R4U_merchant_account_terms_and_conditions

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  • 1. Merchant Account Terms and Conditions LAST UPDATED OCTOBER 6, 2011 By accessing and using R4U Offer’s services through your Merchant Account (asdefined below), you agree to the following terms and conditions and any policies, guidelinesor 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 offeryou through your Merchant Account, we may need to change these Terms or our programfeatures from time to time. You should review these Terms regularly. If at any time you donot agree with these Terms, or you do not agree to any modified Terms, then you mustimmediately stop using your Merchant Account and cease your participation in any R4UOffers self-service merchant program such as R4U Offers Stores and R4U Offers Now! (theself-service programs as they exist from time to time, the “Programs”). Unless you haveagreed otherwise in writing with R4U Offers, these Terms govern your use of our servicesthrough your Merchant Account. In the event of a conflict between these Terms and theterms of a deal (“Offer”) created or submitted via a Deal Request through your MerchantAccount (a “Deal Request” or “DR”), these Terms shall govern. You and R4U Offers may bereferred to throughout these Terms individually as a “Party” and collectively as the “Parties”. Section 1: DEFINITIONS 1.1 Definitions. (a) “Deal Request” or “DR” is a request you submit to R4U Offers tocreate an Offer for inclusion in a Program. The terms of the DR are specified and submittedby you in accordance with Section 3.1; (b) “voucher” means the paper voucher or electroniccertificate that evidences a customer’s purchase of an Offer and contains the terms of,and unique redemption information for, such Offer; (c) “the amount paid,” for the vouchermeans the amount that a purchaser pays for a voucher; (d) a voucher’s “Promotional Value”is the unpaid portion of the voucher’s value in excess of the amount paid. (For example, ifa purchaser pays €10 for a voucher with a €25 Full Offer Value, that voucher’s PromotionalValue would be €15); (e) a voucher’s “Full Offer Value” means the full value of the voucherfor which the holder of a voucher will be able to redeem it on or before the PromotionalValue Expiration, and is equal to the sum of its Promotional Value plus its amount paid; (f)if applicable, a voucher’s “Promotional Value Expiration” is the date and time after which a 1
  • 2. voucher’s Promotional Value may no longer be used (unless otherwise required by law), andafter which time and date, the voucher may only be redeemed for its amount paid unlessrefunded; (g) “Sales Period(s)” means the date (or dates) and period (or periods) of timean Offer will be available for redemption as specified in Section 3.1; (h) “R4U Offers Site”means, collectively, the R4U Offers website (www.r4uoffers.com.br) and other distributionchannels owned, controlled or operated by R4U Offers or e-mails, mobile applications orother types of electronic offerings; and (i) “R4U Offers” means R4U Offers, Inc. Section 2: R4U OFFERS MERCHANT ACCOUNT 2.1 Merchant Account. In order to use certain services, you are required to beregistered for a special account on the R4U Offers Site (your “Merchant Account”). YourMerchant Account will facilitate your use of various R4U Offers services and will allow you toprovide and receive current and accurate, contact and other information pertaining to yourrelationship with us. You are responsible for maintaining the confidentiality of your MerchantAccount password, and are responsible for all activities that occur under such account.You agree to immediately notify R4U Offers of any unauthorized use of your password orMerchant Account or any other breach of security related to the R4U Offers Site. R4U Offersis not and will not be liable for any loss or damage arising from your failure to comply withthis Section 2.1. In addition to the other rights set forth herein, R4U Offers reserves the rightto refuse service and/or access to the R4U Offers Site to you or any other merchant at anytime without notice for any reason. When using your Merchant Account and the R4U OffersSite to submit and manage other deals, you will be required to accept and comply withcertain terms and conditions applicable to merchants. R4U Offers may offer certain optionalfeatures or functionalities 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 thatwill be disclosed and available at the time you elect any such option. You represent that youare of legal age to form a binding contract and have full power, capacity and authority toaccept these Terms. If you are accepting these Terms on behalf of your employer or anotherentity, you represent that you have full legal authority to bind your employer or such entityto these Terms. If you don’t have the legal authority to bind your entity, please ensure thatonly an authorized person from your organization consents to, and accepts, these Terms. 2.2 Merchant Center. The Merchant Center is the section of your Merchant Account(in contrast to any individual user account you may maintain) where you as a businessowner may directly, or indirectly through an authorized employee or representative, accessyour business profile and information about past offers that have run through the Programand manage your offers by tracking voucher redemption. Within your business profile, you 2
  • 3. can add or edit information about your business including locations, reviews, social medialinks, pictures, questionnaire and addresses to which R4U Offers should send payments.You may use your Merchant Account to submit request to launch a new Program offer andsuspend or stop a particular Active Offer. You may also review analytics and statistics foryour Offers and view all Program offers in any status. Within the redemption section of yourMerchant Account, you can submit voucher redemption data for your Offers and downloadcustomerlists. Section 3: PROGRAM PARTICIPATION AND YOUR OFFER 3.1 Creation of Offers. By electing to participate in a Program, you shall define theconditions of, and supply the content and images to describe and illustrate, your Offer and itsterms, by completing and submitting a DR through your Merchant Account. Your submissionof a DR does not obligate R4U Offers to accept to the DR or to promote the Offer, and is notbinding on R4U Offers until R4U Offers actually promotes the Offer on the R4U Offers Site.At the point R4U Offers begins to promote your Offer to the public, the Sales Period beginsand the Offer becomes an “Active Offer” during such Sales Period. You are responsible andliable for all Offer content and terms, and for R4U Offers’s or any purchaser’s use or relianceon any of the foregoing. In creating your Offer, you may not: (a) offer to sell any goods orservices on terms or in a manner that is prohibited by law from being offered or advertised;(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 privacyor publicity rights, vulgar, obscene, profane or otherwise objectionable, which encouragesconduct that would constitute a criminal offense, give rise to civil liability or otherwise violateany Law. 3.2 Promotion of Offers. If R4U Offers accepts your DR, R4U Offers will promotethe Offer using any method and through any medium that R4U Offers deems appropriatein its sole discretion, including through e-mail, mobile applications and any other type ofelectronic interface or distribution channel owned, controlled or operated by R4U Offers.R4U Offers further reserves the right, but has no obligation, to promote the Offer throughits affiliates and third party business partners from time to time. R4U Offers will promoteyour Offer to R4U Offers customers and potential customers based on geographic or othergeolocational data, but will determine the customers and potential customers to whomyour Offer is actually promoted and made available in its sole discretion. If you indicate amaximum number of vouchers in the DR, R4U Offers will stop promoting your Offer oncesuch maximum is reached. 3.3 Distribution of Vouchers. Once R4U Offers has received payment from a purchaser 3
  • 4. of the amount paid, R4U Offers will authorize for use, and make a voucher available to,the purchaser of your Offer (or will distribute it to a designated transferee on behalf ofthe purchaser, if any is designated at the time of purchase). The vouchers will include anyrestrictions or limitations on the use of the voucher you have specified in the DR. Purchasers,or their authorized transferees, may then redeem the Offer by presenting their Vouchers toyou as printed certificates, through their mobile devices, or any other media that R4U Offershas adopted for voucher redemption. 3.4 Responsibility for Offer and Vouchers. You acknowledge that you are the exclusiveseller of your Offer and the issuer of the vouchers. You also are responsible and liable for:(a) the decision to make your Offer available through the R4U Offers services; (b) fulfillingyour Offer with respect to all voucher holders; and (c) supplying all goods and/or servicesspecified in the Offer. 3.5 Redemption Obligations. You shall comply with your obligations specified inthese Terms, the DR and other obligations regarding the use of your Merchant Account.In addition, when redeeming vouchers, you shall: (a) honor the vouchers during the timeperiod specified on, pursuant to the terms of, your Offer, and as required under applicablelaw(s); (b) for all vouchers issued under the Stores Program, log the voucher redemption intothe R4U Offers system using one of the methods R4U Offers makes available to you withinthirty (30) days of the voucher’s Promotional Value Expiration Date (if any); (c) handle allcustomer service in connection with the redemption and use of the vouchers; (d) honor anyvoucher presented by an individual, even if that individual was not the purchaser, unless (i)otherwise specified in the Fine Print (as defined below) or otherwise stated prominently onthe face of the voucher or, (ii) you reasonably believe that individual obtained the voucher inan unauthorized or illegal manner, in which case you shall immediately contact R4U Offersand explain the circumstances; and (e) comply with the terms and conditions stated on thevoucher without modification and without imposing any restrictions or additional chargesor penalties that are not expressly stated on the voucher. You shall specify all generallyapplicable policies (e.g., cancellation policies that apply to all customers), restrictions andcontractual arrangements (e.g., liability waivers required for all customers) applicable to theOffer (“Fine Print”) in the DR, and R4U Offers shall have no liability for your failure to do so. 3.6 Expiration Periods. (a) Now! Program. You shall allow voucher holders to redeemany valid vouchers for the Full Offer Value until the promotion’s stated date and time ofexpiration. You shall further allow voucher holders to redeem any valid Now! vouchersfor 24 hours after the underlying promotion time and date by: (a) continuing to redeemvouchers for the Full Offer Value as though the Full Offer Value has not yet expired or (b) 4
  • 5. redeeming the vouchers for your goods and/or services valued for the amount paid. R4UOffers will refund the amount paid to the purchasers of vouchers who have not printed orviewed a mobile version of their voucher 24 hours after the Promotional Value Expiration. (b)Stores Program; You shall allow voucher holders to redeem any valid vouchers for the FullOffer Value until the voucher’s stated Promotional Value Expiration unless the Laws requirea longer period. For any voucher presented after such voucher’s applicable PromotionalValue Expiration, you must continue to indefinitely honor the vouchers by: (a) continuing toredeem vouchers for the Full Offer Value as though the Full Offer Value has not yet expiredor (b) redeeming the vouchers for your goods and/or services valued for the amount paid.For vouchers issued through the R4U Offers Now! Program, following the Promotional ValueExpiration of such vouchers, R4U Offers will refund the amount paid to the purchasers ofvouchers who have not printed or viewed a mobile version of their voucher 24 hours afterthe Promotional Value Expiration. 3.7 Redemption Reporting and Recognition Periods. (a) For Now! Program offers: Allvouchers issued but not printed or viewed in a mobile format within 24 hours following theexpiration of an applicable Now! voucher’s Promotional Value Expiration (“Now! voucher useperiod”) will be deactivated by R4U Offers and all purchasers of the offer will be automaticallyrefunded. Any Now! vouchers redeemed by you after the Now! voucher use period are“Unauthorized Redemptions”. Unauthorized Redemptions are your sole responsibility. Youmay not report redemption data for Unauthorized Redemptions, and R4U Offers will notpay you for Unauthorized Redemptions. (b) For Stores Program offers: You shall accuratelyreport redemption data for all redeemed vouchers to R4U Offers within thirty (30) daysafter the vouchers’ Promotional Value Expiration Date (the “Redemption Reporting Period”).All vouchers issued but not reported by you during the Redemption Reporting Period(“Unredeemed Stores vouchers”) will be deactivated. Once the Redemption Reporting Periodhas passed, you may not alter your report. Beginning the day following, and extending fora period of up to thirty (30) days following the vouchers’ Promotional Value Expiration, R4UOffers will automatically refund purchasers of Unredeemed vouchers the amount paid ofUnredeemed vouchers to the customers holding such vouchers. Any vouchers redeemed byyou after the Redemption Reporting Period are Unauthorized Redemptions. UnauthorizedRedemptions are your sole responsibility. You may not report redemption data for UnauthorizedRedemptions, and R4U Offers will not pay you for Unauthorized Redemptions. 3.8 Your Third Party Merchants. You may subcontract or delegate portions of yourperformances required by these Terms with respect to a particular Offer to a third party(each, a “Third Party Merchant”). If you subcontract or delegate to Third Party Merchantswith respect to fulfilling such Offer, you will remain solely responsible and liable for (a) all 5
  • 6. your obligations, including financial obligations, under these Terms and (b) all acts andomissions of your Third Party Merchants. You shall require your Third Party Merchants tocomply with all applicable restrictions and obligations imposed on you under these Terms,and you will be solely responsible for your financial and contractual relationship with yourThird Party Merchants. 3.9 License to Your Content. You hereby grant R4U Offers a non-exclusive, worldwide,transferable, irrevocable, perpetual 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 R4U Offers in your Merchant Accountor otherwise use to describe your Offer (“your Content”) in any and all media or formatsin connection with R4U Offers’s fulfillment of its rights and obligations under these Terms,including the promotion of Offers and distribution of vouchers. 3.10 Acknowledgement of Strategic Sales Activity. Unless you specifically notify R4UOffers in writing otherwise, if you participate in the R4U Offers Now! Program, R4U Offersmay make your Offer available on the R4U Offers Site during a Sales Period for an amountpaid that is less than the amount paid you establish in your DR. If R4U Offers elects topromote your Offer to customers at any price that is less than the price you established,R4U Offers will: (i) calculate the Now! Aggregate Net Amount using the value established byyou; (ii) only promote a certain number of units at that reduced price, (iii) in no case makemore than any maximum number of units available, and (iv) not make your Offer availableon the R4U Offers Site at two different prices at the same time. 3.11 Press Release. R4U Offers may, in its sole discretion, include you in any pressrelease regarding the Offers described herein or identify you as a merchant. Section 4: PAYMENT TERMS 4.1 Generally. Payment terms governing your Offer are as set forth below, unlessyou have a separate written agreement with R4U Offers expressly modifying the terms ofyour payment under a particular Program. Payment terms for any non-Programs Offers arecontained in the applicable contract you entered with R4U Offers by accepting the terms andconditions governing your Merchant Account or otherwise. 4.2 Now! Payment Terms. For each Now! voucher that is printed or viewed in a mobileformat and not refunded by R4U Offers within thirty (30) days following the expiration of theapplicable Now! deal’s promotional value expiration (each, a “Now Validated Redemption”),you will be paid an amount equal to: the amount paid, less a per-voucher promotion and 6
  • 7. distribution fee of twenty percent (20%) of the Full Offer Value (such amount, the “NowRemittance Amount”). Unauthorized Redemptions will not be considered Now ValidatedRedemptions. R4U Offers will pay you the Now Remittance Amount for all then-NowValidated Redemptions (the “Now Aggregate Net Amount”). R4U Offers will establish theNow Aggregate Net Amount due for a particular deal thirty (30) days following the applicabledeals’ promotional expiration, and mail you a check for any Now Aggregate Net Amountsdue on a bi-weekly basis corresponding approximately with the 15th last day of the month. 4.3 Stores Payment Terms. For each voucher that is redeemed and for which youelectronically submit redemption data to R4U Offers through an authorized mode ofredemption, whether via customer mobile app, via merchant mobile app, or through yourMerchant Account (each, a “Stores Validated Redemption”), you will be paid an amountequal to: the amount paid, less a per-voucher promotion and distribution fee of twentypercent (20%) of the amount paid (such amount, the “Stores Remittance Amount”). R4UOffers will pay you the Stores Remittance Amount for your Stores Program every two weeksif the total Stores Remittance Amount (“Stores Aggregate Net Amount”) due is more thanFifty Euros (€50). If the Stores Aggregate Net Amount due is less than €50, R4U Offers willmail you a check for amount in your account when the last voucher is redeemed or whenthe voucher’s Promotional Value expires, whichever comes first. Following the PromotionalValue Expiration, R4U Offers will continue to pay you for any vouchers redeemed every twoweeks where the Fifty Euros threshold is met, or as otherwise agreed between you and R4UOffers in writing. 4.4 Payment Method. Unless otherwise arranged in writing between you and R4UOffers, payments owed to you under Section 4.2 and Section 4.3 will be made by check andmailed to you at the address in your Merchant Account on the bi-weekly schedule indicatedabove. Section 5: TERM AND TERMINATION 5.1 Term. These Terms are effective on the earlier of the date on which you firstaccess the Merchant Center through your Merchant Account, accept the Merchant AccountTerms, or submit a DR. These Terms will remain in effect through the expiration of allvouchers’ amount paid or such earlier date as all vouchers are redeemed or refunded totheir purchasers, unless otherwise earlier terminated as set forth below. 5.2 Termination. R4U Offers may terminate these Terms and suspend your access tothe Merchant Account with five days advance written notice for convenience, or immediatelyfor cause if: (a) you violate your redemption obligations with respect to any Offer made 7
  • 8. by you through R4U Offers’s programs and services; (b) you fail to redeem or cause theredemption of any voucher to fail for any reason, including but not limited to the sale ordissolution 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 havewith R4U Offers. 5.3 Suspension of a Program Offer. Notwithstanding anything herein to the contrary,you may cancel or suspend a Program Offer through your Merchant Account. 5.4 Obligations Upon Termination; Survival of Relevant Provisions. Neither the expirationnor termination of these Terms, nor your suspension or cancellation of any Offer shall inany way affect the rights of any holder of a valid voucher, R4U Offers’s obligation to pay youfor validly redeemed vouchers, or modify or eliminate your obligation to redeem any validvoucher pursuant to its terms. All Terms and any sections of these Terms that are logicallyintended and required to survive expiration or termination of these Terms to achieve theirintent, 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 hasthe power and authority to enter into the Agreement and perform its obligations under theseTerms; (b) it is an entity duly organized, validly existing and in good standing under theLaws of its jurisdiction of incorporation or formation; and it is duly qualified to do businessand is in good standing in each jurisdiction where the conduct of its business, provision ofits goods and/or services, or the ownership of its property requires such qualification; (c)these Terms reflect its legal, valid and binding obligation, enforceable against it; and (d) itshall comply with all Laws applicable to its obligations under the Agreement. 6.2 By you. You represent and warrant to R4U Offers that: (a) you and any ThirdParty Merchant(s), as applicable, (i) are registered for the collection of sales, use and othersimilar taxes in all states and localities in which goods and/or services will be made availablepursuant to the terms and presentation of the voucher; and (ii) will collect and remit anyand all applicable state or local sales, use, hotel occupancy, and other similar taxes thatmay apply to the redemption of the vouchers or the supplying of goods or services; (b)your Content, your representations about your business, and your redemption process forvouchers, do not and will not infringe, misappropriate, or otherwise violate any intellectualproperty right or right of privacy or publicity of any third party; (c) you hold all necessaryRegulatory Documents and Authorization Documents, if any, required to make any Offer and 8
  • 9. provide the goods or services described therein; (d) you will provide the goods and servicesmade available through any Offer in a manner 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 INTHESE TERMS, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES,EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OFMERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.R4U OFFERS DOES NOT WARRANT OR GUARANTEE THAT (A) ANY OFFER OR THE R4UOFFERS WILL BE ERROR-FREE; (B) ANY ERRORS, OMISSIONS OR MISPLACEMENTSWILL BE CORRECTED, OR (C) THE OFFER WILL RESULT IN ANY REVENUE OR PROFITFOR YOU. R4U OFFERS MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS ORIMPLIED, REGARDING THE GROUON SITE OR ANY OTHER PROMOTION, DISTRIBUTIONOR REDEMPTION METHOD USED OR PROVIDED BY R4U OFFERS (INCLUDING WITHRESPECT TO ITS UNINTERRUPTED OR ERROR-FREE OPERATION) AND/OR THE ACCURACY,ADEQUACY, RELIABILITY, AVAILABILITY, TIMELINESS, COMPLETENESS, SUITABILITY OROTHER CHARACTERISTICS OF THE INFORMATION AND MATERIALS CONTAINED ON ORPRESENTED THEREIN. THE R4U OFFERS SITE AND OTHER PROMOTION, DISTRIBUTION ORREDEMPTION METHODS USED OR PROVIDED BY voucher AND ALL RELATED INFORMATIONAND MATERIALS ARE PROVIDED “AS IS”, WITHOUT ANY WARRANTY OF ANY KIND, ANDON AN “AS AVAILABLE” BASIS. Section 7: INDEMNIFICATION 7.1 By you. You, at your sole cost and expense, shall defend, indemnify and holdR4U Offers, 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 or investigations (collectively, “Claims”) from and against any fees, costs,sanctions, penalties, damages, losses or expenses (including but not limited to attorney’sfees and costs) (collectively, “Losses”) arising out of or relating to any of the following:(a) your or any Third Party Merchant’s (i) fraud, willful misconduct, or gross negligenceor (ii) breach or alleged breach of these Terms; (b) any claim for state sales, use, hoteloccupancy, or any other similar tax obligations (including any penalties, interest or otheradditions to tax) arising from the sale and subsequent redemption of a voucher; (c) tothe extent applicable, any claim by any local, state or federal governmental entity for anyunclaimed property regarding vouchers, including but not limited to, any claims for penaltiesand interest; (d) the goods and/or services provided by you, including but not limited to, anyclaims for false advertising, injuries, illnesses, damages, or death; (e) any Offer, including 9
  • 10. your provision of incomplete or inaccurate or information applicable to such Offer; 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,your Content, or the use thereof. 7.2 By R4U Offers. R4U Offers, at its sole cost and expense, shall defend, indemnifyand hold harmless you and your officers, directors, agents and employees, from and againstany and all Claims brought against any of you arising out of or in connection with (a) R4UOffers’s material breach of these Terms or (b) any infringement, misappropriation or otherviolation of any trademark or copyright of any third party by R4U Offers (excluding R4UOffers’s use of materials provided or authorized for R4U Offers’s use by, you.) 7.3 Indemnification Process. The Party seeking indemnification under this Section 7shall 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 relievethe indemnifying Party of its indemnification obligations unless it can demonstrate actualprejudice as a result of such failure. In the event R4U Offers is the indemnifying Party, R4UOffers shall have the right to, upon written notice to you, elect to assume control of thedefense and settlement of any such Claim, and you will have the right to participate and berepresented 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 R4UOffers’s 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 Offer, any Fine Print, and youractivities under the Agreement, including your redemption of the vouchers, comply withany and all state, federal and local laws, rules regulations, and orders, including the CreditCard Accountability, Responsibility, and Disclosure Act of 2009 and all laws that governfalse, unfair and deceptive practices, vouchers, gift cards, coupons, and/or gift certificates(collectively “Laws”). You understand and agree further that your compliance with Lawsis a basic requirement, and that you must also comply with all of R4U Offers’s Programrequirements and product -specific policies applicable to vouchers (“Rules”), which Rulesmay require you to do more than the Laws alone might mandate. 8.2 Health and Safety. You represent and warrant that all good or services providedin connection with any Offer are safe and comply with all applicable Laws regarding healthand safety, fire, and hygiene standards (collectively, “Health Laws”). At R4U Offers’s request, 10
  • 11. you will promptly provide copies of any applicable facility operating license(s), or similarcredentials or documents evidencing your and your facility(ies) compliance with the HealthLaws. You shall ensure that your facilities and operations remain in compliance with allapplicable Health Laws during the term of these Terms. R4U Offers reserves the right toimmediately terminate its relationship with you, and to refuse to promote your Offer, if itbelieves you do not fully comply with any or all applicable Health Laws. 8.3 Authorization Documents. You hereby represent and warrant that you have allrights and permissions necessary to provide or use any goods, services, or brands thatyou do not independently own as part of any Offer and to grant the rights to your Contentgranted under these Terms. Prior to making any Offer or submitting the DR, you shall provideR4U Offers with letters of authorization or other documentation evidencing such rightsand permissions (“Authorization Documents”). Unless otherwise retained by R4U Offers,Authorization Documents should be attached to and available in, your Merchant Account.Even if R4U Offers has accepted a particular DR for your Offer, R4U Offers shall have noobligation to promote any Offer until it has received Authorization Documents it reasonablyconsiders it to be satisfactory. You shall immediately notify R4U Offers if, at any time duringthe term of the Agreement, you no longer have the same rights and permissions evidencedin the Authorization Documents. 8.4 Regulatory Documents. You hereby represent and warrant that you have allobtained all governmental licenses, approvals, and authorizations necessary to provide thegoods or services included as part of such Offer. You shall provide R4U Offers with copiesof licenses, proof of authorization or other appropriate documentation evidencing suchregulatory permissions (“Regulatory Documents”), and such Regulatory Documents shall beattached to and available in, your Merchant Account. Even if R4U Offers has accepted the DRfor your Offer, R4U Offers shall have no obligation to promote your Offer until it has receivedRegulatory Documents it reasonably considers to be satisfactory. You shall immediatelynotify R4U Offers if, at any time during the term of the Agreement, you no longer have thesame rights and permissions evidenced in the Regulatory Documents. Section 9: CONFIDENTIALITY 9.1 Confidential Information. Each Party agrees that (i) the terms set forth in yourMerchant Account are confidential, (ii) any information designated by the other Party as“confidential,” and (iii) any other information that the recipient should reasonably expect to beconfidential under the circumstances shall be collectively deemed “Confidential Information.”Confidential Information does not include information that (a) was, or becomes, publicly 11
  • 12. known through no action of the receiving Party; (b) is already in the legitimate possessionof the receiving Party prior to its disclosure; (c) is obtained by the receiving Party without abreach of any third party’s obligations or violation of Laws; or (d) is independently developedby the receiving Party. 9.2 Obligation. Each Party shall take reasonable precautions to protect all ConfidentialInformation, and will only disclose Confidential Information to its employees on a need-to-know basis. You may also disclose Confidential Information to your Third Party Merchants ifthey have signed a confidentiality agreement that requires them to protect the ConfidentialInformation in at least the same manner specified in these Terms. If a Party is required byLaw to disclose the other Party’s Confidential Information, it shall promptly notify the otherParty and shall cooperate with the other Party to obtain a protective order or to otherwiselimit the disclosure of the Confidential Information. 9.3 Irreparable Harm. Each Party agrees that, in the event of an actual, alleged orthreatened breach of its confidentiality obligations established by these Terms, the otherParty is likely to suffer immediate and irreparable harm, and may seek a temporary restrainingorder, injunction or other form of equitable relief without the posting of any bond or othersecurity. Section 10: INTELLECTUAL PROPERTY RIGHTS; CUSTOMER DATA 10.1 R4U Offers IP. You acknowledge that R4U Offers owns all right, title, and interest,including all intellectual property rights, in the R4U Offers Site, trade name, logos, trademarks,and service marks, and any content, data, software, technology, tools, or business methodsused by R4U Offers to develop, promote, market, sell, generate, or distribute Offers andvouchers and otherwise perform under these Terms (collectively the “R4U Offers IP”).With respect to any Offer, you may use R4U Offers’s name, trademarks, and logos solelyto publicize to your customers and potential customers the fact that you are featuringthat Offer through a particular Program. This limited right to use R4U Offers’s branding isapplicable only during the period from the start of the Sales Period through the PromotionalValue Expiration. Notwithstanding the above, you shall not use or display the R4U Offers IPin any manner that states or implies that R4U Offers has endorsed or approved the Offer oryour products or services. Any use of R4U Offers IP shall comply with any R4U Offers usageguidelines posted on the R4U Offers Site or provided to you from time to time. All goodwilland improved reputation in respect of and associated with the R4U Offers IP shall inureto the sole benefit of R4U Offers. Except as expressly set forth in these Terms, you haveno right, license, title or interest in or to any R4U Offers IP, and shall not use, distribute, 12
  • 13. transfer, copy, download, display, modify, perform or create derivative works of the R4UOffers IP without the express written consent of R4U Offers. You shall not translate, reverseengineer, decompile or disassemble the R4U Offers IP. R4U Offers has the right to revoke therights sets forth in this Section upon written notice to you reserves all rights not specificallygranted. 10.2 Customer Data. You acknowledge that R4U Offers owns all data collected by,or on behalf of, R4U Offers pursuant to these Terms, including all information and data ofindividuals who may or do purchase vouchers (”Customer Data”). Subject to applicable Lawsand in accordance with R4U Offers’s policies and procedures, R4U Offers shall not provideyou with access to Customer Data, except: (i) to the extent such specific data is necessaryfor you to redeem and/or verify the validity of the vouchers, and, (ii) to the extent thatany potential purchaser is made aware by statements in the Fine Print, that providing orsharing certain information is required to redeem the voucher, if such sharing would not beimplicit in the type of good or service being offered. Except to the extent required by Lawsor otherwise authorized in writing by R4U Offers, you may not use Customer Data for anypurpose other than to redeem the vouchers and service the Offer. You shall, and shall ensurethat any Third Party Merchants you may work with, take commercially reasonable efforts toprotect the security of Customer Data and comply with all Laws (and R4U Offers’s policiesand procedures) relating to the processing of any Customer Data. If you become awareof, or suspect, any unauthorized access to or use of Customer Data, you shall immediatelynotify R4U Offers, and shall cooperate with R4U Offers in the investigation of such breachand the mitigation of any damages. You shall bear all resulting costs and expenses incurredby R4U Offers to comply with applicable Laws (including without limitation any data breachLaws). Upon termination or expiration of this Agreement, you shall, as directed by R4UOffers, destroy or return to R4U Offers all the Customer Data in your or your Third PartyMerchants possession. Section 11: LIMITATIONS OF LIABILITY; INSURANCE 11.1 LIMITATION OF R4U OFFERS’S LIABILITY. R4U OFFERS’S SOLE AND COMPLETELIABILITY TO YOU SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO YOU BY R4UOfferss PURSUANT TO THESE TERMS PRIOR TO THE DATE THE CLAIM AROSE PER OFFER.IN NO EVENT SHALL R4U OFFERS BE LIABLE TO YOU, ANY THIRD PARTY MERCHANT ORANY OTHER THIRD PARTY FOR ANY CLAIMS RELATING TO THE USE OF YOUR GOODS ANDSERVICES, INCLUDING BUT NO LIMITED TO CLAIMS RELATING TO FALSE ADVERTISING,INJURIES, ILLNESSES, DAMAGES, OR DEATH. ANY CLAIM ARISING OUT OF OR RELATINGTO ANY VOUCHER OFFERED UNDER THE APPLICABLE DR MUST BE MADE WITHIN ONE (1) 13
  • 14. YEAR OF FIRST PUBLICATION OF THE VOUCHER AND ALL CLAIMS NOT SO MADE SHALLBE DEEMED WAIVED BY YOU. 11.2 NO CONSEQUENTIAL DAMAGES. EXCEPT FOR (A) INDEMNIFICATIONOBLIGATIONS HEREUNDER OR (B) EITHER PARTY’S (OR WITH RESPECT TO YOU, YOURTHIRD PARTY MERCHANT’S) (I) VIOLATION OF SECTION 8 (COMPLIANCE WITH LAW ANDAUTHORIZATIONS), SECTION 9 (CONFIDENTIALITY), OR SECTION 10 (INTELLECTUALPROPERTY RIGHTS; CUSTOMER DATA) OR (II) FRAUD, WILLFUL MISCONDUCT OR GROSSNEGLIGENCE, IN NO EVENT SHALL EITHER PARTY BE LIABLE OR OBLIGATED TO THEOTHER PARTY OR ANY THIRD PARTY IN ANY MANNER FOR ANY SPECIAL, INCIDENTAL,EXEMPLARY, CONSEQUENTIAL, PUNITIVE, OR INDIRECT DAMAGES OF ANY KINDREGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, NEGLIGENCE,STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITYOF ANY SUCH DAMAGES IN ADVANCE. 11.3 Insurance. You represent and warrant that you have, and shall maintain at yourexpense and at all times during the term of these Terms, all types of liability insurancepolicies, with coverage in amounts that are customary for merchants and/or service providersin your region, consistent with best industry practices, and sufficient to fully comply withapplicable Law and fulfill your obligations under these Terms. Upon R4U Offers’s request,you shall provide proof of your maintenance of such policies and provide assurances thatindicate that R4U Offers will be covered by your insurance policies in the event of a claimarising under or in relation to, these Terms or any Offer. Section 12: Binding Arbitration 12.1 Binding Arbitration. The Parties hereby agree that (a) these Terms and all disputes,controversies, or claims arising out of or relating to these Terms, the Offer, or the DR shallbe resolved exclusively by final and binding arbitration at Malta court and conducted beforea single arbitrator pursuant to the applicable Rules and Procedures established by MalteseLaws. Section 13: MISCELLANEOUS 13.1 Electronic Communications and Notices. You acknowledge that communicationsbetween the Parties often use electronic means. For contractual purposes, you hereby (a)consent to receive communications from R4U Offers in an electronic form and (b) agreethat all terms and conditions, agreements, notices, disclosures, and other communicationsthat R4U Offers provides to you electronically satisfy any legal requirement that such 14
  • 15. communications would satisfy if it were be in writing. The foregoing does not affect yourstatutory rights. Any notice required or permitted hereunder shall be provided in writing,and shall be deemed delivered when (a) delivered by electronic mail to the then-currente-mail address in your Merchant Account, or (b) regardless of whether or not actuallyreceived, when deposited in (i) the Maltese mail, postage prepaid, certified mail, returnreceipt requested, or (ii) a regional or national overnight courier service, addressed to theapplicable Party at the address set forth in your case, in your Merchant Account, and in R4UOffers’s case, to R4U Offers, Inc., Killarney, Flat 10, Oscar Zammit, Msida, Malta, MSD1281,with a copy to the attention of the Legal Department. 13.2 Force Majeure. Neither Party shall be liable for any default or delay in theperformance of its obligations under these Terms due to acts of God, terrorism, naturaldisasters, earthquakes, fire, riots, floods, and other similar events, to the extent such eventis 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 inthese Terms 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 theParties. Neither Party has the authority, without the other Party’s prior written approval, tobind or commit the other Party in any way. R4U Offers is not a vendor or co-vendor of yourgoods and services. 13.4 Agreement. These Terms constitute the entire understanding between the Partiesrelating to any Program Offer and your obligations in making such Offer, and supersedesall prior or contemporaneous oral or written agreements concerning such subject matter.No part of these Terms may be amended or modified except by mutual written agreementof the Parties. In the event of a conflict between these Terms and the terms of your Offer,these Terms shall govern. 13.5 Interpretation. The section headings of these Terms are for purposes of referenceonly and shall not in any way limit or affect the meaning or interpretation of any of the termshereof. References to a section include references to all subsections of that section. 13.6 Invalidity of a Provision. If any provision of these Terms should be held to beinvalid or unenforceable the validity and enforceability of the remaining provisions of theseTerms shall not be affected and the Parties shall negotiate an equitable adjustment in theprovisions in order to affect, to the maximum extent permitted by Law, the purpose of theseTerms. 15
  • 16. 13.7 Waivers. One or more waivers of any covenant, term or condition of these Termsby either Party shall not be construed as a waiver of a subsequent breach of the samecovenant, term or condition. 13.8 Assignment. You may not assign or transfer any of your rights, or delegate anyof your obligations, under these Terms without R4U Offers’s prior written consent, and anyattempt to do so shall be void and unenforceable. 13.9 Successors and Assigns; No Third Party Beneficiaries. These Terms shall be bindingupon and inure to the benefit of, the Parties and their respective permitted successors andassigns. There are no third party beneficiaries to these Terms, except as expressly set forthherein or in a particular DR. 16