Merchant Account Terms and Conditions

 

By accessing and using Gets2Give.com’s services through your Merchant Account, you agree to the following terms and conditions and any policies, guidelines or amendments thereto that may be presented to you from time to time (collectively, the “Terms”). If the law or our functionality changes and affects the services we are able to offer you through your Merchant Account, we may need to change these Terms or our features from time to time. If at any time you do not agree with these Terms, or you do not agree to any modified Terms, then you must immediately stop using your Merchant Account and cease your participation in the program. Unless you have agreed otherwise in writing with Gets2Give.com then these Terms govern your use of our services through your Merchant Account. In the event of a conflict between these Terms and the terms of a “Featured Deal” created or requested in your account in the Merchant Account, these Terms shall govern. You and Gets2Give.com may be referred to throughout these Terms individually as a “Party” and collectively as the “Parties”.

BY REGISTERING FOR OR USING GETS2GIVE.COM’S MERCHANT SELF-SERVICE OFFERING, MERCHANT AGREES TO FOLLOW AND BE BOUND BY THESE TERMS AND CONDITIONS.

 

Section 1: DEFINITIONS

 

  • (a) “Featured Deal” means an offer for a Deal that is featured on www.Gets2Give.com and actively promoted by Gets2Give.com in its Deal e-mails and social media to segments of its subscriber base. A merchant can specify and submit the terms of a Featured Deal into Gets2Give.com via (1) verbal consultation with a Gets2Give.com sales representative, (2) through one of the web forms on Gets2Give.com website, or (3) a signed confirmation form; (b)Deal means the paper certificate or electronic certificate that evidences a customer’s purchase of a Deal and contains the terms of, and unique redemption information for, n Deal; (c) a Deal “Purchase Value” means the amount that a customer pays for a Featured Deal offered on www.Gets2Give.com; (d) a Deal “Promotional Value” is the portion of the Deal’s value for which the purchaser does not pay. (For example, a purchaser pays $25 for a Deal with a $50 Full Deal Value. $25 is the Promotional Value.) (e) a Deal “Full Deal Value” means the full value for which the holder of a Featured Deal will be able to redeem it on or before the Promotional Value Expiration Date. A Deal’s Full Deal Value is equal to the sum of its Promotional Value plus its Purchase Value and is stated on the front of the Featured Deal, (f) a Deal “Promotional Value Expiration Date” is the date after which the Deal Promotional Value may no longer be used and the Featured Deal value is reduced to its Purchase Value, and (g) Sales Period(s) means the period or periods of time You establish in your Merchant Account, during which You intend to make an Deal available for purchase.

 

Section 2: DEAL MERCHANT ACCOUNT

 

2.1 Merchant Account. In order to use certain services, you are required to provide current, accurate, contact, and other information as part of the registration process for a merchant and/or continued use of the services offered by Gets2Give.com. Your Merchant Account is a special account that will facilitate your use of various services offered to businesses by Gets2Give.com. You are responsible for maintaining the confidentiality of your user account password, and are responsible for all activities that occur under your account. You agree to immediately notify us of any unauthorized use of your password or Merchant Account or any other breach of security. Gets2Give.com is not and will not be liable for any loss or damage arising from your failure to comply with this requirement, In addition to the other rights set forth herein, Gets2Give.com reserves the right to refuse service to you or any other merchant at any time without notice for any reason. Gets2Give.com may offer certain optional features within your Merchant Account. If you choose to use such features, then you may be required to agree to separate terms that are specific to those features that will be disclosed and available at the time you elect any such option. You represent that you are of legal age to form a binding contract and have full power, capacity and authority to accept these Terms. If You are accepting on behalf of your employer or another entity, you represent that you have full legal authority to bind your employer or such entity to these Terms of. If you don’t have the legal authority to bind, please ensure that only an authorized person from your entity consents to and accepts these Terms.

 

2.2 Merchant Center: The Merchant Center is the section of your Deal Merchant Account (in contrast to your individual user account) where You as a business owner may directly, or allow an authorized employee to access your business profile, information about past Featured Deals that have run through the Deal services and a tool to help You manage the Deal by tracking Featured Deal redemption. Within your business profile, You can add or edit information about your business including locations, reviews, social media links, pictures, questionnaire and addresses to which Gets2Give.com should send payments. We may add other functionality from time to time. You may submit a deal request form to launch a new Featured Deal and suspend or stop a particular Active Featured Deal in your Merchant Account. You may also review analytics for any of your earlier Deals and review upcoming Featured Deals that have been scheduled and view Deals in any status. Within the redemption section, You can submit Featured Deal redemption data for any type of Deal, view statistics across your Deals and download customer lists.

 

Section 3: DEAL SELF-SERVICE MERCHANT PROGRAMS

 

3.1 Creation of Deals. If You elect to participate in any Featured Deal, You must define the conditions of, and supply the content and images to describe and illustrate your Deals and their terms by completing and submitting a deal request through your account in the Merchant Account. Your submission of a deal request is not binding on Gets2Give.com until featured by Deal on its website (at which point it becomes an “Active Deal”), provided however, that Gets2Give.com has no obligation to accept or feature, any Deal submitted through your Merchant Account as a deal request. You are responsible and liable for all Deal content and terms, and for Deal or any purchaser’s use or reliance thereon. In creating your Deal, You may not (a) to sell anything that is prohibited from being offered or advertised on the terms on which You are making them available; (b) include any content that violates or infringes in any way upon the rights of others; or (c) include any material that is unlawful, threatening, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane or otherwise objectionable, which encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law.

 

3.2 Promotion of Deals. If Gets2Give.com accepts a particular deal request, Gets2Give.com will promote the Deal(s) described in the deal request using any method and through any medium that Gets2Give.com deems appropriate in its sole discretion, including e-mail, mobile applications and any other type of electronic interface or distribution channel owned, controlled or operated by Gets2Give.com. Gets2Give.com further reserves the right, but has no obligation, to promote the Deal through its affiliates and third party business partners from time to time. Gets2Give.com will promote your Deal to Deal customers and potential customers based on geographic or other geo-locational data but will determine the customers and potential customers to whom your Deal is actually promoted and made available in its sole discretion.

 

3.3 Sale Periods. Gets2Give.com will use its best efforts to promote your Deal during the Sale Period(s) indicated in the deal request, if any, but reserves the right to (a) start the Sale Period at a time or date that is different from the time(s) You indicated in the deal request; (b) stop promoting your Deal at any time; and (c) to limit the frequency and duration of Sale Periods.

 

3.4 Distribution of Deal. Purchasers, or their authorized transferees, may redeem your Deal by presenting their Deal to You as a printed certificate, through their mobile devices or any other media that Gets2Give.com may adopt from time to time. Gets2Give.com will authorize for use, and make a Deal available to the purchaser of your Deal (or will distribute it to a designated transferee on behalf of the purchaser, if any is designated at the time of purchase). Gets2Give.com will activate and otherwise authorize a Deal for use once it has received payment of the Deal Purchase Value. The Deal will include any restrictions or limitations on the use of the Deal You have specified in the deal request.

 

3.5 Responsibility for Deal. You acknowledge that You are the exclusive seller of your Deal and the “issuer” of the Deal. You also are responsible and liable for: (a) making your Deals available through the Deal services; (b) fulfilling your Deals with respect to all Deal holders, and (c) supplying all goods and/or services specified in the Deal.

 

3.6 Redemption Obligations. You must comply with your obligations specified in the Merchant Account, any deal request and these Terms. In addition, when redeeming Deals, You must: (a) honor the Deal during the time period specified on, and otherwise pursuant to the terms of, your Deals; (b) log the Deal redemption into the Gets2Give.com system using one of the methods we make available to You, for Gets2Give.com Deals only, this must be completed within seven (7) days after the Deal is presented to You; (c) handle all customer service in connection with the redemption of the Deal; (d) honor any Deals presented by an individual, even if that individual was not the Purchaser, unless otherwise specified in the Special Instructions (as defined below) reflected on the face of the Deal or You reasonably believe that individual obtained the Deal in an unauthorized or illegal manner. If You believe that is the case, You must immediately contact Gets2Give.com and explain the circumstances; and (e) comply with the terms and conditions stated on the Deal without modification and without imposing any restrictions or additional charges or penalties that are not expressly stated in the Deal. You must specify all generally applicable policies (e.g., cancellation policies that apply to all customers), restrictions and contractual arrangements (e.g., liability waivers required for all customers) applicable to the Deal (“Special Instructions”) in the deal request, and Gets2Give.com shall have no liability for your failure to do so.

 

3.7 Expiration Periods. You must allow Deal holders to redeem their Deal for the Full Deal Value until the Promotional Value Expiration Date unless the Law requires a longer period. If You allow a Deal holder to schedule an appointment to redeem a Deal for goods or services after the Promotional Value Expiration Date, You must honor the Deal for the Full Deal Value on that later date. You acknowledge that notwithstanding anything contained in this Agreement, any Deal, the Purchase Value of the Deal shall never expire unless explicitly permitted by Law. After the Promotional Value Expiration Date, You may, to the extent permitted by Law, honor the Purchase Value of Deal by either: (x) continuing to redeem Deal for the Deal Value as though the Deal Value has not yet expired, (y) redeeming Deal for your goods and/or services valued at up to the Purchase Value, or (z) redeeming Deal for a cash amount equal to the Purchase Value.

 

3.8 Your Partners. You may subcontract or delegate portions of your performances required by this Agreement with respect to a particular Deal to a third party. If You subcontract or delegate to Partners with respect to fulfilling a particular Deal, You will remain solely responsible and liable for all your obligations, including financial obligations, under this Agreement and You will be solely responsible for all acts and omissions of your Partners. You must require your Partners to comply with all applicable restrictions and obligations imposed on You under this Agreement, and You will be solely responsible for your financial and contractual relationship with your Partners.

 

3.9 License to your Content. You hereby grant Gets2Give.com a non-exclusive, worldwide, transferable and sub-licensable license to use, copy, distribute, display and perform any trademarks, photographs, graphics, artwork, videos, sound clips, text, and other content or materials that You provide to Gets2Give.com in your Merchant Account or otherwise use to describe your Deal (“your Content”) in any and all media or formats in connection with Deal fulfillment of its rights and obligations under this Agreement, including the promotion and distribution of Deals. Gets2Give.com acknowledges that all goodwill and improved reputation in respect of and associated with your Content shall inure to your sole benefit.

 

Section 4: PAYMENT TERMS

 

4.1 Generally. Payment terms governing any Deal submitted through your Merchant Account are as set forth below unless Payment terms for any non-Programs Deal are contained in the applicable contract You entered with Gets2Give.com outside your Merchant Account.

 

4.2 Payment Under Deal Programs: Unless You have a separate agreement with Gets2Give.com that expressly overrides these terms. Gets2Give.com will pay You 80% of the purchase price of the Deal minus one half of the credit card processing fee for that transaction. Payment will be made to you by check on the 10th (tenth) day of the month following the month of the Sale of the Deal by the customer. Gets2Give.com will write one check to you for all Deals sold in the previous month, through all Deal venues (Featured Deal and More Deals Page).

 

4.3 Payment Method. Payments will be made by check and mailed to You at the address you have provided in your Merchant Account.

 

Section 5: TERM AND TERMINATION

 

5.1 Term. The Agreement commences on earlier of the date on which You first access the Merchant Center thought your Merchant Account, accept the Merchant Account Terms, or submit a deal request. The Agreement initiated as of such date will continue until the last date on which any holders of a Deal issued are entitled to redeem any portion of a Deal issued by You for their Deal Value unless otherwise earlier terminated as set forth below.

 

5.2 Termination. Deal may terminate this Agreement and suspend your access to the Merchant Account immediately upon written notice to You if: (a) You violate your redemption obligations with respect to any Deal made by You through Gets2Give.com in any context; (b) You fail to redeem or cause the redemption failure of any Deal for any reason, including but not limited to the sale or dissolution of your business, a violation of or a higher than expected number of purchasers, or (c) You violate any of the material terms of these Terms or any other agreement You have with Gets2Give.com.

 

5.3 Suspension of any Deal. Notwithstanding anything herein to the contrary, You may cancel or suspend any Deal through your account in the Deal Merchant Account.

 

5.4 Obligations Upon Termination & Survival of Relevant Provisions. Neither the expiration or termination of these Terms nor your suspension or cancellation of any Deal shall in any way affect the rights of any holder of a valid Deal, Deal obligation to pay for validly redeemed Deal, or modify or eliminate your obligation to redeem any valid Deal pursuant to its terms. All Terms and any sections of this Agreement that are logically intended and required to survive expiration or termination of this Agreement to achieve their intent, shall survive without limitation.

 

Section 6: REPRESENTATIONS AND WARRANTIES

 

6.1 By Both Parties. Each Party represents and warrants to the other that: (a) it has the power and authority to execute and deliver these Terms and perform its obligations hereunder; (b) it is an entity duly organized, validly existing and in good standing under the Laws of its jurisdiction of incorporation or formation; and it is duly qualified to do business and is in good standing in each jurisdiction where the conduct of its business, provision of its goods and/or services, or the ownership of its property requires such qualification; (c) this Agreement reflects its legal, valid and binding obligation, enforceable against it; and (d) it shall comply with all Laws applicable to its obligations under the Agreement.

 

6.2 By You. You represent and warrant to Deal that: (a) You and any Partner(s), as applicable, (i) are registered for the collection of sales, use and other similar taxes in all states and localities in which goods and/or services will be made available pursuant to the terms and presentation of the DEAL; and (ii) will collect and remit any and all applicable state or local sales, use, hotel occupancy, and other similar taxes that may apply to the redemption of the Deal or the supplying of goods or services; (b) your Content, your representations about your business, your redemption process for Deal, do not and will not infringe, misappropriate, or otherwise violate any intellectual property right or right of privacy or publicity of any third party; (c) You hold all necessary Regulatory and Authorization Documents, if any, required to make any Deal described in any deal request hereunder, through Deal services; (d) You will provide the goods and services made available through any Deal consistent with industry best practices; and (e) You have all rights necessary to grant the licenses set forth in these Terms.

 

6.3 NO FURTHER REPRESENTATIONS. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. GETS2GIVE.COM DOES NOT WARRANT OR GUARANTEE THAT ANY DEAL AS WE PRESENT IT OR THE DEAL WILL BE ERROR-FREE OR THAT ANY ERRORS, OMISSIONS OR MISPLACEMENTS WILL BE CORRECTED, OR THAT THE DEAL WILL RESULT IN ANY REVENUE OR PROFIT FOR YOU. GETS2GIVE.COM MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE GETS2GIVE.COM WEBSITE OR ANY OTHER PROMOTION OR DISTRIBUTION METHOD USED BY GETS2GIVE.COM (INCLUDING WITH RESPECT TO ITS UNINTERRUPTED OR ERROR-FREE OPERATION) AND/OR THE ACCURACY, ADEQUACY, RELIABILITY, AVAILABILITY, TIMELINESS, COMPLETENESS, SUITABILITY OR OTHER CHARACTERISTICS OF THE INFORMATION AND MATERIALS CONTAINED ON OR PRESENTED THEREIN. THE GETS2GIVE.COM’S WEBSITE AND OTHER PROMOTION OR DISTRIBUTION METHODS USED BY GETS2GIVE.COM AND ALL RELATED INFORMATION AND MATERIALS ARE PROVIDED “AS IS”, WITHOUT ANY WARRANTY OF ANY KIND, AND ON AN “AS AVAILABLE” BASIS.

 

Section 7: INDEMNIFICATION

 

7.1 By You. You, at your sole cost and expense, shall defend, indemnify and hold Gets2Give.com, its affiliated and related entities, and any of their respective officers, directors, agents and employees, harmless from and against any third party claims, lawsuits, actions, proceedings, investigations, penalties, damages, losses or expenses (including but not limited to attorney’s fees and costs) (collectively, “Claims”) arising out of or relating to any of the following: (a) your or any Partner’s (i) fraud, willful misconduct, or gross negligence or (ii) breach or alleged breach of this Agreement; (b) any claim for state sales, use, hotel occupancy, or any other similar tax obligations (including any penalties, interest or other additions to tax) arising from the sale and subsequent redemption of a Deal; (c) any claim by any local, state or federal governmental entity for any unclaimed property regarding Deal, including but not limited to, any claims for penalties and interest; (d) the goods and/or services provided by You, including but not limited to, any claims for false advertising, injuries, illnesses, damages, or death; (e) any Deal, including your provision of incomplete or inaccurate or information applicable to the Deal; or (f) your Content; and (g) any infringement, misappropriation, or other violation, of any patent, trademark, copyright, publicity, privacy, trade secret, or other right of any third party by You, or your Content or use thereof.

 

7.2 By Deal. Gets2Give.com, at its sole cost and expense, shall defend, indemnify and hold harmless You and your officers, directors, agents and employees, from and against any and all Claims brought against any of You arising out of or in connection with (a) Deal breach or alleged breach of this Agreement or (b) any infringement, misappropriation or other violation of any patent, trademark, copyright, publicity, privacy, trade secret, or other right of any third party by Gets2Give.com.

 

7.3 Indemnification Process. The Party seeking indemnification under this Section 5 shall promptly notify the other Party in writing of any Claim for which it seeks indemnification; provided that such indemnified Party’s failure to timely provide such notice shall not relieve the indemnifying Party of its indemnification obligations unless it can demonstrate actual prejudice as a result of such failure. In the event Gets2Give.com is the indemnifying Party, Gets2Give.com shall have the right to, upon written notice to You, elect to assume control of the defense and settlement of any such Claim, and You will have the right to participate and be represented in the defense of such Claim by your own counsel and at your own expense. You shall not settle any Claim for which You are to be indemnified hereunder without Gets2Give.com prior written consent, which consent shall not be unreasonably withheld or delayed.

 

Section 8: COMPLIANCE WITH LAW AND AUTHORIZATIONS

 

8.1 General. You will ensure that the terms of any Deal, any Special Instructions, and your activities under the Agreement, including your redemption of the Deal, comply with any and all state, federal and local laws, rules regulations, and orders, including the Credit Card Accountability, Responsibility, and Disclosure Act of 2009 and all laws that govern false, unfair and deceptive practices, Deal, gift cards, coupons, and/or gift certificates (collectively “Laws”).

 

8.2 Health and Safety. You represent and warrant that all good or services provided in connection with any Deal You authorize or may create, are safe and comply with all applicable Laws regarding health and safety, fire, and hygiene standards (collectively, “Health Laws”). At Gets2Give.com’s request, You will promptly provide copies of any applicable facility operating license(s), or similar credentials or documents evidencing you and your facility(ies) compliance with the Health Laws. You shall ensure that your facilities and operations remain in compliance with all applicable Health Laws during the term of this Agreement. Gets2Give.com reserves the right to immediately terminate its relationship with You and to refuse to feature any Deal You authorize or may create, if it believes You do not fully comply with Health Laws.

 

8.3 Authorization Documents. If any Deal created under a separate contract between You and Gets2Give.com, or an applicable deal request indicates that your Deal features goods, services, or brands that You do not independently own, You hereby represent and warrant that You have all rights and permissions necessary to provide or use such goods, services or brands as part of any Deal and to grant the rights to your Content granted under this Agreement. Prior to making such Deal or creating the deal request, You must provide Gets2Give.com with letters of authorization or other documentation evidencing such rights and permissions (“Authorization Documents”). Unless otherwise retained by Gets2Give.com, Authorization Documents should be attached to and available in, your account in the Deal Merchant Account. Even if Gets2Give.com has accepted a particular deal request, Gets2Give.com shall have no obligation to promote any Deal until it has received Authorization Documents it reasonably considers it to be satisfactory. You must immediately notify Gets2Give.com if, at any time during the term of the Agreement, You no longer have the same rights and permissions evidenced in the Authorization Documents and must not create a deal request or make a deal until You have all appropriate documentation in place.

 

8.4 Regulatory Documents. If any Deal created under a separate contract between You and Gets2Give.com, or an applicable deal request indicates that your Deal features goods or services that require licenses or approvals from governmental authorities or are otherwise subject to regulatory authorizations, You hereby represent and warrant that You have all obtained all governmental licenses, approvals, and authorizations necessary to provide the goods or services included as part of the Deal. You shall provide Gets2Give.com with copies of licenses, proof of authorization or other appropriate documentation evidencing such regulatory permissions (“Regulatory Documents”), and such Regulatory Documents and such Regulatory Documents must be attached to and available in, your account in the Deal Merchant Account. Deal shall have no obligation to promote your Deal until it has received Regulatory Documents it reasonably considers to be satisfactory. You must immediately notify Gets2Give.com if, at any time during the term of the Agreement, You no longer have the same rights and permissions evidenced in the Regulatory Documents and must not create a deal request or make a deal until You have all appropriate documentation in place.

 

Section 9: CONFIDENTIALITY

 

9.1 Confidential Information. Each Party agrees that the terms set forth in these Terms and your Merchant Account are confidential, and both agree that any information designated by the other Party as “confidential,” and any information that the recipient should reasonably expect to be confidential under the circumstances (collectively, “Confidential information”). Confidential Information does not include information that (a) was, or becomes, publicly known through no action of the receiving Party, (b) is already in the legitimate possession of the receiving Party prior to its disclosure; (c) is obtained by the receiving Party without a breach of any third party’s obligations or violation of Law or (d) is independently developed by the receiving Party.

 

9.2 Obligation. Each Party shall take reasonable precautions to protect all Confidential Information, and will only disclose Confidential Information to its employees on a need-to-know basis. You may also disclose Confidential Information to your Partners if they have signed a confidentiality agreement that requires them to protect the Confidential Information in at least the same manner specified in this Agreement. If a Party is required by Law to disclose the other Party’s Confidential Information, it shall promptly notify the other Party and shall cooperate with the other Party to obtain a protective order or to otherwise limit the disclosure of the Confidential Information.

 

9.3 Irreparable Harm. Each Party agrees that, in the event of an actual, alleged or threatened breach of Confidentiality as established by this Agreement the other Party is likely to suffer immediate and irreparable harm, and may seek a temporary restraining order, injunction or other form of equitable relief without the posting of any bond or other security.

 

Section 10: INTELLECTUAL PROPERTY RIGHTS; CUSTOMER DATA

 

10.1 Deal IP. You acknowledge that Gets2Give.com owns all right, title, and interest, including all intellectual property rights, in the Gets2Give.com website, trade name, logos, trademarks, and service marks, and any content, data, software, technology, tools, or business methods used by Gets2Give.com to develop, promote, market, sell, generate, or distribute Deals andGets2Give.com and otherwise perform under this Agreement (collectively the “Deal IP”). With respect to any individual Deal You create, You may use Gets2Give.com’s name, trademarks, and logos to publicize to your customers and potential customers the fact that You are featuring that Deal through a particular Program. This limited right to use Deal branding is applicable only during the period from the start of the Sales Period through an applicable Deal Promotional Value Expiration unless You have an Active Deal that is recurring, in which case, You may continue to accurately describe your relationship to Gets2Give.com in your marketing material subject to Gets2Give.com’s ongoing consent. Notwithstanding the above, You shall not use or display the Deal IP in any manner that states or implies that Gets2Give.com has endorsed or approved the Deal or your products or services. Any use of Deal IP must comply with any Deal usage guidelines posted on the Gets2Give.com’s Site or provided to You from time to time. All goodwill and improved reputation in respect of and associated with the Deal IP shall inure to the sole benefit of Deal. Except as expressly set forth in these Terms or a particular deal request, You have no right, license, title or interest in or to any Deal IP, and shall not use, distribute, transfer, copy, download, display, modify, perform or create derivative works of the Deal IP without the express written consent of Deal. You shall not translate, reverse engineer, decompile or disassemble the Deal IP.

 

10.2 Customer Data. You acknowledge that Gets2Give.com owns all data collected by, or on behalf of, Gets2Give.com pursuant to this Agreement, including all information and data of individuals who purchased Deal (”Customer Data”). Gets2Give.com shall provide You with access to Customer Data solely to the extent necessary for You to redeem and/or verify the validity of Deal. Except to the extent required by Law, You may not use Customer Data for any other purpose. You shall, and shall ensure that any Partners you may work with take commercially reasonable efforts to protect the security of Customer Data and comply with all Laws relating to the processing of such Customer Data. If You become aware of, or suspect, any unauthorized access to or use of Customer Data, You shall immediately notify Gets2Give.com, and shall cooperate with Gets2Give.com in the investigation of such breach and the mitigation of any damages. You shall bear all resulting costs and expenses incurred by Gets2Give.com to comply with applicable data breach notification Laws.

 

Section 11: LIMITATIONS OF LIABILITY; INSURANCE

 

11.1 LIMITATION OF GETS2GIVE.COM LIABILITY. GETS2GIVE.COM’S SOLE AND COMPLETE LIABILITY TO YOU FOR ANY CLAIMS ARISING OUT OF RELATING TO THIS AGREEMENT, INCLUDING ANY ERRORS, OMISSIONS BY GETS2GIVE.COM OR ITS AFFILIATES OR ANY OTHER ACTIVITY RELATED TO ANY DEAL REQUEST OR THESE TERMS SHALL BE LIMITED TO THE AGGREGATE NET AMOUNT ACTUALLY PAID TO YOU PURSUANT TO THE DEAL REQUEST PURSUANT TO WHICH THE CLAIM PERTAINS, PRIOR TO THE DATE THE CLAIM AROSE. IN NO EVENT SHALL GETS2GIVE.COM BE LIABLE TO YOU, ANY PARTNER OR ANY OTHER THIRD PARTY FOR ANY CLAIMS RELATING TO THE USE OF YOUR GOODS AND SERVICES, INCLUDING BUT NO LIMITED TO CLAIMS RELATING TO FALSE ADVERTISING, INJURIES, ILLNESSES, DAMAGES, OR DEATH.

 

11.2 NO CONSEQUENTIAL DAMAGES. EXCEPT FOR (A) INDEMNIFICATION OBLIGATIONS HEREUNDER OR (B) EITHER PARTY’S (OR WITH RESPECT TO YOU, YOUR PARTNERS’) (I) VIOLATION OF SECTION 8 (COMPLIANCE WITH LAW AND AUTHORIZATIONS), SECTION 9 (CONFIDENTIALITY), OR SECTION 10 (INTELLECTUAL PROPERTY RIGHTS; CUSTOMER DATA) OR (II) FRAUD, WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, IN NO EVENT SHALL EITHER PARTY BE LIABLE OR OBLIGATED TO THE OTHER PARTY OR ANY THIRD PARTY IN ANY MANNER FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE, OR INDIRECT DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGES IN ADVANCE.

 

11.3 Insurance. You represent and warrant that You have, and shall maintain at your expense and at all times during the term of this Agreement, all types of liability insurance policies, with coverage in amounts that are customary for merchants and/or service providers in your region, consistent with best industry practices and sufficient to fully comply with applicable Law and fulfill your obligations under this Agreement and any other agreement You have with Gets2Give.com under which You make any Deals to customers. Upon Gets2Give.com request, You shall provide proof of your maintenance of such policies and provide assurances that indicate that Gets2Give.com will be covered by your insurance policies in the event of a claim arising under or in relation to, this Agreement or any Deal You authorize through Gets2Give.com’s services.

 

Section 12: Binding Arbitration

 

12.1 When using your Merchant Center Account to operate with Gets2Give.com You agree that (1) these Terms and all disputes, controversies, or claims arising out of or relating to this Agreement, communication through, any Deal made, or any deal request created or approved through, the Deal Merchant Account shall be resolved exclusively by final and binding arbitration administered by the American Arbitration Association (“AAA”) and conducted before a single arbitrator pursuant to the applicable Rules and Procedures established by AAA (“Rules and Procedures”); (2) the arbitration shall be held at a location determined by AAA pursuant to the Rules and Procedures (provided that such location is reasonably convenient for You), or at such other location as may be mutually agreed upon by You and Gets2Give.com; (3) the arbitrator shall apply North Carolina law consistent with the Federal Arbitration Act and applicable statutes of limitations, and shall honor claims of privilege recognized at law; (4) there shall be no authority for any claims to be arbitrated on a class or representative basis; arbitration can decide only your and/or Gets2Give.com’s individual claims; and the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated; (5) in the event that You are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Gets2Give.comwill pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive; and (6) with the exception of subpart (4) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures established by AAA, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subpart (4) is found to be invalid, unenforceable or illegal, then the entirety of this Arbitration Provision shall be null and void, and neither You nor Gets2Give.com shall be entitled to arbitrate their dispute.

 

Section 13: MISCELLANEOUS

 

13.1 Electronic Communications and Notices. You acknowledge that communications between the Parties often use electronic means. For contractual purposes, You hereby (a) consent to receive communications from Gets2Give.com in an electronic form and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Gets2Give.com provides to You electronically satisfy any legal requirement that such communications would satisfy if it were be in writing. The foregoing does not affect your statutory rights. Any notice required or permitted hereunder shall be provided in writing, and shall be deemed delivered when (a) delivered by electronic mail to your e-mail address, as You provided in your account in the Deal Merchant Account from time to time, or (b) regardless of whether or not actually received, 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 applicable Party at the address set forth in your case, in your Merchant Account account, and in Gets2Give.com’s case, to Gets2Give.com, 215 West Broad Street Suite C, Statesville North Carolina, 28677 a copy to the attention of the Legal Department.

 

13.2 Force Majeure. Neither Party shall be liable for any default or delay in the performance of its obligations under this Agreement due to acts of God, terrorism, natural disasters, earthquakes, fire, riots, floods, and other similar events, to the extent such event is beyond the reasonable control of such Party and only for the duration of such event.

 

13.3 Relationship of the Parties. The Parties are independent contractors. Nothing in this Agreement shall be deemed or construed by the Parties hereto, nor by any third party, as creating a joint venture, partnership, franchise, or an agency relationship between the Parties. Neither Party has the authority, without the other Party’s prior written approval, to bind or commit the other Party in any way. Gets2Give.com is not a vendor or co-vendor of your goods and services.

 

13.4 Agreement. This Agreement constitutes the entire understanding between the Parties relating to the Programs and your obligations in making any Deals listed in any deal request, and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter. No part of this Agreement may be amended or modified except by mutual written agreement of the Parties. The terms of any other prior written agreement between You and Gets2Give.com pertaining to any Deal shall govern to the extent that there is a conflict between those terms and the terms of this Agreement unless such other Agreement expressly references the Merchant Center Terms and by its terms, expresses an intent to override a particular provision hereof.

 

13.5 Interpretation. The section headings of this Agreement are for purposes of reference only and shall not in any way limit or affect the meaning or interpretation of any of the terms hereof. References to a section include references to all subsections of that section.

 

13.6 Invalidity of a Provision. If any provision of this Agreement should be held to be invalid or unenforceable the validity and enforceability of the remaining provisions of this Agreement shall not be affected and the Parties shall negotiate an equitable adjustment in the provisions in order to affect, to the maximum extent permitted by Law, the purpose of this Agreement.

 

13.7 Waivers. One or more waivers of any covenant, term or condition of this Agreement by either Party shall not be construed as a waiver of a subsequent breach of the same covenant, term or condition.

 

13.8 Assignment. You may not assign or transfer any of your rights, or delegate any of your obligations, under this Agreement without Gets2Give.com’s prior written consent, and any attempt to do so shall be void and unenforceable.

 

13.9 Successors and Assigns; No Third Party Beneficiaries. This Agreement shall be binding upon and inure to the benefit of, the Parties and their respective permitted successors and assigns. There are no third party beneficiaries to this Agreement, except as expressly set forth herein.