Merchant Terms of Service

These Punch Merchant Terms of Service, as amended from time to time (the "Terms"), form a legally binding agreement between Punch Loyalty Ltd., a company registered in Israel ("Punch", "we", "our" or "us"), and you ("Merchant", "you" or "your"). In these Terms, Punch and Merchant may each be referred to as a "Party" and together as the "Parties".

These Terms govern Merchant's use of Punch's proprietary platform available at https://www.punch-loyalty.app and the App (each, as may be updated by Punch from time to time) (collectively, the "Platform") and access to Punch's merchant-facing portal and related tools, interfaces, API integration (to the extent applicable) and/or other related Punch services through the Platform (collectively, including the Platform, the "Portal Services"). These Terms apply to business use only.

By (a) clicking "accept" (or a similar button) to these Terms in connection with selecting a subscription, placing an order, or completing a checkout or onboarding flow, or (b) accessing or using the Portal Services or any portion thereof, you acknowledge and agree that you have read, understood, and agree to be bound by these Terms. If you are accepting these Terms on behalf of a legal entity, then you represent and warrant that you have full authority to bind such entity to these Terms and "you" and "Merchant" will refer to such entity.

These Terms, together with any applicable order form, subscription details, or Checkout Flow referencing these Terms ("Order Form"), Punch's Privacy Policy, Punch's Cookie Policy, as updated from time to time, and any data processing addendum ("DPA"), service level agreement ("SLA"), or other addenda expressly incorporated herein by reference (collectively, the "Agreement"), constitute the entire agreement between the Parties regarding the Portal Services and supersede all prior or contemporaneous understandings relating to their subject matter.

Punch may make changes or modifications to these Terms from time to time, and such changes or modifications shall become effective upon the date which they are published on the Platform, in another part of the Portal Services or otherwise shared with Merchant. Merchant is responsible for checking the Platform and any relevant Portal Service message or inbox regularly for any such changes. Merchant's continued use of the Portal Services after the effective date of the updated Terms constitutes Merchant's acceptance of the updated Terms including all changes and modifications therein. If Merchant does not agree, its sole remedy is to stop using the Portal Services and, if applicable, not renew the Agreement at the end of the then-current Term.

1. Definitions

"Affiliate" means an entity that controls, is controlled by, or is under common control with a Party, where "control" means direct or indirect ownership of more than 50% of the voting interests or where such entity manages or directs the affairs of a Party.

"App" means Punch's digital applications including its mobile application, as may be made available by Punch from time to time through third-party application distribution platforms (including Apple App Store and Google Play), and as may be updated, modified, or discontinued by Punch in accordance with this Agreement.

"Confidential Information" means any non-public business, technical, or financial information that is identified or reasonably understood to be confidential under the circumstances. Confidential Information does not include personal data, which is handled and protected in accordance with applicable privacy laws, Punch's Privacy Policy, and, where applicable, the DPA.

"Order Form" means an order, checkout flow, subscription selection, or other ordering mechanism (including within the Portal Services) that references these Terms and sets out the applicable Subscription, fees, and term.

"Subscription" means the limited, non-exclusive right to access and use the Portal Services during the applicable Term, as specified in an Order Form.

"Term" means the subscription term set forth in the applicable Order Form.

"Merchant Data" means data, content, messages, templates, configurations, files, and other information submitted to, transmitted through, or processed via the Portal Services by or on behalf of Merchant (including End User data to the extent provided by Merchant), excluding Usage Data (as defined below).

"End Users" means Merchant's customers or end recipients who receive messages, loyalty communications, promotions, or other outputs initiated by Merchant through the Portal Services.

"Checkout Flow" means the self-service or registration process made available through the Platform by which Merchant selects a Subscription tier, enters payment information, and confirms purchase, which may include presentation of and consent to these Terms.

2. Portal Services; Scope; License Grant

2.1 Provision of Portal Services

Subject to the terms and conditions of this Agreement and, where applicable, payment of the applicable Fees, Punch grants Merchant a non-exclusive, non-transferable, non-sublicensable, limited, revocable right to access and use the Portal Services during the Term, solely for Merchant's internal business purposes and in accordance with this Agreement. For the sake of clarity, the Portal Services are licensed, not sold.

2.2 Order Forms; Affiliates

Portal Services are provided only under an active Subscription selected by Merchant through an Order Form. Merchant Affiliates may use the Portal Services only if expressly permitted in an Order Form, and Merchant remains responsible for their acts and omissions.

2.3 Restrictions

Merchant will not, and will not permit any third party to: (a) reverse engineer, decompile, disassemble, translate, or otherwise attempt to derive source code, underlying ideas, or algorithms of the Portal Services, except to the extent such restriction is prohibited by applicable law; (b) copy, modify, create derivative works of, distribute, sell, resell, sublicense, rent, lease, or otherwise make the Portal Services available to any third party (except as expressly permitted for End Users receiving Merchant's communications); (c) access or use the Portal Services to build or support, directly or indirectly, a competitive product or service, or perform or disclose to any third party any benchmarking, performance, or comparative tests or analyses of the Portal Services without Punch's prior written consent; (d) interfere with or disrupt the integrity or performance of the Portal Services, attempt to gain unauthorized access to the Portal Services or related systems or networks, or circumvent, disable, or attempt to bypass any security, content moderation, usage protections, or technical limitations; (e) use any automated means (including bots, scrapers, spiders, or data mining tools) to access the Portal Services or systematically retrieve data or content, except as expressly permitted through Punch-provided APIs and within applicable Usage Limits; (f) upload or transmit viruses, worms, trojans, malicious code, or other harmful components; (g) use the Portal Services in violation of applicable laws, regulations, carrier requirements, or industry standards; and (h) sell, transfer, or assign Merchant's access credentials or accounts, or allow access by unauthorized users.

2.4 Account Registration and Security

Following acceptance of these Terms, access to and use of the Portal Services requires the creation and maintenance of one or more user accounts (each, an "Account"). Merchant represents and warrants that all information provided in connection with the creation and maintenance of an Account is accurate, complete, and kept up to date. Merchant is responsible for all activity conducted through its Accounts, including by its employees, contractors, and other authorized users, and for maintaining the confidentiality and security of all login credentials. Merchant will promptly notify Punch of any suspected unauthorized access to or use of an Account. Punch may suspend or disable Accounts that it reasonably believes are compromised, inaccurate, or used in violation of the Agreement.

3. Changes to Services; Beta Features; Support; Service Levels

3.1 Changes to Services

Punch may modify, replace, update, suspend, remove, or discontinue features or functionality of the Portal Services from time to time for technical, security, legal, or operational reasons. Punch will use commercially reasonable efforts to not materially reduce core functionality of the Portal Services during an active Subscription term, except where required for security, legal compliance, or to prevent abuse.

3.2 Beta Features

Punch may offer beta, trial, pilot, or pre-release features ("Beta Features"). Beta Features are provided "as is", may be suspended or discontinued at any time, are excluded from any support, uptime, or warranty commitments, and Merchant's use of Beta Features is at Merchant's sole discretion and risk.

3.3 Support

Unless otherwise stated in an Order Form or a separate SLA, support is provided on a commercially reasonable basis during business hours in Israel, via the channels made available through the Portal Services, and no specific service levels, uptime commitments, or remedies apply.

3.4 AI-Enabled Features and Outputs

(a) AI Features. Certain features of the Portal Services may include AI-powered analytics, insights, recommendations, segmentation, and/or other outputs ("AI Features"). AI Features may be available only under certain Subscription tiers or as an add-on, as set forth in the applicable Order Form or within the Portal Services.

(b) AI Providers. In connection with the provision of AI Features, Punch may use third-party service providers, including AI service providers, to process Merchant Data (including End User data to the extent included therein) on Punch's behalf, as described in the Privacy Policy and, where applicable, under the DPA.

(c) No Advice; Merchant Responsibility. AI-generated outputs are provided "as is", may be inaccurate, incomplete, or not suitable for Merchant's specific use case, and do not constitute professional advice of any kind. Merchant remains solely responsible for (i) reviewing, validating and deciding whether and how to use any AI-generated outputs, and (ii) ensuring its use of any AI Features and outputs complies with applicable law and this Agreement.

4. Merchant Responsibilities; Compliance; End Users

4.1 Compliance with Laws

Merchant will use the Portal Services only in compliance with all applicable laws, regulations, and self-regulatory rules, including those related to privacy, marketing, consumer protection, e-commerce, advertising, promotions, and messaging.

4.2 End User Consents and Notices

Merchant is solely responsible for providing all required notices and obtaining all necessary consents and permissions from End Users for (a) communications sent through the Portal Services, (b) collection and processing of End User data, and (c) any tracking, analytics, or similar technologies, in each case as required by applicable law and carrier or platform rules. Merchant is solely responsible for Merchant's relationship with its End Users and for End Users' acts or omissions. Punch's relationship with End Users, if any, is governed by Punch's separate End User Terms of Use and policies.

4.3 Promotions; Sweepstakes; Contests

If Merchant uses the Portal Services to administer promotions, sweepstakes, contests, giveaways, loyalty points, or similar programs, Merchant is solely responsible for compliance with all applicable laws and requirements (including official rules, disclosures, eligibility, prize restrictions, registration or bonding where required, and tax reporting).

5. Messaging; Content; Carrier and Local Rules

Merchant represents and warrants that all messages, templates, lists, opt-in/opt-out flows, sender identities, and content comply with applicable laws and applicable carrier, platform, and program requirements. Merchant will honor applicable opt-out, unsubscribe, and do-not-contact requirements. Merchant will not use the Portal Services to send unlawful, deceptive, or infringing content. Merchant will comply with all applicable local and program-specific requirements for messaging. Merchant is responsible for completing and maintaining all required messaging program registrations and vetting, maintaining auditable opt-in and opt-out records, and complying with applicable program rules. Punch may pass through applicable carrier or platform fees, surcharges, and penalties attributable to Merchant's traffic and may suspend non-compliant messaging.

6. Usage Limits; Overages; Audit

Portal Services may be subject to usage limits, message limits, seats, volumes, or other constraints ("Usage Limits") as set forth in the Order Form or within the Portal Services. Upon reasonable prior notice, Merchant will cooperate in good faith to help Punch verify compliance with Usage Limits. If Merchant exceeds Usage Limits, Punch may (a) charge overage fees in accordance with the Order Form or Punch's then-current pricing, (b) reduce or limit usage, or (c) require an upgraded Subscription.

7. Fees; Invoicing; Taxes; Payment Terms

Merchant will pay the fees set forth in the applicable Order Form ("Fees"). Unless otherwise stated, Fees are non-cancelable and non-refundable, except where required by applicable law or expressly stated in an Order Form. Fees are due and payable as set forth in the Order Form. If not specified, invoices are due within thirty (30) days from invoice date. Fees are exclusive of all taxes, levies, duties, and similar governmental assessments. Merchant is responsible for payment of all such taxes, except for taxes based on Punch's income. Punch may charge late fees at the lesser of (a) 1.5% per month, or (b) the maximum rate permitted by law, and may suspend access to the Portal Services for overdue amounts, after providing reasonable notice. Merchant will pay all amounts due without setoff, counterclaim, deduction, or withholding. Merchant will not improperly dispute valid charges.

8. Term; Renewal; Suspension; Termination

The Agreement becomes effective on the date of Merchant's first acceptance of these Terms in connection with an Order Form, or first use of the Portal Services, whichever occurs first, and continues for the Term specified in each Order Form. Unless otherwise stated in an Order Form, Subscriptions automatically renew for successive renewal terms equal to the expiring Term, unless either Party provides notice of non-renewal at least thirty (30) days before the end of the then-current Term. Punch may suspend Merchant's access to the Portal Services (in whole or in part) if Punch reasonably believes that (a) Merchant's use poses a security risk, (b) Merchant is in material breach of the Agreement, (c) Merchant's use violates or may violate applicable law or carrier/platform rules, (d) an applicable regulatory authority requires such suspension, or (e) Fees are overdue. Either Party may terminate an Order Form (and, if applicable, the Agreement) upon written notice if the other Party materially breaches and fails to cure within thirty (30) days after receiving written notice. Punch may terminate immediately if Merchant's breach is not curable or involves fraud, unlawful activity, or circumvention of security controls. Upon expiration or termination: (a) Merchant's right to access and use the Portal Services ceases immediately; (b) Merchant will pay all Fees accrued and payable through the effective date of expiration or termination; and (c) each Party will, upon request, return or destroy the other Party's Confidential Information. For thirty (30) days following termination or expiration, Merchant may export Merchant Data through the Portal Services in available standard formats. Thereafter, Punch will delete Merchant Data from active systems in the ordinary course of operation, subject to permitted retention under Section 13, applicable law, and residual copies maintained in backup or disaster recovery systems.

9. Data Protection; Privacy; DPA; No Sensitive Data

Punch's collection and processing of personal data as a data controller is governed by Punch's Privacy Policy. To the extent Punch processes personal data as a processor in connection with the Portal Services, such processing shall be governed exclusively by the applicable DPA (if executed). Merchant will not submit to the Portal Services any sensitive data or special categories of personal data, except as expressly permitted in writing by Punch and addressed in the DPA.

10. Security

Punch will implement reasonable administrative, technical, and organizational measures designed to protect the security, confidentiality, and integrity of the Portal Services and Merchant Data in accordance with applicable law and, where applicable, the DPA. Merchant is responsible for maintaining appropriate security controls on its side, including access controls, credential management, and the secure handling of any Merchant Data prior to and when inputted into the Portal Services. In the event of a confirmed security incident involving Merchant Data in Punch's possession or control, Punch will notify Merchant without undue delay, in accordance with applicable law and the DPA, if applicable. Merchant is solely responsible for maintaining its own backups and archival copies of Merchant Data.

11. Intellectual Property; Merchant Data; Usage Data

Punch and its licensors retain all right, title, and interest in and to the Portal Services, including the Platform and all software, source code, databases, architecture, functionality, designs, features, updates, enhancements, improvements, and any derivative works thereof. Merchant will not, except as expressly permitted under this Agreement, copy, modify, distribute, create derivative works of, reverse engineer, decompile, or otherwise attempt to derive the source code or underlying ideas of the Portal Services. As between the Parties, Merchant retains all rights in Merchant Data. Merchant grants Punch and its Affiliates a worldwide, non-exclusive, royalty-free and non-transferable license (except with a right to sublicense to Punch's service providers) to access, host, process, copy, store, display, distribute, translate, transmit, analyze, and use Merchant Data as reasonably necessary to provide, operate, maintain, secure, support, and improve the Portal Services. Punch may generate and use technical logs, telemetry, metadata, and usage information derived from Merchant's use of the Portal Services ("Usage Data") for operational, security, analytics, benchmarking, and product improvement purposes. Usage Data will be aggregated and/or de-identified and will not be disclosed externally in a manner that reasonably identifies Merchant or its End Users. Merchant may voluntarily provide suggestions, ideas, comments, or other feedback regarding the Portal Services ("Feedback"). Punch may use, implement, modify, commercialize, and incorporate such Feedback into its current or future products and services without restriction, attribution, or obligation to Merchant. Merchant hereby assigns to Punch all right, title and interest in the Feedback and any intellectual property rights related thereto.

12. Open Source; Third Party Services

The Portal Services may include or interoperate with third-party open source components licensed under their own terms. Nothing in the Agreement limits Merchant's rights under, or grants rights that supersede, the open source licenses. The Portal Services may interoperate with third-party services (including messaging providers, analytics, hosting, and payment processors) ("Third Party Services"). Third Party Services are subject to their own terms and policies. Punch does not control and is not responsible for Third Party Services and is not liable for their acts, omissions, or performance, except to the extent that they have been identified by Punch in writing as acting as Punch's subcontractors in providing the Portal Services.

13. Confidentiality

Each Party (the "Recipient") agrees to use any Confidential Information of the other Party (the "Discloser") solely for the purpose of performing under the Agreement and to protect it with at least the same degree of care it uses to protect its own confidential information, but in no event with less than reasonable care. Confidential Information does not include information that: (a) was already lawfully known to the Recipient without restriction; (b) becomes publicly available without breach of the Agreement; (c) is independently developed by the Recipient without use of the Discloser's Confidential Information; or (d) is rightfully received from a third party without restriction. The Recipient may disclose Confidential Information to its employees, advisors, and service providers who need to know it to perform under the Agreement and are bound by confidentiality obligations no less protective than those set out herein. The Recipient may disclose Confidential Information if required by applicable law or by order of a competent authority, provided that, where legally permitted, it gives the Discloser prompt notice and cooperates in seeking protective measures. The confidentiality obligations survive for three (3) years after termination or expiration of the Agreement, except for trade secrets, which remain protected for as long as they qualify as trade secrets under applicable law.

14. Representations and Warranties; Disclaimers

Each Party represents and warrants that it has full power and authority to enter into the Agreement and to perform its obligations. Merchant represents and warrants that: (a) it will use the Portal Services only in compliance with applicable laws and regulations; (b) it has all rights, permissions, and lawful bases to provide Merchant Data and to send communications to End Users; (c) Merchant Data and Merchant's use of the Portal Services will not infringe or violate any third-party rights or expose Punch to regulatory, civil, or criminal liability; (d) the Merchant Data and no other data, files, or code provided by Merchant or anyone on its behalf contains viruses, malware, or other harmful components; and (e) Merchant is solely responsible for all activities conducted through its accounts and for any consequences arising from its use of the Portal Services. MERCHANT IS SOLELY RESPONSIBLE FOR THE MERCHANT DATA AND ANY OTHER DATA IT OR ANYONE ON ITS BEHALF INPUTS IN THE PORTAL SERVICES, AND SHALL EVALUATE THE ACCURACY AND APPROPRIATENESS OF THE MERCHANT DATA AND REVIEW AS NECESSARY. EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT, THE PORTAL SERVICES, INCLUDING ANY ANALYTICS, INSIGHTS, OR AI-GENERATED OUTPUTS, ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED. PUNCH DISCLAIMS ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AVAILABILITY, SECURITY, OR ACCURACY.

15. Indemnification

Merchant will indemnify, defend, and hold harmless Punch, its Affiliates, and its and their officers, directors, employees, contractors, and agents from and against any claims, damages, liabilities, losses, and expenses (including reasonable attorneys' fees) arising out of or related to: (a) Merchant Data or Merchant's communications, promotions, or content; (b) Merchant's or its users' use of the Portal Services in violation of the Agreement; (c) Merchant's breach of applicable law or third-party rights; (d) allegations that Merchant Data infringes or misappropriates any third-party right; or (e) Merchant's use of any analytics, reports, insights, or AI-generated outputs provided through the Portal Services. Punch may assume the exclusive defense and control of any matter subject to indemnification (at Merchant's expense), and Merchant agrees to cooperate as reasonably requested. Punch will defend Merchant against any third-party claim alleging that Merchant's authorized use of the Portal Services, as provided by Punch, directly infringes a valid patent, copyright, or trade secret, and will pay damages and reasonable attorneys' fees finally awarded (or agreed in settlement) in a judgment, subject to the conditions and exclusions set forth in the full Terms.

16. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL PUNCH OR ITS AFFILIATES, OFFICERS, EMPLOYEES, LICENSORS, OR SERVICE PROVIDERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF DATA, BUSINESS INTERRUPTION, OR THE COST OF SUBSTITUTE SERVICES, ARISING OUT OF OR RELATED TO THE AGREEMENT OR THE PORTAL SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, PUNCH'S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THE AGREEMENT OR THE PORTAL SERVICES, REGARDLESS OF THE LEGAL THEORY, WILL NOT EXCEED THE TOTAL FEES ACTUALLY PAID BY MERCHANT TO PUNCH UNDER THE APPLICABLE ORDER FORM(S) IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. The Parties acknowledge that these limitations are an essential basis of the bargain and apply regardless of the legal theory, to the maximum extent permitted by law.

17. General

In the event of a conflict, the following order of precedence shall apply: Order Form, DPA (for data protection matters), SLA (for service levels), and then these Terms. Notices under the Agreement will be in writing and delivered by email, through the Portal Services, or by recognized courier to the addresses set forth in the Order Form, Merchant's account, or otherwise provided by a Party. Merchant consents to receive electronic communications, including notices, agreements, disclosures, and other communications related to the Agreement and the Portal Services. Merchant may not assign or transfer the Agreement without Punch's prior written consent. Punch may assign the Agreement to an Affiliate or in connection with a merger, acquisition, reorganization, or sale of all or substantially all of its assets. Punch will not be liable for any delay or failure to perform due to events beyond its reasonable control. Nothing in the Agreement creates a partnership, joint venture, agency, or employment relationship between the Parties. The Agreement will be governed by and interpreted exclusively in accordance with the laws of Israel, without regard to conflict of laws principles. Any dispute arising out of or relating to the Agreement will be brought exclusively before the competent courts located in Tel Aviv-Jaffa, Israel. Sections 2.3 (Restrictions), 6, 7 (for amounts owed), 8.5 (Effect of Termination), 11 (Intellectual Property), 12.2 (Third Party Services), 13 (Confidentiality), 14.2 (Merchant Warranties), 14.3 (Disclaimers), 15 (Indemnification), 16 (Limitations) and this Section 17, and any provisions which by their nature are intended to survive, shall survive termination or expiration of the Agreement.

18. Company Information and Contact

To resolve a complaint regarding the Portal Services or to obtain further information regarding their use, Merchant may contact Punch at:

Punch Loyalty Ltd.
Address: Halperin 8, Tel Aviv 6340410, Israel
Email: info@punch-portal.com
Phone: (+972) 50-930-2533