This Agreement becomes a legally binding contract and is effective as of the earliest date you do any of the following (Effective Date)
Section 1 GiftPay Payment Services 1.01 Payment Service(s) means the
Payment Processing Services or Gateway
Services defined as follows:
(a) Payment Processing Services means the payment processing services offered by GiftPay which provide merchants with the ability to accept closed loop second hand gift cards on a website or mobile application. These services include Gateway Services, customer support, and other software, APIs and services and technology as described on the GiftPay website.
(b) Gateway Services means the gateway services offered by GiftPay which provide Merchants with the software and connectivity required to allow real-time secure data transmission for processing of closed loop gift cards payments on a website or mobile application. The Gateway Services include those additional products and services provided by GiftPay.
Section 2 Fees and Taxes
In exchange for us providing you with the GiftPay Payment Services, you agree to pay us the fees or a set percentage commission for each gift card you acquire. We reserve the right to revise our fees at any time, subject to a thirty (30) day notice period to you prior to the new fees taking effect.
2.02 Payment of Fees, Payouts, and Right to Set-off Subject to the terms of this Agreement, GiftPay offers multiple methods for withdrawing funds which can be found on the withdraw minus any fees, Reversals, Invalidated Payments, gift cards with no balance, Refunds or other amounts that you owe to GiftPay under this Agreement.
Merchant shall pay, indemnify, and hold GiftPay harmless from (i) any sales, use, excise, import or export, value-added, or similar tax or duty, and any other tax or duty not based on GiftPay income, and (ii) all government permit fees, customs fees and similar fees which GiftPay may incur with respect to this Agreement. Such taxes, fees and duties paid by Merchant shall not be considered a part of, a deduction from, or an offset against, payments due to GiftPay hereunder.
Section 3 Restricted Activities, Representations and Warranties
3.01 Restricted activities
You agree that you will not:
(a) Breach this Agreement, or any other agreement that you have entered into with us in connection with the GiftPay Payment Services;
(b) Violate any national, federal, state, or local laws, rules, or regulations applicable to your business in your corresponding country of operation;
(c) Fail to provide us with any information that we reasonably request about you or your business activities, or provide us with false, inaccurate or misleading information;
(d) Integrate or use any of the GiftPay Payment Services without complying with our requirements;
(e) Submit any Transaction for processing through the GiftPay Payment Services which does not represent a bona fide, permissible Transaction as outlined in this Agreement and in the Association Rules, or which inaccurately describes the product or services being sold.
(f) Process Transactions or receive payments on behalf of any other party, or redirect payments to any other party;
3.02 Representations and Warranties by Merchant
Merchant has the full power and authority to execute, deliver and perform this Agreement. This Agreement is binding and enforceable against Merchant and no provision requiring. Merchants performance is in conflict with its obligations under any agreement to which Merchant is a party. Merchant is duly organized, authorized and in good standing under the laws of the state, region or country of its organization and is duly authorized to do business in all other states, regions or countries in which Merchants business operates.
Section 4 Liability for Invalidated Payments and other Liabilities
You are liable for all claims, expenses, fines and liability we incur arising out of:
(a) a Fraudulent Gift Card, Refund, over-payment, payment error, or other invalid payment you cause (collectively Invalidated Payment;)
(b) any error, negligence, misconduct or fraud by you, your employees, or someone acting on your behalf; and
(c) any losses resulting from your failure to comply with the terms of this Agreement, or your usage of the GiftPay Payment Services.
In the event of an Invalidated Payment or other liability, we may deduct the amounts due to GiftPay from your Payouts.
Section 5 Actions We May Take
5.01 Actions by GiftPay
If we believe that your Transactions pose an unacceptable level of risk, that you have breached the terms of this Agreement, or that your account has been compromised, we may take various actions to avoid liability. The actions we may take include, but are not limited to, suspending or limiting your ability to use the GiftPay Payment Services, refusing to process any Transaction, reversing a Transaction, holding your Payouts. If possible, we will provide you with advance notice of our actions and resolution steps. However, advance notice will not be provided if there is an immediate need to take actions such as a security threat, potential fraud, or illegal activity.
Section 6 Account Security, Data, Intellectual
Property and Publicity
6.01 Security of your access
You agree to:
(a) Not allow anyone else to have or use your password details and to comply with all reasonable instructions we may issue regarding account access and security. In the event you share your password details, GiftPay will not be liable to you for losses or damages;
(b) Keep your personal details up to date. We may be unable to respond to you if you contact us from an email account that is not registered with us; and
(c) Take all reasonable steps to protect the security of the personal electronic device through which you access the GiftPay Payment Services (including, without limitation, using PIN and/or password protected personally configured device functionality to access the GiftPay Payment Services and not sharing your device with other people).
6.02 Ownership of Data
All Customer Data shall be owned by Merchant and Merchant hereby grants GiftPay a perpetual, irrevocable, sub-licensable, assignable, worldwide, royalty-free license to use, reproduce, electronically distribute, and display Customer Data for the following purposes: (i) providing and improving the GiftPay Payment Services; (ii) internal usage, including but not limited to, data analytics and metrics so long as such Customer Data has been anonymized and aggregated with other customer data; (iii) complying with applicable legal requirements and assisting law enforcement agencies by responding to requests for the disclosure of information in accordance with local laws; and (iv) any other purpose for which consent has been provided by the Customer.
6.03 Software License
GiftPay grants you a revocable, non-exclusive, non-transferable license to use GiftPays APIs, developers toolkit, and other software applications (the Software) in accordance with the documentation accompanying the Software. This license grant includes all updates, upgrades, new versions and replacement software for your use in connection with the GiftPay Payment Services. If you do not comply with the documentation and any other requirements provided by GiftPay, then you will be liable for all resulting damages suffered by you, GiftPay and third parties. Unless otherwise provided by applicable law, you agree not to alter, reproduce, adapt, distribute, display, publish, reverse engineer, translate, disassemble, decompile or otherwise attempt to create any source code that is derived from the Software. Upon expiration or termination of this Agreement, you will immediately cease all use of any Software.
6.04 Trademark License
GiftPay grants you a revocable, non-exclusive, non-transferable license to use GiftPay trademarks used to identify the GiftPay Payment Service (the Trademarks) solely in conjunction with the use of the GiftPay Payment Service. Merchant agrees that it will not at any time during or after this Agreement assert or claim any interest in or do anything that may adversely affect the validity of any Trademark or any other trademark, trade name or product designation belonging to or licensed to GiftPay (including, without limitation registering or attempting to register any Trademark or any such other trademark, trade name or product designation). Upon expiration or termination of this Agreement, you will immediately cease all display, advertising and use of all of the Trademarks, including the logos and trademarks of the Associations.
6.05 Intellectual Property
Other than the express licenses granted by this Agreement, GiftPay grants no right or license by implication, estoppel or otherwise to the GiftPay Payment Service or any Intellectual Property Rights of GiftPay. Each party shall retain all ownership rights, title, and interest in and to its own products and services (including in the case of GiftPay, in the GiftPay Payment Service) and all Intellectual Property Rights therein, subject only to the rights and licenses specifically granted herein.
Merchant hereby grants GiftPay permissions to use Merchants name and logo in its marketing materials including, but not limited to use on GiftPay website, in customer listings, in interviews and in press releases.
6.07 Confidential Information
The parties acknowledge that in their performance of their duties hereunder either party may communicate to the other (or its designees) certain confidential and proprietary information, including without limitation information concerning the GiftPay Payment Services and the know how, technology, techniques, or business or marketing plans related thereto (collectively, the â€œConfidential Information) all of which are confidential and proprietary to, and trade secrets of, the disclosing party. Confidential Information does not include information that: (i) is public knowledge at the time of disclosure by the disclosing party; (ii) becomes public knowledge or known to the receiving party after disclosure by the disclosing party other than by breach of the receiving party obligations under this section or by breach of a third party confidentiality obligations; (iii) was known by the receiving party prior to disclosure by the disclosing party other than by breach of a third party confidentiality obligations; or (iv) is independently developed by the receiving party. As a condition to the receipt of the Confidential Information from the disclosing party, the receiving party shall: (i) not disclose in any manner, directly or indirectly, to any third party any portion of the disclosing party Confidential Information; (ii) not use the disclosing party Confidential Information in any fashion except to perform its duties hereunder or with the disclosing party express prior written consent; (iii) disclose the disclosing party Confidential Information, in whole or in part, only to employees and agents who need to have access thereto for the receiving party internal business purposes; (iv) take all necessary steps to ensure that its employees and agents are informed of and comply with the confidentiality restrictions contained in this Agreement; and (v) take all necessary precautions to protect the confidentiality of the Confidential Information received hereunder and exercise at least the same degree of care in safeguarding the Confidential Information as it would with its own confidential information, and in no event shall apply less than a reasonable standard of care to prevent disclosure.
Section 7 - Indemnification, Limitation of
Liability, Disclaimer of Warranties
Merchant agrees to indemnify, defend, and hold harmless GiftPay, its parent, affiliates, officers, directors, agents, employees and suppliers from and against any lawsuit, claim, liability, loss, penalty or other expense (including attorneys fees and cost of defense) they may suffer or incur as a result of (i) your breach of this Agreement or any other agreement you enter into with GiftPay or its suppliers in relation to your use of the GiftPay Payment Services; (ii) your use of the GiftPay Payment Services; (iii) your acts or omissions; and/or (iv) your violation of any applicable law, regulation, or Association Rules and requirements.
7.02 LIMITATION OF LIABILITY
GiftPay SHALL NOT BE LIABLE TO YOU OR A THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE GiftPay PAYMENT SERVICES, WHETHER FORESEEABLE OR UNFORESEEABLE, AND WHETHER BASED ON BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT, OR OTHER CAUSE OF ACTION (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, GOODWILL, PROFITS, INVESTMENTS, USE OF MONEY, OR USE OF FACILITIES; INTERRUPTION IN USE OR AVAILABILITY OF DATA; STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS; OR LABOR CLAIMS), EVEN IF GIFTPAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES SHALL GiftPay TOTAL AGGREGATE LIABILITY TO MERCHANT OR ANY THIRD PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE DIRECT DAMAGES SUFFERED BY SUCH PARTY IN AN AMOUNT EQUAL TO THE AMOUNTS PAID OR PAYABLE BY MERCHANT TO GiftPay UNDER THIS AGREEMENT DURING THE FIRST TWELVE (12) MONTH PERIOD AFTER THE EFFECTIVE DATE OF THIS AGREEMENT.
7.03 Disclaimer of Warranties
THE GIFTPAY PAYMENT SERVICE IS PROVIDED WITHOUT ANY WARRANTY WHATSOEVER. GiftPay DISCLAIMS ALL WARRANTIES WHETHER EXPRESS, IMPLIED, OR STATUTORY, TO MERCHANT AS TO ANY MATTER WHATSOEVER, INCLUDING ALL IMPLIED
WHETHER EXPRESS, IMPLIED, OR STATUTORY, TO MERCHANT AS TO ANY MATTER WHATSOEVER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY GiftPay OR ITS EMPLOYEES OR REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF GiftPay OBLIGATIONS. The parties acknowledge that the GiftPay Payment Service is a computer network based service which may be subject to outages and delay occurrences. As such, GiftPay does not guarantee continuous or uninterrupted access to the GiftPay Payment Services. Merchant further acknowledges that access to the GiftPay website or to the GiftPay Payment Services may be restricted for maintenance. GiftPay will make reasonable efforts to ensure that Transactions are processed in a timely manner; however, GiftPay will not be liable for any interruption, outage, or failure to provide the GiftPay Payment Services.
Section 8 - Term and Termination
8.01 Term and Termination
The term of this Agreement shall commence on the Effective Date and shall continue on until terminated as set forth herein. You may terminate this Agreement, without cause, by providing GiftPay with notice of your intent to terminate, or by ceasing to use the GiftPay Payment Services.
7GiftPay may terminate this Agreement or suspend services to you if any of the following occurs: (1)An order from a regulatory body to cease providing services to you; (2) we believe that you have breached this Agreement, or are likely to do so; (3) if we determine that your use of the GiftPay Payment Services carries an unacceptable amount of risk, including fraudulent gift cards; or (4) any other legal, reputational, or risk-based reason exists, in GiftPay sole discretion. In the event that GiftPay must terminate this Agreement, GiftPay shall provide you with written notice as soon as reasonably practicable. After termination by either party as described above, Merchant shall no longer have access to, and shall cease all use of the GiftPay Payment Services. Any termination of this Agreement does not relieve Merchant of any obligations to pay any fees, costs, penalties, Chargebacks or any other amounts owed by you to us as provided under this Agreement, whether accrued prior to or after termination.
Section 9 â€“ General Provisions
9.01 Independent Contractors
The relationship of GiftPay and Merchant is that of independent contractors. Neither Merchant nor any of its employees, consultants, contractors or agents are agents, employees, partners or joint ventures of GiftPay, nor do they have any authority to bind GiftPay by contract or otherwise to any obligation. None of such parties will represent anything to the contrary, either expressly, implicitly, by appearance or otherwise.
If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable for any reason, the remaining provisions not so declared shall nevertheless continue in full force and effect, but shall be construed in a manner so as to effectuate the intent of this Agreement as a whole, notwithstanding such stricken provision or provisions.
No term or provision of this Agreement shall be deemed waived, and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other party, whether express or implied, shall not constitute a consent to, waiver of, or excuse for any different or subsequent breach.
This Agreement will bind and inure to the benefit of each party permitted successors and assigns. Merchant may not assign this Agreement without the written consent of GiftPay. GiftPay may assign this Agreement in its sole discretion without the written consent of Merchant.
9.06 Entire Agreement
This Agreement sets forth the entire agreement and understanding of the parties hereto in respect to the subject matter contained herein, and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, partner, employee or representative of any party hereto. This Agreement shall be binding upon and shall inure only to the benefit of the parties hereto and their respective successors and permitted assigns. Nothing in this Agreement, express or implied, is intended to confer or shall be deemed to confer upon any persons or entities not parties to this Agreement, any rights or remedies under or by reason of this Agreement.
9.10 Agreement to Arbitrate
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL IMPACT HOW CLAIMS YOU AND GiftPay HAVE AGAINST EACH OTHER ARE RESOLVED. You and GiftPay agree that any and all disputes or claims that have arisen or may arise between you and GiftPay shall be resolved exclusively through final and binding arbitration
rather than in court, except that you may assert claims in small claims court, if your claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis. The Federal Arbitration Act governs the interpretation and enforcement of this provision.
THE PARTIES ALSO AGREE THAT YOU AND GIFTPAY MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND GIFTPAY AGREE OTHERWISE, THE ARBITRATOR(S) MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON OR PARTY CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR(S) MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER GiftPay MERCHANTS
The arbitration will be conducted by the American Arbitration Association under its Commercial Arbitration Rules, as modified by this Agreement to Arbitrate. The AAA rules are available at www.adr.org. Payment of all filing, administration, and arbitrator fees will be governed by the AAA rules. All issues are for the arbitrator to decide, except that issues relating to arbitrability, or the scope or enforceability of this Agreement to Arbitrate, shall be for a court of competent jurisdiction to decide. If a court decides that any part of this Section 9.10 is invalid or unenforceable, the other parts of this Section 9.10 shall still apply.
The arbitration shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or GiftPay may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and GiftPay subject to the discretion of the arbitrator(s) to require an in-person hearing, if the circumstances warrant. In cases where an in-person hearing is held, you and/or GiftPay may attend by telephone, unless required otherwise by the arbitrator(s).
The arbitrator(s) will decide the substance of all claims in accordance with the laws of the State of Delaware, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator(s) shall not be bound by rulings in prior arbitrations involving different merchants, but is/are bound by rulings in prior arbitrations involving the same merchant to the extent required by applicable law. The arbitration award shall be final and binding and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
2 PROCESSING OF PERSONAL DATA IN
CONNECTION WITH THE SERVICES
2.1 GiftPay is the controller in respect of Merchant Data and may use it for the following purposes:
2.1.1 as reasonably necessary to provide the Services to Merchant;
2.1.4 any other purpose that it notifies (or Merchant agrees to notify on its behalf) to the employees and contractors of Merchant in accordance with Data Protection Laws.
2.2. GiftPay shall only process Customer Data on behalf of and in accordance with Merchant written instructions. The Parties agree that this Addendum is Merchant's complete and final written instruction to GiftPay in relation to Customer Data. Additional instructions outside the scope of this Addendum (if any) require prior written agreement between GiftPay and Merchant, including agreement of any additional fees payable by Merchant to GiftPay for carrying out such additional instructions. Merchant shall ensure that its instructions comply with all applicable laws, including Data Protection Laws, and that the processing of Customer Data in accordance with Merchant's instructions will not cause GiftPay to be in breach of Data Protection Laws. Merchant hereby instructs GiftPay to process Customer Data for the following purposes:
2.4.1 as reasonably necessary to provide the Services to Merchant;
2.5.1. assisting Merchant in the preparation of data protection impact assessments to the extent required of Merchant under Data Protection Laws; and
2.5.2 responding to binding requests for the disclosure of information as required by local laws, provided always that where the request is from a non-EEA law enforcement agency GiftPay will (a) inform Merchant of the request, the data concerned, response time, the identity of the requesting body and the legal basis for the request; (b) wait for Merchant instructions provided the instruction and the opinion are received within a reasonable period of time, which shall be assessed in light of the time period afforded by the law enforcement agency to GiftPay; (c) where GiftPay is prohibited from informing Merchant about the law enforcement agency request, take reasonable steps to have this prohibition waived and to make available relevant information about the request as soon as possible to Merchant (these efforts will be documented); and (d) where the prohibition cannot be waived, compile a list, in compliance with its national law and on an annual basis, of the number of such requests received, the type of Customer Data requested and the identity of the law enforcement agency concerned and make it available to the Customer data protection authority annually on request (in which circumstances GiftPay will be acting as a controller).