Giftbar

Giftbar Merchant Services and Products Terms and Conditions of Use

PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY. THESE TERMS AND CONDITIONS OF USE MAY HAVE CHANGED SINCE YOUR LAST VISIT TO THIS WEBSITE AND SINCE YOUR LAST USE OF THESE PRODUCTS. YOU AGREE TO CHECK FOR UPDATES TO THESE TERMS AND CONDITIONS OF USE. BY USING THE MERCHANT SERVICES, THIS WEBSITE OR THE PRODUCTS, YOU INDICATE YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS OF USE. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS OF USE, THEN YOU MAY NOT USE THIS WEBSITE OR THE PRODUCTS.

Last revised January 2018

1 GENERAL TERMS AND CONDITIONS

Gift Bar LLC ("Giftbar," "we" or "us") provides small businesses and organizations (“Merchant” or “You”) with a variety of products and services and related offerings, features and functionalities (individually, a "Product" and collectively, the "Products"). The introductory terms identified in the Giftbar Merchant Network Introductory Agreement (“Agreement”) are available only to a limited number of key merchants (as determined by Giftbar at its sole discretion) that accept this Agreement. We will inform Merchant within 24 hours as to whether Giftbar accepts this agreement. Giftbar may decline to accept this Agreement and for any reason at its sole discretion.

This website (including any related sub-site, service, feature or functionality) (the "Site") and the Products are provided subject to these Merchant Services and Product Terms and Conditions of Use, as they may be amended by us, and any guidelines, rules or operating policies that we may post on this website. We may amend this Agreement from time to time due to changes to the Site or the Products, to account for developments under the law, or for any other commercially reasonable reason. Future performance by us of our obligations under this Agreement is sufficient consideration for any such amendment. Any amendment will only become effective upon notification to you (by email or by posting on our Site) and, if you do not want to agree to any such amendment, you should stop using the Site and the Products and contact us to cancel your account. By checking the box next to the "I Agree" button on the sign-up page, by logging in to your Giftbar account, by accessing the Site or by accessing any of the Products (including by means of any API interface), you accept this Agreement on behalf of yourself and any business or organization you represent (collectively, "you"). Any terms and conditions that may be contained in any acknowledgement, invoice, purchase order or other form you provide are specifically null and void.

1.1 Minimum Age and Ability to Bind

The Site and the Products are available only to persons or organizations that can form legally binding contracts under applicable law. Without limiting the foregoing, the Site and the Products are not available to individuals under the age of 18. If you do not qualify, you are not permitted to use the Site or the Products. If you are using the Site or the Products on behalf of an organization, you represent and warrant that you have the ability to bind such organization by your use of the Site and the Products.

1.2 Registration

You agree to provide true, accurate, current and complete information about yourself and your organization, as applicable, as requested in the registration form and elsewhere on the Site, and agree to update such information if it changes.

1.3 Account Access

We may, in our discretion, permit you to authorize additional users to use your Giftbar account. For purposes of this Agreement, you are the "Account Owner" and any other users you authorize will be deemed "Authorized Users." You will be responsible for each Authorized User’s use of your Giftbar account and each Authorized User’s compliance with this Agreement.

2 COMMUNICATION WITH YOU

We reserve the right to send messages to you to inform you of (a) changes or additions to the Site, the Products, this Agreement or the Fee Schedule (defined below), (b) violations of this Agreement or actions relating to your privilege to access and use the Site or the Products, or (c) any other matter related to the Site, the Products or this Agreement. Nothing in this provision shall require or obligate us to send any notice if no notice is required or mandated elsewhere in this Agreement.

By entering into this Agreement, you acknowledge that we may contact you via telephone (either by a live person, automatic dialer, prerecorded message or a combination of the foregoing) to discuss the products and you consent to such contact. Further, you consent to receive such phone calls at the telephone number you entered on the site. You do not need to agree to this provision in order to use the Site or purchase the Products and if you would like us not to contact you by telephone, please send an email to info@giftbar.com. Upon request, we may also contact you via telephone (including by automatic dialer or prerecorded message) or text you in order to provide you with your password or other information you request.

3 DESCRIPTION OF SERVICES

Giftbar is an online marketing company that has developed a proprietary and curated online site for selling stored value physical and electronic gift cards (“Gift Cards”) and promotional Gift Cards from a select group of merchants. Through its hosted Web interface at www.giftbar.com, mobile application and online administrative portal (“Platform”), Giftbar agrees to host a landing page and process and fulfill Gift Card orders on behalf of Merchant during the term.

4 TERM

The initial term of this Agreement is effective immediately and will remain in effect for a person of 365 calendar days. Upon expiration of this initial term, this Agreement automatically renews for an additional 365 days under the then-current terms and conditions. If you do not want this Agreement to automatically renew, you may terminate your Giftbar account within 30 calendar days of this Agreement's expiration by emailing Giftbar Customer Support at info@giftbar.com. Except as specifically set forth herein or on the Site, there are no refunds for any fees paid. YOU ARE SOLELY RESPONSIBLE FOR TERMINATING YOUR GIFTBAR ACCOUNT AND THIS AGREEMENT. WE ARE NOT RESPONSIBLE FOR YOUR FAILURE TO PROPERLY TERMINATE YOUR GIFTBAR ACCOUNT AND THIS AGREEMENT OR FOR ANY CREDIT CARD OR OTHER CHARGES OR FEES YOU INCUR AS A RESULT OF YOUR FAILURE TO PROPERLY TERMINATE YOUR GIFTBAR ACCOUNT AND THIS AGREEMENT.

We may, in our sole discretion, terminate your Giftbar account or your access to or use of the Site, the Products, and promotions or disable your Giftbar account or access to the Site, the Products, and Promotions or remove all or a portion of your customer information or data, cancel or suspend any of your promotions or deals or donation campaigns, or put your Giftbar account on inactive status, in each case at any time, with or without cause, with or without notice and without refund. We shall have no liability to you or any third party because of such termination or action, except that we will refund a pro rata portion of any prepaid amounts if we terminate you without cause.

If your Giftbar account is classified (at our sole discretion) as inactive for over 120 days, we have the right to permanently delete any of your customer information or data. Upon termination of your Giftbar account by you or us, this Agreement and any rights or licenses granted to you hereunder, shall immediately terminate except that (a) all sections of this Agreement that by their nature should survive termination will survive termination, including, without limitation, (a) Sections 8, 9, 10, 13 and (b) for the avoidance of doubt, you will continue to be responsible for redemption of gift cards and fulfillment for promotions and deals run prior to such termination in accordance herewith and any promises you made with respect to the funds associated with any donation campaigns.

5 ADDITIONAL SERVICES

From time to time, Merchant may engage Giftbar to provide customized or specialized marketing or design services (“Additional Services”) by entering into a Scope of Work and Services (“SOW”) hereunder that identifies such additional services to be provided, the fees for such additional services, and any additional terms and conditions that apply to such Additional Services. Each Scope of Work and Services shall, once executed, form a part of this Agreement.

6 GIFT CARD SALES/REVENUE SHARE

If you have joined Giftbar through a City Sponsored program, then one of the pages where you are hosted is referred to your "City Site". This is a site where businesses from your local community are exclusively assembled for consumers to purchase gift cards for your business. This is a site for your city to promote, featuring only the local businesses in your region.

When a consumer purchases a Gift Card for Merchant’s store, Giftbar will collect payment from the consumer and pay Merchant the Net Revenue from each sale. Net Revenue is defined as Gift Card face value load amount less a percentage, agreed upon at the time of signing, marketing, technology and platform usage fee. Giftbar agrees to send all Net Revenue collected to the Merchant via a payment method or payment processor of Giftbar’s choice according to Giftbar’s then current payout schedule. Should you pay a monthly fee and your credit card has declined, Giftbar reserves the right to deduct the subscription fee that is owed to Giftbar from Merchant payments.

For any prepurchased cards redeemed at your store (Stimulus, City Site, or Other Programs), you will only be charged a $1 processing fee. Giftbar will send you the full balance of the card via check, less $1. For any cards purchased outright on your City Site, Giftbar will receive a 3% revenue share of the total value of the card purchased. For any cards purchased on Giftbar.com, Giftbar will receive an 18% commission.

7 DISTRIBUTION PARTNERSHIPS

Giftbar may, from time to time, offer Merchant the opportunity to be featured on, or otherwise make Merchant’s Gift Cards available on, third party program websites, apps or other materials, including but not limited to loyalty, affiliate, travel aggregator or hotel concierge programs, with which Giftbar has established or will establish distribution arrangements.

8 WEBSITE TERMS AND CONDITIONS

Merchant’s use and promotions used via www.giftbar.com (and city specific subdomains) shall be subject to such website’s Terms and Conditions and Privacy Policy, which are incorporate herein and as each may be amended from time to time.

Giftbar reserves the right to sell gift cards for your business on your City Site as well as Giftbar.com and any other platforms Giftbar.com operates with.

9 REDEMPTION ACCOUNTING

Each time a Gift Card is presented for redemption, Merchant will verify the Gift Card balance using methods approved by Giftbar. Merchant will be responsible for accurately following all redemption processes. Merchant will also verify the identity of the customer redeeming Gift Card. Giftbar is not responsible for Merchant inaccuracies with Gift Card redemption or for fraudulent or unauthorized redemptions. The Merchant, and not Giftbar, will be liable for the cost associated with any fraudulent or unauthorized redemptions.

10 LICENSE GRANT

Merchant hereby grants Giftbar a perpetual, worldwide, non-exclusive, non-transferable and royalty-free license to use Merchant’s service marks, trademarks, artwork, name, slogans, designs and related intellectual property as necessary or appropriate for Giftbar to perform services under this Agreement. In addition, Merchant grants Giftbar an irrevocable, perpetual, worldwide and royalty-free license to publish and display Merchant’s engagement of Giftbar under this Agreement in Merchant’s portfolios, online or offline advertising, investor presentations and other media for public relations and investor relations purposes.

11 NO RIGHTS ON SOFTWARE

This is an Agreement for services and access to the Site, and, except as expressly set forth herein, you are not granted a license to any of Giftbar’s software by this Agreement and nothing on the Site shall be construed to confer any grant or license of any intellectual property rights, whether by estoppel, by implication, or otherwise. You will not, directly or indirectly, reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of, or found at or through the Site or the Products or any software, documentation, or data related to the Site or the Products ("Software"); remove any proprietary notices or labels from the Site or the Products or any Software; modify, translate, or create derivative works based on the Site or the Products or any Software; or copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Site or the Products or any Software. If you are using the Site or the Products in any jurisdiction which restricts the ability of a software provider to restrict your right to reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Site, the Software or the Products, then you hereby covenant that, prior to engaging in such activities, you will first request that we perform such work at our standard professional services rates. We can then decide either: (a) to perform the work in order to achieve such interoperability and charge our then standard rates for such work to you; (b) to permit you to reverse engineer parts of the Software in order to obtain such source code, but only to the extent necessary to achieve such interoperability; or (c) to provide you with the information that you need regarding the Software for the purpose for which applicable law permits you to engage in such activities despite a contractual prohibition on such activities.

12 SHARED PROMOTIONS

Merchant agrees to place a link on its website and/or Facebook page that allows an online consumer to automatically connect to the Merchant’s giftbar.com landing page. Giftbar hereby grants Merchant a non-exclusive, non-transferable, royalty-free license to display Giftbar’s logo and design during the term for the sole purposes of permitting Merchant to comply with the terms of this paragraph. Merchant agrees to present a Giftbar logo or sticker to its in-store customers as it would any other payment option. Giftbar will provide point of sale materials for in-store use and will provide training for store employees as requested. All such materials remain the property of Giftbar and must returned upon request. Any online promotional discount on Giftbar.com that results in a user purchasing either a merchant specific gift card or a Giftbar of Choice gift card that has been redeemed at a particular merchant, shall result in the cost of the promotion being split by said merchant and Giftbar.com.

13 EMAIL MARKETING SUITE

As part of its Membership Fees, Merchant may be eligible for access to the Giftbar Email Marketing Suite (“Email Marketing Suite”) powered by ActiveCampaign Inc. (“ActiveCampaign”). Use of this service requires acceptance of and is subject to ActiveCampaign’s terms of service, privacy policy and other policies. The use of the Email Marketing Suite indicates Merchant’s acceptance of these policies and creates an agreement between Merchant and ActiveCampaign. Giftbar is not responsible for the actions of ActiveCampaign in relation to its operations of Email Marketing Suite. Sending in excess of 10 times Merchant subscriber limit per month or failure to comply with applicable email marketing laws or ActiveCampaign policies may result in suspension or cancellation of Merchant’s account without notice and Merchant shall, upon demand, pay or reimburse Giftbar for any charges assessed against it by ActiveCampaign as a result of Merchant’s failure to comply with the volume limits and other terms of the Email Marketing Suite. ActiveCampaign and Giftbar reserve the right to discontinue Merchant access to the Email Marketing Suite at any time without notice. The Email Marketing Suite has a cash value of one one-hundredth of a percent.

14 EXCLUSIVITY

In order to maintain and present a high quality and curated selection of stores (and, in some cases, in order to participate in certain distribution partnerships, including Specialized Distribution Channels), Merchant agrees not to participate in any other gift card reseller website or mobile app. In the event this clause is violated, Giftbar reserves the right to cancel Merchant participation in the Platform, all related services and any particular distribution partnership (including, without limitation, a Specialized Distribution Channel) without notice and without refund.

15 CONFIDENTIALITY

Merchant acknowledges that certain portions of the Platform are proprietary and confidential. Merchant shall not disclose these portions to any unauthorized third party. Merchant may not share login or access information for the Platform. The terms of this Agreement are confidential and may not be disclosed to any third party. In the event of a breach of this paragraph, Giftbar shall be entitled to seek injunctive relief in addition to any other remedies that it may have at law or in equity.

16 MERCHANT’S REPRESENTATIONS AND WARRANTIES

Merchant assumes full and complete responsibility and liability for entering redemption of gift cards and the content of all advertising submitted, printed and distributed pursuant to this Agreement. Merchant hereby warrants and represents that any and all information provided, including all copy, photography and illustration are the intellectual property of Merchant.

17 DISCLAIMER OF WARRANTIES

Giftbar makes no guarantees of response or sales from Merchant’s participation in the Platform. Giftbar disclaims all warranties whether express or implied, to the fullest extent allowed by law and whether expressed or implied, including, but not limited to, fitness for particular purpose or that the Platform will remain available, error free, virus free or free from defects. Giftbar will use reasonable commercial efforts to make the Platform available 24 hours a day, 7 days a week, but reserves the right to take the Platform offline at any time without notice.

18 LIMITATION OF LIABILITY

Notwithstanding anything to the contrary contained in this Agreement, Merchant agrees as follows: (i) Merchant shall not seek nor be entitled to any consequential, indirect and special damages, lost profits and similar damages from Giftbar; and (ii) Giftbar shall not be liable for any such damages even if Giftbar has been informed of the possibility of such damages. Merchant’s exclusive remedy for any claim for damages under this Agreement shall be limited to the aggregate amount of fees paid by Merchant for the Platform during the twelve month period preceding the event giving right to the claim.

19 INDEMNIFICATION

Merchant shall indemnify and hold Giftbar, its members, managers, employees, and agents harmless, to the maximum extent allowed by law, against any demands, claims or liability arising out of the production, publishing or distribution of the Merchant’s landing page, issued Gift Cards, Merchant’s use of the Email Marketing Suite, and Merchant’s breach of its representations or warranties in this Agreement.

20 GOVERNING LAW AND ATTORNEYS FEES

This Agreement and any dispute arising under it shall be construed according to and governed by the laws of the State of Delaware. Merchant hereby consents to the jurisdiction of any state or federal court located within the State of Illinois and hereby waives any objection that Merchant may have based on improper venue or Forum Non Conveniens in any such court. If any action at law or in equity is necessary to enforce or interpret the terms of any of this Agreement, the substantially prevailing party shall be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.

21 MISCELLANEOUS

Neither party may assign or transfer this Agreement or any portion hereof without the other party’s prior written consent; provided, however that Giftbar may assign this Agreement to a parent, subsidiary or successor entity in the event of a merger, consolidation, or transfer or sale of all or substantially all of Giftbar’s assets. This Agreement shall be binding upon the successors and permitted assigns of the parties to this Agreement. This Agreement (together with each Scope of Work entered into hereunder and each Specialized Distribution Channel Addendum entered into hereunder) represents the sole and complete agreement between Giftbar and Merchant with respect to the subject matter hereof and supersedes all previous agreements, whether written or verbal. In the event any portion of this Agreement is found to be invalid, the rest of the Agreement shall remain intact and in force.

You agree that Giftbar has set its prices and entered into this Agreement in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that they reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that they form an essential basis of the bargain between the parties and shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.