These Terms and Conditions set forth the terms and conditions between Merchant and GiftYa regarding GiftYa’s provision of digital egifts, rewards, vouchers, and incentives (the “Services”) redeemable for qualified purchases through the GiftYa, digital egift Program (the “Program”).
a. Engagement. Merchant and GiftYa hereby agree to GiftYa’s provision of the Services to Merchant in accordance with these terms and conditions. Nothing in this Agreement will prevent GiftYa from offering, licensing, distributing, marketing or otherwise selling or providing the Services or any products or services similar thereto to any third party.
b. Promotional Materials.
(i) Merchant Content. In order to facilitate the performance of the Services by GiftYa, Merchant shall submit to GiftYa certain content and marketing materials, including without limitation names, graphic, images, symbols, trademarks, service marks, logos, trade names and other content (collectively, the “Merchant Content”). GiftYa shall use such Merchant Content as necessary for the provision of the Services. Merchant hereby grants to GiftYa nonexclusive, worldwide, transferable, sublicensable licenses to display, use, perform, publish, copy, reproduce, transmit, distribute, and create derivative works of the Merchant Content solely in order to perform the Services. Merchant acknowledges and agrees that Merchant is solely and exclusively responsible and liable for all Merchant Content. Notwithstanding the foregoing, GiftYa shall not be obligated to use any of the Merchant Content and in no event shall GiftYa be required to use any Merchant Content that violates any applicable law, rule, or regulation.
c. Merchant Obligations. Merchant acknowledges and agrees that it is bound by and compliant with all of GiftYa’s partner’s rules governing the GiftYa Program.
d. Interaction with End Users. Merchant acknowledges and agrees that GiftYa shall have the sole and exclusive rights to communicate with and otherwise provide customer support to end users in connection with the Services.
e. Chargebacks; Merchant Disputes. The Merchant agrees that any dispute regarding any product or service purchased or sold by the Merchant in connection with the acceptance of the Services is between the Merchant and the end user that purchased the goods or services and agrees that GiftYa shall not be a party to any such dispute.
f. Fraud Detection and Assistance. Merchant agrees to cooperate with GiftYa to investigate any suspected illegal or fraudulent activity, including without limitation, providing GiftYa with information on an end user’s transactions with the Merchant.
2. Information Disclosures and Consents.
a. Collection and Use of Merchant Information. Merchant consents to the monitoring, collection, and use of Merchant information which is required in order for the provision of GiftYa’s Services, including but not limited to the following: (i) posting Merchant name on GiftYa website and app; (ii) providing GiftYa partners with proof that Merchant has opted into the GiftYa program; (iii) accomplishing all aspects of transaction matching and allowing end users to accurately identify transactions; or (iv) as reasonably necessary or appropriate in order for GiftYa to provide the Services.
b. Recipients of Merchant Information. Merchant consents to disclosure to, and receipt by, the following entities of the foregoing Merchant information: payment processors; card network entities; third party technology platform providers; end users’ financial institutions; and GiftYa’s financial institutions.
c. Merchant hereby releases all claims by Merchant and its representatives and affiliates against any and all entities identified in Section 2(b) for and in connection with account or statement crediting services, whereby a card network or financial institution issues an account or statement credit (or, in certain instances, a debit) to a network card holder or financial institution account holder that has (i) registered a network card or financial institution account as part of the Program; and (ii) made a qualifying purchase with such card or account or took an action to receive the reward.
3. Proprietary Rights.
a. Reservation of Rights. GiftYa reserve all of its rights, title and interests in and to the Services (excluding any Merchant Content), Program and any other technology, copyrightable material or other intellectual property or other proprietary information, data or materials provided to Merchant in connection with this Agreement (collectively, the “Intellectual Property”). Merchant acknowledges that no rights are granted to Merchant hereunder other than as expressly set forth herein. GiftYa acknowledge and agree that Merchant retains all rights, title and interests in and to the Merchant Content supplied to GiftYa hereunder.
b. Developed Data. Notwithstanding anything to the contrary in this Agreement, subject to Section 2, GiftYa may, in perpetuity use any data, redemption information, reports, results, calculations and other output and information generated from the Services (the “Developed Data”) for comparative, research and/or analytical purposes as part of the normal course of services it provides to clients, advertisers and prospective clients, including Merchant; provided, that no such data is shared with any third party that is identifiable to a specific end user or Merchant. The parties acknowledge and agree that GiftYa shall have no obligation to account to Merchant for such use or to pay any consideration to Merchant for such use.
4. Disclaimers; Limitations on Liability.
a. Disclaimer of Warranties. THE SERVICES AND ALL OTHER INTELLECTUAL PROPERTY ARE PROVIDED “AS IS” AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY GIFTYA, ITS LICENSORS, PARTNERS OR SERVICE PROVIDERS, EITHER EXPRESS OR IMPLIED WITH RESPECT THERETO, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. MERCHANT EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT.
b. Disclaimer of Consequential Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
5. Indemnification. Each party (“Indemnifying Party”) will indemnify and hold the other party (“Non-Indemnifying Party”) harmless from and against any and all third party claims against the Non-Indemnifying Party arising out of any act, default, misrepresentation or any omission on the Indemnifying Party’s part (including, without limitation, negligence and breach of this Agreement), or any of Indemnifying Party’s agents, employees or representatives, directly or indirectly relating to this Agreement, including without limitation any claims relating to allegations, actions or proceedings for breach of contract or warranty, regulatory or other legal claims, claims for bodily injury (including death) and damage to property.