Merchant Terms & Conditions
Merchant Terms & Conditions
GIFTforward Inc. (“GIFTforward”, “we”, “us” or “our”) owns and operates a platform at the website www.giftforward.co, including the mobile and touch versions of the website (as such platform may be amended, supplemented, or changed from time to time, the “Platform”), which permits business to offer their gift cards for sale to the public (the “Purchasers”). You (“Merchant”) wish to offer gift cards (the “Gift Cards”) for sale which can be redeemed for certain products and/or services offered by you (the “Merchant Offering”) to the Purchasers, including, but not limited to, during the government-mandated suspension of normal business activity in connection with COVID-19 (the “COVID-19 Restrictions”).
These Merchant Terms & Conditions describe GIFTforward’s policies surrounding the gift card program, payment and our respective obligations to each other. By creating a Merchant profile and listing your Merchant Offering on the Platform, you agree to abide by these Merchant Terms & Conditions. IF YOU DO NOT AGREE TO THESE MERCHANT TERMS & CONDITIONS, DO NOT LIST YOUR MERCHANT OFFERING WITH US.
These Merchant Terms & Conditions are dated April 8, 2020.
1. Gift Card Program
1.1 Services. GIFTforward shall make the Gift Cards available for sale on Merchant’s behalf on the Platform subject to the terms and conditions of this Agreement and the “Terms of Sale” of the Platform, and if requested by Merchant, shall produce and distribute Gift Cards to Purchasers in a form determined by GIFTforward in its sole discretion, which may be redeemed by Purchasers from Merchant pursuant to Section 1.4 (the “Services”).
1.2 Discount. GIFTforward and Merchant shall mutually agree on a discount (the “Promotional Value”), if any, that will be applied to the value of each Gift Card, and such Promotional Value shall be borne by Merchant. The full offer value (“Full Offer Value”) shall equal the amount paid by the Purchaser for each Gift Card (“Amount Paid”) plus the Promotional Value.
1.3 Gift Card Specifications. Merchant may specify the maximum number and Full Offer Value of the Gift Cards that may be sold on the Platform, which may be revised at Merchant’s sole discretion by providing written notice to GIFTforward.
1.4 Redemptions. Merchant agrees to redeem the Gift Cards at their Full Offer Value for any of its products and/or services in accordance with applicable laws commencing on: (i) if Merchant is a restaurant, cafe or food facility (a “Restaurant”), the date that Merchant is open for business and Restaurants are permitted to offer dine-in services to the public, notwithstanding any reductions in capacity or operating function in connection with the COVID-19 Restrictions; and (ii) if Merchant is not a Restaurant, the date that Merchant is open for business, notwithstanding any reductions in capacity or operating function in connection with the COVID-19 Restrictions (as applicable, the “Redemption Date”).
1.5 No Expiry. Merchant acknowledges that in accordance with applicable laws, the Gift Cards may not carry an expiry date.
1.6 Notification. Prior to or on the Resumption of Business Date, GIFTforward shall provide Merchant with contact information of each Purchaser who has purchased the Merchant Offering (the “List of Purchasers”). Within three (3) business days of the Redemption Date, Merchant shall notify GIFTforward and the List of Purchasers that the Gift Cards may be redeemed as of that date going forward.
1.7 Partial Redemptions. Merchant acknowledges that Gift Cards may be redeemed in partial amounts up until the Full Offer Value has been used in its entirety, and shall be responsible for keeping track of any remaining stored value on the Gift Cards (unless otherwise agreed upon in writing by the Parties).
1.8 Sole Discretion. GIFTforward reserves the continuing right to reject or discontinue any Merchant Offering, at any time and for any reason in GIFTforward’s sole discretion, and to terminate the Services and to remove all references to the Merchant Offering from the Platform.
1.9 Compliance. Merchant agrees to comply with the Gift Card terms and conditions as stated on the Platform, including but not limited to the “Terms of Sale” of the Platform, and to ensure that the Gift Cards comply with all applicable laws. In the event of any conflict or inconsistency between the provisions of this Agreement and the “Terms of Sale” of the Platform, the provisions contained in this Agreement shall prevail.
2. Fees and Remittance
2.1 Fees. Subject to Section 2.2, GIFTforward shall collect between 3-4% of the Amount Paid for each Gift Card in order to cover payment processing fees, which shall be subject to change upon notice to Merchant (the “Fees”).
2.2 Fees Waived. The Fees shall be waived for the first $15,000.00 of the aggregate Amount Paid on the Platform as a whole.
2.3 Remittance. GIFTforward shall remit to Merchant the value of the Amount Paid for each Gift Card purchased in connection with the Merchant Offering minus the Fees owed by Merchant (the “Remittance Amount”) as a lump sum on a weekly basis (unless otherwise agreed upon in writing by the Parties), via e-transfer, direct deposit, cheque, or any other method agreed upon by GIFTforward and Merchant.
3. Term and Termination
3.1 Term. This Agreement shall commence on the Effective Date and continue until terminated by either party in accordance with the terms of this Agreement (the “Term”).
3.2 Termination. Either Party is authorized to terminate this Agreement, at any time and for any reason, upon written notice to the other Party. Termination of this Agreement will not in any way affect Merchant’s obligation to redeem any Gift Card according to the terms of this Agreement, including the obligation to honour the Gift Cards for the Full Offer Value pursuant to Section 1.4 above.
3.3 Survival. Sections 1.4 (Redemptions), 7 (Representations and Warranties), 8 (Indemnification and Limitations on Liability), 9 (Confidentiality), and 10 (Miscellaneous) shall survive any expiration or termination of this Agreement.
4. Marketing Materials
4.1 Marketing. Merchant agrees to act as a customer reference regarding the subject-matter of this Agreement and agrees to appear in GIFTforward marketing material.
4.2 Merchant IP. Merchant grants to GIFTforward a non-exclusive, worldwide, royalty free, paid-up, perpetual, irrevocable, transferable and sub-licensable license and right to use, modify, reproduce, sublicense, publicly display, distribute, broadcast, transmit, stream and publish: (a) Merchant’s name, logos, trademarks, service marks, domain names, and any audiovisual content, video recordings, audio recordings, photographs, graphics, artwork, text and any other content provided, specified, recommended, directed, authorized or approved for use by Merchant (collectively, “Merchant IP”); and (b) any third party’s name, logos, trademarks, service marks, domain names, audiovisual recordings, video recordings, audio recordings, photographs, graphics, artwork, text and any other content provided, specified, recommended, directed, authorized or approved for use by Merchant (collectively, “Third Party IP”), in each case in connection with the promotion, sale/resale (as may be applicable) or distribution of the Merchant Offering in all media or formats now known or hereinafter developed (“Merchant License”). GIFTforward may use Merchant IP or Third Party IP without Merchant’s prior written approval, except that GIFTforward must cease to use or remove any Merchant IP or Third Party IP that has been used upon Merchant’s request.
4.3 GIFTforward IP. GIFTforward grants to Merchant a non-exclusive, worldwide, royalty free, paid-up, perpetual, irrevocable, transferable and sub-licensable license and right to use, modify, reproduce, sublicense, publicly display, distribute, broadcast, transmit, stream and publish: (a) GIFTforward’s name, logos, trademarks, service marks, domain names, and any audiovisual content, video recordings, audio recordings, photographs, graphics, artwork, text and any other content provided, specified, recommended, directed, authorized or approved for use by GIFTforward (collectively, “GIFTforward IP”) in connection with the promotion, sale/resale (as may be applicable) or distribution of the Services in all media or formats now known or hereinafter developed (“GIFTforward License”). Merchant may use GIFTforward IP without GIFTforward’s prior written approval, except that Merchant must cease to use or remove any GIFTforward IP that has been used upon GIFTforward’s request.
5. Customer Data Restrictions.
5.1 Customer Data. “Customer Data” means all identifiable information about Purchasers generated or collected by GIFTforward or Merchant, including, but not limited to, Purchasers’ name, shipping addresses, email addresses, phone numbers, purchaser preferences and tendencies, and financial transaction data.
6. Bankruptcy and Permanent Closure
6.1 Notification. Merchant shall immediately provide written notice to GIFTforward if it (a) files for protection under bankruptcy laws, (b) makes an assignment for the benefit of creditors, (c) appoints a receiver or trustee over its property, (d) files a petition under any bankruptcy or insolvency act or has any such petition filed against it which will not be discharged within sixty (60) days of the filing thereof (an “Event of Bankruptcy”), or if there is an imminent and significant likelihood of the occurrence of an Event of Bankruptcy. Merchant shall also provide immediate written notice to GIFTforward if it decides to permanently close its business, regardless of whether an Event of Bankruptcy has occurred.
6.2 Return of Amounts Paid. Upon notice being provided to GIFTforward under Section 6.1, GIFTforward reserves the right to withhold any Amounts Paid for the Merchant Offering that have not yet been remitted to Merchant, and to return such Amounts Paid to their respective Purchasers.
7. Representations and Warranties
7.1 Representations and Warranties of Merchant. Understanding that GIFTforward is relying on the following representations and warranties when entering into this Agreement, Merchant represents, warrants and covenants to the other party as follows:
a) It is authorized to enter into and fully perform its obligations under this Agreement, including, without limitation, providing the Merchant Offering, in accordance with all applicable federal, provincial and local laws, rules and regulations.
b) It has all licenses, approvals and permits required to operate its business under applicable law and to perform its obligations under this Agreement.
c) This Agreement constitutes legal, valid, and binding obligations of Merchant enforceable against Merchant in accordance with their terms except as enforcement may be limited by any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally or general principles of equity, and will not result in the breach, default or violation of, or conflict with, any terms of any contracts or instruments to which Merchant is party or pursuant to which its business may be affected.
d) Merchant owns all right, title and interest in the Merchant IP and has the right to grant the Merchant License, and the Merchant IP will not infringe upon, misappropriate or violate any third party’s intellectual property rights, including, without limitation, any patent, trademark or copyright.
e) Each Gift Card, upon being delivered by GIFTforward, will be available for redemption in accordance with Section 1.4 hereof, Merchant will have sufficient products and/or services available for redemption and Merchant will not impose any extra or additional fees or charges for the Merchant Offering.
8. Indemnification and Limitations on Liability
8.1 Indemnification by Merchant. Subject to Section 8.2, Merchant shall indemnify, hold harmless and defend GIFTforward, its officers, directors, partners, employees, affiliates and agents from and against any and all losses, claims, damages, liabilities, whether joint or several, expenses (including reasonable legal fees and expenses), judgments, fines and other amounts paid in settlement from a third party claim (collectively, Losses”) arising out of or in connection with (a) the inaccuracy of any representation or warranty made by Merchant under this Agreement, (b) any breach of the Agreement by Merchant, (c) any gross negligence or willful misconduct by Merchant or its employees or agents, (d) the Merchant Offering or (e) the inability of a Purchaser to redeem the Gift Card.
8.2 Limitations on Liability. IN NO EVENT SHALL GIFTFORWARD’S LIABILITY UNDER THIS AGREEMENT (A) INCLUDE ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE OR (B) EXCEED FEES ACTUALLY PAID TO GIFTFORWARD BY MERCHANT IN THE ONE (1) MONTH PRECEDING THE CLAIM GIVING RISE TO THE LOSSES.
8.3 Dispute Resolution. If there is any controversy, dispute or claim arising out of or relating to interpretation or breach of this Agreement, the Parties will endeavour to settle such matter promptly prior to commencing any litigation in accordance with Section 10.5 or other dispute resolution process.
The terms of this Agreement are confidential, and Merchant agrees not to disclose the terms described in this Agreement to any party (other than to its employees, parent companies, shareholders, lawyers and accountants on a strict need-to-know basis or as required by applicable law, if Merchant has taken the necessary precautions of the kind generally taken with confidential information to preserve the confidentiality of the information made available to such parties). In the event of a breach, GIFTforward is entitled to injunctive relief and a decree for specific performance, and any other relief allowed under applicable law (including monetary damages if appropriate).
10.1 Force Majeure. Other than the obligations for payment of fees pursuant to Section 2, neither party shall be liable for any failure of or delay in the performance of this Agreement due to acts of God, public enemy, war, strikes or labour disputes, or any other cause beyond the Parties’ reasonable control (each a “Force Majeure Event”), except that the COVID-19 Restrictions do not constitute a Force Majeure Event. Each party shall notify the other party promptly of the occurrence of any Force Majeure Event and carry out this Agreement as soon as practicable after such Force Majeure Event is terminated. The existence of any Force Majeure Event shall not extend the term of this Agreement.
10.2 Business Relationship. The relationship created between the Parties shall be solely that of entering into a business agreement. No representations or assertions shall be made or actions taken by either party which could imply or establish any agency, joint venture, partnership, employment, independent contractor or trust relationship between the Parties with respect to the subject-matter of this Agreement. Neither party shall have any authority or power whatsoever to enter into any agreement, contract or commitment on behalf of the other, or to create any liability or obligation whatsoever on behalf of the other to any person or entity.
10.3 Notices. All notices, demands, requests, approvals, consents or other communications to be given or delivered under this Agreement shall be in writing and will be deemed to have been given when delivered via email, text message or other electronic means as long as no failure of delivery notification is received, or to such other addresses as a party may designate from time to time by written notice to the other party.
10.4 No Warranty. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS NOR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. GIFTFORWARD DOES NOT WARRANT OR GUARANTEE THAT THE SERVICES OFFERED ON OR THROUGH THE WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE GIFT CARDS ARE ERROR-FREE, OR THAT ANY MERCHANT OFFERING WILL RESULT IN ANY REVENUE OR PROFIT FOR MERCHANT.
10.5 General Provisions. If any provision of this Agreement is determined to be invalid, illegal or unenforceable, such provision will be severed from this Agreement, and the remaining provisions will remain in full force and effect. This Agreement may only be amended or waived by mutual written agreement. No waiver of any provision of this Agreement will constitute a waiver of any other provision. No waiver will be binding unless executed in writing by the party to be bound by the waiver. No delay or omission in exercising any right under this Agreement shall impair any such rights or operate as a waiver of such rights. This Agreement contains the entire agreement between the Parties relating to the Services and will supersede all prior understandings, agreements, negotiations or representations by or between the Parties, written or oral, which may be related to such matters. Each party shall take all such action and execute and deliver all such documents as the other party may reasonably request to carry out the terms, intent and purpose of this Agreement. This Agreement is governed by, and shall be interpreted and construed in accordance with, the laws of the Province of Ontario and the federal laws of Canada applicable therein. Each party irrevocably attorns and submits to the jurisdiction of the Ontario courts situated in the City of Toronto and waives objection to the venue of any proceeding in such court or that such court constitutes and inappropriate forum. This Agreement shall be binding on and enures to the benefit of the Parties and their respective successors and permitted assigns. This Agreement may be assigned by GIFTforward without notice to Merchant. This Agreement may not be assigned in whole or in part by Merchant without the prior written consent of GIFTforward, which consent shall not be unreasonably withheld. This Agreement may be signed in any number of counterparts, each of which is deemed to be an original and such counterparts together constitute one and the same instrument.