Corporate Client Terms of Service
Last updated: October 15, 2024
Welcome to Tremendous!
This CORPORATE CLIENT TERMS OF SERVICE (this “Agreement”) is between Tremendous, LLC, a Wisconsin limited liability company (“Tremendous,” “we,” “us,” or “our”) and the entity on whose behalf a Tremendous Account is created (“Client” or “you”). Tremendous and Client are each a “Party” and, together, the “Parties.” This Agreement governs your use of the services provided by Tremendous (the “Services”) described below and accessible through a website, web widget, API, mobile applicable, or any other similar platform owned, controlled, operated or offered by Tremendous (the “Site”). By accessing, using, or attempting to access or use the Services, you acknowledge and agree that you have read, understood and accepted all of the terms and conditions contained in this Agreement, as well as our Privacy Policy and Data Processing Addendum.
We may amend this Agreement from time to time by posting a revised version of this Agreement to www.tremendous.com/terms and sending notice to the email associated with your Tremendous Account, and may do so without advance notice to you, as further described in Section 18.b. below. Accordingly, please review the Agreement posted at this location on a periodic basis. Each time you use the Services, you agree to be bound by the terms of the Agreement in effect at the time of your use thereof. The “Last Updated” legend at the top of this page indicates when the Agreement was last revised. Any changes to this Agreement will become effective upon the earlier of: (a) your first use of the Site and Services with actual notice of such changes, or (b) 30 days after we post or distribute the revised Agreement and such changes will apply to your use of the Site and Services after the effective date of the revised Agreement. If you do not agree to the revised terms, you are not permitted to use the Services.
Clients that use the Tremendous API are also subject to our API Terms. Clients that offer the Services to their end users are also subject to the Platform Client Terms.
As referenced in Section 16 of this Agreement, any dispute between you and Tremendous is subject to a class action waiver and must be resolved by individual binding arbitration. Please read the arbitration provision in this Agreement as it affects your rights under this Agreement.
THE SERVICES.
Generally. Tremendous is engaged in the business of facilitating the provision of monetary payouts, rewards and incentives to employees, customers, and other recipients by you and other commercial entities.
Fees. Unless otherwise agreed by the parties, the Services are subject to the fees set forth on the Tremendous Pricing Page and incorporated into this Agreement by reference.
Eligibility. Only business and governmental entities are eligible to apply for a Tremendous Account and use the Services. Client must be in good standing in the state in which you are organized. You are solely responsible for complying with all laws and regulations that are applicable to your business and your use of Tremendous products, including consumer privacy laws and data security laws.
Your Representative. You and your Representative each affirm to Tremendous that (a) your Representative is authorized to provide Client identifying information on your behalf and to bind you to this Agreement; and (b) your Representative is an executive officer, senior manager or otherwise has significant responsibility for the control, management or direction of your business. Tremendous may require you or your Representative to provide additional information or documentation demonstrating your Representative’s authority.
Age. Your Representative must be the older of: (i) 18 years, or (ii) at least the age of majority in the jurisdiction where your Representative resides and from which you use the Services to open a Tremendous Account.
Use Only for Business Purposes. You confirm that you are receiving any Services provided by Tremendous for the purposes of carrying on a business activity and not for any personal, household or family purpose.
Supported Jurisdictions. While Tremendous offers the Services throughout the world, it does not operate in all jurisdictions. Here is a list of jurisdictions we do not serve. We reserve the right to reject your request to create a Tremendous Account in the event you are located (or primarily operate) in a jurisdiction we do not serve. It is your responsibility to know where your Recipients are located and whether they will be able to use the Service and choose a valid Redemption Option in the jurisdiction in which such Recipient is located. We disclaim all responsibility for a Recipient’s inability to use or redeem a Payout in a jurisdiction we do not serve.
Orders. When submitting an Order, Client will specify the type of Payout, amount of each Payout, Recipient contact information (if applicable), available Redemption Options, any additional services, and applicable pricing. Orders may be submitted using the Tremendous Account, the Site, or in a manner otherwise mutually agreed upon by the Parties.
Additional Services. Tremendous may offer Client additional services, which are listed on the Tremendous Service Guide. Such additional services may be offered by Tremendous or a third-party vendor and may be subject to additional terms and conditions (which will be disclosed at the time of selection). ANY ADDITIONAL SERVICE IS OFFERED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY.
Cooperation by Client. Client acknowledges that the successful and timely rendering of the Services to be provided hereunder will require the good faith cooperation of Client. Accordingly, Client will fully cooperate with Tremendous, including by providing Tremendous with all information necessary or appropriate to Tremendous’ performance of the Services, as reasonably requested by Tremendous.
Failure to Cooperate. Client acknowledges and agrees that Tremendous will not be liable for a failure to perform or delay in the performance of any Services or any other obligation under this Agreement if such failure or delay is caused by Client failing to timely perform its obligations hereunder or to provide Tremendous with the requisite information or cooperation with respect to its performance of such Services or obligations.
Access. To access the Services, Client must have the necessary equipment and associated telecommunication services to access the internet. The Services can be accessed directly using the Site. The availability of the Services may be affected by: (i) telecommunication network activity or capacity; (ii) hardware failures; and/or (iii) compatibility with third-party communication equipment, internet access software and/or browsers. THOUGH TREMENDOUS STRIVES TO PROVIDE CONSISTENT SERVICE AND ACCESS, TREMENDOUS DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, THAT THE SITE OR THE SERVICES SATISFY ALL OF CLIENT’S REQUIREMENTS OR WILL BE UNINTERRUPTED, ERROR-FREE OR FREE FROM HARMFUL COMPONENTS.
Updates. Tremendous may make Updates to the Site or the Services from time to time, in its sole discretion and without notice to Client, provided that no such Updates will materially, adversely impact the availability of the Site, the Services, or any Redemption Options. If Tremendous determines that any Update will materially, adversely impact the availability of the Site, the Services, or any applicable Redemption Options, it will provide Client with at least five (5) days’ written notice of such Update or, in the event such Update is required pursuant to a Regulatory Determination or otherwise required by a Provider, Tremendous will notify Client as promptly as practicable, whichever period is shorter. Such notice will be provided by email (to the address associated with the Tremendous Account) and/or through the Tremendous Account dashboard.
TREMENDOUS ACCOUNT.
Tremendous Account. In order to access the Site and use the Services, Client will provide Tremendous with all information we require to create a Tremendous Account for you. Client hereby permits Tremendous to keep a record of such information and to share such information with the Bank and other service providers, in accordance with the Tremendous Privacy Policy.
OFAC Screening and Sanctions. Tremendous complies with the economic sanctions programs administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC“). As part of the identity verification process, Tremendous will check your information against the OFAC Specially Designated Nationals and Blocked Persons List (“SDN List“) and ensure that you are not operating in a jurisdiction subject to sanctions. Tremendous will periodically check the information you provide to us, including Recipient’s information, against the SDN List to comply with our obligations under federal law. Tremendous is not responsible for any losses, whether direct or indirect, that you may incur as a result of our compliance with applicable law, the guidance or direction of any Governmental Authority, or any writ of attachment, lien, levy, subpoena, warrant or other legal order.
Receipt of Information from Third Parties. You authorize Tremendous to make inquiries, whether directly or through third parties, that we consider necessary to verify your identity or protect you and/or us against fraud or other financial crime, and to take action we reasonably deem necessary based on the results of such inquiries. When we carry out these inquiries, you acknowledge and agree that information you have provided to us may be disclosed to credit reference and fraud prevention or financial crime agencies and that these agencies may respond to our inquiries in full.
Complete and Accurate Information. In providing Tremendous with this or any other information that may be required, Client confirms that the information is accurate and authentic. You agree to keep Tremendous updated if any of the information you provide to us changes.
Enhanced Due Diligence. Tremendous may, in its sole discretion, determine additional information is required or is otherwise prudent to obtain from you. Client agrees to provide all additional information the Tremendous requests without undue delay. If Client refuses to provide the requested information in a timely manner, Tremendous may, in its sole discretion: (i) not create a Tremendous Account, (ii) suspend access to a current Tremendous Account, or (iii) terminate a current Tremendous Account.
Authorized Users. Client may authorize certain of its trusted officers, employees, and representatives to access its Tremendous Account (each, an “Authorized User”). Tremendous is not responsible for authenticating the identity of any Authorized User. Client is fully responsible for all activity that occurs on its Tremendous Account. Client is responsible for maintaining adequate security and control of any and all credentials associated with the Tremendous Account. Any loss or compromise of such information may result in unauthorized access to the Tremendous Account by third parties and the unauthorized distribution of Payouts, and loss of information. If Client believes its Tremendous Account or any credentials or other information associated therewith has been compromised, Client must immediately contact Tremendous Customer Support at [email protected]. Client remains responsible for all activity, including Orders, that takes place on its Tremendous Account until you notify Tremendous of the known or suspected breach and we have the opportunity to respond and secure the Tremendous Account.
Tremendous Account Access. Tremendous may, in its sole discretion, deny or limit access of any Authorized User to the Tremendous Account or suspend the Tremendous Account. In the event Tremendous denies, limits, or suspends access to a Tremendous Account, it will promptly notify Client of such action and the reasons therefor. Tremendous may rely on Client’s investigation and determination in its decision to reinstate access to one or more Authorized Users or to the Tremendous Account.
Dashboard Functionality. Through its Tremendous Account, Client and its Authorized Users may (i) submit Orders; (ii) review prior Orders; (iii) view the Balance; and (iv) transfer funds to or from the Balance.
USE OF SITE AND SERVICES.
Access. Client may access and use the Services through the Site and your Tremendous Account.
Restrictions on Use and Access. When using the Site, Client will (and will ensure Authorized Users will):
only use the Site to engage with the Services;
not distribute, sell, lease, rent, lend, transfer, assign, or sublicense any rights granted herein to a third party;
not use or access the Site or the Service in order to monitor the availability, performance, or functionality of the Site, the Service or any portion thereof or for any similar benchmarking purposes;
not remove or destroy any copyright notices, proprietary markings or confidentiality notices placed upon, contained within or associated with the Site;
not engage in any activity that interferes with, disrupts, harms, damages, or accesses in an unauthorized manner the servers, security, networks, data, applications or other properties or services of Tremendous or any third party;
not circumvent technological measures intended to prevent direct database access, or manufacture tools or products to that effect;
not modify, translate, reverse engineer, disassemble, reconstruct, decompile, copy, or create derivative works of the Site, Client Materials, Usage Data, the Services, or any aspect or portion thereof, except to the extent that this restriction is expressly prohibited by Applicable Law;
not bypass Site restrictions for any reason;
not access or use the Site to develop or distribute Payouts or use the Services in any way in furtherance of criminal, fraudulent, or other unlawful activity; and
not attempt to tamper, hack, modify or otherwise corrupt the security or functionality of the Site or the Services.
FEES AND PAYMENTS.
Generally. Client will pay Tremendous the Face Value of all Payouts sent using its Tremendous Account, plus any additional fees as set forth on the Tremendous Pricing Page. The total purchase price of each Order is presented to you at the time you submit an Order. If you place such Order after reviewing the purchase price, Client will have no right to dispute any charges or fees associated therewith, as Client has the opportunity to review and dispute any proposed charges prior to purchase. If Client believes the total purchase price reflected at the time you attempt to place an Order is incorrect, you may contact [email protected] or use the Tremendous chat feature in your Tremendous Account.
Prefunding a Balance. Prior to sending any Payouts, Client may transfer funds to a bank account at a federally-insured depository institution (the “Bank”) as may be designated by Tremendous from time to time (such funds, the “Balance”). The Balance will be held in a pooled account owned by the Bank and held for the benefit of Tremendous clients, including Client. Tremendous maintains the books and records associated with each Balance on the Bank’s behalf. The Balance will be displayed on the Tremendous Account’s dashboard and each Payout sent by Client will be reflected as a debit to the Balance.
Funding the Balance. To fund the Balance, Client will log into its Tremendous Account and: (i) link one or more of its corporate bank accounts to its Tremendous Account (each, a “Designated Account”), (ii) request transfer instructions from Tremendous, or (iii) make a payment by corporate credit card. Note that any credit card transactions are subject to an additional 3% processing fee. Client may add or remove a Designated Account from its Tremendous Account at any time. Once Tremendous confirms receipt of the relevant funds, the Balance will be updated in the Tremendous Account. This may take up to three (3) Business Days, depending on the method of transfer. The Client may purchase Payouts (inclusive of applicable fees or discounts/rebates) up to the value of the Balance.
Recalling Funds from the Balance. Client may request some or all of its Balance be returned to a Designated Account. Client can request such funds transfer by logging into its Tremendous Account and requesting that Tremendous transfer a specific amount from the Balance. Tremendous will direct the funds be transferred to the Designated Account within two (2) Business Days of its receipt of the request. It may take up to three (3) Business Days from Tremendous’ direction to the Bank for the requested funds to settle in the Designated Account. If Client does not have a Designated Account, it can provide transfer instructions to Tremendous via its Tremendous Account and Tremendous will direct the funds to be transferred to the requested bank account within three (3) Business Days of its receipt of such request; it may take up to an additional three (3) Business Days until funds are received into the requested bank account.
Abandoned Balance. If Client terminates the Tremendous Account while a Balance remains associated therewith, if Client does not instruct Tremendous on where to send such funds, Tremendous may deem the funds in the Balance abandoned by you and deliver them to the appropriate Governmental Authority. Prior to doing so, Tremendous will attempt to notify you and request transfer instructions.
Payment at Time of Sale. Client may use a Designated Account or other payment method as may be accepted by Tremendous from time to time (e.g., corporate credit card or ACH payment) to pay the full amount due for any one Order at the time Client desires to purchase such Payouts. Tremendous will provide the total amount due, inclusive of applicable fees and charges, to Client at the time Client desires to finalize a purchase of Payouts. Note that any credit card transactions are subject to an additional 3% processing fee. If Client accepts the total amount due, Client must enter payment information at “check-out.” Upon confirmation of payment, Tremendous will send the Payouts as contemplated by Client (i.e., to designated Recipients or to Client as Payout Links).
ACH Authorization. By linking a Designated Account to your Tremendous Account, Client: (i) authorizes Tremendous to electronically debit (and, if necessary, initiate credit entries to correct erroneous debits) such Designated Account from time to time; (ii) will not request transfers that would violate U.S. laws or NACHA Rules; (iii) will comply with the NACHA Rules; and (iv) authorize Tremendous (or its designee) to audit your compliance with this Agreement and the NACHA Rules (with respect to your use of the Designated Account). Tremendous reserves the right to impose limits on your use of the Designated Account, including volume and transaction limits. In the event Tremendous imposes such limits, we will notify you of the limits and the reasons therefor. Tremendous may suspend your Tremendous Account or reject a Designated Account if we reasonably believe you have violated this Agreement or the NACHA Rules.
Taxes. Unless specifically stated otherwise, Tremendous does not calculate any taxes that you may owe. Client has sole responsibility and liability for:
determining which, if any, taxes or fees may apply in connection with your use of the Services; and
assessing, collecting, reporting and remitting applicable taxes for your business.
PAYOUTS. Tremendous offers a variety of Payout options, each described below. You can place an Order for any of the below through your Tremendous Account. Applicable pricing is set forth in the Tremendous Service Guide and, unless you are using the Tremendous API (subject to the Tremendous API License and Terms), you must consent to the full purchase price for each Order at the time of purchase.
Payouts, generally. Client may purchase and send Payouts via the Tremendous Account. Subject to the terms set forth herein, Client may purchase an unlimited number of Payouts from Tremendous and direct Tremendous to send Payouts to Recipients via email or SMS text message. For each Payout, Client must specify the (i) value and (ii) Recipient. Client is solely responsible for providing Tremendous with accurate and complete contact information for each Recipient.
Transmission Errors. If Tremendous receives notice of non-delivery of a Payout (e.g., email bounce-back), Tremendous will notify Client and allow Client the opportunity to revise such Recipient’s contact information. If Client becomes aware of an error in a Recipient’s contact information or other Payout distribution issue, Tremendous will provide reasonable assistance in attempting to correct the error or such other distribution issue upon notice from Client. For the avoidance of doubt, Tremendous is not responsible for any loss resulting from Client’s provision of incorrect or inaccurate contact or disbursement information.
Payout Links. Client may request that Tremendous generate one or more Payout Links in a specific amount. Access to and purchase of Payout Links is subject to Tremendous’ consent and is not automatically authorized upon the creation of a Tremendous Account. Upon submission of an Order, Tremendous will provide Payout Links to Client. Client is responsible for sending each Payout Link directly to the Recipient. Each Payout Link can only be sent once, to a single Recipient. Once a Payout Link is generated and sent to Client, per Client’s request, all risk of loss related to such Payout Link passes to Client.
Transmission Errors. If Client sends a Payout Link to the incorrect Recipient or receives notice of non-delivery of a Payout Link (e.g., email bounce-back), it must notify Tremendous and provide the full Payout Link address(es) of each affected Payout Link. Tremendous will provide reasonable assistance to Client to cancel and/or transfer the applicable Payout Link to the intended Recipient, provided, however, that Tremendous is not responsible for any lost or misdirected Payout Links (or the Payouts associated therewith) once delivered to Client.
Order and Payout Limits. At no time will Client send Payouts totaling $10,000 or more to any one Recipient in a single day. No individual Payout may have a value of more than $2,000. Tremendous may impose or modify Order limits, either for individual Payouts, one or more Redemption Options, or for the Tremendous Account, generally, at any time in its sole discretion. If Tremendous imposes or changes a limit on the Tremendous Account, it will promptly notify you of such limit and the reason(s) therefor.
PREPAID CARDS
Bulk Prepaid Cards. Client may choose to purchase physical Prepaid Cards in bulk from Tremendous. For the avoidance of doubt, Client’s purchase of physical Prepaid Cards is not a Redemption Option under this Agreement. Prepaid Cards are subject to separate and additional terms and conditions, which will be applicable to Client upon the shipment thereto. Client is responsible for the distribution, storage, and protection of any physical Prepaid Cards it purchases from or through Tremendous. The risk of loss of physical Prepaid Cards purchased by Client passes to Client once such Prepaid Cards are shipped by the applicable Provider. Tremendous disclaims all liability for any loss of physical Prepaid Cards due to carrier issues, theft, or similar reason, provided that such loss is not due to Tremendous’ gross negligence or willful misconduct. Tremendous will, in its sole discretion, determine the appropriate Prepaid Card to provide to Client. In making its determination, Tremendous relies on information you provide with respect to the type of Recipient and the relevant use case.
Direct-Shipped Prepaid Cards. Client may purchase physical Prepaid Cards from Tremendous and direct Tremendous to distribute such physical Prepaid Cards to Recipients. Client may submit a list of Recipients and their complete physical address (only U.S. addresses will be accepted) via the Tremendous Account or as otherwise agreed upon by the Parties. For the avoidance of doubt, Client’s purchase of physical Prepaid Cards and Tremendous’ distribution thereof is not a Redemption Option hereunder. Prepaid Cards are subject to separate and additional terms and conditions, which will be applicable to Recipient’s use thereof upon the shipment thereto. The risk of loss of physical Prepaid Cards purchased by Client passes to Recipient once such Prepaid Cards are shipped by the applicable Provider. Tremendous disclaims all liability for any loss of physical Prepaid Cards due to carrier issues, theft, or similar reason, provided that such loss is not due to Tremendous’ gross negligence or willful misconduct.
Bulk or Direct-Shipped Physical Prepaid Cards. Client may cancel its order of physical Prepaid Cards to be delivered either (a) to Client or (b) to Recipients, per Client’s instructions to Tremendous until the earlier of (i) the shipment date or (ii) seven (7) days after submitting the Order.
REDEMPTION OPTIONS. Client may select which Redemption Options it desires to provide to Recipients by specifying its choices at the time it places the Order in the Tremendous dashboard or API. Tremendous will follow the Recipient’s instructions with respect to their choice of Redemption Option. Tremendous may update or make additional Redemption Option(s) available throughout the Term. Any new or amended Redemption Options will be reflected at the time of Client’s next Order. Client may choose to make the following Redemption Options available to Recipients:
Digital Prepaid Card. Each Visa or Mastercard Prepaid Card is issued by a bank and subject to additional terms and conditions, which are disclosed to the Recipient at the time of redemption. Digital Prepaid Cards are delivered to Recipients electronically via email at an email address specified by the Recipient at the time of redemption.
Digital Gift Card. Digital Gift Cards are issued by Providers. Gift Cards are subject to additional terms and conditions, which are disclosed to the Recipient at the time of redemption. Digital Gift Cards are delivered to Recipients electronically via email at an email address specified by the Recipient at the time of redemption. Client may pre-select specific Gift Cards or collections of Gift Cards that will be available to Recipients or may allow Recipients to choose from all options available on the Site.
Physical Prepaid Card. Each physical Prepaid Card is issued by a bank and is subject to third-party terms and conditions, which will be disclosed to Recipient at the time of redemption. This Redemption Option is only available to Recipients based in the United States. Cards will be mailed to the physical address specified by the Recipient. Client may be responsible for additional fees if it includes a physical Prepaid Card Redemption Option.
Monetary Options. PayPal, Venmo or ACH transfer may be available options. In each instance, Recipient will specify his or her relevant account information, subject to third-party verification. Upon receipt of such instructions from Recipient, Tremendous will instruct the Bank to transfer the full value of the Payout to the designated account. Client may be responsible for additional fees if it includes a cash Redemption Option in an Order.
CANCELLATIONS AND REFUNDS.
Payouts, generally. Client may cancel a Payout until the earlier of (i) seven (7) days after submitting an Order or (ii) Recipient’s redemption of the Payout. After such period, Payouts are cancellable, refundable, transferrable, and exchangeable at Tremendous’ sole discretion. If Client has made a typographical error in its instructions, either to Tremendous or directly (if using Payout Links), Client will promptly notify Tremendous of the error and Tremendous will endeavor to transfer the Payout to the correct Recipient, it being understood that Tremendous has no obligation to cancel, refund, redirect or transfer such Payout. If the Payout has already been redeemed or if Tremendous is unable to cancel or redirect the Payout, Client remains responsible for the payment therefor, provided that the initial misdirection of the Payout was not due to Tremendous’ gross negligence or willful misconduct.
Misuse. If Tremendous determines that Client is misusing, abusing or otherwise exercising its right to cancel Payouts in a manner that is inconsistent with the spirit of this Agreement, Tremendous may, in its sole discretion, cease or amend the cancellation period for Client. In such event, Tremendous will notify Client of the change and the reasons therefor.
Unredeemed Payouts. All right, title and ownership of a Payout pass to the Recipient once such Payout is sent to the Recipient. To the extent that Client fails to send a Payout Link, Client hereby assigns and agrees to transfer the entire value of the Payout Link to Tremendous one (1) year after the purchase thereof.
REPRESENTATIONS AND WARRANTIES. Client represents, warrants and covenants that, as of the Effective Date, and continuing throughout the Term:
It is a corporation duly incorporated, validly existing and in good standing under the laws of the country, province, or state in which it is incorporated, and is in good standing in each other jurisdiction where the failure to be in good standing would have a material adverse effect on its business or its ability to perform its obligations under this Agreement.
It has all necessary corporate power and authority to carry on its business as presently conducted and as will be conducted pursuant to this Agreement.
It has all necessary rights, regulatory approvals, corporate power and authority to enter into this Agreement and to perform its obligations hereunder, and the execution and delivery of this Agreement and the consummation of the transactions contemplated thereby have been duly authorized by all necessary corporate actions on its part.
This Agreement constitutes a legal, valid, and binding obligation of Client, enforceable against it in accordance with its terms.
The execution, delivery, and performance of this Agreement will not constitute a violation of any law, regulatory requirement, judgment, order or decree.
This Agreement does not involve the counseling or promotion of a business arrangement that violates state or federal law.
It is not using the Services to distribute funds (or value) that constitute wages to its employees or independent contractors.
It has obtained all requisite rights, approvals, permits, and waivers needed to provide Client Materials and other materials, data, or information provided by Client to Tremendous hereunder, and that Client Materials and any other materials, data, and information provided to Tremendous will comply with all applicable law, and will not violate or infringe any third-party’s intellectual property, privacy rights, or proprietary rights.
It will implement appropriate administrative, technical, and physical safeguards designed to ensure the security of its connection to the Site, protect against any anticipated threats or hazards to the security or integrity of the Site and protect against unauthorized access to or use of the Site that could result in substantial harm or inconvenience to Tremendous.
Neither it nor its Recipients are engaged in an activity listed on Prohibited Customers and Activities List.
DATA OWNERSHIP AND USE.
Client Materials. As between the parties, Client will exclusively own all rights (including any intellectual property or other proprietary rights) in and to the materials owned by Client prior to the Effective Date or developed by Client independently and outside the scope of this Agreement and provided by Client to Tremendous under the Agreement (collectively, “Client Materials”).
Usage Data. As between the parties, Tremendous will exclusively own all rights (including any intellectual property or other proprietary rights) in and to all data analytics and aggregated data generated from (i) Client’s use of the Service; (ii) Client Materials; (iii) Recipients’ interactions with the Site and Service; and (iv) data related to the redemption of Payouts (collectively “Usage Data”). Tremendous has the right to use, create derivative works of, distribute and otherwise exploit all such Usage Data.
Personal Data. When you provide Personal Data to Tremendous, or authorize Tremendous to collect Personal Data, Client must provide all necessary notices to and obtain all necessary rights and consents from the applicable individuals (including Recipients) sufficient to enable Tremendous to lawfully collect, use, retain and disclose the Personal Data in the ways this Agreement, our Data Processing Agreement, and our Privacy Policy describe. By using the Services, you also agree to the terms of our Privacy Policy and our Data Processing Agreement.
DATA SECURITY.
Controls. Each Party will maintain commercially reasonable administrative, technical, and physical controls designed to protect data in its possession or under its control from unauthorized access, accidental loss and unauthorized modification. You are responsible for implementing administrative, technical, and physical controls that are appropriate for your business.
Tremendous Account and API Credentials. Client is responsible for the security of all credentials associated with your Tremendous Account and your API Credentials (if applicable). Client is responsible for all activity that occurs on its Tremendous Account. If you know or suspect your Tremendous Account or API Credentials have been compromised, you must immediately notify Tremendous and cooperate with us to address any unauthorized Orders or other activities. Any act or failure to act by Tremendous will not diminish your responsibility for such compromised credentials and Tremendous Account activity.
INTELLECTUAL PROPERTY.
Marks. Client hereby grants to Tremendous during the Term a non-exclusive, royalty-free, non-assignable, worldwide license to use (but not the right to sublicense) Client’s Marks (and the registration that exist for such Marks, if any) solely to the extent that: (i) Client authorizes in connection with this Agreement, (ii) such use is necessary for Tremendous to perform its obligations hereunder, (iii) Client approves in connection with any press release, and (iv) Tremendous may identify Client as a customer of Tremendous in marketing materials. As between the parties, title to and ownership of Client’s Marks remain with Client (or its affiliates) and all use of Client’s Marks will inure to the sole benefit of Client (or its affiliates). Other than as expressly provided herein with respect to Client’s Marks, Tremendous will not obtain any right, title or other interest in Client’s Marks by virtue of this Agreement. Upon termination or expiration of this Agreement, all license rights conveyed by Client to Tremendous will cease, and all such rights revert back to Client.
License to Client Materials. Client hereby grants Tremendous a fully paid-up, royalty free worldwide, non-exclusive, non-transferrable (except as permitted under Section 18(f) (Assignment)) license during the Term to view, perform, copy and use such Client Materials solely for and in connection with performance of the Services and provision of the Deliverables hereunder.
Ownership of Tremendous Materials. As between the parties, Tremendous will exclusively own all rights (including any intellectual property or other proprietary rights) in and to the Tremendous Marks, Services, Site and Deliverables, except for any Client Materials. As used herein, “Deliverables” means, without limitation, all designs, copyrightable works, patented rights, ideas, inventions, technology and other creations, and any related works-in-progress, improvements, or modifications of the foregoing, that are created, developed, conceived (alone or with others) in connection with the Services, including the Site. To the extent that any rights in the Deliverables or the Site vest in Client, Client hereby irrevocably assigns to Tremendous, without additional consideration, all worldwide right, title, and interest in and to all Deliverables or the Site, whether existing now or in the future , including all copyrights, trademarks, trade secrets, patents, industrial rights, and all other intellectual property and proprietary rights related to the Deliverables or the Site, and agrees that the assignment is effective as soon as is possible under any applicable law, statute, or regulation. Client will (even after termination of this Agreement) execute written instruments and do other acts as may, in the opinion of Tremendous, be necessary to evidence or enforce Tremendous’ rights in and to the Deliverables and the Site, and Company hereby irrevocably appoints Tremendous and any of its officers as its attorney-in-fact to undertake such acts in its name.
Feedback. Tremendous welcomes any ideas and/or suggestions regarding improvements or additions to the Services. Under no circumstances will any disclosure of any idea, suggestion or related material or any review of the Services, Redemption Options or any Provider (collectively, “Feedback”) to Tremendous be subject to any obligation of confidentiality or expectation of compensation. By submitting Feedback to Tremendous, you waive any and all rights in the Feedback and that Tremendous is free to implement and use the Feedback if desired, as provided by you or as modified by Tremendous, without obtaining permission or license from you or from any third party. Any reviews of the Service, a Provider, or Redemption Option that you submit to us must be accurate to the best of your knowledge, and must not be illegal, obscene, threatening, defamatory, invasive of privacy, infringing of intellectual property rights, or otherwise injurious to third parties or objectionable. Tremendous reserves the right (but not the obligation) to remove or edit Feedback, but does not regularly inspect posted Feedback.
TERM AND TERMINATION.
Term. This Agreement will continue in effect until terminated by one or both parties as permitted in this Section 12 (from the Effective Date until such termination, the “Term”).
Termination by Client. Client may terminate this Agreement at any time by closing your Tremendous Account. You can close your Tremendous Account by contacting [email protected] or using the dashboard on the Site. Once your Tremendous Account is closed, you will no longer have access to the Services. If, after termination, you wish to use the Services again, Client must request to create a new Tremendous Account and this Agreement will apply effective as of the date on which you first use the Services again.
Termination by Tremendous. Tremendous, in our sole discretion, may suspend or terminate your access to or use of your Tremendous Account and/or the Services, for any reason, including, without limitation, if we receive a facially valid subpoena, court order or other binding order from a government authority requiring us to do so or if we believe you have violated this Agreement, in letter or in spirit. Tremendous may also, in our sole discretion, discontinue providing the Services, or any part thereof, with or without prior written notice to Client. If such discontinuation has a material impact on Client’s use of the Service or any specific Order, Tremendous will contact Client directly to reach a reasonable compromise, which may include a refund.
Effect of Termination. Upon termination of this Agreement, Tremendous will not be obligated to provide any additional Services, and Client will pay Tremendous for all fees related to Services performed but not yet paid through the date of termination. For the avoidance of doubt, the termination of this Agreement will not impact the rights of Recipients with respect to Payouts distributed prior to the date of termination.
INDEMNIFICATION. TO THE FULLEST EXTENT PERMITTED BY LAW, CLIENT AGREES TO INDEMNIFY AND HOLD TREMENDOUS, ITS AFFILIATES, AND ITS PARENT, SUBSIDIARIES, OFFICERS, EMPLOYEES, AGENTS, DIRECTORS, MANAGERS, EQUITY OWNERS, SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE “TREMENDOUS GROUP”), AS APPLICABLE, HARMLESS FROM ANY CLAIM OR DEMAND, INCLUDING REASONABLE ATTORNEYS' FEES, DUE TO OR ARISING OUT OF YOUR USE OF THE SERVICES, THE VIOLATION OF THIS AGREEMENT BY CLIENT, THE INFRINGEMENT BY YOU (OR ANYONE ACCESSING THE SITE USING YOUR TREMENDOUS ACCOUNT) OF ANY INTELLECTUAL PROPERTY OR OTHER RIGHT OF ANY PERSON OR ENTITY OR VIOLATION OF ANY APPLICABLE LAW.
LIMITATION OF LIABILITY. IN ADDITION, TO THE FULLEST EXTENT PERMITTED BY LAW, TREMENDOUS SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLES, EVEN IF TREMENDOUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING DAMAGES RESULTING FROM (I) THE USE OR THE INABILITY TO USE THE SERVICES; (II) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES; OR (III) UNAUTHORIZED ACCESS TO YOUR ACCOUNT OR ALTERATION OF YOUR ACCOUNT OR DATA. YOU SPECIFICALLY AGREE THAT TREMENDOUS IS NOT RESPONSIBLE OR LIABLE TO CLIENT OR ANYONE ELSE FOR ANY LOSS OF, ON, OR THROUGH THE SITE OR THE SERVICES, OR FOR ANY INFRINGEMENT OR VIOLATION OF YOUR RIGHTS BY ANY OTHER PARTY, INCLUDING BUT NOT LIMITED TO INTELLECTUAL PROPERTY RIGHTS, RIGHTS OF PUBLICITY, OR RIGHTS OF PRIVACY. TREMENDOUS’ TOTAL LIABILITY TO YOU FOR BREACH OF CONTRACT AND FOR ANY AND ALL OTHER CLAIMS (INCLUDING TORT CLAIMS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SITE OR THE SERVICES, SHALL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES CLIENT HAS PAID TO TREMENDOUS IN THE TWELVE (12) MONTHS PRIOR TO SUCH ALLEGED BREACH OR OTHER CLAIM. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, THEREFORE SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
DISCLAIMER OF WARRANTIES. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SITE AND SERVICES ARE AT YOUR SOLE RISK AND EXPENSE AND SUBJECT TO THIS AGREEMENT AND ANY APPLICABLE LAW. THE SITE AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TREMENDOUS EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OR ANY OTHER IMPLIED WARRANTY UNDER THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT AS ENACTED BY ANY STATE. TREMENDOUS MAKES NO WARRANTY THAT THE SITE OR SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SITE OR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. TREMENDOUS MAKES NO WARRANTY REGARDING ANY TRANSACTIONS ENTERED INTO THROUGH THE SITE. NO INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE TREMENDOUS GROUP SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
DISPUTE RESOLUTION; AGREEMENT TO ARBITRATE.
Dispute Resolution by Binding Arbitration. The parties will use their commercial best efforts to resolve any dispute arising hereunder without formal litigation or arbitration. If a dispute or claim arises out of or related to this Agreement, or the interpretation, making, performance, breach, validity or termination hereof, and the parties do not resolve some or all of the dispute or claim through normal internal discussions, then such dispute or claim will be finally settled by binding arbitration in New York, New York, under the American Arbitration Association Commercial Arbitration Rules (the “AAA Rules”) by one or more neutral arbitrators appointed in accordance with the AAA Rules. At the request of either Party, the arbitrator(s) will enter an appropriate protective order to maintain the confidentiality of information produced or exchanged in the course of the arbitration proceedings. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitrator(s) may also award to the prevailing party, if any, as determined by the arbitrator(s), its reasonable costs and fees incurred in connection with any arbitration or related judicial proceeding hereunder. Costs and fees awarded may include American Arbitration Association administrative fees, arbitrator fees, attorneys’ fees, court costs, expert fees, witness fees, travel expenses, and out-of-pocket expenses (including such expenses as copying, postage, and courier fees).
Confidentiality of Dispute Resolution. The dispute resolution proceeds contemplated herein will be as confidential and private as permitted by Applicable Law. To that end, the parties will not disclose the existence, content, or results of any mediation, arbitration or other proceedings conducted in accordance with this Agreement, and material submitted in connection with such proceedings will not be admissible in any other proceeding; provided, however, that this confidentiality provision will not prevent a petition to vacate or enforce an arbitration award, and will not bar other disclosures required by Applicable Law.
Class Waiver. To the extent permitted by Applicable Law, any dispute arising out of or relating to this Agreement, whether in arbitration or in court, will be conducted only on an individual basis and not in a class, consolidated or representative action. Notwithstanding any other provision of this Agreement or the AAA Rules, disputes regarding the interpretation, applicability, or enforceability of this class waiver may be resolved only by a court and not by an arbitrator. If this waiver of class or consolidated actions is deemed invalid or unenforceable, neither Party is entitled to arbitration.
No Jury Trial. If for any reason a claim or dispute proceeds in court rather than through arbitration, each Party knowingly and irrevocably waives any right to trial by jury in any action, proceeding or counterclaim arising out of or relating to this Agreement or any of the transactions contemplated between the parties.
MODIFICATIONS TO THIS AGREEMENT.
Modifications. We reserve the right, in our sole and absolute discretion, to update or change any portion of this Agreement at any time. We will provide Client with reasonable advance notice of changes to this Agreement that materially adversely affect your use of the Services or your rights under this Agreement by sending notice to the email associated with your Tremendous Account, providing notice through the Tremendous Account, or by similar means. However, Tremendous may make changes that materially adversely affect your use of the Services or your rights under this Agreement at any time and with immediate effect (i) for legal, regulatory, fraud and abuse prevention, or security reasons; or (ii) to restrict products or activities that we deem unsafe, inappropriate, or offensive. Unless we indicate otherwise in our notice (if applicable), any changes to the Agreement will be effective immediately upon posting of such updated terms at this location. Your continued access to or use of the Services after we provide such notice, if applicable, or after we post such updated terms, constitutes your acceptance of the changes and consent to be bound by the Agreement as amended. If you do not agree to the amended Agreement, you must stop accessing and using the Services.
Changes to Service Guide and Pricing. Tremendous may change any pricing, fees, and charges, set forth on the Tremendous Service Guide, if it deems such change to be reasonably necessary based on changes made by or to Providers, third-party vendors, the Bank, or such other parties as may affect Tremendous’ operation of the Services. Tremendous will notify Client of any change to applicable fees, charges, discounts and rebates at least five (5) days prior to such change or as much notice is provided to Tremendous by the applicable third party, whichever is shorter.
GENERAL TERMS.
Entire Agreement. This Agreement constitutes the entire agreement and understanding of the parties with respect to the Services and supersedes all prior and contemporaneous agreements and understandings.
Notice. Any notice required to be given by Tremendous under this Agreement, or otherwise, may be provided to you by email, a posting on the Site, or other reasonable means. Tremendous may broadcast, distribute or display notices or messages through the Site or via email (sent to the address associated with the Tremendous Account) to inform you of changes to this Agreement, the Services, the Privacy Policy or other matters of importance. Such broadcasts, distributions or displays of information will constitute notice to you; notice will be deemed given at the time Tremendous sends any emails to the address associated with the Tremendous Account. Any changes to this Agreement will become effective upon the earlier of: (a) your first use of the Site and Services with actual notice of such changes, or (b) 30 days after we post or distribute the revised Agreement and such changes will apply to your use of the Site and Services after the effective date of the revised Agreement.
Electronic Communications. By accepting this Agreement or using any Service, you consent to electronic communications as described in the E-SIGN Disclosure, which is incorporated into this Agreement by this reference.
Waiver. To be effective, a waiver must be in a writing signed by the waiving Party. The failure of either Party to enforce any provision of this Agreement will not constitute a waiver of that Party’s rights to subsequently enforce the provision.
Force Majeure. Tremendous will not be liable for any loss or delay to the extent resulting from any force majeure event, including acts of God, fire, natural disaster, terrorism, labor stoppage, internet failures or delays, civil unrest, war or military hostilities, criminal acts of third parties or any other event beyond Tremendous’ reasonable control, and any performance of the Services will be extended to the extent of any delay resulting from any force majeure event.
Assignment. You may not assign or transfer any obligation or benefit under this Agreement without Tremendous’ consent. Any attempt to assign or transfer in violation of the previous sentence will be void in each instance. If you wish to assign this Agreement, email [email protected]. Tremendous may, without your consent, freely assign and transfer this Agreement, including any of its rights or obligations under this Agreement. This Agreement will be binding on, inure to the benefit of, and be enforceable by the parties and their permitted assigns.
No Third Party Beneficiaries. Save for the Tremendous Group, Client or anyone accessing the Services pursuant to this Agreement, unless otherwise provided herein, no person or entity who is not a party to this Agreement will have any right to enforce any term hereof, regardless of whether such person or entity has been identified by name, as a member of a class or as answering a particular description. For the avoidance of doubt, this will not affect the rights of any permitted assignee or transferee of this Agreement.
Relationship of the Parties. Nothing in this Agreement will be construed to make either Party partners, joint venturers, principals, agents, or employees of the other. No officer, director, employee, agent, affiliate, or contractor retained by Tremendous to perform work on behalf of Client hereunder will be deemed to be an employee, agent, or contractor of Client. Neither Party will have any right, power, or authority, express or implied, to bind the other.
Governing Law. This Agreement and any dispute arising hereunder or in connection with this Agreement, including any action in tort, will be governed by and construed in accordance with the laws of the State of New York, without regard to any choice of law or conflicts of laws provisions or principles which may direct the application of the laws of any other jurisdiction.
Press Releases and Inquiries. All media releases, public announcements and public disclosures by a Party relating to this Agreement or the subject matter hereof including promotional and marketing material (but not including announcements intended solely for internal distribution or disclosures to the extent required to meet legal or regulatory requirements beyond the reasonable control of the disclosing Party) will be coordinated with and approved by the other Party prior to release, except that Tremendous may identify Client as a customer on the Site without further approval.
Legally Obligated Disclosures. If Client determines that disclosure is required to meet legal or regulatory requirements, it will promptly inform Tremendous and coordinate such disclosure with Tremendous. Client will limit disclosure to that which is necessary and will give due consideration to comments Tremendous or its counsel may provide regarding the nature of the disclosure.
Joint Marketing. Client will cooperate with Tremendous on joint marketing, including events, customer success stories and case studies, supporting quotes, and other activities as mutually agreed upon.
Severability. In the event that any part of this Agreement is deemed by a court of competent jurisdiction or Governmental Authority to be invalid or unenforceable, such provision will be deemed to have been omitted from this Agreement. The remainder of this Agreement will remain in full force and effect, and will be modified to any extent necessary to give such force and effect to the remaining provisions, but only to such extent.
Survival. All provisions of this Agreement which by their nature extend beyond the expiration or termination of this Agreement will survive termination or expiration of this Agreement.
Translations. This Agreement may be available in languages other than English. To the extent of any inconsistencies or conflicts between this English Agreement and our Terms of Service available in another language, the most current English version of the Corporate Client Services Agreement found at www.tremendous.com/terms will prevail. Any disputes arising out of this Agreement will be resolved in English unless otherwise determined by Tremendous (acting in its sole discretion) or as required by Applicable Law.
DEFINITIONS.
“API Credentials” means the log-in information generated at Client’s request to access the Tremendous API.
“Applicable Law” means any and all laws, treaties, rules, regulations, regulatory guidance, determinations of (or agreements with) an arbitrator, court, or Governmental Authority and mandatory written direction from (or agreements with) any Governmental Authority, including, without limitation, the Bank Secrecy Act of 1970, as amended by the USA PATRIOT Act, and its implementing regulations, any and all sanctions or regulations enforced by the U.S. Department of the Treasury’s Office of Foreign Assets Control, that are applicable to the performance of a Party’s obligations hereunder or that are otherwise applicable to the Services, as the same may be amended and in effect from time to time during the Term.
“Bank” means a federally-insured depository institution with which Tremendous has contracted to provide the Services.
“Business Day” means any day, other than a Saturday, Sunday, or any federal banking holiday observed in the United States.
“Competitor” means a provider of any products or services similar to, or otherwise competitive with, the Services or Payouts.
“Face Value” means the value of the Payout at the time it is distributed to the Recipient.
“Gift Card” means a device issued by and redeemable for goods and services at a single retailer and its affiliates, or a defined group of retailers and their affiliates. Each Gift Card is offered and managed by a third party and is subject to additional terms and conditions posted or presented by such third party.
“Governmental Authority” means any governmental or regulatory agency, payment network, or other similar agency or organization having jurisdiction or supervisory authority over the Services to be provided hereunder, Tremendous, the Bank, or Client.
“Marks” means the trademarks, service marks, trade names, logos, other proprietary designs and designations, and other indicia of source or origin of a party.
“Order” means each instance in which Client instructs Tremendous to distribute Payouts (including Payout Links, which are distributed solely to Client).
“Party”
“Payout” means a set value made available to a specific Recipient for redemption through the Site.
“Payout Link” means a unique identifier that Client is able to send directly to a Recipient and which allows Recipient to redeem a Payout through the Site. Client does not need to provide Tremendous with any Recipient information in order to use Payout Links.
“Personal Data” means any information relating to an identifiable natural person that is processed in connection with the Services, and includes “personal data” as defined under EU Regulation (EU) 2016/679 (General Data Protection Regulation) and “personal information” as defined under the California Consumer Privacy Act of 2018, as amended.
“Provider” means the third party that fulfills each Redemption Option. Tremendous may or may not have direct relationships with each Provider.
“Prepaid Card” means an open-loop device branded with the logo of a payments network (e.g., Visa or Mastercard), usable at multiple unaffiliated retailers. Each Prepaid Card is offered and managed by a third party, such as a bank, and is subject to additional terms and conditions posted or presented by such third party.
“Privacy Policy” means the Tremendous Privacy Policy, as may be modified from time to time, found at https://www.tremendous.com/privacy.
“Recipient” means the person to whom a Payout is sent, as designated by Client.
“Redemption Options” means the choices available to a Recipient to receive his or her Payout, including Prepaid Card, Gift Card, and electronic fund transfer options. Each Redemption Option is subject to terms and conditions imposed by the Provider.
“Services” has the meaning set forth in the preamble.
“Site” means www.tremendous.com, the Tremendous API, and any website, web widget, mobile applicable, API, or any other similar platform owned, controlled, operated or offered by Tremendous.
“Tremendous API” means the application programming interface owned, controlled, operated and offered by Tremendous and accessed with the API Credentials.
“Updates” means bug fixes, updates, upgrades, enhancements, modifications and new releases or versions of the Tremendous API and/or the Services.