Simon+™ Rewards Program Participation Terms
These Simon+ Rewards Program Participation Terms (the “Participation Terms”) along with the Rewards Program Terms published on the Rewards Site (as defined in the next paragraph), and each Sign-up Form submitted by the company named on such Sign-up Form(s) (the “Retailer”) are, collectively, the “Participation Agreement” or “Agreement”. The person named on the Sign-up Form enters into the Participation Agreement on behalf of Retailer upon submission of any Sign-up Form. Simon Media Properties, LLC, a Delaware limited liability company (“Simon”) enters into this Participation Agreement only upon Simon’s written confirmation (which may be by e-mail) of acceptance of Retailer’s Sign-up Form submission, including, without limitation, confirmation of inclusion in the Rewards Program of any Offer(s)(as defined in Section 1 below) included in any such Sign-up Form (or otherwise provided to Simon by Retailer) (each a “Confirmation”). This Participation Agreement becomes effective as of the date of Simon’s first Confirmation of any Sign-up Form or any Offer(s) (or both) provided to Simon by Retailer (“Effective Date”). For avoidance of doubt, any Confirmation of any Sign-up Form or any Offer(s) (or both) is not guaranteed and will be made or withheld in Simon’s sole discretion. Simon and Retailer are each a “Party” and collectively the “Parties” to this Participation Agreement as of the Effective Date. Retailer acknowledges and agrees that these Participation Terms may be updated by Simon at any time upon publication of such updates to this website page and without prior notice to Retailer, at which time such updated Participation Terms become a part of the Participation Agreement and supersede any prior version of the Participation Terms.
Simon has contracted with a third party, ShopSimon, LLC, a Delaware limited liability company (“ShopSimon”) to provide the loyalty and rewards program for Simon (the “Rewards Program” or “Simon+”) on the Rewards Site (as defined in this paragraph below) with various features, rewards, and benefits such as Points, Rewards, and Cash Back (as defined in the Rewards Program Terms)(each a “Benefit”) to individuals who register an Account (as defined in the Rewards Program Terms) in such Rewards Program (each a “Member”). Furthermore, ShopSimon has contracted with third-party service providers to provide portions of the Rewards Program including, without limitation, Rakuten (for CLOs), Zinrelo (for Receipt Scanning) Fidel API (for Transaction Matching). To collect Benefits, Members may access, visit, use, perform an activity at, or shop at (i) retail properties under the control (as defined in Section 1) of an Affiliate of Simon and that are participating in the Rewards Program (each a “Property”), (ii) the Rewards Program website at https://plus.simon.com (the “Rewards Site”), (iii) the website at https://shopsimon.com and related mobile application owned and operated by ShopSimon (“ShopSimon.com”); (iv) Retailer’s participating Stores (as defined in the next paragraph); and (v) Simon’s website at https://simon.com and any sub-domains and Property or Simon Affiliate related sub-sites, mobile applications, and Social Media (as defined in Section 1 below) accounts (“Simon.com”). Retailer acknowledges and agrees that Simon, Simon’s Affiliates, and ShopSimon (collectively, the “Simon Entities”) may use third-party contractors to provide parts of the Rewards Program (e.g., Rakuten, Zinrelo, Fidel API, and others)(collectively, “Program Vendors”).
Retailer desires to Participate (as defined in Section 1 below) in the Rewards Program for the promotion of Retailer’s goods or services (each an “Item”), brand(s), Offer(s)(if any), and any applicable Retailer online or mobile e-commerce outlet(s) and physical retail outlets in any of the Properties (each a “Store”), subject to the terms of this Participation Agreement (the “Purpose” for Retailer). Retailer may end Participation in the Rewards Program at any time pursuant to Section 2(c) below. The “Purpose” for the Simon Entities is to promote and increase the usefulness of the Rewards Program to existing or potential Members including, without limitation, by securing and promoting Retailer’s Participation in the Program, including Transaction Matching and any Offer(s) Retailer provides for inclusion in the Rewards Program, and to promote, in general, ShopSimon.com, the Properties, Simon.com, and the Rewards Program in all Media (as defined in Section 1 below).
Therefore, the Parties agree as follows:
1. Definitions.
(a) “Affiliate” means an entity that owns or controls, is owned or controlled by or is or under common control or ownership with a Party, where “control” is defined (and used throughout this Agreement) as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an such entity, whether through ownership of voting securities, by contract, or otherwise.
(b) “Applicable Law” means, for the interpretation and enforcement of this Agreement, the Governing Law (as defined in Section 6 below), and if and to the extent applicable and binding on Simon or Retailer in any way related to the Rewards Program:
1. Any law, statute, or regulation in force from time-to-time to which a Party is subject
2. Common law and laws of equity;
3. Any binding court order, judgment, or decree; or
4. Any applicable direction, policy, rule or order that is binding on a Party and that is made or given by any regulatory body having jurisdiction over a Party or any of that Party’s assets, resources, or business activities.
(d) “Media” means Simon.com, the Rewards Site, ShopSimon.com, and any other print, digital, or other type of media known as of, or that becomes known at any time after, the Effective Date including, without limitation, advertisements on websites and digital screens, printed banners and brochures, e-mail and mobile text messages, and postings on social media outlets such as Facebook, Instagram, TikTok, YouTube, Threads, X, and the like (“Social Media”) whether any such media is controlled by any of the Simon Entities or a third party.
(e) “Offer” means an offer from Retailer to provide to Members (and pay the cost of so providing) certain discounts, coupons, experiences, gifts, cash back, or other benefits (each a “Retailer Perk”) that may be redeemed by the Member by virtue of being a Member in the Rewards Program or by converting any Benefit the Member has been awarded in the Rewards Program.
(f) “Participate”, “Participating”, or “Participation” means Retailer (i) allowing the Simon Entities to promote Retailer and any Store(s), Offer(s), Item(s), and related Retailer Materials that Retailer makes available to any of the Simon Entities or Program Vendors for inclusion in any part of the Rewards Program in all Media for the Simon Entities’ Purpose; and (ii) allowing the use of Transaction Data for Transaction Matching (defined in Section 1 below)and Receipt Scanning as defined in the Rewards Program Terms.
(g) “Transaction Matching” means the processing and matching of transactions in Transaction Data by a Retailer-authorized and payment card network (“PCN”) (e.g., Amex, MasterCard, and Visa) authorized Program Vendor (e.g., Fidel API, Zinrelo, or Rakuten) so that (i) the Simon Entities can award or reflect related Benefits in the relevant Member’s Rewards Program Account and, if applicable, the Retailer can award or reflect Retailer Perks related to a card-linked Offer (“CLO”) or other Offer of Retailer and (ii) the Simon Entities and Program Vendors can perform Program Analytics (as defined in Section 2(a) below).
(h) “Transaction Data” means credit and debit card transactional-level data generated through Retailer’s operations within Retailer’s participating Stores. Transaction Data may include, but is not limited to, Merchant Identification Number (“MID”) numbers of Stores, Store location, transaction identification numbers, transaction amounts, Item descriptions, Item prices, other charges, taxes, discounts, refunds, and fees, sales volume, transaction counts, average transaction values, and other relevant retail metrics. Transaction Data shall not include any information relating to an identified or identifiable natural person (“Personal Data”) including, but not limited to, the definition of “personal information” or other similarly defined terms in Applicable Laws regarding the privacy of consumer or household data. Transaction Data may include the trade names of the Stores, Retailer, or Items, or other materials or information in which Retailer or a third party has or may claim intellectual property right(s) including, without limitation, rights in trademark, copyright, or trade secret law (“IP Rights”) or that Retailer or such third party may consider Confidential Information (as defined in Section 5) about the Items, Retailer, or Stores in such Transaction Data (collectively, “Protectable Material”). Notwithstanding anything to the contrary in this Agreement, Transaction Data is provided “AS-IS” with no warranty, express or implied, to the Simon Entities and Program Vendors as to the accuracy or reliability of such Transaction Data or any warranty of merchantability or fitness for a particular purpose.
(i) “Retailer Materials” means any logos, descriptions, photographs, images, videos, audio or other materials in which Retailer or Retailer’s Affiliates or licensor’s have IP Rights that is associated with any Offer, Item, Store, or brand of Retailer that Retailer submits with an Offer or for inclusion in the Rewards Program in any other manner.
2. Retailer Participation.
(a) Participation. Retailer hereby agrees to Participate in the Rewards Program and hereby consents to the collection, access, and use of Transaction Data by the Simon Entities and Program Vendors for the purposes of Transaction Matching and for gathering performance analytics, improving consumer and Member experiences, informing marketing and business strategies of the Simon Entities and the Properties, and supporting the business operations of the Simon Entities related to the Rewards Program, Simon.com, ShopSimon.com, and the Properties (“Program Analytics”). The Simon Entities and Program Vendors shall handle Transaction Data in accordance with Applicable Law regarding the privacy of consumer and household data and the Privacy Policy published on the Rewards Site. Notwithstanding the immediately preceding sentence, Personal Data will not be provided in or collected from the Transaction Data as per the definition of that term in Section 1 above. The Simon Entities and Program Vendors have in place, and shall maintain, commercially reasonable physical, organizational, and technical processes and procedures designed to protect against unauthorized access, processing, loss, destruction, theft, use or disclosure of Transaction Data and Retailer’s Confidential Information while in transit and while stored on the Simon Entities’ and Program Vendors’ systems, including encryption of such data during transmission and while at rest. Subject to the terms of this Agreement, Retailer hereby grants to the Simon Entities and Program Vendors (including, without limitation, Rakuten, Zinrelo, and Fidel API) a non-exclusive, royalty-free, perpetual, world-wide license to use Transaction Data or any portion of the Transaction Data including, without limitation, any Protectable Material, for Transaction Matching and Program Analytics, including the rights to store, reproduce, display, distribute, and create derivative works of Transaction Data as the Simon Entities deem necessary to conduct such Transaction Matching and Program Analytics as set forth in this paragraph. Participation in the Rewards Program is undertaken by Retailer as an independent contractor and at Retailer’s own risk. Except as otherwise expressly provided in these Participation Terms, the Simon Entities hereby disclaim any warranties, express or implied, for any part of the Rewards Program including any warranty of merchantability or fitness for a particular purpose.
(b) Offers. By submitting any Offer to any of the Simon Entities or Program Vendors for inclusion in the Program, Retailer agrees to Participate and abide by the terms of such Offer as specified in the Sign-up Form (or otherwise to the Simon Entities or Program Vendors in writing) and to pay the cost of providing any associated Retailer Perks to Members. Retailer may augment or amend the terms of an Offer for which Retailer previously received a Confirmation from any of the Simon Entities upon written notice (including by e-mail) to Simon at any time, unless Simon deems (in writing, including by email, to Retailer), in Simon’s sole discretion, that any such augmentation or amendment to such Offer violates Applicable Law or does not fit within the Simon Entities’ Purpose, in which case Retailer may elect to honor the original terms of such Offer or to have such Offer removed from the Rewards Program in reasonably prompt written response (including by email to Simon). In any event, each Offer provided by Retailer must comply, and Retailer must administer and honor such Offer in compliance, with Applicable Law and the Rewards Program Terms and Privacy Policy published on the Rewards Site.
(c) Term and Termination. The term of the Participation Agreement (“Term”) shall begin on the Effective Date and shall end on the earlier of: (i) the date that Retailer’s Participation in the Rewards Program is terminated pursuant to a written notice (including by e-mail) sent to Retailer by Simon or ShopSimon at any time; (ii) upon Simon’s receipt of at least 30 days prior written notice by e-mail to retailermarketing@simon.com from Retailer of termination of the Retailer’s Participation in the Rewards Program, or (iii) the termination or replacement of the entire Rewards Program by Simon. Upon termination of the Term pursuant to this paragraph, (A) the Simon Entities and Program Vendors shall remove all Retailer Offers and Retailer Materials from the Rewards Program and the Rewards Site; (B) the Simon Entities shall discontinue receipt of Transaction Data from Program Vendors pursuant to this Agreement on or after the date of such termination; and (C) Retailer shall cease any use of any Simon Marks (as defined in Section 3 below) and delete any mention of the Rewards Program and the Simon Marks from any Media under Retailer’s reasonable control as of such termination date.
3. Grant of License; Use of Trademarks/Publicity.
(a) Retailer hereby grants a world-wide, royalty-free, non-exclusive license to the Simon Entities and Program Vendors, subject to the applicable terms of this Agreement, to use, copy, and display the Retailer Materials during the Term, in any Media for the Purpose. Retailer hereby warrants and represents and agrees to indemnify and hold harmless the Simon Entities and Program Vendors from any claim of any third party that any of the Retailer Materials, Items, Stores, or Offers violate any of the IP Rights or any other right, title, or interest of such third party or in any way related to any purchase made at any Retailer Store or the awarding of Retailer Perks.
(b) Simon+™ and related trademarks incorporating the names Simon® or ShopSimon™, are property of SPG IP Holdings LLC, a Simon Affiliate, and the trade names and trademarks associated with the Properties are property of or licensed to a Simon Affiliate that controls such Property (“Simon Marks”). Retailer shall be obligated to seek prior written approval (which may be by email) from Simon of the form and substance of any public announcement in any way relating to this Agreement, the Rewards Program, or that in any way incorporates the Simon Marks. If Simon approves Retailer’s any public announcement pursuant to the immediately preceding sentence Retailer is granted a license to use the Simon Marks only as so approved on Media in the United States, Puerto Rico, and Canada, on a non-exclusive, royalty-free basis, during the Term, for Retailer’s Purpose only.
(c) Other than those licenses expressly granted in this Agreement, neither Party gains any IP Right or any other right, title, or interest in any of the other Party’s trademarks, copyrightable material, technology, know-how, trade secrets, Confidential Information), or other proprietary information by virtue of this Agreement.
4. Control of the Rewards Program.
(a) The Simon Entities have the right to (i) determine the appearance, content, design, functionality and all other aspects of Rewards Program (including, without limitation, the right to remove or alter content, appearance, design, Benefits, and functionality from time to time); and (ii) remove, refuse to include, or delay inclusion of any Offers, Retailer Materials, Transaction Data, or Items from the Rewards Program. Retailer is responsible for promptly removing from any Retailer Materials provided to Simon and from any Protectable Material in the Transaction Data any content that (a) is or becomes prohibited or infringing of any third-party’s IP Rights under Applicable Law, (b) has been removed, refused, or delayed by Simon for any reason. Notwithstanding anything to the contrary in this Agreement, Simon reserves the right to deem any Offers, Items, Retailer Materials, or Transaction Data inappropriate to be included in the Rewards Program, in Simon’s sole discretion, and immediately remove and deny inclusion thereafter of such Offers, Items, Retailer Materials, or Transaction Data from being included within the Rewards Program at any time without notice to Retailer. The Simon Entities hereby indemnify and hold harmless Retailer, Retailer’s Affiliates, and their Store(s) from any claim by any third party related to violation of such third party’s IP Rights or any other right, title, or interest of such third party related to the Simon Entities’ promotion or administration of the Rewards Program (except to the extent due primarily to the content, or Retailer’s administration, of any of Retailer’s Offers, awarding of any Retailer Perks, purchases made at Retailer’s Stores, or of the content of any Retailer Materials).
5. Confidentiality. Each Party (“Receiving Party”) agrees that, without the prior written consent of the other Party (“Disclosing Party”), Receiving Party shall not use for any purpose other than conducting the business activities expressly provided for in this Agreement or divulge to any third party, except the Receiving Party's Affiliates and the directors, officers, advisors, and employees of the Receiving Party and Receiving Party’s Affiliates that need to know related to Receiving Party’s performance or enjoyment of rights under this Agreement and have agreed to comply with confidentiality obligations not less protective than as provided in this paragraph, any Confidential Information of the Disclosing Party obtained in connection with the performance of this Agreement, except for information (a) already known to or otherwise in the possession of the Receiving Party without an existing obligation of confidentiality at the time of receipt from the Disclosing Party; (b) made generally available to the public (other than as a result of a disclosure by the Receiving Party); (c) rightfully obtained by the Receiving Party from any third party without restriction and without breach of this Agreement by the Receiving Party; (d) disclosed by the Disclosing Party without restriction as confirmed in writing, (e) is required by Applicable Law to be disclosed by the Receiving Party provided the Receiving Party promptly notifies the Disclosing Party in writing, to the extent legally permitted, of the necessity of such disclosure and cooperates with the Disclosing Party (at the Disclosing Party's expense) if Disclosing Party elects to pursue legal means to contest and avoid the disclosure; (f) disclosed by the Receiving Party pursuant to arbitration or other legal proceedings initiated by either Party to enforce this Agreement; or (g) disclosed to attorneys and similar outside advisors on a confidential basis subject to the other confidentiality provisions set forth in this paragraph. Receiving Party shall protect all such Confidential Information of the Disclosing Party using the same safeguards as Receiving Party customarily uses to protect Receiving Party’s own Confidential Information of a similar character. The obligations of each Party pursuant to this paragraph shall survive for a three-year period following the early termination or expiration of the Term. As used in this Agreement, “Confidential Information” means and includes all financial, technical, and other information provided by the Disclosing Party to the Receiving Party, which is marked as confidential (or, if delivered orally, which is identified as confidential at the time of disclosure), or given the circumstances a reasonable person would consider such information confidential in nature, including, but not limited to, including but not limited to, financial information, market information, sales information, customer information, personnel information, vendor information, and marketing strategies.
6. Miscellaneous. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, IN NO EVENT WILL THE SIMON ENTITIES BE LIABLE TO THE RETAILER AND RETAILER’S AFFILIATES NOR SHALL RETAILER AND RETAILER AFFILIATES BE LIABLE TO THE SIMON ENTITIES FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON CONTRACT, TORT, OR ANY OTHER THEORY OF LIABILITY. Notices required or permitted by this Agreement shall be delivered by the sending Party by overnight courier that provides receipt of delivery (which shall be effective upon date of delivery or rejection) with a copy by e-mail: if to Retailer, to the business address and e-mail provided by Retailer in the Sign-up Form or otherwise in writing to Simon and, if to Licensor, at 225 W. Washington Street, Indianapolis, IN 46204, Attention: General Counsel and e-mail to notices@simon.com and retailermarketing@simon.com. If any provision of this Agreement is held to be invalid, illegal or unenforceable by a court of competent jurisdiction, such provision shall be severed from this Agreement or shall be deemed modified to the extent necessary to render such term or provision enforceable and the remaining provisions of the Agreement shall remain in full force and effect. The waiver by a Party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. Any obligations of the Parties relating to limitations on liability, confidentiality, indemnification, and other obligations under this Agreement that, by their nature are intended to survive termination, will survive termination. This Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of the State of Indiana (“Governing Law”), without regard to the State of Indiana’s (or any other state’s) conflict of law provisions. To the fullest extent permitted by Applicable Law, no claim under this Agreement may be joined to any other claim and no class action proceedings will be permitted. Each Party hereby irrevocably waives its right to trial by jury in any action or proceeding arising out of this Agreement or the transactions relating to its subject matter. The Parties agree to submit to the exclusive jurisdiction and venue of the courts of Marion County, Indiana for any action arising out of this Agreement. These Participation Terms and each Sign-up Form that has received Confirmation from Simon constitute the entire agreement between Simon and Retailer in any way related to the subject matter contained in any such Sign-up Form or Retailer’s participation in the Rewards Program and supersedes all prior agreements or communications whether written or oral. Neither Party has been induced to enter into this Agreement by any representations or promises not specifically stated in this Agreement. Except as otherwise provided, this Agreement shall not be modified except by written agreement signed on behalf of Retailer and Simon by their respective authorized officers.