Terms Of Service

IMPORTANT-PLEASE READ CAREFULLY: THIS IS A LEGAL AGREEMENT BETWEEN YOU AND LOYALTYEXPRESS, LLC, A MASSACHUSETTES COMPANY, D/B/A VOLLY, REGARDING THE BROKER ACCESS MARKETING (“BAM”). AS USED HEREIN, "WE," "US," "OUR" AND "VOLLY" SHALL MEAN LOYALTYEXPRESS, LLC; "YOU" AND "YOUR" SHALL MEAN THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, THAT REGISTERS FOR OR USES SOFTWARE AND MARKETING OFFERED BY VOLLY AND HOMECAPTAIN.

BY REGISTERING AS A USER OF BAM, YOU AGREE TO FOLLOW AND BE BOUND BY THESE TERMS AND CONDITIONS. YOU ARE PERMITTED TO USE, REPRODUCE AND DISTRIBUTE MATERIALS OFFERED BY BAM AS SET FORTH BELOW ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THESE TERMS OF SERVICE (THE "AGREEMENT").

IF YOU CLICK THE "I ACCEPT THE TERMS AND CONDITIONS” BUTTON, YOU INDICATE YOUR AGREEMENT TO THE TERMS SET FORTH BELOW. IF YOU DO NOT AGREE, OR DO NOT HAVE AUTHORITY TO AGREE, TO THESE TERMS, PLEASE DO NOT CLICK THE “I ACCEPT THE TERMS AND CONDITIONS" BUTTON AND EXIT REGISTRATION AND CEASE USE OF THE BAM SOFTWARE AND MARKETING. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY, YOU REPRESENT AND WARRANT THAT YOU HAVE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE COMPANY AND TO BIND THE COMPANY TO ALL OF THE TERMS AND CONDITIONS HEREOF. ANY USE, REPRODUCTION OR DISTRIBUTION OF ANY MATERIALS ON THIS WEBSITE BY YOU OR BY A THIRD PARTY ON YOUR BEHALF CONSTITUTES YOUR ACCEPTANCE OF THIS AGREEMENT.

1. OPENING USER ACCOUNT; LOGIN AND PASSWORD.

1.1 To open a user account, you must complete the registration process by providing VOLLY with current, complete and accurate information as prompted by the registration form. In registering for the user account, you agree to submit accurate, current and complete information about you and your company, and promptly update such information. Should VOLLY suspect that such information is untrue, inaccurate, not current or incomplete, VOLLY has the right to suspend or terminate your usage of the user account.

1.2 Upon registration, you will create a user name and personal password. You will be responsible for keeping your user name and password confidential. You will notify us immediately upon learning of any unauthorized use of your user name or password. VOLLY cannot and will not protect you from the unauthorized use of your user name and password. You will be responsible for all activities and charges incurred through the use of your user name and password, and any claims, liability, damages, losses and costs (including reasonable attorneys' fees) resulting from the unauthorized use of your password. Notwithstanding the preceding sentence, you will not be responsible for any activities, charges, claims, liabilities, damages, losses or costs (including reasonable attorneys' fees) that arise from the unauthorized use of your password directly resulting from a grossly negligent act or omission or willful misconduct of VOLLY.

1.3 Access: BAM is a web based software program. VOLLY has provided the ability to login to the software via a website with reasonable and customary computer and internet requirements. However, you understand and acknowledge that if you, your affiliates or employees of your company have placed any computer or internet restrictions, VOLLY does not warrant proper access to the software if the inability to correctly access software has resulted from restrictions placed by you, your affiliates or employees of your company.

2. GENERAL USE PROVISIONS.

2.1 All materials provided by VOLLY, including information, documents, products, logos, graphics, sounds, images, Software (as further defined below) and services (hereinafter, "Materials"), are provided by VOLLY and are the copyrighted work of VOLLY. As used herein, the term "Materials" shall not include the Data provided by and generated by you as referenced in Section 5, below.

2.2 Subject to the terms and conditions herein, Volly hereby grants you a non-exclusive, non-sub licensable, non-transferable license to use, reproduce and distribute the Volly Materials provided that: (1) the intellectual property notices identified in Section 17 below appear in the Materials; and (2) the use, reproduction, and distribution of such Materials is solely for your own business use, including dissemination to your actual or potential clients or customers, and will not otherwise be distributed, transferred, assigned, provided, or displayed to third parties, posted on any networked computer, mirrored on any third party server or broadcast in any media.

2.3 Except as stated herein, none of the Materials may be copied, reproduced, distributed, republished, downloaded, displayed, posted, transferred, assigned or transmitted in any form or by any means, including electronic, mechanical, photocopying, recording, or other means, without the prior express written permission of VOLLY. Except where expressly provided otherwise by VOLLY, nothing on the BAM Website shall be construed to confer any license to any of VOLLY's intellectual property rights, whether by estoppel, implication, or otherwise.

4. SOFTWARE USE RESTRICTIONS.

4.1 Any software that may be made available to access from this Website ("Software") is the copyrighted work of VOLLY. Use of the Software is governed by this Agreement, including the terms set forth in this Section ("Software Use Restrictions"). For purposes of this Agreement, "Software" also includes the third-party computer software and/or materials provided with or incorporated into the Software, and any related materials or documentation thereto.

4.2 You and anyone acting on your behalf may not (a) modify, adapt, translate, reverse engineer, decompile, disassemble, derive source code, create derivative works based on, or copy the Software (except as stated above) or the accompanying documentation, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation; (b) rent, sublicense, loan, transfer, provide, display, distribute or grant any rights in the Software in any form to any party other than employees of your company or any entity that your company has legally registered as a DBA; (c) use the Software for any purpose other than to support your own use which may include co-branding or displaying of your client’s information along with yours; (d) use the third party computer software or materials provided with or incorporated in the Software as stand-alone applications or other than with the individual software programs for which they are licensed; (e) remove any proprietary notices, labels or marks in or on the Software; (f) use the Software on any unsupported platform; or (g) use, copy, modify or transfer the Software or any copy, in whole or in part, except as expressly provided in this Agreement.

4.3 Title and copyrights in and to the Software, and any copies thereof, are owned by and remain with VOLLY.

5. USER DATA.

5.1 VOLLY does not own any Data that you post onto your user account, unless we specifically tell you otherwise beforehand. For the purpose of this Agreement, "Data" means information, data, text, photographs, graphics, messages or other materials, whether publicly posed or privately transmitted. VOLLY will not monitor or disclose any information regarding you or your account, including any of your Data, without your prior permission except in accordance with this Agreement. VOLLY may access your account to respond to support related issues.

5.2 If a dispute arises regarding the rights to access to a user account, VOLLY at its sole discretion may give access to an authorized officer of the company listed as the employer of the primary contact upon written request from such officer on company letterhead or, among other options, withhold disclosure of the user account information to any person until it receives an order of the court. If the named company on a user account is not a legal entity, VOLLY may presume that the primary contact named on the user account is the only person authorized to access the account.

5.3 If a dispute arises regarding the rights to access to a user account, Volly at its sole discretion may give access to an authorized officer of the company listed as the employer of the primary contact upon written request from such officer on company letterhead or, among other options, withhold disclosure of the user account information to any person until it receives an order of the court. If the named company on a user account is not a legal entity, VOLLY may presume that the primary contact named on the user account is the only person authorized to access the account.

6.8 License Grant - You grant to VOLLY all necessary rights and licenses in and to all Content necessary for VOLLY. You will maintain an adequate back-up of all Content and VOLLY will not be responsible or liable for any deletion, correction, destruction, damage, loss or failure to store or back-up any of any Content. You represent and warrant that you have all necessary right, title, interest and consent necessary to allow VOLLY to use all Content as set forth in this Agreement and as otherwise necessary to provide the services under this Agreement.

7. TERM AND CANCELLATION POLICY.

7.1.1 Annual Agreements - The term of this Agreement (i.e., your subscription to use the Software, Website and the Materials) is 12 months. Subject to the terms herein, all subscriptions shall automatically renew for additional, consecutive 12-month periods. You may elect to cancel this Agreement effective as of the last day of the then-current term of this Agreement at any time prior to such date by delivering written notice to OSI.

7.2 In the event that you breach, or any person or entity acting on your behalf breaches, any of the terms of this Agreement, including, without limitation, the failure to make any required payments on a timely basis, or an initiation of a credit card dispute wherein the outcome of your credit card dispute is found in favor of Volly by your credit card company, thus constituting a fraudulent credit card dispute on your behalf, Volly may (a) immediately bill your credit card or withdraw funds out of your authorized bank account for the remainder of your 12 month agreement, or (b) suspend your access to the Software, Website and the Materials without notice, or (c) immediately terminate this Agreement (and the licenses granted to you herein), without any obligation to refund any fees or charges that you paid in advance, or (d) immediately both (b) and (c). In the event of a suspension of your access to the Software and Website or termination of this Agreement because of your breach, you will continue to be responsible for the payment of all fees and charges pursuant to this Agreement through the last day of the then-current 12-month term of this Agreement. This Agreement and the licenses granted to you under this Agreement shall terminate automatically without notice upon your filing of a petition for bankruptcy.

7.3 VOLLY further reserves the right to terminate this Agreement for any or no reason upon delivery of written notice to you, subject to its obligations to you pursuant to Section 7.5 below.

7.4 Upon notice of cancellation under Section 7.1, (a) you must immediately cease using the Materials, (b) all of the rights granted to you hereunder shall immediately cease, and (c) you must promptly destroy or erase all copies (including back-up copies) of the Materials.

7.5 Provided that you are not in breach of this Agreement, upon termination of this Agreement by VOLLY pursuant to Section 7.3 above, VOLLY will refund any prepaid charges for the remaining whole months left in the term of your subscription, starting within one month of the termination. VOLLY shall have no obligation to maintain any Data stored in your account or to forward any Data to you or any third party.

7.6 The following sections of this Agreement shall survive the termination of this Agreement for any reason: 1.2, 2, 3, 4, 5, 6, 7, 10, 11, 12, 13, 14, 15, and 16.

8. FEES.

8.1 You will pay all fees or charges to your account in accordance with the fees, charges and billing terms in effect at the time the fee or charge is due and payable. Fees and charges do not include tax and, where applicable, you agree to pay any sales, use, property, value-added, withholding or other taxes that may be assessed in connection with such fees or charges. Notwithstanding any provisions to the contrary, the legal entity on whose behalf an individual has registered onto this Website shall be jointly and severally liable for the activities of, including all fees and charges incurred by, said individual on this Website.

8.2 VOLLY will automatically bill your credit card at the beginning of the billable time period on an annual basis. In the event that VOLLY is unable to charge your credit card account for any reason when payment is due, or you otherwise fail to make any payment when due, VOLLY shall have the rights described in Section 7.2 above.

9. DISCLAIMER. EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY VOLLY, THE MATERIALS ON THE WEBSITE, INCLUDING BUT NOT LIMITED TO SOFTWARE, ARE PROVIDED "AS IS", AND ARE FOR COMMERCIAL USE ONLY. WITH REGARD TO SUCH MATERIALS, VOLLY MAKEs NO WARRANTY REGARDING USE OR PERFORMANCE, AND HEREBY DISCLAIM ALL EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES, GUARANTIES AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED REPRESENTATIONS, WARRANTIES, GUARANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, EXCEPT TO THE EXTENT THAT SUCH DISCLAIMERS ARE HELD TO BE LEGALLY INVALID. VOLLY DOES NOT WARRANT WITH RESPECT TO THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE MATERIALS. VOLLY SHALL HAVE NO LIABILITY FOR ANY VIRUSES RELATED TO THE MATERIALS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, VOLLY DOES NOT WARRANT THAT (A) THE MATERIALS WILL MEET YOUR REQUIREMENTS; (B) THE MATERIALS WILL OPERATE OR BE USABLE IN COMBINATION WITH OTHER HARDWARE, SOFTWARE, SYSTEMS, OR DATA; (C) THE OPERATION OR USE OF THE MATERIALS WILL BE UNINTERRUPTED OR ERROR-FREE; OR (D) ANY PROGRAM ERRORS WILL BE CORRECTED. YOU ASSUME ALL RESPONSIBILITY FOR DETERMINING WHETHER THE MATERIALS ARE ACCURATE OR SUFFICIENT FOR YOUR PURPOSES. VOLLY DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES, GUARANTIES OR CONDITIONS AS TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY, OR COMPLETENESS OF ANY OF THE MATERIALS CONTAINED ON THIS WEB SITE.

10. LIMITATION OF LIABILITY. VOLLY SHALL NOT BE LIABLE FOR ANY DAMAGES SUFFERED AS A RESULT OF USING, MODIFYING, CONTRIBUTING, COPYING, DISTRIBUTING OR DOWNLOADING THE MATERIALS. IN NO EVENT SHALL VOLLY BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF BUSINESS, REVENUE, PROFITS, USE, DATA OR OTHER ECONOMIC ADVANTAGE), HOWEVER ARISING, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF ANY MATERIALS AVAILABLE FROM THIS WEBSITE, EVEN IF VOLLY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. YOU HAVE SOLE RESPONSIBILITY FOR THE ADEQUATE PROTECTION AND BACKUP OF DATA AND/OR EQUIPMENT USED IN CONNECTION WITH THIS WEBSITE AND YOU WILL NOT MAKE A CLAIM AGAINST VOLLY FOR LOST DATA, RE-RUN TIME, INACCURATE OUTPUT, WORK DELAYS, LOST PROFITS, OR LOST OPPORTUNITIES RESULTING FROM THE USE OF THE MATERIALS. WITHOUT DIMINISHING THE GENERALITY OF THE FOREGOING, IN NO CASE SHALL VOLLY’S LIABILITY TO YOU UNDER ANY CAUSE OF ACTION EXCEED THE TOTAL AMOUNT THAT YOU HAVE PAID TO VOLLY FOR MATERIALS DURING THE THREE MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CAUSE OF ACTION.

11. INDEMNITY. You agree to indemnify and hold VOLLY harmless from, and you covenant not to sue VOLLY for, any claims based on or related to (a) your negligence, error, omission or willful misconduct, (b) your breach of any terms of this Agreement, (c) any claim by a third party that VOLLY, due to your use of the Materials, is liable for contributory infringement of a copyright, patent, trade secret, or other proprietary right of a third party, provided that this indemnity will not apply to any claim to the extent the Software delivered by VOLLY infringes on a proprietary right of a third party, (d) any claim by a third party that VOLLY, due to your use of or inability to use the Materials, is liable to a third party in tort or under statutory liability, including, without limitation, defamation, invasion of privacy, spamming or similar theories of law, (d) your use of the Software, Website or the Materials, except to the extent due to VOLLY’s gross negligence or willful misconduct.

12. MODIFICATIONS. VOLLY may make improvements and/or changes in the products, services, Software, and prices described in this Website at any time without notice. VOLLY may make changes to the terms and conditions of this Agreement or other policies relating to the usage of the Website at any time. Your continued use of Software and Website after any such changes constitute your consent to such changes.

13. NOTICE. VOLLY may give notice by means of a general notice on the Website, electronic mail to your e-mail address on record in Volly’s account information. You may give notice to VOLLY (such notice shall be deemed given when received by Volly at any time by any of the following: electronic mail to vollycare@myvolly.com .

14. GENERAL. This Website may include inaccuracies or typographical errors. The section headings are inserted for convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of this Agreement. As used in this Agreement, the word "including" means "including but not limited to." No joint venture, partnership, employment or agency relationship exists between you and VOLLY as result of this Agreement or through the use of this Website. No alteration, amendment, or modification of any of the provisions of this Agreement shall be binding unless made in writing with express reference to this Agreement and signed by a duly authorized representative of each party. The failure of VOLLY to enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by VOLLY in writing. If any of the provisions of this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and remaining provisions will remain in full force and effect. Volly shall not be liable for any failure to fulfill its obligations hereunder due to causes beyond its reasonable control, including acts or omissions of government or military authority, acts of God, shortages of materials, transportation delays, earthquakes, fires, floods, labor disturbances, riots, or war. This Agreement will be governed by Massachusetts law and controlling U.S. federal law, without regard to the choice or conflicts of law provisions of any jurisdiction. Any and all disputes, actions, claims, or causes or action related to or in connection with this Agreement or the Website shall be brought in the federal and state courts located in Boston, Massachusetts. This Agreement represents the entire understanding relating to the use of the Website and prevails over any prior or contemporaneous, conflicting or additional communications, including statements on the Website. Volly has the right to assign or transfer this Agreement to a third party which acquires substantially all of the assets of Volly connected with the Website. You may not assign or otherwise transfer in whole or in part or in any manner any rights, obligations, or any interest in or under this Agreement without Volly's prior written consent and any attempted assignment will be void. A merger or other acquisition by a third party will be treated as an assignment.

15. INTELLECTUAL PROPERTY NOTICES. You hereby acknowledge the following proprietary notices and legends: Elements of the Website are protected by copyright, trademark and other intellectual and industrial property laws and may not be copied or imitated in whole or in part except as provided in this Agreement. No logo, graphic, sound or image from the Website may be copied or retransmitted unless expressly permitted by VOLLY. Volly, the VOLLY logo, and/or other VOLLY brand names for products or services referenced herein are trademarks of VOLLY and may be registered in certain jurisdictions.

16. Each party hereby waives any right to a trial by jury in the event of any controversy or claim relating to these Terms and Conditions. The law of the State of Massachusetts shall apply to any resulting claim or action, and the exclusive jurisdiction and venue for any proceeding brought pursuant to these Terms and Conditions shall be Boston, Massachusetts.

17. CONTACT INFORMATION. If you have any questions about this Agreement, please contact Volly Care at 866.435.7050. or vollycare@myvolly.com.