These Terms of Service (“Terms”) describe your legal rights and responsibilities when using the online tools and services provided by Roll Forward, LLC. (the “Program Services” or “Services”). These Terms create a legal and binding agreement between Roll Forward, LLC. (“Towny”, “Company” or “we”) and the Business Participant (“you”) agreeing to be bound by these Terms.
Company and the Business Participant agree as follows:
1. PROGRAM SERVICES. Company will identify the Business Participant as a participant in the Towny Rewards Program in certain Towny related communications to or accessible by Towny consumers and others, and Company shall provide the Business Participant with a consumer rewards and text marketing program (collectively the "Program Services").
2. KIOSK HARDWARE. Company may provide the Business Participant with one or more tablets and accessories to facilitate aspects of the Program Services. Company retains ownership of all hardware including but not limited to tablets, tablet stands, and power cords. All hardware must be returned to Company if the Program Services are terminated. Tablets and accessories are only to be used for Program Services. Company will provide required maintenance of hardware. Business Participant is liable for damage caused through negligence and will be invoiced for repairs or replacement.
3. TEXT FEES. Company will charge Business Participant based on pricing plan in effect when you sign up. Company may change the text message fees. Company will notify Business Participant of any text message fee changes at least 30 days in advance. All text messages are invoiced the month after they are sent.
4. LIMITATION OF COMPANY’S LIABILITY. The Business Participant is the seller of goods and services and is solely responsible for all such goods and services and for the underlying sale. Company shall not be liable for any acts or omissions of the Business Participant, including acts or omissions related to the goods or services, or for any errors at the point-of-sale, nor shall Company have any liability or responsibility for the goods and services themselves, including any shipping, handling, or warranties.
5. LOGOS AND CONTENT. The Business Participant shall submit to Company the Business Participant Materials (as defined below) in the format required by Company for Company’s use in providing the Program Services. The Business Participant grants to Company a non- exclusive, worldwide, fully paid license to use, perform, reproduce, display, transmit, copy, and distribute the Business Participant’s logos, trademarks, service marks, copy, and content (collectively, the "Business Participant Materials") in order to carry out the Program Services. The Business Participant represents to Company that it has sufficient rights to grant this license.
6. TERM AND TERMINATION. These Terms shall remain in full force and effect until Services are terminated or cancelled. Business Participant may cancel Services by providing thirty (30) days written notice to Company. Company may terminate Services immediately upon the Business Participant’s default in the performance of one or more of its obligations in these Terms, or (i) if the Business Participant becomes insolvent or admits in writing its inability to pay its debts as they mature or makes an assignment for the benefit of its creditors, or (ii) if the Business Participant files a petition for bankruptcy or reorganization, or (iii) if a petition for involuntary bankruptcy or reorganization is filed against the Business Participant, or (iv) Business Participant’s physical location(s) appearance not conforming with the standards of the Program in Company’s sole discretion, or (v) Business Participant’s employee(s) behavior deemed inappropriate or illegal. The termination of Services shall not relieve the Business Participant of the obligations to pay Company all amounts due prior to termination. All Services automatically renew based on the same term.
7. INDEMNIFICATION. The Business Participant agrees to defend, indemnify, and hold harmless Company, Company’s affiliates and agents (collectively, the "Indemnified Parties") from all damages, costs, and expenses, of any nature whatsoever, including reasonable attorneys’ fees (collectively, “Losses”), for which the Indemnified Parties may become liable by reason of (i) the performance of the Program Services (except to the extent the Losses have been caused by the gross negligence or intentional misconduct of an Indemnified Party); (ii) the Business Participant’s participation or any breach by the Business Participant of the representations, warranties, or contractual obligations of the Terms; or (iii) any use, reproduction, distribution, or transmission of the Business Participant Materials by an Indemnified Party.
8. COPYRIGHT. All copy made using the creativity, illustrations, labor, composition, or materials furnished by Company, together with all copyrights therein, are and remain the property of Company or its affiliates or agents, as applicable. The Business Participant agrees that it cannot authorize reproductions, in whole or in part, of any such copy.
9. TAXES. Prices do not include tax. In the event that any federal, state, or local tax is imposed on the sale of the Program Services, such tax shall be assumed and paid for by the Business Participant.
10. PAYMENT. Business Participant will begin incurring charges when Services begin based on the pricing plan identified in the Business Participant’s subscription. The Business Participant authorizes Company to debit the Business Participant’s bank account or charge the credit or debit card on file for services rendered. The Business Participant understands that this is a periodic charge and that to terminate this recurring billing process, the Business Participant must terminate Services. The Business Participant acknowledges that it is the owner or authorized signer on the bank account or credit card or debit card on file with Towny. In the event that the Business Participant’s payments become past due, in addition to any other remedies Company may have, Company may suspend or terminate Services and all charges incurred by the Business Participant shall immediately become due and payable. Additionally, all Towny consumers may be notified that the Business Participant is no longer a participant in the Towny program. In this event, the Business Participant’s name may be removed from all Towny web/mobile sites. The Business Participant also agrees to remove and return to Company all in-store assets, including tablets, stands, window stickers, posters, and tent cards. The Business Participant agrees to reimburse Company for all expenses incurred in connection with the collection of amounts payable by the Business Participant, including, without limitation, court costs and attorneys’ fees. The Business Participant agrees to provide to Company all necessary information and materials to enable Company to perform the Program Services and to prepare the monthly Business Participant invoices and charge the Business Participant’s account or card.
12. ACCEPTANCE OR REJECTION OF BUSINESS PARTICIPANT MATERIALS. Company reserves the right to reject or remove any Business Participant Materials that, in Company’s opinion, are not (for any reason) appropriate for publication. Company further reserves the right to reject or remove any copy that may subject Company to criminal or civil sanction or that is otherwise, in Company’s opinion, offensive or objectionable.
13. ADDITIONAL LIMITATION ON TOWNY’S LIABILITY. The total cumulative liability of Company shall be limited to direct damages only and shall not exceed the amount of fees paid by the Business Participant in the prior twelve (12) months.
THIS LIMITATION OF LIABILITY IS A CONDITION FOR THE ACCEPTANCE OF THE TERMS BY COMPANY. IN NO EVENT SHALL COMPANY BE LIABLE TO THE BUSINESS PARTICIPANT OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR UNREALIZED BUSINESS OPPORTUNITY, ARISING OUT OF THE PROGRAM SERVICES OR THE PUBLICATION OF OR FAILURE TO PUBLISH ANY COPY, WHETHER OR NOT COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
14. FORCE MAJEURE. No party shall be liable for any default or delay in the performance of its obligations under the Terms if the default or delay is caused, directly or indirectly, by fire; flood; earthquake; elements of nature or acts of God; acts of war or terrorism; riots, civil disorders, strikes, lockouts, or labor difficulties; failure of utilities or telecommunications carriers; equipment malfunction; or any other similar cause.
15. GOVERNING LAW; VENUE. These Terms, and all related matters, whether in contract or in tort, in law or in equity, or otherwise, shall be governed by the laws of the State of Texas, without regard to choice of law or conflict of law principles that direct the application of the laws of a different state. Any action or proceeding in connection with these Terms shall be brought in Travis County, Texas. The parties irrevocably (i) submit to the exclusive jurisdiction of such courts, and (ii) waive any objections to venue of any action or proceeding or any argument that such court is in an inconvenient forum.
16. DISPUTE RESOLUTION.
Non-Binding Mediation. Disputes between the parties that cannot be resolved through good faith negotiation or non-binding mediation will be resolved, as a last resort only, by arbitration as provided in this Section. All negotiations pursuant to this clause shall be treated as confidential and as compromise and settlement negotiations for purposes of Rule 408 of the Federal Rules of Evidence and comparable state rules of evidence.
Binding Arbitration. If the parties are unable to resolve any dispute by negotiation or mediation under this Section within ninety (90) days of the initiation of such procedures, they agree to submit such dispute to binding arbitration in accordance with the Expedited Procedures of the Commercial Arbitration Rules of the American Arbitration Association (“AAA”). Company and Business Participant shall mutually agree on an arbitrator. If the parties are unable to select an arbitrator within five business days, the parties consent to the selection of an arbitrator by the AAA Administrator. Unless otherwise agreed to by the parties, arbitration will take at a location within the jurisdiction set forth in Section 15 selected by the party not initiating the arbitration. The arbitrator shall use his or her best efforts to resolve the dispute in accordance with the laws of the state of Texas, or if applicable, the United States, within three (3) months of his or her appointment. The arbitrator’s award shall be in writing and shall include reasoning in support of the award. The resolution of the arbitrator shall be final and binding on the parties. Judgment upon the award rendered by such arbitration may be entered in any court having jurisdiction thereof.
Equitable Relief. Notwithstanding the foregoing, either party may seek injunctive or other equitable relief to prevent irreparable harm in a court of competent jurisdiction pending the outcome of such arbitration.
17. CONFIDENTIALITY. A party or its service providers or agents (collectively, the "Disclosing Party”) may, from time to time, disclose to the other party (the "Receiving Party”) certain information relating to the Disclosing Party's business or consumers, affiliates, subsidiaries, agents, or employees; business and marketing plans, strategies, and methods that may not be standard industry practice or that are not generally known in the industry; or studies, charts, plans, tales, or compilations of business and industrial information acquired or prepared by or on behalf of the Disclosing Party (collectively, the “Confidential Information"). The Disclosing Party and the Receiving Party acknowledge that Confidential Information shall be provided at the Disclosing Party’s sole discretion, and nothing obligates the Disclosing Party to disclose or grant access to any Confidential Information. Unless otherwise expressly authorized in writing by the Disclosing Party, the Receiving Party covenants and agrees (i) to use the Confidential Information only for the purposes expressly contemplated by these Terms; and (ii) that no Confidential Information shall be disclosed to any third party, or any affiliate, subsidiary, agent, or employee of the Receiving Party, without the prior written consent of the Disclosing Party, which may be unreasonably and arbitrarily withheld. The Receiving Party acknowledges that the Disclosing Party remains the sole and exclusive owner of all right, title, and interest in and to the Confidential Information. The Receiving Party agrees that the Confidential Information shall not be copied or otherwise reproduced without the Disclosing Party’s prior written consent. Upon termination of Services, or otherwise on demand by the Disclosing Party, the Receiving Party agrees that it shall promptly return the Confidential Information to the Disclosing Party, uncopied and undistributed. Unless Company has provided its prior written consent, the Business Participant shall keep the Terms strictly confidential and may not make any disclosure respecting these Terms to any person, except to the extent required by law.
18. MODIFICATIONS. Company reserves the right to update or modify these Terms from time to time as our business evolves by posting an updated version of these Terms on our website. If, in our sole discretion, we believe that the modifications being made are material, we will notify Business Participant (email to suffice) prior to the change taking effect. By continuing to utilize the Service after the effective date of any update to these Terms, you will be deemed to have accepted such update.
19. Notices. Company may provide general notices related to the Services that are applicable to all Business Participants via email and such notices shall be deemed to satisfy any legal requirement that notice be made in writing. Other notices (including all notices from Business Participants) must be sent via email to email@example.com. Notices to Company may also be sent to: Towny, 2028 E Ben White Blvd, Ste 240-6521, Austin, TX 78759.
20. Assignment. Neither these Terms nor any of the rights or licenses granted hereunder may be transferred or assigned by either party without the other party’s express prior written consent (not to be unreasonably withheld or delayed); provided, however, that either party may assign these Terms upon written notice without the other party’s consent to an affiliate or to its successor in interest in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.
Relationship of the Parties. The parties are and shall be independent contractors with respect to all services provided under these Terms. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. There are no third-party beneficiaries to this Agreement.
21. Entire Agreement. These Terms, including all attachments, exhibits, addendums, and any order form(s) related hereto, constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes and replaces any prior or contemporaneous representations, understandings and agreements, whether written or oral, with respect to its subject matter. To the extent of any conflict or inconsistency between the provisions of these Terms and any order form, these Terms shall prevail.
Last update: February 11, 2021