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Merchant Terms & Conditions

TERMS AND CONDITION

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”).

 

  1. Services
  1. 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.
  1. Promotional Materials; 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 and/or appropriate 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.
  1. 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.
  1. 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.
  1. 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.

 

  1. Information Disclosures and Consents
  1. 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.
  1. 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.
  1. Release. 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.

 

  1. Proprietary Rights
  1. Reservation of Rights. GiftYa reserves 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 acknowledges and agrees that Merchant retains all rights, title and interests in and to the Merchant Content supplied to GiftYa hereunder.
  1. 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.

 

  1. Disclaimers; Limitations on Liability
  1. 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.
  1. 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.

 

  1. 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. 

 

  1. Miscellaneous
  1. 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 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 agreeing to these Terms and Conditions are fully authorized to do so.
  1. No Waiver; Cumulative Remedies. No failure or delay by either party in exercising any right under these Terms and Conditions shall constitute a waiver of that right. Except as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
  1. Consents and Approvals. Except as set forth expressly herein, whenever a consent or approval of the other party is required, such consent and approval shall not be unreasonably withheld, conditioned or delayed.
  1. Governing Law; Disputes. These Terms and Conditions and any dispute arising out of or in connection with them (“Dispute”) will be governed as to all matters, including, but not limited to validity, construction and performance, by and under the laws of the Commonwealth of Pennsylvania, without giving effect to conflict of laws principles thereof. The parties agree to exclusive jurisdiction in the state/federal courts located in the County of Allegheny, in the Commonwealth of Pennsylvania, in connection with any suit, action or other proceeding arising out of or relating to these Terms and Conditions or the transaction contemplated herein, and they waive any objection to venue in same. Each party irrevocably and unconditionally agrees not to plead or claim in any court that any such, action, suit or proceeding brought in either such court has been brought in an inconvenient forum. The prevailing party in any litigation or arbitration will be entitled to recover from the other party its reasonable fees for attorneys and expert witnesses, including on appeal, plus such court costs and expenses as may be fixed by any arbitration panel or court of competent jurisdiction.
  1. Severability. In the event that any provision of these Terms and Conditions are found invalid or unenforceable, it will be enforced to the extent permissible and the remainder of the Terms and Conditions will remain in full force and effect.
  1. Force Majeure. If any party is unable to perform any of its obligations (except for Merchant’s payment obligations) due to, including without limitation, a natural disaster, actions or decrees of governmental bodies, telecommunications carriers, terrorist activities or other events beyond such party’s reasonable control, such party’s obligations shall be suspended during the duration of any such event.
  1. Insolvency. If GiftYa is insolvent or ceases to operate as a going concern, Merchant shall not be liable for any funds not received by Recipient. GiftYa represents and warrants that it has entered into a written agreement with a financial institution pursuant to which such institution shall hold all end user funds and shall provide recordkeeping and fund remittance services under applicable unclaimed property laws. 
  1. Independent Contractors. Each party shall remain an independent contractor and nothing in these Terms and Conditions shall be deemed to constitute the parties as partners, agents or joint ventures.  Further, no party shall have the authority to act, or attempt to act, or represent itself, directly or by implication, or in any manner assume or create, or attempt to assume or create, any obligation on behalf of or in the name of another, nor shall any be deemed the employee of another.
  1. No Third Party Beneficiaries. Except as specifically set forth herein, these Terms and Conditions are entered into for the sole protection and benefit of the parties hereto, and no other person or entity shall be a direct or indirect beneficiary of, or shall have any direct or indirect cause of action or claim in connection with these Terms and Conditions.
  1. Entire Agreement; Headings. These Terms and Conditions embody the entire agreement between the parties, supersede 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 these Terms and Conditions are inserted for convenience only and shall not affect the meaning or interpretation of these Terms and Conditions or any provision hereof.