This agreement ("Agreement”) is entered into by Gyftgram Corporation, its subsidiaries and affiliates ("Gyftgram”, “us”, “we”) and the participating merchant business that has completed and submitted the Gyftgram Merchant Application form which has been accepted by Gyftgram (the "Merchant” or “you”). The Agreement is effective as of the date it is fully signed or otherwise executed (including by electronic means) by both parties in accordance with Gyftgram’s Merchant onboarding process ("Effective Date”).
Gyftgram offers an electronic gift card service (the "Gyftgram Service”) located at www.Gyftgram.com ("Site”). The Gyftgram Service allows restaurants and other merchants to create, market and sell to customers electronic gift cards that can be redeemed by the gift card recipient at the specified restaurant or other merchant ("Merchant Gift Card"). Merchant wishes to participate in the Gyftgram service. Accordingly, Gyftgram and Merchant agree as follows:
For purposes of this Agreement, the terms below shall have the following meanings:
2.1. "Gyftgram USER” or “USER”
"Gyftgram User” means any user of the Gyftgram Service, including the purchaser or recipient of a Gyftgram eGift card.
3.1. ACCEPTANCE AS A Gyftgram MERCHANT
Upon Merchant’s execution of this Agreement and written acceptance of the Agreement by Gyftgram, Merchant shall be authorized to offer and sell Merchant-branded gift cards (the “Merchant Gift Card”) through the Gyftgram Service while this Agreement is in effect. Merchant shall comply with all terms of this Agreement and the published terms of Gyftgram Service available at www.gyftgram.com.
3.2. PAYMENT
Upon a Merchant customer’s purchase of Merchant’s Gift Card, completed delivery of such card to the recipient, and receipt of the full purchase price funds from the Gyftgram User (a "Purchase”), Gyftgram will initiate the transfer of the total purchase price amount, less the applicable credit card processing cost and any Gyftgram Convenience Fees within thirty [30] days following the Purchase. Gyftgram will transfer the payment to Merchant’s designated payment service or bank account.
If Merchant fails to specify its payment account to Gyftgram within thirty [30] days of the date on which funds are first available for deposit, Gyftgram will issue a check for the above payment to Merchant’s then-current address on file with Gyftgram, less the amount of Gyftgram’s current processing fee.
Gyftgram reserves the right (but shall not be obligated), at its sole discretion, to withhold amounts in certain circumstances to manage threats of unlawful, suspicious activity or violations of this Agreement affecting Gyftgram or its participating Merchants and users. For avoidance of doubt, Merchant remains solely responsible at all times for its compliance with all applicable laws, regulations and payment card industry standards and requirements in connection with its performance of this Agreement. Merchant further acknowledges and agrees that it will at all times act as the merchant of record with respect to all Purchases and other transactions with purchasers of Merchant’s Gift Card.
3.3. Gyftgram CONVENIENCE FEES ON PURCHASES
3.4. ADDITIONAL EMAIL SENDS
3.5. TAXES
Merchant is solely responsible for determining all taxes that apply to the sale and redemption of Merchant Gift Cards and for collecting, reporting, and remitting the correct tax to the appropriate tax authority. Merchant shall defend, indemnify and hold Gyftgram harmless from any demands, claims, tax assessments, fees, fines or other costs of any kind arising from or related to taxes imposed on the sale or redemption of Merchant Gift Cards, or on Merchant’s use of the Gyftgram Services.
3.6. CHANGES TO THIS AGREEMENT AND TO Gyftgram Service TERMS
Gyftgram reserves the right, in its sole discretion, to modify the terms of the Gyftgram Service or to discontinue the Service. Such modifications shall be binding on Merchant upon written notice from Gyftgram in accordance with the notice provisions of this Agreement. If Merchant notifies Gyftgram in writing that it rejects such modifications, this Agreement shall automatically terminate upon written notice from Gyftgram to Merchant. Merchant’s continued use of the Gyftgram Service after having received notification of any modifications to the Gyftgram Service shall constitute acceptance of such modifications.
3.7. INTELLECTUAL PROPERTY RIGHTS; LICENSE TO USE Gyftgram MATERIALS
Merchant acknowledges and agrees that Gyftgram and/or its licensors own all right, title and interest to the Site and the Gyftgram Services, including all software, proprietary interfaces, text, images, audiovisual content, designs, service marks, logos and other materials provided on the Site and all modifications of any of the foregoing, including all intellectual property rights therein, including copyright, trademark, service mark, patent and trade secret rights (the “Gyftgram Materials”). Subject to Gyftgram’s acceptance of Merchant’s offer to participate in the Gyftgram Service and to Merchant’s compliance with the terms and conditions of this Agreement and the Gyftgram Service, Gyftgram will grant to Merchant non-exclusive, nontransferable, limited, revocable license and permission during the term of the Agreement solely to access and use the Gyftgram Services and Gyftgram Materials only to the extent required to per its obligations under this Agreement and to participate in the Gyftgram Service. In addition, Gyftgram, at its sole discretion, from time to time may provide other Gyftgram Materials to Merchant in connection with the Gyftgram Service and subject to the licensing terms in this Section 3.7. Except for the licenses expressly granted to Merchant under this Section 3.7, no other licenses or rights of any kind are granted hereunder to Merchant in relation to Gyftgram Materials, and Gyftgram expressly reserves all other rights in and to all Gyftgram Materials.
3.8. LICENSE TO USE MERCHANT materials
Merchant hereby grants to Gyftgram a nonexclusive, worldwide, royalty free license during the term of this Agreement to use any software, proprietary interfaces, text, images, audiovisual content, designs, service marks, logos and other materials provided by Merchant or its licensors to the extent required to enable Gyftgram to allow Merchant to use the Gyftgram Service (the “Merchant Materials”) and for Gyftgram to perform its obligations under this Agreement.
3.9. YOUR FEEDBACK TO US REGARDING THE Gyftgram SERVICE AND Gyftgram MATERIALS
You may voluntarily submit to Gyftgram your comments and suggestions regarding the Site, the Gyftgram Service and the Gyftgram Materials (“Feedback”). By using the Site and accepting this Agreement, you agree that such Feedback is not confidential or proprietary to you or any other person, and you also agree that We are free to use Feedback for any purpose related to the operation, improvement and further development of the Site, the Gyftgram Services, and/or our business, without the requirement of the consent of you or any other person.
4.1. CONFIDENTIAL INFORMATION
During the performance of this Agreement, Gyftgram may provide Merchant with confidential information of Gyftgram, including, without limitation, information concerning Gyftgram’s business and marketing plans, proprietary processes and methods, and other confidential non-public information concerning Gyftgram’s operations, technology and business relationships (“Gyftgram Confidential Information”). Gyftgram Confidential Information provided to Merchant pursuant to this Agreement is provided solely for use in connection with the Gyftgram Service. Merchant may not use Confidential Information for any other purpose. Merchant agrees (i) to safeguard the confidentiality of all Confidential Information using measures that are no less stringent than it uses to protect its own confidential and proprietary information and in any event measures that are reasonable under the circumstances, and (ii) not to disclose Confidential Information to any other person or entity except as expressly permitted under this Agreement or with Gyftgram’s prior written consent.
4.2. PRIVACY AND DATA SECURITY
All data relating to Gyftgram users which is provided to Merchant by Gyftgram or its affiliates, agents or partners in connection with this Agreement, including information created or derived by Gyftgram in providing the Gyftgram Service (“User Data”), shall be owned exclusively by Gyftgram and shall be used by Merchant solely for the purpose of participating in the Gyftgram Service and performing its obligations under this Agreement. Merchant shall not use User Data for any other purpose or combine or associate User Data with any other data it may obtain about any natural person. Merchant agrees that it will not disclose, share, transfer, or transmit User Data to any other person or entity except as expressly permitted under this Agreement or with Gyftgram’s prior written consent. Merchant is solely responsible for compliance with any laws and regulations applicable to User Data while it is in Merchant’s (or its affiliates’, agents’ or partners’) possession, custody, or control, including all data privacy and data security laws. All User Data collected, processor or stored by Gyftgram is subject to Gyftgram’s privacy practices as described in its Privacy Policy, available on the Site at https://www.gyftgram.com/privacy. Merchant acknowledges and agrees that it will comply with Gyftgram’s privacy policy to the extent that it has access to User Data.
4.3. MATERIAL BREACH; INJUNCTIVE RELIEF
Any breach of Section 3.7 and this Section 4 of the Agreement shall be considered a material breach resulting in irreparable harm to Gyftgram for which there is no adequate remedy at law. In the event of such a breach, Gyftgram shall be entitled to seek injunctive relief in addition to any other appropriate relief, without the requirement of posting any bond.
Merchant represents and warrants to Gyftgram as set forth below. Merchant will notify Gyftgram immediately if any of Merchant’s representations or warranties becomes inaccurate or untrue in any material respect during the term of the Agreement.
5.1. AUTHORITY; QUALIFICATION TO DO BUSINESS; Compliance with Laws
Merchant has the right and authority to enter into and perform its obligations under the Agreement. Merchant is registered and licensed to do business in all jurisdictions where required by applicable law and is in good standing in each jurisdiction where the conduct of its business requires such registration and licensing. Merchant’s entering into this Agreement will not result in its breach of any other contractual agreement or other binding legal obligation.
5.2. COMPLIANCE WITH APPLICABLE LAWS
Merchant will comply with the terms and conditions of this Agreement and with all state, federal, local and other laws and payment brand or network rules applicable to its performance under this Agreement, including without limitation the marketing, sale, administration, distribution and redemption of gift cards. Without limiting the foregoing, Merchant acknowledges and agrees that Merchant Gift Cards sold by Merchant pursuant to this Agreement shall not expire, shall not incur service or maintenance fees to the purchaser or recipient for any reason, are not redeemable for cash unless required by law, and will not be replaced by Gyftgram if lost or stolen unless required by law. Merchant will allow the recipient of a Merchant Gift Card to redeem the full value of the card. Merchant is solely responsible for (i) tracking the value and any unredeemed balances on any gift cards, and (ii) complying with any applicable escheat or abandoned or unclaimed property laws.
5.3. TAXES
Merchant is and throughout the term of this Agreement will continue to be registered and in good standing with all applicable authorities regarding sales and other tax collection purposes in each jurisdiction in which Merchant’s goods or services will be provided, including in connection with Merchant’s use of the Gyftgram Service.
5.4. MERCHANT Materials
Merchant owns all right, title, and interest in and to the Merchant Materials and has all rights required to grant the licenses granted by Merchant in this Agreement. The Merchant Materials do not and will not violate any applicable laws or infringe any copyright, trademark, other intellectual property, or any other right of any third party.
6.1. NO WARRANTIES
THE SITE, Gyftgram SERVICE, AND Gyftgram MATERIALS AND ALL RELATED CONTENT AND MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH OF THE FOREGOING IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.
WITHOUT LIMITING THE FOREGOING, Gyftgram MAKES NO WARRANTY THAT THE SITE, Gyftgram SERVICE, SITE, Gyftgram MATERIALS OR RELATED CONTENT AND MATERIALS PROVIDED BY Gyftgram IS ACCURATE, COMPLETE, RELIABLE, CURRENT, OR ERROR-FREE, THAT IT WILL MEET MERCHANT’S REQUIREMENTS, WILL BE OR AT ANY PARTICULAR TIME OR LOCATION OR WITHOUT INTERRUPTION, THAT DEFECTS OR ERRORS WILL BE CORRECTED, OR THAT THE SITE OR THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL CODE OR OTHER DAMAGING COMPONENTS. MERCHANT’S USE OF THE SITE, Gyftgram SERVICE AND Gyftgram MATERIALS IS AT MERCHANT’S OWN RISK, AND MERCHANT IS SOLELY RESPONSIBLE FOR ANY LOSS OR DAMAGE TO PROPERTY OR DATA THAT MAY RESULT.
Gyftgram DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE PURCHASED USING A Gyftgram GIFTCARD, OR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY, INCLUDING MERCHANT, THROUGH THE SITE OR THE Gyftgram SERVICE OR THROUGH ANY OTHER WEBSITE. Gyftgram IS NOT A PARTY TO ANY TRANSACTION BETWEEN A Gyftgram USER AND MERCHANT OR ANY THIRD-PARTY PROVIDER OF PRODUCTS OR SERVICES.
SOME STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. TO THE EXTENT THAT THESE LAWS APPLY TO THIS AGREEMENT, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT BE APPLICABLE.
6.2. LIMITATION OF LIABILITY
IN NO EVENT SHALL Gyftgram BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, LOSS OF BUSINESS OPPORTUNITY, LOSS OF GOODWILL, OR LOSS OF USE OF PROPERTY OR LOSS OF DATA RESULTING FROM THE USE, INABILITY TO USE, OR DEFECTS IN, DISRUPTION OF, OR UNAVAILABILITY OF THE SITE, THE Gyftgram SERVICE, OR THE Gyftgram MATERIALS.
Gyftgram’S TOTAL CUMULATIVE LIABILITY SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY MERCHANT TO Gyftgram DURING THE THREE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM AROSE.
THIS LIMITATION OF LIABILITY APPLIES TO THE FULLEST EXTENT PERMITTED BY LAW REGARDLESS OF THE TYPE OF CLAIM, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ON ANY OTHER BASIS, AND EVEN IF Gyftgram HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
SOME STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT BE APPLICABLE.
6.3. FORCE MAJEURE
Without limiting the effect of Sections 6.1 and 6.2 above, Gyftgram shall not be liable for any damage, loss, delay in performance, or nonperformance resulting from conditions beyond its reasonable control, including but not limited to, government action, acts of terrorism, acts of war, state-sponsored cyber-attacks, strikes, riots or other civil disturbances, accidents, fire, floods, earthquakes and other natural disasters, power outages, and internet, communications and other system failures.
7.1. INDEMNIFICATION
Merchant agrees to indemnify and hold harmless Gyftgram, and its officers, directors, employees, representatives, affiliates, successors, and assigns, against any and all claims or losses (including without limitation reasonable attorney’s fees and expenses) asserted by a third party relating to Merchant’s participation in or use of the Gyftgram Service, including, but not limited to, claims relating to: (a) any actual or alleged breach of this Agreement by Merchant, including breach of any of Merchant’s representations, warranties or covenants herein; (b) any claim for sales tax or any other tax obligation arising from the sale, issuance or redemption of a Merchant Gift Card or the provision of goods and/or services in connection therewith; (c) any claim by any local, state, or federal governmental agency or other governmental authority for unredeemed Merchant Gift Cards or unredeemed cash values thereof, or any other amounts under any applicable escheat or abandoned or unclaimed property laws; (d) any failure of Merchant to honor a Merchant Gift Card; (e) any infringement of any patent, trademark, copyright, publicity, privacy, trade secret, or other right of any third party by Merchant, including, without limitation, in connection with the Merchant Content or Gyftgram’s use thereof; (f) Merchant’s provision of goods, services, or information in connection with the Gyftgram Service; and (g) Merchant’s collection, use, handling or disclosure of User Data (including, without limitation, a data breach giving rise to litigation or legal obligations to affected individuals or governmental authorities. Gyftgram shall have the right, at its expense, to engage its own legal counsel to participate in the conduct of the defense of any of the foregoing indemnifiable claims in cooperation with counsel engaged by Merchant in performing its obligations under this Section 7.1.
8.1. TERM
This Agreement shall commence on the Effective Date and continue until terminated as provided herein.
8.2. TERMINATION
Gyftgram may terminate Merchant’s participation in the Gyftgram Service at any time and for any reason without liability to Merchant or any third party by providing Merchant written notice of such termination. Termination shall be effective ten (10) days from the date of on the date of delivery of the notice as provided herein.
Gyftgram may, in its sole discretion, and without liability to Merchant or any third party, terminate the Site or Gyftgram Service at any time, for any reason, and without prior notice. This Agreement shall terminate upon termination of the Gyftgram Service.
Merchant may terminate participation in the Gyftgram Service at any time by providing Gyftgram prior written notice at least ten (10) business days prior to termination.
Termination of the Gyftgram Service does not release the Merchant from any liability or obligations as a result of prior Merchant Gift Cards sold and that remain unredeemed, prior promotion campaigns and/or fundraiser programs that remain outstanding as of the effective date of any termination.
8.3. RIGHTS AND OBLIGATIONS UPON TERMINATION; SURVIVAL
Except as provided otherwise herein, all rights granted to Merchant under this Agreement shall cease immediately upon termination. Gyftgram shall not be obligated to issue any Merchant Gift Cards on behalf of Merchant after termination. Merchant shall remain obligated to honor all Merchant Gift Cards issued on behalf of Merchant prior to termination and to pay any amounts owed to Gyftgram under this Agreement.
This section and the following additional sections shall survive termination: 3.5, 3.7, 3.9, 4, 5, 6, 7, 9, 10, and 11.
9.1. FORM OF NOTICE; METHOD OF DELIVERY
Whenever any notice is permitted or required under this Agreement, it shall be in writing and deemed delivered when: (a) delivered by electronic mail to a party at the email address provided below; or (b) actually received or rejected by a party or, if earlier and regardless of whether actually received or not, when deposited in (i) the United States mail, postage prepaid, certified mail, return receipt requested or (ii) a regional or national overnight courier service, addressed to the party at the address provided below.
9.2. NOTICES TO Gyftgram
Notices to Gyftgram must be sent by email to info@gyftgram.com, or by one of the forms of mail delivery service described above to: Gyftgram Corporation 521 5th Avenue New York, NY 10175 Attn: Legal.
9.3. NOTICES TO MERCHANT
Notices to Merchant must be sent by email to info@gyftgram.com, Attn: Legal.
10.1. Governing Law and Venue
This Agreement is governed by the law of the State of New York, without reference to that state’s choice of law principles. You agree that the state and federal courts located in New York City, New York shall have exclusive jurisdiction over any dispute arising out of or related to your use of the Site or the Services or your breach of this Agreement.
10.2. Arbitration
At our sole discretion, we may require you to submit any disputes arising from the use of this Agreement, the Site, the Gyftgram Services or the Gyftgram Materialas to final and binding arbitration under the Rules of Arbitration of American Arbitration Association applying the law of New York. Any such binding arbitration shall take place in New York City, New York.
10.3. Severability
If any term this Agreement is deemed under applicable law to be invalid, void, or for any reason unenforceable, that term will be deemed severable and limited or eliminated to the minimum extent necessary. The limitation or elimination of the term will not affect any other terms.
10.4. Entire Agreement
This Agreement constitutes the entire agreement between you and the Company and supersedes all prior or contemporaneous communications and proposals, whether electronic, oral, or written with respect to these Services. Any rights not expressly granted herein are reserved. Each party confirms that it has not relied upon, and shall have no remedy in respect of any agreement, warranty, statement, representation or undertaking unless set out expressly in this Agreement.
10.5. Third Parties
You acknowledge and agree that there are no third party beneficiaries of this Agreement.
10.6. Assignment
You cannot assign, transfer or sublicense any part of this Agreement without first obtaining our consent. We may assign, transfer, or delegate any of our rights and obligations without Your consent. This Agreement does not create any agency, partnership, joint venture, or employment relationship, and neither party has any authority to bind the other in any respect.
10.7. Waiver
If we do not enforce any part of these Terms, we still reserve the right to later enforce that or any other part of these Terms. In order for any waiver of compliance with these Terms to be binding, we must provide you with written notice of such waiver through an authorized representative.
10.8. AMENDMENTS
Except as expressly permitted herein, amendments to this Agreement must be in writing and signed by both parties.
10.9. INTERPRETATION OF TERMS
Both parties have had the opportunity to consult with their respective attorneys regarding the terms of this Agreement and are entering into the Agreement voluntarily. No presumption of interpretation shall be made against either party as drafter of the Agreement.
10.10. COUNTERPARTS
This Agreement may be executed in counterparts with separate signature pages, which together shall constitute a single document.
10.11. HEADINGS
Headings are for convenience only and in no way limit or otherwise affect the meaning or scope of any provision. Whenever used herein, the singular shall include the plural and the plural shall include the singular.
10.12. ELECTRONIC COMMUNICATIONS
Merchant agrees that business with Gyftgram may be done electronically and that the provision of notices, disclosures, and other information electronically satisfies any legal requirement that such communications be in writing.
The parties may make agreements by electronic means, and this Agreement has the same legal effect as an agreement entered into on paper. By checking the box and providing the electronic identification below, you agree to the terms and conditions in this Agreement.
