Table of Contents
RallySpark Merchant Agreement
1. Membership Fees
2. Member Eligibility
3. Modification and Termination of the Program
4. General Terms and Conditions
Rallyspark Merchant Agreement Standard Terms and Conditions
1. Scope and Intent
2. Merchant Responsibilities
3. Fees and Taxes
5. Representations and Warranties
7. Limitation of Liability
RallySpark Merchant Agreement
This Merchant Agreement is governed by and subject to the following RallySpark Merchant Agreement Standard Terms & Conditions, which are incorporated herein by reference. This Merchant Agreement and the Standard Terms & Conditions together comprise a binding and enforceable agreement.
Merchant (i.e. any business that establishes a RallySpark Center) wishes to offer its selected products and services for sale to the public through Promotional Offers (“Offers”) which are presented to the public for purchase only on RallySpark’s Web application and mobile application. Therefore, in consideration of the mutual covenants and agreements contained herein and other valuable consideration, the sufficiency and receipt of which is hereby acknowledged, the parties agree as follows:
1. Membership Fees
In consideration for the services provided under this Agreement, RallySpark shall be entitled to receive a monthly subscription fee from Merchant, including a 3-month minimum commitment, as follows (the “Membership Fee”). Membership Fees may be changed in RallySpark’s sole discretion upon thirty (30) days notice to the member. However, upon initial subscription, membership fees for sign-up shall be guaranteed for twelve (12) months as long as the member maintains his membership and account in good standing
2. Member Eligibility
The RallySpark Referral Program is open only to U.S. businesses and residents, who are eighteen (18) years of age or older, and Merchant members in good standing. The Program is void where prohibited. Participation in the Program constitutes the participant's full and unconditional agreement to these terms and conditions
3. Modifications and Termination of the Program
RallySpark reserves the right to modify any of the terms and conditions set forth herein, including, but not limited to, the methods through which Merchants or A Merchant’s participation in the Program constitutes the Merchant’s acceptance of any changes to these terms and conditions. Merchants are responsible for remaining knowledgeable as to any changes that RallySpark may make to these terms and conditions. The most current version of these terms and conditions will be available at www.RallySpark.com and will supersede all previous versions of these terms and conditions.
4. General Terms and Conditions
RallySpark reserves the right to discontinue the participation privileges of any Merchant or other membership who engages in any fraudulent activity or uses the Program in a manner inconsistent with these terms and conditions or any federal or state laws, statutes, or ordinances. Discontinued participation privileges may result in the loss of all accumulated benefits. In addition to discontinuance of participation privileges, RallySpark shall have the right to take appropriate administrative and/or legal action, including criminal prosecution, as it deems necessary in its sole discretion. Fees and credits provided through this program may not be transferred or assigned, and is not transferable upon death, as part of a domestic relations matter or otherwise by operation of law. RallySpark is not responsible for any incorrect or inaccurate information supplied by Merchants, Individuals, members’ referred friends, or others while participating in the Program. All questions or disputes regarding eligibility for the Program, earning of rewards, or a Merchant’s or Individual’s compliance with these terms and conditions will be resolved by RallySpark in its sole discretion.
RALLYSPARK MERCHANT AGREEMENT
STANDARD TERMS & CONDITIONS
These Standard Terms & Conditions to the RallySpark Merchant Agreement, together with the RallySpark Merchant Agreement, are collectively referred to herein as the “Agreement.”
1. Scope and Intent
This Agreement relates to and controls Merchant’s subscription membership with RallySpark in connection with use of services provided on RallySpark.com’s website (the Website) and its web based application and mobile application (the “mobile app”). Merchant will be permitted access and use, through a compatible internet browser or other remote internet interface, to design, create, post and promote vouchers, coupons, sales, discounts, promotions and/or advertisements (“Promotional Offers”) for the Merchant’s product or service on the Web based application and mobile app in accordance with the terms of this Agreement.
2. Merchant Responsibilities
(a) Creation of Promotional Offers. Merchant, exclusive of adult stores and products, obscenity and “hate” websites and groups, or other organizations deemed offensive by RallySpark in its sole discretion, may use RallySpark’s Web based application and mobile app to create and post one or more exclusive online promotional offers (individually the “Promotional Offer”, and collectively the “Promotional Offers”)which may be distributed via social media or other online communication resources to potential purchasers of the Promotional Offer. In accordance with applicable State, Federal, and local law, promotion of discounted alcoholic beverages is prohibited.
(c) Promotional Offers (“Offers”). Merchant acknowledges and agrees that RallySpark only facilitates the marketing and purchase of the Offer through the RallySpark Web based application and that Merchant remains the issuer of the Offers and the seller of the goods and services. Accordingly, Merchant agrees that at all times it, and not RallySpark, shall be solely responsible to fulfill the terms of the Offer and provide the Merchant’s Offer or service to the individual redeeming each Offer in accordance with this Agreement. Merchant shall be solely responsible for addressing customer service inquiries related to Promotional Offers and redemption and shall provide knowledgeable personnel to respond to such inquiries on a timely basis.
(e) Merchant Registration. Merchant shall register accurate and current information on and select a user name and password for the RallySpark Business Center (“Center”) and is responsible for the Center’s use, including reporting to RallySpark in a timely manner of any breach or other inappropriate access or use, and maintenance of confidentiality of any proprietary or confidential information. Merchant may be charged a setup fee for assistance in establishing its RallySpark Business Center according to the current and applicable Cost and Commission Schedule.
(g)Marketing Materials. Merchant, royalty free, shall provide all logos, photographs, artwork, text, or other marketing materials (the “Marketing Materials”) to be used in developing its online Promotional Offers and hereby grants RallySpark a nonexclusive worldwide license to reproduce, use, display, and distribute the Marketing Materials for the purpose of marketing the Promotional Offer on the RallySpark Web based application. After the term of this Agreement, RallySpark may continue to use and distribute the Promotional Offer and Marketing Materials as examples for general promotional purposes.
3. Fees and Taxes
(a) Fees. In consideration for fulfilling its obligations under this Agreement, RallySpark will be entitled to receive a monthly Membership Fee set forth in the Merchant Subscription Account on RallySpark. Notwithstanding the foregoing, the monthly Membership Fee and additional charges may be subject to increases by RallySpark from time to time in its sole discretion; provided, however, that RallySpark shall provide Business not less than thirty (30) days’ notice prior to the effective date of any increase in Fees. The Merchant shall not be subjected to any additional fee increase other than for enhanced services during the first twelve (12) continuous months of membership. Furthermore, as per the applicable Cost and Commission Schedule on the RallySpark website, RallySpark may impose certain additional fees for “enhanced” listing of the Merchant and/or Offers, for transaction fees with regard to payment processing, for RallySparks purchases, and other fees implemented from time to time after reasonable notification of the Merchant.
(b) Limited License. Merchants are granted a royalty free, non-exclusive, non-concurrent, non-transferable, limited license to access the RallySpark Web based application, and their content and right to use and display the RallySpark Trademarks, without alteration, on store fronts, windows, Merchant’s website, and other Merchant Corporate material in compliance with this Agreement and for the sole purpose of identifying the association of the Merchant and RallySpark. Merchant agrees to terminate all use of RallySpark Trademarks and associated materials immediately upon request by RallySpark or termination of RallySpark membership for any reason. The RallySpark Web based application and their content are available only for the designated user identified by the Merchant and may not be shared with other non-designated persons or entities. The Business is responsible for the confidentiality and use of its username and password. The Merchant’s responsibility extends to all activity and use under their email address, username, and password.
(c) Currency. RallySpark will charge Merchant fees in accordance with our subscription policies or as otherwise indicated in the Merchant Agreement. Unless otherwise stated, all fees are in U.S. Dollars. If Merchant subscription is scheduled for renewal but associated credit card has expired, for your convenience, we will try to process your renewal with a future expiration date. RallySpark assesses an additional one and one-half percent (1.5% ), or, the highest amount allowed by law per month late charge for amounts past due. That amount is due immediately. Merchant will be responsible for any fees (including reasonable attorneys’ fees and collection fees) that RallySpark may incur in the collection process.
(e) Taxes. Merchant will be solely responsible for collecting and remitting any value added, use, sales, income or other similar taxes and fees, and any related penalties and interest, owed to federal, state, or local taxing authorities in connection with the sale or redemption of Offers, commissions earned, payment of Membership Fees or charges for enhanced services . Merchants will make all payments to RallySpark free and clear of, and without reduction for, any withholding taxes.
Merchant agrees that a refund of the Offer Price, or mutually satisfactory consideration, shall be provided to any Purchaser whose product fails to perform as advertised or service is performed unsatisfactorily, within reason, and when not subject to traditional warranty coverage, if that merchant is informed of the defect or unsatisfactory service within 30 days of the product’s or services’ purchase or for such period as may be required by applicable law. RallySparks awarded for purchases at a Merchant may be relinguished at the time of refund of the product or service.
5. Representations and Warranties
(a) General. Each party to this Agreement hereby represents and warrants that (a) it has the authority to enter into this Agreement and to fully perform its obligations hereunder, (b) this Agreement does not and will not conflict with any of the party’s other obligations to any third parties, and (c) it complies and will comply with all applicable laws and regulations.
(b) Service Warranties. Merchant additionally represents and warrants that: (a) it will provide the Merchant Product in a safe and professional manner; (b) it owns all right, title and interest in the Marketing Material and the Marketing Material does not infringe or misappropriate any third party copyright, trademark, trade secret, or other proprietary right, (c) it is registered for and will pay all sales and use taxes incurred in all states in which Merchant’s goods and services will be provided pursuant to the terms of the Promotional Offer, (d) the Merchant content will not contain any viruses, worms, or other harmful defects, (f) the Merchant content will not contain any material that is inappropriate for general or family viewing in RallySparks’ sole discretion (i.e. sexually explicit, violence, hatred, discriminatory or that is unlawful), and (g)it will comply with applicable federal and state laws and regulations related to redemption of the Promotional Offers, including, but not limited to, those laws and regulations related to deceptive trade practices, unclaimed property liability associated with Promotional Offers that have not been redeemed, alcohol related service and discounting, vouchers, coupons, gift certificates, and expiration of gift cards. Merchant acknowledges that the Offer terms will state whenever appropriate, in the online Promotional Offer and printed version, that all or a portion of the Offer expires after a stated Expiration Date, and if required by law, that the Offer Price does not expire, if at all, until a later date. Merchant is solely responsible to ensure that it enforces expiration of the Offers only in accordance with applicable federal and state laws. In addition, federal and/or state laws may require that the Merchant, upon request, provide the Purchaser or holder of a Promotional Offer cash redemption for all or some portion of the Offer. Merchant, and not RallySpark, is solely responsible to comply with any cash redemption requirements.
(a) Indemnity. Mechant agrees that it shall indemnify, defend, and hold harmless RallySpark, its officers, directors, employees, agents, affiliates, successors and assigns, from and against any and all claims, demands, actions, causes of action, demands, liabilities, and expenses, including reasonable attorney’s fees, to the extent arising out of the Merchant, breach of this Agreement, infringement of third party rights by Merchant, the Offer, the Coupon, the Merchant Product and Materials and the redemption or fulfillment thereof, and/or any breach or alleged breach of any Merchant obligation, representation, or warranty under this Agreement.
(b) Notice. RallySpark agrees to notify Merchant promptly in writing of any claim for indemnification hereunder, and provide, at Merchant’s expense, all reasonably necessary assistance, information and authority to allow Merchant to control the defense and settlement of such claim; provided, however, that the failure of RallySpark to promptly inform Merchant of any claim shall not excuse Merchant of its obligations under this Section, except to the extent that it is legally determined that such failure materially prejudices Merchant. Notwithstanding the foregoing, Merchant shall not enter into any settlement of the defense of such action, other than with respect to the payment of monies, without RallySpark’s prior written consent, which consent shall not be unreasonably withheld or delayed. RallySpark may participate at its expense in the defense and/or settlement of any such action with counsel of its choosing and at its sole expense.
7. Limitation of Liability
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM BREACH OF THIS AGREEMENT, OR ARISING FROM ANY OTHER PROVISION OF THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS (COLLECTIVELY, “DISCLAIMED DAMAGES”). RALLYSPARK’S CUMULATIVE LIABILITY RELATED TO DIRECT DAMAGES WILL BE LIMITED TO THE MEMBERSHIP FEES ACTUALLY RECEIVED BY RALLYSPARK, WITHIN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEEDING OF SUCH CLAIM, AS SET FORTH IN THE MERCHANT AGREEMENT. NOTWITHSTANDING THE FORGOING, THESE LIMITATIONS SHALL NOT APPLY TO ANY INDEMNIFICATION OBLIGATION.
Any claim arising out of or relating to any error or omission in connection with a Promotional Offer must be made within one (1) year of first publication of the Offer, or such claim shall be deemed forever waived by Merchant.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. RALLYSPARK DOES NOT WARRANT OR GUARANTEE THAT THE SERVICES OFFERED ON OR THROUGH THE WEBSITE SHALL BE UNINTERUPTED OR ERROR-FREE, OR THAT THE OFFERS WILL RESULT IN ANY REVENUE OR PROFIT FOR MERCHANT.
(a) Term. This Agreement shall commence on the Effective Date and continue for a period of three (3) months. Unless sooner terminated as herein provided, this Agreement shall automatically renew for successive one-month periods.
(b) Termination. Either party may terminate this Agreement upon breach by the other party. RallySpark may cancel this Agreement, in its discretion, upon notice to Merchant at any time for any reason. Merchant may cancel this Agreement, in its discretion, upon notice to RallySpark at any time after the initial ninety (90) days following the Effective date, provided that such notice to RallySpark is received prior to the 26th day of the then calendar month. In the event that notice of cancellation is received by RallySpark on or after the 26th day of a calendar month, then this Agreement shall be canceled at the end of the next calendar month following the month when such notice is received, and Merchant shall pay the monthly Membership Fee until the effective date of cancellation.
(c) Survival. Sections 3(b), 4, 5, 6, 7, 8(c), and 9, and any other provisions in this Agreement that by their nature would reasonably be expected to survive, shall survive expiration or termination of this Agreement. In addition, following termination or expiration, Merchant shall continue to honor all Offers, according to their terms, for which payments have been received by Merchant.
(d). Effects. Upon the termination or expiration of this Agreement for any reason: (i) all rights and licenses granted to Merchant hereunder shall immediately terminate; (ii) Merchant will make no further use of the RallySpark marketing materials, Web based application, Website, and mobile app and RallySpark will have the right to remove all Merchant Offers and associated information from the RallySpark website and mobile applications immediately. Within ten (10) days of termination, either party will destroy or return the other parties confidential information and cease further use.
(a) Confidentiality. Each party agrees to hold in strict confidence, avoid use, and/or disclosure of all confidential information of the other party except when required to comply with the Terms of this Agreement or required by law. The terms of this Agreement are to be treated by Merchant as confidential. The Offer, Offer Price, and Offer Period are also to be treated as confidential until the Offer has been publicly promoted on the RallySpark Website. Merchant agrees not to disclose any such confidential information to any third party, other than its legal, tax, and accounting advisors who are bound by a duty of confidentiality or as required by applicable law.
(b) Trademarks. Merchant acknowledges and agrees that RallySpark owns all right, title, and interest in the RallySpark Website, RallySpark web based application, mobile app, RallySpark trademarks, and any software, technology or tools used by RallySpark to promote, market, sell, generate, or distribute Promotional Offers or provide services in its normal course of business (collectively “RallySpark’s Intellectual Property”). Merchant shall not use, license, distribute, transfer, copy, reproduce, download, display, or modify RallySpark’s Intellectual Property or any portion or derivative thereof, or use such Intellectual Property in connection with the sale of products or services, except pursuant to the terms of this Agreement. Both parties agree the covenants relating to the Intellectual Property Rights of each party are reasonable and necessary for protection of the legitimate interests of the parties and violation would cause irreparable harm for which monetary damages would not be adequate. Therefore, the parties agree that, in the event of a breach by a party, the other party will be entitled to seek equitable relief in addition to any remedies it may have hereunder or at law, and the breaching party will reimburse the other party for reasonable costs with such enforcement including reasonable attorney’s fees.
(c) Relationship of the Parties. The parties to this Agreement are independent contractors, and nothing in this Agreement shall be construed to create a joint venture, partnership, franchise, or an agency relationship between the parties. Except as may otherwise be expressly provided herein, neither party has the authority, without the other party’s prior written consent, to bind or commit the other party in any way.
(d) Entire Agreement. This Agreement is the entire agreement of the parties with respect to the subject matter hereof, and supersedes any and all prior agreements and/or understandings, whether written or oral. This Agreement shall not be modified except by a written agreement dated subsequent hereto signed on behalf of each party by their duly authorized representatives. Merchant may not assign or transfer its rights and obligations under this Agreement, whether by operation of law or otherwise, without RallySpark’s prior written consent.
(e) Severability. If any provision of this Agreement will be held to be invalid or unenforceable, the validity of other provisions of this Agreement shall not be affected.
(f) Notices. Unless otherwise provided herein, all notices and requests in connection with this Agreement will be deemed given as of the day they are received either by facsimile, messenger, delivery service, or in the Mail, postage prepaid, certified or registered, return receipt requested, and addressed to a party at the address specified in the Merchant Agreement, or such other address as a party may designate pursuant to this notice provision.
(g) Waiver. No waiver of any term or condition hereof shall be effective unless in writing and signed by the authorized representative of the Party against whom such waiver is asserted. Any waiver shall be specifically limited to its terms, and shall not be deemed applicable to subsequent like circumstances.
(h) Governing Law. This Agreement shall be governed by the laws of the State of North Carolina, without reference to principles of conflicts of law, and the Parties further consent to the exclusive jurisdiction and venue of the state and federal courts located in Guilford County, North Carolina, to resolve any dispute that may arise between the parties relating to this Agreement.
(i) Counterparts. This Agreement may be executed in one or more counterparts, which may be exchanged by facsimile or other electronic means, each of which shall be deemed an original and which together shall constitute one and the same agreement.
I represent that I am a duly authorized representative of Merchant and that my act of registering as a RallySpark member indicates agreement with this document and shall be a binding commitment of Merchant under the terms of these Standard Terms & Conditions and the RallySpark Merchant Agreement.
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