YIFTEE'S MERCHANT AGREEMENT
PLEASE READ THIS MERCHANT AGREEMENT ("AGREEMENT") CAREFULLY BEFORE USING THE SERVICE (as defined below) OFFERED BY WEYENOT, INC., D/B/A YIFTEE ("YIFTEE"). 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 SIGN-UP FORM(S) THAT YOU HAVE EXECUTED OR WILL EXECUTE FROM TIME-TO-TIME (EITHER ONLINE OR IN HARD COPY) WITH YIFTEE (EACH, A "MERCHANT SIGN-UP 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.
1. Gift Purchase.
1.1 Subject to the terms and conditions of this Agreement, Yiftee will feature one (1) or more specific products or services available from Merchant ("Specific Gifts") on the Yiftee.com website and the Yiftee mobile applications available on the Apple App Store and through the Android Marketplace (such website and applications together, the "Services"), and allow Yiftee users ("Users") to purchase such Specific Gifts for other Yiftee Users ("Recipients"). Yiftee may also (but is under no obligation to) feature on the Services, at its discretion and subject to the terms and conditions of this Agreement, Merchant's place of business generally, and allow Users to "build a gift" by specifying a gift amount (up to a Yiftee-specified maximum) that it wishes to purchase for a Recipient, to be redeemed for any products and services currently and publicly available at Merchant's place of business at the time of redemption (a "General-use Gift"). Specific Gifts and General-use Gifts shall be referred to collectively as "Gifts."
1.2 Yiftee will display on the Services the Specific Gift(s) that have been approved by Yiftee through Merchant's completion and Yiftee's approval of the Merchant Sign-up Form(s) (such completion and approval, "Registration"), and the General-use Gifts option at its discretion. Through the Registration process, the parties will agree to, among other terms, the Specific Gift Value (defined below), the start and end dates for the Specific Gift to be displayed on the Services, if applicable, and the number of Specific Gifts to be offered for sale through the Services, if applicable. Yiftee may also promote the Specific Gift and the General-use Gift option in Yiftee's discretion, such as email marketing and displaying content on third-party sites and services.
1.3 Merchant will provide Yiftee, on a timely basis, with all reasonably requested information regarding (a) each Specific Gift, including a description of the Specific Gift, photos of the Specific Gift, and a description of any restrictions or limitations on Recipient's redemption and/or use of Specific Gifts (e.g., expiration or blackout dates), so that Yiftee may provide such information to a User before her or she sends the Specific Gift to Recipient, and (b) Merchant's place of business generally, including photos thereof, hours of operation, physical address, and products and services offered.
Yiftee will collect payment from Users who gift the Gifts to Recipients, notify each Recipient that he or she has received a Gift, and provide Recipient with directions on how to redeem Gifts at Merchant's place of business by using a mobile phone or the Yiftee mobile application(s). The price Yiftee charges a User for a Specific Gift (the "Specific Gift Purchase Price") shall consist of the price of the Specific Gift, including taxes, for which the Recipient may redeem the Specific Voucher (defined below) ("Specific Gift Value"), plus a non-refundable convenience fee calculated as a percentage of the Specific Gift Value, set by Yiftee in its discretion. The price Yiftee charges a User for a General-use Gift (the "General-use Gift Purchase Price") shall consist of the gift amount of the General-use Voucher (defined below) specified by such User that can be redeemed by the Recipient (the "General-use Gift Value"), plus a non-refundable convenience fee that is calculated as a percentage of the General-use Gift Value. All Yiftee convenience fees shall be referred to collectively as "Convenience Fees."
2. Gift Redemption.
2.1 Merchant will use the Yiftee voucher redemption process described herein, unless otherwise agreed by the parties in writing. Recipient will receive a single-use virtual voucher ("redemption powered by MasterCard") for the Specific Gift Value or the General-use Gift Value (as applicable). Merchants will redeem each Voucher, in accordance with the terms and conditions herein, by running such voucher as a standard "Card Not Present" (CNP) voucher transaction.
(i)Specific Gift redemption. A Specific Gift must be redeemed by the Recipient by the end of the twenty-eight (28) day period after purchase (the "Specific Gift Validity Period"). During the Specific Gift Validity Period, Merchant will honor all Specific Gifts in accordance with the terms agreed to by the parties during Registration; Merchant must redeem a Specific Voucher for the Specific Gift, or, Merchant may, at its option and Recipient’s agreement, redeem the Specific Gift Voucher for other product(s) or service(s) of Recipient's choice (provided the total charge for such product(s) and/or service(s) does not exceed the amount of the Specific Voucher)(an "Alternative Gift"). Merchant will maintain a sufficient level of inventory (for Specific Gifts that are tangible goods) or staffing (for Specific Gifts that are services) to redeem all Specific Gifts gifted to Recipients through the Services. If the product or service that constitutes a Specific Gift is not available when Recipient attempts to redeem such Specific Gift, Merchant will offer Recipient either (a) an Alternative Gift, or (b) a "raincheck" to return to Merchant at a later date during the Specific Gift Validity Period to redeem the original Gift (a "Raincheck") (in each case, at no additional charge). If Recipient opts not to accept the Alternative Gift or a Raincheck, the Specific Gift Value will be donated or refunded at the end of the Specific Gift Validity Period as described in Section 2.2 below. For clarity, notwithstanding anything to the contrary, in the event of Specific Gift unavailability, Merchant will be required (rather than having the option) to offer the Alternative Gift (or a Raincheck).
(ii) General-use Gift redemption. A General-use Gift must be redeemed by the Recipient by the end of the twenty-eight (28) day period after purchase (the "General-use Gift Validity Period"). During the General-use Gift Validity Period, Merchant will redeem the General-use Voucher for any products or services currently and publicly available at Merchant's place of business at the time of redemption, as long as the total for such products and services does not exceed the value of General-use Voucher.
(iii) Though the purchasing user can designate that it wishes a Recipient use any Voucher at Merchant, or use a Specific Voucher for a Specific Gift at Merchant, Merchant understands and agrees that the Vouchers may be used at any merchant that accepts MasterCard. If Merchant attempts to charge over the maximum Voucher value for any Voucher, the Voucher will be rejected. Merchant will not allow for any Voucher to be redeemed incrementally; that is, each Voucher may only be used a single time, regardless of whether such single transaction was for the entire Voucher amount.
2.2 If, at the end of the applicable Validity Period for any Gift, a Gift has been partially redeemed, but there is any amount of Gift Value remaining on the Voucher for such Gift (the "Remaining Amount"), the Remaining Amount shall be refunded to the purchasing User (in cash or credit to his or her Yiftee account, according to such User's preference). If at the end of the applicable Gift Validity Period for any Gift, no charge has been made to the Voucher, Recipient shall be given the option to either (i) refund the Gift Value to the purchasing User (in cash or credit to his or her Yiftee account), (ii) ask Yiftee to donate the Gift Value to a charitable cause, (iii) refund the Gift Value to the Recipient (in cash or credit to the Recipient’s Yiftee account), or (iv) exchange for another Yiftee gift or egift card.
2.3 Notwithstanding anything else, if a Specific Gift is a ticket to a one-time event (a "Ticket"), no refunds will be granted to the purchasing User, nor charitable donations made, for an unredeemed Ticket, and such Specific Gift will be considered "redeemed" upon the date of such one-time event. If a Ticket is for an event occurring over a series of dates, such Specific Gift will be considered "redeemed" upon the last of such dates.
2.4 The Gift Value for a Gift will be inclusive of all applicable taxes. For example, Merchant will not charge Recipient any sales or other taxes when Recipient attempts to redeem a Gift.
2.5 Merchant will provide suitable instruction to Merchant employees on how to properly redeem a Gift and will keep accurate records of each Gift redeemed.
2.6 Merchant, and not Yiftee, shall be solely responsible for any claims, losses, or costs suffered by a Recipient in connection with the redemption of a Gift.
3. Payment; Taxes.
3.1 Within thirty (30) days of the end of each calendar month during the term of this Agreement, Yiftee will cause to be remitted to Merchant the amount of the Gift Value for each Gift that was redeemed by the Recipient at the Merchant during such calendar month. For clarity, if the Recipient redeems a Voucher at any merchant other than Merchant, no amount shall be due to Merchant pursuant to the foregoing sentence. Merchant will receive payment hereunder directly from the voucher payment processor.
3.2 For avoidance of doubt, any portion of Gift Value that was refunded to a purchasing User (as cash or credit to its Yiftee account) or donated to charity shall not be considered "redeemed." If a Recipient has elected to donate any unredeemed Gift Value to charity, that Gift Value will be aggregated with other donations by Yiftee, and donated to charity on a quarterly basis, within thirty (30) days of the end of each calendar quarter.
3.3 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, excluding taxes based upon Yiftee's net income.
4. Compliance with Laws. 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 Gift if it believes it is unlawful to do so (for example, if a minor attempts to redeem a Gift for an alcoholic beverage), Merchant will notify Yiftee immediately.
5. Term and Termination.
5.1 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 Yiftee, at any time and in Yiftee's sole discretion, upon 30 days' notice to Merchant; or (iv) by mutual agreement of the parties, upon the expiration of all outstanding Gift Validity Periods. For avoidance of doubt, Yiftee will not market or sell any Merchant Gifts on the Services as of the effective date of termination.
5.2 If termination occurs before the end of any outstanding Gift Validity Period for any Gift that has not been entirely redeemed as of such termination, Merchant must continue to redeem all such Gifts in accordance with the terms of this Agreement until the earlier of (a) four (4) weeks after the effective date of termination or (b) 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").
5.3 The following provisions shall survive termination of this Agreement: Sections 2.6, 3.3, 4-7 (inclusive), 9-13 (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 Yiftee’s obligations in Section 1) will survive termination during the Post-Termination Period.
6. Use of Marks. Except as otherwise 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. Yiftee may use Merchant's Marks on the Services and any Services partnered or affiliated with Yiftee in connection with the provision or promotion of any Gift or in Yiftee's marketing and publicity materials.
7. Content License. If Merchant has provided Yiftee photos, images, text, data, or other materials or content (collectively, "Content"), Merchant hereby grants Yiftee a royalty-free, nonexclusive, worldwide, perpetual, irrevocable 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.
8. Representations and Warranties.
8.1 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.
8.2 Merchant represents and warrants: (i) it will honor the terms of all Gifts; (ii) it shall provide all customer support in connection with all Gifts in a professional manner; (iii) it shall not infringe the intellectual property 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.
8.3 Yiftee represents and warrants that it shall perform its obligations hereunder in a professional manner.
9. Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, YIFTEE MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WITH RESPECT TO THE SERVICES OR ANY OF THE SERVICES AVAILABLE FROM YIFTEE IN CONNECTION THEREWITH, INCLUDING WITHOUT LIMITATION THE MANNER IN WHICH THE GIFT IS DISPLAYED ON THE SERVICES, AND YIFTEE 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.
10. Confidentiality. Merchant may receive business, technical, financial, or other information, materials, and/or ideas from Yiftee during the term of this Agreement, including without limitation personal information about Users and details about each Gift such as Convenience Fees, number of Gifts sold, and revenue generated by a Gift ("Confidential Information"). Merchant agrees to hold in confidence and not use or disclose (except as specifically allowed hereunder) the Confidential Information.
11. Indemnity. Merchant will indemnify and hold Yiftee, its parents, subsidiaries, affiliates, officers, and employees harmless (including, without limitation, from all damages, liabilities, settlements, costs and attorneys' fees) from any claim or demand made by any third party (including without limitation any User) due to or arising out of (a) any Gift; (b) Merchant's breach of any of its warranties under this Agreement; and (c) Merchant's breach of Section 4.
12. Limitation of Liability. IN NO EVENT SHALL YIFTEE OR ITS SUPPLIERS, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE WITH RESPECT TO THE SERVICES OR ANY SERVICES PROVIDED BY YIFTEE 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 THE GREATER OF $100 OR THE FEES PAID TO MERCHANT BY YIFTEE FOR THE TWELVE MONTH PERIOD PRECEDING THE APPLICABLE CLAIM; (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 YIFTEE’S REASONABLE CONTROL.
13. 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. Yiftee shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Company'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 Yiftee's prior written consent. Yiftee 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 State of California 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 Santa Clara County, California, 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 United States Federal Courts located in the Northern District of California. Both parties agree that, except as otherwise provided herein, 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 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 Yiftee in any respect whatsoever.