Merchant Terms & Conditions

 

This Agreement by and between Koupons (hereinafter referred to as the “Company”) and the seller of the goods and services (hereinafter referred to as the “Merchant”, “You”) is executed and effective from today (herein after “Effective Date”)
RECITALS
i) Company is a group buying website, which promotes and delivers deals on the products or services available in ____________
ii) Company is familiar with Group buying technicalities; community bargain and related aspects.
iii) Merchant is the seller of the goods and services.
iv) Merchant intends to sell its products/services through the Company’s website by offering discounts for group buying.
v) The Merchant is the “issuer” of the voucher for its Deal and the Company acts as the “marketing agent” for the Deal by selling the Vouchers through its website.In consideration of the mutual covenants and agreements hereinafter contained and set forth, the parties hereto agree as follows:
1. Nature of Services
Merchant offers discount on products or services through deal vouchers/certificates (herein after collectively called “Deal” or “Vouchers”) sold by it through the Company website. It offers discounts on deals in ……………….. The discount is available and can be claimed only on purchases above a specified amount and by a group of people. Merchant exchanges the vouchers for the product/service under terms specified in the voucher or under the deal terms. This makes it a win-win situation for both Purchaser and Seller as the Purchaser gets the discount and the Merchant gets enough customers to make the discount sale worth while.
When a Merchant registers with the Company, the Company promotes the products/services of the Merchant on the Company’s website. As an advertiser, the Company will pitch your business to the Company’s installed customer base. The Company may use Merchant Content (which may include logo, photograph or other marketing materials) to prepare one or more promotional creative for the particular Deal (“Deal Creative”); which, in its discretion, which may include a Deal page hosted on the Company’s website or other websites offered with our distribution partners; an email creative to be distributed to potential purchasers of the Deal voucher, or other similar creatives for online promotion of the Deal. Deal Creative will be published only with the prior approval of the Merchant. Merchant agrees not to withhold or unreasonably delay the grant of approval. Once a Deal Creative has been approved, the Company is deemed to have approval to use and promote other Deal Creatives that are substantially similar to the approved Deal Creative.

The Company sells online vouchers/certificates for sale of products and services of the Merchant; collects the sale proceeds from the customers who purchase the voucher. For each voucher purchased, the company will retain ____% of the deal amount as the company’s service fee and pay the balance _____ % of amount to the Merchant. Merchant can submit its claim for payment to the Company only when the customer redeems his/ her voucher with the Merchant.
By registering with the company website or using it, the Merchant agrees to be bound by and to follow the Terms and Conditions herein.
2. Definitions
“Account” means Merchant’s …………………….. account, accessible via the Website.
“Deal Creative” means promotional materials including a Deal Page, created by the Company using the merchant content; hosted on the website of the Company or its Associates or Partners.
“Maximum Number of Vouchers” means, with respect to the applicable Voucher Deal, the maximum number of Vouchers that Merchant wants to sell, as specified on the applicable Voucher Deal Specification.
“Offer period” means the scheduled time period during which, each Deal Voucher is offered and marketed.
“Voucher Expiration Date” means the date on which the Vouchers are intended to expire, as specified on the applicable Voucher Deal Specification.
“Voucher Deal” means a plan for selling Vouchers pursuant to this Agreement.
“Voucher Deal Specification” means the page(s) accessible via Merchant’s Account that reflect the details of the applicable Voucher Deal, as approved by the Company.
3. Obligations/Responsibilities of Company
When a Merchant registers with the Company by providing the required information, the Merchant’s Account is automatically created with the Company website. Merchant represents and warrants that: (a) all required registration information submitted is complete and accurate; and (b) Merchant will maintain the accuracy of such information. Merchant is responsible for maintaining the confidentiality of Merchant’s Account login information and fully responsible for all activities that occur under the Account. Merchant agrees to immediately notify the Company of any unauthorized use, or suspected unauthorized use of the Account or any other breach of security. Company cannot and will not be liable for any loss or damage arising from Merchant’s failure to comply with the above requirements.
4. Deals/ Vouchers
Merchant authorizes the Company to promote, offer, sell and distribute Deals/Vouchers, in accordance with this Agreement and subject to the restrictions set forth in this Agreement. As far as possible, Company will offer the Vouchers for sale on dates requested by the Merchant. However, the offer period will be solely designated by the Company. Without limiting the foregoing, an Offer Period is typically 24 hours for Deals made available on Monday through Thursday or 72 hours for Deals offered over a weekend. Offer Periods are subject to scheduling change or cancellation at the sole discretion of the Company. The Company will endeavour to notify Merchant in advance of the Offer Period. However, the Company provides no guarantee that it will provide advance notice of Offer Periods or changes to a planned. If there is a Maximum Number of Vouchers designated on any date, Company will use reasonable efforts to cease publishing the Voucher once it has received offers to buy that number of Vouchers equal to the Maximum Number of Vouchers. The last date on which the Company publishes the Voucher for sale to its users shall be considered the “Final Date”. The Vouchers shall be “Activated” (which means capable of being used for purchases with the Merchant in accordance with the terms of the Voucher) only when the Volume upper limit (minimum number) of purchasers has been met prior to the Volume upper limit Deadline (means date on which minimum numbers should be achieved). At the time that the Volume Threshold has been met, the Company will electronically deliver the Voucher to the purchaser. Company shall promote only those voucher deals of a Merchant which have been duly accepted (approved) by it. Company will not have any obligations with respect to any Vouchers related to any Voucher Deal that have not been accepted by the Company. Income (sale Proceeds) will be shared between the Company and the Merchant from all properly activated Vouchers for which a purchaser has fully paid to the Company and for which Merchant has provided associated goods and/or services to purchaser. If the Company, in its opinion decides that Merchant has not provided goods or services consistent with the Voucher Deal Specification or as specified in the voucher deal, Company will have the right to: (1) not pay any Amount to the Merchant in connection with any applicable Vouchers, and (2) refund the voucher amount to the purchaser of a Voucher in the relevant Voucher Deal.

5. Merchant Obligations/Responsibilities
Merchant is the seller of the goods and services described in the Voucher. The activated Voucher will be sent to the purchaser electronically by the Company. The purchaser can redeem the Voucher at the Merchant establishment.
a) Merchant is making an Offer available pursuant to the Voucher Deal.
b) Merchant’s obligations under this Merchant Agreement (and with respect to any Voucher) are contingent upon selling the Volume Threshold by the Volume Threshold Deadline. Company reserves the right to increase the Volume Threshold at its sole discretion.
c) Company may offer the Voucher through its deal of the day feature or through its various side deals or through its marketplace.
d) Each Voucher will expire on the Voucher Expiration Date.
e) Merchant agrees that in providing the goods/services that are the subject of the Voucher, it will not impose any extra or additional fees or charges that contradict the terms set forth on the face of the Voucher.
f) Merchant agrees not treat Voucher holders differently from other paying customers in the scheduling (e.g., use of blackout dates and times) or delivery of services; and will adhere to the terms as expressly set forth in the Deal Voucher.
g) Merchant hereby grants the Company a non-exclusive worldwide license to reproduce, use, display, perform, distribute, and create derivative works based upon the Merchant Content for the purpose of developing, distributing, and otherwise promoting the Deal Creatives as the Company deems appropriate.
h) Merchant will comply with the Special Instructions (if any).
Once a Voucher is “Activated” and delivered to the purchaser, Merchant shall be solely responsible for supplying all goods and services specified in the Voucher. Company markets the Deals and acts as an agent in selling the Vouchers on behalf of the Merchants. But the Merchant is the issuer of the Voucher. As issuer of the Voucher, the Merchant shall be fully responsible for any and all injuries, illnesses, damages, claims, liabilities and costs suffered by a customer.
6. Fees and Payment
a) Fee: In consideration for fulfilling its obligations under this Agreement, the company will retain ____% of the deal amount received from the purchasers of the vouchers as the company’s service fee and pay the balance _____ % of amount to the Merchant.
b) Merchant Payment: The customer pays to the Company for the deal voucher purchased by him/her. Income will be shared between Company and the Merchant from all properly activated Vouchers for which a purchaser has fully paid to the Company and for which Merchant has provided associated goods and/or services to purchaser and performed its obligations under this agreement. Company will remit the Merchant’s share after deduction of its Fee, VAT and Programme fee, if any. Merchant can submit its claim for payment to the Company along with Voucher Redemption Data maintained by it. Merchant payment will be sent within 10 business days after receipt of the related claim. Company reserves the right to hold back up to 30% of the merchant payment in case it has received a substantial number of customer complaints or requests for refunds, till the matter is resolved.

c) VAT: Merchant agrees to strictly adhere to the rules governing registration and compliance under the Value Added Tax Act 1994 of United Kingdom. Company will remit VAT on the Commission/Fee to the Authorities concerned and provide a record of such payment to Merchant. Merchant will be solely responsible for remitting to applicable taxing authorities any additional VAT owed based upon the Deal Price or in connection with the redemption of Vouchers

7. Refunds
In case, a Customer is dissatisfied with the experience of scheduling and using the Merchant Product, Company will refund the purchase price paid by the customer for any Deal within five days after the purchase of a Voucher, provided that the Voucher has not yet been redeemed. The Company also refunds the related commission to the Merchant. Any refund made in error or in excess of the eligible amount, will be set-off by the Company against the future payments due to the Merchant. The Merchant also agrees to voluntarily repay to the Company any excess payment received by it. After five days, the company does not provide refunds except that the company will provide a refund if the customer is unable to redeem a Voucher before the applicable expiration of the Voucher because the relevant Merchant has gone out of business.
8. Representations and Warranties

Merchant represents and warrants throughout the Term that:
a) Merchant has the right, power and authority to enter into this Agreement;
b) the Voucher, upon being Activated and delivered by the Company, shall be available immediately for redemption by the purchaser;
c) comply with all the terms and conditions of the Voucher, including any discounts or goods and services offered there under and do not and will not violate any, local, state law, statute, rule, regulation, or order (“Laws”);
d) the Trade Marks and the Contents do not and will not violate any copyright, Trademark, or other intellectual property right or right of privacy or publicity of any third party or any Laws; and
e) the Vouchers and any advertising or promotion of Merchant’s products and services relating thereto will not constitute false, deceptive or unfair advertising or disparagement under any applicable Laws.
9. Indemnification
Merchant agrees to indemnify, defend and hold the Company, its affiliated and related entities, and any of their officers, directors, agents and employees, harmless from and against any claims, lawsuits, investigations, penalties, damages, losses or expenses (including but not limited to attorney’s fees and costs) arising out of or relating to any of the following: (a) any breach or alleged breach of this Agreement by Merchant or the obligations, representations and warranties stated above; (b) any claim for tax obligations (“Taxes”) arising from the sale and subsequent redemption of a Voucher; (c) any claim for unredeemed Vouchers or unredeemed cash values of Vouchers or any other amounts; or (d) any claim arising out of or relating to the Deal, voucher, products and services provided by Merchant, including but not limited to, any claims for false advertising, product defects, personal injury, death, or property damages. Without limiting the foregoing, Merchant shall pay any monies owed to any party, as well as all attorney’s fees, related to any action against, or determinations against the Company related to any action to pursue the Company for Taxes or other Claims.
10. Limitation of Liability

Except for indemnification obligations hereunder, in no event shall either party be liable to the other party for indirect, incidental, consequential, special or exemplary damages of any kind (regardless of the form of action, whether in contract, tort, negligence, strict product liability, or otherwise, even if informed of the possibility of any such damages in advance), arising from breach of this agreement, or arising from any of the provisions of this agreement, such as but not limited to loss of revenue or anticipated profits or lost business (collectively, “disclaimed Damages”). The Company’s cumulative liability related to direct damages will be limited to the commission/fees received by the company related to the deal. These limitations shall not apply to any indemnification obligation. Any claim arising out of or relating to any error or omission in a Voucher must be made within one (1) year of first publication of the Voucher. Otherwise, the claim shall be deemed waived by Merchant.

11. Intellectual Property Rights
Merchant agrees and acknowledges that the Company owns all right, title, and interest in the contents of the Website, Trademarks, and any software, technology or tools used by the Company to promote, market, sell, generate, or distribute the Vouchers (collectively the “Intellectual Property”). Merchant shall not rent, lease, sub-license, distribute, transfer, copy, reproduce, download, display, modify or share the Company’s IP or any portion thereof, or use such Company IP as a component of or a base for products or services prepared for commercial sale, sub-license, lease, access or distribution. Merchant shall not prepare any derivative work based on the Company IP. Merchant shall not translate, reverse engineer, decompile or disassemble the Company IP.
Merchant grants to the Company a non-exclusive worldwide license and right to use, reproduce, license, display, distribute and transmit the Merchant’s name, logo and any trademarks (“Merchant Marks”) and any photographs, graphics, artwork, text and other content provided or specified by Merchant (“Content”) in connection with the marketing, promotion, sale or distribution of Vouchers, in any and all media or formats in which such Vouchers are marketed, promoted, transmitted, sold, or distributed, including but not limited to, on the Company’s Website. The Company may modify this Agreement at any time and such modification shall be intimated to the Merchant through email; and will be effective upon the earlier of: (a) thirty (30) days after receiving the e-mail and (b) the date after such notice that Merchant submits a new Voucher Deal proposal.
Merchant will indemnify the Company against any claim by image library companies against any unauthorized use of photographs or images that merchant has obtained from them and stated to the company that this was within their rights to allow the Company to reproduce on its website.

12. Confidentiality
The terms of this Agreement are confidential, and Merchant agrees to not disclose the terms described herein to any party (other than its employees, and shareholders on a need-to-know/must know basis only after each has taken the necessary precautions of the kind generally taken with confidential information to preserve the confidentiality of the information made available to such individuals). Any breach of this confidentiality provision by Merchant shall be considered a material breach of this Agreement and will result in irreparable and continuing damage to the Company for which there will be no adequate remedy at law; and in the event of such breach, the Company will be entitled to injunctive relief and/or a decree for specific performance, and such other and further relief as may be proper (including monetary damages if appropriate).
13. Term and Termination
a) Term
This Agreement shall commence on the Effective Date and continue for a period of one (1) year following the Date of registration or till the last date when a customer redeems a Voucher, offered by Merchant through the Company.
b) Termination
A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
c) Survival
Clauses 9, 10, 11 and 12, and also any claims for payments due to either party, shall survive any expiration or termination of this Agreement.
After the expiry of this Agreement, the Company may continue to use and distribute the Deal Creative as exemplars and for general promotional purposes.
14. Miscellaneous
a) Entire Agreement
This Agreement sets forth the understanding between you and Company relating to the subject matter and replaces all prior understandings or agreements between the parties.
b) Notices
The communications between Merchant and the Company will be through electronic means. For contractual purposes, Merchant (a) consents to receive communications from the Company in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that the Company provides to the merchant electronically satisfy any legal requirement that such communications would satisfy if it were in writing.
c) Waiver
No waiver of any term or condition hereof shall be effective unless the parties herein consent to the same by affixing their signature.

d) Counterparts
This Agreement may be executed in one or more counterparts, which may be exchanged by facsimile or other electronic means.
e) Paragraph Headings
Paragraph headings are for reference purposes only and are not intended to create substantive rights or obligations.
f) Covenant of good faith and fair dealing
The parties shall agree to perform their obligations under this Agreement, in all respects, in good faith.
g) Severability
If one or more of the provisions in this Agreement are deemed void by law then the remaining provisions will continue in full force and effect.
h) Nature of Relationship
The Parties are independent contractors. Nothing in this Agreement shall 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 Party in any way.
i) Governing Law
This Agreement shall be governed by the English laws. Each party agrees to the applicable governing law without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the courts in England. The parties agree that any disputes, controversies, or claims in connection with or arising out of this Agreement, its negotiation, breach, existence, validity or termination, shall be vested exclusively in the local courts England.
j) Arbitration
Any claim, dispute, or controversy, the merchant may have against the Company arising out of, or connected in any way with this Agreement, or the purchase or sale of any Voucher(s), shall be resolved exclusively by final and binding arbitration administered by the Arbitration Act 1996 (of England).

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