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”). These Terms and Conditions are incorporated by reference into the Agreement between GiftYa and the Merchant identified on the GiftYa Merchant Agreement Cover Page.
In exchange for the covenants and promises herein, which the parties agree are sufficient consideration, the parties each and all agree as follows:
(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.
(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 or sold the goods or services and agrees that GiftYa shall not be a party to any such dispute.
(f) Information Updates: Merchant will promptly notify GiftYa if any information provided to GiftYa, including information in the application form submitted by the Merchant, is changed or is no longer accurate or complete.
(g) 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. Service Fees; . Merchant shall pay to GiftYa the fees set forth in the applicable Exhibit 1 (the “Fees”). GiftYa may adjust any and all Fees upon thirty (30) days’ prior notice to Merchant. Merchant will pay to GiftYa all Fees by placing on file with GiftYa a valid and effective Merchant credit card, which card will be reasonably acceptable to GiftYa and which GiftYa will charge on a recurring basis for such Fees. All Fees under this Agreement are quoted in, and payable in, United States dollars. Except as expressly provided in this Agreement, all payments made by Merchant to GiftYa hereunder are non-refundable. In the event that GiftYa does not receive payment through Merchant’s credit card for any reason, including (by way of example only) but not limited to such card being invalid, expired, suspended, lost, replaced, then Merchant will ensure that GiftYa receives all Fees within ten (10) days of GiftYa providing notice to Merchant. If GiftYa does not receive payment in full of all Fees within such ten (10) day time period, GiftYa may without further notice immediately terminate this Agreement, its provision of Services to Merchant, and Merchant’s participation in the Program.
3. Term and Termination.
(i) Termination For Material Breach. In addition to the provisions of Section 2, either party may terminate this Agreement upon written notice to the other party if such other party commits a material breach of this Agreement and fails to cure such material breach within thirty (30) days after receipt of written notice of the same.
(ii) Termination For Convenience. In addition to the provisions of Section 2, either party may terminate this Agreement without cause with thirty (30) days’ prior written notice to the other party.
(b) Suspension of Campaigns. If Merchant’s account is overdue in any respect (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, GiftYa reserves the right to suspend this Agreement without liability to Merchant, until all Fees and all other amounts are paid in full.
(c) Effect of Termination.
(i) Fees. Notwithstanding any termination or expiration of this Agreement, Merchant acknowledges and agrees that: (i) Merchant shall continue to honor all obligations to end users, and to GiftYa, set forth in this Agreement with respect to any voucher, gift or incentive; and (ii) GiftYa shall be entitled to full payment for all Fees for all vouchers, gifts and incentives issued to or redeemed by an end user whether accruing prior to or after any expiration or termination of this Agreement.
(ii) Additional Obligations. Upon the effective date of expiration or termination (i) GiftYa shall cease providing the Services hereunder; and (ii) Merchant shall pay to GiftYa all Fees due or owing as of the effective date of such expiration or termination. Termination of this Agreement shall not relieve Merchant of any liability or obligation which accrued hereunder prior to the effective date of such termination nor preclude GiftYa from pursuing all rights and remedies it may have hereunder or at law or in equity with respect to any breach of this Agreement.
4. Representations and Warranties. Each party represents and warrants to the other that: (a) it is a corporation or corporate entity duly organized and validly existing and in good standing under the laws of its jurisdiction of formation and/or place of principal business; (b) the performance of its obligations hereunder has been duly authorized by all necessary corporate actions; (c) neither the execution and delivery of this Agreement nor the performance of any of its obligations hereunder, nor the consummation of any of the transactions contemplated hereby, will violate any agreement to which it is a party; (d) any and all individuals signing this Agreement are fully authorized to do so.
5. Information Disclosures and Consents.
(a) Collection of Merchant Information. Merchant consents to GiftYa’s collection of the following Merchant information: (i) Merchant name; (ii) address; (iii) telephone number; (iv) email; (v) contact name; (v) credit card. GiftYa will collect all of the foregoing information from Merchant, which is required in order for GiftYa to provide Services to Merchant under this Agreement. Merchant will promptly notify GiftYa of any and all updates, revisions and other changes to the foregoing information.
(b) Uses of Merchant Information. Merchant consents to GiftYa’s use of the foregoing Merchant information for the following purposes: (i) posting Merchant name on GiftYa website and app; (ii) GiftYa billing Merchant for Fees set forth in Exhibit 1; (iii) providing GiftYa partners with proof that Merchant has opted into the GiftYa program; (iv) as reasonably necessary or appropriate in order for GiftYa to provide the Services.
(c) Recipients of Merchant Information. Merchant consents to the disclosure to and receipt by the following entities, on an anonymized basis, of the foregoing Merchant information: payment processors; card network entities; Plaid, Inc. or similar technology platform provider; end users’ financial institutions; and GiftYa’s financial institutions. GiftYa shall request Merchant’s consent to disclose the foregoing Merchant information on a non-anonymized basis.
(d) Merchant hereby releases all claims by Merchant and its representatives and affiliates against any and all entities identified in Section 5(c) 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. Merchant hereby indemnifies the entities identified in Section 5(c) in case GiftYa fails to pay fees that are due from GiftYa for such account or statement crediting services. GiftYa and Merchant agree that the entities identified in Section 5(c) will be third party beneficiaries under this Section 5(d).
6. 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 5, 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.
7. 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 AND FORMED THE BASIS FOR DETERMINING THE FEES PAYABLE HEREUNDER.
(b) Disclaimer of Consequential Damages. IN NO EVENT SHALL MERCHANT HAVE ANY LIABILITY TO GIFTYA, AND IN NO EVENT SHALL GIFTYA HAVE ANY LIABILITY TO MERCHANT, 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.
(c) Limitation on Direct Damages. IN NO EVENT SHALL GIFTYA’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED AN AMOUNT EQUAL TO THE FEES PAID BY MERCHANT TO GIFTYA IN THE SIX MONTH PERIOD PRECEDING THE FIRST INCIDENT TO GIVE RISE TO A CLAIM UNDER THIS AGREEMENT.
8. 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.
(n) Entire Agreement; Headings. This Agreement, including all exhibits hereto, embodies the entire agreement between the parties, supersedes all previous and contemporaneous agreements, understandings and arrangements with respect to the subject matter hereof, whether oral or written, and may be amended only by a written instrument duly signed by the parties. The headings and subheadings in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement or any provision hereof.
GiftYa’s that are sold by GiftYa or partner sites will charge Merchant partners for Redeemed GiftYa’s at 7.9% plus $0.99 per GiftYa purchased.