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Echo Loyalty Terms of Service

Updated: November 26, 2024

BY USING THE ECHO LOYALTY, AND SUBSCRIBING TO THE ECHO LOYALTY THROUGH THE ECHO LOYALTY CONTRACT FORM OR ONLINE THROUGH A SHOPIFY SUBSCRIPTION OF ECHO LOYALTY (“ORDER”), YOU AGREE TO THE TERMS OF THIS AGREEMENT, AS UPDATED WHICH CAN BE ACCORDINGLY FROM TIME TO TIME.

THIS AGREEMENT GOVERNS YOUR ACCESS AND USE OF THE ECHO LOYALTY AND SERVICES (EACH AS FURTHER DEFINED BELOW).

IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS, IN WHICH CASE THE TERMS SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST NOT ACCEPT THIS AGREEMENT AND SHALL NOT BE PERMITTED TO USE THE SERVICES.

FURTHERMORE, BY ACCEPTING THIS AGREEMENT YOU REPRESENT AND WARRANT THAT ANY AND ALL INFORMATION YOU PROVIDE US THROUGH THE SERVICES IS TRUE, ACCURATE AND COMPLETE. THE PROVISION OF FALSE OR FRAUDULENT INFORMATION IS STRICTLY PROHIBITED.

AS USED HEREIN, THE FOLLOWING DEFINITIONS SHALL APPLY:

“AGREEMENT” OR “TERMS” MEANS THESE TERMS OF SERVICE AND ALL MATERIALS AND LINKS REFERRED TO HEREIN, AS SUCH DOCUMENTS ARE MODIFIED AND UPDATED AS PERMITTED BY THEIR TERMS AND BY OPERATION OF LAW.

“CLIENT” OR “YOU” OR “YOUR” MEANS THE INDIVIDUAL OR LEGAL ENTITY LICENSING THE SERVICES HEREUNDER.

“Comarch” OR “Echo Loyalty” MEANS Comarch AND ITS AFFILIATES.

“PARTIES” MEANS CLIENT, OR YOU, TOGETHER WITH Comarch.

1. Services

Echo Loyalty is a proprietary technology platform composed of customer engagement and loyalty platform solutions ("Platform" or “Products” or “Product”). “Services,” as used in this agreement, refers to a client’s access to the Platform specified in the Order. All content, data and other information that Client submits to the Services through its use thereof, including, without limitation, such information as Client may collect through the Services from end-users (as defined below), is “Client Content” for the purposes of this Agreement. Depending on the products purchased by the Client, Client may have access to the following functionalities:

  1. Membership Configuration — Echo Loyalty provides Platform tools for our Clients to design Member Configuration rules and metrics for their Loyalty Program.
  2. Promotions and Coupons — Echo Loyalty provides Platform configuration tools for our Clients that allow for Client Promotion and Coupon creation and activation.
  3. Gamification — There are Echo Loyalty Product tiers that enable Clients to enable Gamification features for the purposes of Client end-user engagement and communication.
  4. Email Marketing — There are Echo Loyalty Product tiers that enable Client to engage with End-users through email communication for marketing and transactional purposes.
  5. Reporting and Analytics — Echo Loyalty provides program reporting dashboards.

2. Proprietary rights

  1. Ownership — Neither Party grants the other any rights or licenses not expressly set out in this agreement. Except for Comarch rights under this Agreement, between the Party, Client retains all intellectual property and other rights in its intellectual property and to the Client content provided to Comarch. Except for Client’s rights under this Agreement, Comarch and its licensors retain all intellectual property and other rights in the Platform, and in and to each Product, the services, and any deliverables and related Comarch technology, templates, documentation, help files, tutorials, formats and dashboards, including any modifications or improvements to these items made by Echo Loyalty and the Usage Data, as defined below (the “Echo Materials”), except with respect to open-source software, which is subject to its own terms and conditions (see Section 3.d). If Client provides Comarch with feedback or suggestions regarding the Services or other Comarch offerings, Comarch may use the feedback or suggestions without restriction or obligation.

  2. Usage Data — Comarch may generate technical logs, data and learnings about Client’s use and an end-user’s use of the Services (the “Usage Data”) and the Client Content processed by the Services, and use such information to operate, analyze, improve and support the Platform and/or the Services and for other lawful purposes. Except as permitted or required by law, Comarch will not disclose usage data externally, including in benchmarks or reports except in the aggregate.

3. Access to services and limited license to the client content

  1. Access to the Services — Subject to the terms and conditions set forth herein (including without limitation payment of the applicable fees), and during the term of this Agreement only, Client may access and use the Services only for its own business purposes in accordance with the Terms of this Agreement, including any usage limits on an applicable Order. Access to the Services is limited to Client’s employees and/or contractors acting for the sole benefit of Client ("Permitted Users"). Client and its Permitted Users may need to register for an Echo Loyalty account in order to access or use the Services. Client is responsible for ensuring that account registration information is accurate, current and complete. Comarch does not grant a license to Client for the Services, and Client is not entitled to a copy of all or any part of the Services under any circumstances, including but not limited to any alleged breach by Echo Loyalty.
  2. Aggregated Data — Client, on behalf of itself and its End-Users, grants Echo Loyalty a worldwide, nonexclusive, royalty free license to (i) compile their data with data of other Echo Loyalty Clients, so long as such aggregation or compilation ("Aggregated Data") omits any data that would enable the identification of Client, Personal Information (as defined below) or any individual, company, or organization; and (ii) use Aggregated Data, including all reports, statistics or analyses created or derived therefrom.

4. Limitations of use

  1. Client may access and use the Services in only the manner permitted by these Terms, and only for its own commercial use. Except as specifically permitted herein, authorized in writing by Comarch, or as required to be allowed by applicable law, Client shall not (i) sell, license (or sub-license), lease, assign, transfer, pledge or share any of its rights under this Agreement with/to any other party, entity or person, (ii)  transfer, distribute, copy all or any part of the Services and/or the Echo Loyalty Materials, (iii) refer to  the Services by use of framing and/or deep-linking, (iv) make use of the Services or distribute any  part thereof in any jurisdiction where same is illegal or where such use or distribution would  subject Comarch or its affiliates to any registration requirement within such jurisdiction or country  (v) use, encourage, promote, facilitate or instruct others to use the Platform for any illegal,  harmful or offensive use, (vi) promote any content, products, services, or other information that  may be illegal to sell or promote under any applicable law or may reasonably be perceived to be  unlawful, inflammatory, offensive or otherwise inconsistent with the spirit of Comarch Services,  brand or image, (vii) transmit any viruses or other harmful, infringing, illegal, disruptive or  destructive content, messages or files, (viii) visit the Platform or access the Services through unauthorized means, including, without limitation, any data mining, robots/bots, or similar data  gathering and extraction tools to extract for re-utilization of any parts of the Platform, (ix) distribute, publish, send or facilitate the sending of unsolicited mass messages, promotions,  advertising, or solicitations (e.g. “spam”) including unlawful commercial advertising and informational announcements as further described in Section 4.b, (x) distribute, publish, send, or  facilitate the sending of any inappropriate, inaccurate, misleading, fraudulent or otherwise illegal  content or content which infringes intellectual property rights of third parties or their right for  privacy, (xi) modify, translate, reverse engineer, decompile, disassemble (except to the extent  applicable laws specifically prohibit such restriction), make any attempt to discover the source  code of the Platform and/or the Services and/or any other software available therein or create  derivative works thereof, (xii) remove any copyright, trademark or other proprietary rights  notices contained in or on the Platform, (xiii) remove, change or modify any trademarks from or  attach any additional trademarks to the Platform, (xiv) use the Platform or the Services in a  manner that subjects any part thereof to any obligation to disclose or distribute the source code  thereof and/or that may cause others to have the right to modify or create derivative works thereof; or cause them to become redistributable at no charge. Client is solely responsible for obtaining, paying for, repairing and maintaining all the equipment, software, hardware and services required for Client to access the Services.
  2. Client shall not use the Services in a manner that violates generally recognized industry  guidelines, including, without limitation, (i) using non-permission based email lists (i.e., lists in  which each recipient has not explicitly granted permission to receive emails from Client by  affirmatively opting-in to receive those emails), (ii) using purchased or rented email lists, (iii) using third-party email addresses, domain names, or mail servers without proper permission, (iv)  sending emails to non-specific addresses (e.g., webmaster@domain.com or info@domain.com),  (v) sending emails that result in an unacceptable number of spam or unsolicited commercial  email complaints (even if the emails themselves are not actually spam or unsolicited commercial email), (vi) failing to include a working “unsubscribe” link in each email that allows the recipient  to remove themselves from Client’s mailing list, (vii) failing to comply with any request from a recipient to be removed from Client’s mailing list within ten (10) days of receipt of the request,  (viii) failing to include in each email a link to the then-current privacy policy applicable to that email, (ix) using misleading subject headings or other content or disguising the origin or subject  matter of any email or falsifying or manipulating the originating email address, subject line, headers or transmission path information for any email, (x) failing to include in each email  Client’s valid physical mailing address or a functioning link to that information, (xi) failing to note  in the heading and at the beginning of advertising messages that the transmission is an  advertisement and (xii) including “junk mail,” “chain letters,” “pyramid schemes,” incentives  (e.g., coupons, discounts, awards or other incentives) or other material in any email that  encourages a recipient to forward the email to another recipient.

5. Client obligations

  1. Compliance with Law — Client represents, warrants and covenants to Comarch that Client’s use of  the Services shall comply with the limitations of use in Section 4 and all applicable laws, rules or  regulations of any jurisdiction, including, without limitation, those relating to (i) communication  by telephone, text/SMS/MMS message or email for advertising, marketing or other purposes, (ii)  monitoring or recording of electronic or telephonic communications, (iii) the privacy, security or  protection of ‘personal data’ or ‘personal information’, as such terms are defined under privacy  laws (collectively, “Personal Information”), including, without limitation, as applicable to the  collection, storage, retention, processing, transfer, disclosure, sharing, disposal or destruction of  Personal Information, (iv) requirements for websites and mobile applications, online behavioral advertising, or online tracking technologies, or (v) applicable economic or financial sanctions or  trade embargoes, including those administered by the U.S. government through the U.S.  Treasury Department’s Office of Foreign Assets Control ("OFAC") or the U.S. Department of State, or the Israeli government (collectively, “Laws”). Without limiting the foregoing, Laws  include the Telephone Consumer Protection Act, the Telemarketing and Consumer Fraud and  Abuse Prevention Act, the Do-Not-Call Implementation Act, the Controlling the Assault of Non Solicited Pornography and Marketing Act of 2003, the Children’s Online Privacy Protection Act ("COPPA"), the Federal Trade Commission Act, the California Consumer Privacy Act ("CCPA"),  other state privacy, data security and breach notification laws, state consumer protection laws,  the European Union’s General Data Protection Regulation (2016/679) ("GDPR") and Privacy and  Electronic Communications Directive 2002/58/EC (the “ePrivacy Directive”), the United Kingdom’s Data Protection Act 2018 (together with the GDPR, the ePrivacy Directive and any  national legislation implementing either, “European Data Protection Law”), Canada’s Personal Information Protection and Electronic Documents Act, Canada’s Anti-Spam Legislation (S.C. 2010,  c 23), the U.S. Trading with the Enemy Act of 1917, the U.S. International Emergency Economic  Powers Act, the Israeli Trading with the Enemy Ordinance of 1939, and any legislation and/or  regulation implementing or made pursuant to, or which amends, replaces, re-enacts or  consolidates, any of the foregoing. For purposes of this Agreement, Laws also include the Cellular Telecommunications Industry Association (CTIA) Messaging Principles and any other applicable self-regulatory rules or codes of conduct, as amended from time to time, including, without limitation, such rules and guidelines issued by the Mobile Marketing Association and telecommunications providers. You also represent, warrant and covenant that you are not identified on the OFAC list of Specially Designated and Blocked Persons or any other U.S. or Israeli list of restricted parties, are not operating from, established under the laws of, or ordinarily resident in Cuba, Iran, Lebanon, North Korea, Syria, or the Crimea region of Ukraine (each a “Sanctioned Country” and collectively the “Sanctioned Countries”), and will not use the Services in a Sanctioned Country.

  2. Privacy and Cookie Notices — Client shall provide and make available to End-Users a privacy notice that describes the collection, use and disclosure of End-Users’ Personal Information in connection with Client’s use of the Services, including without limitation, such collection, use and disclosure contemplated by this Agreement. If Client is subject to the GDPR or ePrivacy Directive or other Laws requiring Client to give notice of, or obtain consent to, the use of cookies or similar technologies on Client’s websites or other online services, then Client shall give such notices and obtain such consents with respect to any Echo Loyalty cookies or similar technologies utilized on Client’s websites or other online services.

  3. Restricted Data — Client shall ensure that, unless pursuant to written permission from Comarch, Client Content does not include (i) protected health  information regulated by the Health Insurance Portability and Accountability Act (“HIPAA”) or  medical information governed by state healthcare privacy laws, (ii) Social Security numbers,  driver’s license numbers or other government-issued identification numbers, (iii) financial information, banking account numbers or passwords, or information regulated by the Gramm Leach-Bliley Act, (iv) payment card data regulated by the Payment Card Industry Data Security  Standards; (v) biometric data regulated by biometric privacy laws, (vi) online account passwords,  login credentials or related information (vii) criminal history, (viii) racial, ethnic, political or  religious affiliation, trade union membership, or information about sexual life or sexual  orientation or other information that constitutes “special categories of data” regulated by the  GDPR or (ix) Personal Information of children under sixteen (16) years of age regulated by  COPPA, the GDPR or under the age of consent for purposes of applicable privacy laws (collectively “Restricted Data”). Comarch shall have no liability with respect to such Restricted Data, notwithstanding anything in the Agreement to the contrary. Client shall immediately notify Comarch in writing if Client discovers that Client Contact does in fact contain Restricted Data, such notification to include sufficient details to permit Comarch to identify and segregate or remove all Restricted Data from Echo Loyalty systems. Client shall cooperate with Comarch to investigate any claim related to any Restricted Data contained within Client Content.

  4. Security — Client shall use its best efforts to prevent unauthorized access to or use of the Services through its or its Permitted Users accounts by maintaining its own security and confidentiality measures, including but not limited to ensuring that only authorized users access the Services (with unique and confidential login credentials for each user) and that all users are contractually bound to abide by Client's obligations to Comarch. Client shall promptly respond to and cooperate with any Comarch reasonable requests to address vulnerability and identified risks. Client shall promptly notify Comarch of any unauthorized access or use and provide reasonable cooperation regarding information requests from law enforcement, regulators or telecommunications providers.

  5.   Obligations Regarding Client Content — Client is solely responsible for the accuracy, content and legality of the Client Content. Client acknowledges that the Services are provided by Comarch to Client on a business-to-business basis, and that Echo Loyalty does not have a direct relationship with any End-User as a result of providing the Services to Client hereunder. As a result, Client acknowledges that Comarch relies on Client’s rights to the Client Content in order to provide the Services, and processes Client Content according to the Echo Loyalty Data Processing Addendum and Client’s instructions thereunder. Comarch shall not be liable for any Client Content, and shall be entitled, in its sole discretion, to edit or remove from the Platform any Client Content which Echo reasonably believes to be inaccurate, inappropriate or otherwise not in compliance with the Agreement or applicable law. NOTHING IN THIS AGREEMENT OBLIGATES COMARCH TO DISPLAY ANY CLIENT CONTENT THAT COMARCH REASONABLY BELIEVES TO BE INACCURATE, INAPPROPRIATE OR OTHERWISE NOT IN COMPLIANCE WITH THIS AGREEMENT OR APPLICABLE LAW OR TO USE SUCH CLIENT CONTENT AT ALL OR IN A CERTAIN MANNER. Client shall designate a copyright agent and implement a notice and takedown mechanism in compliance with the Digital Millennium Copyright Act (or other comparable applicable laws in jurisdictions outside of the United States), and Client shall comply with any such takedown notice received in respect of any Client Content, in each case, to the extent required by applicable law.

  6. Rights in Client Content — Client represents and warrants to Comarch that Client has given all notices  and obtained all rights consents, assignments, licenses, permissions and authorizations (including  the waiver of any moral rights) necessary for Client to transfer to Comarch and for Comarch to collect,  use and share the Client Content (and any Personal Information contained therein) as  contemplated by this Agreement without violation or infringement of (i) any Laws, (ii) intellectual  property, publicity, privacy or other rights, or (iii) any terms of service or other agreements  governing the Client Content or Client’s activities relating to its use of the Services (including,  without limitation, the Instagram Platform Policy).

  7. Permitted Users and End-Users — Client shall ensure that each of Client’s Permitted Users and End-Users is legally bound by Client’s terms of use, terms of service or such other legally binding agreement between Client and each such End-User in a manner that prohibits End-Users from infringing or otherwise violating third-party rights including, without limitation, third-party intellectual property rights. Client is solely responsible for all acts, omissions and activities of Permitted Users and End-Users, including their compliance with this Agreement.

  8. Order Fulfillment — As between Client and Echo Loyalty, Client is solely responsible for all customer service, order fulfillment and returns, and payment of taxes or charges associated with any products or services that Client sells or markets in connection with the domains listed on the Order.

  9. Sending Messages to End-Users via the Services — To the extent that Echo Loyalty provides Client with access to functionality that allows Client to send Client communications by telephone, text/SMS/MMS message or email to End-Users, including, without limitation, marketing and advertising communications ("Client Messages"), Client agrees not to send any unsolicited, commercial communications. Further, Client acknowledges that Client is solely responsible for all content of Client Messages created by or on behalf of Client and for Client’s compliance with all Laws in connection with Client’s use of the Services to send Client Messages. Accordingly, and  notwithstanding any representation or warranty disclaimer in the Agreement, Client represents,  warrants and covenants that: (i) all applicable lists of email addresses and/or phone numbers  were created and/or shared with Echo Loyalty in a manner that complies with Laws, (ii) each End-User  or other recipient of Client Messages or other communications has been given clear and  conspicuous notice prior to the collection of his or her phone number, email address and/or  other contact information that such information may be collected, used or shared to facilitate sending Client Messages to such recipient and as contemplated in this Agreement and (iii) each  End-User or other recipient of applicable communications has given all consents required by Law  to receiving commercial email and other forms of communication, including, but not limited to,  consent to receive the Client Messages.

  10. Limits on Certain Messages — By using functionality to send Client Messages to End-Users, Client agrees to make End-Users aware of their right to opt out of any future messages, as required by law. Client is responsible for honoring all opt-out requests from End-Users. Client must use a valid telephone number. Phone numbers such as landline numbers that cannot receive SMS/MMS or text messages will not be eligible for the Services. Client agrees that Echo Loyalty reserves the right in its sole discretion to cap the number of Client Messages that may be sent in connection with the Services. Applicable message and data rates apply to such messages. Client  hereby acknowledges and agrees that (i) Echo Loyalty merely plays a technical role in transmitting or  routing Client Messages sent by Client as a conduit, (ii) that Client is the sender of any Client  Messages for purposes of Laws, (iii) Echo Loyalty has no relationship with or any obligation to any End User or any other person or entity with to whom Client provides services utilizing the Services  (“End-User Services”), none of whom is a third-party beneficiary of this Agreement, and (iv)  Client shall have sole responsibility and liability for any Client Messages and for compliance with  any Laws related to End-User Services. Echo Loyalty may suspend or disable Client’s ability to send messages through the Services at any time if Echo Loyalty, in its sole discretion, believes Client is sending messages in violation of the Terms of this Agreement.

6. Suspension of service

Comarch may suspend its performance to Client, including but not limited to providing access to the Echo System (“Suspension”), if Client payment method is rejected, paused, or the payment is skipped, including the following events:

  • To prevent harm to the Echo System; Comarch’s, Client’s, or Customers’ Data;
  • If Comarch reasonably believes that Client or its Customers are using the Echo System for illegal, improper, or fraudulent purposes, or in any other manner that will impose unwarranted liability on Comarch, its affiliates, or third parties; or
  • To prevent any potential or actual violation of any Comarch rule or policy, such as Anti-Spam provisions.

Comarch’s performance and other deadlines will be tolled during any Suspension period, on a day-for-day basis. Client’s obligation to pay monthly and other fees will not be tolled during Suspension periods. In addition, Comarch has the right to continue resumption of any suspended Services or System Access on an audit of Client’s interactions with the Echo System and with its Customers relating to the Echo System.

7. Representations and warranties

  1. In addition to representations and warranties made elsewhere in this Agreement, Client  represents and warrants to Comarch that: (i) it is the Controller of Client's Personal Information and of all End-User Personal Information in its possession; (ii) it has, and will have at all times, all right, title and  interest necessary to grant to Comarch any and all licenses granted by Client or its End-Users or  other third parties hereunder for the purposes contemplated by this Agreement, including from  Client’s End-Users or any third-party site for the use of the Client Content; (iii) has all necessary rights, permits and licenses under all Laws, rules and regulations to operate the domains listed  on the Echo Loyalty Order and to promote, offer for sale, and sell all products or services offered or sold  in connection with such domains; (iv) any and all Client Content complies, and will comply at all  times during the term of this Agreement, with all Laws, rules and regulations, and this  Agreement and does not and will not during the term of this Agreement infringe the rights of any  third party, including any intellectual property rights; (v) Client shall comply with all Laws,  including without limitation, TCPA, CAN-SPAM Act and the Digital Millennium Copyright Act; and (vi) it has selected Echo based on its own research and investigation.
  2. Comarch represents and warrants that: (i) it has, and will have at all times, all right, title and interest  necessary to grant any and all licenses granted by Echo Loyalty hereunder for the purposes contemplated by the Agreement; (ii) it has, to its knowledge, all necessary rights, permits and  licenses under all Laws, rules and regulations to operate the Platform in the manner in which it is meant to be operated at any applicable time; and (iii) the Platform (except as related to Client  Content, which shall be the responsibility of Client), shall, to Comarch knowledge, not infringe on the rights, including without limitation, intellectual property rights, of any third party.

8. Confidentiality

  1. During the term of this Agreement, Comarch may disclose or make available to Client information about its business affairs, products/services, confidential intellectual property, trade secrets, third-party confidential  information and other sensitive or proprietary information, whether orally or in written,  electronic, or other form or media , and whether or not marked, designated, or otherwise  identified as “confidential” (collectively, “Confidential Information”). Confidential Information  shall not include information that, at the time of disclosure: (i) is or becomes generally available  to and known by the public other than as a result of, directly or indirectly, any breach of this  Section 8 by the Receiving Party or any of its Representatives, (ii) is or becomes available to the  Receiving Party on a non-confidential basis from a third-party source, provided that such third  party is not and was not prohibited from disclosing such Confidential Information, (iii) was known  by or in the possession of the Receiving Party or its representatives before being disclosed by or  on behalf of the Disclosing Party, (iv) was or is independently developed by the Receiving Party  without reference to or use, in whole or in part, of any of the Disclosing Party’s Confidential  Information; or (v) is required to be disclosed under applicable federal, state or local law,  regulation, or a valid order issued by a court or governmental agency of competent jurisdiction.
  2. Client shall: (A) protect and safeguard the confidentiality of Comarch Confidential Information with at least the same degree of care as Client would protect its own Confidential Information, but in no event with less than a commercially  reasonable degree of care, (B) not use Comarch Confidential Information, or permit  it to be accessed or used, for any purpose other than to exercise its rights or perform its  obligations under this Agreement; and (C) not disclose any such Confidential Information to any  person or entity, except to the Echo Loyalty Representatives who need to know the  Confidential Information to exercise its rights or  perform its obligations under the Agreement.
  3. Client shall immediately notify Comarch of any leak of Confidential Information or demand from a third party for this information.
  4. The provisions of this Section 8 shall survive the natural expiration or termination of this Agreement for any reason for a period of three (3) years.

9. Privacy and data protection

  1. Client instructs Echo Loyalty to use account registration information and other Personal Information of Permitted Users collected in connection with their use of the Services as described in Echo Loyalty Privacy Policy, as updated from time to time (currently available at  https://www.echoloyalty.com/privacy/). Client is responsible for any use of the Services by its Permitted Users and their compliance with this Agreement. Client shall keep confidential its and its Permitted Users’ user IDs and passwords for the Services and shall be responsible for any actions taken through their respective accounts.
  2. Comarch Data Processing Addendum, as updated from time to time (currently available at  https://www.comarch.com/) shall apply and form part of this Agreement when Client Content constitutes Personal Information subject to data protection laws, including  European Data Protection Law or the CCPA.

10. Disclaimers

  1. EXCEPT AS EXPRESSLY PROVIDED HEREIN: (I) THE PLATFORM, INCLUDING WITHOUT LIMITATION  ANY AND ALL ECHO LOYALTY MATERIALS, THE SERVICES (INCLUDING WITHOUT LIMITATION  INSTALLATION, INTEGRATION AND IMPLEMENTATION SERVICES), AND THE PRODUCTS ARE  PROVIDED BY ECHO LOYALTY “AS IS” AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESSED OR  IMPLIED; (II) TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, ECHO LOYALTY  DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO,  IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A  PARTICULAR PURPOSE; (III) ECHO LOYALTY DOES NOT WARRANT THAT THE ECHO LOYALTY MATERIALS, THE  SERVICES OR CONTENT AVAILABLE THROUGH THE PLATFORM WILL BE UNINTERRUPTED OR  ERROR-FREE, OR THAT THE PLATFORM OR THE SERVER(S) THAT MAKE THE PLATFORM  AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; AND (IV) ECHO LOYALTY DOES  NOT WARRANT OR MAKE ANY REPRESENTATIONS THAT CLIENT’S USE OF THE SERVICES WILL COMPLY WITH LAWS OR OTHERWISE RELATING TO THE USE OR THE RESULTS OF THE USE OF THE  SERVICES, THE ECHO LOYALTY MATERIALS OR OTHER CONTENT MADE AVAILABLE IN TERMS OF THEIR  CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. CLIENT IS RESPONSIBLE FOR EVALUATING THE CAPABILITIES AND FEATURES OF THE SERVICES AND MAKING ITS OWN DETERMINATION ABOUT WHETHER CLIENT IS ABLE TO USE THE SERVICES IN COMPLIANCE WITH LAWS. CLIENT IS RESPONSIBLE FOR TAKING ALL PRECAUTIONS IT BELIEVES NECESSARY OR ADVISABLE TO PROTECT IT AGAINST ANY CLAIM, DAMAGE, LOSS OR HAZARD THAT MAY ARISE BY VIRTUE OF ITS USE OF OR RELIANCE UPON THE PLATFORM, ECHO LOYALTY WEBSITE, OR THE SERVICES.  ECHO LOYALTY ADDITIONALLY DISCLAIMS ALL WARRANTIES RELATED TO THIRD-PARTY TELECOMMUNICATIONS PROVIDERS. THE SERVICES SHOULD NOT BE USED FOR EMERGENCY COMMUNICATIONS AND ECHO LOYALTY WILL HAVE NO LIABILITY ARISING FROM SUCH USE.
  2. CLIENT ACKNOWLEDGES, THAT EMAIL AND TEXT/SMS/MMS MESSAGES ARE INSECURE MEDIUMS THAT ARE GENERALLY NOT ENCRYPTED IN TRANSIT AND SECURITY OF INFORMATION TRANSMITTED THROUGH THE INTERNET CAN NEVER BE GUARANTEED AND, ACCORDINGLY, ECHO LOYALTY IS NOT RESPONSIBLE FOR ANY INTERCEPTION OR INTERRUPTION OF ANY COMMUNICATIONS THROUGH THE INTERNET OR FOR CHANGES TO OR LOSS OF CLIENT CONTENT IN CONNECTION WITH THE SERVICES.
  3. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES.  ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY WHERE SUCH LIMITATIONS ARE INAPPLICABLE AND WILL BE DEEMED MODIFIED TO THE MINIMUM EXTENT NECESSARY TO COMPLY WITH APPLICABLE LAW.

11. Limitation of liability

  1. TO THE MAXIMUM PERMITTED UNDER LAW, UNDER NO CIRCUMSTANCES WHATSOEVER WILL  COMARCH NOR ITS RESPECTIVE AFFILIATES OR PARTNERS NOR ANY OF ITS OR THEIR RESPECTIVE  OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, LICENSORS, SUBCONTRACTORS OR SUPPLIERS BE RESPONSIBLE OR LIABLE, UNDER ANY LEGAL THEORY, WHETHER BASED IN CONTRACT, TORT OR OTHERWISE, FOR ANY COMPENSATORY, DIRECT OR INDIRECT, INCIDENTAL,  OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY LOST PROFITS AND LOST  BUSINESS OPPORTUNITIES, BUSINESS INTERRUPTION, REVENUE, INCOME, GOODWILL, USE,  DATA OR OTHER INTANGIBLE LOSSES OR SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES THAT  RESULT FROM OR RELATE IN ANY MANNER WHATSOEVER TO THIS AGREEMENT OR THE  MATTERS CONTEMPLATED HEREIN, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

  2. NOTWITHSTANDING ANYTHING TO THE CONTRARY, COMARCH (BUT IN NO EVENT ANY OF ITS OFFICERS, DIRECTORS, OWNERS, OR PERSONNEL) IS ONLY LIABLE UNDER ANY LEGAL THEORY (CONTRACT, TORT, BREACH OF STATUTORY OR REGULATORY DUTY, OR ANY OTHER THEORY) AT MOST FOR (A) DIRECT DAMAGES CAUSED BY ITS MATERIAL BREACHES OF ITS AGREEMENTS WITH CLIENT AND (B) AN AGGREGATE TOTAL — FOR ALL CLAIMS AGAINST ECHO LOYALTY (NOT JUST PER INCIDENT) — CONSISTING OF THE ACTUAL AMOUNTS PAID BY CLIENT TO COMARCH IN THE SIX MONTHS IMMEDIATELY PRIOR TO THE DAMAGE-OCCURRING EVENT HAPPENED (EVEN IF THE EVENT AND DAMAGES THEREFROM ARE NOT DISCOVERED UNTIL LATER).

  3. COMARCH IS NOT LIABLE FOR ANY DAMAGES OF ANY NATURE THAT CLIENT COULD HAVE REASONABLY AVOIDED OR MITIGATED, OR FOR ANY DAMAGES CAUSED BY ANY UNAUTHORIZED USE OF THE ECHO LOYALTY BY ANYONE EMPLOYED BY OR OTHERWISE AFFILIATED WITH CLIENT.

  4. COMARCH IS NOT LIABLE FOR ANY DAMAGES CAUSED BY ANY THIRD-PARTY PLATFORMS OR SYSTEMS USED BY CLIENT IN CONNECTION WITH THE SERVICES, OR BY RELIANCE ON ANY STATEMENT OR PROMISE MADE BY ANYONE EXCEPT COMARCH WITH RESEPCT TO THE SERVICES OR ITS COMPATIBILITY WITH THE SERVICES.

  5. COMARCH IS NOT LIABLE FOR ANY DAMAGES CAUSED IN WHOLE OR IN PARTY BY CLIENT'S FAILURE TO UTILIZE REQUIRED CONFIGURATIONS FOR SERVICES OR TO FOLLOW ECHO LOYALTY RECOMMENDATIONS CONCERNING SERVICES; CUSTOM PROJECTS FOR CLIENT; CLIENT'S ILLEGAL OR ULAWFUL USE OF SERVICES OR ANY INFORMATION OR DATA OBTAINED THEREFROM; CLIENT'S VIOLATION OF ANY APPLICALBE LAW; ANY FORCE MAJEURE EVENT; OR ANY FAILURE TO MEET DEADLINES BECAUSE OF CLIENT'S DELAY OR FAILURE TO PROVIDE REQUIRED INFORMATION, DATA, OR COOPERATION.

  6. In response to an actual or potential infringement claim, if required  by settlement or injunction or as COMARCH determines necessary to avoid material liability, COMARCH may at its option: (i) procure rights for Client’s continued use of the Platform or the Services, (ii)  replace or modify the allegedly infringing portion of the Platform or the Services to avoid infringement without reducing the Platform’s or the Services’ overall functionality or (iii)  terminate the affected Order and refund to Client any pre-paid, unused fees for the terminated portion of the subscription Term. COMARCH obligations in this Section do not apply (1) to infringement resulting from Client’s modification of the Platform or the Services or use of the Platform in combination with items not provided by COMARCH (including third-party platforms), (2) to infringement resulting from Services other than the most recent release, (3) to unauthorized use of the Platform or the Services, or (4) if Client settles or makes any admissions about a claim without COMARCH prior written consent. This Section sets out Client’s exclusive remedy and COMARCH entire liability regarding infringement of third-party intellectual property rights.

  7. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY WHERE SUCH LIMITATIONS ARE INAPPLICABLE AND WILL BE DEEMED MODIFIED TO THE MINIMUM EXTENT NECESSARY TO COMPLY WITH APPLICABLE LAW.

  8. YOU RECOGNIZE AND AGREE THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THESE TERMS ARE A MATERIAL, BARGAINED-FOR BASIS OF THESE TERMS AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN THE DECISION BY COMARCH TO OFFER TO YOU AND BY YOU TO USE THE SERVICES AND THE PLATFORM.

12. Indemnification

  1. Indemnification — Client will defend (with counsel of Echo's reasonable choosing) comarch, its officers, directors, employees, and  affiliates ("comarch Indemnified Parties") from and against any third-party claim, demand, suit, or  proceeding made or brought against an comarch Indemnified Party to the extent resulting from  Client Content, or Client’s breach or alleged breach of any express or implied warranty, obligation, or representation made in these Terms or otherwise, Client’s use  of the Services, Echo's execution of improper instructions, whose impropriety could not be reasonably determined at the time of issuance, Client's violation of any applicable laws, rules, or regulations, including but not limited to obligations relating to Restricted Data, or any activities other than in accordance with these Terms; and will indemnify  and hold harmless comarch Indemnified Parties against any liabilities, costs, expenses, attorneys' fees, expert witness fees, arbitration fees, dispute resolution fees, additional overhead, and damages, of any type and nature awarded against  comarch Indemnified Parties or agreed in settlement by  Client resulting from the claim, even if Echo is negligent or otherwise at fault in part. Client's duty to defend is broader than its duty to indemnify, and requires defense of any action in its entirety.
  2. Procedures — Comarch will promptly notify Client of any claim for indemnification, and cooperate with Client with respect to any such action, but lack of notice or cooperation only reduces Client's obligations to the extent that such lack materially prejudices Client. Client may not settle any claim without Echo's prior express written consent, unless the settlement does not require any payment or other action by Echo. Echo may participate in a claim with its own counsel at its own expense.

13. Third-party platforms and content

  1. Client may choose to use the Services with certain platform(s), publisher(s), add-on, website(s), service or product not provided by Comarch that Client elects to integrate or enable for use with the Services ("Third-Party Platforms “). Use of Third-Party Platforms is subject to Client’s agreement with the relevant provider and not this Agreement. Comarch does not control and has no liability for Third-Party Platforms, including their security, functionality, operation, availability or interoperability or how the Third-Party Platforms or their providers use any and all data including (without limitation) End-User data. If Client enables a Third-Party Platform to integrate or otherwise operate in connection with the Services, Client authorizes Comarch to (i) access and exchange Client Content  and End-User data (including personally identifiable information) with the Third-Party Platform on Client’s behalf and (ii) if required by the applicable Third-Party Platform, retain Client Content  and/or End-User data for such time period and otherwise in accordance with the terms of the  applicable Third-Party Platform, subject in each case to Comarch obligations under the Data Processing Addendum.
  2. Echo may enable integration of third-party products with the Services through APIs. Client may forward such APIs to verified 3^rd^-party e-commerce platforms solely for integration purposes, and not in a manner that would infringe any of Echo's intellectual or other property rights in the API or any other portion of the Services. Client is solely responsible for such third-party products, whose use is governed by separate agreements between Client and the third party.
  3. If Client is redirected to linked sites and content in connection with Client’s use of any Third-Party Platform, Echo Loyalty recommends Client carefully read and abide by the terms of use and privacy policies of such sites and content. Any opinions, advice, statements, content, services, offers or other information expressed or made available by any Third-Party Platform, are those of the respective third-party author(s) or distributor(s) and do not necessarily state or reflect those of Comarch.

14. Cancellation, termination, and rights

  1. This Agreement is effective between Client and Comarch as of the date of Client’s accepting this Agreement. The initial term of your subscription to the Services is as specified on your Order. As Echo Loyalty is a subscription service, you are billed monthly on the date or purchase with no binding requirement to the Echo System past your monthly subscription cost.
  2. Either Comarch or Client may cancel this agreement if there is a material breach.
  3. For repeated issuance of Improper Instructions, actions or omissions that — even without fault — unreasonably expose Comarch to liability beyond that assumed under its agreements.
  4. If Client files for bankruptcy protection, is subject to an involuntary bankruptcy petition that is not dismissed within 90 days of filing, becomes generally unable to pay its debts when due, is subject to or consents to an assignment for the benefit of creditors, is placed in receivership or similar arrangement, or is otherwise reasonably determined by Comarch to be financially unstable or unable to perform its obligations to Comarch under this Agreement.
  5. Comarch may cancel this Agreement if Client skips or pauses payment more than once.
  6. In any event of cancellation of this Agreement by either Party, all rights granted hereunder shall immediately expire and any and all use and/or exploitation by Client and/or on its behalf of the Services or the Platform, and any part thereof, shall immediately cease and expire.
  7. Echo Loyalty fees are exclusive of any taxes, levies, duties or similar governmental assessments of any nature, other charges, domestic or foreign imposed by any federal, state, or local tax authority with respect thereto including, for example, GST, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Client is responsible for paying all Taxes associated with Client’s orders. If Comarch has the legal obligation to pay or collect Taxes for which Client is responsible.
  8. Termination for Force Majeure Events. Upon written notice, either party may terminate this Contract if one or more Force Majeure Events prevent or materially hinder the benefits received by that party under the Contract for 30 or more consecutive days. But if not exercised, this termination right ceases upon resolution of the Force Majeure Events. This provision does not excuse contract performance based on any frustration of purpose doctrine. Client bears the entire risk that its purpose — even if stated and essential to its use of the Services — is frustrated for any reason.

15. Notices, governing law and jurisdiction

  1. If you reside in the U.S. or your business is located in the U.S., this Agreement is to be construed in accordance with and governed by the laws of the State of New York, United States, without giving effect to its provisions regarding conflict of laws. Each Party hereby irrevocably consents to the subject to the exclusive jurisdiction and venue of the courts located in New York County, New York, and each Party hereby irrevocably submits to the personal jurisdiction of such courts and waives any jurisdictional, venue, or inconvenient forum objections to such venue and courts.
  2. If you reside outside of the U.S. or your business is located outside of U.S., this Agreement is to be construed in accordance with and governed by the laws of Poland, without giving effect to its provisions regarding conflict of laws. Each Party hereby irrevocably consents to the subject to the exclusive jurisdiction and venue of the courts located in Poland, and each Party hereby irrevocably submits to the personal jurisdiction of such courts and waives any jurisdictional, venue, or inconvenient forum objections to such venue and courts.
  3. All notices are to be sent in writing by email to Comarch at: legal_notices@echo.com, to Client at the address provided on the Order. Any such notices shall be deemed to have been given upon delivery.
  4. The Parties will communicate only in English with respect to any matter relating to this Agreement. Echo is not obligated to respond to, and is not deemed to receive notice by, any communication which is not in the English language.

16. Publicity

Client Name/Logo . Comarch may use Client’s name and/logo to identify Client as an Echo Loyalty customer of the Services, including without limitation, on the Echo Loyalty public website and marketing materials. Any such use shall be subject to Comarch compliance with any written guidelines that Client may deliver to Echo Loyalty regarding the use thereof. Client hereby grants Echo Loyalty a non-exclusive, worldwide, royalty free and fully paid up right and license to utilize its name, logo, trade-marks and trade names for the purposes set forth above.

17. General

  1. Prior to taking any legal action, the Parties will work diligently to resolve any disputes, including with personal consultations between decision makers, which may be held remotely. Any disputes relating to this Agreement that remain after 30 days of the start of such negotiations will be submitted to a common court with a seat in Brussels, Belgium for services provided in the European Union, and for services provided in the United States, in a state or federal court located in New York County, New York.
  2. If any dispute between the Parties results in litigation or arbitration, the prevailing party thereto may recover from the other party all reasonable fees, costs and expenses of enforcing any right of the parties, and arbitrators’ and experts’ fees and expenses (”Dispute Expenses"), reasonableness to be measured by the then-applicable standards for commercial litigators in the forum where the dispute is decided. Dispute Expenses include pre- and post-award and pre- and post-judgment Dispute Expenses, as well as all collection costs in any forum.
  3. If any provision of this Agreement is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable and if such provision is determined to be invalid or unenforceable nonetheless, the provision shall be deemed to be severable from the remainder of the Agreement and shall not cause the invalidity or unenforceability of the remainder of the Agreement.
  4. Client acknowledges and agrees that Comarch has the right, at any time and for any reason, to redesign or modify the Echo Loyalty Materials and other elements of the Platform or any part thereof.
  5. Echo may ignore any directions or instructions provided by Client that, in Echo's sole discretion and opinion, does not comply with applicable laws without liability.
  6. This Agreement constitutes the entire agreement between Client and Echo Loyalty respect to the subject matter herein and supersedes and replaces any prior or contemporaneous understandings and agreements, whether written or oral, including previous non-disclosure agreements between the Party. Echo Loyalty may update this Agreement from time to time. We will provide prior written notice of any material updates at least thirty (30) days in advance of the effective date; provided however, Echo Loyalty may not be able to provide at least thirty (30) days prior written notice of material updates to this Agreement that result from changes in law, regulation, or requirements, directly or indirectly, from telecommunications providers. Except as otherwise specified by Echo Loyalty, updates will be effective upon the effective date indicated. The updated version of this Agreement will supersede all prior versions. Following such notice, Client’s continued use of the Services and Platform on or after the effective date of the updated Agreement constitutes Client’s acceptance of such updated Agreement. If you do not agree to the updated version of this Agreement, you must stop using the Services and Platform immediately.
  7. This Agreement does not create a partnership or joint venture between the Parties, or any direct contractual or other relationship between Echo and any End User. Client may not use any name, mark, or symbol of Echo's — or make any representation directly or indirectly — that implies that Echo supports, sponsors, endorses, or otherwise contributes to any aspect of Client’s business, or that falsely implies any other sort of relationship between the Parties.
  8. No failure, delay or default in performance of any obligation of a Party (other than a payment obligation) shall constitute an event of default or breach of this Agreement to the extent that such failure to perform, delay or default arises out of a cause, existing or future, that is beyond the control of such Party, including action or inaction of governmental, civil or military authority; fire; strike, lockout or other labor dispute; flood, terrorist act; war; riot; theft; epidemic, pandemic or quarantine; earthquake, tornado or other natural disaster; failure or diminishment of power or telecommunications or data networks or services; distributed denial of service (DDoS) or other cyberattacks; or refusal of a license by a government agency. The Party affected by such cause shall take all reasonable actions to minimize the consequences of any such cause.
  9. Client may not assign this Agreement without the prior written consent of Comarch, not to be unreasonably withheld. Notwithstanding the above, Client may assign or transfer this Agreement, without the prior written consent of Comarch, to an affiliate or in connection with a sale or merger of all or substantially all of the Client’s business or assets, provided that any such successor agrees to fulfill its obligations under this Agreement. Any unauthorized assignment by Client will be void and of no force or effect. Comarch may, without notice or consent, assign or transfer its rights and/or obligations (in whole or in part) under this Agreement.
  10. Except as expressly stated herein, nothing in this Agreement shall be considered as granting any rights to third parties. The failure of either Party to enforce any rights granted hereunder or to take action against the other Party in the event of any breach hereunder shall not be deemed a waiver by that Party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
  11. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
  12. Comarch may use subcontractors and permit them to exercise Comarch rights (including without limitation the provision of customer support), but Comarch remains responsible for their compliance with this Agreement and for its overall performance under this Agreement.
  13. In any event of a conflict or inconsistency between the terms herein and the terms of the Order Form, the terms of the Order Form shall prevail. Any additional or conflicting terms contained in purchase orders issued by Client with respect to the subject matter hereof are hereby expressly rejected and shall have no force or effect on the terms of this Agreement or any Order Form.
  14. EXCEPT FOR CLAIMS RELATED TO OR ARISING FROM CLIENT’S INDEMNITY OBLIGATIONS CONTAINED IN SECTION 12 HEREOF OR CLIENT’S PAYMENT OBLIGATIONS HEREUNDER, CLIENT AND COMARCH AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE SERVICES OR THE PLATFORM MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION SHOULD HAVE REASONABLY BEEN DISCOVERED. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.