TFS Rewards Terms and Conditions
These Terms and Conditions (these “Terms”) constitute a binding agreement between you and The Flower Shop that govern your access to and use of the Application, including any content, functionality, and services offered through the Application.
As used in these Terms, the following terms shall have the meanings given to them below. Other terms are defined in other sections of these Terms. Such other defined terms are identified by being flanked by quotation marks. Such other terms shall have the meanings so assigned to them whenever used in these Terms.
“Acceptable Use Policy” means Company’s then current End-User License Agreement available at https://www.theflowershopaz.com/eula
“Account(s)” means the account(s) enabling a person to access and use the Services, including both administrator accounts and user accounts.
“Affiliate” means any entity that is controlling, controlled by, or under common control with a party, in each case where the term “control” means possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract interest or otherwise.
“Agreement” means these Terms together with all and Supplemental Terms for Services governed by these Terms or that otherwise reference these Terms and that are entered into between Company and You.
“Application” means the software program known as TFS Rewards, provided by the Company, and downloaded by You through mobile app stores on a Device.
“Business Day” means any weekday other than a bank or public holiday in the United States of America.
“Business Hours” means the hours of 09:00 to 17:00 MST on a Business Day.
“Charges” means amounts charged by Company to You for the Services in accordance with the Agreement.
“Company” (referred to as either “the Company”, “We”, “Us” or “Our” in this Agreement) refers to Beacon Management, LLC, an Arizona limited liability company d/b/a The Flower Shop, 3131 E. Camelback Road, Suite 350, Phoenix, Arizona 85016.
“Customer Data” means all data, works and materials, including your Personal Information: uploaded to or stored on the Application by You; supplied by You to the Company for uploading to, transmission by or storage on the Application; or generated by the Application as a result of the use of the Services by You (but excluding anonymized customer data where no personal identifiable information is available to the viewer, analytics data and anything relating to the use of the Application and server log files).
“Data Protection Laws” means all applicable laws relating to the processing and/or protection of Personal Information.
“Device” means any device that can access the Application such as a computer, a cellphone, or digital tablet.
“Documentation” means the documentation for the Services produced by Company and delivered or made available by Company to You.
“Effective Date” means the date on which You accept these Terms by clicking the “I Agree” button, using the Application, or as otherwise agreed by the parties in writing.
“Federal Cannabis Law” means federal laws of the United States regulating marijuana or cannabis as included on Schedule 1 under the United States Controlled Substances Act, including any such federal laws of the United States pertaining to manufacturing, distributing, dispensing or possession of marijuana or cannabis.
“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, or otherwise under or related to any patent, copyright, trademark, business names, trade names, know-how, trade secret, database protection, or other intellectual property laws, and all similar or equivalent rights or forms of protection, including but not limited to any application or right of application for such rights.
“License Fees” means all of the recurring license fees, software license fees, per store license fees, license and support fees, or any similar fees for access to the Services; except that License Fees shall not mean or include any messaging, message segment, SMS usage, phone, email or variable carrier fees charged on a per use basis.
“Personal Information” means any information relating to, capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular natural person or household, including, without limitation, any inferences drawn therefrom or derivatives thereof, or any other information that is regulated as “personal data” or “personal information” under applicable law.
“Sensitive Personal Information” means any of the following: (i) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards (“PCI DSS”), or other financial account numbers or credentials; (ii) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act (“HIPAA”); (iii) social security numbers, driver’s license numbers or other government ID numbers; (iv) any information deemed to be “special categories of data” of an EU resident (as defined in European Union Regulation 2016/679); or (v) other personal or sensitive information subject to regulation or protection under the Gramm-Leach-Bliley Act, Children’s Online Privacy Protection Act or similar foreign or domestic Laws.
“Services” means any services that the Company provides to You through the Application in accordance with the Agreement.
“Support Services” means those support services made available by Company in relation to the use of, and the identification and resolution of errors in, the Application or Supplemental Services but shall not include the provision of training services.
“You” and “Your” means the individual accessing or using the Application or the company, or other legal entity on behalf of which such individual is accessing or using the Application, as applicable.
- Subject to Your compliance with the Agreement, Company hereby grants to You a non-exclusive, non-transferable, limited license to download, install and use the Application by means of a supported Device. Company shall use commercially reasonable efforts to maintain the availability of the Application but does not guarantee 100% availability.
- The Application may only be used by users over the age of 21 (each such user, an “Authorized User”).
- Except to the extent expressly permitted by the Agreement or as otherwise required by law, the license granted by Company to You under Section 2(a) is subject to the following additional prohibitions and limitations:
- You shall not sub-license its right to access and use the Application, except that the foregoing restrictions shall not prohibit You from providing access to the Application to any Authorized User properly authorized in accordance with these Terms.
- You must not permit any unauthorized person to access or use the Application;
- You must not use the Application to provide services to third parties;
- You must not republish or redistribute any content or material from the Application;
- You must not make any alteration to the Application, except as permitted by the Documentation;
- You must not use the Application in any way that causes, or may cause, damage to the Application or impairs the availability or accessibility of the Application;
- You must not use the Application in any way that is unlawful, illegal, fraudulent, or harmful, or in connection with any unlawful, illegal, fraudulent, or harmful purpose or activity;
- You must not conduct or request that any other person conduct any load testing or penetration testing on the Application; and
- You must not reverse engineer the Application or any Company technology.
- You must comply with Acceptable Use Policy and must ensure that all persons using the Application for or on behalf of the You comply with the Acceptable Use Policy.
- For the avoidance of doubt, You have no right to access the software code (including object code, intermediate code, and source code) of the Application, either during or after the Term.
- Supplemental Services
- The parties may mutually agree, through the execution of an addendum or modification to the Agreement (each such addendum or modification, “Supplemental Terms”), for Company to provide additional or supplemental Services to You, including for example, Services related to the Application (collectively, “Supplemental Services”). Any such Supplemental Services shall be subject to and governed by these Terms, except as otherwise specifically set out in the applicable Supplemental Terms. In the event of any conflict between these Terms and any Supplemental Terms, the Supplemental Terms shall control.
- Support Services
- Company shall provide Support Services to You during Business Hours for the duration of the Term. The Support Services shall be provided by Company with reasonable skill and care.
- Company may make available to You an email-based helpdesk, and You may use the helpdesk for the purposes of requesting and, where applicable, receiving Support Services.
- Company shall respond promptly to all requests for Support Services made by You through the helpdesk and work diligently to resolve any repeatable error or malfunction so submitted, but Company does not guarantee resolution by any particular time of any matter so submitted.
- Customer Data
- You hereby grant Company a limited, non-revocable, non-transferable right and license to receive, store, process, and transfer the Customer Data solely as permitted under these Terms. Company and its authorized agents, employees, and subprocessors acting under the authority of the Company shall process Customer Data, including Your Personal Information solely (i) for the purpose of providing the Services and as otherwise permitted under these Terms, (ii) as specifically instructed by You in writing or by You creating a digital request to transfer or send data via the Services to any outside party or connected integration vendor, (iii) in accordance with any Service or Supplemental Services that specifically contemplate or require additional processing or sharing, or (iv) as required to do so by applicable law, including Data Protection Laws, to which the Company is subject (in which case, the Company shall notify the You of that legal requirement before such processing, except as otherwise prohibited by law). Notwithstanding the foregoing, the Company may also process Customer Data and Your Personal Information for data security purposes and for internal commercial use, including the development of anonymous analytics, statistics and log data that may be published, sold, or otherwise shared (such data, “Analytics Data”), but Company may not sell any of Your Personal Information. For the avoidance of doubt, Company will not disclose such Analytics Data to third parties except as authorized hereunder. Such Analytics Data sold or processed by Company may include product and store level sales information (for example, price and volume) of You. You may elect to opt-out of the sale (but not the processing) of any Analytics Data identifiable to You and/or its stores by selecting the appropriate setting in the Application for any such selling of Analytics Data after the date of such opt-out. Subject to any such opt-outs, You hereby grants Company an unlimited, non-revocable, transferable license in and to any and all the Analytics Data for use by Company for any and all purposes.
- Company will make commercially reasonable efforts to ensure that Customer Data is made available to You upon Your written request to Company if such Customer Data has not otherwise been made available. Any such Customer Data made available by Company pursuant to this section shall be in any format as reasonably determined by Company. Company shall have no obligation to store or make available any Customer Data more than ninety (90) days from the termination or expiration of these Terms.
- You warrant to the Company that the Customer Data will not infringe the Intellectual Property Rights or other legal rights of any person and will not breach the provisions of any applicable law, statute, or regulation.
- Except for the licenses provided in Section 5(a), nothing in these Terms shall be construed as granting Company or any third party any right, title, or interest in Customer Data.
- Unless otherwise agreed in writing, Charges for the Services may include, but are not limited to, the number of orders processed through the Services by the Company for You, SMS usage fees, regular access fees for the Services, including the Application, and additional fees for any other Supplemental Services.
- Company may modify the Charges for the Services by giving You not less than 30 days written notice of the proposed change. In the event that the You does not wish to pay the modified Charges for continued provision of the Services, the You may terminate the Agreement by delivering written notice of its election to terminate the Agreement prior to the effective date of the modification to the Charges.
- All listed Charges provided by Company are stated exclusive of any applicable value added and sales taxes, which will be added to the Charge and payable by You to Company.
- Privacy and Data Protection
- Each party shall comply with any Data Protection Laws with respect to the processing of Personal Information.
- You represent and warrant to Company that it has the legal right to disclose all Personal Information that it does in fact disclose to Company in connection with the Services.
- Notwithstanding any other provision of the Agreement, Company may process Personal Information as necessary to provide any Services and to the extent that Company is required to do so by applicable law. If Company is required by applicable law to process any Personal Information, Company shall inform You of the legal requirement before processing, except as prohibited by applicable law.
- Company shall ensure that persons authorized to access or process such data have executed confidentiality and/or non-disclosure agreements no less protective of Your Personal Information than these Terms.
- Company and You shall each implement appropriate technical and organizational measures to ensure an appropriate level of security for the Personal Information.
- Company shall, insofar as possible and taking into account the nature of the processing, take appropriate technical and organizational measures to assist You with the fulfillment of Your obligation to respond to requests exercising a consumer’s rights under Data Protection Laws.
- Company shall report any Data Breach to You within 3 days following the Company becoming aware of such Data Breach. “Data Breach” means any event that materially compromises the confidentiality, security, integrity, or availability of Your Personal Information including any (i) unauthorized access, use, disclosure, modification, or destruction of Your Personal Information or (ii) loss or misuse (by any means) of any Your Personal Information.
- Following any Data Breach, Company shall make available to You all information necessary to demonstrate the compliance of Company with its obligations under this Section 10 and the Data Protection Laws, including: (i) any report generated in connection with a Data Breach, (ii) the contact information of the person(s) handling any suspected Data Breach, and (iii) a description of the measures taken or proposed to be taken to address a Data Breach. Company shall maintain compliance with industry standard information security practices, such as SOC 1 Type 2 and SOC 2 Type 1, and shall perform or have performed, at least annually, audits of Company’s compliance with such industry standard information security practices.
- If any changes or prospective changes to the Data Protection Laws result or will result in one or both parties not complying with the Data Protection Laws in relation to processing of Personal Information carried out under the Agreement, then the parties shall use their reasonable best efforts promptly to agree to such modifications to these Terms as may be necessary to remedy such non-compliance.
- Intellectual Property
- The Application and its entire contents, features, and functionality (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof) are exclusively owned by The Flower Shop, its licensors, or other Companys of such material. All rights reserved.
- The materials on our Application are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws. You may only access the Application for Your personal, non-commercial use. Any attempt by You to download, store, or transmit any of the materials on our Application for any purpose not expressly authorized under these Terms is strictly prohibited without our consent. If we have not given You written permission, You may not display, duplicate, modify, distribute, sell, license, display, reverse-engineer, or create derivative works of the materials on our Application.
- These Terms do not grant You a license to use any materials on the Application, whether owned by us or any third-party, including copyrighted materials, trademarks, service marks, or logos.
- Except as otherwise expressly stated herein, nothing in these Terms shall operate to assign or transfer any Intellectual Property Rights from Company to You, or from You to Company.
- The Flower Shop’s name, logo, designs, and slogans are trademarks of The Flower Shop or its affiliates and licensors. You may not use such marks without the prior written permission of The Flower Shop. All other names, logos, product and service names, designs, and slogans on the Application are the trademarks of their respective owners.
- Disclaimer of Warranties
- You acknowledge that complex software is never wholly free from defects, errors, and bugs; and subject to the other provisions of these Terms, Company gives no warranty or representation that the Services will be wholly free from defects, errors, and bugs.
- You acknowledge that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of these Terms, Company gives no warranty or representation that the Services will be entirely secure.
- You acknowledge that the Services are designed to be compatible only with that software and those systems specified as compatible; and Company does not warrant or represent that the Services will be compatible with any other software or systems.
- You acknowledge that Company will not provide any legal, financial, accountancy or taxation advice; and, except to the extent expressly provided otherwise in these Terms, Company does not warrant or represent that the Services or the use of the Services by You will not give rise to any legal liability on the part of You or any other person.
- Violation of Federal Cannabis Laws shall not be, on its own and without connection to a violation of any other applicable law or term of the Agreement, considered a breach of these Terms, or any party’s obligations hereunder, including references to applicable law and/or illegal conduct, where such party is otherwise in material compliance with all state, local, and/or Canadian provincial laws pertaining to the sale, manufacture, licensing, production, and possession of cannabis and marijuana.
- NEITHER THE FLOWER SHOP NOR ANY PERSON ASSOCIATED WITH THE FLOWER SHOP MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE APPLICATION. WITHOUT LIMITING THE FOREGOING, NEITHER THE FLOWER SHOP NOR ANYONE ASSOCIATED WITH THE FLOWER SHOP REPRESENTS OR WARRANTS THAT THE APP, ITS CONTENT, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE APPLICATION WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR APP OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE APPLICATION OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE APP WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
- TO THE FULLEST EXTENT PROVIDED BY LAW, THE FLOWER SHOP HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXLUDED OR LIMITED UNDER APPLICABLE LAW.
- Limitations and Exclusions of Liability
- Nothing in these Terms will:
- limit any liabilities in any way that is not permitted under applicable law; or
- exclude any liabilities that may not be excluded under applicable law.
- Neither party will be liable to the other in respect of any loss of revenue or income, loss of profits, anticipated savings, loss of use or production, loss of business, contracts, or opportunities, or any special, indirect, or consequential damages.
- Except with respect to a breach of its obligations under Section 5 or Section 7 of these Terms, Company will not be liable to You in respect of any loss or corruption of any data, database, or software.
- Company will not be liable for the monetary value or regulations related to gaming, lottery, raffle, or loyalty points systems and or bookkeeping of such systems via ledgers. Any such loyalty points systems, ledgers, or rewards points recorded or offered by the Services are for purely informational purposes, and do not represent any actual value owed, held, or maintained by Company. Company does not guarantee the accuracy of any such ledgers or loyalty or rewards points systems.
- The aggregate liability of Company to You to the other under the Agreement shall not exceed the lesser of (a) the amount paid or payable by You to Company under the Agreement during the 12-month period preceding the date of the claim or (b) $100,000.00 USD.
- The limitations in this Section 10 shall not apply to the parties’ respective indemnification obligations under the Agreement.
- You agree to and will indemnify, defend, and hold harmless The Flower Shop, its subsidiaries, it parent company, affiliates, and their respective directors, officers, owners, employee, contractors, representatives, consultants, and agents (collectively, “TFS Parties”) from and against all losses, claims, liabilities, demands, complaints, actions, damages, judgments, settlements, fines, penalties, expenses, and costs (including without limitation reasonable attorney’s fees) that arise out of or in connection with Your access to the Application, Your violation of these Terms, or Your infringement on any intellectual property or other right of any person or entity. You also grants us the exclusive right to assume the defense and control of any matter subject to indemnification by You. We will notify You of any such claim, loss, liability, or demand, but our failure to does not waive or otherwise eliminate our rights to indemnification from You.
- Force Majeure Event
- If an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars) gives rise to a failure or delay in either party performing any obligation under the Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of such event(s).
- Term and Termination
- This Agreement shall remain in effect until terminated by You or the Company. The Company may, in its sole discretion, at any time and for any or no reason, suspend or terminate this Agreement with or without prior notice.
- This Agreement will terminate immediately, without prior notice from the Company, in the event that you fail to comply with any provision of this Agreement. You may also terminate this Agreement by deleting the Application and all copies thereof from your Device or from your computer.
- Upon termination of this Agreement, You shall cease all use of the Application and delete all copies of the Application from your Device.
- Termination of this Agreement will not limit any of the Company’s rights or remedies at law or in equity in case of breach by You (during the term of this Agreement) of any of your obligations under the present Agreement.
- Neither party shall assign or delegate its rights or obligations under the Agreement either in whole or in part without the prior written consent of the other party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, Company may assign this Agreement, and all rights and obligations hereunder, to a successor to all or substantially all of such party’s assets or voting securities, whether by sale, merger, or otherwise, provided that such assignee shall agree to be bound by the Agreement.
- Any notice from one party to the other party with respect to the Agreement must be given by the following method: by email to the relevant email address specified through the Application, in which case the notice shall be deemed to be received upon receipt of the email by the recipient’s email server.
- No Waiver. No breach of any provision of the Agreement shall be waived except with the express written consent of the non-breaching party. The failure of a party to insist upon strict adherence to any term of the Agreement shall not be considered waiver of such party’s rights or deprive such party of the right thereafter to insist upon strict adherence to that term or any other term of the Agreement.
- Severability. If any provision of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of the Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
- No Third-Party Beneficiaries. The Agreement is made for the benefit of the parties and is not intended to benefit any third party or be enforceable by any third party.
- Applicable Law. The laws of the State of Arizona, without giving effect to its conflict or choice of law rules, govern all matters arising under or related to this Agreement.
- Dispute Resolution
- If any dispute arises under or with respect to the Agreement, Company and You shall first attempt to resolve the dispute through negotiation. If the parties cannot resolve the dispute after 30 days of negotiation, then the parties shall submit the dispute to binding arbitration before a single arbitrator in accordance with the American Arbitration Association’s Commercial Arbitration Rules. The arbitration shall be conducted in Phoenix, Arizona, and judgment on the award may be entered in any court having jurisdiction. Notwithstanding the foregoing or anything in the Agreement to the contrary, Company may pursue a claim for non-payment of Charges in any jurisdiction or venue without condition or delay.
- TO THE EXTENT ALLOWED BY LAW, (A) EACH PARTY WAIVES ANY RIGHT TO PURSUE DISPUTES ON A CLASS-WIDE BASIS, TO EITHER JOIN A CLAIM WITH THE CLAIM OF ANY OTHER PERSON OR ENTITY OR TO ASSERT A CLAIM IN A REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE IN ANY LAWSUIT, ARBITRATION, OR OTHER PROCEEDING, AND (B) WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY LAWSUIT, ARBITRATION, OR OTHER PROCEEDING.
- Company reserves the right to make changes to these Terms from time to time in Company’s sole and absolute discretion. Company will provide You with notice of such changes on the Application when appropriate. Your continued access or use of the Services on or after the effective date of any such changes constitutes Your acceptance of and consent to any such changes. If You opposes any such changes to the Terms, You may terminate the Agreement effective immediately upon written notice to Company prior to the effective date of any such new Terms.