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 Merchant Services 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,
(d) Interaction with Consumers. Merchant acknowledges and agrees that GiftYa shall have the sole and exclusive rights to communicate with and otherwise provide customer support to Consumers 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 it, 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 will deduct the appropriate amounts due to GiftYa from the Merchant Credit Card on File or Pre-Fund Deposit Amount according to the terms of Exhibit 1. 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.
3. Term and Termination.
(i) Termination For Material Breach. Merchant may terminate this Agreement or any Product Exhibit hereunder upon written notice to the other party if GiftYa 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. GiftYa may terminate this Agreement or any Product Exhibit hereunder upon written notice to the Merchant if Merchant 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. Either (A) Merchant or (B) GiftYa may terminate this Agreement or any Product Exhibit hereunder without cause with ten (10) days prior written notice to the other party. In the event Giftya terminates this Agreement pursuant to this Section 3(b)(ii), GiftYa promptly shall refund to Merchant any Pre-Fund Deposit Amount then remaining, less the value of unredeemed vouchers, gifts or offers plus processing fees.
(c) 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 reserve the rights to suspend this Agreement without liability to Merchant, until such amounts are paid in full.
(d) Effect of Termination.
(i) Product Exhibits; Fees. Notwithstanding any expiration or termination of this Agreement or any Product Exhibit, Merchant acknowledges and agrees that: (i) Merchant shall continue to honor all obligations to consumers, 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 a consumer 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 any and all Fees due or owing as of the effective date of such expiration or termination. Termination of this Agreement or any Product Exhibit 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 and/or any and all Product Exhibits 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 network partners with proof that Merchant has opted into the GiftYa program.
(c) Recipients of Merchant Information. Merchant consents to the disclosure to and receipt by the following entities of the foregoing Merchant information: Visa, MasterCard, Discover, American Express, and GiftYa banking sponsor as requested for compliance purposes only.
(d) Merchant hereby releases all claims by Merchant and its representatives and affiliates against any and all card network entities for and in connection with statement crediting services to Company, whereby a card network issues a statement credit (or, in certain instances, a debit) to a network card holder that has (i) registered a network card as part of the Program; and (ii) made a qualifying purchase with such card or took an action to receive the reward. Merchant hereby indemnifies the card network entities in case GiftYa fails to pay fees that are due from GiftYa for such statement crediting services. GiftYa and Merchant agree that the card network entities 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), Platform, 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 consumer 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 CAMPAIGN, 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.
9. 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 Product 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 $1.50 per GiftYa purchased.