As of 05/27/2015
This agreement ("Agreement”) is entered into by GiftFly LLC, its subsidiaries, and affiliates ("GiftFly”) and ("Merchant”). The Agreement is effective as of the date it is fully signed or otherwise executed by both parties ("Effective Date”).
GiftFly offers an electronic gift card service ("GiftFly Service”) through its website and other hosted technology primarily located at www.GiftFly.com ("Site”). The GiftFly Service allows merchants to create, sell to its users, track and market electronic gift cards to be used by the recipient at a specific merchant ("Participating Merchant Gift Card"). Merchant wishes to participate in the GiftFly service. Accordingly, GiftFly and Merchant agree as follows:
For purposes of this Agreement, the terms below shall have the following meanings:
“Confidential Information” means the terms of this Agreement, User Data, and any other information shared with Merchant by GiftFly in connection with the GiftFly Service.
"GiftFly Content” means any content owned or licensed by GiftFly, including such content provided by GifFly to Merchant for use in connection with the GifFly Service, including, but not limited to, trademarks, service marks, logos, domain names, trade names, graphics, images, text, software, and copyrightable material.
"GiftFly User” means any user of the GiftFly Service, including the purchaser or recipient of a GiftFly eGift card.
"Merchant Content” means any content owned or licensed by Merchant (other than from GiftFly), including such content provided by Merchant to GiftFly for use in connection with the GifFly Service, including, but not limited to, trademarks, service marks, logos, domain names, trade names, graphics, images, text, software, and copyrightable material.
“User Data” means any and all information relating to a GiftFly User including, but not limited to, name, address, email address, telephone number, other contact information, financial information, information relating purchases or preferences, and any other identifying information.
Subject to Merchant’s execution of this Agreement and GiftFly’s acceptance thereof, Merchant shall be permitted to participate in the GiftFly Service during the term of this Agreement. Merchant shall comply with all terms of this Agreement and the GiftFly Service. GiffFly shall have no obligation to issue any Participating Merchant Gift Cards until Merchant has been permitted to participate.
Upon the purchase of a Participating Merchant Gift Card, successful delivery to the recipient, and receipt of the funds from the GiftFly User ("Purchase”), GiftFly will initiate the transfer one hundred (100%) percent of the total value of the Participating Merchant Gift Card less normal credit card processing cost and, if applicable, any GiftFly Convenience Fees two business (2) days ("Payout Period”) after purchase into the Participating Merchant’s designated PayPal or bank account, respectively.
As part of the sign-up process Merchants are not required to immediately assign a PayPal or Bank account for funding. GiftFly will notify the Merchant by email and/or subsequent phone messages that its first funds are available for deposit and that in order to be funded the Merchant must immediately designate a PayPal or Bank account. Any Merchant that has not designated a PayPal or Bank Account for funding within 60 days after the first funds are available for deposit will be issued a check addressed to the Merchant address on file for a $20 processing fee.
To protect against illegal or detrimental activity and to protect merchants and consumers, GiftFly reserves the right, at its sole discretion, to withhold amounts in certain circumstances including, but not limited to, frequent purchases for a single recipient using a single credit card and/or large amounts outstanding for a Merchant and/or whereby Merchants are not easily identifiable as legal entities with ongoing transparent business operations.
GiftFly does NOT automatically charge merchants or customers a Convenience Fee on Purchase including Purchases using promotional offers. Merchants have the option at any time to either: (i) pass along the Convenience Fee to the buyer's as reflected in the total purchase price paid upon checkout (at no charge to the Merchant) or (ii) accept the Convenience Fee which will be automatically deducted from a Purchase and reflected in net proceeds delivered to the Merchant's designated bank account or PayPal account. GiftFly's Convenience Fees are displayed at www.giftfly.com/pricing. The option to determine who pays the Convenience Fee can be found within a Merchant's Dashboard in the Settings section, Payouts tab.
There is no Convenience Fee assessed to merchants or customers for creating and distributing promotional gift card email offers using GiftFly's 5,000 free monthly email sends. However, any merchant gift card Purchases as a result of a promotional gift card offering on the platform will be assessed a Convenience Fee.
Promotional Giveaways & Flash gift card campaigns are free to customers and require no Purchase. Therefore, there is no Convenience Fee assessed to the Merchant or the customer to create and send these gift card offerings. However, there is a Convenience Fee ONLY on the value and number of gift cards successfully redeemed by customers and processed by the Merchant.
Please see Clover App Market for Pricing.
GiftFly may assess an additional fee $0.99 for each additional 1,000 emails sent over and above the advertised free emails allotted to each merchant per month.
Merchant is responsible for determining what, if any, taxes apply to the redemption of Participating Merchant Gift Cards and for collecting, reporting, and remitting the correct tax to the appropriate tax authority, if any. GiftFly is not responsible for determining whether taxes apply or for collecting, reporting, or remitting any taxes arising from any transaction with or by Merchant.
GiftFly reserves the right, in its sole discretion, to modify the terms of the GiftFly Service and Merchant’s participation therein. Such modifications shall be binding on Merchant upon written notice from GiftFly in accordance with the notice provisions in Section 9 below. If Merchant notifies GiftFly in writing that it rejects such modifications, this Agreement shall automatically terminate. Termination shall be effective on the tenth business day following the date of delivery of the notice as provided in Section 9 below.
Once accepted into the GiftFly Service, Merchant shall be permitted access to the GiftFly application used to process Participating Merchant Gift Cards ("Application”). In addition, GiftFly may provide other GiftFly Content to Merchant in connection with the GiftFly Service. GiftFly hereby grants Merchant a limited, nonexclusive, nontransferable, nonsublicensable, revocable license to use the Application and other GiftFly Content solely in connection with the GiftFly Service during the term of this Agreement.
Merchant may provide Merchant Content to GiftFly for use in connection with the GiftFly Service. Merchant hereby grants GiftFly a nonexclusive, worldwide, royalty free license to use such Merchant Content in connection with the GiftFly Service.
Merchant will comply with the Participating Merchant Gift Card terms and conditions, as set forth in GiftFly’s Terms of Service, available on the Site, and with all state, federal, and other laws applicable to gift cards. Participating Merchant Gift Cards do not expire, do 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 GiftFly if lost or stolen unless required by law.
Merchant will allow the recipient of a Participating Merchant Gift Card to redeem the full value of the card. Merchant is responsible for keeping track of the value and any unredeemed balance. Merchant is solely responsible for complying with any applicable escheat or abandoned or unclaimed property laws.
Confidential Information provided to Merchant pursuant to this Agreement is provided solely for use in connection with the GiftFly Service. Merchant may not use Confidential Information for any other purpose. Merchant agrees to take reasonable steps to safeguard the confidentiality of all Confidential Information and not to disclose Confidential Information to any other person or entity except as permitted under this Agreement or with GiftFly’s prior written consent.
All User Data relating to GiftFly Users provided by GiftFly, or its agents or partners, to Merchant in connection with the GiftFly Service shall be used by Merchant solely for the purpose of participating in the GiftFly Service. Merchant may not use User Data for any other purpose or combine or associate User Data with any other data it retains about a natural person. Merchant agrees that it will not share, transfer, or transmit User Data to any other person or entity except as permitted under this Agreement or with GiftFly’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 possession, custody, or control. All User Data is subject to GiftFly’s privacy practices as described in its Privacy Policy, available on the Site.
Any breach of this section shall be considered a material breach resulting in irreparable harm to GiftFly for which there is no adequate remedy at law. In the event of such a breach, GiftFly shall be entitled to injunctive relief in addition to any other appropriate relief.
Merchant represents and warrants to GiftFly, now and throughout the term of the Agreement, as set forth below. Merchant will notify GiftFly immediately if any of Merchant’s representations or warranties becomes inaccurate or untrue in any material respect during the term of the Agreement.
Merchant has the right and authority to enter, and perform its obligations under, the Agreement. Merchant is qualified to do business and is in good standing in each jurisdiction where the conduct of its business requires such qualification.
Merchant is registered for sales and other tax collection purposes in each jurisdiction in which Merchant’s goods or services will be provided.
Merchant owns all right, title, and interest in the Merchant Content and has the right to grant the licenses provided in this Agreement. The Merchant Content does not violate any applicable laws or infringe any copyright, trademark, other intellectual property, or any other right of any third party.
The GiftFly service, site, and all related content and materials are provided on an “as is” basis. To the fullest extent permitted by law, they are 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.
GiftFly does not warrant that theGiftFly service, site, or related content and materials is accurate, complete, reliable, current, or error-free, that it will meet your requirements, will be available at any particular time or location or without interruption, that defects or errors will be corrected, or that the site is free of viruses or other harmful components. Use of the GiftFly service and site is at merchant’s own risk and merchant is solely responsible for any loss or damage to property or data that may result.
GiftFly does not warrant, endorse, guarantee, or assume responsibility for any product or service purchased using a GiftFly eGift card, or any product or service advertised or offered by a third party through the site or the GiftFly service or through any hyperlinked website. GiftFly is not a party to any transaction between a GiftFly user and a participating 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. If these laws apply, some or all of the above disclaimers, exclusions, or limitations may not be applicable.
In no event shall GiftFly be liable for any direct, indirect, consequential, incidental, special, punitive, or exemplary damages, including but not limited to damages for loss of profits, goodwill, or use of property or data resulting from the use, inability to use, or unavailability of the GiftFly service, or any damages resulting from hacking, tampering, or other unauthorized access to or use of the site or the GiftFly service.
In addition, GiftFly’s total cumulative liability shall be limited to the amount actually paid by merchant to GiftFly 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 giftfly 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.
In addition to, and without limiting, the Limitation of Liability section above, GiftFly 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, acts of third parties, strikes, riots or other civil disturbances, accidents, fire, floods, earthquakes and other natural disasters, power outages, and communications and other system failures.
A "Material Breach” includes, but is not limited to, any breach by Merchant of Sections 3, 4, or 5 of this Agreement. In the event of a Material Breach, Merchant shall be obligated to reimburse GiftFly for any damages suffered by GiftFly, including any actual, incidental, and consequential damages.
Merchant agrees to indemnify and hold harmless GiftFly, and its officers, directors, employees, representatives, affiliates, successors, and assigns, against any and all claims by a third party relating to Merchant’s participation in the GiftFly Service including, but not limited to, claims relating to: (a) any actual or alleged breach of this Agreement by Merchant, including breach of the representations and warranties herein; (b) any claim for sales tax or any other tax obligation arising from the issuance or redemption of a Participating Merchant Gift Card or the provision of goods and/or services in connection therewith; (c) any claim by any local, state, or federal government entity for unredeemed Participating 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 Participating 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 GiftFly’s use thereof; (f) Merchant’s provision of goods, services, or information in connection with the GiftFly Service; and (g) Merchant’s use or handling of User Data.
This Agreement shall commence on the Effective Date and continue until terminated as provided herein.
GiftFly may terminate Merchant’s participation in the GiftFly Service at any time and for any reason by providing Merchant written notice of such termination. Termination shall be effective on the date of delivery of the notice as provided herein.
GiftFly may, in its sole discretion, and without liability to Merchant or any third party, terminate the Site or GiftFly Service at any time, for any reason, and without prior notice. This Agreement shall terminate upon termination of the GiftFly Service.
Merchant may terminate participation in the GiftFly Service at any time by providing GiftFly prior written notice at least ten (10) business days prior to termination. Merchant may separately delete the GiftFly Clover App without any prior written notice to terminate the use of the GiftFly Clover App only. Termination of the GiftFly Service shall be effective on the tenth business day following the date of delivery of the notice as provided herein. Termination of the GiftFly Clover App will be immediate.
A Merchant’s voluntary termination of the GiftFly Service (either written and/or by deleting the Clover App) or involuntary termination by GiftFly does not release the Merchant from any liability or obligations as a result of prior gift cards sold and that remain outstanding, prior promotion campaigns and/or fundraiser programs that remain outstanding as a result of using the GiftFly Service.
This Agreement may terminate automatically as provided in Section 3 above.
Except as provided otherwise herein, all rights granted to Merchant under this Agreement shall cease immediately upon termination. GiftFly shall not be obligated to issue any Participating Merchant Gift Cards on behalf of Merchant after termination. Merchant shall remain obligated to honor all Participating Merchant Gift Cards issued on behalf of Merchant prior to termination and to pay any amounts owed to GiftFly under this Agreement.
This section and the following additional sections shall survive termination: 2, 3, 4, 5, 6, 7, 9, 10, and 11.
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.
Notices to GiftFly must be sent by email to info@giftfly.com, or by one of the forms of mail delivery service described above to: GiftFly LLC, 111 Cherry Street, New Canaan, CT 06840, Attn: Legal.
Notices to Merchant must be sent by email to info@giftfly.com , or by one of the forms of mail delivery service described above to: GiftFly LLC, 111 Cherry Street, New Canaan, CT 06840, Attn: Legal.
These Terms shall be governed and construed in accordance with applicable federal law and the laws of the State of Virginia, without regard to its conflict of laws provisions or any other principles that may provide for the application of the laws of another jurisdiction.
You agree that any action at law or in equity relating to this Agreement shall be filed only in state or federal courts located in Fairfax County, Virginia, and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts in any suit, action, or proceeding arising out of these Terms.
The parties are independent contractors. Nothing in this Agreement shall be deemed or construed by the parties, nor by any third party, as creating a joint venture, partnership, franchise, or 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.
This Agreement is not intended, and shall not be construed, to create any rights or remedies in any other party, and no other party shall assert any rights as a third party beneficiary under this Agreement.
Merchant may not transfer or assign, by operation of law or otherwise, any rights or obligations under this Agreement without GiftFly’s prior written consent, and any attempted transfer or assignment without such consent shall be void. GiftFly may freely transfer or assign its rights and obligations under this Agreement to any third party without notice or consent. Subject to the foregoing, this Agreement shall be binding on and inure to the benefit of the parties and their respective successors and permitted assigns.
The failure of a party to exercise any right under, or to enforce any provision of, this Agreement shall not constitute a waiver of such right or provision. Whenever consent to, or approval of, an act by one party is required from the other party, the grant of such consent or approval shall not be deemed to waive or render unnecessary consent to or approval of any subsequent similar act.
If any provision of this Agreement is declared invalid by a court of competent jurisdiction, the remaining provisions shall not be affected and shall be interpreted and enforced as if the invalid provision had not been included. Upon such declaration of invalidity, the parties will negotiate in good faith to modify the Agreement to effect the original intent of the parties as closely as possible so that the transactions contemplated under the Agreement are fulfilled.
Subject to Sections 3.7 and 4.2, this Agreement sets forth the entire agreement between the parties relating to Merchant’s participation in the GiftFly Service and supersedes any prior or contemporaneous understandings or agreements.
Except as expressly permitted herein, amendments to this Agreement must be in writing and signed by both parties.
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.
This Agreement may be executed in counterparts with separate signature pages, which together shall constitute a single document.
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.
Merchant agrees that business with GiftFly 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.