Agreement Last Updated: 9 January 2024

Welcome to Caroo. Awesome Office, Inc. doing business as Caroo (“Caroo”) provides an online recognition service allowing Users to order various rewards, including both those delivered via postal services as well as digital methods, to Customer’s employees and other individuals, as well as engage with personality assessments and other tools to create an share a “Care Profile” to encourage and enable more meaningful moments of care and recognition.

The following terms of service (the “Terms”), along with Caroo’s Privacy Policy and the Order Form (collectively, the “Agreement”), govern your access to and use of the Services (defined below) and constitute a legally binding agreement between you and Caroo. By completing an online Order Form for any goods or services, by using the Services in any manner, or by signing an Order Form which references these Terms, you or the entity you represent (the “Customer”) agree that you have read and agree to be bound by and a party to these Terms to the exclusion of all other terms, and you represent and warrant that you are authorized to bind Customer; these Terms form a legal agreement between Customer and Caroo. Capitalized terms not defined herein shall have the meaning set forth on the Order Form which references these Terms.

Please read these Terms carefully before using the services offered by Caroo as it provides important information. A few important highlights of these Terms include:

• Services. Sections 4 (Corporate Gifting Services), 3 (Use of Services & Licensing), and their subsections provide important rules and restrictions related to the Services that apply to Customer and Users.
• Limited Liabilities. You understand that we offer no service-related warranties, and our liabilities are limited. See Sections 11.2 and 12.
• Modification. We may change these Terms or any portion of the Services at any time. Your continued use of the Services constitutes your acceptance of any modifications to these Terms. See Section 2.4.
  
  

1. Definitions.

“Affiliate” means any entity controlling, controlled by, or under common control with, a party hereto, where “control” means the ownership of more than 50% of the voting securities in such entity.

“Gift(s)” or “Gift Package(s)” means carefully curated package(s) with various food and gift items, and packages customized by Customer, its Users or Gift recipients.

“Gift Package Cost” means the cost of each individual Gift Package, as set forth in an applicable Order Form.

“Customer Data” means all data and other content provided by Customer to Caroo in connection with using the Services; Customer Data includes Personal Data such as Gift Package recipient information.

“Drop Shippers” means third party providers of goods marketed on the Platform that ship such goods directly to the recipient.

“Personal Data” will have the same meaning as applicable data protection laws and regulations.

“Platform” means the online and hosted services provided by Caroo which enables Users to order and ship carefully curated Gift Packages and other various items to Customer’s employees or other individuals.

“Service(s)” means the corporate gifting service, Platform and any other services provided by Caroo hereunder.

“Membership Price” means the annual fee, set forth in applicable Membership Contract(s), to provide Customer access to the Membership Benefits and any additional services as further defined in (https://caroo.com/pricing). The Membership Price is due and payable in advance (unless otherwise stated in an applicable Membership Contract) and non-refundable.

“Membership Term” means the period for which Customer has access to Membership Benefits, as set forth in an applicable Membership Contract.

“Billing Frequency” means the period for which the Customer has subscribed to use the Services, as set forth in an applicable Order Form.

“User” means a profile of an individual (e.g., employee, contractor, freelancer, or partner) on the Platform that has a status as a User (as set by Customer) and is authorized by Customer to use the Platform and Services. A User purchasing Gift Package(s), digital gift card(s), and/or eCard(s) is also a Customer for the purpose of such purchase(s).

“Recipient(s)” means a profile of an individual (e.g. employee, contractor, freelancer, partner, client, friend, or family member) on the Platform and is designated by User to be the intended Recipient of Gift Package(s), digital gift card(s), and/or eCard(s). 

“Collaborator(s)” or “Contributor(s)” means individuals invited to participate in various ways to contribute to the moment of care of another individual (the Recipient). Collaborators/contributors may be sent requests for content such as text, sound, imagery, photography and/or videography, and/or monetary contributions. 

“Moment(s) of Care” means the order or purchase of one or more items are services with the intended delivery to one or more Recipients. A Moment of Care may include gifts, digital gift cards, eCards, or any combination thereof.

“Digital Gift Card(s)” or “Gift Card(s)” means a device issued by and redeemable for goods and services at a single retailer and its affiliates, or issued by a payments network (such as Visa or Mastercard) usable at multiple unaffiliated retailers, both of which may be offered and managed by a third party, such as a bank, and subject to additional terms and conditions posted or presented by such third party.

“eCard(s)”, “Affirmation Feed(s), and/or “CareCard(s)” means a digital version of a greeting card, typically populated with content that may be auditory, visual, and/or readable in nature, and populated by one or more Users and/or Collaborators.

“Caroo Credit Redemption Link(s)” or “Credit Redemption Link(s)” means a unique identifier provided automatically by Caroo to the email address, as provided by Customer, of the Recipient of an unclaimed Moment of Care which allows Recipient to redeem the value of the Moment of Care as Caroo Credit to their User Account.

“Caroo Credit” or “Account Balance” means funds stored on the billing account of a Customer. These are issued in USD, and, when present, automatically apply to the next payment without ability to choose a specific order or payment, or opt out.

“RecognitionDNA”, “rDNA”, and/or “Care Personality” means a proprietary assessment and content related to aiding individuals in understanding their recognition needs and preferences in the workplace.

“Care Profile”, “Recognition Profile”, “Recognition Intelligence”, and/or “rIQ” means the consolidation of various demographic, personal, preference, and other information to provide a guide for best recognizing an individual in the workplace. This may include information related to, but not limited to, a RecognitionDNA type, multiple-choice and free-form Care Preference questions, hire and birth dates, and more.

2. Caroo Services.

2.1 Services. Caroo shall implement and operate the Platform for Customer in accordance with this Agreement.

2.2 Access and Account Setup. As part of the implementation process, Customer will identify administrative username(s) that will be used to set up Customer’s account. Caroo will provide Customer’s administrative user(s) with access privileges that Permit Customer to access and manage the Platform and access Customer Data and other related data. Customer may use the administrative username(s) to create Users (each with unique login IDs and passwords). Customer shall be responsible for the acts or omissions of any person who accesses the Platform using passwords or access procedures provided to or created by Customer.

2.3 Customer Data. The parties will work together to enter initial User information and Customer Data into the Platform. Following that initial implementation, Customer will be responsible for entering User information and Customer Data into the Platform. Customer will have the ability to add, modify or delete Users from the Platform. Client agrees that: (a) the quality of the Services depends on the uploading or other provisioning of Customer Data into the Platform and (b) Caroo will not assume any responsibility for, or undertake to verify, the accuracy or completeness of the Customer Data entered by Customer.

2.4 Modifications.

2.4.1 Modifications to Platform and Services. Caroo reserves the right, at its sole discretion, to modify or discontinue the Platform (in whole or part) at any time by giving ninety (90) days’ prior written notice to Customer, provided that in the event such modification or discontinuance materially reduces the functionality of the Platform used by Customer in accordance with this Agreement, Customer may terminate this Agreement upon at least fifteen (15) days’ prior written notice to Caroo.

2.4.2 Modifications to these Terms. Caroo reserves the right, at its sole discretion, to modify these Terms at any time and without prior written notice to Customer but will not materially reduce its obligations therein without prior written approval from Customer. If Caroo modifies these Terms, we will update the “Agreement Last Updated” date at the top of these Terms. By continuing to access or use the Services after we have posted a modification, Customer is indicating that it agrees to be bound by the modified Terms. If the modified Terms are not acceptable to Customer, Customer’s only recourse is to cease using the Services.

2.5 Limitations. Caroo will not be responsible or liable for any failure in the Platform resulting from or attributable to (a) Customer Data or failure to deliver Customer Data to Caroo, (b) failures in any telecommunications, network or other service or equipment outside of Caroo’s facilities, (c) Customer’s or any third party’s products, services, negligence, acts or omissions, (d) any scheduled maintenance in accordance with the Terms, or (e) unauthorized access, breach of firewalls, or other hacking by third parties.

2.6 Compliance and Suspension. Customer is responsible for its Users’ compliance with these Terms and for any and all activities that occur under Customer’s account. Without limiting the foregoing, Customer is solely responsible for ensuring that Customer’s and its Users use of the Services are compliant with all applicable laws and regulations. Caroo may immediately suspend Customer and User access to the Services in the event either fails to comply with the material terms of this Agreement; access will be restored once the non-compliance has been cured. Payment obligations will continue through any such suspension.

3. Use of Service and Licenses.

3.1 License. Subject to the terms and conditions of this Agreement, Caroo grants to Customer a non-sublicensable, non-transferable (except as expressly set forth in Section 13.8 below), non-exclusive limited license to access and use the Platform during the Subscription Period. Customer shall use the Platform and any documentation or other information related thereto that is received from Caroo or its representatives solely for Customer’s internal business purposes. Customer acknowledges and agrees that the Service may incorporate functions that will inhibit Customer from exceeding the scope of this license.

3.2 No Implied License. Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted, and Caroo (and its licensors) shall retain all right, title and interest in and to the Platform (including all intellectual property and proprietary rights embodied therein). Customer shall not take any action inconsistent with such rights.

3.3 Restrictions. Customer shall not: (a) use the Service, any documentation or any of Caroo ‘s Confidential Information (as defined in Section 6 below) provided hereunder to create any software, documentation or service that is similar to the Service or any documentation provided in connection therewith, (b) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code of the Service, or the Confidential Information therein (except and only to the extent that these restrictions are expressly prohibited by applicable law), or otherwise circumvent any technological measure that controls access to the Service, (c) encumber, sublicense, transfer, rent, lease, time-share or use the Service in any service bureau arrangement or otherwise for the benefit of any third party (except as set forth in Section 3.1), (d) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns pursuant to these Terms (or any direct product thereof) in violation of any export control laws or regulations of the United States or any other relevant jurisdiction, (e) disclose any performance or benchmarking information with respect to the Service to any third party, including without limitation licensors of any services that compete with or provide similar functionality to the Service, (f) reproduce, distribute, manufacture, adapt, create derivative works of, translate, localize, port or otherwise modify the Service or any portion thereof, or (g) permit any third party to engage in any of the foregoing proscribed acts.

3.4 Trademarks. Customer shall not alter, obscure or remove any printed or on-screen trademark, patent legend or other proprietary or legal notice in the Service. Customer grants to Caroo a non-sublicensable, non-transferable, non-exclusive limited license to use, reproduce, distribute, and display Customer’s trademarks, logos, and service marks (collectively, “Marks”) solely as required for the performance of the Service for Customer and as otherwise specified in this Agreement, including displaying on Customer’s instance of the Platform.

3.5 Passwords. Customer agrees to immediately notify Caroo of any unauthorized use of the Service or any other breach of security known to Customer.

3.6 Hosting. During the Term, Caroo will (itself or through use of a third party service provider operating on its behalf) arrange for the hosting, operation, and maintenance of the Platform to provide Customer with access to the Service.

4. Corporate Gifting Services.

4.1 Platform. Through the Platform, Caroo advertises, promotes and provides an online corporate gifting, employee care, and employee recognition intelligence service allowing Users to order and ship carefully curated Gift Packages with snacks and other various items, or electronically deliver various digital goods and experiences such as digital gift cards or eCards to Customer’s employees and other individuals, and invite users to share and store preferences and profile information.

4.2 Gift Packages. Once a User has completed the Order Form applicable to physical gift delivery, in accordance with the date values set by the User, steps in Section 4.1, Caroo will send Recipients notice of their pending Gift Package via email indicating a portion of Recipient’s intended mailing address, if a mailing address was entered by User, and a hyperlink where Recipient may update the mailing address. Additionally, if applicable, Recipients may have the option to alter the Gift Package itself via the Recipient Choice feature. In the event Recipient does not update their mailing address, if one was entered by User, or alter the contents of the Gift Package within the window of time indicated in the email, each Gift Package will be delivered within the delivery window indicated within said email. Additionally, in the event Recipient does not update their mailing address, and one was not entered by User, during the window of time indicated in the email, in certain circumstances Caroo may deliver the value of the gift via email in the form of a digital gift card within the delivery window indicated. Caroo retains the right to substitute the contents of any Gift Package due to availability.

4.2.1 Recipient Choice Gifts. When the User is completing the Order Form applicable to Recipient Choice Gifts, they may be offered a preview of the collection of gifts that Recipient(s) will have to choose from. This preview is exactly such, and is not a promise or commitment of any kind to what recipient choices will ultimately be at the time of gift selection. Recipient Choice gift collections are subject to change at any time, without notice. The User accepts that an individual Recipient may see more or less gift options based on availability, seasonality, intended delivery address, and other factors. User may select their preferred gift budget per Recipient and agrees to be billed the full budgeted amount per Recipient regardless of ultimate Recipient selection or lack thereof, plus additional taxes and shipping fees, as applicable. User is not entitled to any refund or partial refund related to Recipient gift selection(s).

4.3 Unclaimed Gift Packages. In the event the User does not enter a recipient mailing address for any Gift Package and the recipient fails to do so within the period indicated in the recipient email: (i) the Gift Package will not ship, (ii) the User’s credit card will be charged for the allotted value of each gift for every Recipient, and (iii) the recipient will no longer be able to claim the Gift Package or edit their delivery address.

4.3.1 Unclaimed Recipient Choice Gifts. In the event the Recipient does not enter a mailing address and select a gift of choice within the period indicated in the Recipient email, and the product indicated in the Order Form was Recipient Choice, then the following terms supersede those of clause 4.3: (i) the Gift Package will not ship, (ii) the User’s credit card will be charged for the allotted value of each gift for every Recipient, (iii) the Recipient will no longer be able to claim the Gift Package, and (iv) the Recipient will be delivered the value of the gift via email in the form of a digital gift card within the delivery window indicated.

4.3.2 Automated Issuance of Caroo Credit. Pursuant to Sections 4.3 and 4.3.1, Recipients of gift packages where Caroo is unable to successfully collect a delivery address and Recipient of Recipient Choice gifts where Recipient is does not select a gift within the timeline indicated, may be issued Caroo Credit at the expiry of the time window indicated. Caroo Credits dispersed in this manner will be made available via email to the original recipient in the form of a unique Redemption Link the User may use to apply the balance to their individual User Account. These Caroo Credit Redemption Links are active and valid for a minimum of five years. To the extent that User has title or ownership of any reward link that expires without the entire face value being applied to a User Account prior to the expiration date, User hereby assigns and agrees to transfer the entire remaining balance of the credit to Caroo as of the expiration of the Redemption Link. User and/or Customer agrees that Caroo may debit the account in which link amounts are held for such expired unused value and give authorization to make such debits from time to time, starting after twelve (12) full months of inactivity of a Redemption Link, at a maximum amount of 1/50th of the original amount per month thereafter. Caroo is not liable for lost, stolen, or shared Caroo Credit Redemption Links.

4.3.3 Dormant Caroo Credit on a User Account. Once applied to a User Account, Caroo Credit is available to that User in said User Account in perpetuity, with one exception. Should a User maintain a balance of less than $5.00 USD, unchanged for a period of more than five (5) years, User hereby assigns and agrees to transfer the entire remaining balance of the credit to Caroo.

4.4 Drop Shipments. Certain Gift Packages or items within Gift Packages may be provided by Drop Shippers. Caroo is not responsible for, and cannot guarantee the performance of goods and services provided by Drop Shippers. Caroo cannot confirm the availability of items shipped from Drop Shippers until after your order is placed. If you purchase a Gift Package that will be shipped by a Drop Shipper, Caroo will share certain recipient Personal Data with the Drop Shipper solely to fulfill and ship such Gift Package. Customer acknowledges and agrees that Drop Shipper will be responsible for processing and shipping of applicable Gift Packages.

4.5 Disclaimers. Customer acknowledges and agrees that: (i) Caroo is a retailer and logistics company and does not manufacture or prepare the contents of the Gift Packages – liability for the contents of all Gift Package(s) lies with each product manufacturer and not Caroo; and (ii) Caroo is not the shipping provider and is not liable for any delivery delays or damages to Gift Packages.

4.6 Replacement Shipments. Caroo is responsible for delivering product(s) that are new and first in quality to the last confirmed address(es) provided by the Customer and/or Recipient. In the event that an incorrect or damaged product is received by the Recipient, Caroo is responsible for all costs incurred for a replacement shipment with standard shipping terms.  The Customer is responsible for providing an accurate and secure location for the product to be delivered. Customer is responsible for all costs for a replacement shipment if the last confirmed address is incorrect or if the product was damaged or stolen post delivery confirmation. In the event a replacement shipment is required, SLA delivery time will be reset. If the Customer would like a replacement shipment to have expedited shipping terms, the Customer will be responsible for the incremental costs.

4.7 Credit Card Transactions. If Caroo incurs any costs, including attorneys’ fees, to recover any payments charged back by a credit card company, Customer agrees that it will be liable for these costs. If the credit card is declined, Customer guarantees that it will settle any amounts owing to Caroo immediately.

4.8 Transit Times. Caroo packages are fulfilled and shipped through multiple eCommerce partnerships. Shipments primarily transit via FedEx, UPS and USPS, typically reaching most domestic destinations within 5-10 business days. International destinations and destinations in Alaska, Hawaii, Puerto Rico, and other U.S. territories can take 10-30 business days and may be charged premium rates or additional fees. By using Caroo, the customer accepts that these delivery timelines are estimates and averages and not guarantees.

4.9 Automated Milestone Fulfillments. Customer must provide a file of recipients (“Roster”, “Contact Group”, or “Recipient List”) containing a minimum of email, first name, last name, and Milestone date(s) for each recipient included in the subscription at least one (1) day prior to subscription start. Caroo will automatically start to process shipments on the Milestone date for each recipient. A shipment cannot be added to or canceled from the automated Milestones subscription on that shipment’s Milestone date. Customer is responsible for keeping the Roster up to date, reflecting changes to individuals that should and/or should not be a part of the program. Customer is able to update the Roster at any time using Caroo’s self-service account features.

4.10 Digital Gift Cards. Once a User has completed the Order Form applicable to digital gift card delivery, in accordance with the date values either set or accepted by the User, Caroo will send Recipients notice of their gift with a hyperlink where Recipient may redeem their reward for the gift card of their preferred retailer, from a list of predetermined options, or where applicable, redeem as a charitable donation to the not-for-profit organization of their choice,  also from a list predetermined options. Participating retailers and not-for-profit organizations are subject to change at any time without notice.

4.10.1 Digital Gift Card Billing. Digital gift card orders are non-cancellable and non-refundable. User is responsible for the accuracy of all contact and disbursement information provided. Should User provide incorrect contact or disbursement information, User must notify Caroo via email at care@caroo.com within 48 hours of the order being created, specifying both the mistaken Recipient information and the corrected Recipient information. Caroo will consider three conditions, all of which must be met, in order to attempt to cancel and reissue a reward: (i) User notified Caroo within 48 hours of the order creation date, (ii) reward was created in reasonable and honest error, and (iii) reward(s) remain unclaimed by Recipient(s). Caroo is the sole determiner of these conditions and is not responsible for any loss resulting from the inability to reissue rewards. Caroo will notify the customer of the final decision, and when applicable, attempt to cancel and reissue the rewards to the correct Recipient(s) within three (3) regular business days.

4.10.2 Digital Gift Card Processing Fees. Caroo may levy processing fees on digital gift card orders. These fees may vary and are subject to change at any time without notice. The User or Collaborator’s acceptance of a processing fee in one or more orders does constitute a right to purchase future orders at the same or a similar fee schedule. Digital gift card processing fees are non-refundable.

4.10.3 Unused Digital Gift Card Reward Links. Digital gift card reward links are active and valid for a minimum of five years. In accordance with the terms and conditions of Caroo’s third-party vendor(s), Title to a digital gift card reward link does not pass to the designated Recipient upon transmission of the reward link to the Recipient. To the extent that Customer has title to or ownership of any reward link that expires without the entire face value being activated and redeemed for a redemption option by the Recipient prior to the expiration date, User hereby assigns and agrees to transfer the entire remaining balance of the gift to Caroo or its third-party vendor(s) as of the expiration of the reward link. User and/or Collaborator agrees that Caroo’s third-party vendor(s) may debit the account in which reward link amounts are held for such expired unused value and give authorization to make such debits from time to time. 

4.10.4 Redeemed Digital Gift Cards. Once redeemed, rewards cannot returned, exchanged, resold, transferred, redeemed for cash or other forms of rewards, combined with other rewards or refunded, except as required by law, and will become governed by certain additional terms and conditions as established by the applicable reward vendor, retailer, issuing bank, or other third-party. As providers of the rewards, reward vendors are fully responsible for all aspects of their rewards. Reward vendors are also responsible for any and all liabilities, damages and costs suffered by the User, Collaborator, or Recipient in connection with the purchase and/or the use of the reward. Caroo or its third-party vendors assume no responsibility or liability for (i) the sale of products or services through the use of any digital gift card or charitable donation reward; and (ii) any reward vendor’s failure to honor a reward at its time of use.

4.10.5 Digital Gift Card Limits. Caroo, its third-party vendors, and individual Providers may impose or modify transaction limits per User, Recipient, or individual gift card at any time, at their sole discretion. No single User or Collaborator may send one or more digital gift cards totaling $10,000 USD or more in a single day, nor any single reward in excess of $2,000 USD at any time.

4.11 eCards (CareCards). Once a User has completed the Order Form applicable to eCard delivery, in accordance with the date values set by the User, Caroo will, as applicable, send Collaborators notice of their invitation, with a hyperlink to contribute content and/or monetary value for the eCard Recipient, and send Recipient notice of, and a hyperlink to view, the completed eCard. In the event the eCard includes a digital gift card add-on, the Recipient may redeem the gift card from the eCard interface. All digital and/or physical gifts associated with an eCard are pursuant the terms thereof as specified in Sections 4.10 and 4.2, respectively. All eCard purchases are final, binding, and non-refundable. Caroo reserves the right to, but has no obligation to, cancel eCard orders upon User request.

4.11.1 eCard Content. Caroo has no control over the conduct of, or any content provided by the User, Collaborators, and/or the intended Recipient, nor does Caroo filter or monitor content, and hereby disclaims all liability in this regard to the fullest extent permitted by applicable law. The dealings between User, Collaborator(s), and Recipient are solely amongst themselves and Caroo has no obligation to resolve any disputes between these parties. Each individual User and Collaborator must determine the appropriateness of sending or contributing to any eCard or associated digital gift card or other gift.

5. Recognition Intelligence Services.

5.1 Platform. Through the Platform, Caroo advertises, promotes and provides a online tools for understanding and storing preferences, personality traits, and other personal information meant to aid in more meaningful recognition of others, including through the use of tools such as, but not limited to, a personality assessment and results, named RecognitionDNA, survey questions to populate a Care Profile of individual preferences, and the storage of address, birth dates, hire dates, names, and other information.

5.2 Disclaimers. All Recognition Intelligence services are provided for informational and entertainment purposes only. These services are not designed for or meant to serve medical or psychological assessment purposes, to screen or assess the qualifications of individual employees or candidates, or other purposes. RecognitionDNA results should not be regarded or relied upon as being a comprehensive or accurate opinion or assessment concerning a User’s psychological well-being or personality. Any decisions made once having used or read the content of any Caroo-produced or User-produced content regarding RecognitionDNA, Care Profiles, Care Preferences, and/or any other Recognition Intelligence services, are for each individual alone and Caroo is not liable for the consequences of any such decisions.

6. Data & Security.

6.1 License to Customer Data. Customer grants Caroo a worldwide, nonexclusive, royalty free license to use, copy, access, process, reproduce, perform, display, modify, distribute and transmit the Customer Data on the Platform and in connection with providing the Services to Customer; this includes the right to disclose Customer Data to third parties when necessary to provide the Services.

6.2 Data Management. Customer possesses and retains all right, title and interest to Customer Data, and Caroo’s use and possession thereof is solely on Customer’s behalf. Unless it receives Customer’s prior written consent, Caroo shall not access, process, or otherwise use Customer Data other than as necessary to facilitate the Services. Following termination of this Agreement Caroo will purge all Customer Data upon Customer request.

6.3 Data Security. Caroo shall exercise commercially reasonable efforts to prevent unauthorized exposure or disclosure of Customer Data. In addition, and without limiting the generality of the preceding sentence, Caroo shall maintain, implement and comply with a written information security policy that requires commercially reasonable policies and procedures to ensure compliance with this Section 6.3.

6.4 Processing of Customer Data governed by EU laws. Customer acknowledges and agrees that it may be necessary for Customer to provide access or transfer to Caroo in the United States Personal Data governed by the local laws implementing the European Union Data Privacy Directive (95/46/EC) and the General Data Protection Regulation (“EU Privacy Laws”) in order for the data to be included in the Service and for the Customer to receive the services. To the extent that Caroo shall process, as such term is understood under the EU Privacy Laws, any Personal Data governed by EU Privacy Laws, the parties agree that (a) Caroo shall be the “data processor” and the Customer the “data controller”, as such terms are understood under the EU Privacy Laws, and (b) Customer shall be solely responsible for obtaining legally compliant consents permitting the processing by Caroo of the Customer Data in the United States; alternatively, the parties will enter into appropriate controller-to-processor Standard Contractual Clauses approved by the European Commission.

6.4.1 Subprocessors of Personal Data governed by EU laws. Customer acknowledges and agrees that Caroo may use contracted processors (“Subprocessors”) engaged by Caroo to process Personal Data. Caroo shall be responsible for the acts and omissions of Subprocessors to the same extent it would be responsible if Caroo was performing the services of each Subprocessor directly under the terms of this Agreement. The names and locations of all current Subprocessors used for the processing of personal data within Customer Data (as defined by EU Privacy laws) under this Agreement is available to Customer upon written request to Caroo.

7. Confidentiality.

7.1 Confidentiality. Each party agrees that all code, inventions, algorithms, know-how and ideas and all other business, personally-identifiable information and technical information obtained from the other party is the confidential property of the disclosing party (“Confidential Information’’ of the disclosing party). Except as expressly set forth herein (including, for Caroo, as required to provide the Services), during the Subscription Period and after any termination hereof, the receiving party will hold in confidence and not use or disclose any Confidential Information of the disclosing party and shall similarly bind its employees and independent contractors in writing. Confidential Information shall not include information the receiving party can document: (a) is or has become readily publicly available without restriction through no fault of the receiving party or its employees or agents, (b) is received without restriction from a third party lawfully in possession of such information and lawfully empowered to disclose such information, (c) was rightfully in the possession of the receiving party without restriction prior to its disclosure by the other party, or (d) was independently developed by employees or consultants of the receiving party without use of the Confidential Information. If required by law, the receiving party may disclose Confidential Information of the disclosing party solely to the extent of such requirement, but will give adequate prior notice of such disclosure to the disclosing party to permit the disclosing party to intervene and to request protective orders or other confidential treatment therefor. The terms and conditions of this Agreement are the Confidential Information of both parties, provided that each party may disclose the terms and conditions of this Agreement on a confidential basis to its advisors, legal counsel, prospective investors and/or acquirers. Upon the expiration or termination of this Agreement, all of the Confidential Information (including any copies) will be returned to the disclosing party or destroyed, and the receiving party will make no further use of such materials; notwithstanding the foregoing, all personally-identifiable information will be destroyed. Money damages will not be an adequate remedy if this Section 7 is breached and, therefore, either party may, in addition to any other legal or equitable remedies, seek an injunction or other equitable relief against such breach or threatened breach without the necessity of posting any bond or surety. Notwithstanding anything to the contrary, Caroo may collect data with respect to and report on the aggregate response rate and other aggregate, anonymized measures of the Platform’s performance and Customer’s usage of the Platform, provided that Caroo will not disclose any information or data that identifies, or could reasonably be used to identify, Customer or any individual.

8. Payments.

8.1 Fees. Customer shall pay to Caroo all Subscription Fees, in U.S. dollars in accordance with the terms set forth on the Order Form. Past due amounts shall bear a late payment charge, until received by Caroo, at the rate of 1.5% per month or the maximum amount permitted by law, whichever is less. Except as expressly set forth in this Agreement, all amounts paid hereunder are non-refundable.

8.2 Taxes. Subscription Fees are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments, other than taxes based on Caroo’s income. Caroo will invoice Customer for any taxes Caroo has an obligation to collect unless Customer provides a valid and applicable tax exemption certificate authorized by the appropriate taxing authority.

8.3 Promo Codes. Caroo may occasionally offer Customers the opportunity to enhance their experience on the Platform through the use of promotional codes (hereinafter referred to as “Promo Codes”). These Promo Codes may be issued by the Company as part of marketing campaigns, promotions, or other initiatives aimed at providing additional value to Customers.

8.3.1 Promo Code Redemption and Validity. Customers may redeem Promo Codes during the checkout process for select products, and subject to the terms and conditions specified for each respective code. Caroo reserves the right to establish and alter expiration dates, usage limitations, and other conditions for each Promo Code at its sole discretion. Customers are responsible for reviewing and adhering to the specific terms associated with each code. In no circumstances are Promo Codes applicable to gift cards or gift card purchases. Promo Codes offered as part of Caroo’s account onboarding and introduction challenge adhere to all of the terms and conditions of this Section 8.3, and are subject to a 7-day validity period after which they will be automatically expired from eligible use.

8.3.2 Non-Transferability of Promo Codes. Promo Codes are non-transferable and may only be used by the Customer to whom they are specifically issued or with whom they are specifically shared. Customers are prohibited from selling, trading, or otherwise transferring Promo Codes to any other individual or entity without explicit written consent from Caroo.

8.3.3 Single Use Only. Unless explicitly stated otherwise, each Promo Code is intended for a single use only and may not be combined with other promotional offers or discounts, unless expressly permitted by Caroo. Promo Codes may not be combined with the application of Caroo Credit unless expressly stated or with express written consent by Caroo.

8.3.4 No Cash Value. Promo Codes have no cash value and cannot be exchanged for cash or any other form of currency. They are non-refundable and cannot be redeemed for previously purchased goods or services.

8.3.5 Modification and Termination of Promo Codes. Caroo reserves the right to modify, suspend, or terminate the availability of Promo Codes at any time without prior notice. Caroo may also modify the terms and conditions associated with Promo Codes, and it is the Customer’s responsibility to stay informed about any changes.

8.3.6 Promo Code Use Compliance. Customers agree to comply with all applicable laws and regulations regarding the use of Promo Codes, and acknowledge and agree to be bound by these terms and conditions.  Any misuse or violation of these terms or applicable laws may result in the revocation of the Promo Code and potential account suspension, and Caroo reserves the right to take appropriate legal action against any Customer who violates these terms or engages in fraudulent or unauthorized use of Promo Codes. 

9. Indemnification.

9.1 Indemnification by Caroo. Caroo will defend, indemnify and hold harmless Customer and its corporate Affiliates, directors, officers, employees, and agents (collectively, “Customer Indemnitees”), from and against any un-Affiliated third party claim, demand or action (collectively, “Claims”), and all damages, settlement amounts, penalties, costs and expenses, in each case that are paid or payable to un-Affiliated third parties resulting from such Claims, to the extent such Claim alleges that the Platform, when used by Customer in compliance with this Agreement, infringes, violates or misappropriates any intellectual property or proprietary right of any third party, provided that Caroo will not be obligated under this Section 9.1 to the extent any such infringement or violation arises from use of the Platform (a) in combination with technology or services not provided by Caroo, or (b) in violation of the license restrictions or scope of use permitted in these Terms. Caroo’s obligations pursuant to this Section 9 are expressly conditioned on Customer Indemnitees providing Caroo with (y) prompt written notice of all Claims (provided that Caroo will only be relieved of its obligations pursuant to this Section 9.1 to the extent it is prejudiced by Customer Indemnitees’ failure to provide such notice), and (z) sole control over, and reasonable cooperation with, the defense and/or settlement of all Claims. Caroo will not agree to any settlement hereunder that admits any wrongdoing by Customer Indemnitees or otherwise imposes any material obligation on Customer Indemnitees (not entirely covered by an indemnification obligation hereunder) without Customer Indemnitees’ prior written consent, not to be unreasonably withheld, conditioned, or delayed.

9.2 Indemnification by Customer. Customer will defend, indemnify and hold harmless Caroo and its corporate Affiliates, directors, officers, employees, and agents (collectively, “Caroo Indemnitees”), from and against any Claims, and all damages, settlement amounts, penalties, costs and expenses, in each case that are paid or payable to un-Affiliated third parties resulting from such Claims, to the extent such Claim alleges that any Customer Data, as used in the Services, violates a third party’s privacy rights (except to the extent such damages are caused by Caroo’s failure to comply with applicable laws). Customer’s obligations pursuant to this Section 9.2 are expressly conditioned on Caroo Indemnitees providing Customer with (o) prompt written notice of all Claims (provided that Customer will only be relieved of its obligations pursuant to this Section 9.2 to the extent it is prejudiced by Caroo Indemnitees’ failure to provide such notice), and (ii) sole control over, and reasonable cooperation with, the defense and/or settlement of all Claims. Customer will not agree to any settlement hereunder that admits any wrongdoing by Caroo Indemnitees or otherwise imposes any material obligation on Caroo Indemnitees (not entirely covered by an indemnification obligation hereunder) without Caroo Indemnitees’ prior written consent, not to be unreasonably withheld, conditioned, or delayed.

10. Termination.

10.1 Termination. This Agreement may be earlier terminated by either party (a) if the other party materially breaches a provision of this Agreement and fails to cure such breach within 30 days after receiving written notice of such breach from the other party (10 days in the case of nonpayment by Customer), or (b) immediately upon written notice, if the other party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party’s property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within 90 days, or the other party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course.

10.2 Effects of Termination. Upon termination or expiration of this Agreement, all corresponding rights, obligations and licenses of the parties shall cease, except that (a) all obligations that accrued prior to the effective date of termination (including without limitation, payment obligations) shall survive and (b) the provisions of Sections 3.2, 3.3, 7, 8, 10.2, and 11 through 13, shall survive. If this Agreement is terminated early by Customer pursuant to Section 9.1(a) above, Caroo will refund to Customer a pro-rated amount of any pre-paid Subscription Fees for the remaining portion of the then-current Subscription Period.

10.3 Ownership. Title to and ownership of the Platform shall be and at all times remain in Caroo. No ownership of the Platform or either party’s Confidential Information is transferred by this Agreement. Any feedback, developments, recommendations or modifications made during the Subscription Period by Caroo or Customer relating to the Service, whether or not influenced or suggested by Customer, are the sole property of Caroo, and Customer hereby makes all assignments necessary to accomplish the foregoing.

11. Warranty; Disclaimer.

11.1 Each party represents and warrants that: (a) it has full power and authority, and has obtained all approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder, (b) this Agreement is legally binding upon it and enforceable in accordance with its terms, and (c) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.

11.2 EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. CAROO DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT ITS OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE FULLEST EXTENT PERMITTED BY LAW, CAROO HEREBY EXPRESSLY EXCLUDES AND DISCLAIMS (FOR ITSELF AND ITS LICENSORS AND SUPPLIERS) ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, ACCURACY OR FITNESS FOR ANY PARTICULAR PURPOSE.

12. Limitation of Liability. EXCEPT IN CONNECTION WITH CUSTOMER’S BREACH OF THE LICENSE RESTRICTIONS SET FORTH IN SECTION 3.3 ABOVE, NEITHER PARTY WILL BE RESPONSIBLE OR LIABLE WITH RESPECT TO THE SERVICE OR ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (A) FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUES AND/OR LOSS OF PROFITS TO CUSTOMER OR ANY THIRD PARTIES, LOSS OR INACCURACY OF DATA, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR (B) FOR ANY DIRECT DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF: (i) THE SUM OF SUBSCRIPTION FEES AND BOX COSTS PAID TO CAROO BY CUSTOMER HEREUNDER DURING THE PREVIOUS TWELVE (12) MONTHS PRIOR TO THE CLAIM ARISING, OR (ii) FIVE THOUSAND DOLLARS ($5,000.00), EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CAROO SHALL NOT BE RESPONSIBLE FOR ANY MATTER BEYOND ITS REASONABLE CONTROL.

13. Miscellaneous.

13.1 Governing Law. This Agreement shall be governed by and construed in accordance with, the laws of the State of California without regard to conflicts of law provisions thereof. Each party irrevocably consents to jurisdiction and venue in the state and federal courts located in California with respect to any actions, claims, or proceedings arising out of or in connection with this Agreement.

13.2 Marketing and Publicity. Subject to Customer’s prior written consent in each case, (a) Customer shall participate in marketing and public relations campaigns as reasonably requested by Caroo, and shall collaborate with Caroo on the issuance of press releases by Caroo related to this Agreement, (b) for a period of one (1) year following the Subscription Period, Customer agrees to cooperate with Caroo to serve as a reference for the Service, and to speak with potential Caroo customers as reasonably requested by Caroo, and (c) Customer hereby grants Caroo a non-exclusive license to use, publish, display and reproduce its Marks for the purpose of its marketing and publicity efforts.

13.2.1 Communications with Recipients and Collaborators. When ordering physical gifts, digital gift cards, and/or eCards, and/or any combination thereof, the User has the opportunity to specify Recipient(s) and/or Collaborator(s). Caroo fully respects the sensitivity of Recipient and Collaborator personal information, and User-Recipient and User-Collaborator relationships, and therefore commits to reserving all communications with Recipients and Collaborators to transactional communications required by orders created or requested by User, or those transactional emails required by general account actions (i.e. forgot password email). Caroo does not sell Recipient or Collaborator information, nor add Recipients or Collaborators to marketing lists.

13.2.2 Right for Recipient and Collaborator to become User. A Recipient and/or Collaborator has the right to opt-in to becoming a User in their own right at any time, such as by, but not limited to, initiating a physical gift, digital gift card and/or eCard order themselves, opting-in to Caroo marketing emails via the Caroo website or other channels, and/or becoming a paid Member. These Users retain all rights and protections offered by Caroo’s Privacy Policy.

13.3 Waiver. No provision of right, power or privilege under this Agreement shall be deemed to have been waived by any act, delay, omission or acquiescence on the part of any party, its agents or employees, but only by an instrument in writing signed by an authorized representative of each party.

13.4 Severability. If any provision of this Agreement is held to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.

13.5 Entire Agreement. This Agreement, including any referenced attachments and/or incorporated documents, shall constitute the entire understanding between the parties regarding the subject matter described herein and supersedes any previous communications, representations or agreements whether oral or written regarding such subject matter.

13.6 Relationship of the Parties. The parties hereto shall each be independent contractors in the performance of their obligations under this Agreement, and nothing contained herein shall be deemed to constitute either party as the agent or representative of the other party, or both parties as joint venturers or partners for any purpose.

13.7 Attorneys’ Fees. In any action to enforce this Agreement the prevailing party will be entitled to costs and attorneys’ fees.

13.8 Assignment. Neither party may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the other party, which consent shall not be unreasonably withheld, and any such attempted assignment shall be void. Notwithstanding the foregoing, each party may assign or otherwise transfer this Agreement to a successor in connection with the sale of all or substantially all of its business or assets to which this Agreement relates. This Agreement shall be binding on and inure to the benefit of the parties hereto and their respective successors and permitted assigns.

13.9 Notices. Except as otherwise provided herein, all notices under this Agreement will be in writing, in English and delivered to the parties at their respective addresses stated herein or at such other address designated by written notice. Notices will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile; the day after being sent, if sent for next day delivery by recognized overnight delivery service; or upon receipt, if sent by certified or registered mail, return receipt requested.

13.10 Headings. The headings used in these Terms are for convenience only and shall not be considered in construing or interpreting the Agreement.

13.11 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument, and a facsimile transmission or electronic delivery of a manual signature (e.g., .pdf) shall be deemed to be an original signature.

13.12 Acknowledgement. EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THIS AGREEMENT ARE MATERIAL, BARGAINED FOR BASES OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.