Thank you for choosing The Birthday CLUB!

These Terms of Service ("Terms of Service"), together with The Birthday CLUB Privacy Policy (the "Privacy Policy") and any on-line or written order form for the purchase of the Services (as herein defined) (each, a "Service"), together constitute a binding agreement between The Birthday CLUB ("TBC") and you or the legal entity you represent ("Merchant” or “you”). These Terms of Service also apply if you purchase a right to use the Services (as defined below) pursuant to a Service Order entered into between you and a TBC-authorized agent, vendor, or reseller of the Services (a “Vendor”).

Merchant desires to use TBC's advertising services, customer management services, mobile marketing service, Birthday and Special Occasion Marketing, and/or transaction processing service (the "Services"). Services include creating and managing Offers (as defined below), claiming Offers via the TBC Site using TBC software to publish on directory sites such as Facebook, Google+, and Yelp, and using TBC's Merchant’s instructions and other documentation of TBC (the "TBC Documentation"). Customer management services include using TBC software to get customer contact information from customer emails, mobile opt-in, and transactions (the “Interactions”), seeing data resulting from the Interactions, and using TBC’s marketing platform to send messages to customers through email and SMS text messages.

TBC WILL PERMIT MERCHANT TO USE THE SERVICES AND THE TBC DOCUMENTATION SUBJECT TO THE TERMS AND CONDITIONS OF THESE TERMS OF SERVICE.

BY USING THE SERVICES, MERCHANT AGREES TO ALL OF THE TERMS AND CONDITIONS OF THESE TERMS OF SERVICE, INCLUDING BUT NOT LIMITED TO THE LIMITATIONS ON LIABILITY SET FORTH HEREIN. IF MERCHANT DOES NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THESE TERMS OF SERVICE, MERCHANT IS NOT PERMITTED TO USE THE SERVICES.

1. SERVICES
1. Agreement to Provide Services. Subject to the terms and conditions of these Terms of Service and during the term of these Terms of Service, TBC will provide to Merchant access to the Services purchased through and described on the TBC website at www.GetTBC.com and its sub domains (the "TBC Site"), or purchased through a Vendor, and in accordance with any applicable Service Order(s). Merchant’s Services start on the date of the initial charge to create the account (the “Initial Charge”). Merchant understands and agrees that by using the on-line registration process and consenting to the terms of these Terms of Service Merchant has made a binding selection of the type of Services to be provided and all associated specifications, prices, policies and documentation related to the delivery of the Services.

2. Service Orders. Each Service Order is hereby incorporated into these Terms of Service by this reference and is subject to the terms and conditions of these Terms of Service; provided, however, that in the event of conflict with the terms contained in any Service Order, the terms contained in these Terms of Service shall control. In the event of any conflict between the terms of these Terms of Service or a Service Order and any Merchant-issued order form or purchase order, the terms of these Terms of Service and the applicable Service Order shall control.

3. Offers. Upon acceptance of a Service Order, Merchant may (i) create, by using the TBC Platform, an on-line coupon or similar marketing offer, deal or advertisement to market its products or services (each, an “Offer”) or (ii) access the TBC Platform (as defined below) to deliver its own Offers. Offers may be featured either on the TBC Site or on third-party websites with which TBC maintains a partnership (such site, a "Third-Party Partner Site"). An "Offer Campaign" is the active period in which an Offer is displayed via the TBC Site or a Third-Party Partner Site. TBC may create Offers for Merchants and/or implement an Offer Campaign as part of the Services based on Merchants' instructions and specifications. Merchant agrees to honor all Offers created via the Services consistent with such Offers' applicable terms and conditions (including expiration date). Merchant is responsible for charging customers for all applicable sales or use tax at the time the Offer is redeemed. Merchant agrees that all Offers will prominently include any applicable rules, restrictions or limitations necessary to comply with applicable law, and that such rules, restrictions or limitations will be presented to prospective purchasers prior to purchase.
TBC retains editorial control over all content and can edit Offer content in its discretion if it believes it will improve the performance of the Offer Campaign.

4. Claim or Use of Offers. Certain Offers may be claimed by End Users (“End User” is defined as a consumer or person that would claim an Offer) and exchanged for goods and services from Merchant. TBC shall not be responsible for any inaccuracies, misrepresentations, product or service liability, or offensive, infringing, libelous or illegal materials resulting from the use of Offers. Merchant is solely responsible for redeeming the Offer in accordance with its terms. Merchant is solely responsible for and releases TBC from liability for any injuries, illness, damages, claims, liabilities and costs arising from or related to any act or omission of Merchant in connection with Merchant’s use of an Offer or the services/goods provided in connection with such Offer.

5. If Merchant has subscribed customers to its marketing mailing list, TBC will send its customers emails and SMS text messages on behalf of the Merchant. SMS messages will only be sent to customers who have chosen to opt in to SMS text marketing. The Merchant has the option to remove customers from its marketing mailing list at any time, including removing all customers from the mailing list.

6. Transaction processing service. If Merchant has enabled the Transaction processing service, TBC will process the Merchant’s credit card transactions. This service does not require a change in the Merchant’s credit card processing system in most cases; in situations that do, TBC may provide a new credit card payment processing device.

2. MODIFICATIONS TO THESE TERMS OF SERVICE
TBC may modify these Terms of Service or any policy or other terms referenced in these Terms of Service including but not limited to the Privacy Policy (collectively, "Additional Policies") at any time by posting a revised version of the Terms of Service and the Additional Policies on the TBC Site. Unless otherwise set forth in these Terms of Service, the revised terms shall be effective (a) ten (10) days after posting and/or notifying Merchants of the changes (including through a notice submitted by TBC to a Vendor to be then passed along to a Merchant); or (b) upon Merchant's acceptance if TBC or a Vendor provides a mechanism for Merchant’s immediate acceptance of the revised terms. Continued performance by TBC of its obligations hereunder is adequate consideration for any such revisions. By continuing to use or receive the Services after the effective date of any revisions to these Terms of Service or any Additional Policies, Merchant agrees to be bound by the revised Terms of Service or any revised Additional Policies. It is Merchant's responsibility to check the websites listed herein regularly for changes to these Terms of Service or the Additional Policies, as applicable. If Merchant disagrees with any modifications to these Terms of Service, Merchant's sole and exclusive remedy shall be to terminate the receipt of Services in accordance with Section 12 herein.

3. LICENSE
1. Subject to the terms and conditions of these Terms of Service, TBC grants to Merchant a non-exclusive, non-transferable, revocable license during the Term (as defined in Section 12), without the right to sublicense, to (i) use the software and other technology supplied by TBC to enable Merchant to receive or access the Services (the "TBC Platform") solely for the purposes of accessing and using the Services; and (ii) use the TBC Documentation in connection with the Merchant's use thereof. Except for the limited licenses granted hereunder, TBC reserves all rights not expressly granted and no such additional rights may be implied.

2. Ownership. Merchant acknowledges that (i) all right, title and interest in and to the Services, including the TBC Platform, Data, and TBC Documentation therein, and all patents, copyrights, trade secrets, trademarks, trade names, service marks, slogans, logos, other trade-identifying symbols and other proprietary rights embodied therein or associated therewith, are and shall remain with TBC or its third party licensors; (ii) no right or interest in the Services or the TBC Platform is conveyed other than the limited licenses granted herein; (iii) the Services, the TBC Documentation and the TBC Platform are protected by copyright and other intellectual property laws; and (iv) TBC asserts that the Services, the TBC Documentation and the TBC Platform embody valuable confidential and secret information of TBC or its licensors, the development of which required the expenditure of considerable time and money.

3. No Modification. Merchant agrees that Merchant shall not (i) modify or alter the TBC Platform; (ii) create derivative works of the TBC Platform; (iii) decompile, disassemble, decode or reverse engineer the TBC Platform, translate the TBC Platform or otherwise attempt to learn the source code, structure, algorithms or internal ideas underlying the TBC Platform or reduce the TBC Platform by any other means to a human perceivable form; or (iv) bypass, delete or disable any copy protection mechanisms or any security mechanisms.

4. License to Merchant Marketing Content. In connection with the Services ordered via an applicable Service Order, Merchant grants TBC and Third-Party Partner Site(s) a non-exclusive, transferable, royalty-free license during the Term to use Merchant’s trademarks, trade names, service marks, slogans, logos, other trade-identifying symbols and all other marketing or promotional content provided by Merchant to TBC ("Merchant Marketing Content") in connection with the advertising, promotion and sale of Merchant’s products, services or business, and to sublicense such Merchant Marketing Content to third parties in connection with the provision of such Services. Merchant acknowledges that Offers posted on Third-Party Partner Site(s) may not carry the TBC trademark or branding. Merchant further acknowledges and agrees that TBC or its sublicenses may modify Merchant Marketing Content in order to effectively provide the Services ordered in TBC’s reasonable discretion, provided that none of such modifications shall materially alter the terms of any Offer without Merchant’s prior written consent.

5. Certain Other Obligations. Merchant agrees that Merchant (i) shall not sell, transfer, lend, provide or otherwise make available, or disclose to third parties, the Services or any components thereof; (ii) shall not obscure, alter or remove any notice of any copyright, trademark, trade name, service mark, logo, or other intellectual property or proprietary right designation appearing on or contained within the Services, the TBC Platform, the Documentation or on any other TBC materials; and (iii) shall take all reasonable precautions to prevent unauthorized or improper use of the Services.

6. Non-Assertion of Claims. During and after the term of these Terms of Service, Merchant will not assert, nor will Merchant authorize, assist, or encourage any third party to assert, against TBC or any related party, any patent infringement or other intellectual property infringement claim with respect to the TBC Platform, TBC Documentation, Data, or the Services.

7. In the event Merchant elects, in connection with any of the Services, to communicate to TBC (either directly or through a Vendor) suggestions for improvements to the Services ("Feedback"), TBC shall be entitled to use the Feedback without restriction and Feedback will not be treated as confidential to Merchant. Merchant hereby grants to TBC a royalty-free, sub licensable, transferable, perpetual, irrevocable worldwide license in and to the Feedback to use in any manner related to the operation of its business. In addition, TBC hereby disclaims any and all liability for any comments, drawings, depictions, audio clips or other content made available on the TBC Site by Merchants of the TBC Site generally ("Comments"). Further TBC (i) shall have a royalty-free, sub licensable, transferable, perpetual, worldwide, irrevocable license in and to such Comments to use in any manner related to the operation of its business, and (ii) reserves the right to remove any such Content from the TBC Site immediately in its sole discretion.

4. FEES AND BILLING
1. In consideration for the provision of Services to Merchant, Merchant will pay to TBC, or if Merchant purchases a right to use the Service from a Reseller, then Merchant will pay to such Reseller, all Services fees ("Fees") due in advance according to the Service Order. Charges are exclusive of all applicable taxes, which may be billed to Merchant in addition to the Fees. TBC or Vendor will provide Merchant fifteen (15) days advance notice for any increase in fees or addition of new fees for any existing Services. Merchant’s continued use of the Services after a fee increase will constitute Merchant’s agreement to the increase in service fees.

2. Billing, Invoicing and Payment Terms TBC, or if applicable, the Vendor, will charge Merchant's credit card, e-check or ACH provided in the Service Order the Fees for the Services rendered in advance for each billing period on or after the first day of such billing period. If Merchant is paying by credit card or eCheck, (a) Merchant hereby irrevocably authorizes TBC, or if applicable, the Vendor, to charge the credit card or other payment method provided for any such amounts when due, (b) amounts due will be automatically charged, in advance, and (c) if Merchant’s credit card expires, Merchant hereby gives TBC, or if applicable, the Vendor, permission to submit the credit card charge with a later expiration date. All billing disputes must be emailed to cs@getTBC.com within fifteen (15) days of delivery of the billing statement, and disputes not made within that time are waived by Merchant. Late payments resulting from credit card declines that the Merchant have attempted to follow up on hereunder will accrue interest at a rate of one and one-half percent (1 1/2 %) per month, or the highest rate allowed by applicable law, whichever is lower. TBC, or if applicable, the Vendor, reserves the right to have Merchant complete a credit application to determine Merchant's creditworthiness as a condition of receiving further Services. If TBC, or if applicable, the Vendor, must initiate a collections process to recover Fees due and payable hereunder, then TBC, or if applicable, the Vendor, shall be entitled to recover from Merchant all costs associated with such collections efforts, including but not limited to reasonable attorneys fees. In the event TBC, or if applicable, the Vendor, delivers to Merchant an invoice for any Fees or interest payments owed hereunder, such invoiced amounts shall be due within fifteen (15) days of the date of such invoice.
In the event an account is past due and Merchant requests to cancel per Section 12, Merchant is required to pay for the 30 days of service from their initial bill date decline.

5. USE OF THE SERVICE
1. Communications. Merchant is responsible for obtaining and maintaining all of the appliances, hardware, software and services that Merchant may need to access and use the Services. Without limiting the foregoing, Merchant must obtain and maintain, and pay all charges, taxes and other costs and fees related to, Internet access, telephone, computer, and other equipment, and any communications or other charges incurred by Merchant to access and use the Services.

2. Customer Management. While TBC will make every effort to ensure that email and SMS Text marketing messages sent on behalf of Merchant comply with Telephone Consumer Protection Act (TCPA) and the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Acts, Merchant assumes full responsibility for ensuring that marketing messages are only sent to those who are legally eligible to receive them. Merchant’s obligations with respect to customer management include those more fully described in Section 5.7 below.

3. Passwords. Merchant is responsible for protecting and safeguarding any keys, certificates, passwords, access codes, Merchant IDs or other credentials and login information (collectively, "Passwords") that have been provided to Merchant or that are generated in connection with Merchant use of the Services. Merchant will not disclose or make available any Passwords other than to Merchant authorized employees and shall use all commercially reasonable efforts to prevent unauthorized access to, or use of, the Passwords or the Services. Merchant is solely and fully responsible for all activities that occur in connection with Merchant’s Passwords. Without limiting the foregoing, Merchant is responsible for all charges and liabilities applicable to data and information transmitted to and stored under Merchant’s account on the Services. In the event Merchant believes the Passwords have been compromised, Merchant is solely responsible for notifying TBC immediately by email to cs@getTBC.com and phone call to (800) 775-6751.

4. Downtime. Merchant acknowledges that Merchant’s access to and use of the Services may be suspended for the duration of any scheduled or unscheduled downtime or unavailability of any portion or all of the Services for any reason, including as a result of power outages, system failures or other interruptions, or any other acts, omissions or failures on the part of TBC.

5. Suspension, Limitation or Termination. TBC shall be entitled, without liability to Merchant, to immediately suspend, terminate or limit Merchant’s access to the Services at any time in the event (i) that TBC determines that the Services is being used in violation of applicable federal, state or local law or ordinance, these Terms of Service, or any agreement applicable to the Services; (ii) that TBC determines that the Services are being used in an unauthorized or fraudulent manner; (iii) that TBC determines that the use of the Services adversely affects TBC's equipment or service to others; (iv) TBC is prohibited by an order of a court or other governmental agency from providing the Services; (v) of a denial of service attack or any other event which TBC determines, in its sole discretion, may create a risk to the Services or to any other customers if the Services were not suspended; or (vi) of a security incident or other disaster that impacts the Services or the security of User Data and Customer Data. In addition, TBC shall have the right to immediately deny or suspend access to the TBC Platform or Services in the event TBC, or if applicable, a Vendor, is not paid any amount due in connection with the Services or Merchant’s breach or alleged breach of these Terms of Service. Without limiting the generality of Section 5, TBC shall have no liability for any damages, liabilities or losses as a result of any suspension, limitation or termination of Merchant‘s right to use the Services in accordance with these Terms of Service.

6. Prohibited Activities. Merchant may not use the Services (i) in violation of these Terms of Service, including usage that exceeds storage volume limits or other parameters and restrictions described on the applicable Service Order or on the TBC Site; (ii) to infringe on, violate, dilute or misappropriate the intellectual property rights of any third party or any rights of publicity or privacy; (iii) to violate any law, statute, ordinance or regulation (including but not limited to the laws and regulations governing export/import control (including the Export Administration Regulations, the International Traffic in Arms Regulations, and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control), unfair competition, anti-discrimination and/or false advertising); (iv) to store defamatory, trade libelous, unlawfully threatening, or unlawfully harassing data; (v) to store obscene, pornographic or indecent data in violation of applicable law; or (vi) to introduce or propagate any unauthorized data, malware, viruses, worms, Trojan horses, spyware, worms, other malicious or harmful code. Merchant may not use the TBC Platform or Services in any application that may involve risks of death, personal injury, property damage or environmental damage. Merchant may not interfere with or attempt to interfere with or disrupt the integrity, security, functionality or proper working of the Services or the TBC Platform. Merchant may not attempt to discover or use any license keys, access codes or similar information provided from time to time to TBC. Merchant may not attempt to discover, access, read, alter, destroy, or damage any programs, data or other information stored on or in connection with the TBC Platform or Services by any other party. Merchant may access the Services only through the interfaces and protocols provided or authorized by TBC. Merchant may not access the TBC Platform or Services through unauthorized means, such as unlicensed software clients. Merchant may not compile or use the TBC provided materials or any other information obtained through the Services or the TBC Platform for the purpose of direct marketing, spamming, unsolicited contacting of sellers or customers, or other impermissible advertising, marketing or other activities, including, without limitation, any activities that violate anti-spamming laws and regulations.

7. No Spam; Merchant’s Obligation to Obtain Permission. Under the terms of the CAN-SPAM Act, as between TBC and Merchant, Merchant is the sender of emails and is obligated to follow all legal requirements applicable to the sending of emails under CAN-SPAM, including but not limited to the prohibition against sending unsolicited emails to persons with whom Merchant does not have a business relationship or who have not requested (opted-in) to Merchant’s emails (Spam). As part of its agreement to these Terms of Service, Merchant agrees to only send permission-based emails. “Permission-based” means that all recipients must have opted-in to receive email communications from Merchant. Emails sent by Merchant must include all information required by CAN-SPAM.

8. Changes to the Services. TBC has the right to change, modify, update, add to, discontinue or retire the Services and any aspect or feature thereof, including but not limited to, hours of availability, equipment needed for access or use, and the type of files that can be stored. TBC may provide notice of material changes to the TBC Platform or Services by posting them on the Site. It is Merchant’s responsibility to check the TBC Site periodically to inform Merchant of any changes. You understand and agree that TBC may need to change the telephone number(s) and/or the credit card payment processing system. You agree that TBC will not be liable for damages (including consequential or special damages) arising out of any such change and you hereby waive any claims with respect to any such change, whether based on contractual, tort or other grounds, even if TBC has been advised of the possibility of such damages.

6. DATA PRIVACY
1. Merchant Data. Merchant warrants that Merchant is the owner or legal custodian of, or otherwise has the right to provide to TBC, all programs, data, information and other content transmitted via the TBC Platform and hosted through the Services, including, without limitation, the Merchant Marketing Content (collectively the "Merchant Data") and has the full authority to transmit and store the Merchant Data through the Services. Merchant hereby authorizes the storage of Merchant Data by TBC through the Services that Merchant elects to transmit via the TBC Platform. Merchant acknowledges that Merchant bears sole responsibility for adequate security, protection and backup of Merchant’s User Data on Merchant’s equipment. Merchant understand that the Services may store and backup files that are no longer usable due to corruption from viruses, software malfunctions and other causes, which might result in Merchant restoring files that are no longer usable. Without limiting the generality of Section 5, TBC will have no liability to Merchant for any unauthorized access to, or use, alteration, corruption, deletion, destruction or loss of any of Merchant’s User Data on Merchant’s equipment.

2. Customer Data. In connection with TBC's performance of the Services, TBC may collect online data from Merchant or a Vendor and through the TBC Platform regarding Merchant’s customers (the "Customer Data"). From time to time herein, Merchant Data and Customer Data are referred to individually and/or collectively as “Data”. Further, Merchant acknowledges that such Customer Data may include non-personal information and Personal Information of Merchant’s customers (as defined in the Privacy Policy) as well as data on customer Interactions with Merchant. Upon termination, expiration or cancellation of your TBC account (the "Action"), any and all access to any Customer Data is revoked upon the effective date of such Action. In other words, Merchant will no longer have any access or right to access the TBC Platform or any TBC system to access, use, or download the Customer Data. If Merchant retains any Customer Data, then to the extent that any privacy or data protection laws impose an obligation upon TBC to comply with an individual's request for access to or correction of their Personal Information, Merchant agrees that Merchant shall satisfy such obligations during the Term and thereafter. Any and all risks and liabilities relating to the use, access, storage, processing and distribution of Customer Data is fully assumed by Merchant during the Term and thereafter. TBC agrees that it shall forward any such individual requests that it receives to Merchant and shall reasonably assist Merchant, at Merchant’s request and expense, to satisfy such obligations. Merchant shall hold TBC, its subcontractors, suppliers and licensors harmless from any and all data protection claims relating to such access. TBC agrees that it shall: (i) implement security measures reasonably designed to safeguard Merchant Data against unauthorized access, loss, destruction, damage or disclosure; and (ii) provide reasonable support to Merchant in complying with any legally mandated request or demand made by any court or governmental authority responsible for enforcing privacy or data protection laws. TBC may transfer Data, including Customer Data to its successor or acquirer in a merger, acquisition or other consolidation, including without limitation the sale of all or substantially all of TBC's stock or assets or business to which these Terms of Service apply.

7. WARRANTIES, REPRESENTATIONS, AGREEMENTS
1. Authority. Merchant represents and warrants that (i) Merchant has full corporate right, power and authority to enter into these Terms of Service, (ii) the execution of these Terms of Service by and the performance of its obligations and duties hereunder do not and will not violate any agreement to which Merchant is a party or by which Merchant is bound, and (iii) when executed and delivered, these Terms of Service will constitute your legal, valid and binding obligation, in accordance with its terms.

2. Compliance with Law. In connection with the subject matter of these Terms of Service, Merchant agrees to, and warrants and represents that it shall, comply with all applicable United States Federal and State laws and regulations, including but not limited to any State or Federal laws that govern online promotions, offers, gift cards, coupons, and/or gift certificates data privacy and protection, sending of electronic marketing messages including but not limited to the CAN-SPAM Act of 2003, and HIPAA.

3. Validity of Offers. Merchant warrants that any Offer, upon claim by a customer whether on the TBC Site or a Third-Party Partner Site or otherwise, shall be available for redemption by such customer. Merchant agrees to comply with the Offer terms and conditions as set forth in a particular Offer or any other advertising or marketing terms or Offers made available to Merchant's customers or potential customers via the Services, and shall at all times honor the terms of any Offer offered or otherwise promoted via the Services. This Section 7.3 shall remain in effect regardless of whether Merchant is currently using the Services.

4. Applications and Customer Data. Merchant represents and warrants: (i) that Merchant is solely responsible for its Customer Data, including without limitation, the security of such Customer Data; (ii) that Merchant has the necessary rights and licenses, consents, permissions, waivers and releases to use the Customer Data and to enable TBC to use, receive, process, store, transfer, and disclose the Customer Data; (iii) that Merchant has a legally sufficient privacy policy or privacy notice that is made available to customers prior to their provision of any Personal Information to Merchant or TBC; (iv) that the use and receipt by TBC of Customer Data (a) does not violate, misappropriate or infringe any rights of TBC or any third party, (b) does not constitute defamation, invasion of privacy or publicity, or otherwise violate any rights of any third party, and (c) is not designed for use in any illegal activity or does not promote illegal activities, including, without limitation, in a manner that might be illegal or harmful to any person or entity; or (v) does not distribute, share, or facilitate the distribution of unauthorized data, malware, viruses, Trojan horses, spyware, worms, or other malicious or harmful code.

5. Authorization and Account Information. Merchant represents and warrants that: (i) the information Merchant provides in connection with Merchant's registration for the Services is accurate and complete; (ii) if Merchant is registering for the Services as an individual, that Merchant is at least 18 years of age and has the legal capacity to enter into these Terms of Service; and (iii) if registering for the Services as an entity or organization, (a) Merchant is duly authorized to do business in the country or countries where it operates, (b) the individual accepting these Terms of Service and completing the registration for the Services meets the requirements of subsection (ii) above and is an authorized representative of Merchant, and (c) Merchant's employees, officers, representatives and other agents accessing the Services are duly authorized to access the Services and to legally bind Merchant to these Terms of Service and all transactions conducted under Merchant's account.

8. LIMITED WARRANTY
1. TBC Platform and Services. TBC warrants solely to Merchant that the TBC Platform and the Services, when used in accordance with the terms of these Terms of Service, will function substantially in accordance with the Documentation. TBC shall use commercially reasonable efforts to perform the Services according to the agreed upon terms and specifications between Merchant and TBC in any applicable Service Order. TBC's sole obligation and Merchant’s exclusive remedy hereunder with respect to any failure of the foregoing obligations shall be to use reasonable efforts to correct any such failure. TBC shall have no obligation for any failure resulting from (i) content provided by or passed through Merchant or third-parties in connection with the Services (including Marketing Content); (ii) operating system modifications, changes or updates applied by the Merchant; (iii) the use or combination of the TBC Platform or the Services with any other software or hardware not supported by TBC; (iv) causes external to the TBC Platform or the Services, such as problems with the hardware, network or other infrastructure with which the TBC Platform and the Services are used; (v) unauthorized or improper use of the TBC Platform or the Services; or (vi) any modification of the TBC Platform or the Services by anyone other than TBC.

2. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREUNDER, THE TBC PLATFORM AND THE SERVICES ARE PROVIDED TO MERCHANT "AS IS," WITHOUT WARRANTY OF ANY KIND. TBC HEREBY DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THESE TERMS OF SERVICE, THE TBC PLATFORM, THE SERVICES OR THE OFFERS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. Without limiting the generality of the foregoing, TBC does not warrant that the TBC Platform or the Services will meet Merchant’s requirements or operate without interruption OR DOWNTIME or be error free. Notwithstanding anything in these Terms of Service to the contrary, the warranties provided by TBC hereunder with respect to the TBC Platform or the Services may not be extended, supplemented or modified by a Vendor, and if a Vendor makes any additional warranty, representation or commitment regarding the TBC Platform or the Services (or modifies an existing warranty, representation or commitment granted by TBC regarding the TBC Platform or the Services), the Vendor shall be solely responsible for any such additional warranties, representations or commitments or modifications.

9. LIMITATION OF LIABILITY
1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL TBC, NOR ANY OF ITS AFFILIATES, SUBCONTRACTORS, LICENSORS, VENDORS, SUPPLIERS OR RESELLERS, OR ANY OF ITS THIRD PARTY PARTNERS, BE LIABLE TO MERCHANT OR ANY OTHER THIRD PARTY FOR LOST REVENUES, LOST PROFITS OR OTHER SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, CONSEQUENTIAL, RELIANCE OR EXEMPLARY DAMAGES ARISING FROM MERCHANTS OR ANY OTHER THIRD PARTY'S USE OF OR INABILITY TO USE THE SERVICES INCLUDING, BUT NOT LIMITED TO, LOSS OF TECHNOLOGY, LOSS OF DATA OR INTERRUPTION OR LOSS OF USE DAMAGES WHETHER OR NOT TBC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS. THE MAXIMUM AGGREGATE LIABILITY OF TBC, ITS LICENSORS, VENDORS AND RESELLERS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF SERVICE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), SHALL NOT EXCEED THE ACTUAL FEES PAID BY MERCHANT FOR THE SERVICE FOR THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE INITIAL EVENT GIVING RISE TO LIABILITY HEREUNDER.

2. Merchant may not bring any suit or action against TBC for any reason whatsoever more than one (1) year after the cause of action accrued.

3. Furthermore and notwithstanding anything herein to the contrary, Merchant acknowledges and agrees that: (i) any Services ("Partner Services") provided by, through or in partnership with Vendor or any other third-party partner of TBC ("Partners") ARE PROVIDED TO MERCHANT "AS IS," WITHOUT WARRANTY OF ANY KIND. TBC HEREBY DISCLAIMS ON BEHALF OF THE PARTNERS ALL OTHER WARRANTIES WITH RESPECT TO SUCH PARTNER SERVICES. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, NO PARTNER SHALL HAVE ANY LIABILITY TO MERCHANT OTHER THAN AS MAY BE SET FORTH IN THE PARTNER'S STANDARD END USER TERMS AND CONDITIONS FOR THE PARTNER SERVICES, (ii) each Partner is hereby granted a limited license to use any content supplied by Merchant in connection with the Partner Services ("Merchant Content"), with the right to sublicense to Partner's publisher partners in connection with the operation of the Partner Services, provided that Partner and its publisher partners shall not provide any third party with access to Merchant Content nor use Merchant Content for its or their own commercial benefit beyond the provision of the Partner Services; (iii) at Merchant's request, reasonable efforts will be used by the Partners to remove from publication any Merchant Marketing Content, but in no event will a Partner or its publisher partners have any liability if such Merchant Marketing Content nonetheless continues to be published; (iv) Merchant will cooperate to provide TBC with all information reasonably required by a Partner to provide any Partner Services; (v) each Partner is an intended third party beneficiary of this Section 9.3; and (vi) the terms and conditions of all Partner Services shall be subject to the Partner's standard end user terms and conditions for such Services.

10. SUPPORT
Unless otherwise specified, TBC or a TBC agent will provide Merchant support to Merchant via a dedicated telephone number during our regular business hours, Monday through Friday from 9:00 AM to 5:00 PM EDT, excluding U.S. national holidays. In providing support, TBC or a TBC agent may use a variety of tools to aid in the process of resolving Merchant issues as a Merchant and may request that Merchant provides additional information in order to resolve these issues. Merchant hereby grants TBC and such agent the right to use those tools and any information Merchant provides to TBC in order to provide Merchant with support.

11. INDEMNIFICATION
Merchant will indemnify and hold TBC, its Partners, its and their investors, officers, directors, affiliates, subsidiaries, licensors, agents and employees (collectively, the "TBC Parties") harmless against any loss, liability, claim, demand, damages, penalties, settlements, costs and expenses, including reasonable attorney's fees, resulting from any claim (including third party claims), suit, action or proceeding against a TBC Party, resulting from or arising out of or in connection with (i) claims of intellectual property infringement based on (A) Merchant's use or combination of the TBC Platform and the Services with any other software or hardware not supported by TBC, if such infringement would not have occurred but for such use or combination; (B) any modification of the TBC Platform and the Services by Merchant; or (C) the use by Merchant of any version of the TBC Platform and/or Services other than the current version of the TBC Platform and/or Services, if such version was made available by TBC with notice that such version was being provided in order to avoid an alleged or potential infringement; (ii) claims relating to the Offers or the fulfillment thereof (including claims by purchasers or other Merchants of the Offers on the TBC Site or Third-Party Partner Site relating to Merchant's products or services); or (iii) any breach by Merchant of any representation, warranty or obligation under these Terms of Service; or (iv) the use, transmission, access or disclosure of Customer Data. TBC does not knowingly collect, either online or offline, personal information from persons under the age of thirteen (13). Merchant agrees to indemnify TBC if, as a result of customer Interactions, TBC collects Customer Data from persons under the age of 13.

12. TERM AND TERMINATION
1. Term. Subject to TBC's receipt of all applicable Fees, and unless otherwise terminated in accordance with this Section 12, these Terms of Service shall commence upon Merchant's first use of the Services or acceptance of these Terms of Service (whichever comes first) and shall continue in effect for the period of specified on the applicable Service Order (the "Term"). Each Service Order shall continue for the Term specified therein, and will AUTOMATICALLY RENEW for subsequent Terms (“Renewal Term”) unless either party provides at least thirty (30) days written notice of termination prior to the expiration of the then-current Term that it elects to terminate the Services under such Service Order at the end of such Term. Unless otherwise specified in a Service Order (including a Service Order with a Vendor), notification of termination from Merchant to TBC must be emailed in at cs@getTBC.com which must be confirmed by Merchant by phone and at (800) 775-6751 with a member of our support team during our regular business hours, Monday through Friday from 9:00 AM to 5:00 PM EDT, excluding U.S. national holidays. If Merchant chooses not to renew, Merchant must fully notify TBC in writing at least 30 days prior to the Renewal Term, in which case, Merchant will continue to have access to the TBC service and be billed until the end of the then current term.

2. Termination By Merchant. Unless otherwise specified in a Service Order (including a Service Order with a Vendor), Merchant has the right to terminate these Terms of Service by written communication via email at cs@getTBC.com which must be confirmed by Merchant by phone at (800) 775-6751 with a member of our support team during our regular business hours, Monday through Friday from 9:00 AM to 5:00 PM EDT, excluding U.S. national holidays, no fewer than thirty (30) days prior to Merchant’s next payment period. In the case Merchant fails to fully notify TBC of their intent to cancel within this time, Merchant is responsible for the payment of services rendered for that Renewal Term. Merchant shall not in any event be entitled to any refund of any Fees previously paid to TBC for services.

3. Termination by TBC. TBC shall have the right to terminate these Terms of Service at any time without cause and without notice. In addition, TBC may terminate these Terms of Service upon written notice to Merchant (or upon written notice provided to a Vendor and then passed along by a Vendor to a Merchant) if Merchant becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, or liquidation for the benefit of creditors. Upon a termination by TBC without cause, Merchant may be entitled to a pro-rata refund of any fees advanced to TBC.

4. Past Due Bills. In the event of a credit card decline, TBC, or if applicable, a Vendor, will attempt to reach out to Merchant for a new payment method. If TBC or, if applicable, a Vendor, fail to connect within 10 days, the account will be terminated due to non-payment and TBC will attempt to collect on any past due balances at Merchant’s expense. Per Section 4.2, in the event Merchant, or if applicable, a Vendor, requests to cancel with a past due balance, Merchant is required to pay for a minimum of 30 days worth of service.

5. Consequences of Termination. Upon termination of these Terms of Service for any reason, Merchant shall cease to use the TBC Platform, the Services, the Customer Data, and Documentation. TBC retains the right to cease Merchant’s access to any TBC Platform or Customer Data and services in the event of termination by either party.

6. Data Preservation, Retrieval or Transfer. In the event of a temporary suspension of Merchant’s access to Services, (i) TBC will not take any action to intentionally erase or delete Merchant Marketing Content or Customer Data stored on the Services; and (ii) applicable Fees will continue to accrue. In the event of the termination of these Terms of Service, Merchant may, upon reasonable notice to TBC, elect to retrieve Merchant Marketing Content or Customer Data directly. If these Terms of Service are terminated for any reason other than Merchant’s breach, TBC will not take any action to intentionally erase or delete Merchant Marketing Content or Customer Data stored on the Services for a period of thirty (30) days, or for sixty (60) days with respect to customer Interactions as discussed above. If these Terms of Service are terminated on account of Merchant’s breach or alleged breach of these Terms of Service, TBC will not take any action to intentionally erase or delete Merchant Marketing Content or Customer Data stored on the Services for a period of fifteen (15) days, or for sixty (60) days with respect to customer Interactions as discussed above. In each case, Merchant’s post-termination retrieval or transfer of Data or Marketing Content will be conditioned on TBC's receipt of all applicable Fees for the period following termination, payment in full of any other amounts owed, and Merchant’s compliance with such reasonable terms and conditions as TBC may establish with respect to such retrieval or transfer. In addition, if Merchant utilizes the professional services of TBC to assist Merchant in connection with such retrieval or transfer, Merchant will be responsible for TBC's then current charges for such professional services. In the event that TBC does not receive all such Fees and amounts due within the thirty (30) day or fifteen (15) day periods described above, or in the event that Merchant fails to notify TBC of Merchant’s election with respect to Merchant Marketing Content or Customer Data within such period, TBC shall have no obligation to continue to store Merchant Marketing Content or Customer Data or permit Merchant to retrieve or transfer the same.

7. Survival. The following shall survive the termination of these Terms of Service: (i) all liabilities accrued under these Terms of Service prior to the effective date of termination; and (ii) all provisions of Sections 3.2, 3.6, 4, 6, 7, 8.2, 9, 11, 12.4, 12.5 12.6 , 13 and 14 of these Terms of Service. Subject to the provisions of Section 9 hereof, the rights provided in this Section 12 shall be in addition to any and all rights and remedies available to a non-defaulting party at law or in equity upon any breach of these Terms of Service by the other party.

14. MISCELLANEOUS
1. Marketing. Merchant agrees that TBC may refer to Merchant by name and trademark in TBC's marketing materials and web site. Merchant understands and acknowledges that TBC does not certify or endorse, and has no obligation to certify or endorse, any of Merchant's products or content.

2. Credit Card Authorization. By submitting your credit/debit card ("Bank Card") data to TBC, or if applicable, a Vendor, you authorize TBC, or if applicable, a Vendor, in its complete discretion to submit a financial transaction(s) for a recurring charge to your issuing bank for settlement in accordance with the applicable Service Order or other instructions provided by you to TBC. You agree that once TBC, or if applicable, a Vendor, has approved or declined your transaction, TBC has fully performed under the terms of this Agreement. You agree to contact TBC, or if applicable, a Vendor, as described above in the event that you desire to cancel any recurring charge. Should you fail to contact TBC, or if applicable, a Vendor, in accordance with these Terms of Service, you agree not to seek any redress against TBC, or if applicable, a Vendor, for such recurring charges and you agree to indemnify and hold TBC harmless from any losses or damages that you suffer as a result of a recurring charge. If you think that there is an error on your account, including an incorrect amount or unauthorized transaction, you agree to contact TBC, or if applicable, a Vendor, 30 days prior to the next billing cycle by email and phone as described above. Upon proper notification, TBC, in its sole discretion may issue a credit to your Bank Card.

3. Entire Agreement. These Terms of Service, Privacy Policy and applicable Service Orders set forth the complete understanding of the parties with respect to the subject matter hereof and supersede all prior understandings and communications relating thereto. No term or condition of any other document provided to TBC which is different from, inconsistent with, or in addition to the terms and conditions set forth herein will be binding upon TBC.

4. Modification; Waiver. TBC shall have the right to amend these Terms of Service at any time, effective upon posting of an updated version of these Terms of Service at www.TBC.com/terms. TBC shall use reasonable efforts to provide Merchant with notice of changes to these Terms of Service (including, by submitting a notice to the applicable Vendor to be forwarded to Merchant), but Merchant is responsible for regularly checking the TBC Site to inform Merchant of such changes. Continued use of the Services after any such changes are posted shall constitute Merchant’s agreement to such changes. The waiver by either party of a breach of any provision hereof shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of such party to avail itself of any right, power or privilege that it has or may have hereunder operate as a waiver of any right, power or privilege.

5. Governing Law. These Terms of Service shall be governed by and construed in accordance with the laws of the State of Florida as if made in and performed entirely within the State of Florida. The parties expressly reject any application to these Terms of Service of the United Nations Convention on Contracts for the International Sale of Goods. All disputes, actions, claims or causes of action arising out of this these Terms of Service or the Services shall be subject to the exclusive jurisdiction of the state and federal courts located in Florida, and Merchant hereby consents to the jurisdiction of such courts.

6. Assignment. Merchant may not assign its rights or delegate any obligations hereunder without the express prior written consent of TBC. Any assignment by Merchant without the prior written consent of TBC shall be null and void. TBC may assign its rights or obligations hereunder without notice or consent; provided, however, that the Services shall continue to operate as specified in these Terms of Service. These Terms of Service shall inure to the benefit of each party's permitted successors and assigns.

7. Force Majeure. If either party is unable to perform any of its obligations hereunder (other than payment obligations) due to any act of God, fire, casualty, flood, war, strike, shortage or any other cause beyond its reasonable control, and if such party uses reasonable efforts to avoid such occurrence and minimize its duration and gives prompt notice to the other party, then the affected party's performance shall be excused and the time for its performance shall be extended for the period of delay or inability to perform. If the force majeure continues for more than thirty (30) calendar days, then either party may terminate these Terms of Service for convenience upon written notice to the other party.

8. Severability. In the event that any provision contained herein shall for any reason be held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, to such extent such provision shall be deemed null and void and severed from these Terms of Service, and the remainder hereof shall remain in full force and effect and enforceable.

9. Independent Contractor. Neither Merchant nor TBC shall be deemed to be an agent of the other and the relationship of Merchant and TBC shall be that of independent contractors. Neither Merchant nor TBC shall have any right or authority to assume any obligations, or to make any representations or warranties, whether express or implied, on behalf of the other party, or to bind the other party in any matter whatsoever.
TBC, Inc. will receive a completed IRS form W-9 and will issue a 1099K in accordance with IRS regulations.

10. Notices. Except as otherwise provided, notices under these Terms of Service shall be delivered by email addressed to the other party at such address as is set forth in the applicable Service Order or such other email address as Merchant may provide to TBC. Such notice will be deemed to have been given as of the date it is delivered by electronic mail, personally, by confirmed facsimile or by courier, or five (5) days after it is sent by postal mail. All communications and notices to be made or given pursuant to these Terms of Service shall be in the English language.

11. Compliance With Laws. Merchant agrees to comply at all times with all laws, rules and regulations applicable to Merchant’s use of the Services, including but not limited to data privacy laws and legal requirements.

12. Headings. The headings of the sections of these Terms of Service are for convenience of reference only and shall not be considered in construing these Terms of Service.

13. Arbitration. In any claim, action or proceeding to enforce any right or obligation of the parties under these Terms of Service including, without limitation, relating to your use of our services, you hereby waive any right you may now have or hereafter possess to a trial by jury.
Both parties agree to resolve any dispute either Party may have arising out of or relating to these Terms of Service or the TBC Services in good faith mediation. In the event no mutual agreement is made under mediation within sixty (60) days of notice of such dispute, the Parties have the right to resolve such dispute via arbitration before a single arbitrator pursuant to then current Commercial Rules of the American Arbitration Association (AAA). The arbitrator may award any relief available under applicable law including but not limited to an award of attorneys’ fees, This agreement to arbitrate does not interfere with either party’s right to file a claim with a state or federal agency with jurisdiction thereof to the extent permitted by applicable law. Even if allowed under AAA rules, no class or collective action or arbitration may be brought against TBC hereunder unless required by applicable law. If either you or TBC intends to seek arbitration under these terms of service, the party seeking arbitration must first notify the other party of the dispute in writing at least 30 days in advance of initiating the arbitration. Notice to TBC should be sent as required by these Terms of Service. The notice must describe the nature of the claim and the relief being sought. If you and TBC are unable to resolve our dispute within 30 days, either party may then proceed to file a claim for arbitration.
The arbitration, information produced, and pre-and post hearing proceedings will be confidential and any award shall not be used in any other case except to enforce the award itself.

If Merchant has any questions or concerns about what has been stated in this Terms of Service, please feel free to contact us at cs@getTBC.com.


Our agent for copyright issues relating to the Site or Services is:
Merchant Marketing Solutions,
The Birthday CLUB
Address: 3030 Starkey Bvd, Suite 206 Trinity, FL 34655
Phone: (800) 775-6751
Email: cs@jointhebirthdayclub.com

For all email submissions please include the subject line: DMCA Takedown Request.
TBC has adopted a policy of terminating, in appropriate circumstances, accounts of users of the Services or TBC Platform who are deemed to have repeatedly uploaded content that infringes the intellectual property rights of others.