KINGDON MERCHANT TERMS AND CONDITIONS

Effective Date – January 1^st, 2018

[Attractor Mobile, Ltd.], operating through Kingdon brand (“Kingdon”, “us”, “our”, “we”), offers an application which allows Merchants to provide Kingdon 360 marketing, enhanced listings, loyalty services, informational marketing, and rewards directly to consumers through an application (“Services”), and provides merchants with programs and applications to track consumers’ use thereof (the “Applications”). These Merchant Terms and Conditions (“Terms”) govern your access and use of the Services and the Applications. “Merchant” means any merchant entity and its agents that make use of the Application or provides Services to its customers.

 

Please read these Terms carefully. These Terms govern your use of the Applications and your provision of the Services to your customers. You must accept these Terms prior to signing up your business on Kingdon using our website (e.g. www.kingdon.me) a third-party App Store or service that is affiliated with us or using Kingdon Merchant application for businesses or providing any Services to your customers. By clicking “INSTALL” or in any other way downloading the Applications or making any Services available to your customers, you signify your assent to these Terms. Changes may be made to these Terms from time to time. If you do not accept these Terms, do not click “INSTALL” and do not download the Applications or make any Services available to your customers. We will make reasonable commercial efforts to notify you of any updates to these Terms. Notwithstanding the foregoing, your continued use of the Applications or provision of the Services to your customers will be deemed acceptance to amended or updated Terms. As such, you should check frequently to see if we have updated these Terms. The most current version of the Terms is available on the Kingdon website and third-party Application Stores distributing the Kingdon service. If you do not agree to any of these Terms, please do not use the Applications or make the Services available.

 

Definitions. In these Terms, the following terms when capitalized have the meanings set forth in this Section.

“Merchant” means a business using a Verifone station and service that has installed the “Kingdon 360 Marketing” App.

“Customer” means an end user that is a client of a Merchant that has been engaged by Kingdon services.

“Kingdon Privacy Policy” means Kingdon’ standard privacy policy, which may be amended by Kingdon in its sole discretion, a current version of which is available on Kingdon website and on the Kingdon consumer Application.

“Promotional Content” means any advertising, promotional or marketing content provided by Merchant for provision to any Customer (including, without limitation, any loyalty plans or rewards) and including any logos, trade names, trademarks or other content of Merchant included in such content.

“Charged Services” means any applicable fee described on the Website or third party Application Store. It may be presented in the form of:

1. a)monthly App fee charge,
2. b)charge per customer-based event (for example customer walk-in, customer offer redemption, purchase by the customer, new customer acquisition, successful referral customer-to-friend),
3. c)combination of both monthly App fee charge and customer-based event charges.

Description and applicable fees for monthly App charges, all customer-based events and related charges are detailed clearly on the relevant third party Application store listing details.

If you elect to sign up for Charged Services, you shall pay all applicable fees, as described on the Website or third party Application Store in connection with such Charged Services selected by you.

“One-time charge” – Kingdon provides merchants with a beacon device to enhance the service and customer experience. It is provided for free (not charged to Merchant) by Kingdon to all its active merchants that are acquiring new Customers actively. However, if a Merchant orders a replacement beacon device for any reason, Kingdon reserves a right to charge the Merchant with a fee of $90. Also, in case that a Merchant is not considered as an active Merchant (not actively acquiring new Customers in any given two-month period) and does not return a beacon device to Kingdon at Merchant’s cost upon written request of Kingdon, Kingdon reserves a right to charge the Merchant with a one-time fee of $90.

1. License. Subject to the terms and conditions hereof, during the period these Terms are in effect Kingdon hereby grants Merchant a limited, revocable, non-exclusive, non-transferable, non-sublicensable, license solely to use the Applications and to provide the Services to its Customers.
2. Restrictions. Merchant shall maintain all copyright and other proprietary notices contained in the Applications and in the Services. Except as set forth expressly herein, Merchant shall not, and shall not permit any third party, to (a) reverse engineer or attempt to find the underlying code of, the Application or the Services; (b) modify the Application or Services, or insert any code or product, or in any other way manipulate the Application or Services; or (c) modify, frame, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate to any third party or on any third-party web site, or otherwise use the Applications or Services except as expressly permitted by these Terms. To the extent any of the restrictions set forth in this Section are not enforceable under applicable law, Merchant shall inform Kingdon in writing in each instance prior to engaging in the activities set forth above. Kingdon reserves the right to make modifications to the Applications and the Services at any time without prior notice.
3. Promotional Content. The merchant may provide Promotional Content to Customers through the Services as permitted by Kingdon. Merchant shall remain at all times solely responsible for the full functionality, accuracy, reliability, integrity, quality or validity of all Promotional Content. Merchant represents and warrants that no Promotional Content infringes the intellectual property rights or moral rights or any third party. Kingdon reserves the right, at its sole discretion, to remove any Promotional Content that violates these Terms at any time, without prior notice or require Merchant to do so. Merchant shall remain solely liable for any loyalty plans or rewards offered to Customers, and shall fully indemnify Kingdon for its failure to satisfy any of its obligations pursuant to such plans or rewards. Kingdon does not claim ownership of Promotional Content. However, Merchant grants Kingdon a non-exclusive, royalty-free, worldwide license of all rights to use, edit, modify, include, incorporate, adapt, record and reproduce Promotional Content for the purposes of these Terms, including the right to exercise this license through independent contractors.
4. Intellectual Property.

4.1.Kingdon Property. Title to and ownership of and all proprietary rights in or related to (a) the Application, Services and related documentation and all enhancements, derivatives, bug fixes or improvements to the foregoing; (b) all trade names, trademarks, and logos of Kingdon; and (c) all data collected by Kingdon’ server-side software with regard to the foregoing] (collectively, “Kingdon Property”) shall at all times remain solely with Kingdon or its licensors.

4.2.Merchant Property. Subject to Section _6.1, title to and ownership of and all proprietary rights in or related to Promotional Content and all the trade names, trademarks, and logos of Merchant shall at all times remain with Merchant and its licensors (collectively, “Merchant Property”).

5. No Sale. Any references in these Terms to sale, resale or purchase of the Kingdon Property or Merchant Property and related documentation or references of like effect, will be deemed to mean the license thereof pursuant to the terms and conditions of these Terms.
6. Customer Data. Kingdon will provide Merchant with certain specified data regarding Customers, including the name of the Customer and certain mutually agreed data regarding the Customer’s activities at Merchant’s business location (“Customer Data”). Merchant agrees that it shall at all times comply with Kingdon’ privacy policy and all applicable law, rules and regulations with respect to all Customer Data and all uses thereof. Merchant shall fully indemnify Kingdon (and its officers, directors, employees, and consultants) for all breaches of its obligations under this provision. Customer Data may include: customer’s name, number of visits, visits details, offers usage, Facebook profile link (if provided by the customer).
7. Support. Customers may contact Kingdon with regard to the support for the Application using email at info@kingdon.me or using other forms of communication as described on our website.
8. Confidentiality. Merchant acknowledges that Kingdon may disclose to Merchant certain confidential information belonging to and relating to Kingdon, the Application or the Services. The merchant may disclose to Kingdon certain information regarding its business and operations. Either party (the “Receiving Party”) receiving information from the other party (the “Disclosing Party”) which the Disclosing Party has marked or identified as confidential or proprietary, or which should clearly be considered confidential proprietary (collectively, “Confidential Information”), agrees to keep such Confidential Information confidential during and after the Term and not disclose or use except in performance of the Receiving Party’s obligations hereunder. Confidential Information shall not include information (i) already lawfully known to or independently developed by the Receiving Party without access to or use of the Confidential Information of the Disclosing Party, (ii) received by the Receiving Party from any third party without restrictions, (iii) publicly and generally available, free of confidentiality restrictions; or (iv) required to be disclosed by law, provided that the Receiving Party provides prompt notice of such requirement. The Receiving Party shall restrict disclosure of Confidential Information to those of the Receiving Party’s employees and officers with a reasonable need to know such information and which are bound by written confidentiality obligations no less restrictive than those set out herein. Merchant will not disclose any information regarding the results of any testing or evaluation of the Application or Services to any third party without Kingdon’ prior written consent.
9. Warranties; Indemnification; Disclaimer.

9.1.Merchant Warranties. Merchant represents and warrants that the Promotional Content: (a) does not contain material that is obscene, defamatory, libelous, racially or ethnically insensitive, harassing, threatening or otherwise offensive; (b) does not contain pornography or material that may be harmful to a minor; (c) does not contain material that violates or infringes the intellectual property, moral or contractual rights of any third party; (d) does not contain any virus, worm, Trojan horse, or other harmful or disruptive component; and (e) complies with all applicable law, regulations and rules, including all applicable law regarding advertising, marketing and promotional content and services.

9.2.Merchant Indemnification. Merchant shall defend, indemnify and hold harmless Kingdon from and against any and all suits, proceedings, assertions, damages, costs, liabilities or expenses (including court costs and reasonable attorneys’ legal fees) which Kingdon may suffer or incur in connection with any actual claim, demand, action or other proceeding by any third party arising from or relating to (i) a claim that the Promotional Content infringes or violates any third party intellectual property rights, provided, however, that Merchant shall have no obligation to indemnify Kingdon where such claim of infringement relates solely to the Kingdon Property incorporated in the foregoing; (ii) use of any Customer Data not in compliance with F Kingdon’ then-current privacy policy or in violation of applicable law, rule or regulation; or (iii) any other breach of these Terms, including the representations and warranties set forth in Section _11.1.

9.3.DISCLAIMER. THE APPLICATION, SERVICES AND RELATED DOCUMENTATION ARE PROVIDED “AS-IS”. KINGDON EXPRESSLY DISCLAIMS ANY WARRANTIES (INCLUDING WITH REGARD TO THE PERFORMANCE OF THE APPLICATION OR SERVICES AND WITHOUT LIMITATION, EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. ANY RELIANCE ON THE APPLICATION OR THE SERVICES IS AT MERCHANT’S OWN RISK, AND KINGDON DOES NOT AND SHALL NOT ACCEPT ANY LIABILITY FOR THE APPLICATION OR THE SERVICES, INCLUDING WITHOUT LIMITATION ANY MISTAKES OR INACCURACIES IN INFORMATION, LOYALTY PLANS OR REWARDS CREATED OR MADE AVAILABLE THROUGH THE APPLICATION OR SERVICES.

10. LIMITATION OF LIABILITY. IN NO EVENT SHALL KINGDON, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR SHAREHOLDERS, BE LIABLE TO MERCHANT, ANY CUSTOMER OR ANY OTHER THIRD PARTY FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO GENERAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, DIRECT, SPECIAL OR PUNITIVE DAMAGES, ARISING OUT OF OR RELATING TO THE APPLICATION OR SERVICES. IN ANY CASE, KINGDON’ ENTIRE LIABILITY UNDER ANY PROVISION OF THESE TERMS SHALL NOT EXCEED IN THE AGGREGATE THE AMOUNT RECEIVED FROM MERCHANT HEREUNDER, WITH THE EXCEPTION OF DEATH OR PERSONAL INJURY CAUSED BY THE GROSS NEGLIGENCE OF KINGDON TO THE EXTENT APPLICABLE LAW PROHIBITS THE LIMITATION OF DAMAGES IN SUCH CASES.
11. Promotion; Publicity. All promotion, advertising, and distribution of the Application and Services shall be consistent with Kingdon’ standard policies and reputation. Both parties may agree in writing to include a reference to the other party and its logo on its website, marketing and promotional materials (in any medium) subject to the compliance by each party with the applicable trademark guidelines of the other party. The Parties may agree to issue a joint press release in a form mutually agreeable to the Parties announcing the formation of the relationship between the Parties. The text of such press release and announcements, and any future announcement or publication concerning the existence or terms of this agreement, shall be mutually agreed to by the Parties prior to publication, except that either Party may re-publish information contained in a previously approved press release, including on a Party’s website and in marketing materials.
12. The term of this agreement (“Term”) shall commence on the date Merchant accepts these Terms and shall continue for as long as the Kingdon application is installed unless otherwise terminated in accordance with these Terms.
13. Termination. Either party may terminate this agreement with advance notice of 30 days., provided, however, that Kingdon may terminate these Terms and all rights granted hereunder without notice if Merchant shall use or market the Application or Services in violation of any applicable law, rule or regulation.
14. Effect of Termination. Upon expiration or termination of these Terms for any reason, (a) Merchant shall immediately cease the use of the rights licensed hereunder, and shall immediately cease all provision of the Services to its customers; (b) each party shall make payment to the other of all amounts due hereunder as of the date of termination; and (c) Merchant shall cease the use of all Kingdon Property and shall promptly return to Kingdon all copies of Kingdon Confidential Information or destroy same, at Kingdon’ discretion.
15. Survival. Sections _3 (Restrictions), _7 (Intellectual Property), _8 (Customer Data), _10 (Confidentiality), _11 (Warranties; Indemnification; Disclaimer), _12 (Limitation of Liability) any accrued and unpaid payments, and this Section _12.4 shall survive the termination or expiration of these Terms for any reason.

Merchant agreement (“You” refers to a customer as defined in clause 1 of this document). In order to manage your Kingdon service, you will be provided with: a) Access to the online dashboard, from where you can track and modify the various features of your club. b) A Merchant Application (for your POS, tablet or handset) and Beacon (or Beacon/WiFi, depending on the service and device availability) device for each location. These devices will serve as your on-site enabler and activate the automatic interaction with your Customers as they walk in. Kingdon reserves the right to request the return of the devices provided in case the merchant is not deemed as an active merchant or regarded as not using the service, where the merchant will have a choice of either returning the device(s) by post at Merchant’s cost or allowing a one time charge of $90 per device.  By signing below or installing the Kingdon Application, you agree to the following: a) To run your loyalty and rewards program in a fair and non-abusive manner. b) To keep the provided devices safe and secure. In the case of a lost or stolen device, you will be charged a one time charge of $90 for Beacon. Once the payment has been made, Kingdon will provide you with a new device. You understand that while Kingdon grants you access to its platform, the responsibility for managing your loyalty club lies with you. Pricing: You agree to the Kingdon pricing plans as presented and selected online or through your POS service provider, or as presented to you by a sales representative or any authorized representative of Kingdon, its representatives or distributors.

Miscellaneous. Kingdon and Merchant are and intend to remain independent parties. Nothing contained in these Terms shall be deemed or construed to create the relationship of principal and agent or of partnership or joint venture, and except as otherwise specifically agreed upon in writing by the parties, neither party shall hold itself out as an agent, legal representative, partner, subsidiary, joint venturer, servant or employee of the other. Neither party nor any officer or employee thereof shall, in any event, have any right collectively or individually, to bind the other party, to make any representations or warranties, to accept service of process, to receive notice or to perform any act or thing on behalf of the other party, except as authorized in writing by such other party in its sole discretion. These Terms represent the entire agreement between the parties regarding the subject matter hereof and supersede any and all other agreements between the parties, whether written or oral, regarding the subject matter hereof. These Terms are considered accepted by installing the Kingdon App via Verifone. A waiver of any default hereunder or of any of the terms and conditions of these Terms shall not be deemed to be a continuing waiver or a waiver of any other default or of any other term or condition, but shall apply solely to the instance to which such waiver is directed. Kingdon may assign its rights or obligations pursuant to these Terms. Merchant agrees not to assign any rights under these Terms; any attempted assignment shall be null and void and shall result in the termination of these Terms. If any part of these Terms shall be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of any other part or provision of these Terms which shall remain in full force and effect. These Terms shall be governed by the English law, and the competent courts in the city of London, United Kingdom shall have exclusive jurisdiction to hear any disputes arising hereunder.

Some of the Services offered on the Website or third party Application Stores require payment of fees (“Charged Services”). If you elect to sign up for Charged Services, you shall pay all applicable fees, as described on the Website or third party Application Store in connection with such Charged Services selected by you. Kingdon reserves the right to change its prices at any time while guaranteeing any existing merchant the validity of pricing agreed to at signup time. You authorize Kingdon directly or through third parties, to make any inquiries it considers necessary to validate your account and financial information that you provided while signing up for such Services. Please note that according to internal agreements, unless otherwise agreed with third party Application Store operator from which the application was installed, Attractor Mobile Ltd is entitled to collect fees from Users on behalf of the Charged Services, to process any payments and/or refunds and/or take any billing actions as required in connection with the collection of the fees on behalf of the Charged Services. All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties. You agree to pay any such taxes that might be applicable to your use of the Services and payments made by you to Kingdon. All fees related to using Charged Services are charged automatically using the payment method as determined by the Website or third party Application Store. If Kingdon does not receive a request by the user, through email or phone or third-party Application Store or Kingdon online dashboard, for Charged Services termination you acknowledge and understand that Kingdon will continue to charge you for the Charged Services as long as your account remains active regardless if the Charged Services are used or not. If at any time, you contact your bank or credit card company and decline or otherwise reject the charge of any payable fees, this act will be considered a breach of your obligation hereunder and your use of the Charged Services will be automatically terminated. Your use of the Charged Services will not resume until you re-subscribe for any such Charged Services. Users purchasing Charged Services shall pay any and all prices and fees due for such Services. All prices and fees are non-refundable unless otherwise expressly noted, even if such Charged Services are suspended, terminated, or transferred prior to the end of the Services term. Kingdon expressly reserves the right to change or modify its prices and fees at any time, and such changes or modifications shall be posted online at the Website, third-party Application Stores and effective immediately without need for further notice to any user, while the changes to prices and fees will not affect any existing merchant that activated the service prior to the change. Any changes or modifications in prices and fees will not affect any existing customer, i.e. the pricing that was accepted at the moment of sign-up is the effective pricing and will remain fixed at that rate. IN ORDER TO ENSURE THAT YOU DO NOT EXPERIENCE AN INTERRUPTION OR LOSS OF SERVICES, MOST SERVICES OFFER AN AUTOMATIC RENEWAL OPTION. THE AUTOMATIC RENEWAL OPTION AUTOMATICALLY RENEWS THE APPLICABLE SERVICE FOR A RENEWAL PERIOD EQUAL IN TIME TO THE ORIGINAL SERVICE PERIOD. THE RENEWAL PERIODS ARE MONTHLY. WHILE THE DETAILS OF THE AUTOMATIC RENEWAL OPTION VARY FROM SERVICE TO SERVICE, THE SERVICES THAT OFFER AN AUTOMATIC RENEWAL OPTION TREAT IT AS THE DEFAULT SETTING. THEREFORE, UNLESS YOU CANCEL YOUR SUBSCRIPTION KINGDON WILL AUTOMATICALLY RENEW THE APPLICABLE SERVICE WHEN IT COMES UP FOR RENEWAL, AND WILL TAKE PAYMENT (OR INSTRUCT THE THIRD PARTY APPLICATION STORE OPERATOR TO DO SO ON ITS BEHALF) FROM THE PAYMENT METHOD YOU HAVE ON FILE WITH KINGDON (OR WITH THIRD PARTY APPLICATION STORE. YOU MAY CANCEL YOUR SUBSCRIPTION FROM SUCH SERVICES PRIOR TO THE AUTOMATIC RENEWAL AT ANY TIME. IN SUCH EVENT THE SERVICES SHALL BE DISCONTINUED UPON THE EXPIRATION OF THE RESPECTIVE PERIOD YOU HAVE PAID FOR AND YOU SHALL NOT HAVE ANY CLAIMS TOWARDS KINGDON IN RELATION TO THE DISCONTINUATION OF THE SERVICES.

 

ADDENDUM 1: APPLICABLE FOR MERCHANTS USING KINGDON SERVICE OVER VERIFONE POS STATION AND VERIFONE APPLICATION STORE

 

• Reasonable advance notice will be provided to current subscribers of Kingdon service and App in case Kingdon ceases making services available through Kingdon Application, Kingdon takes down an app or remove it from current distribution due to: (a) an allegation or actual infringement of any intellectual property right or right of publicity or privacy of any third party, (b) an allegation or actual defamation, (c) an allegation or determination that an app does not comply with applicable law, (d) Kingdon ceasing to do business, or (e) Kingdon filing a petition in bankruptcy, dissolving or otherwise failing or unable to pay its debts as they become due.
• Kingdon app may be removed at any time from the Verifone App Market if it is determined that the app: (i) may infringe or otherwise violate the intellectual property rights or any other rights of any third party; (ii) violates any applicable law, regulation, card association rule, or is subject to an injunction; (iii) violates the Verifone App Market Developer Program Policies; (iv) is being distributed in a manner that is in breach of the Verifone Developer Terms; (v) may create liability for Verifone; or (vi) may contain a virus, malware or spyware, or may have an adverse impact on Verifone’s systems.
• a subscriber Merchant may cancel their subscription at any time before the end of the applicable billing cycle, and upon cancellation, the subscriber will: (i) not receive a refund for the billing period during which the subscriber cancels its subscription, and (ii) be able to access its subscription and receive issues and updates of the relevant subscription until the subscription termination date.
• Verifone, on Kingdon’s behalf, may refund the full purchase or subscription price of an app to a subscriber if: (i) an app does not function properly; or (ii) a subscriber requests a refund from Verifone, as your agent, within a reasonable time period.
• Verifone and its affiliates do not have any responsibility or liability to a subscriber of Kingdon app in any way with respect to the subscriber’s use of Kingdon app.