MALL OF AMERICA LOYALTY PROGRAM
THIS MALL OF AMERICA LOYALTY PROGRAM TENANT AGREEMENT (THE “AGREEMENT”) IS MADE BY AND BETWEEN MOAC MALL HOLDINGS LLC (“MOA”) AND THE RETAIL TENANT OF MOA FILING OUT THE MOA INSIDERS PARTICIPATION FORM (“TENANT”). TENANT HEREBY (A) EXECUTES, ACCEPTS THE TERMS OF AND AGREES TO COMPLY WITH THIS AGREEMENT BY (I) CHECKING THE BOX TO ACCEPT THIS AGREEMENT, (II) SIGNING THIS AGREEMENT OR (III) PERFORMING SERVICES SET FORTH IN THIS AGREEMENT AND (B) REPRESENTS AND WARRANTS THAT TENANT HAS THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT. IF A CORPORATION OR OTHER LEGAL ENTITY IS ENTERING INTO THIS AGREEMENT ON BEHALF OF TENANT, SUCH ENTITY REPRESENTS THAT IT HAS THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF TENANT AND BIND TENANT TO ITS TERMS. MOA AND TENANT ARE EACH REFERRED TO AS A “PARTY" AND COLLECTIVELY REFERRED TO AS "PARTIES".
MOA is primarily engaged in the business of operating a combination shopping mall and entertainment complex. Tenant is a retail business operating at a location within the above-referenced shopping mall and entertainment complex. MOA has entered into a business relationship with a third party, Coniq, for the creation of a loyalty program for customers of participating tenants of MOA (“MOA Loyalty Program”). By entering into this Tenant Agreement, Tenant is agreeing to participate in the MOA Loyalty Program and abide by the Terms and Conditions (“Terms”) below.
In consideration of the participation in the MOA Loyalty Program, the mutual promises of the parties, and the mutual benefits to be gained by performance, it is agreed as follows:
1. GENERAL. The MOA Loyalty Program is the property of MOA and is operated through Coniq. The MOA Loyalty Program is being made available to Tenant pursuant to this Agreement and subject to the Terms of Use and Privacy Policy available at https://www.mallofamerica.com/terms-privacy, which together govern such access and use (collectively the “Terms”).
2. TENANT OBLIGATIONS.
2.1. Upon execution of this Agreement, Tenant agrees to participate in the MOA Loyalty Program for a minimum of one year or until the Agreement terminates by action of either Party. The Tenant also agrees to accurately process all transactions eligible for inclusion in the MOA Loyalty Program. The Tenant understands that participation in the MOA Loyalty Program requires the use of the Device and the related Coniq Services, as defined below, and requires the Tenant to cooperate in all access to premises and staff required for the same operation of the MOA Loyalty Program. Tenant shall not: (a) engage in any activity that interferes with, or disrupts, the creation, operation, or function of the MOA Loyalty Program or the data created by or through the Device(s), Coniq Services or the MOA Loyalty Program; (b) use the Device(s) or Coniq Services other than for the internal business purposes of the MOA Loyalty Program; or (c) de-compilate or reverse engineer the data or related misuse any data or documentation created or used in the MOA Loyalty Program.
2.2. Device and Coniq Services. The Tenant understands that to participate in the MOA Loyalty Program Process, Tenant will be provided a handheld scanning device (“Device”), through Coniq, and will be added to the Coniq Service (“Coniq Service”) defined as the technology operating on the Coniq connected servers and networks incorporating the use and function of the Scanners to scan barcodes supplied by MOA in conjunction with the creation and operation of the MOA Loyalty Program. Tenant understands that MOA retains ownership of the Device at all times and that Tenant may only use the Device to process and validate barcodes issued through the MOA Loyalty Program. Tenant also accepts and understands their obligation to safeguard the Device and that Tenant will be liable for, and will indemnify and hold harmless, MOA against all losses, liabilities, and costs (including legal expenses) sustained, incurred, or suffered by MOA or Tenant arising out of or connection with Tenant’s use of, damage to, or the loss or theft of, the Device while in Tenant’s possession or control.
2.3. Device Maintenance. Tenant shall permit MOA or its assigned support vendor, to access the Tenant premises for the purposes of installing and connecting the Devices and enabling the Coniq Services. In addition, Tenant agrees to provide MOA, and its assigned support vendor, with access to the Devices for the purposes of ongoing maintenance and updates. If a Device suffers damage or is lost or stolen, Tenant must report the same to MOA within 24 hours. MOA will use all reasonable efforts to repair or replace a Device as soon as possible. Upon expiration of the Term of this Agreement, the Tenant agrees to return the Device to MOA, in good condition, promptly upon expiration of the Term.
2.4. Staff Training. Tenant agrees to coordinate with MOA for the initial training of all staff on the MOA Loyalty Program and the use of the Device(s) and Coniq Services. In addition, Tenant also agrees to provide notice to MOA whenever new staff are added and to provide for additional training of staff on an as-needed basis.
3. MOA OBLIGATIONS.
3.1. Reports and Offers. In exchange for the Tenant’s participation in the MOA Loyalty Program, the Tenant will receive monthly customized reports and statistics derived from the MOA Loyalty Program. In addition, Tenant will be eligible to provide offers and promotions to members of the MOA Loyalty Program. MOA will work with the Tenant on the formulation of any Tenant offers or promotions including mutual agreement on offer value, timing of the offer or promotion, as well as distribution of any offer or promotion. Any Tenant offer or promotion requires the prior written approval of MOA.
4. TERM AND TERMINATION. The term of this Agreement shall commence on the Effective Date and continue thereafter for one year, with an automatic renewal of the Term for successive one-year terms, unless either Party serves the other Party with a notice of non-renewal of the Agreement at least 60 days prior to the end of the Term. In addition to any other termination rights specified elsewhere in this Agreement, the Agreement can be terminated:
4.1. If a Party provides written notice of a breach of this Agreement and the breaching Party fails to cure the breach within thirty (30) days after written notice of the breach is provided;
4.2. Immediately by either Party in the event of the other Party’s commission of a criminal or fraudulent act;
4.3. At any time by MOA upon thirty (30) days advance written notice to Tenant.
4.4. Upon termination of this Agreement, or upon either Party providing the other Party with written notice of termination, at the request of MOA, Tenant shall consult and cooperate with MOA for the transfer of any Data relevant to the MOA Loyalty Program.
5. NO PUBLICITY. Tenant shall not use MOA’s name or any trademark or service mark of MOA in any press releases or other communications without the prior written consent of MOA.
5.1. Mall Marks Tenant expressly acknowledges and agrees that MOA is the exclusive owners of all right, title, and interest in and to any and all trademarks, service marks, trade names, assumed names, business names, domain names, key words, or other designations of address or identity associated with Mall of America, MOA and the Mall (collectively, the “MOA Marks”). The provisions in this Agreement shall not in any respect whatsoever be deemed to grant Tenant any interest in the MOA Marks. Except to the extent that any MOA Marks are included in any promotional material and the written approval of MOA has been obtained pursuant to the provisions of this Agreement, Tenant shall not use any of the MOA Marks.
5.2. Nick Marks. Tenant expressly acknowledges and agrees that MTV Networks (“MTVN”), a division of Viacom International Inc., and/or its affiliates are the exclusive owners of all right, title, and interest in and to any and all trademarks, service marks, trade names, assumed names, business names, domain names, key words, images, copyrighted materials, or other intellectual property or designations of address or identity associated with Nickelodeon and Nickelodeon Universe (collectively, the “Nick Marks”). In the event that MOA provides Tenant with any materials which include the Nick Marks or provides Tenant with the Nick Marks for inclusion in any offers or promotional materials to be produced by Tenant, MOA shall be responsible for obtaining MTVN’s prior written approval of such use. The provisions in this Agreement shall not in any respect whatsoever be deemed to grant Tenant any interest in the Nick Marks. Except to the extent that any Nick Marks are included in any offers or promotional materials and the written approval of MOA and MTVN has been obtained pursuant to the provisions of this Agreement, Tenant shall not use any of the Nick Marks.
6. LIABILITY.
6.1. Nothing in these Terms of Use limits or excludes the liability of any party hereto (including Affiliates): (a) for death or personal injury resulting from negligence; (b) for any damage or liability incurred as a result of fraud or fraudulent misrepresentation; or (c) for any other type of liability that cannot be excluded or limited under applicable law.
6.2. Neither party hereto will be liable to the other in contract, tort, misrepresentation or otherwise (including negligence), for any: (a) loss of profits, loss of business, loss of data, depletion of goodwill and/or similar losses or pure economic loss (whether direct, indirect or consequential); or (b) indirect or consequential loss or damage, costs, expenses or other claims for consequential compensation whatsoever, which arises out of or in connection with the operation of these Terms of Use.
6.3. MOA will not be responsible for any costs, charges or losses sustained or incurred by Tenant as a result of a failure of the Device or a delay in providing any aspect of the MOA Loyalty Program.
7. REPRESENTATIONS AND WARRANTIES.
7.1. Each party represents and warrants to the other that: (a) its execution and performance of this Agreement and the applicable SOW will not violate any provision of law, rule, or regulation (“Laws”) to which such party is subject; and (b) such party will comply with all Laws pursuant to which such party conducts its business.
7.2. Each party represents and warrants to the other that: (a) it has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and the applicable SOW; (b) the execution, delivery and performance of this Agreement and the applicable SOW have been duly authorized by such party; (c) no approval, authorization or consent of any governmental or regulatory authority is required to be obtained or made by it in order for it to enter into and perform its obligations under this Agreement and the applicable SOW; and (d) the signatory to this Agreement and the applicable SOW, possesses all necessary authority to enter into the Agreement and the applicable SOW.
8. INDEMNIFICATION
8.1. Indemnification by Tenant – Tenant and its successors and assigns shall indemnify, defend, and hold harmless MOA and its successors and assigns from and against and in respect of any and all third-party claims, demands, losses, costs, expenses (as they are incurred by MOA), obligations, liabilities, damages, recoveries and deficiencies, including interest, penalties and reasonable attorneys’ fees, that MOA may incur or suffer, which arise, result from or relate to (a) Tenant’s breach of or failure to perform any of its obligations pursuant to the provisions of this Agreement; or (d) any breach or threatened breach that involves or may be reasonably expected to involved unauthorized access to or disclosure of MOA’s Confidential Information or Customer Data.
8.2. Indemnification by MOA - MOA and its successors and assigns shall indemnify, defend, and hold harmless Tenant and its successors and assigns from and against and in respect of any and all third-party claims, demands, losses, costs, expenses (as they are incurred by Tenant), obligations, liabilities, damages, recoveries and deficiencies, including interest, penalties and reasonable attorneys’ fees, that Tenant may incur or suffer, which arise, result from or relate to (a) any IP Rights infringement or violation claims asserted against Tenant relating to MOA Materials; (b) MOA’s breach of any of its representations or warranties; or (c) MOA’s breach of or failure to perform any of its obligations pursuant to the provisions of this Agreement or an SOW.
9. CONFIDENTIALITY. “Confidential Information” is defined for the purposes of this Agreement as any data created by means of the MOA Loyalty Program, all other information of a confidential nature concerning the trade secrets or business dealings of MOA, any document or information expressly designated as confidential; and any information which by its nature the recipient ought reasonably to conclude was confidential information of the other party. Each party shall keep any Confidential Information received from or belonging to the other party secret and not disclose such Confidential Information to anyone (except on a need-to-know basis for internal use only where necessary to perform its obligations under this Agreement) or use such Confidential Information other than to perform its obligations under the Terms without the prior written consent of the Disclosing Party.
10. NATURE OF RELATIONSHIP. The provisions of this Agreement shall not in any respect whatsoever be deemed to create a partnership, joint venture, or other business combination between MOA and Tenant. MOA and Tenant shall conspicuously identify themselves to all persons and organizations as independent contractors and shall not represent or imply to any other person or organization that this Agreement authorizes either MOA or Tenant to act as an agent for or on behalf of the other Party, other than as provided for in this Agreement. Neither MOA nor Tenant shall be obligated by any agreement, representation or warranty made by the other, nor shall MOA or Tenant be obligated for damages to any person or organization for personal injuries or property damage directly or indirectly arising out of the conduct of the other Party’s business or caused by the other Party’s negligence, willful act, or failure to act. As independent contractors, MOA and Tenant shall be separately responsible for the payment of their income or other taxes. In addition, MOA and Tenant shall be separately responsible for carrying workers’ compensation insurance on themselves and their employees and agents.
11. FORCE MAJEURE. Neither MOA nor Tenant shall be in breach of this Agreement in the event they are unable to perform their obligations under this Agreement as a result of natural disaster, war, emergency conditions, labor strife, the substantial inoperability of the Internet, the inability to obtain supplies, or other reasons or conditions beyond their reasonable control; provided, however, if such reasons or conditions remain in effect for a period of more than sixty (60) days, either MOA or Tenant may terminate this Agreement without further liability to the other party.
12. REMEDIES. Injunctive or other equitable relief shall be a remedy available to either party in the event of a breach of any provision of this Agreement by the other party, but such remedy shall not be the exclusive remedy available to the parties.
13. NOTICES. Any notices required or permitted to be given under this Agreement shall be sufficient if in writing and personally delivered or sent by certified mail or express courier to the other party at its address set forth in this Agreement, or at such other address as the parties shall designate in writing by personal delivery, certified mail, or express courier.
14. SURVIVAL. The provisions of this Agreement which, by their terms, require performance after the termination of this Agreement, or have application to events that may occur after the termination of this Agreement, shall survive the termination of this Agreement.
15. ASSIGNMENT AND DELEGATION. Tenant shall not assign its rights or delegate its duties under this Agreement without receiving the prior written consent of MOA. MOA may assign its rights and delegate its duties under this Agreement.
16. SUCCESSORS IN INTEREST. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties and their permitted successors and assigns.
17. WAIVER. The waiver of any provision or the breach of any provision of this Agreement shall not be effective unless made in writing. Any waiver by either party of any provision or the breach of any provision of this Agreement shall not operate as or be construed to be a continuing waiver of the provision or the breach of the provision.
18. GOVERNING LAW. This Agreement shall be governed by the laws of the State of Minnesota, without regard to its choice of law principles or rules. For the purpose of resolving conflicts related to or arising out of this Agreement, the Parties expressly agree that venue shall be in the federal or state courts of the State of Minnesota and, in addition, the Parties hereby expressly consent to the exclusive personal jurisdiction of the federal and state courts in the State of Minnesota, regardless of the citizenship or residency of either Party at the time the commencement of any legal proceeding.
19. SEVERABILITY. In the event any portion of this Agreement shall be held to be invalid, the same shall not affect in any respect whatsoever the validity of the remainder of this Agreement.
20. EXECUTION. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and to constitute one and the same instrument. Electronic copies of this Agreement, including without limitation, those transmitted by facsimile or scanned to an image file, shall be considered originals.
21. ENTIRE AGREEMENT. This Agreement sets forth the entire understanding between the Parties with respect to the subject matter hereof, there being no terms, conditions, warranties, or representations other than those contained in this Agreement, and no amendments shall be valid unless made in writing and signed by the Parties to this Agreement.