PLEASE READ THIS MERCHANT AGREEMENT ("AGREEMENT") CAREFULLY BEFORE USING THE SERVICE (AS DEFINED BELOW) OFFERED BY NIFT NETWORKS, INC. ("NIFT"). BY ACCESSING OR USING THE SERVICE IN ANY MANNER, THE MERCHANT IDENTIFIED IN THE MERCHANT SIGN-UP FORM (AS DEFINED BELOW) ("MERCHANT") AGREES THAT IT HAS READ AND AGREES TO BE BOUND BY AND A PARTY TO THE TERMS AND CONDITIONS BELOW, AND ANY TERMS INCLUDED IN THE MERCHANT SIGNUP FORM(S) THAT MERCHANT HAS EXECUTED OR WILL EXECUTE FROM TIME-TO-TIME (EITHER ONLINE OR IN HARD COPY) WITH NIFT (EACH, A "MERCHANT SIGNUP FORM"), WHICH ARE HEREBY INCORPORATED INTO THIS AGREEMENT BY REFERENCE. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS. IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF AN ORGANIZATION OR OTHER ENTITY, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO AGREE TO THESE TERMS ON THAT ORGANIZATION OR ENTITY'S BEHALF AND BIND THEM TO THESE TERMS.
NIFT MAY MODIFY THE TERMS OF THIS AGREEMENT FROM TIME TO TIME, UPON NOTICE TO MERCHANT. IF MERCHANT DOES NOT WISH TO ACCEPT THE NEW TERMS, ITS SOLE REMEDY (AND NIFT’S SOLE LIABILITY) SHALL BE MERCHANT’S TERMINATION OF THIS AGREEMENT.
1. Gift Purchase.
1.1 A Merchant is an entity selling goods and/or services. Subject to the terms and conditions of this Agreement, a "Nift Affiliate" is an entity contracting with and approved by Nift to make Nift products available via the entity's website or other channel. Nift or a Nift Affiliate may feature Merchant's place of business generally on Nift's or affiliate's website, via API, and on any Nift mobile applications which may be developed or available (such website(s), API and applications together, the "Services"), and allow Nift users ("Users") to select gift amounts predetermined by Nift and/or the Merchant or specify a gift amount (up to a Nift-specified maximum) that they wish to purchase for themselves or other Nift Users ("Recipients"), to be redeemed for any products and services then-currently and publicly available at Merchant's place of business at the time of redemption ("Gifts"). Nift or its affiliates, or purchasers (Purchasers) or Recipients of gifts may refer to their gifts and the merchants associated with these gifts on social media and Nift may deliver gift messaging via social media that may be viewed by an audience other than the specific recipient of the gift.
1.2 Nift or its Affiliates will display on the Services the Gifts that have been approved by Nift through Merchant's completion and Nift's approval of the Merchant Sign-up Form(s) provided by Nift and, where required, processing a special voucher provided by Nift (such completion and approval is the "Registration"). In Nift's discretion, Nift may also promote the Gifts, which may include email marketing and/or displaying content via third-party web sites and services.
1.3 Merchant will provide Nift, on a timely basis, with all reasonably requested information regarding Merchant's place of business generally, including photos thereof, hours of operation, physical address, and products and services offered. It is Merchant's responsibility to keep this information and that regarding any of its additional locations up to date at all times including adding or closing branches or related stores, changing product, location or telephone data and updating Gift offers.
1.5 Nift is under no obligation to enroll any Merchant in the Nift program, even if Merchant has been advised that such enrollment is possible. Acceptance into the Nift program is at the sole discretion of Nift.
1.6 Nift may offer advertising opportunities to Merchants on its website or other media. If a Merchant chooses to advertise offers or other information on Nift’s website or other media, Merchant hereby accepts full responsibility for the content of such advertising and releases Nift from all liability in connection with this advertising. Merchant will defend, indemnify, and hold harmless Nift, its officers, officials and employees against any and all claims, suits, actions, or liabilities resulting from Merchant advertising on Nift’s website or other media.
2 Payment; Taxes.
2.1 Nift will remit payment to Merchant for the authorized Gift Value less any fees incurred by Nift in connection with the Gift as soon as practicable after Nift receives the cleared funds from the User through Nift’s payment processor. At this time Nift does not intend to generate profit for itself directly from the transactions, thus any fees deducted from the Gift Value in remittance to Merchant shall be done so on a pass-through basis. The principal pass-through fee will be a payment processing fee to cover the expenses of receiving funds from User and sending funds to Merchant. This fee is expected to be approximately 4% of the Gift Value. Payments to Merchant shall be made through a payment processor of Nift’s choosing, bank ACH, electronic checks, manual checks, or some other mutually agreed upon payment method.
2.2 From time to time Nift may review and employ different pricing models and may amend this Agreement, accordingly. Merchants will be notified of such changes prior to any billing of Merchant accounts in accordance with the pricing changes.
2.3 Merchant shall bear and be responsible for any applicable federal, state, local, and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes) relating to the subject matter hereunder.
3 Gift Redemption.
3.1 Gift Redemption occurs when User presents Voucher to Merchant for the purchase of Merchant’s goods or services. Merchant must honor the full amount of Gift Value, as well as any residual Gift Value after purchase. Gifts are multi-use without limitation on number of uses.
3.2 Gift expiration is subject to the prevailing laws in the state of the participating Merchant location.
3.3 Merchant is solely responsible for all applicable taxes
3.4 Merchant will provide suitable instruction to Merchant employees on how to properly redeem a Voucher for a Gift.
3.5 Merchant, and not Nift, shall be solely responsible for any claims, losses, or costs suffered by a Recipient in connection with Merchant's products or services.
3.6 Merchant acknowledges and agrees that any party that offers such Merchant's Vouchers is an intended third party beneficiary of the indemnities contained in the Merchant Agreement. Merchant acknowledges and agrees that it will not assert a defense based upon lack of privity against any party that offers such Merchant's Vouchers.
4 Transactional Relationship.
4.1 Once funds are received by Nift from User and sent to Merchant by Nift, less any applicable fees, the transactional relationship between Nift and User and Nift and Merchant ends, and all responsibility with respect to the Gift, including but not limited to, the administration, fulfillment, balance tracking, accounting, refunds, expiration, and any arising disputes shall lie with the Merchant.
4.2 In the event that Merchant goes out of business or closes its only location within reasonable distance from User’s location, Merchant must refund full Gift Value to User within thirty (30) days of any such request.
5 Compliance with Laws.
Nift and Merchant shall comply with all applicable laws with respect to the subject matter of this Agreement, including, without limitation, laws prohibiting Merchant from providing alcohol or tobacco products to those under the legal age to purchase or consume such items. If Merchant refuses to redeem a Voucher if it believes it is unlawful to do so (for example, if a minor attempts to redeem a Voucher for an alcoholic beverage Gift), Merchant has the right to deny service.
5.1 Without limiting the foregoing, Merchant will comply with all applicable laws with respect to the sending of text or SMS messages (“Texts”) through the Services or otherwise in connection with Vouchers, including without limitation the CAN-SPAM Act of 2003, the Telephone Consumer Protection Act of 1991 (the “TCPA”), the Do-Not-Call Implementation Act, and any other similar or analogous anti-spam, data protection, or privacy legislation in any jurisdiction. In particular, Merchant acknowledges that the TCPA, generally prohibits (1) the making of telemarketing calls using an artificial or prerecorded voice to residential telephones without prior express consent; and (2) the making of any non-emergency call using an automatic telephone dialing system or an artificial or prerecorded voice to a wireless telephone number, in each case, without prior express consent. Merchant represents and warrants that the owners of the phone numbers to which Texts are sent have given prior express consent or otherwise opted-in to the receipt of such calls or messages as required by any applicable law or regulation. Merchant agrees it will include links to Nift’s terms regarding the use of Texts, as well as clear opt-out/unsubscribe information in its Texts when required to do so by any applicable law or regulation and will otherwise include any required text or content for Texts that is provided by Nift, and honor any opt-out requests that Nift informs Merchant of. Nift’s provision of required content to be included in Texts does not mean Nift will be responsible for Merchant’s compliance with laws, nor does Merchant’s inclusion of such content guarantee compliance with laws. If Merchant obtains an individual’s phone number in connection with the Services or any Voucher, it will not send Texts to such phone number in connection with Vouchers, Nift, and/or the Services, except through the Services.
6 Term and Termination.
6.1 This Agreement will be in effect from the date agreed to by Merchant and continue until terminated by either party, in accordance with the provisions of this Section. This Agreement may be terminated: (i) by either party, upon 30 days' notice, if the other party is in material breach of any provision of this Agreement and such breach is not cured by the breaching party within the 30 day notice period; (ii) by either party, immediately if the other party is judicially declared to be insolvent or commences any bankruptcy, reorganization, debt arrangement or other case or proceeding under any bankruptcy or insolvency law that is not dismissed within 90 days, or commences any dissolution or liquidation proceeding; (iii) by either party for any reason, upon 30 days' notice to the other party (or, if Merchant is terminating due to a modification to this Agreement it does not wish to accept as described above, it may do so immediately upon notice to Nift). In the event of termination, Merchant must continue to honor all unexpired gifts. For avoidance of doubt, Nift will not market or sell any Merchant Gifts on the Services as of the effective date of termination.
6.2 If termination occurs before the end of any outstanding Gift Validity Period for any Voucher that has not been entirely redeemed as of such termination, Merchant must continue to redeem all such Vouchers in accordance with the terms of this Agreement until the end of the applicable Gift Validity Period (from the effective date of termination until the earlier date of the foregoing, the "Post-Termination Period").
6.3 The following provisions shall survive termination of this Agreement: Sections 2.7, 3- 6 (inclusive), 8-13 (inclusive), and any payment obligations incurred prior to the effective date of termination; and additionally, with respect to unredeemed Gifts described in Section 5.2 above, all terms of this Agreement (except Nift's obligations in Section 1) will survive termination during the Post-Termination Period.
7 Use of Marks.
Except as otherwise explicitly provided herein, neither party shall use the other party's names, trademarks, service marks or logos (collectively, "Marks") without the prior written consent of the other party. Nift may use Merchant's Marks on the Services and any services partnered or affiliated with Nift in connection with the provision or promotion of any Gift or in Nift's marketing and publicity materials. Merchant may obtain Nift's official media kit at http://Nift.com/press-center/#media, which may contain images of certain Nift Marks (the "Official Nift Marks"). Merchant may use Official Nift Marks in its marketing materials, to promote the Services on Merchant's social media, on its website (including by linking to the Services) and other marketing programs. All Official Nift Marks must be used in the exact form they are provided by Nift, and use of the Official Nift Marks must at all times be in compliance 16 with Nift's then-current trademark guidelines, the current version of which are available at http://Nift.com/trademark-usage (the "Trademark Guidelines"), which are incorporated herein by reference. The Trademark Guidelines are subject to change upon notice to Merchant.
8 Content License. If Merchant has provided Nift photos, images, text, data, or other materials or content (collectively, "Content"), Merchant hereby grants Nift a royalty free, nonexclusive, worldwide, license to display, reproduce, distribute, modify, prepare derivative works of, perform, and otherwise use and exploit all Content in connection with the promotion and marketing of the Gifts and the Services as long as this agreement is in effect.
9 Representations and Warranties.
9.1 Each party represents and warrants that (i) it has power and authority to enter this Agreement; (ii) the person executing this Agreement on behalf of a party has power and authority to bind such party to this Agreement; and (iii) its entry into and performance of this Agreement will not breach any contractual obligations with third parties.
9.2 Merchant represents and warrants: (i) it will honor the terms of all Gifts and Vouchers therefor; (ii) it shall provide all customer support in connection with all Gifts in a professional manner; (iii) it shall comply with all applicable laws, including but not limited to CAN-SPAM and TCPA, and shall not infringe the intellectual property or privacy or other right of any other person or entity with respect to the subject matter of this Agreement; and (iv) if applicable, it has all necessary rights to grant the license in Section 7 above, including the right to use the name, likeness, and identifying information of any identifiable person in the Content.
9.3 Nift represents and warrants that it shall perform its obligations hereunder in a professional manner.
10 Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, Nift MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WITH RESPECT TO THE SERVICES OR ANY OF THE SERVICES AVAILABLE FROM NIFT IN CONNECTION THEREWITH, INCLUDING WITHOUT LIMITATION THE MANNER IN WHICH THE GIFT IS DISPLAYED ON THE SERVICES, AND NIFT HEREBY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SUBJECT MATTER UNDER THIS AGREEMENT, EXPRESS AND IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
11 Confidentiality and Privacy. Merchant may receive business, technical, financial, or other information, materials, and/or ideas from Nift during the term of this Agreement, including personal information about Users, aggregated, anonymized information about Users and details about each Gift such as eDelivery Fees, number of Vouchers sold, revenue generated by a Gift, and any applicable Fees ("Nift Confidential Information"). Merchant agrees to hold in confidence and not use or disclose (except as specifically allowed hereunder) the Nift Confidential Information. Nift has no obligation to provide any Confidential Information to Merchant beyond that needed for required accounting purposes, but Nift may, in its discretion, provide additional information to the Merchant. Nift may receive business, technical, financial, or other information, materials, and/or ideas from Merchant or Merchant's agent during the term of this Agreement, including without limitation details about each Gift such as Delivery Fees, number of Vouchers sold, and revenue generated by a Gift ("Merchant Confidential Information"). Nift agrees to hold in confidence and not use or disclose (except as specifically allowed hereunder) the Merchant Confidential Information. Notwithstanding anything to the contrary, Nift may freely use and disclose personal information about Users. If Merchant wishes to use information regarding a User for any reason other than fulfilling Merchant’s obligations hereunder, it may do so in accordance with the following restrictions: (a) Merchant may only use the name and email address of the applicable User, and no other information whatsoever, for the sole purpose of marketing Merchant’s products and services to such User and for no other purpose whatsoever (including marketing any products or services offered by other entities), (b) Merchant must provide such User an opportunity to opt-out of any further communications with Merchant in the first (and all subsequent) communications with such User, and without limiting the foregoing, must comply with all applicable privacy laws in connection with use of such User’s name and contact information, including without limitation CAN-SPAM, and (c) Merchant will not disclose such User information (or any other User information) to any third party.
12 Indemnity. Merchant will indemnify and hold Nift and its affiliates, Voucher Payment Processors and each of their its parents, subsidiaries, affiliates, officers, and employees, respectively, harmless (including, without limitation, from all damages, fines, refunds, injuries, interest, expenses, liabilities, settlements, costs and attorneys' fees) from any claim or demand made by any third party (including without limitation any User) directly or indirectly due to or arising out of (a) content and fulfillment of any Gift Vouchers and listings of Vouchers; (b) Merchant's breach of any of its warranties under this Agreement; (c) Merchant's breach of Section 10; (d) the operation or content of Merchant's website; (e) Merchant's actual or alleged violation or infringement of any intellectual property or privacy rights of any third-party; and (f) the quality, legitimacy or legality of any product, service or other thing that is the subject of a Voucher, or any consumer dispute concerning any matter relating thereto (each, a "Merchant Claim").
13 Limitation of Liability. IN NO EVENT SHALL NIFT OR ITS SUPPLIERS OR AFFILIATES, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE WITH RESPECT TO THE SERVICES OR ANY SERVICES PROVIDED BY NIFT OR THE SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY AMOUNT IN THE AGGREGATE IN EXCESS OF ZERO DOLLARS ($0) (II) FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER; (III) FOR DATA LOSS OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; OR (IV) FOR ANY MATTER BEYOND NIFT'S REASONABLE CONTROL. YOU ACKNOWLEDGE AND AGREE THAT, TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL ANY VOUCHER PAYMENT PROCESSOR AND/OR ITS OR THEIR SERVICE PROVIDERS BE LIABLE TO YOU WITH RESPECT TO THE PERFORMANCE OR NON¬PERFORMANCE OF, OR THE ABILITY OR INABILITY TO ACCESS AND USE THE NIFT SERVICE. TO THE EXTENT PERMITTED BY LAW, THE LIABILITY OF ANY VOUCHER PAYMENT PROCESSOR AND ANY OF THEIR SERVICE PROVIDERS, COLLECTIVELY, IN RELATION TO ANY TRANSACTION IS LIMITED IN THE AGGREGATE TO ZERO DOLLARS ($0).
14 Miscellaneous. The failure of either party to exercise, in any respect, any right provided for herein shall not be deemed a waiver of any further rights hereunder. Nift shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Nift's reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including "line-noise" interference). If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Merchant except with Nift's prior written consent. Nift may transfer, assign or delegate this Agreement and its rights and obligations without consent. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts without regard to the conflict of laws provisions thereof. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by arbitration in Suffolk County, Massachusetts, using the English language in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. ("JAMS") then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Streamlined Arbitration Rules and Procedures of JAMS. Judgment upon the award so rendered may be entered in a court having jurisdiction, or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the Suffolk County in the Commonwealth of Massachusetts. Both parties agree that, except as otherwise provided herein, (a) this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement and (b) that all modifications must be in a writing signed by both parties. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Merchant does not have any authority of any kind to bind Nift in any respect whatsoever.