Term and Conditions
ADVERTISER/MERCHANT TERMS AND CONDITIONSEffective date 5/24/2021
These Advertiser/Merchant Terms and Conditions (the “Terms and Conditions”) govern and are incorporated into the DealsForWeddings.com Advertiser/Merchant Agreement between DealsForWeddings.com and Advertiser/Merchant (collectively, the “Agreement”). DealsForWeddings.com, subject to the provisions of this paragraph, may amend the Terms and Conditions in its sole discretion and at any time. The most recent version of the Terms and Conditions (as may be amended by DealsForWeddings.com from time to time) will be available: (i) in DealsForWeddings.com Advertiser/Merchant Center. Advertiser/Merchant agrees that this notification method constitutes adequate notice to inform Advertiser/Merchant of any amendments to the Agreement and Advertiser/Merchant further agrees to be bound by any such amendments to the Agreement upon such notification.
Definitions
“ADVERTISER/MERCHANT OFFERING” means the goods and/or services to be provided by the Advertiser/Merchant, stated on the DEAL PAGE as presented by DealsForWeddings.com. Values determined by Advertiser/Merchant.
“MAXIMUM NUMBER OF DEAL OFFERS” means the maximum number of Deal Offers DealsForWeddings.com is authorized to administer the sale of on behalf of the Advertiser/Merchant.
“OFFER VALUE” means the Promotional Value of the DEAL offered by the Advertiser/Merchant.
ADVERTISER/MERCHANT TERMS AND CONDITIONS
Effective date 5/24/2021
These Advertiser/Merchant Terms and Conditions (the “Terms and Conditions”) govern and are incorporated into the DealsForWeddings.com Advertiser/Merchant Agreement between DealsForWeddings.com and Advertiser/Merchant (collectively, the “Agreement”). DealsForWeddings.com, subject to the provisions of this paragraph, may amend the Terms and Conditions in its sole discretion and at any time. The most recent version of the Terms and Conditions (as may be amended by DealsForWeddings.com from time to time) will be available: (i) in DealsForWeddings.com Advertiser/Merchant Center. Advertiser/Merchant agrees that this notification method constitutes adequate notice to inform Advertiser/Merchant of any amendments to the Agreement and Advertiser/Merchant further agrees to be bound by any such amendments to the Agreement upon such notification.
Definitions
“ADVERTISER/MERCHANT OFFERING” means the goods and/or services to be provided by the Advertiser/Merchant, stated on the DEAL PAGE as presented by DealsForWeddings.com. Values determined by Advertiser/Merchant.
“MAXIMUM NUMBER OF DEAL OFFERS” means the maximum number of Deal Offers DealsForWeddings.com is authorized to administer the sale of on behalf of the Advertiser/Merchant.
“OFFER VALUE” means the Promotional Value of the DEAL offered by the Advertiser/Merchant.
“PROMOTIONAL VALUE EXPIRATION DATE” means the date stated on the Deal Offer when the Promotional Value expires.
“FINE PRINT” means the conditions and restrictions concerning Deal Offer redemption and the Advertiser/Merchant Offering stated on the Website and Deal Offer.
1. Deal Offer Program
a. DealsForWeddings.com is authorized to promote on Advertiser/Merchant’s behalf subject to the terms of this Agreement and the “Terms of Sale” of the Website. The Deal will evidence the Advertiser/Merchant Offering and will be sent to the purchaser electronically. The purchaser will then redeem the Deal Offer with the Advertiser/Merchant by presenting the Deal Offer in paper or electronic form. Advertiser/Merchant is the issuer of the Deal Offers and seller of the Advertiser/Merchant Offering. If there is a conflict between this Agreement and the Terms of Sale, the Agreement controls.
b. DealsForWeddings.com is authorized to promote Deal Offers on Advertiser/Merchant’s behalf through any platform, including its feature deal-of-the-day, affiliates, business partner network, marketplace, or referral network. The Deal Offers may be offered to all or part of DealsForWeddings.com subscriber base or its affiliate subscriber base or referral network and segmented by various variables including gender, age, location, and consumer preferences. The features may be offered through a variety of distribution channels, including, the Internet, the Website, affiliate websites, business partner network, email, mobile applications, other types of electronic offerings and other platforms or distribution channels owned, controlled, or operated by DealsForWeddings.com, its affiliates or business partners. In addition, in connection with DealsForWeddings.com promotion of a Advertiser/Merchant Offering, Advertiser/Merchant authorizes DealsForWeddings.com to shorten or extend the Promotional Value Expiration Date.
c. For appointment-based Advertiser/Merchant Offerings, DealsForWeddings.com may require that Advertiser/Merchant provide DealsForWeddings.com with a calendar of available appointment times and allow DealsForWeddings.com purchasers to schedule appointments with the Advertiser/Merchant through DealsForWeddings.com and any third-party service DealsForWeddings.com may use. DealsForWeddings.com may audit Advertiser/Merchant response times using various methods, including but not limited to, auto-dialers, call forwarding and pre-recorded calls. If DealsForWeddings.com, in its sole discretion, determines Advertiser/Merchant response times or the quality of service provided to purchasers is unsatisfactory, DealsForWeddings.com may terminate the Agreement for unredeemed Deal Offer(s).
d. Any Advertiser/Merchant who provides an Advertiser/Merchant Offering that includes massage services shall: (i) conduct social media searches for all of its employees, agents and/or independent contractors performing any massage service to ensure that they maintain a good reputation; and (ii) confirm that its employees, agents and/or independent contractors providing massage services have the required licenses and/or certifications, as well as meet other applicable state law requirements, for performing the services. Further, Advertiser/Merchant shall certify to DealsForWeddings.com annually that it is in compliance with (i) and (ii) above.
e. If Advertiser/Merchant performs background checks on its employees, agents and/or independent contractors performing services, Advertiser/Merchant shall provide the results of such background checks to DealsForWeddings.com upon request. Advertiser/Merchant shall obtain the necessary consent to share with DealsForWeddings.com the results requested.
f. Advertiser/Merchant shall promptly notify DealsForWeddings.com any time it receives a complaint related to potentially criminal conduct, including allegations of sexual assault, allegedly engaged in by any of its employees, agents or independent contractors, regardless of whether a DealsForWeddings.com customer makes the complaint.
g. DealsForWeddings.com is authorized to promote up to the Maximum Number of Deal Offers in multiple markets and on dates in its discretion. If Advertiser/Merchant elects to offer recurring month-to-month features, then DealsForWeddings.com will promote up to the Maximum Number of Deal Offers for the initial feature, then promote up to the Monthly Maximum Number of Deal Offers for subsequent features. Advertiser/Merchant shall specify the Maximum Number of Deal Offers and, if applicable, specify the Monthly Maximum Number of Deal Offers, and may increase either number in its discretion.
h. DealsForWeddings.com reserves the continuing right to reject, revise, or discontinue any Advertiser/Merchant Offering, at any time and for any reason in DealsForWeddings.com sole discretion, and to terminate the Advertiser/Merchant Offering and to remove all references to the Advertiser/Merchant Offering and Deal Offer from the Website; and redirect or delete any URL used in connection with the Advertiser/Merchant Offering.
i. Advertiser/Merchant shall honor the Deal Offers for the Advertiser/Merchant Offering through the Promotional Value Expiration Date. After the Promotional Value Expiration Date, ADVERTISER/MERCHANT AGREES TO REDEEM THE DEAL OFFER FOR THE AMOUNT PAID INDEFINITELY.
j. After the Promotional Value Expiration Date, Advertiser/Merchant must always allow the purchaser to redeem the Deal Offer for the Amount Paid toward the Advertiser/Merchant Offering. If the goods and services constituting the Advertiser/Merchant Offering and stated on the Deal Offer are no longer available, the Advertiser/Merchant must always allow the purchaser to redeem the Deal Offer toward any goods or services then offered by the Advertiser/Merchant equivalent to at least the original Deal Offer Amount.
k. Partial redemptions: If applicable, and if a purchaser redeems a Deal Offer for less than the Amount Paid, the Advertiser/Merchant is responsible for handling any unredeemed value as required by applicable law.
l. Advertiser/Merchant agrees that in providing the Advertiser/Merchant Offering, Advertiser/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 Deal Offer, including the Fine Print. Unless disclosed in the Fine Print, Advertiser/Merchant further agrees not to impose different terms or a different cancellation policy than what is imposed on its non-DealsForWeddings.com customers.
m. Advertiser/Merchant agrees that so long as an appointment or reservation is made to redeem a Deal Offer, or purchaser has tried to make an appointment, before the Deal Offer’s Promotional Value Expiration Date, the Deal Offer will be honored for the Full Offer Value without restriction, even though the services may be provided after the Promotional Value Expiration Date.
n. Advertiser/Merchant is responsible for all customer service in connection with the Advertiser/Merchant Offering and for supplying all goods and services stated in the Advertiser/Merchant Offering. Advertiser/Merchant is also responsible for any customer loyalty programs associated with the Advertiser/Merchant Offering.
o. If applicable, Advertiser/Merchant will hold the Advertiser/Merchant Offering for pick-up by each purchaser at the Redemption Site. The “Redemption Site” is the complete and accurate address provided by Advertiser/Merchant to DealsForWeddings.com where purchasers can redeem the Deal Offer to pick-up the Advertiser/Merchant Offering. Advertiser/Merchant also agrees to provide DealsForWeddings.com 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, Advertiser/Merchant agrees to notify DealsForWeddings.com immediately of such change.
p. Advertiser/Merchant agrees to accept returns of the Advertiser/Merchant Offering in compliance with applicable laws and the Fine Print, but in any event: (i) will accept returns of a defective Advertiser/Merchant Offering or nonconforming items in or a part of any Advertiser/Merchant Offering at all times and pay (or reimburse a purchaser for) any and all costs associated with the return of such Advertiser/Merchant Offering; and (ii) will not impose a more restrictive return policy on purchasers than Advertiser/Merchant’s regular return policy as applied to Advertiser/Merchant’s purchaser in the ordinary course of Advertiser/Merchant’s business.
2. Payment
a. Amounts retained by DealsForWeddings.com from the proceeds of the Advertiser/Merchant Offering are compensation to DealsForWeddings.com for marketing, promoting, and advertising the Advertiser/Merchant Offering and distributing the Deal Offers on behalf of Advertiser/Merchant purchasers. DealsForWeddings.com is authorized to review Advertiser/Merchant’s credit history, which may include a soft credit check. ALL PAYMENTS ARE NON-REFUNDABLE AND NON-TRANSFERABLE.
b. Advertiser/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 Advertiser/Merchant’s services.
c. Taxes Generally. It is Advertiser/Merchant’s responsibility to determine what, if any, taxes apply to the payments Advertiser/Merchant makes or receives, and it is Advertiser/Merchant’s responsibility to collect, report and remit the correct tax to the appropriate tax authority. DealsForWeddings.com is not responsible for determining whether taxes apply to Advertiser/Merchant’s transaction with either purchasers or DealsForWeddings.com, or for collecting, reporting, or remitting any taxes arising from any transaction with or by Advertiser/Merchant and purchaser. Advertiser/Merchant may be asked to provide DealsForWeddings.com with a valid Tax Identification Number for tax reporting purposes. An IRS Form 1099 may be issued in Advertiser/Merchant’s name for the value of payments made. Notwithstanding anything else in this Agreement, Advertiser/Merchant shall be, and will remain, registered for sales, use and other similar tax collection purposes in all states and localities in which Advertiser/Merchant is required to be so registered in connection with the Advertiser/Merchant Offering and pursuant to the terms and redemption of the Deal Offer, and shall be responsible for paying any and all sales, use or any other taxes related to the Advertiser/Merchant Offering or the goods and services.
d. Transaction Taxes. Advertiser/Merchant bears sole financial responsibility for 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 DealsForWeddings.com and Advertiser/Merchant (“Transaction Taxes”), if any. DealsForWeddings.com shall apply the applicable Transaction Tax to the amounts it retains and/or other fees remitted to DealsForWeddings.com pursuant this Agreement. Transaction Taxes are calculated using the Advertiser/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.
e. Notwithstanding anything to the contrary, DealsForWeddings.com will have no obligation to advance amounts that have been paid to DealsForWeddings.com by a purchaser until Advertiser/Merchant has complied with Advertiser/Merchant’s obligations under this Agreement. If DealsForWeddings.com reasonably believes that Advertiser/Merchant has breached any provision of this Agreement, DealsForWeddings.com may offset, delay, withhold, or suspend future promotions to Advertiser/Merchant, in DealsForWeddings.com sole discretion. In addition, if Advertiser/Merchant is unwilling to, or in DealsForWeddings.com reasonable discretion appears unable to, perform its obligations under this Agreement, DealsForWeddings.com is authorized to offset, delay, withhold, or suspend future promotions to Advertiser/Merchant in addition to such other remedies as may be available under this Agreement or at law, to secure payment from Advertiser/Merchant for any refunds and/or other amounts payable by Advertiser/Merchant under this Agreement.
3. Customer Data Restrictions
a. “Customer Data” means all identifiable information about purchasers generated or collected by DealsForWeddings.com or Advertiser/Merchant, including, but not limited to, purchasers’ name, shipping addresses, email addresses, phone numbers, purchaser preferences and tendencies, and financial transaction data.
b. Advertiser/Merchant shall use Customer Data only to fulfill its redemption obligations in connection with the Advertiser/Merchant Offering as authorized by this Agreement. Advertiser/Merchant expressly agrees that any Customer Data shall be used only for this purpose (including, but not limited to, the redemption of Deal Offers and provision of goods and services to purchasers), and not to enhance a file or list owned by Advertiser/Merchant, or any third party. Advertiser/Merchant represents, warrants, and covenants that it will not resell, broker or otherwise disclose any Customer Data to any third party, in whole or in part, for any purpose, unless required by applicable law. If Advertiser/Merchant engages any third party to facilitate its redemption obligations hereunder, Advertiser/Merchant shall ensure that such third party implements and complies with reasonable security measures in handling any Customer Data. If any Customer Data is collected directly by Advertiser/Merchant or a third party engaged by Advertiser/Merchant to facilitate its redemption obligations hereunder, Advertiser/Merchant shall ensure that it or such third party adopts, posts and processes the Customer Data in conformity with its posted privacy policy and all applicable laws.
c. As long as Advertiser/Merchant uses Customer Data in compliance with applicable law and Advertiser/Merchant’s posted privacy policy, restrictions stated in this Agreement on Advertiser/Merchant’s use of Customer Data do not apply to: (i) data from any purchaser who is already a customer of Advertiser/Merchant before the Effective Date, if such data was provided to Advertiser/Merchant by such purchaser independent of this Agreement or any transaction hereunder; or (ii) data supplied by a purchaser directly to Advertiser/Merchant who becomes a customer of Advertiser/Merchant in connection with such purchaser explicitly opting in to receive communications from Advertiser/Merchant.
d. Advertiser/Merchant shall immediately notify DealsForWeddings.com if Advertiser/Merchant becomes aware of or suspects any unauthorized access to or use of Customer Data or any confidential information of DealsForWeddings.com and shall cooperate with DealsForWeddings.com in the investigation of such breach and the mitigation of any damages. Advertiser/Merchant will bear all associated expenses incurred by DealsForWeddings.com 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 Advertiser/Merchant’s reasonable possession or control. Upon termination or expiration of this Agreement, Advertiser/Merchant shall, as directed by DealsForWeddings.com, destroy or return to DealsForWeddings.com all the Customer Data in Advertiser/Merchant’s or any agent of Advertiser/Merchant’s possession.
4. Term and Termination
This Agreement will continue in effect for one full year commencing on the date the Deal Offer is approved by DealsForWeddings.com. or until terminated by either party in accordance with this Section (“Term”). DealsForWeddings.com is authorized to terminate this Agreement, at any time for any reason, upon written notice to Advertiser/Merchant. Termination of this Agreement will not in any way affect Advertiser/Merchant’s obligation to redeem any Deal Offer according to the terms of this Agreement, including the obligation to honor the Deal Offer 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.
5. Compliance with Gift Card, Gift Certificate and Abandoned Property Laws
Advertiser/Merchant agrees to comply with the Deal Offer terms and conditions as stated on the Website, including but not limited to any “Terms of Use” of the Website, and to ensure that the Deal Offers comply with all laws that govern Deal Offers, 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 Advertiser/Merchant Offering stated on the Deal Offer. Advertiser/Merchant is solely responsible for compliance with any applicable escheat or abandoned or unclaimed property laws. Upon written request from Advertiser/Merchant, but only when required, DealsForWeddings.com will provide Advertiser/Merchant with information in DealsForWeddings.com possession that the Advertiser/Merchant needs to comply with its obligations under this Agreement. Advertiser/Merchant agrees that, regardless of the payment terms, Advertiser/Merchant, and not DealsForWeddings.com, maintains any obligation for unredeemed Deal Offers under applicable escheat or abandoned or unclaimed property laws.
6. Marketing
DealsForWeddings.com and its business partners may communicate with Advertiser/Merchant about products, promotions, and other services that may be of interest to Advertiser/Merchant. This may include email or other communications. DealsForWeddings.com may also solicit Advertiser/Merchant’s opinion for market research purposes.
7. Intellectual Property Rights
a. Advertiser/Merchant grants to DealsForWeddings.com 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) Advertiser/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 Advertiser/Merchant (collectively, “Advertiser/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 Advertiser/Merchant (collectively, “Third Party IP”), in each case in connection with the promotion, sale/resale (as may be applicable) or distribution of the Advertiser/Merchant Offering in all media or formats now known or hereinafter developed (“License”). Any use of the Advertiser/Merchant IP or Third-Party IP as contemplated in this Agreement is within DealsForWeddings.com sole discretion.
b. Advertiser/Merchant acknowledges and agrees that, as between the parties, DealsForWeddings.com owns all interest in and to the Website, Customer Data, DealsForWeddings.com trade names, logos, trademarks, service marks, domain names, social media identifiers, all data collected through or from the Website, all audiovisual content, video recordings, audio recordings, photographs, graphics, artwork, text or any other content created by DealsForWeddings.com or at DealsForWeddings.com direction, or assigned to DealsForWeddings.com, and any materials, software, technology or tools used or provided by DealsForWeddings.com to promote, sell/resell (as may be applicable) or distribute the Advertiser/Merchant Offering and conduct its business in connection therewith (collectively “DealsForWeddings.com IP”). Advertiser/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 DealsForWeddings.com IP or any portion thereof, or use such DealsForWeddings.com IP as a component of or a base for products or services prepared for commercial use, sale, sublicense, lease, access or distribution challenge or object to the validity of DealsForWeddings.com rights in the DealsForWeddings.com IP or DealsForWeddings.com ownership or registration thereof. Except as specifically provided in this Agreement, Advertiser/Merchant and any third-party assisting Advertiser/Merchant with its obligations in this Agreement, are not authorized to use DealsForWeddings.com IP in any medium without prior written approval from an authorized representative of DealsForWeddings.com. Advertiser/Merchant shall not include any trade name, trademark, service mark, domain name, social media identifier, of DealsForWeddings.com or its affiliates, or any variant or misspelling thereof, in any trademark, domain name, email address, social network identifier, metadata or search engine keyword. Advertiser/Merchant shall not use or display any DealsForWeddings.com IP in a manner that could reasonably imply an endorsement, relationship, affiliation with, or sponsorship between Advertiser/Merchant or a third party and DealsForWeddings.com. All rights to the DealsForWeddings.com IP not expressly granted in this Agreement are reserved by DealsForWeddings.com.
c. If Advertiser/Merchant provides DealsForWeddings.com or any of its affiliates with feedback, suggestions, reviews, modifications, data, images, text, or other information or content about a DealsForWeddings.com product or service or otherwise in connection with this Agreement, any DealsForWeddings.com IP, or Advertiser/Merchant’s participation in the Advertiser/Merchant Offering or Deal Offer, (collectively, “Feedback”), Advertiser/Merchant irrevocably assigns to DealsForWeddings.com all right, title, and interest in and to Feedback. In the event your assignment to DealsForWeddings.com is invalid for any reason, you hereby irrevocably grant DealsForWeddings.com 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. Advertiser/Merchant warrants that: (A) Feedback is Advertiser/Merchant’s original work, or Advertiser/Merchant obtained Feedback in a lawful manner; and (B) DealsForWeddings.com and its sublicensees’ exercise of rights under the license above will not violate any person’s or entity’s rights, including any copyright rights. Advertiser/Merchant agrees to provide DealsForWeddings.com such assistance as DealsForWeddings.com might require to document, perfect, or maintain DealsForWeddings.com rights in and to Feedback.
8. Representations and Warranties
Advertiser/Merchant represents and warrants that: (a) Advertiser/Merchant has the right, power and authority to enter into this Agreement; (b) Advertiser/Merchant, if required by applicable law, is registered for sales and use tax collection purposes in all jurisdictions where Advertiser/Merchant’s goods and services will be provided; (c) the Deal Offer, upon being delivered by DealsForWeddings.com, will be available immediately for redemption and Advertiser/Merchant will have sufficient goods and/or services available for redemption through the Promotional Value Expiration Date (i.e., a number of goods and/or services sufficient to fulfill its redemption obligations in connection with the applicable Maximum Number of Deal Offers); (d) the terms and conditions of the Deal Offer, 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 Deal Offers, gift cards, coupons, and gift certificates; (e) the Advertiser/Merchant’s redemption of the Deal Offer will result in the bona fide provision of goods and/or services by Advertiser/Merchant to the purchaser; (f) Advertiser/Merchant owns all interest in and to the Advertiser/Merchant IP and has licensing rights in (with the right to sublicense to DealsForWeddings.com) the Third Party IP, and has the right to grant the License stated in this Agreement; (g) the Advertiser/Merchant IP and the Third Party IP, the Advertiser/Merchant Offering, DealsForWeddings.com use and promotion thereof, and the results of such Advertiser/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 Advertiser/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 Deal Offers and any advertising or promotion of Advertiser/Merchant’s goods and services relating thereto will not constitute false, deceptive or unfair advertising or disparagement under any applicable law; (j) Advertiser/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 Advertiser/Merchant Offering to provide the goods or services described in this Agreement; (k) Advertiser/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 Advertiser/Merchant is not authorized to copy or otherwise reproduce any Customer Data other than for the purpose of redeeming or verifying the validity of Deal Offers in connection with this Agreement and (m) the Advertiser/Merchant Offering is: (i) free from defects in workmanship, materials and design, (ii) Advertiser/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.
9. Indemnification
To the extent allowed under applicable law, Advertiser/Merchant agrees to defend, indemnify and hold DealsForWeddings.com, 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 Advertiser/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 Advertiser/Merchant arising from the sale and redemption of a Deal Offer; (c) any claim by any local, state, provincial, territorial or federal governmental entity for unredeemed Deal Offers or unredeemed cash values of Deal Offers 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 Advertiser/Merchant or governing Advertiser/Merchant’s goods and/or services; (e) any claim arising out of Advertiser/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 Advertiser/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 Advertiser/Merchant’s misuse of Customer Data, or any violation of an applicable data privacy or security law; and (i) any claim arising out of Advertiser/Merchant’s negligence, fraud or willful misconduct. DealsForWeddings.com 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 DealsForWeddings.com and Advertiser/Merchant. Advertiser/Merchant’s duty to defend and indemnify DealsForWeddings.com includes the duty to pay DealsForWeddings.com reasonable attorneys’ fees and costs, including any expert fees.
10. Confidentiality
The terms for the Advertiser/Merchant Offering described in this Agreement are confidential, and Advertiser/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 public records and other law, if Advertiser/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, DealsForWeddings.com is entitled to injunctive relief and a decree for specific performance, and any other relief allowed under applicable law (including monetary damages if appropriate).
11. Limitation of Liability
EXCEPT FOR ADVERTISER/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. DEALSFORWEDDINGS.COM’S SOLE AND COMPLETE LIABILITY TO ADVERTISER/MERCHANT FOR ANY CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR ANY ERRORS, OMISSIONS OR MISPLACEMENTS OF ANY DEAL OFFER IS LIMITED TO THE AMOUNT OF $50. THIS LIMITATION OF LIABILITY APPLIES TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF ANY LIMITED REMEDY.
12. Dispute Resolution
All disputes arising out of, or relating in any way to this Agreement, shall be resolved pursuant to this Section 12 Dispute Resolution.
a. Binding Arbitration
EXCEPT AS SPECIFICALLY STATED HEREIN, ANY DISPUTE OR CLAIM BETWEEN ADVERTISER/MERCHANT AND DEALSFORWEDDINGS.COM ARISING OUT OF, OR RELATING IN ANY WAY TO, THIS AGREEMENT (“DISPUTES”) SHALL BE RESOLVED EXCLUSIVELY BY FINAL, BINDING ARBITRATION. BY VIRTUE OF THE AGREEMENT IN THIS SECTION 12 TO ARBITRATE, ADVERTISER/MERCHANT AND DEALSFORWEDDINGS.COM ARE EACH GIVING UP THE RIGHT TO GO TO COURT AND HAVE A DISPUTE HEARD BY A JUDGE OR JURY (EXCEPT AS OTHERWISE SET FORTH IN THIS SECTION 14). The provisions of this Section 14 shall constitute Advertiser/Merchant’s and DealsForWeddings.com written agreement to arbitrate Disputes under the Federal Arbitration Act. The arbitration will be administered by the American Arbitration Association (“AAA”) and conducted before a single arbitrator pursuant to its applicable rules, including those applicable to Commercial Disputes, available at http://www.adr.org or by calling 800-778-7879. The arbitrator will apply and be bound by this Agreement, apply applicable law and the facts, and issue a reasoned award.
To begin an arbitration proceeding, Advertiser/Merchant or DealsForWeddings.com must comply with the limitations provision set forth in Section 13 and submit the Dispute by making a demand for arbitration as detailed at http://www.adr.org. If Advertiser/Merchant demands arbitration, it shall simultaneously send a copy of the completed demand to the DealsForWeddings.com. If DealsForWeddings.com demands arbitration, it shall simultaneously send a copy of the completed demand to the Advertiser/Merchant’s address of record. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. DealsForWeddings.com will reimburse those fees for Disputes totaling less than $500.00 if Advertiser/Merchant is the prevailing party in such arbitration. DealsForWeddings.com will seek attorneys’ fees and costs in arbitration,especially if the arbitrator determines that an Advertiser/Merchant Dispute is frivolous. The arbitration will be conducted based upon written submissions unless Advertiser/Merchant requests and/or the arbitrator determines that a telephone or in-person hearing is necessary. If the arbitrator grants the request or determines an in-person hearing is necessary, the hearing will proceed in Chicago, Illinois, unless the arbitrator determines or we agree that the matter should proceed in the county of Advertiser/Merchant’s principal place of business.
b. Class Action Waiver
WE EACH AGREE THAT WE SHALL BRING ANY DISPUTE AGAINST THE OTHER IN OUR RESPECTIVE INDIVIDUAL CAPACITIES AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE PROCEEDING OR AS AN ASSOCIATION. IN ADDITION, WE EACH AGREE THAT DISPUTES SHALL BE ARBITRATED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. THE ARBITRATOR DOES NOT HAVE THE POWER TO VARY THESE PROVISIONS.
c. Choice of Law/No Jury Trial
If for any reason a Dispute proceeds in court: (i) Advertiser/Merchant and DealsForWeddings.com agree that any such Dispute may only be instituted in a state or federal court in Seminole County in theState of Florida; (ii) Advertiser/Merchant and DealsForWeddings.com irrevocably consent and submit to the exclusive personal jurisdiction and venue of such courts for resolution of such Disputes; (iii) Advertiser/Merchant and DealsForWeddings.com agree that the Federal Arbitration Act, the AAA rules, applicable federal law and the laws of the State of Florida, without regard to principles of conflicts of law, will govern this Agreement and any Disputes; and (iv) ADVERTISER/MERCHANT AND DEALSFORWEDDINGS.COM AGREE TO WAIVE ANY RIGHT TO A TRIAL BY JURY.
d. Injunctive Relief/Attorneys’ Fees
Notwithstanding anything to the contrary in this Agreement, either party may bring suit in court seeking an injunction or other equitable relief arising out of or relating to claims that the other party’s conduct may cause the other irreparable injury.
In the event DealsForWeddings.com is the prevailing party in any Dispute, subject to any exceptions in this Section 12, Advertiser/Merchant shall pay to DealsForWeddings.com all reasonable attorneys’ fees and costs incurred by DealsForWeddings.com in connection with any Dispute.
13. Other
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. Advertiser/Merchant is not authorized to transfer or assign its rights or obligations under this Agreement, whether by operation of law or otherwise, without DealsForWeddings.com prior written consent. Any waiver must be in writing and signed by an authorized signatory of DealsForWeddings.com. DealsForWeddings.com 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 Advertiser/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 ADVERTISER/MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. DEALSFORWEDDINGS.COM DOES NOT WARRANT OR GUARANTEE THAT THE SERVICES OFFERED ON OR THROUGH THE WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE DEAL OFFERS ARE ERROR-FREE, OR THAT ANY ADVERTISER/MERCHANT OFFERING WILL RESULT IN ANY REVENUE OR PROFIT FOR ADVERTISER/MERCHANT.
means the date stated on the Deal Offer when the Promotional Value expires.
“FINE PRINT” means the conditions and restrictions concerning Deal Offer redemption and the Advertiser/Merchant Offering stated on the Website and Deal Offer.
1. Deal Offer Program
a. DealsForWeddings.com is authorized to promote on Advertiser/Merchant’s behalf subject to the terms of this Agreement and the “Terms of Sale” of the Website. The Deal will evidence the Advertiser/Merchant Offering and will be sent to the purchaser electronically. The purchaser will then redeem the Deal Offer with the Advertiser/Merchant by presenting the Deal Offer in paper or electronic form. Advertiser/Merchant is the issuer of the Deal Offers and seller of the Advertiser/Merchant Offering. If there is a conflict between this Agreement and the Terms of Sale, the Agreement controls.
b. DealsForWeddings.com is authorized to promote Deal Offers on Advertiser/Merchant’s behalf through any platform, including its feature deal-of-the-day, affiliates, business partner network, marketplace, or referral network. The Deal Offers may be offered to all or part of DealsForWeddings.com subscriber base or its affiliate subscriber base or referral network and segmented by various variables including gender, age, location, and consumer preferences. The features may be offered through a variety of distribution channels, including, the Internet, the Website, affiliate websites, business partner network, email, mobile applications, other types of electronic offerings and other platforms or distribution channels owned, controlled, or operated by DealsForWeddings.com, its affiliates or business partners. In addition, in connection with DealsForWeddings.com promotion of a Advertiser/Merchant Offering, Advertiser/Merchant authorizes DealsForWeddings.com to shorten or extend the Promotional Value Expiration Date.
c. For appointment-based Advertiser/Merchant Offerings, DealsForWeddings.com may require that Advertiser/Merchant provide DealsForWeddings.com with a calendar of available appointment times and allow DealsForWeddings.com purchasers to schedule appointments with the Advertiser/Merchant through DealsForWeddings.com and any third-party service DealsForWeddings.com may use. DealsForWeddings.com may audit Advertiser/Merchant response times using various methods, including but not limited to, auto-dialers, call forwarding and pre-recorded calls. If DealsForWeddings.com, in its sole discretion, determines Advertiser/Merchant response times or the quality of service provided to purchasers is unsatisfactory, DealsForWeddings.com may terminate the Agreement for unredeemed Deal Offer(s).
d. Any Advertiser/Merchant who provides an Advertiser/Merchant Offering that includes massage services shall: (i) conduct social media searches for all of its employees, agents and/or independent contractors performing any massage service to ensure that they maintain a good reputation; and (ii) confirm that its employees, agents and/or independent contractors providing massage services have the required licenses and/or certifications, as well as meet other applicable state law requirements, for performing the services. Further, Advertiser/Merchant shall certify to DealsForWeddings.com annually that it is in compliance with (i) and (ii) above.
e. If Advertiser/Merchant performs background checks on its employees, agents and/or independent contractors performing services, Advertiser/Merchant shall provide the results of such background checks to DealsForWeddings.com upon request. Advertiser/Merchant shall obtain the necessary consent to share with DealsForWeddings.com the results requested.
f. Advertiser/Merchant shall promptly notify DealsForWeddings.com any time it receives a complaint related to potentially criminal conduct, including allegations of sexual assault, allegedly engaged in by any of its employees, agents or independent contractors, regardless of whether a DealsForWeddings.com customer makes the complaint.
g. DealsForWeddings.com is authorized to promote up to the Maximum Number of Deal Offers in multiple markets and on dates in its discretion. If Advertiser/Merchant elects to offer recurring month-to-month features, then DealsForWeddings.com will promote up to the Maximum Number of Deal Offers for the initial feature, then promote up to the Monthly Maximum Number of Deal Offers for subsequent features. Advertiser/Merchant shall specify the Maximum Number of Deal Offers and, if applicable, specify the Monthly Maximum Number of Deal Offers, and may increase either number in its discretion.
h. DealsForWeddings.com reserves the continuing right to reject, revise, or discontinue any Advertiser/Merchant Offering, at any time and for any reason in DealsForWeddings.com sole discretion, and to terminate the Advertiser/Merchant Offering and to remove all references to the Advertiser/Merchant Offering and Deal Offer from the Website; and redirect or delete any URL used in connection with the Advertiser/Merchant Offering.
i. Advertiser/Merchant shall honor the Deal Offers for the Advertiser/Merchant Offering through the Promotional Value Expiration Date. After the Promotional Value Expiration Date, ADVERTISER/MERCHANT AGREES TO REDEEM THE DEAL OFFER FOR THE AMOUNT PAID INDEFINITELY.
j. After the Promotional Value Expiration Date, Advertiser/Merchant must always allow the purchaser to redeem the Deal Offer for the Amount Paid toward the Advertiser/Merchant Offering. If the goods and services constituting the Advertiser/Merchant Offering and stated on the Deal Offer are no longer available, the Advertiser/Merchant must always allow the purchaser to redeem the Deal Offer toward any goods or services then offered by the Advertiser/Merchant equivalent to at least the original Deal Offer Amount.
k. Partial redemptions: If applicable, and if a purchaser redeems a Deal Offer for less than the Amount Paid, the Advertiser/Merchant is responsible for handling any unredeemed value as required by applicable law.
l. Advertiser/Merchant agrees that in providing the Advertiser/Merchant Offering, Advertiser/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 Deal Offer, including the Fine Print. Unless disclosed in the Fine Print, Advertiser/Merchant further agrees not to impose different terms or a different cancellation policy than what is imposed on its non-DealsForWeddings.com customers.
m. Advertiser/Merchant agrees that so long as an appointment or reservation is made to redeem a Deal Offer, or purchaser has tried to make an appointment, before the Deal Offer’s Promotional Value Expiration Date, the Deal Offer will be honored for the Full Offer Value without restriction, even though the services may be provided after the Promotional Value Expiration Date.
n. Advertiser/Merchant is responsible for all customer service in connection with the Advertiser/Merchant Offering and for supplying all goods and services stated in the Advertiser/Merchant Offering. Advertiser/Merchant is also responsible for any customer loyalty programs associated with the Advertiser/Merchant Offering.
o. If applicable, Advertiser/Merchant will hold the Advertiser/Merchant Offering for pick-up by each purchaser at the Redemption Site. The “Redemption Site” is the complete and accurate address provided by Advertiser/Merchant to DealsForWeddings.com where purchasers can redeem the Deal Offer to pick-up the Advertiser/Merchant Offering. Advertiser/Merchant also agrees to provide DealsForWeddings.com 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, Advertiser/Merchant agrees to notify DealsForWeddings.com immediately of such change.
p. Advertiser/Merchant agrees to accept returns of the Advertiser/Merchant Offering in compliance with applicable laws and the Fine Print, but in any event: (i) will accept returns of a defective Advertiser/Merchant Offering or nonconforming items in or a part of any Advertiser/Merchant Offering at all times and pay (or reimburse a purchaser for) any and all costs associated with the return of such Advertiser/Merchant Offering; and (ii) will not impose a more restrictive return policy on purchasers than Advertiser/Merchant’s regular return policy as applied to Advertiser/Merchant’s purchaser in the ordinary course of Advertiser/Merchant’s business.
2. Payment
a. Amounts retained by DealsForWeddings.com from the proceeds of the Advertiser/Merchant Offering are compensation to DealsForWeddings.com for marketing, promoting, and advertising the Advertiser/Merchant Offering and distributing the Deal Offers on behalf of Advertiser/Merchant purchasers. DealsForWeddings.com is authorized to review Advertiser/Merchant’s credit history, which may include a soft credit check. ALL PAYMENTS ARE NON-REFUNDABLE AND NON-TRANSFERABLE.
b. Advertiser/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 Advertiser/Merchant’s services.
c. Taxes Generally. It is Advertiser/Merchant’s responsibility to determine what, if any, taxes apply to the payments Advertiser/Merchant makes or receives, and it is Advertiser/Merchant’s responsibility to collect, report and remit the correct tax to the appropriate tax authority. DealsForWeddings.com is not responsible for determining whether taxes apply to Advertiser/Merchant’s transaction with either purchasers or DealsForWeddings.com, or for collecting, reporting, or remitting any taxes arising from any transaction with or by Advertiser/Merchant and purchaser. Advertiser/Merchant may be asked to provide DealsForWeddings.com with a valid Tax Identification Number for tax reporting purposes. An IRS Form 1099 may be issued in Advertiser/Merchant’s name for the value of payments made. Notwithstanding anything else in this Agreement, Advertiser/Merchant shall be, and will remain, registered for sales, use and other similar tax collection purposes in all states and localities in which Advertiser/Merchant is required to be so registered in connection with the Advertiser/Merchant Offering and pursuant to the terms and redemption of the Deal Offer, and shall be responsible for paying any and all sales, use or any other taxes related to the Advertiser/Merchant Offering or the goods and services.
d. Transaction Taxes. Advertiser/Merchant bears sole financial responsibility for 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 DealsForWeddings.com and Advertiser/Merchant (“Transaction Taxes”), if any. DealsForWeddings.com shall apply the applicable Transaction Tax to the amounts it retains and/or other fees remitted to DealsForWeddings.com pursuant this Agreement. Transaction Taxes are calculated using the Advertiser/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.
e. Notwithstanding anything to the contrary, DealsForWeddings.com will have no obligation to advance amounts that have been paid to DealsForWeddings.com by a purchaser until Advertiser/Merchant has complied with Advertiser/Merchant’s obligations under this Agreement. If DealsForWeddings.com reasonably believes that Advertiser/Merchant has breached any provision of this Agreement, DealsForWeddings.com may offset, delay, withhold, or suspend future promotions to Advertiser/Merchant, in DealsForWeddings.com sole discretion. In addition, if Advertiser/Merchant is unwilling to, or in DealsForWeddings.com reasonable discretion appears unable to, perform its obligations under this Agreement, DealsForWeddings.com is authorized to offset, delay, withhold, or suspend future promotions to Advertiser/Merchant in addition to such other remedies as may be available under this Agreement or at law, to secure payment from Advertiser/Merchant for any refunds and/or other amounts payable by Advertiser/Merchant under this Agreement.
3. Customer Data Restrictions
a. “Customer Data” means all identifiable information about purchasers generated or collected by DealsForWeddings.com or Advertiser/Merchant, including, but not limited to, purchasers’ name, shipping addresses, email addresses, phone numbers, purchaser preferences and tendencies, and financial transaction data.
b. Advertiser/Merchant shall use Customer Data only to fulfill its redemption obligations in connection with the Advertiser/Merchant Offering as authorized by this Agreement. Advertiser/Merchant expressly agrees that any Customer Data shall be used only for this purpose (including, but not limited to, the redemption of Deal Offers and provision of goods and services to purchasers), and not to enhance a file or list owned by Advertiser/Merchant, or any third party. Advertiser/Merchant represents, warrants, and covenants that it will not resell, broker or otherwise disclose any Customer Data to any third party, in whole or in part, for any purpose, unless required by applicable law. If Advertiser/Merchant engages any third party to facilitate its redemption obligations hereunder, Advertiser/Merchant shall ensure that such third party implements and complies with reasonable security measures in handling any Customer Data. If any Customer Data is collected directly by Advertiser/Merchant or a third party engaged by Advertiser/Merchant to facilitate its redemption obligations hereunder, Advertiser/Merchant shall ensure that it or such third party adopts, posts and processes the Customer Data in conformity with its posted privacy policy and all applicable laws.
c. As long as Advertiser/Merchant uses Customer Data in compliance with applicable law and Advertiser/Merchant’s posted privacy policy, restrictions stated in this Agreement on Advertiser/Merchant’s use of Customer Data do not apply to: (i) data from any purchaser who is already a customer of Advertiser/Merchant before the Effective Date, if such data was provided to Advertiser/Merchant by such purchaser independent of this Agreement or any transaction hereunder; or (ii) data supplied by a purchaser directly to Advertiser/Merchant who becomes a customer of Advertiser/Merchant in connection with such purchaser explicitly opting in to receive communications from Advertiser/Merchant.
d. Advertiser/Merchant shall immediately notify DealsForWeddings.com if Advertiser/Merchant becomes aware of or suspects any unauthorized access to or use of Customer Data or any confidential information of DealsForWeddings.com and shall cooperate with DealsForWeddings.com in the investigation of such breach and the mitigation of any damages. Advertiser/Merchant will bear all associated expenses incurred by DealsForWeddings.com 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 Advertiser/Merchant’s reasonable possession or control. Upon termination or expiration of this Agreement, Advertiser/Merchant shall, as directed by DealsForWeddings.com, destroy or return to DealsForWeddings.com all the Customer Data in Advertiser/Merchant’s or any agent of Advertiser/Merchant’s possession.
4. Term and Termination
This Agreement will continue in effect for one full year commencing on the date the Deal Offer is approved by DealsForWeddings.com. or until terminated by either party in accordance with this Section (“Term”). DealsForWeddings.com is authorized to terminate this Agreement, at any time for any reason, upon written notice to Advertiser/Merchant. Termination of this Agreement will not in any way affect Advertiser/Merchant’s obligation to redeem any Deal Offer according to the terms of this Agreement, including the obligation to honor the Deal Offer 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.
5. Compliance with Gift Card, Gift Certificate and Abandoned Property Laws
Advertiser/Merchant agrees to comply with the Deal Offer terms and conditions as stated on the Website, including but not limited to any “Terms of Use” of the Website, and to ensure that the Deal Offers comply with all laws that govern Deal Offers, 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 Advertiser/Merchant Offering stated on the Deal Offer. Advertiser/Merchant is solely responsible for compliance with any applicable escheat or abandoned or unclaimed property laws. Upon written request from Advertiser/Merchant, but only when required, DealsForWeddings.com will provide Advertiser/Merchant with information in DealsForWeddings.com possession that the Advertiser/Merchant needs to comply with its obligations under this Agreement. Advertiser/Merchant agrees that, regardless of the payment terms, Advertiser/Merchant, and not DealsForWeddings.com, maintains any obligation for unredeemed Deal Offers under applicable escheat or abandoned or unclaimed property laws.
6. Marketing
DealsForWeddings.com and its business partners may communicate with Advertiser/Merchant about products, promotions, and other services that may be of interest to Advertiser/Merchant. This may include email or other communications. DealsForWeddings.com may also solicit Advertiser/Merchant’s opinion for market research purposes.
7. Intellectual Property Rights
a. Advertiser/Merchant grants to DealsForWeddings.com 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) Advertiser/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 Advertiser/Merchant (collectively, “Advertiser/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 Advertiser/Merchant (collectively, “Third Party IP”), in each case in connection with the promotion, sale/resale (as may be applicable) or distribution of the Advertiser/Merchant Offering in all media or formats now known or hereinafter developed (“License”). Any use of the Advertiser/Merchant IP or Third-Party IP as contemplated in this Agreement is within DealsForWeddings.com sole discretion.
b. Advertiser/Merchant acknowledges and agrees that, as between the parties, DealsForWeddings.com owns all interest in and to the Website, Customer Data, DealsForWeddings.com trade names, logos, trademarks, service marks, domain names, social media identifiers, all data collected through or from the Website, all audiovisual content, video recordings, audio recordings, photographs, graphics, artwork, text or any other content created by DealsForWeddings.com or at DealsForWeddings.com direction, or assigned to DealsForWeddings.com, and any materials, software, technology or tools used or provided by DealsForWeddings.com to promote, sell/resell (as may be applicable) or distribute the Advertiser/Merchant Offering and conduct its business in connection therewith (collectively “DealsForWeddings.com IP”). Advertiser/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 DealsForWeddings.com IP or any portion thereof, or use such DealsForWeddings.com IP as a component of or a base for products or services prepared for commercial use, sale, sublicense, lease, access or distribution challenge or object to the validity of DealsForWeddings.com rights in the DealsForWeddings.com IP or DealsForWeddings.com ownership or registration thereof. Except as specifically provided in this Agreement, Advertiser/Merchant and any third-party assisting Advertiser/Merchant with its obligations in this Agreement, are not authorized to use DealsForWeddings.com IP in any medium without prior written approval from an authorized representative of DealsForWeddings.com. Advertiser/Merchant shall not include any trade name, trademark, service mark, domain name, social media identifier, of DealsForWeddings.com or its affiliates, or any variant or misspelling thereof, in any trademark, domain name, email address, social network identifier, metadata or search engine keyword. Advertiser/Merchant shall not use or display any DealsForWeddings.com IP in a manner that could reasonably imply an endorsement, relationship, affiliation with, or sponsorship between Advertiser/Merchant or a third party and DealsForWeddings.com. All rights to the DealsForWeddings.com IP not expressly granted in this Agreement are reserved by DealsForWeddings.com.
c. If Advertiser/Merchant provides DealsForWeddings.com or any of its affiliates with feedback, suggestions, reviews, modifications, data, images, text, or other information or content about a DealsForWeddings.com product or service or otherwise in connection with this Agreement, any DealsForWeddings.com IP, or Advertiser/Merchant’s participation in the Advertiser/Merchant Offering or Deal Offer, (collectively, “Feedback”), Advertiser/Merchant irrevocably assigns to DealsForWeddings.com all right, title, and interest in and to Feedback. In the event your assignment to DealsForWeddings.com is invalid for any reason, you hereby irrevocably grant DealsForWeddings.com 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. Advertiser/Merchant warrants that: (A) Feedback is Advertiser/Merchant’s original work, or Advertiser/Merchant obtained Feedback in a lawful manner; and (B) DealsForWeddings.com and its sublicensees’ exercise of rights under the license above will not violate any person’s or entity’s rights, including any copyright rights. Advertiser/Merchant agrees to provide DealsForWeddings.com such assistance as DealsForWeddings.com might require to document, perfect, or maintain DealsForWeddings.com rights in and to Feedback.
8. Representations and Warranties
Advertiser/Merchant represents and warrants that: (a) Advertiser/Merchant has the right, power and authority to enter into this Agreement; (b) Advertiser/Merchant, if required by applicable law, is registered for sales and use tax collection purposes in all jurisdictions where Advertiser/Merchant’s goods and services will be provided; (c) the Deal Offer, upon being delivered by DealsForWeddings.com, will be available immediately for redemption and Advertiser/Merchant will have sufficient goods and/or services available for redemption through the Promotional Value Expiration Date (i.e., a number of goods and/or services sufficient to fulfill its redemption obligations in connection with the applicable Maximum Number of Deal Offers); (d) the terms and conditions of the Deal Offer, 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 Deal Offers, gift cards, coupons, and gift certificates; (e) the Advertiser/Merchant’s redemption of the Deal Offer will result in the bona fide provision of goods and/or services by Advertiser/Merchant to the purchaser; (f) Advertiser/Merchant owns all interest in and to the Advertiser/Merchant IP and has licensing rights in (with the right to sublicense to DealsForWeddings.com) the Third Party IP, and has the right to grant the License stated in this Agreement; (g) the Advertiser/Merchant IP and the Third Party IP, the Advertiser/Merchant Offering, DealsForWeddings.com use and promotion thereof, and the results of such Advertiser/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 Advertiser/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 Deal Offers and any advertising or promotion of Advertiser/Merchant’s goods and services relating thereto will not constitute false, deceptive or unfair advertising or disparagement under any applicable law; (j) Advertiser/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 Advertiser/Merchant Offering to provide the goods or services described in this Agreement; (k) Advertiser/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 Advertiser/Merchant is not authorized to copy or otherwise reproduce any Customer Data other than for the purpose of redeeming or verifying the validity of Deal Offers in connection with this Agreement and (m) the Advertiser/Merchant Offering is: (i) free from defects in workmanship, materials and design, (ii) Advertiser/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.
9. Indemnification
To the extent allowed under applicable law, Advertiser/Merchant agrees to defend, indemnify and hold DealsForWeddings.com, 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 Advertiser/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 Advertiser/Merchant arising from the sale and redemption of a Deal Offer; (c) any claim by any local, state, provincial, territorial or federal governmental entity for unredeemed Deal Offers or unredeemed cash values of Deal Offers 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 Advertiser/Merchant or governing Advertiser/Merchant’s goods and/or services; (e) any claim arising out of Advertiser/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 Advertiser/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 Advertiser/Merchant’s misuse of Customer Data, or any violation of an applicable data privacy or security law; and (i) any claim arising out of Advertiser/Merchant’s negligence, fraud or willful misconduct. DealsForWeddings.com 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 DealsForWeddings.com and Advertiser/Merchant. Advertiser/Merchant’s duty to defend and indemnify DealsForWeddings.com includes the duty to pay DealsForWeddings.com reasonable attorneys’ fees and costs, including any expert fees.
10. Confidentiality
The terms for the Advertiser/Merchant Offering described in this Agreement are confidential, and Advertiser/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 public records and other law, if Advertiser/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, DealsForWeddings.com is entitled to injunctive relief and a decree for specific performance, and any other relief allowed under applicable law (including monetary damages if appropriate).
11. Limitation of Liability
EXCEPT FOR ADVERTISER/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. DEALSFORWEDDINGS.COM’S SOLE AND COMPLETE LIABILITY TO ADVERTISER/MERCHANT FOR ANY CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR ANY ERRORS, OMISSIONS OR MISPLACEMENTS OF ANY DEAL OFFER IS LIMITED TO THE AMOUNT OF $50. THIS LIMITATION OF LIABILITY APPLIES TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF ANY LIMITED REMEDY.
12. Dispute Resolution
All disputes arising out of, or relating in any way to this Agreement, shall be resolved pursuant to this Section 12 Dispute Resolution.
a. Binding Arbitration
EXCEPT AS SPECIFICALLY STATED HEREIN, ANY DISPUTE OR CLAIM BETWEEN ADVERTISER/MERCHANT AND DEALSFORWEDDINGS.COM ARISING OUT OF, OR RELATING IN ANY WAY TO, THIS AGREEMENT (“DISPUTES”) SHALL BE RESOLVED EXCLUSIVELY BY FINAL, BINDING ARBITRATION. BY VIRTUE OF THE AGREEMENT IN THIS SECTION 12 TO ARBITRATE, ADVERTISER/MERCHANT AND DEALSFORWEDDINGS.COM ARE EACH GIVING UP THE RIGHT TO GO TO COURT AND HAVE A DISPUTE HEARD BY A JUDGE OR JURY (EXCEPT AS OTHERWISE SET FORTH IN THIS SECTION 14). The provisions of this Section 14 shall constitute Advertiser/Merchant’s and DealsForWeddings.com written agreement to arbitrate Disputes under the Federal Arbitration Act. The arbitration will be administered by the American Arbitration Association (“AAA”) and conducted before a single arbitrator pursuant to its applicable rules, including those applicable to Commercial Disputes, available at http://www.adr.org or by calling 800-778-7879. The arbitrator will apply and be bound by this Agreement, apply applicable law and the facts, and issue a reasoned award.
To begin an arbitration proceeding, Advertiser/Merchant or DealsForWeddings.com must comply with the limitations provision set forth in Section 13 and submit the Dispute by making a demand for arbitration as detailed at http://www.adr.org. If Advertiser/Merchant demands arbitration, it shall simultaneously send a copy of the completed demand to the DealsForWeddings.com. If DealsForWeddings.com demands arbitration, it shall simultaneously send a copy of the completed demand to the Advertiser/Merchant’s address of record. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. DealsForWeddings.com will reimburse those fees for Disputes totaling less than $500.00 if Advertiser/Merchant is the prevailing party in such arbitration. DealsForWeddings.com will seek attorneys’ fees and costs in arbitration,especially if the arbitrator determines that an Advertiser/Merchant Dispute is frivolous. The arbitration will be conducted based upon written submissions unless Advertiser/Merchant requests and/or the arbitrator determines that a telephone or in-person hearing is necessary. If the arbitrator grants the request or determines an in-person hearing is necessary, the hearing will proceed in Chicago, Illinois, unless the arbitrator determines or we agree that the matter should proceed in the county of Advertiser/Merchant’s principal place of business.
b. Class Action Waiver
WE EACH AGREE THAT WE SHALL BRING ANY DISPUTE AGAINST THE OTHER IN OUR RESPECTIVE INDIVIDUAL CAPACITIES AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE PROCEEDING OR AS AN ASSOCIATION. IN ADDITION, WE EACH AGREE THAT DISPUTES SHALL BE ARBITRATED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. THE ARBITRATOR DOES NOT HAVE THE POWER TO VARY THESE PROVISIONS.
c. Choice of Law/No Jury Trial
If for any reason a Dispute proceeds in court: (i) Advertiser/Merchant and DealsForWeddings.com agree that any such Dispute may only be instituted in a state or federal court in Seminole County in theState of Florida; (ii) Advertiser/Merchant and DealsForWeddings.com irrevocably consent and submit to the exclusive personal jurisdiction and venue of such courts for resolution of such Disputes; (iii) Advertiser/Merchant and DealsForWeddings.com agree that the Federal Arbitration Act, the AAA rules, applicable federal law and the laws of the State of Florida, without regard to principles of conflicts of law, will govern this Agreement and any Disputes; and (iv) ADVERTISER/MERCHANT AND DEALSFORWEDDINGS.COM AGREE TO WAIVE ANY RIGHT TO A TRIAL BY JURY.
d. Injunctive Relief/Attorneys’ Fees
Notwithstanding anything to the contrary in this Agreement, either party may bring suit in court seeking an injunction or other equitable relief arising out of or relating to claims that the other party’s conduct may cause the other irreparable injury.
In the event DealsForWeddings.com is the prevailing party in any Dispute, subject to any exceptions in this Section 12, Advertiser/Merchant shall pay to DealsForWeddings.com all reasonable attorneys’ fees and costs incurred by DealsForWeddings.com in connection with any Dispute.
13. Other
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. Advertiser/Merchant is not authorized to transfer or assign its rights or obligations under this Agreement, whether by operation of law or otherwise, without DealsForWeddings.com prior written consent. Any waiver must be in writing and signed by an authorized signatory of DealsForWeddings.com. DealsForWeddings.com 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 Advertiser/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 ADVERTISER/MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. DEALSFORWEDDINGS.COM DOES NOT WARRANT OR GUARANTEE THAT THE SERVICES OFFERED ON OR THROUGH THE WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE DEAL OFFERS ARE ERROR-FREE, OR THAT ANY ADVERTISER/MERCHANT OFFERING WILL RESULT IN ANY REVENUE OR PROFIT FOR ADVERTISER/MERCHANT.
• Recurring Credit Card Payment Authorization You authorize regularly scheduled charges to your credit card. You will be charged the amount indicated below each billing period. A receipt for each payment will be provided to you and the charge will appear on your credit card statement. You agree that no prior-notification will be provided unless the date or amount changes, in which case you will receive notice from Deals For Weddings at least 10 days prior to the payment being collected. The advertiser understands that this authorization will remain in effect until the advertiser cancels it in writing, and agrees to notify Deals For Weddings in writing of any changes in the advertisers account information or termination of this authorization at least 15 days prior to the next billing date. If the above noted payment dates fall on a weekend or holiday, understand that the payments may be executed on the next business day. The advertiser acknowledges that the origination of Credit Card transactions to their account must comply with the provisions of U.S. law. The advertiser certifies that they are the authorized user of this Credit Card and will not dispute these scheduled transactions; so long as the transactions correspond to the terms indicated in this authorization form