INSTAGIFT.COM PROMOTION AGREEMENT STANDARD TERMS AND CONDITIONS
Effective: November 1, 2013
SECTION 1. DEFINITIONS
For purposes of this Agreement, the following terms shall have the following meanings:
1.1 "Business Content" shall mean any content, information or other materials (including their associated Intellectual Property Rights) provided by Business to Instagift to provide the Promotion Services.
1.2 "Confidential Information" shall mean all nonpublic information of any kind, whether written or oral, regarding either party's business operations, including, without limitation, information concerning products, services, software, product development, Intellectual Property Rights, product pricing, product maintenance, business plans, strategies, service providers, finances, operations, assets, suppliers, customers, donors, employees, contracts, systems and processes, whether such information is obtained before or after the Effective Date of this Agreement, through any means or source or from any officer, director, employee, member, advisor, consultant, contractor, agent or representative. Notwithstanding the foregoing, Confidential Information shall exclude information (a) available to the public other than by a breach of this Agreement; (b) rightfully received from a third party not in breach of a contractual, fiduciary or other obligation of confidentiality; (c) known to the party at the time of disclosure as evidenced by the written records at the time of disclosure; (d) independently developed by the party without reference to the Confidential Information as evidenced by written records at the time of development or disclosure; or (e) solely to the extent produced in compliance with any law or court order; provided, however, that the producing party gives reasonable notice as allowed by law that such Confidential Information is being sought by a third party, so as to afford the opportunity to limit or prevent such disclosure.
1.3 "Gift Certificates" shall mean electronic certificates or gift or loyalty cards identified in a Promotion Schedule that will be honored at the Business at a later date for a pre-determined value of goods or services and offered or sold via the Site or issued in accordance with a Loyalty Program via the Site.
1.4 "Gift Certificate Revenue" shall mean revenue collected by Instagift or its service partners from Site Users for the purchase of Business' Gift Certificates via the Site during the term.
1.5 "Intellectual Property Rights" shall mean all intangible legal rights or interests evidenced by or embodied in (a) any idea, design, concept, technique, invention, discovery or improvement, regardless of patentability, but including patents, patent applications, trade secrets, and know-how; (b) any work of authorship, regardless of copyrightability, but including copyrights and any moral rights recognized by law; (c) any trademark, trade name or service mark; and (d) any other intellectual property, proprietary or similar rights, in each case on a worldwide basis and including all goodwill pertaining thereto.
1.6 "Loyalty Program" shall mean the loyalty and rewards program that provides Gift Certificates to Business' Site Users at the times and in the manner identified in a Promotion Schedule.
1.7 "Loyalty Program Fees" shall mean all costs and charges related to the Loyalty Program to be paid by Business to Instagift or its service partners as indicated in a Promotion Schedule.
1.8 "Promotion" shall mean the online offer to Site Users of Gift Certificates and/or the Loyalty Program in accordance with the terms set forth in a Promotion Schedule.
1.9 "Promotion Schedule" shall mean shall mean any addenda, proposals, purchase schedules, or other order forms attached hereto and/or incorporating these terms and conditions executed by the parties pursuant by which Business may order Promotion Services from Instagift.
1.10 "Promotion Services" shall mean the offer, promotion, and/or sale of Gift Certificates and the Loyalty Program via the Site as set forth on Promotion Schedules and otherwise in this Agreement.
1.11 "Site User" shall mean a person that uses the Site, whether or not such person makes a purchase of Gift Certificates.
SECTION 2. OBLIGATIONS OF THE PARTIES
2.1 Promotion Services. During the Term and subject to the terms and conditions of this Agreement, Instagift (itself and through its service partners) will make available the Promotion(s) via a subdomain of the Site on behalf of Business. Instagift will promote the Gift Certificates and/or the Loyalty Program relating to a Promotion to Site Users and other prospective purchasers via the Site, email lists, and various social media outlets and handle all sales and offers of Gift Certificates relating to the Promotion. The Site will be labeled as "Powered by Instagift" or as otherwise dictated by Instagift. Instagift will provide online access to a portion of the Site for Business to access and download data surrounding the Promotion (including identification numbers to verify the validity of Gift Certificates sold and certain purchaser data). Business shall be responsible for: (a) acquiring, installing, maintaining, and supporting its own technology environment and equipment necessary to properly access the Site and for any expenses relating to the foregoing; (b) the security and confidentiality of any usernames or passwords granted to Business to access the Site, and shall limit disclosure of such usernames and passwords to its employees and other authorized representatives with a need to know such information; and (c) any authorized or unauthorized access to the Site using such usernames and passwords, and any actions taken thereunder.
2.2 Business Obligations. Business shall use its best efforts to promote the Site and the Promotion to potential Site Users during the Promotion. Business shall place a link from Business's web site home page (if applicable) to the Site. Business and its employees and representatives shall: (a) cooperate with Instagift with respect to advertising, promoting, qualifying, selling and providing the Promotion; (b) comply with all applicable laws and regulations applicable to Business's Gift Certificates, the Loyalty Program, and operations, as well as Instagift's and its service partners' technical standards, policies, programs, and requirements regarding the Site; and (c) make no false or misleading representations with regard to Instagift, its service partners, or the Site.
2.3 Sales of Gift Certificates; Loyalty Program Participation. All sales and issuance of Gift Certificates shall be made via the Site, and all Site Users shall participate in the Loyalty Program through the Site. Instagift (itself or through any of its third party payment processors and other subcontractors) shall be responsible for entering into all e-commerce transactions for the sale of Gift Certificates, for providing the functionality necessary to process purchases by Site Users of Gift Certificates and/or issuance of Gift Certificates in accordance with the Loyalty Program, and for collecting fees in connection with such purchases.
2.4 Site User Support. Business will assist Instagift in resolving any Site User issues or disputes relating to Gift Certificates, the Loyalty Program, or any Promotion. 2.5 Subcontractors. Business understands and agrees that Instagift may, in its sole discretion, subcontract its obligations under this Agreement to third parties (for example, third party service partners) provided that it remains ultimately responsible for the Promotion Services.
2.6 Additional Obligations. Instagift and Business shall be responsible for such additional obligations, if any, set forth in a Promotion Schedule.
SECTION 3. GRANT OF LICENSES
3.1 Business Content License. Business hereby grants to Instagift and its service providers a nontransferable, nonexclusive, worldwide, royalty-free right and license during the Term to use, reproduce, modify, distribute, perform, and display all Business Content solely for the purpose of providing the Promotion Services and fulfilling its obligations hereunder. As between the parties, the Business Content shall remain the exclusive property of Business. Business will provide to Instagift the Business Content at such times and in such format as requested by Instagift to provide the Promotion Services. Instagift shall have the right to refuse to post on and/or remove from the Site any Business Content containing any content or materials which Instagift reasonably determines conflict with, interfere with or are detrimental to Instagift's or its service partners' interests, reputation or business or which may violate any law, infringe the rights of any person or subject Instagift or its service partners to unfavorable regulatory action or liability for any reason.
3.2 Trademark License; Usage. Subject to the terms and conditions of this Agreement, Instagift hereby grants to Business a limited, nonexclusive, nontransferable right and license to refer to the name of the Site and provide links to the Site during the Term solely for purposes of promoting its specific Promotion(s). Business shall not make any other use of the name of the Site or any other trademarks of Instagift or its services providers without prior written permission. Business shall not make any disparaging remarks about Instagift, its services partners or the Site during and after the Term.
3.3 Email Lists. Business retains ownership of email addresses generated during the term relating to sign-ups or purchases via the Site. Business shall maintain a mass email sending service (MailChimp is the only service integrated into the Instagift software) at its own expense to store and manage relevant email addresses. Business shall be solely responsible for all emails to end-user customers. Business authorizes Instagift to contact Business email lists for the purpose of announcing Promotions, in connection with the Promotion Services, providing customer service, or for other purposes mutually agreed upon between Instagift and Business. Additionally, Instagift shall be allowed to contact Site Users and other customers who have a global Instagift account to the extent they are also customers of other Instagift clients.
3.4 Site User Terms and Conditions. Use of the Site by Site Users shall be subject to the Site User Terms and Conditions.
3.5 Reserved Rights. All rights not specifically granted to Business hereunder are reserved by Instagift. Instagift reserves the right to provide similar promotion services to other businesses via the Site.
SECTION 4. FEES AND PAYMENT
Instagift shall remit to Business the Gift Certificate Revenue relating to Promotions, less Loyalty Program Fees and other Fees, in the amount, at the times, and in the manner set forth in a Promotion Schedule. Business shall be responsible for all taxes and duties on any revenue paid to Business. Revenue previously paid by Instagift to Business shall be subject to refunds, returns and chargebacks related to the purchase of the Gift Certificates. In the event any of the foregoing events occur affecting previously paid revenue, or if the revenue is less than the Fees, such reductions shall be applied by Instagift to future revenue due or, if no future revenue is due, shall be promptly refunded by Business upon notice from Instagift.
SECTION 5. TERM & TERMINATION
5.1 Term. This Agreement will begin on the Effective Date (as set forth on the cover of this Agreement) and shall continue until the earlier of: (a) the date one (1) year after completion of all Promotion Services to be performed under all outstanding Promotion Schedules; or (ii) pursuant to this Section 5.
5.2 Termination with Cause. Either party may terminate this Agreement immediately upon written notice to the other party in the event that the other party: (a) violates any provision of this Agreement and fails to cure such violation within ten (10) days after receiving written notice of such violation; (b) is the subject of a voluntary or involuntary bankruptcy, reorganization, or liquidation proceeding that is not dismissed within sixty (60) days of the institution of such proceedings, is insolvent, makes an assignment for the benefit of creditors or admits in writing its inability to pay its debts when due; or (c) dissolves or otherwise ceases operation of its business. Additionally, Instagift may immediately suspend performance and/or terminate this Agreement if Business fails to honor valid Gift Certificates.
5.3 Termination for Convenience. Either party may terminate this Agreement for any or no reason upon thirty (30) days prior written notice to the other party. 5.4 Consequences upon Termination. Upon termination or expiration of this Agreement for any reason: (a) Instagift shall cease providing the Promotion Services; (b) the parties shall cease use of the other parties' respective content and Intellectual Property Rights; and (c) each party shall immediately return to the other all property, equipment, and materials provided to such party by the other.
SECTION 6. WARRANTIES; LIMITATION OF LIABILITY
6.1 Warranties. Instagift represents and warrants to Business that: (a) it has full power and authority to enter into and fully perform this Agreement; and (b) it has the right to provide the Promotion Services in accordance with the terms and conditions of this Agreement. Business represents and warrants to Instagift and its service partners that: (i) it has full power and authority to enter into and fully perform this Agreement; (ii) it has the right to license the Business Content to Instagift in accordance with the terms and conditions of this Agreement; (iii) the Business Content, the Gift Certificates, the Loyalty Program, and Instagift's and its service partners' use, sale, and/or offering thereof shall not violate any applicable law or infringe upon or violate the rights of any person; (iv) it will honor valid Gift Certificates and the terms thereof; (v) it is properly licensed, bonded, and insured and will comply with any and all applicable laws, codes, and regulations.
6.2 Disclaimer. WITH THE EXCEPTION OF THE LIMITED WARRANTIES SET FORTH IN SECTION 6.1, THE PROMOTION SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, AND INSTAGIFT HEREBY DISCLAIMS ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT OR ANY WARRANTY, GUARANTEE, OR REPRESENTATION REGARDING THE AVAILABILITY, USE, OR THE RESULTS OF THE USE OF THE PROMOTION SERVICES. INSTAGIFT MAKES NO WARRANTY REGARDING THE LEVEL OF EXPOSURE OF OR REVENUE THAT MAY BE GENERATED THROUGH THE PROMOTION SERVICES.
6.3 Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL INSTAGIFT BE LIABLE TO BUSINESS FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES FOR ANY MATTER ARISING FROM OR RELATING TO THIS AGREEMENT, THE PROMOTION SERVICES, THE SITE, OR THE INTERNET GENERALLY, INCLUDING, WITHOUT LIMITATION, A SITE USER'S USE OR INABILITY TO ACCESS AND USE THE SITE OR ANY CONTENT, ANY CHANGES TO OR INACCESSIBILITY OF THE SITE OR ANY CONTENT, DELAY, FAILURE, UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY TRANSMISSION OR DATA, ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT, OR OTHERWISE AND EVEN IF INSTAGIFT WAS INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL INSTAGIFT'S TOTAL LIABILITY FOR DIRECT DAMAGES EXCEED THE TOTAL PROMOTION REVENUE GENERATED DURING THE PREVIOUS TWELVE (12) MONTHS.
6.4 Indemnification by Business. Business shall indemnify, defend, and hold Instagift, and its officers, shareholders, members, directors, employees, agents, service partners, and affiliates (each, an "Instagift Indemnified Party") harmless from and against any and all costs, liabilities, losses, and expenses, including, but not limited to, reasonable attorneys' fees resulting from or arising out of any claim, suit, action, arbitration, or proceeding brought by a third party against any Instagift Indemnified Party relating to: (a)Â a breach or alleged breach by Business of any of its representations, warranties, covenants or obligations hereunder; (b) infringement or misappropriation of any Intellectual Property Rights or other rights by Business or by use of the Business Content in accordance with this Agreement; (c) any violations by Business, by the Gift Certificates, or by the Loyalty Program of any applicable laws; and (d) Business's operations.
SECTION 7. RELATIONSHIP OF THE PARTIES7.1 Relationship of the Parties. The relationship of Instagift and Business established by this Agreement shall be solely that of independent contractors, and nothing herein shall create or imply any partnership, joint venture, or other relationship. Nothing in this Agreement shall be construed to give either party the power to direct or control the daily activities of the other party. Nothing in this Agreement shall grant either party or any of its representatives the power or authority to make or give any agreement, statement, representation, warranty, or other commitment on behalf of the other party, or to enter into any contract or otherwise incur any liability or obligation, express or implied, on behalf of the other party, or to transfer, release, or waive any right, title, or interest of the other party.
7.2 Changes to the Site. Instagift and its service partners reserve the right at any time without liability or prior notice to add, change, or terminate any of the specifications, features, content, or functions of the Site (with the exception of Business Content except as otherwise provided pursuant to this Agreement). 7.3 Expenditures. Business acknowledges and agrees that any expenses it incurs in furtherance of this Agreement are voluntary in nature and are made with the knowledge that this Agreement may expire or be terminated as provided herein. Business shall make no claim against Instagift or its service partners, and Instagift and its service partners shall not be liable with respect to the recoupment of any expenditures or investment made by Business.
SECTION 8. INTELLECTUAL PROPERTY RIGHTS
8.1 Intellectual Property Rights. As between the parties, Instagift and its service partners shall have and retain sole ownership of all Intellectual Property Rights in and to the Site and the Promotion Services (except the Business Content), including, without limitation, all current and future enhancements, revisions, releases, and updates thereof, any derivate works based thereon, and all documentation thereto. Business hereby irrevocably assigns to Instagift and its service partners any and all rights relating to suggestions, enhancement requests, recommendations, or other feedback provided by Business to Instagift relating to the Site and the Promotion Services.
8.2 No Copying or Modification. Business shall not copy, reproduce, disassemble, translate, reverse engineer, modify, edit, adapt, publish, display, distribute, transmit, sell, sublicense, create derivative works or compilations incorporating, assign, transfer, rent, lease, or unbundle the Site or any part thereof, or grant any other person or entity the right or access to do so, except as expressly allowed by Instagift in writing.
8.3 Confidential Information. During the course of performance of this Agreement, each party may disclose certain Confidential Information to the other party. The receiving party shall maintain the secrecy of all such Confidential Information and shall not use, disclose or otherwise exploit any Confidential Information for any purpose not specifically authorized by the disclosing party in this Agreement. All files, lists, records, documents, drawings, specifications, equipment, and computer programs that incorporate or refer to any Confidential Information shall be returned, deleted or destroyed by the receiving party promptly upon termination or expiration of this Agreement.
8.4 Remedies. Business agrees that a breach of this Section will cause Instagift irreparable injury and damage. The parties expressly agree that Instagift shall be entitled to injunctive and other equitable relief to prevent such a breach, in addition to any other remedy to which Instagift might be entitled. The parties waive the posting of any bond or surety prior to the issuance of an injunction hereunder. All remedies for such a breach shall be cumulative.
SECTION 9. GENERAL PROVISIONS
9.1 Binding Nature of Agreement; Assignment. Except as otherwise provided herein, the terms of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns, except that Business may not assign or transfer its rights or obligations under or interest in this Agreement without the prior written consent of Instagift.
9.2 Severability; Survival. If any term or provision of this Agreement is found to be invalid, the terms and conditions of this Agreement will remain in full force and effect, and such provision will be changed and interpreted so as to best accomplish its objectives within the limits of applicable law or applicable court decisions. Sections 1, 3.2, 3.3, 3.5, 5.4, and Sections 6 through 9 shall survive the termination of this Agreement as well as those other provisions included in this Agreement and any Promotion Schedules that by their content are intended to survive the termination of this Agreement.
9.3 No Third-Party Beneficiaries; No Waiver. With the exception of Instagift's service partners, the terms and provisions of this Agreement are intended solely for the benefit of each party hereto, and it is not the intention of the parties to confer third-party beneficiary rights upon any other person. No failure or delay by any party hereto in exercising any right, power, or privilege hereunder shall operate as a waiver of any right, power, or privilege hereunder. No waiver of any default on any one occasion shall constitute a waiver of any subsequent or other default. No partial exercise of any right, power, or privilege shall preclude the further or full exercise thereof.
9.4 Governing Law; Venue; Attorneys' Fees. This Agreement shall be governed by and shall be construed, interpreted and enforced in accordance with the laws of the State of Kansas, without reference to its internal principles of conflicts of law. The parties agree that the sole and exclusive jurisdiction and venue for any disputes arising hereunder shall be in any trial court located in Johnson or Wyandotte County, Kansas. In the event of any litigation between the parties hereto arising from or related to a party's performance or breach of this Agreement, the prevailing party shall be entitled to, in addition to any relief granted by a court of law, its reasonable attorneys' fees and other costs and expenses incurred in prosecuting or opposing the prosecution of such action.
9.5 Notices; Counterparts. All notices, demands, or other communications given under this Agreement shall be in writing and shall be deemed to have been duly given if delivered personally, mailed via registered mail, postage prepaid, to the attention of the persons who executed this Agreement or transmitted via facsimile or other electronic means of communication (with satisfactory evidence of transmission). This Agreement and any Promotion Schedule may be executed in any number of counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. The parties agree that this Agreement may be delivered by facsimile signature.
9.6 Entire Agreement. This Agreement, including any Promotion Schedules executed between the parties, shall be the entire agreement among the parties with respect to the transactions contemplated among them and supersedes all previous negotiations, commitments and writings. No alteration, modification or change of this Agreement or any Promotion Schedule shall be valid unless made in writing and executed by the parties hereto.