Last Updated: June 1, 2021
THIS FOLD APP SPIN WHEEL SWEEPSTAKES SPONSORSHIP AGREEMENT (“Agreement”) is made as of the date of execution of the Spinwheel Sponsorship (the “Effective Date”) by and between Fold, Inc. (“Company”), and the undersigned prize sponsor (“Sponsor”).
Fold reserves the right to change, modify, add or remove all or part of these Terms at any time and in our sole discretion. If we make changes to these Terms, we will provide notice of such changes by posting such changes on our websites or mobile applications and updating the “Last Updated” date at the top of these Terms.
1. Prize Description. Sponsor will provide prizes, as more fully described in the Order Form (the “Prize(s)”), to Company in conjunction with Company’s Spin Wheel promotion to be sponsored by the Sponsor (the “Promotion”) as outlined in the Order Form.
2. Term. The term of these Terms (the “Term”) commences on the Effective Date and ends on the last date of the promotion.
3. Territory. The territory is worldwide.
4. Exclusivity. Sponsor has not and will not grant the use of any of its Marks (defined below), or provide the same or similar Prizes to any other company engaged in the business of providing bitcoin rewards on every-day purchases, whether via gift card, discount code, credit card, debit card, prepaid card, or otherwise, in the Territory during the period beginning on the Effective Date and ending six months after the Effective Date.
5. Use of Marks.
5.1. Sponsor’s Marks. During the Term, Sponsor grants to Company the non-exclusive, non-transferable right and license to utilize all Prizes, visual images therein and their related logos, trade names, service marks, trademarks, trade dress, copyrights, and other identifying marks provided by Sponsor in the Order Form (“Marks”) in any promotional materials, packaging, and advertising in any media (print, digital, mobile, or otherwise) (“Materials”) throughout the Territory in connection with the Promotion, with the understanding that any internet or mobile use could reach a worldwide audience.
5.2. Fold’s Marks. Except for as set forth on the Order Form and approved by Company in writing, Sponsor acknowledges and agrees that it will not use the name of the Promotion or any trademark, service mark, logo, name, likeness, or any derivative thereof, or any other intellectual property belonging to Company, or of any of its affiliates, without the express written consent of Company or the party to whom the property or right belongs.
6. Approval. Sponsor will have the right to approve the use and placement of the Marks in the context of any advertisement prior to Company’s use, which approval will not be unreasonably withheld or delayed. Sponsor will have three business days to conduct such review of a proposed use of the Marks, and if Sponsor does not respond within such time, the proposed use of the Marks will be deemed approved. Sponsor agrees that once a specific use of the Marks has been approved by Sponsor, such use may be incorporated into other Materials without seeking another approval. Company should send all trademark approval requests to the Sponsor Contact as set forth on the Order Form.
7. Sponsorship Fee; Payment of Prizes. In exchange for the Sponsorship Fee set forth in the Order Form (the “Sponsorship Fee”), the parties shall provide the advertising exposure described in the Order Form. The Company is responsible for crediting Prizes in bitcoin to the account of the applicable Promotion Prize Winner (“Prize Winner(s)”), with such Prizes being subject to the Company’s standard Reward Terms and Conditions, as updated from time to time and available at https://foldapp.com/terms-of-rewards-program/. The Sponsorship Fee includes, and Sponsor is solely responsible for, all costs and expenses relating to packing, transporting, loading and unloading, customs, taxes, tariffs, and duties, insurance and any other similar financial obligations relating to the production, manufacture, sale, redemption, and delivery of the Prizes. Sponsor is responsible for all the foregoing costs and expenses whether it delivers the prizes to the Company or its agency, or directly to the Prize Winners.
8.1. Invoice. In the event any payments are due to either party pursuant to these Terms, then the party seeking payment shall issue a written invoice to the other party. Such invoice must be accompanied by substantiating documentation regarding the items to be reimbursed. The recipient of the invoice shall pay all undisputed amounts due on receipt.
8.2. Late Payment. Sponsor acknowledges that Company plans its promotions and sponsorship in advance on predictable schedules, and as a result, Company may not be able to adjust the Promotion Dates or find an alternative sponsor in the event Sponsor fails to timely pay its Sponsorship Fee. As a result, if payment of the Sponsorship Fee is not received within five days of the Effective Date, the Company may charge an additional 20% late payment fee. Regardless of whether Sponsor pays the late payment fee, Company can, at its sole discretion, postpone the start of the promotion period, or reduce the number of days in the promotion period, and/or cancel the Promotion. In such event, Company shall be entitled to keep any portion of the Promotional Fee and late fee paid by Sponsor.
9. Delivery Procedure. Sponsor shall deliver, at Sponsor’s sole cost, expense, and risk of loss, the Prizes to Company, or its designated agency, at least 10 business days prior to the Promotion start date. Sponsor is responsible for all shipping, taxes, and duties associated with shipping the Prizes to the Company, and their subsequent delivery to the Prize Winners.
10. Prize Verification. Sponsor shall, upon Company’s request, review the official rules of the Promotion (the “Official Rules”) and confirm the accuracy of the description of the Prizes. Sponsor represents and warrants that the Approximate Retail Values (“ARV”) described in the Order Form are complete and accurate and any descriptions of the Prizes provided by Sponsor will be complete and accurate.
11. Taxes. Sponsor shall provide, upon Company’s request, all available information that Company may reasonably require to fulfill their obligations under any national, state, provincial, or local tax statute, regulation, or rule. Sponsor acknowledges that Company will rely upon such information, including Sponsor’s ARV representations, to prepare all relevant tax materials, if any, including the Internal Revenue Service form 1099.
12. Prize Winner Complaints. In the event that a Prize Winner lodges a complaint or inquiry with Sponsor regarding the Prize received, or the conduct of Sponsor or of Sponsor’s personnel, Sponsor shall address the problem and respond to the individual in as prompt and courteous a manner as it addresses such complaints from its own customers. Sponsor shall inform Company of any such complaint within one day of receipt of such complaint. If Sponsor is unable to satisfy the complaining party, or if such party persists in their complaint, or makes an inquiry to which Sponsor is unable to respond, Sponsor shall promptly notify Company of the situation, and Company shall use commercially reasonable efforts to act as a liaison between Sponsor and Prize Winner. Nothing in this provision derogates from Sponsor’s obligation to indemnify Company under Section 16. Sponsor shall not be responsible for dealing with customer complaints or inquiries concerning the conduct of the overall Promotion, except to the extent the complaints or inquiries are related to Sponsor’s obligations hereunder. Sponsor shall notify Company of any complaint or inquiry relating to the conduct of the overall Promotion or relating to Company within one day of receipt of such complaint.
13. Compliance with Law. Sponsor and its Prizes are in compliance with and shall comply with all applicable laws, regulations, ordinances, industry standards, and guidelines. Until the later of twelve months after expiration of the redemption period for all Prizes (as stated in the Official Rules) or until all of Sponsor’s obligations have been satisfied, Sponsor has and shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under these Terms. Company agrees to conduct the Promotion in compliance with all applicable laws, regulations, and ordinances.
14. Confidentiality. Sponsor agrees that Sponsor and its affiliates, subsidiaries, successors, and assigns and their respective employees, agents, attorneys, and representatives shall maintain as confidential, and shall not use for their own purposes, or disclose or cause to be disclosed to any person or entity other than Company all non-public, confidential, or proprietary information of Company, including any proprietary information regarding the Promotion or any other marketing or general business information, data (including the names, addresses, and other personally-identifiable information of the Prize Winners), documents, research, or procedures to which Sponsor may gain access in the course of its performance under these Terms. Sponsor shall not use Prize Winner names and other personally-identifiable information other than to fulfill its obligations under these Terms. Upon Company’s request, Sponsor shall promptly return all documents and other materials received from Company. Company shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to Sponsor at the time of disclosure; or (c) rightfully obtained by Sponsor on a non-confidential basis from a third party.
15. Representations and Warranties; Covenants; and Product Warranties.
15.1. Sponsor and Company each represent and warrant that they possess the full right, and corporate power and authority to enter into and fully perform its obligations as set forth herein.
15.2. Sponsor further represents and warrants that: (i) the Prizes be free and clear of all liens, security interests, or other encumbrances; (ii) the Prizes conform to applicable specifications and other requirements specified by Company or described by Sponsor in the Order Form; (iii) the Marks, Company’s intended usage of the Marks, and the Prizes do not and will not violate, infringe or misappropriate any third party’s copyright, patent, trademark or other intellectual property or proprietary rights.
15.3. Sponsor shall perform its obligations in a timely manner, understanding that time is of the essence in fulfilling such obligations.
16. Indemnification. Sponsor shall, at its expense, defend, indemnify and hold harmless Company and Company’s parent company, their subsidiaries, affiliates, successors or assigns and their respective directors, officers, shareholders and employees and Prize Winners (collectively, “Company Indemnitees”) against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost, or expense, including reasonable attorney and professional fees and costs, incurred by Company Indemnitees relating to any claim by a third party or Company arising out of or alleged to arise out of or occurring in connection with: (i) the use, redemption, or delivery of the Prizes (including, without limitation, any action or proceeding concerning personal injury or property damage); (ii) the use of the Marks in connection with the Promotion as provided herein; (iii) Sponsor’s negligence, willful misconduct, or breach or alleged breach of these Terms; and (iv) any claim that Company’s or Company Indemnitees’ use or possession of the Prizes infringes or misappropriates the patent, trademark, copyright, trade secret, or other intellectual property right of any third party. Sponsor shall not enter into any settlement without Company’s or Company Indemnitee’s prior written consent.
17. Notice. Each Party shall deliver all notices, requests, consents, claims, demands, waivers, and other communications under these Terms (each, a “Notice”) in writing and addressed to the other Party at the addresses set forth on the first page of these Terms (or to such other address that the receiving Party may designate from time to time in accordance with this section). Each Party shall deliver all Notices by personal delivery, nationally recognized overnight courier (with all fees prepaid), [facsimile or email (with confirmation of transmission),] or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in these Terms, a Notice is effective only (a) upon receipt by the receiving party and (b) if the party giving the Notice has complied with the requirements of this Section.
18. Limitation of Liability. Sponsor acknowledges and agrees that: (a) money damages at law are a fully adequate remedy to compensate Sponsor for any breach or threatened breach of these Terms by Company; and (b) an action at law for money damages is Sponsor’s sole and exclusive remedy hereunder. Sponsor shall not have the right to seek equitable or injunctive relief to terminate this commitment, or in any way enjoin, restrain, or interfere with the development, conduct, or advertising of the Promotion, or to obtain any other equitable relief. IN NO EVENT SHALL COMPANY BE LIABLE TO SUPPLIER HEREUNDER FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES. IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE GREATER OF SPONSORSHIP FEE OR THE TOTAL ARV OF THE PRIZES.
19. Survival. Subject to the limitations and other provisions of these Terms: (a) the representations and warranties of the parties contained herein shall survive the expiration or earlier termination of these Terms; and (b) Sections 4, 8, 11, 12, 14, 16, 17, 18, and 21 of these Terms, as well as any other provision that, in order to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of these Terms.
20. Assignment. Sponsor shall not assign, transfer, delegate, or subcontract any of its rights or obligations under these Terms without the prior written consent of Company. Company may assign, transfer, delegate, or subcontract any or all of its rights or obligations under these Terms without Sponsor’s prior written consent. Any purported assignment or delegation in violation of this Section is null and void.
21. Entire Agreement/Governing Law. These Terms, including the Order Form and any documents incorporated by reference herein, constitutes the entire agreement and understanding between the parties regarding the subject matter hereof, and supersedes all prior discussions and all oral and written agreements between them relating thereto. Except for as set forth herein, no waiver, modification, or amendment to these Terms shall be valid unless in writing, signed by the parties hereto. No usage of trade or course of dealing between or among any persons having any interest in these Terms will be deemed effective to modify, amend, or discharge any part of these Terms or any rights or obligations of any party hereunder. No failure or delay by either party in exercising any right, power, or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power, or privilege. These Terms shall be governed by and construed in accordance with the substantive laws, but not the laws of conflicts, of the State of Tennessee. Any legal suit, action, or proceeding relating to these Terms shall be instituted in the federal courts of the United States of America or the courts of the State of Tennessee in each case located in the City of Nashville, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. These Terms may be signed in counterparts.