TOTAL GLOBAL SPORTS
MERCHANT TERMS AND CONDITIONS
These Merchant Terms and Conditions (the “Terms and Conditions”) govern and are incorporated into the Total Global Sports Merchant Agreement between Total Global Sports, Inc. (“TGS”) and Merchant (collectively the “Agreement”).
- Voucher Program.
(a) TGS is authorized to promote and sell Vouchers on Merchant’s behalf subject to the terms of this Agreement. The Voucher will evidence the goods and/or services to be provided by the Merchant, stated on the Voucher as presented by TGS (“Merchant Offering”) and will be sent to the purchaser electronically once payment is received. The purchaser will then redeem the Voucher with the Merchant by presenting the Voucher in paper or electronic form. Merchant is the issuer of the Vouchers and seller of the Merchant Offering. If there is a conflict between this Agreement and any terms of sale, the Agreement controls.
(b) TGS is authorized to promote and sell Vouchers on Merchant’s behalf through any platform or distribution channel owned, controlled, or operated by TGS, including TGS’ website, mobile website, or mobile applications. The Vouchers may be offered to all or part of TGS’ events.
(c) For appointment based Merchant Offerings, TGS may require that Merchant provide TGS with a calendar of available appointment times and allow TGS purchasers to schedule appointments with the Merchant through TGS and any third party service TGS may use. TGS may audit Merchant response times using various methods, including but not limited to, auto-dialers, call forwarding and pre-recorded calls. If TGS, in its sole discretion, determines Merchant response times or the quality of service provided to purchasers is unsatisfactory, TGS may terminate the Agreement and return the Amount Paid to purchasers for unredeemed Vouchers. Merchant agrees that so long as an appointment or reservation is made to redeem a Voucher, or purchaser has made an attempt to make an appointment, before the Voucher’s Promotional Value Expiration Date, the Voucher will be honored for the Full Offer Value without restriction, even though the services may be provided after the Promotional Value Expiration Date. In the event a purchaser seeks to schedule use of a Voucher prior to the Promotional Value Expiration Date and is denied by Merchant, or is unable to use the Voucher for any other reason prior to the Promotional Value Expiration Date, TGS may, upon purchaser request, extend the Promotional Value Expiration Date by sixty (60) days.
(d) TGS is authorized to promote and sell up to the Maximum Number of Vouchers in multiple markets and on dates in its discretion. If Merchant elects to offer recurring month-to-month features, then TGS will promote and sell up to the Maximum Number of Vouchers for the initial feature, then promote and sell up to the Monthly Maximum Number of Vouchers for subsequent features. Merchant shall specify the Maximum Number of Vouchers and, if applicable, specify the Monthly Maximum Number of Vouchers, and may increase either number in its discretion.
(e) TGS reserves the continuing right to reject, revise, or discontinue any Merchant Offering, at any time and for any reason in TGS’s sole discretion, and to terminate the Merchant Offering and to remove all references to the Merchant Offering and Voucher from TGS’ websites; and redirect or delete any URL used in connection with the Merchant Offering. Merchant shall honor the Vouchers for the Merchant Offering through the date stated on the Voucher when the full offer value less the amount paid expires (“Promotional Value Expiration Date”). After the Promotional Value Expiration Date, MERCHANT AGREES TO REDEEM THE VOUCHER FOR THE AMOUNT PAID INDEFINITELY.
(f) After the Promotional Value Expiration Date, Merchant must always allow the purchaser to redeem the Voucher for the amount Paid toward the Merchant Offering. If the goods and services constituting the Merchant Offering and stated on the Voucher are no longer available, the Merchant must always allow the purchaser to redeem the Voucher toward any goods or services then offered by the Merchant equivalent to at least the amount Paid. If applicable, and if a purchaser redeems a Voucher for less than the amount Paid, the Merchant is responsible for handling any unredeemed value as required by applicable law.
(g) Merchant agrees that in providing the Merchant Offering, Merchant will not inflate prices or impose any additional fees, charges, conditions or restrictions that contradict or are inconsistent with the terms stated on the Voucher, including the Fine Print. Unless disclosed in the Fine Print, Merchant further agrees not to impose different terms or a different cancellation policy than what is imposed on its non-TGS customers.
(h) Merchant is responsible for all purchaser service in connection with the Merchant Offering and for supplying all goods and services stated in the Merchant Offering. Merchant is also responsible for any purchaser loyalty programs associated with the Merchant Offering.
(i) If applicable, Merchant will hold the Merchant Offering for pick-up by each purchaser at the Redemption Site. The “Redemption Site” is the complete and accurate address provided by Merchant to TGS where purchasers are able to redeem the Voucher to pick-up the Merchant Offering. Merchant also agrees to provide TGS with the hours and dates of operation, complete with any exceptions, and a valid phone number for the Redemption Site. If any of the information related to a Redemption Site changes, Merchant agrees to notify TGS immediately of such change.
- Advertising Program. Merchant may elect upon reasonable approval of TGS to authorize TGS to promote and advertise Merchant’s business on TGS’ websites, mobile applications, or other platforms owned, controlled, or operated by TGS for an event that TGS assists in operating. In the event Merchant elects to authorize TGS to promote and advertise Merchant’s business for an event, Merchant agrees to pay TGS a reasonable percentage set by TGS in the TGS Merchant Agreement of all gross sales made to customers who are driven to Merchant from the Event.
(a) Amounts retained by TGS from the proceeds of the Merchant Offering are compensation to TGS for marketing, promoting, and advertising the Merchant Offering and distributing the Vouchers on behalf of Merchant. Merchant shall retain the amount TGS shall remit to Merchant for Each Voucher, subject to the payment terms (“Remittance Amount”) in trust for the benefit of purchasers holding unredeemed Vouchers until Merchant delivers the Merchant Offering, refunds the holder of any unredeemed Voucher or escheats the amount required to a taxing authority, if applicable. The funds held in trust shall be returned to TGS upon demand for refunds to purchasers. TGS is authorized to review Merchant’s credit history, which may include a soft credit check.
(b) TGS is authorized to initiate ACH credit transaction entries to Merchant’s depository account at the depository financial institution named in this Agreement or as otherwise provided to TGS by Merchant in writing (“Merchant Bank Account”). Only in the event of an error, TGS is authorized to initiate debit entry adjustments to the Merchant Bank Account to correct any error. Merchant hereby acknowledges that TGS’s origination of all ACH transactions to Merchant Bank Account must comply with provisions of U.S. law. ACH payments take up to five (5) business days to become available in the Merchant Bank Account after processing.
(c) Merchant will not attempt to bill or collect reimbursement from any third-party payor, including but not limited to any insurer, health insurance plan, Medicare, Medicaid, or any other federal, state, provincial, territorial or local governmental program or entity (“Third-Party Payor”), for any of Merchant’s services. Merchant will accept the amounts received from TGS as payment in full for all services provided by Merchant delivered pursuant to the Merchant Offering. Merchant is solely responsible for complying with any contractual requirements imposed by its contracts with Third-Party Payors, including but not limited to requirements related to offering discounted services.
(d) In the event TGS receives written notice of a validly issued state or federal tax levy relating to past-due taxes owed by Merchant, TGS may, in accordance with applicable law, deduct any such amounts from payments due to Merchant.
(e) It is Merchant’s responsibility to determine what, if any, taxes apply to the payments Merchant makes or receives, and it is Merchant’s responsibility to collect, report and remit the correct tax to the appropriate tax authority. TGS is not responsible for determining whether taxes apply to Merchant’s transaction with either purchasers or TGS, or for collecting, reporting or remitting any taxes arising from any transaction with or by Merchant and purchaser. Merchant may be asked to provide TGS with a valid Tax Identification Number for tax reporting purposes. An IRS Form 1099 may be issued in Merchant’s name for the value of payments made. Notwithstanding anything else in this Agreement, Merchant shall be, and will remain, registered for sales, use and other similar tax collection purposes in all states and localities in which Merchant is required to be so registered in connection with the Merchant Offering and pursuant to the terms and redemption of the Voucher, and shall be responsible for paying any and all sales, use or any other taxes related to the Merchant Offering or the goods and services. Merchant bears sole financial responsibility for any and all sales, use, excise, general, GST, or other similar taxes, including any interest penalties and additions related thereto, imposed on or arising from the transactions contemplated by this Agreement between TGS and Merchant (“Transaction Taxes”), if any. TGS shall apply the applicable Transaction Tax to the amounts it retains and/or other fees remitted to TGS pursuant this Agreement. Transaction Taxes are calculated using the Merchant’s billing address and will be included on invoices. Tax rates are subject to change. If applied, Transaction Taxes will be calculated at the time of each payment using the rates in effect under current law. TGS may be required by tax authorities to withhold taxes on behalf of Merchant. TGS reserves the right to deduct any such taxes from amounts due to Merchant and to remit them to the appropriate tax authority. TGS may also be required to report the withholding tax payments to the tax authorities. TGS shall provide evidence of payment of withholding taxes to Merchant no later than 60 days after payment of the withholding taxes.
(f) Notwithstanding anything to the contrary, TGS will have no obligation to advance amounts that have been paid to TGS by a purchaser until Merchant has complied with Merchant’s obligations under this Agreement. If TGS reasonably believes that Merchant has breached any provision of this Agreement, TGS may offset, delay, withhold, or suspend future payments to Merchant, in TGS’s sole discretion. In addition, if Merchant is unwilling to, or in TGS’s reasonable discretion appears unable to, perform its obligations under this Agreement, TGS is authorized to offset, delay, withhold, or suspend future payments to Merchant in addition to such other remedies as may be available under this Agreement or at law, to secure payment from Merchant for any refunds and/or other amounts payable by Merchant under this Agreement.
- Customer Data Restrictions.
(a) “Customer Data” means all identifiable information about purchasers generated or collected by TGS or Merchant, including, but not limited to, purchasers’ name, shipping addresses, email addresses, phone numbers, purchaser preferences and tendencies, and financial transaction data.
(d) Merchant shall immediately notify TGS if Merchant becomes aware of or suspects any unauthorized access to or use of Customer Data or any confidential information of TGS, and shall cooperate with TGS in the investigation of such breach and the mitigation of any damages. Merchant will bear all associated expenses incurred by TGS to comply with applicable laws (including, but not limited to, any data breach laws) or arising from any unauthorized access or acquisition of Customer Data while such data is in Merchant’s reasonable possession or control. Upon termination or expiration of this Agreement, Merchant shall, as directed by TGS, destroy or return to TGS all the Customer Data in Merchant’s or any agent of Merchant’s possession.
- Term and Termination. This Agreement will continue in effect until terminated by either party in accordance with this Section (“Term”). TGS is authorized to terminate this Agreement, at any time for any reason, upon written notice to Merchant. Merchant is authorized to terminate this Agreement upon seven (7) business days prior written notice to TGS. Termination of this Agreement will not in any way affect Merchant’s obligation to redeem any Voucher according to the terms of this Agreement, including the obligation to honor the Voucher for the Amount Paid after the Promotional Value Expiration Date. Provisions in this Agreement that are intended to survive termination will continue in full force and effect after the Term.
- Compliance with Gift Card, Gift Certificate, and Abandoned Property Laws. Merchant agrees to ensure that the Vouchers comply with all laws that govern vouchers, gift cards, coupons, and gift certificates, including but not limited to the United States Credit CARD Act of 2009 (if applicable) and any laws governing the imposition of expiration dates, service charges or dormancy fees and all Fine Print related to the Merchant Offering stated on the Voucher. Merchant is solely responsible for compliance with any applicable escheat or abandoned or unclaimed property laws. Upon written request from Merchant, but only when required, TGS will provide Merchant with information in TGS’s possession that the Merchant needs to comply with its obligations under this Agreement.
- Marketing. TGS and its business partners may communicate with Merchant with regard to products, promotions, and other services that may be of interest to Merchant. This may include email or other communications. TGS may also solicit Merchant’s opinion for market research purposes.
- Intellectual Property Rights.
(a) Merchant grants to TGS 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, publish and publicly perform: (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 to 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 and resale of the goods and services in all media or formats now known or hereinafter developed (“License”). Any use of the Merchant IP or Third Party IP as contemplated in this Agreement is within TGS’s sole discretion.
(b) Merchant acknowledges and agrees that, as between the parties, TGS owns all interest in and to its websites, Customer Data, mobile applications, trade names, logos, trademarks, service marks, domain names, social media identifiers, all data collected through or from its websites, all audiovisual content, video recordings, audio recordings, photographs, graphics, artwork, text or any other content created by TGS or at TGS’s direction, or assigned to TGS, and any materials, software, technology or tools used or provided by TGS to promote, resell or distribute the goods and services and conduct its business in connection therewith (collectively “TGS IP”). Merchant shall not use, sell, rent, lease, sublicense, distribute, broadcast, transmit, stream, place shift, transfer, copy, reproduce, download, time shift, display, perform, modify or timeshare the TGS IP or any portion thereof, or use such TGS IP as a component of or a base for products or services prepared for commercial use, sale, sublicense, lease, access or distribution, except that TGS grants Merchant a limited, non-exclusive, revocable, non-transferable, non-sub licensable license during the Term to use one copy of TGS’s mobile merchant software application on a single mobile computer, tablet computer, or other device, solely for the purposes permitted by that software, and to make one copy of the software for back-up purposes. Merchant shall keep the TGS IP confidential, and shall not prepare any derivative work based on the TGS IP or translate, reverse engineer, decompile or disassemble the TGS IP. Merchant shall not take any action to challenge or object to the validity of TGS’s rights in the TGS IP or TGS’s ownership or registration thereof. Except as specifically provided in this Agreement, Merchant and any third party assisting Merchant with its obligations in this Agreement, are not authorized to use TGS IP in any medium without prior written approval from an authorized representative of TGS. Merchant shall not include any trade name, trademark, service mark, domain name, social media identifier, of TGS or its affiliates, or any variant or misspelling thereof, in any trademark, domain name, email address, social network identifier, metadata or search engine keyword. Merchant shall not use or display any TGS IP in a manner that could reasonably imply an endorsement, relationship, affiliation with, or sponsorship between Merchant or a third party and TGS. All rights to the TGS IP not expressly granted in this Agreement are reserved by TGS.
(c) If Merchant provides TGS or any of its affiliates with feedback, suggestions, reviews, modifications, data, images, text, or other information or content about a TGS product or service or otherwise in connection with this Agreement, any TGS IP, or Merchant’s participation in the Merchant Offering or Voucher, (collectively, “Feedback”), Merchant irrevocably assigns to TGS all right, title, and interest in and to Feedback. In the event your assignment to TGS is invalid for any reason, Merchant hereby irrevocably grants TGS and its affiliates a perpetual, paid-up, royalty-free, nonexclusive, worldwide, irrevocable, freely transferable right and license to (i) use, reproduce, perform, display, and distribute Feedback; (ii) adapt, modify, re-format, and create derivative works of Feedback for any purpose and sublicense the foregoing rights to any other person or entity. Merchant warrants that: (A) Feedback is Merchant’s original work, or Merchant obtained Feedback in a lawful manner; and (B) TGS and its sublicensees’ exercise of rights under the license above will not violate any person’s or entity’s rights, including any copyright rights. Merchant agrees to provide TGS such assistance as TGS might require to document, perfect, or maintain TGS’s rights in and to Feedback.
- Representations and Warranties. Merchant represents and warrants that: (a) Merchant has the right, power and authority to enter into this Agreement; (b) Merchant, if required by applicable law, is registered for sales and use tax collection purposes in all jurisdictions where Merchant’s goods and services will be provided; (c) the Voucher, upon being delivered by TGS, will be available immediately for redemption and Merchant will have in stock until the Promotional Value Expiration Date, a number of units of the Merchant Offering sufficient to fulfill it’s redemption obligations; (d) the terms and conditions of the Voucher, including any discounts or goods and services offered thereunder do not and will not violate any, local, state, provincial, territorial or federal law, statute, rule, regulation, or order, including but not limited to, any law or regulation governing the use, sale, and distribution of alcohol and any laws governing vouchers, gift cards, coupons, and gift certificates; (e) the Merchant’s redemption of the Voucher will result in the bona fide provision of goods and/or services by Merchant to the purchaser; (f) Merchant owns all interest in and to the Merchant IP and has licensing rights in (with the right to sublicense to TGS) the Third Party IP, and has the right to grant the License stated in this Agreement; (g) the Merchant IP and the Third Party IP, the Merchant Offering, TGS’s use and promotion thereof, and the results of such Merchant Offerings, will not infringe, dilute, misappropriate, or otherwise violate, anywhere in the world, any patent, copyright, logo, trademark, service mark, trade name, rights in designs, or other intellectual property right or right of privacy or publicity of any third party or any applicable law, and does not and will not result from the misappropriation of any trade secret or the breach of any confidentiality obligations to any person or entity; (h) the Merchant IP and Third Party IP does not include any material that is unlawful, threatening, abusive, defamatory, vulgar, obscene, profane or otherwise objectionable, or that encourages conduct that constitutes a criminal offense, gives rise to civil liability or otherwise violates any law; (i) the Vouchers and any advertising or promotion of Merchant’s goods and services relating thereto will not constitute false, deceptive or unfair advertising or disparagement under any applicable law; (j) Merchant and its employees, contractors and agents have had the proper education and training and hold all required and up-to-date regulatory authorization, licenses and certifications relating to any Merchant Offering to provide the goods or services described in this Agreement; (k) Merchant’s business information and direct deposit details as provided in this Agreement, indicating where payments should be forwarded are accurate and Merchant is the authorized entity to receive the funds forwarded by TGS; (l) Merchant is not authorized to resell, broker or otherwise disclose any Customer Data (as defined in this Agreement) to any third party, in whole or in part, for any purpose, and Merchant is not authorized to copy or otherwise reproduce any Customer Data other than for the purpose of redeeming or verifying the validity of Vouchers in connection with this Agreement and (m) the Merchant Offering is: (i) free from defects in workmanship, materials and design, (ii) merchantable and suitable for the purposes, if any, stated in the Agreement, and (iii) genuine, bona fide products, as described herein and does not violate the rights of any third party.
- Indemnification. To the extent allowed under applicable law, Merchant agrees to defend, indemnify and hold TGS, its affiliated and related entities, and any of its respective officers, directors, agents and employees, harmless from and against any claims, lawsuits, investigations, penalties, damages, losses or expenses (including but not limited to reasonable attorneys’ fees and costs) arising out of or relating to any of the following: (a) any breach or alleged breach by Merchant of this Agreement, or the representations and warranties made in this Agreement; (b) any claim for state sales, use, or similar tax obligations of Merchant arising from the sale and redemption of a Voucher; (c) any claim by any local, state, provincial, territorial or federal governmental entity for unredeemed Vouchers or unredeemed cash values of Vouchers or any other amounts under any applicable abandoned or unclaimed property or escheat law, including but not limited to any claims for penalties and interest; (d) any claim arising out of a violation of any law or regulation by Merchant or governing Merchant’s goods and/or services; (e) any claim arising out of Merchant’s violation of law or regulation governing the use, sale, and distribution of alcohol; (f) any claim by a purchaser or anyone else arising out of or relating to the goods and services provided by Merchant and/or pick up of the goods and services at the Redemption Site, including but not limited to, any claims for false advertising, product defects, personal injury, death, or property damages; (g) any claim by a purchaser for the Amount Paid; (h) any claim arising out of Merchant’s misuse of Customer Data, or any violation of an applicable data privacy or security law. TGS maintains the right to control its own defense and to choose and appoint its own defense counsel, regardless of the presence or absence of a conflict of interest between TGS and Merchant; and (i) any claim arising out of Merchant’s negligence, fraud or willful misconduct. Merchant’s duty to defend and indemnify TGS includes the duty to pay TGS’s reasonable attorneys’ fees and costs, including any expert fees.
- Limitation of Liability. EXCEPT FOR MERCHANT’S INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT IS EITHER PARTY LIABLE OR OBLIGATED TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST BUSINESS, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE, OR INDIRECT DAMAGES REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGES IN ADVANCE. TGS’S SOLE AND COMPLETE LIABILITY TO MERCHANT FOR ANY CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR ANY ERRORS, OMISSIONS OR MISPLACEMENTS OF ANY VOUCHER IS LIMITED TO THE AMOUNT OF FEES RETAINED BY TGS HEREUNDER FOR THE PRECEDING SIX (6) MONTHS AFTER FINAL CALCULATION AND RECONCILIATION OF ALL REFUNDS. THIS LIMITATION OF LIABILITY APPLIES TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF ANY LIMITED REMEDY. IN ADDITION, ANY CLAIM BY OR ON BEHALF OF A MERCHANT IN CONNECTION WITH ANY PAYMENT MADE BY TGS, INCLUDING, BUT NOT LIMITED TO, CLAIMS ALLEGING THAT A MERCHANT WAS UNDERPAID, MUST BE MADE IN WRITING TO TGS WITHIN NINETY (90) DAYS FROM THE DATE TGS REMITS THE PAYMENT AT ISSUE. ALL CLAIMS NOT MADE IN ACCORDANCE WITH THE FOREGOING SHALL BE DEEMED WAIVED, RELEASED AND DISCHARGED BY MERCHANT.
(a) The parties are independent contractors. Nothing in this Agreement is to be construed to create a joint venture, partnership, franchise, or an agency relationship between the parties. Neither party has the authority, without the other party’s prior written approval, to bind or commit the other in any way.
(b) This Agreement constitutes the entire agreement between the parties relating to its subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter.
(c) Merchant is not authorized to transfer or assign its rights or obligations under this Agreement, whether by operation of law or otherwise, without TGS’s prior written consent. Any waiver must be in writing and signed by an authorized signatory of TGS. TGS is authorized to transfer or assign this Agreement to a present or future affiliate or pursuant to a merger, consolidation, reorganization or sale of all or substantially all of the assets or business, or by operation of law, without notice to Merchant.
(d) If any provision of this Agreement should be held to be invalid or unenforceable, the validity and enforceability of the remaining provisions of this Agreement are not affected.
(e) 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. TGS DOES NOT WARRANT OR GUARANTEE THAT THE SERVICES OFFERED ON OR THROUGH THE WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE VOUCHERS ARE ERROR-FREE, OR THAT ANY MERCHANT OFFERING WILL RESULT IN ANY REVENUE OR PROFIT FOR MERCHANT.
(f) This Agreement is governed and construed according to the laws of the State of California without regard to any of its principles of conflicts laws or other laws which would result in the application of the laws of another jurisdiction.
(g) This Agreement and the rights and obligations hereunder may not be assigned by Merchant without the prior written consent of TGS. TGS may assign or amend this Agreement in its sole discretion by providing seven (7) days’ notice to Merchant.
(h) Any waiver by a party of any breach of or failure to comply with any provisions of this Agreement by another party shall not be construed as, or constitute, a continuing waiver of such provision or condition, or a waiver of any other breach of, or failure to comply with, any other provision or conditions of this Agreement and no waiver shall be effective unless in a written instrument signed by the party granting the waiver and delivered to the other party.