1.1. General Services. eGifter provides its clients, such as Company, the ability to manage their gifting methods via their website, Facebook fan page, gift registries, mobile websites and applications, including social marketing campaigns, and other gifting methods using Company's Electronic Gift Cards ("Gift Cards"), promotional Electronic Gift Cards and other promotional items and offerings defined in the applicable Sales Order ("Subscription Service(s)" or "Service(s)"). The specific eGifter Subscription Services or Services are defined in the Sales Order.
eGifter will provide the Services pursuant to this Agreement and the relevant Sales Order during the period of time commencing on the start date specified in the Sales Order ("Effective Date") and continuing for the period set forth therein ("Subscription Term") or ("Term"). Any modifications to the Sales Order will be documented and presented to Company for approval. ("Change Order").
During the Subscription Term and as provided in this Agreement and the applicable Sales Order, eGifter will provide Company access to use the Subscription Service.
Company's limited license to access and use the Subscription Service is governed by the terms of this Agreement and the applicable Sales Order.
eGifter is constantly working to improve the quality of the Service and modifies the Subscription Service from time to time, including adding or deleting features and functions, in an effort to improve the user's experience. Nothing in this Agreement shall prohibit eGifter from making such changes to the Subscription Service, provided that no such change to the Subscription Service shall materially reduce the functionality of the Subscription Service provided to Company during the Subscription Term. eGifter reserves the right to provide some or all elements of the Subscription Service through use of third party providers.
Company may subscribe to additional features of the Subscription Service from time to time by entering into another Sales Order. Such additional features of the Subscription Service shall, starting on the Effective Date of the Sales Order, be included in the Subscription Service provided and subject to fees payable under this Agreement and defined in the Sales Order.
1.2. Customer Support. eGifter shall provide phone support for Company's use of the Subscription Service unless otherwise defined in the specific Sales Order.
1.3. Consulting Services. In addition to the Subscription Services, eGifter may provide Consulting and other one-time Services ("Consulting Services") to Company pursuant to an Sales Order as part of the total solution or as a separate Sales Order. Fees for these Consulting Services are in addition to Company's Subscription Service fee(s) and are payable at the start of the engagement, or as otherwise set forth in Section 2.1 or the applicable Sales Order.
2. FEES AND PAYMENT TERMS
2.1. Invoice and Payment. All fees will be invoiced as set forth in an applicable Sales Order and/or Change Order. Except as otherwise set forth in the applicable Sales Order or Change Order, Company agrees to pay all invoiced amounts within ten (10) calendar days of the invoice date. If eGifter does not receive fees by the due date, then at eGifter's discretion, (i) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid; and/or (ii) eGifter may suspend the Subscription Service with 5 days prior written notice to Company. The Parties agree if any action is taken to enforce monies due hereunder; the prevailing Party shall pay all costs of collection including all court costs and reasonable attorney's fees.
2.2. Taxes. Company is solely responsible for the payment of all taxes, assessments, tariffs, duties or other fees imposed, assessed or collected by or under the authority of any governmental body (collectively, "Taxes") arising from eGifter's provision of the Services hereunder. If eGifter is required to directly pay Taxes related to Company's use of the Services hereunder, Company agrees to promptly reimburse eGifter for any amounts paid by eGifter and any other out-of-pocket costs incurred to eGifter in connection with paying such Taxes.
3. PROPRIETARY RIGHTS
3.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, eGifter reserves all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to Company hereunder other than those expressly set forth herein. Neither Company nor any of its representatives will delete or in any manner alter the copyright, trademark, and other proprietary notices of eGifter, appearing on any eGifter application or documentation.
3.2. Content License. Subject to the terms and conditions of this Agreement, including each parties confidentiality obligations, Company hereby grants eGifter a limited, non-exclusive, royalty-free, worldwide license to use all electronic data, video, artwork, screen names, graphics (including logos), photos, profiles, audio (including music), links, software or written content or any other files, or any other information supplied by Company to eGifter ("Campaign Materials") and to perform all acts with respect to the Campaign Materials as may be reasonable or necessary for eGifter to provide the Services to Company as defined in a specific Sales Order. eGifter is not responsible for any Campaign Materials which are delayed, lost, altered, intercepted or stored during the transmission of any data whatsoever across networks not owned and/or operated by eGifter, including, but not limited to, the Internet, third party sites, and Company's local network. eGifter may in its sole discretion immediately cancel any campaign that it reasonably believes is harmful to its users or in any way violates rules or regulations of any of the social or other networks or sites.
Except for the limited rights expressly granted to eGifter under this Agreement with respect to the Campaign Materials, eGifter does not acquire any right or title to or any interest in any Campaign Materials.
3.3. Enhancements and Recommendations. eGifter shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Company relating to the Services. Company acknowledges and agrees that any Services incorporating such suggestions, enhancement requests, recommendations or other feedback shall be the sole and exclusive property of eGifter and all such recommendations shall be free from any confidentiality restrictions that might otherwise be imposed upon eGifter pursuant to Section 4 below.
4.1. Each Party agrees that it may have access to confidential or proprietary, technical or business information of the other Party including but not limited to customer data, pricing, trade secrets and know how (collectively, "Confidential Information"). Each Party will maintain the strict confidentiality of the Confidential Information of the other Party and will not disclose the Confidential Information to any third party and shall exercise at least the same degree of care in safeguarding the Confidential Information as it would with its own Confidential Information (in no event less than reasonable care). Furthermore, neither Party will use the Confidential Information for any purpose except those contemplated by the Parties herein relating to this Agreement. The following shall not be deemed Confidential Information: (i) information that is or becomes publicly available through no wrongful act of the receiving Party; (ii) information that is already known by the receiving Party as evidenced by documentation bearing a date prior to the date of disclosure; (iii) information that is approved for release in writing by an authorized representative of the disclosing Party; and (iv) information disclosed pursuant to a valid court order or subpoena issued by a court of competent jurisdiction, provided that the disclosing Party provides reasonable notice to the other Party to appropriately object to such disclosure.
4.2. Injunctive Relief. The Parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to the Disclosing Party and that, in the event of such breach, the Receiving Party will be entitled, in addition to any other available remedies, to immediate injunctive and other equitable relief, without posting a bond and without the necessity of showing actual monetary damages. The foregoing notwithstanding, Company irrevocably waives any right to enjoin or restrain the operation of the Services as a whole, or eGifter's use of any content or other material used or displayed through the Services other than Company Confidential Information.
4.3. Intellectual Property Right. Any third party trademarks, service marks, names, logos, icons, copyrights and other intellectual property (collectively, "Third Party IP") associated with the eGifter Service are the property of such third party and may not be used by Company without the prior written consent of such third party or is made available by such third party for public use. All rights to Third Party IP are reserved to such third party. Company agrees not to post, distribute, reproduce, or sell in any way, any Third Party IP without legal authorization. eGifter does not provide any warranty as to the use of any Third Party IP, content, service, or product.
The eGifter Service, eGifter Logo and other names, logos, icons and marks identifying eGifter and its products and Services are the intellectual property of eGifter ("eGifter IP") and may not be used without the prior written consent of eGifter, which eGifter may grant or withhold in its sole and absolute discretion. All rights not expressly granted in this Agreement are reserved to eGifter. Except as expressly set forth herein, by using the Service, Company agrees it will not post, distribute, reproduce, or sell in any way, any eGifter IP without legal authorization. Company agrees not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes, any aspect of the Service. eGifter retains full copyright and intellectual property ownership, rights and protection in the Service, the web site (except for Third Party IP), including but not limited to all software, and other code. Company may not reverse-engineer, disassemble, decompile, transcribe, resell or redistribute any eGifter IP without the prior written consent of eGifter, which eGifter may grant or withhold in its sole and absolute discretion. Company acknowledges that it does not acquire any ownership rights in any eGifter IP. With the exception of Company content and any third party IP, all content of this Service is owned by eGifter. All rights are reserved.
5. WARRANTIES; DISCLAIMERS
5.1. Merchant of Record. The Merchant of Record shall process all credit card sales, debit card sales and other sales of the Company Gift Cards purchased through the Service ("Merchant of Record"). The Merchant of Record shall be defined in the Sales Order. Each Party when acting as the Merchant of Record shall assume the loss of fraudulent transactions.
In the case where eGifter is the Merchant of Record, should a purchase prove to be fraudulent after the Gift Card has been delivered to the end user and a balance still remains on that card, Company will cancel the balance on the Gift Card immediately upon eGifter's request and credit eGifter the full balance of the Gift Card or the amount that is unused and remaining on the Gift Card.
5.2. Each Party represents and warrants that it has the power and authority to enter into this Agreement. eGifter warrants to Company that Services provided to Company under an Sales Order will be performed in a competent and workmanlike manner in conformance with generally accepted industry standards. eGifter warrants that the Services, and Company represents and warrants that the Campaign Materials, will be free of any unauthorized programs or devices developed to disable or to erase, damage or corrupt software, hardware or data detectable by means of commercially-available virus-detection software.
5.3. THE WARRANTIES EXPRESSLY SET FORTH IN SECTION 5.1 AND 5.2 ARE THE SOLE AND EXCLUSIVE WARRANTIES GIVEN BY EGIFTER AND, TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, EGIFTER MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, AND EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, GOOD TITLE, SATISFACTORY QUALITY AND NONINFRINGEMENT.
5.4. EXCEPT AS EXPRESSLY SET FORTH HEREIN, EGIFTER DOES NOT WARRANT THAT THE EGIFTER SERVICES WILL MEET COMPANY'S SPECIFIC NEEDS, ACHIEVE A PARTICULAR MARKETING OR OTHER BUSINESS RESULT, OR ARE ERROR FREE, THAT COMPANY CONSUMERS OR OTHER USERS OF THE SERVICE WILL BE ABLE TO ACCESS OR USE THE EGIFTER SERVICES WITHOUT PROBLEMS OR INTERRUPTIONS, OR THAT THE SERVICES ARE NOT SUSCEPTIBLE TO INTRUSION, ATTACK OR COMPUTER VIRUS INFECTION.
6.1. Indemnification by eGifter. eGifter will indemnify Company for any damages, costs and expenses (including reasonable attorneys' fees) arising out of any third party claim, suit or proceeding alleging that Company's use of the eGifter Services in accordance with the terms and conditions of this Agreement infringe a third party's United States copyright or patent issued as of the Effective Date. The foregoing obligation shall not apply with respect to a claim of infringement if such claim arises out of (i) Company use of infringing Campaign Materials (ii) use of the Services in combination with any software, hardware, network or system not supplied by eGifter where the alleged infringement relates to such combination, (iii) any modification or alteration of the Services (other than by eGifter), (iv) if Company continues the allegedly infringing activity after being informed of modifications that would have avoided the alleged infringement, or (v) Company violation of applicable law or the rights of third parties. If any claim has occurred, or in eGifter's determination is likely to occur, eGifter may, in its sole discretion and at its option and expense (a) obtain for Company the right to use the allegedly infringing item, (b) substitute a functionality equivalent, non-infringing replacement for such item, (c) modify such item to make it non-infringing and functionally equivalent, or (d) terminate the Agreement and refund to Company fees paid by Company to eGifter for the infringing items in an amount pro-rated to reflect the period of time between the date Company was unable to use the Service due to such claim and the remaining days in the current Subscription Term.
6.2. Indemnification by Company. Company will indemnify eGifter for any damages, costs and expenses (including reasonable attorneys' fees) arising out of (i) any third party claim, suit or proceeding alleging that the Campaign Materials infringe any trade secret, trademark, copyright, or patent issued as of the Effective Date of any third party; or (ii) Company's failure to honor, deliver or fulfill the value for any Gift Card(s) purchased through the Service (iii) Company's unauthorized use of any third party IP (iv) Company's unauthorized use of any eGifter IP.
6.3. Notice. The Parties' indemnification obligations under this section 6 are contingent upon the indemnified Party (i) giving prompt written notice to the indemnifying Party of any claim under this section, (ii) giving the indemnifying Party sole control of the defense or settlement of such claim, and (iii) cooperating in the investigation and defense of such claim. The indemnifying Party shall not settle or consent to an adverse judgment in any such claim that adversely affects the rights or interests of the indemnified Party or imposes additional obligations on the indemnified Party, without the prior express written consent of the indemnified Party. The rights and remedies set forth in this section are subject to the limitations and exclusions set forth in section 8 below, and are the sole obligations of the indemnifying Party and exclusive remedies available to the indemnified Party in the event of an applicable third party claim.
7. LIMITATION OF LIABILITY
7.1. LIMITATION OF LIABILITY. EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS OF EACH OF THE PARTIES, IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY COMPANY TO EGIFTER HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE AMOUNT PAID BY COMPANY TO EGIFTER HEREUNDER IN THE 6 MONTHS PRECEDING THE INCIDENT. THE FOREGOING SHALL NOT LIMIT COMPANY PAYMENT OBLIGATIONS UNDER SECTION 2 (FEES AND PAYMENT TERMS).
7.2. EXCLUSION OF CONSEQUENTIAL AND RELATED DAMAGES. IN NO EVENT SHALL EGIFTER HAVE ANY LIABILITY TO THE COMPANY OR ANY THIRD PARTIES FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, OR ANY ACTS OF GOD OR OTHER EVENTS OUTSIDE EGIFTER'S CONTROL, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. TERM AND TERMINATION.
8.1. Term. The Term of this Agreement will commence when the Services defined in the Sales Order are activated by eGifter and will continue until terminated per the Sales Order or this Agreement. At the end of the initial Term, this Agreement shall automatically renew for additional one (1) year periods unless cancelled in writing within 30 days of such renewal date.
8.2. Termination for Cause. This Agreement may be terminated at any time as follows: (a) by a Party that has not breached or defaulted in the performance of its obligations under this Agreement upon fifteen (15) days' written notice to the Party that has breached or defaulted in the performance of its obligations under this Agreement, unless such breaching or defaulting Party has cured or has substantially cured its breaches or defaults within such fifteen (15) day period; (b) by either Party if the other Party makes a general assignment for the benefit of creditors, files a voluntary petition in bankruptcy or for reorganization or arrangement under the bankruptcy laws, or if a petition in bankruptcy is filed against the other Party, or if a receiver or trustee is appointed for all or any part of the property or assets of the other Party; or (c) by a written Agreement executed by both of the Parties.
8.3. Effect of Termination. Upon termination of this Agreement, all Services granted under all Sales Orders issued under this Agreement shall terminate immediately. Upon Company request made within 30 days after the Effective Date of applicable termination, and provided that Company has paid to eGifter all amounts due by Company hereunder, eGifter shall make available to Company for download any Campaign Materials in the current format in which it is stored in the eGifter application(s). After such 30-day period, eGifter shall have no obligation to maintain or provide any Campaign Materials and may thereafter, unless legally prohibited, delete all Campaign Materials in its systems or otherwise in its possession or under its control. In the event of termination of a campaign set forth in an applicable Sales Order, Company agrees to pay eGifter all fees due and any unreimbursed out-of-pocket expenses incurred by eGifter up to the date of Termination or expiration of such Sales Order.
Except to the extent expressly provided to the contrary herein, Sections 2 through 10 shall survive the Termination of this Agreement.
10.1. Relationship. The relationship between the Parties is non-exclusive and does not constitute any joint venture between the Parties. The relationship between the Parties created by this Agreement is that of independent contractors.
10.2. Compliance. Client shall comply with this Agreement and all applicable laws, rules, and regulations including, without limitation, any gift card laws and all applicable federal, state and local advertising, marketing, promotional gift card and trade practices laws, rules, regulations, codes and ordinances.
10.3. Force Majeure. Except for performance of a payment obligation, neither Party shall be liable under this Agreement for delays, failures to perform, damages, losses or destruction, or malfunction of any equipment, or any consequence thereof, caused or occasioned by, or due to fire, earthquake, flood, water, the elements, labor disputes or shortages, utility curtailments, power failures, explosions, civil disturbances, governmental actions, shortages of equipment or supplies, unavailability of transportation, acts or omissions of third Parties, or any other cause beyond its reasonable control ("Force Majeure"). If the Force Majeure continues for more than thirty (30) calendar days, then either Party may terminate the Agreement for convenience upon written notice to the other Party.
10.4. Modification and Waiver. Except for eGifter's modification or update of the Agreement as necessary to comply with applicable laws, rules or government regulations, no modification of this Agreement, and no waiver of any breach of this Agreement, shall be effective unless in writing and signed by both Parties. No waiver of any breach of this Agreement, and no course of dealing between the Parties, shall be construed as a waiver of any subsequent breach of this Agreement.
Notwithstanding anything to the contrary, eGifter may modify the Agreement at any time in our sole discretion, by posting amended Agreement to the Site or by sending Company an email, provided that unless related to a law, rule or government regulation, such modification does not materially reduce the Services provided hereunder or materially impact the terms of this Agreement, in which event Company will have 90 days to terminate this Agreement without penalty, provided Company gives notice of its intent to terminate within 30 days of such change.
10.5. Entire Understanding. This Agreement (including any Sales Order, Change Order or other documents incorporated by reference herein) states the entire understanding between the Parties with respect to its subject matter, and supersedes all prior proposals, marketing materials, negotiations and other written or oral communications between the Parties with respect to the subject matter of this Agreement. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Sales Order, the Terms of such exhibit, addendum or Sales Order shall prevail.
10.6. Governing Law and Venue. This Agreement shall be governed by and construed under the laws of the State of New York. The Parties agree that the state and federal courts located in Suffolk County, New York, will have exclusive jurisdiction to adjudicate any dispute relating to this Agreement. Each Party hereby irrevocably consents to the exclusive jurisdiction of such courts. The Parties agree that U.S. privacy laws, and not the privacy laws of any other jurisdiction, apply.
10.7. Assignment. Neither Party may assign this Agreement without the express written consent of the other Party, such consent not to be unreasonably withheld. Notwithstanding the foregoing, either Party may assign this Agreement in its entirety (including all Sales Orders), without consent of the other Party, to its affiliate or in connection with a merger, acquisition or sale of all or substantially all of its assets.
10.8. Notices. Except for email notifications as permitted hereunder, all other legal notices required to be sent hereunder shall be in writing and shall be deemed to have been given upon (i) the date sent by confirmed facsimile, (ii) on the date it was delivered by courier, or (iii) if by certified mail return receipt requested, on the date received, to the addresses set forth on the relevant Sales Order. All communications and notices to be made or given pursuant to this Agreement shall be in the English language.
10.9. Severability. All clauses and covenants contained in this Agreement are severable and in the event any of them are held to be invalid by any court, such clause or covenant shall be valid and enforced to the maximum extent as to which it may be valid and enforceable, and this Agreement will be interpreted as if such invalid clauses or covenants were not contained herein.