISK OF CUSTOMER’S INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR LOST PROFITS OR REVENUE OR FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, COVER, SPECIAL, RELIANCE OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND HOWEVER CAUSED, WHETHER FROM BREACH OF WARRANTY, BREACH OR REPUDIATION OF CONTRACT, NEGLIGENCE, OR ANY OTHER LEGAL CAUSE OF ACTION FROM OR IN CONNECTION WITH THIS AGREEMENT (AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES TO THE MAXIMUM EXTENT PERMITTED BY LAW) OR OTHERWISE SHALL IN NO EVENT EXCEED THE DIRECT DAMAGE LIMITATIONS AS SET FORTH IN SECTION 5.

Except with regard to amounts due under this Agreement, and a party’s breach of Section 2.10 (Confidential Information), the maximum liability of either party to any person, firm or corporation whatsoever arising out of or in the connection with any license, use or other employment of the Service, whether such liability arises from any claim based on breach or repudiation of contract, breach of warranty, negligence, tort, statutory duty, or otherwise, shall in no case exceed the equivalent of 12 months in subscription fees applicable at the time of the event, and in the event of a breach of Section 2.10 (Confidential Information) of this Terms of Service, such maximum liability of either party shall be an amount equal to three (3) times the equivalent of 12 months of subscription fees applicable at the time of the event. Notwithstanding the previous sentence, neither party shall be liable to the other party to the extent such liability would not have occurred but for the other party’s failure to comply with the terms of this Agreement The essential purpose of this provision is to limit the potential liability of the parties arising from this Agreement. The parties acknowledge that the limitations set forth in this Section are integral to the amount of fees charged in connection with making the Service available to Customer and that, were Whisqr to assume any further liability other than as set forth herein, such fees would of necessity be set substantially higher.

THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION SHALL NOT APPLY TO EITHER PARTY’S INDEMNITY OBLIGATIONS EXCEPT AS SET FORTH IN SECTION 6 BELOW. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitations of liability for incidental or consequential damages, so the exclusions set forth above may not apply to Customer.

6. Indemnification.

6.1. Infringement.

Whisqr shall, at its own expense and subject to the limitations set forth in this Section 6, defend Customer from and against any and all allegations, threats, claims, suits, and proceedings brought by third parties alleging that the Service, as used in accordance with this Agreement, infringes third party copyrights, trade secrets or trademarks (collectively “Claims”) and shall hold Customer harmless from and against liability, damages, and costs finally awarded or entered into in settlement (including, without limitation, reasonable attorneys’ fees) (collectively, “Losses”) to the extent based upon such a Claim.

Excluded from the above indemnification obligations are Claims to the extent arising from (a) use of the Service in violation of this Agreement or applicable law, (b) use of the Service after Whisqr notifies Customer to discontinue use because of an infringement claim, (c) modifications to the Service not made by Whisqr, or (d) use of the Service in combination with any software, application or service made or provided other than by Whisqr.

If a Claim is brought or threatened, Whisqr shall, at its sole option and expense, use commercially reasonable efforts either (a) to procure a license that will protect Customer against such Claim without cost to Customer; (b) to modify or replace all or portions of the Service as needed to avoid infringement, such update or replacement having substantially similar or better capabilities; or (c) if (a) and (b) are not commercially feasible, terminate the Agreement and refund to the Customer a pro-rata refund of the subscription fees paid for under the Agreement for the terminated portion of the Term. The rights and remedies granted Customer under this Section 6.1 state Whisqr’ entire liability, and Customer's exclusive remedy, with respect to any claim of infringement of the intellectual property rights of a third party.

6.2. Disclosure of Customer Data.

Whisqr shall, at its own expense and subject to the limitations set forth in this Section 6, defend Customer from and against any Claims that arise out of or result directly from Whisqr’ gross negligence or willful misconduct in preventing unauthorized access to confidential Customer Data, as determined by a court of competent jurisdiction in connection with a Claim alleging a breach of confidentiality, and shall hold Customer harmless from and against liability for any Losses to the extent based upon such Claims.

When Whisqr is at fault but such fault does not rise to the level of gross negligence or willful misconduct, Whisqr shall, at its own expense and subject to the limitations set forth in this Section 6 and the amount of liability set forth in Section 5 applicable in the event of a breach of Section 2.10, defend Customer from and against any Claims, and shall hold Customer harmless from and against liability for any Losses to the extent based upon Claims, arising out of or relating to Whisqr’ breach of Section 2.10 (Confidential Information) of this Terms of Service.

Provided that Whisqr complies with this Section 6.2, Customer shall be entitled as its sole and exclusive remedy to terminate the Agreement and receive a pro-rata refund of the subscription fees paid for under the Agreement for the terminated portion of the Term.

6.3. Customer’s Indemnity.

Customer shall, at its own expense and subject to the limitations set forth in this Section 6, defend Whisqr from and against any and all Claims (i) alleging that the Customer Data or any trademarks or service marks other than Whisqr Marks, or any use thereof, infringes the intellectual property rights or other rights, or has caused harm to a third party, or (ii) arising out of Customer’s breach of Section 2.4 (Customer’s Lawful Conduct) or 2.10 (Confidential Information) above and shall hold Whisqr harmless from and against liability for any Losses to the extent based upon such Claims.

6.4. Indemnification Procedures and Survival.

In the event of a potential indemnity obligation under this Section 6, the indemnified party shall: (i) promptly notify the indemnifying party in writing of such Claim; (ii) allow the indemnifying party to have sole control of its defense and settlement; and (iii) upon request of the indemnifying party, cooperate in all reasonable respects, at the indemnifying party’s cost and expense, with the indemnifying party in the investigation, trial, and defense of such Claim and any appeal arising therefrom. The indemnification obligations under this Section 6 are expressly conditioned upon the indemnified party’s compliance with this Section 6.4 except that failure to notify the indemnifying party of such Claim shall not relieve that party of its obligations under this Section 6 but such Claim shall be reduced to the extent of any damages attributable to such failure. The indemnification obligations contained in this Section 6 shall survive termination of this Agreement for one year.

7. Suspension/Termination.

7.1. Suspension for Delinquent Account.

Whisqr reserves the right to suspend Customer’s and any Customer Affiliates’ access to and/or use of the Business Subscriber Agreement for any accounts (i) for which any payment is due but unpaid but only after Whisqr has provided Customer two (2) delinquency notices, and at least thirty (30) days have passed since the transmission of the first notice, or (ii) for which Customer has not paid for the renewal term and has not notified Whisqr of its desire to renew the Service by the End Date of the then current term. The suspension is for the entire account and Customer understands that such suspension would therefore include Affiliate sub-accounts. Customer agrees that Whisqr shall not be liable to Customer or to any Customer Affiliate or other third party for any suspension of the Service pursuant to this Section 7.1.

7.2. Suspension for Ongoing Harm.

Customer agrees that Whisqr may with reasonably contemporaneous telephonic notice to Customer suspend access to the features of Service if Whisqr reasonably concludes that Customer’s Service is being used to engage in denial of service attacks, spamming, or illegal activity, and/or use of Customer’s Service is causing immediate, material and ongoing harm to Whisqr or others. In the extraordinary event that Whisqr suspends Customer’s access to the Service, Whisqr will use commercially reasonable efforts to limit the suspension to the offending portion of the Service and resolve the issues causing the suspension of Service. Customer further agrees that Whisqr shall not be liable to Customer nor to any third party for any suspension of the Service under such circumstances as described in this Section 7.2.

7.3. Termination for Cause, Expiration.

Either party may immediately terminate this Agreement and all Estimates/Order Forms issued hereunder in the event the other party commits a material breach of any provision of this Agreement which is not cured within thirty (30) days of written notice from the non-breaching party. Such notice by the complaining party shall expressly state all of the reasons for the claimed breach in sufficient detail so as to provide the alleged breaching party a meaningful opportunity to cure such alleged breach and shall be sent to the General Counsel of the alleged breaching party at the address listed in the heading of this Agreement (or such other address that may be provided pursuant to this Agreement) (“Notice”). Upon termination or expiration of this Agreement, Customer shall have no rights to continue use of the Service. If this Agreement is terminated by Customer for any reason other than a termination expressly permitted by this Agreement, then Whisqr shall be entitled to all of the fees due under this Agreement for the entire Term. If this Agreement is terminated as a result of Whisqr’ breach of this Agreement, then Customer shall be entitled to a refund of the pro rata portion of any subscription fees paid by Customer to Whisqr under this Agreement for the terminated portion of the Term.

7.4. Handling of Customer Data In The Event Of Termination.

Customer agrees that following termination of Customer’s account and/or use of the Service, Whisqr may immediately deactivate Customer’s Business Subscriber agreement. In the case of a deactivation all of the Customer's data will continue to be available to the Customer; and the Customer will continue to access the full functionality of their loyalty program; only the specific services which were provided as part of the Business Subscriber agreement will be terminated. Customer further agrees that Whisqr shall not be liable to Customer nor to any third party for any termination of the Business Subscriber Agreement, provided that Whisqr is in compliance with the terms of this Section 7.4.

8. Modification; Discontinuation of The Service.

8.1 Changes to the Service.

Whisqr may make modifications to the Service or particular components of the Service from time to time and will use commercially reasonable efforts to notify Customer of any material modifications. Whisqr reserves the right to discontinue offering the Service at the conclusion of Customer’s then current Term. Whisqr shall not be liable to Customer nor to any third party for any modification of the Service as described in this Section 8.1.

8.2 Transfer of Customer to higher level of Business Subscriber Package initiated by Whisqr

Whisqr reserves the right to transfer Customer to another level of the Business Subscriber Package, at its disgretion, if Whisqr:

• can demonstrate that the business has misrepresented the actual number of locations that the business is involved in the use of the Loyalty Program;
• can demonstrate that the card printing/manufacturing volume for the business is unusually high for the type of package that the customer has registered for.

Whisqr may also elect, if the card printing/manufacturing volume for the business is unusually low; to switch the Customer to a less expensive service package.

Before Whisqr can make an adjustment to the customer's Service Agreement Whisqr will first notify Customer by either sending an email to the notification email address or posting a notice in the Administrator’s Home Page thirty days (30) before the change is applied. If the Customer does not agree to the change is reasonable, Customer must so notify Whisqr via billing@whisqr.com within thirty days after receiving notice of the change. If Customer notifies Whisqr as required, then Customer's Package will remain in effect for not less than thirty days (30) while Whisqr reviews the Customer's complaint. If after reviewing the complaint; Whisqr deems the situation unresolvable, Whisqr reserves the right to discontinue the Business Subscriber agreement.

8.3 To Applicable Terms.

If Whisqr makes a material change to any applicable URL Terms, then Whisqr will notify Customer by either sending an email to the notification email address or posting a notice in the Administrator’s instance of Customer’s account. If the change has a material adverse impact on Customer and Customer does not agree to the change, Customer must so notify Whisqr via billing@whisqr.com within thirty days after receiving notice of the change. If Customer notifies Whisqr as required, then Customer will remain governed by the URL Terms in effect immediately prior to the change until the end of the then current term for the affected Service. If the affected Service is renewed, it will be renewed under Whisqr's then current URL Terms.

9. Definitions.

“Customer” refers to the business subscribing to a paid Whisqr service (e.g. a Business Subscriber Package).

“Customer Data” means all electronic data or information submitted to the Service by Customer or its Affiliates.

“Electronic Communications” means any transfer of signs, signals, text, images, sounds, data or intelligence of any nature transmitted in whole or part electronically received and/or transmitted through the Service.

“Help Documentation” means the online help available throughout the application.

“Service” collectively, Whisqr’ online business applications including associated offline components.

“Users” means individuals who are authorized by Customer to use the Service, for whom subscriptions to a Service have been procured, and who have been supplied user identifications and passwords by Customer (or by Whisqr at Customer’s request). Users may include but are not limited to Customer’s and Customer’s Affiliates’ employees, consultants, contractors and agents.

“User Guides” means the online user guides for the Service, accessible via login at https://blanc.whisqr.com (under Help), as updated from time to time. Customer acknowledges that it has had the opportunity to review the User Guide made available by Whisqr.

“URL Terms” means the terms with which Customer must comply, which are located at a URL and referenced in this Agreement.

Schedule I
SERVICE LEVEL COMMITMENT FOR SUBSCRIBERS OF WHISQR

Service Level Commitment

Whisqr commits to provide 99.5% uptime with respect to the Customer’s Service during each month of the Term, excluding regularly scheduled maintenance times. If in any month this uptime commitment is not met by Whisqr and Customer was negatively impacted (i.e., attempted to log into or access the Service and failed due to the unscheduled downtime of the Service), Whisqr shall provide, as the sole and exclusive remedy, a service credit equal to one month’s fee for the use of the Service.

Scheduled and Unscheduled Maintenance

Regularly scheduled maintenance time does not count as downtime. Maintenance time is regularly scheduled if it is communicated in accordance with the notice section set forth below at least two full business days in advance of the maintenance time. Regularly scheduled maintenance time typically is communicated at least a week in advance, scheduled to occur at night on the weekend, and takes less than 10-15 hours each quarter. Whisqr hereby provides notice that every Saturday night 10:00pm – 10:20pm Pacific Time is reserved for routine scheduled maintenance for use as needed.

Whisqr in its sole discretion may take the Service down for unscheduled maintenance and in that event will attempt to notify customer in advance in accordance with the Notice section set forth below. Such unscheduled maintenance will be counted against the uptime guarantee.

Credit Request

In order to receive a credit under this service level commitment, Customer must request it simply by emailing Whisqr at billing@whisqr.com, within five days of the end of the applicable month. If Customer submits a credit request and does not receive a prompt automated response indicating that the request was received, Customer must resubmit the request because the submission was not properly received and will not result in a credit. Customers who are past due or in default with respect to any payment or any material contractual obligations to Whisqr are not eligible for any credit under this Service Level Commitment. The service credit is valid for up to two years from the quarter for which the credit was issued. Whisqr shall calculate any service level downtime using Whisqr’ system logs and other records.

Updates/Notice

This Service Level Commitment may be amended by Whisqr in its discretion but only after providing thirty days advance notice. Notices will be sufficient if provided to a user designated as an administrator of your Whisqr account either: (a) as a note on the screen presented immediately after completion of the log in authentication credentials at the log in screen, or (b) by email to the registered email address provided

Schedule II
Whisqr API Library and Plugin Licensing

Introduction

Whisqr API Libraries and plugins for third party platfroms, unless otherwise stated, are licensed under the GNU General Public License (http://www.gnu.org/licenses/gpl.html) version 2.0.

This means that you may use the API Libraries and plugins that we make available on the bitbucket website, free of charge. You can run this code on as many sites as you want. The code is not obfuscated, so you can customize it to fit your needs or use the code in your own projects.

You must follow the GPLv2 guidelines by applying the GPLv2 license to any altered or unaltered versions of our plugins that you distribute.

If you are using an altered version of one of our plugins in one of your projects, we do ask that you give your software a name other than "Whisqr" to avoid confusion.

Warranty

The Whisqr Loyalty Program is provided to businesses in the hope that they will be useful, but WITHOUT ANY WARRANTY; without even the implied warranty of MERCHANTABILITY or FITNESS FOR A PARTICULAR PURPOSE. The API Library and any plugins provided by Whisqr are not guaranteed to function with all websites and platforms. We do not assume responsibility and will not be held responsible for any conflicts or compatibility issues that may occur due to third-party software. We assume no responsibility for any data loss as a result of installing or using Whisqr platform plugins or through use of the Whisqr API Library. Should conflicts occur with third-party software, we may provide support at our discretion. Additionally, we are not liable and will not be held responsible for any personal loss, site damage, site errors, theft, fraud, loss of profits or revenue, loss of business or opportunities, or loss of customers or clients as a result of installing or using Whisqr plugins or the API Library.

Support

Whisqr is provided to businesses "as is" and with no implied meaning that they will function exactly as you would like, or that they will be compatible with all third-party components and plugins.

Support for the platform, API Library and plugins sold and distributed by Whisqr is only available for those who have an active, paid subscription.

Support and updates for Whisqr are provided as long as Whisqr is actively in development. Should any one of the following occur, Whisqr will no longer be responsible for providing support for Whisqr:

• The Whisqr platform, API Library or any plugins are no longer actively developed as a viable product by Whisqr.
• Whisqr is purchased or bought out by another company.

While we attempt to provide the best support possible for our platform, API Library and plugins, we do not guarantee that any particular support query can, or will be answered to the extent, or within a timeframe that the inquirer is completely satisfied.

Subscriptions & Automatic Renewal

Whisqr is sold as an automatically recurring subscription that renews each month on the anniversary of the purchase date.

Subscriptions will automatically renew at the end of the monthly license term unless the purchaser cancels their subscription prior to the automatic renewal date.

Please note the following details of Whisqr license subscriptions:

• Subscription renewals are automatically processed monthly on the anniversary of your original purchase. The license renewal will continue and remain valid for each one (1) month unless the subscription is cancelled prior to the renewal date.
• You may cancel your subscription at any time from your Adminstrator Console page on the Whisqr website.
• Your renewal price will be locked in at the time of checkout for as long as your membership remains active.
• Grandfathered pricing: If you choose to cancel your subscription, and your renewal price is lower than the current listed price for your license (a "grandfathered" price), the lower renewal price may no longer be available to you.
• If you choose to renew your subscription after it has been cancelled and your membership has expired, you will be charged the current listed price for your membership type. We may not apply older or grandfathered pricing to your new renewal purchase.
• We will not send you any notice prior to your renewal date.
• If you choose to cancel your subscription your membership will expire on the anniversary of the original purchase.

License Usage

Whisqr grants each customer a non-transferable license to use the software for internal use, and as defined by the terms set in the customer's chosen license package (Core, Plus, Unlimited).

The customer/license-holder may not on-sell the originally-purchased license provided by Whisqr to other users of the license (such as clients) for commercial benefit. Additionally, the customer may not sublicense, to any person or entity, any rights to distribute the software or license. Whisqr will only provide support services to the original customer, and consider any other uses of this license for support queries as fraudulent.

Delivery

After we have processed your payment successfully, you will receive a welcome email with your accound details, an invoice for your purchase, and an email providing you with directions for reaching our customer support. In your Administrator Console menu you will find a link to the API administration and API Library, API documentation and plugin downloads.

Should you not receive an email containing your information, you can contact us through support@whisqr.com to request your purchase information.

Ownership

The API Library and plugins are property of Whisqr. Claiming any type of intellectual or exclusive ownership rights of our products is strictly prohibited.

Our plugins are provided "as is" without warranty of any kind, expressed or implied. We shall not be liable for any damages, including but not limited to, direct, indirect, special, incidental or consequential damages or losses that occur due to the use or inability to use our plugins.

Website & API Library and Plugin Content

All content found on this site and throughout the plugin including images, documentation, support queries and any other information is property of Whisqr and may not be redistributed without permission or consent.