Giveback360's provides services through an online Merchant Account, by accessing and using this service, you agree to the following terms and conditions and any additional policies, guidelines or amendments thereto that are updated on this site or notifications sent to you via email notification (collectively, the "Terms"). If there are changes by law or in our capabilities and/or functionality which affect the services we are able to offer you through your Merchant Account, we may need to change these Terms or the services of the program from time to time. You should access and review these Terms on a regular basis. If you do not agree with these Terms, or you do not agree to any changes to the Terms, then you must immediately stop using your Merchant Account and cease your participation in any Giveback360 merchant program. These Terms govern your use of our services. If there is a conflict between these Terms and the details of a posted deal ("Deal") created or submitted via a Giveback360.com through your Merchant Account, these Terms shall govern. References in these Terms to "Party" and collectively as the "Parties" shall indicate You as a Merchant and Giveback360 individually.
1.1 "Pending Offer" or "PO" is a deal you submit to Giveback360 for approval to create a Voucher. The terms of the deal are specified through a PO and submitted by you in accordance with Section 3 below;
1.2 "Voucher" means a paper voucher or electronic code, image or other redemption capability that evidences a customer’s purchase of a Deal and contains the terms and any specific redemption information for said Deal;
1.3 "The Amount Paid," for the voucher means the amount paid by purchaser for a voucher;
1.4 "Promotional Savings" is the unpaid portion of the voucher's value in excess of the amount paid. (As an example, if a purchaser pays $20 for a voucher with a $30 Value, the voucher’s Promotional Savings would be $10);
1.5 "Deal Value" means the full value of the voucher for which the holder of a voucher will be able to redeem the voucher on or before the Promotional Savings Expiration, and is equal to the sum of its Promotional Savings plus the amount paid;
1.6 "Promotional Savings Expiration" is the date and time after which a voucher’s Promotional Savings may no longer be used (unless otherwise required by law), and after which time and date, the voucher may only be redeemed for its amount paid unless refunded, in those instances the purchaser may be refunded the amount paid;
1.7 "Sales Period(s)" means the date (or dates) and period (or periods) of time an Deal will be available for purchase as specified in Section 3.1;
1.8 "Giveback360 Site" means, the Giveback360 website (www.Giveback360.com) and collectively any distribution channels owned, controlled or operated by Giveback360 or e-mails, mobile applications or other types of electronic offerings;
1.9 "Giveback360" means Giveback360, Inc.
2.1 In order to use Giveback360 services, you are required to be registered with a special account on the Giveback360 Site (your "Merchant Account"). Your Merchant Access will facilitate your use of various Giveback360 services and will allow you to provide and receive up to date and accurate information about your relationship with us.
2.2 You are responsible for the confidentiality of your Merchant Account access and password, and are responsible for any and all activities that occur within you account. You agree to immediately notify Giveback360 of any unauthorized access to your account or password or any security breach related to the Giveback360 Site. Giveback360 is not and will not be liable for any loss or damage arising from your failure to manage your Merchant Account, including without limitation to regularly review the accuracy of your Deals and other information created on your behalf by authorized Giveback360 personnel. In addition to the other rights set forth herein, Giveback360 reserves the right to refuse service and/or access to the Giveback360 Site to you or any other merchant at any time without notice for any reason.
2.3 You must accept and comply with certain terms and conditions applicable to merchants through direct or, indirect access (via an authorized agent) to submit and manage deals on your Merchant Account and the Giveback360 Site. Giveback360 may add additional and optional features or capabilities within your Merchant Account. If you choose to use any of these features, then you may be required to agree to additional terms that are specific to those features.
2.4 You represent that you are of legal age to form a binding contract and have full power, capacity and authority to accept these Terms. If you are accepting these Terms on behalf of your employer or another entity, you represent that you have full legal authority to bind your employer or such entity to these Terms. If you don't have the legal authority to bind your entity, please ensure that only an authorized person from your organization consents to, and accepts, these Terms.
2.5 Merchant Dashboard is the section of your Merchant Account where Merchants may directly or, indirectly access (via an authorized agent), information about Deals. You may use your Merchant Account to perform administrative activities associated with your account including but not limited to submitting a deal, suspending current deals, submitting vouchers for redemption, reviewing data or analytics or statistics provided within the site by Giveback360.
2.6 Merchant Participation is currently free but may be limited to first year participation and the Company reserves the right to limit free accounts by geographic area, account type or any other limitations that the Company deems appropriate. Merchant participation may be terminated at any time at the discretion of the Company. For the purpose of Program participation, qualifying small businesses include small, locally-owned storefront and online businesses with $10 million in annual revenue or less.
2.7 Excluded Merchants are defined as any organization that manufactures and/or distributes pharmaceuticals, drugs, politics, pornography or sexual aids, diet aids, gambling, liquor, tobacco, firearms/weapons, or any sensitive topic with respect to current events. Businesses in the following industries require direct approval by Giveback360 Corporate offices: government agencies, charities, non-profits, trade associations, shopping property management firms, political, religious and educational organizations. Small businesses that are part of a franchise brand with more than 25 stores and franchise brands with 10 or more corporate-owned units. GiveBack360 reserves the right to deny access by, or terminate, any organization.
3.1 Best Deal Guarantee. IN ORDER TO PARTICIPATE AS A MERCHANT ON THE GIVEBACK360 PLATFORM YOU MUST OFFER GIVEBACK360 MEMBERS A “BEST OFFER AVAILABLE DEAL”. THAT IS, DEALS FROM MERCHANTS MUST BE GUARANTEED TO MEET OR BEAT ANY OTHER OFFER AVAILABLE THROUGH ANY OTHER SALE, COUPON, VOUCHER OR DEAL ACTIVE DURING THE SAME PERIOD ON THE SAME ITEM OR SERVICE. IT IS THE SOLE OBLIGATION OF THE MERCHANT TO INSURE NO BETTER DEALS ARE AVAILABLE AND GIVEBACK360 MAY TERMINATE A MERCHANT OR A DEAL IF THIS OBLIGATION IS NOT HONORED BY THE MERCHANT.
3.2 Creation of Pending Offers. Merchants define the conditions of a Deal and supply the content and images to describe and illustrate your Deal including its terms, conditions, timeframe for redemption and any and all content. These details are provided by completing and submitting, or authorizing an agent to complete and submit, a PO through your Merchant Account. Submission of a PO does not obligate Giveback360 to accept the PO or any of its contents nor to post the Deal on the Giveback360 site. No PO shall be binding on Giveback360 until Giveback360 authorizes the Deal on the Giveback360 platform. At the point Giveback360 authorizes a Merchant’s Deal you will be notified through your Merchant account dashboard that the Deal has been approved. After approval the Deal becomes "Active" for the authorized Sales Period(s) unless Giveback360 earlier terminates the Deal for any or no reason.
3.3 Deal Contents. You are responsible and liable for all Deal content and terms. Additionally, the Merchant is responsible to Giveback360 or any purchaser's use or reliance on any of the content or terms included in the Deal. When creating your Deal, you may not offer to sell any goods or services on terms or in a manner that is prohibited by law from being offered or advertised; including any content that violates or infringes in any way upon the rights of others; or including any material that is unlawful, threatening, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane or otherwise objectionable, which encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violates any Law. Giveback360 retains the exclusive right to accept or reject any PO for any or no reason.
3.4 Promotion of Deals. If Giveback360 accepts your PO, Giveback360 may promote the Deal using any method and through any medium that Giveback360 deems appropriate in its sole discretion. This may include using e-mail, mobile applications and/or any other type of electronic interface or distribution channels that may be owned, affiliated, controlled or operated by or in conjunction with Giveback360. Giveback360 may promote your Deal to any group, subgroup or any or all Giveback360 members and/or potential members based on any data or criteria determined by Giveback360, in its sole discretion, to be of value. Giveback360 further reserves the right, but has no obligation, to promote the Deal through any affiliates and/or third party business partners.
3.5 Distribution of Vouchers. The vouchers must include any restrictions or limitations on the use of the voucher you have specified in the PO and Giveback360 will use all commercially reasonable efforts to highlight these limitations while distributing your Vouchers. Once Giveback360 has received payment from a purchaser of the amount paid, Giveback360 will authorize for use, and make a voucher available to, the purchaser of your Deal or if gifted, to a designated third party on behalf of the purchaser. The members interface may also allow transfers to other members. Purchasers, or their authorized transferees, may then redeem the Deal by presenting their Vouchers to you as printed certificates, through their mobile devices, or any other media that Giveback360 and Merchant adopt for voucher redemption.
3.6 Deal and Vouchers Liability. You acknowledge that you are the exclusive seller of your Deal and the issuer of the vouchers. You also are responsible and liable for: (a) the decision to make your Deal available through the Giveback360 services; (b) fulfilling your Deal with respect to all voucher holders; and (c) supplying all goods and/or services specified in the Deal.
3.7 Redemption Obligations. You shall comply with your obligations specified in these Terms, the PO and other obligations regarding the use of your Merchant Account. In addition, when redeeming vouchers, you shall: (a) honor the vouchers during the time period specified and pursuant to the terms of your Deal, and as required under applicable law(s); (b) handle all customer service in connection with the redemption and use of the vouchers; (c) honor any voucher presented by an individual, even if that individual was not the purchaser, unless (i) otherwise specified in the Fine Print (as defined below) or otherwise stated prominently on the face of the voucher or, (ii) you reasonably believe that individual obtained the voucher in an unauthorized or illegal manner, in which case you shall immediately contact Giveback360 and explain the circumstances; and (d) comply with the terms and conditions stated on the voucher without modification and without imposing any restrictions or additional charges or penalties that are not expressly stated on the voucher. You shall specify all generally applicable policies (e.g., reservation or cancellation policies), restrictions and contractual arrangements (e.g., liability waivers, age restrictions) applicable to the Deal ("Fine Print") in the PO, and Giveback360 shall have no liability for the nature of your restrictions or your failure to specify appropriate details in the Fine Print.
3.8 Expired Vouchers. Merchant shall allow voucher holders to redeem any valid vouchers for the Deal Value until the promotion’s stated date and time of expiration. You may further allow voucher holders to redeem any valid vouchers past the expiration date and continue to redeem vouchers for the Deal Value or the Paid Value at your discretion. Giveback360 will offer credits for the amount paid to the purchasers of vouchers who have not printed or viewed a mobile version of their voucher after the Promotional Savings Expiration. All vouchers issued but not printed or viewed in a mobile format within 30 Days following the expiration of an applicable Promotional Savings Expiration will be deactivated by Giveback360 and all purchasers of the Deal will be contacted by Giveback360 for an optional credit of the paid value. Any vouchers redeemed by you after the 30 Day extended use period are considered "Expired Redemptions". Expired Redemptions are your sole responsibility. You may not report redemption data for Expired Redemptions, and Giveback360 will not pay you for Expired Redemptions.
3.9 Use of Third Party Merchants. You may subcontract or delegate portions of your performances required by these Terms with respect to a particular Deal to a third party ("Third Party Merchants"). If you subcontract or delegate to Third Party Merchants with respect to fulfilling any Deal, you are obligated to contact Giveback360 to notify us and register the Third Party Merchant with us. Additionally, you will remain solely responsible and liable for (a) all your obligations, including financial obligations, under these Terms and (b) all acts and omissions of your Third Party Merchants. Third Party Merchants shall comply with all applicable restrictions and obligations imposed on you under these Terms, and you will be solely responsible for your financial and contractual relationship with your Third Party Merchants.
3.10 Content License. You hereby grant Giveback360 a non-exclusive, worldwide, transferable, irrevocable, perpetual and sub-licensable license to use, copy, distribute, display and perform any trademarks, photographs, graphics, artwork, videos, sound clips, text, and other content or materials that you provide to Giveback360 in your Merchant Account or otherwise use to describe your Deal ("your Content") in any and all media or formats in connection with Giveback360’s fulfillment of its rights and obligations under these Terms, including the promotion of Deals and distribution of vouchers. Additionally, Giveback360 may, in its sole discretion, include any and all information supplied by you as a Merchant in the media and press to further promote the Deals, the Company or you as a participating Merchant.
Payment terms for all PO deals are defined at the time of posting. Payment terms governing your Deal are as set forth at time of posting unless you have a separate written agreement with Giveback360 expressly modifying the terms of your payment under a particular Program. Generally payment is a specified % of the amount paid less transaction fees. Expired or Unauthorized Redemptions will not be paid and any non-valid redemption can be designated for review within the Merchant Account. Net Amounts due will be paid in the form and on a schedule outlined at the time the PO is established and confirmed by Giveback360.
5.1 Term. These Terms are effective on the earliest date on which you first access the Merchant Terms through your Merchant Account, accept the Merchant Account Terms, or submit a PO. These Terms will remain in effect through the expiration of any and all activity with Giveback360. Accounts remain active until cancelled, terminated or all vouchers issued have been paid or such earlier date as all vouchers are redeemed or refunded to their purchasers, unless otherwise earlier terminated as set forth in these Terms.
5.2 Termination. Giveback360 may terminate these Terms and suspend your access to the Merchant Account with 24 hours advance written notice for convenience, or immediately for cause if in the sole discretion of Giveback360 any of the following has occurred: i. you violate your redemption obligations with respect to any Giveback360 programs; ii. you directly fail to redeem or cause a failure to redeem any voucher for any reason, including but not limited to the sale or dissolution of your business or a greater than expected number of vouchers sold, iii. you violate any material terms of these Terms or any other agreement you have with Giveback360, or iv. you misuse or abuse system guidelines or Giveback360 policies that are shared with you on our site, or in any way engage in conduct, which in Giveback360’s sole discretion, is unfair, misleading, deceptive or otherwise in bad faith, and this holds true even if such conduct is actually adverse to the interests of Giveback360 or any Giveback360 customer.
5.3 Deal Suspension or Cancellation. You or Giveback360 may cancel or suspend the continuation of any Deal through your Merchant Account for any or no reason.
5.4 Obligations at Termination; Relevant Provisions shall survive termination. Neither the expiration nor termination of these Terms, nor your suspension or cancellation of any Deal shall in any way affect the rights of any holder of a valid voucher. Nor shall such event affect Giveback360's obligation to pay you for validly redeemed vouchers, or modify or eliminate your obligation to redeem valid vouchers pursuant to their terms. All Terms and any sections of these Terms that are logically intended and required to survive expiration or termination to achieve their intent, shall survive these Terms without limitation.
6.1 By Both Parties. Each Party represents and warrants to the other that: (a) it has the power and authority to enter into the Agreement and perform its obligations under these Terms; (b) it is an entity duly organized, validly existing and in good standing under the Laws of its jurisdiction of incorporation or formation; and it is duly qualified to do business and is in good standing in each jurisdiction where the conduct of its business, provision of its goods and/or services, or the ownership of its property requires such qualification; (c) these Terms reflect its legal, valid and binding obligation, enforceable against it; and (d) it shall comply with all Laws applicable to its obligations under the Agreement.
6.2 By you. You represent and warrant to Giveback360 that: (a) you and any Third Party Merchant(s), as applicable, (i) are registered for the collection of sales, use and other similar taxes in all states and localities in which goods and/or services will be made available pursuant to the terms and presentation of the voucher; and (ii) will collect and remit any and all applicable state or local sales, use, hotel occupancy, and other similar taxes that may apply to the redemption of the vouchers or the supplying of goods or services; (b) your Content, your representations about your business, and your redemption process for vouchers, do not and will not infringe, misappropriate, or otherwise violate any intellectual property right or right of privacy or publicity of any third party; (c) you hold all necessary Regulatory Documents and Authorization Documents, if any, required to make any Deal and provide the goods or services described therein; (d) you will provide the goods and services made available through any Deal in a manner consistent with industry best practices; and (e) you have all rights necessary to grant the licenses set forth in these Terms.
6.3 NO FURTHER REPRESENTATIONS. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. GIVEBACK360 DOES NOT WARRANT OR GUARANTEE THAT : (A) ANY DEAL OR VOUCHER POSTED AT GIVEBACK360 WILL BE ERROR-FREE; (B) ANY ERRORS, OMISSIONS OR MISPLACEMENTS WILL BE CORRECTED, OR (C) THE DEAL WILL RESULT IN ANY REVENUE OR PROFIT FOR YOU. GIVEBACK360 MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE GIVEBACK360 SITE OR ANY OTHER PROMOTION, DISTRIBUTION OR REDEMPTION METHOD USED OR PROVIDED BY GIVEBACK360 (INCLUDING WITH RESPECT TO ITS UNINTERRUPTED OR ERROR-FREE OPERATION) AND/OR THE ACCURACY, ADEQUACY, RELIABILITY, AVAILABILITY, TIMELINESS, COMPLETENESS, SUITABILITY OR OTHER CHARACTERISTICS OF THE INFORMATION AND MATERIALS CONTAINED ON OR PRESENTED THEREIN. THE GIVEBACK360 SITE AND OTHER PROMOTION, DISTRIBUTION OR REDEMPTION METHODS USED OR PROVIDED BY VOUCHER AND ALL RELATED INFORMATION AND MATERIALS ARE PROVIDED "AS IS", WITHOUT ANY WARRANTY OF ANY KIND, AND ON AN "AS AVAILABLE" BASIS.
7.1 By you the Merchant. You, at your sole cost and expense, shall defend, indemnify and hold Giveback360, its affiliated and related entities, and any of their respective officers, directors, agents and employees, harmless from and against any third party claims, lawsuits, actions, proceedings or investigations (collectively, "Claims") from and against any fees, costs, sanctions, penalties, damages, losses or expenses (including but not limited to attorney's fees and costs) (collectively, "Losses") arising out of or relating to any of the following: (a) your or any Third Party Merchant’s (i) fraud, willful misconduct, or gross negligence or (ii) breach or alleged breach of these Terms; (b) any claim for state sales, use, hotel occupancy, or any other similar tax obligations (including any penalties, interest or other additions to tax) arising from the sale and subsequent redemption of a voucher; (c) to the extent applicable, any claim by any local, state or federal governmental entity for any unclaimed property regarding vouchers, including but not limited to, any claims for penalties and interest; (d) the goods and/or services provided by you, including but not limited to, any claims for false advertising, injuries, illnesses, damages, or death; (e) any Deal, including your provision of incomplete or inaccurate or information applicable to such Deal; or (f) your Content; and (g) any infringement, misappropriation, or other violation, of any patent, trademark, copyright, publicity, privacy, trade secret, or other right of any third party by you, your Content, or the use thereof.
7.2 By Giveback360. Giveback360, at its sole cost and expense, shall defend, indemnify and hold harmless you and your officers, directors, agents and employees, from and against any and all Claims brought against any of you arising out of or in connection with: (a) Giveback360’s material breach of these Terms or (b) any infringement, misappropriation or other violation of any trademark or copyright of any third party by Giveback360 (excluding Giveback360’s use of materials provided or authorized for Giveback360’s use by, you.)
7.3 Indemnification Process. The Party seeking indemnification under this Section 7 shall promptly notify the other Party in writing of any Claim for which it seeks indemnification; provided that such indemnified Party’s failure to timely provide such notice shall not relieve the indemnifying Party of its indemnification obligations unless it can demonstrate actual prejudice as a result of such failure. In the event Giveback360 is the indemnifying Party, Giveback360 shall have the right to, upon written notice to you, elect to assume control of the defense and settlement of any Claim, and you will have the right to participate and be represented in the defense of such Claim by your own counsel and at your own expense. You shall not settle any Claim for which you are to be indemnified hereunder without Giveback360’s prior written consent, which consent shall not be unreasonably withheld or delayed.
8.1 General. You will ensure that the terms of any Deal, any Fine Print, and your activities under the Agreement, including your redemption of the vouchers, comply with any and all state, federal and local laws, rules regulations, and orders, including the Credit Card Accountability, Responsibility, and Disclosure Act of 2009 and all laws that govern false, unfair and deceptive practices, vouchers, gift cards, coupons, and/or gift certificates (collectively "Laws"). You understand and agree further that your compliance with Laws is a basic requirement, and that you must also comply with all of Giveback360’s Program requirements and product -specific policies applicable to vouchers ("Rules"), which Rules may require you to do more than than mandated by Law.
8.2 Health and Safety. You represent and warrant that all good or services provided in connection with any Deal are safe and comply with all applicable Laws regarding health and safety, fire, and hygiene standards (collectively, "Health Laws"). At Giveback360’s request, you will promptly provide copies of any applicable facility operating license(s), or similar credentials or documents evidencing your and your facility(ies) compliance with the Health Laws. You shall ensure that your facilities and operations remain in compliance with all applicable Health Laws during the term of these Terms. Giveback360 reserves the right to immediately terminate its relationship with you, and to refuse to promote your Deal, if it believes you do not fully comply with any or all applicable Health Laws.
8.3 Authorization Documents. You hereby represent and warrant that you have all rights and permissions necessary to provide or use any goods, services, or brands that you do not independently own as part of any Deal and to grant the rights to your Content granted under these Terms. Even if Giveback360 has accepted a particular PO for your Deal, Giveback360 shall have no obligation to promote or to continue to promote, any Deal if it has any concerns about the integrity of said Deal. You shall immediately notify Giveback360 if, at any time during the term of the Agreement, you no longer have all necessary rights and permissions required to make the Deal available on the Site through the Giveback360 services.
8.4 Regulatory Documents. You hereby represent and warrant that you have obtained all governmental licenses, approvals, and authorizations necessary to provide the goods or services included as part of any Deal offered. If requested, you shall provide Giveback360 with copies of licenses, proof of authorization or other appropriate documentation evidencing such regulatory permissions ("Regulatory Documents"). Even if Giveback360 has accepted the PO for your Deal, Giveback360 shall have no obligation to promote or continue to promote your Deal if it has any concerns regarding the existence, integrity or veracity of Regulatory Documents it reasonably is relying on you to maintain. You shall immediately notify Giveback360 if, at any time during the term of the Agreement, you no longer have all rights and Regulatory Documents required to offer the Deal made available on the Site and through the Giveback360 services.
9.1 Confidential Information. Each Party agrees that (i) the terms set forth in a Merchant Account are confidential, (ii) any information designated by the other Party as "confidential," and (iii) any other information that the recipient should reasonably expect to be confidential under the circumstances shall be collectively deemed "Confidential Information." Confidential Information does not include information that (a) was, or becomes, publicly known through no action of the receiving Party; (b) is already in the legitimate possession of the receiving Party prior to its disclosure; (c) is obtained by the receiving Party without a breach of any third party’s obligations or violation of Laws; or (d) is independently developed by the receiving Party.
9.2 Obligation. Each Party shall take reasonable precautions to protect all Confidential Information, and will only disclose Confidential Information to its employees on a need-to-know basis. You may also disclose Confidential Information to your Third Party Merchants if they have signed a confidentiality agreement that requires them to protect the Confidential Information in at least the same manner specified in these Terms. If a Party is required by Law to disclose the other Party’s Confidential Information, it shall promptly notify the other Party and shall cooperate with the other Party to obtain a protective order or to otherwise limit the disclosure of the Confidential Information.
9.3 Irreparable Harm. Each Party agrees that, in the event of an actual, alleged or threatened breach of its confidentiality obligations established by these Terms, the other Party is likely to suffer immediate and irreparable harm, and may seek a temporary restraining order, injunction or other form of equitable relief without the posting of any bond or other security.
10.1 Customer Data. You acknowledge that Giveback360 owns all data collected by, or on behalf of, Giveback360 pursuant to these Terms, including all information and data of individuals who may process or purchase vouchers ("Customer Data"). Subject to applicable Laws and in accordance with Giveback360’s policies and procedures, Giveback360 shall not provide you with access to Customer Data, except: (i) to the extent such specific data is necessary for you to redeem and/or verify the validity of the vouchers, and, (ii) to the extent that any potential purchaser is made aware by statements in the Fine Print, that providing or sharing certain information is required to redeem the voucher, if such sharing would not be implicit in the type of good or service being offered. Except to the extent required by Laws or otherwise authorized in writing by Giveback360, you may not use Customer Data for any purpose other than to redeem the vouchers and provide the service specified in the Deal. You shall, and shall ensure that any Third Party Merchants you may work with, take commercially reasonable efforts to protect the security of Customer Data and comply with all Laws (and Giveback360’s policies and procedures) relating to the processing of any Customer Data. If you become aware of, or suspect, any unauthorized access to or use of Customer Data, you shall immediately notify Giveback360, and shall cooperate with Giveback360 in the investigation of such breach and the mitigation of any damages. You shall bear all resulting costs and expenses incurred by Giveback360 to comply with applicable Laws (including without limitation any data breach Laws). Upon termination or expiration of this Agreement, you shall, as directed by Giveback360, destroy or return to Giveback360 all the Customer Data in your or your Third Party Merchants possession.
10.2 Giveback360 IP. You acknowledge that Giveback360 owns all right, title, and interest, including all intellectual property rights, in the Giveback360 Site, trade name, logos, trademarks, and service marks, and any content, data, software, technology, tools, or business methods used by Giveback360 to develop, promote, market, sell, generate, or distribute Deals and vouchers and otherwise perform under these Terms (collectively the "Giveback360 IP"). With respect to any Offer, you may use Giveback360’s name, trademarks, and logos solely to publicize to your customers and potential customers the fact that you are featuring that Deal through a particular Program. This limited right to use Giveback360's branding is applicable only during the period from the start of the Sales Period through the Promotional Savings Expiration. Notwithstanding the above, you shall not use or display the Giveback360 IP in any manner that states or implies that Giveback360 has endorsed or approved the Deal or your products or services. Any use of Giveback360 IP shall comply with any Giveback360 usage guidelines posted on the Giveback360 Site or provided to you from time to time. All goodwill and improved reputation in respect of and associated with the Giveback360 IP shall inure to the sole benefit of Giveback360. Except as expressly set forth in these Terms, you have no right, license, title or interest in or to any Giveback360 IP, and shall not use, distribute, transfer, copy, download, display, modify, perform or create derivative works of the Giveback360 IP without the express written consent of Giveback360. You shall not translate, reverse engineer, decompile or disassemble the Giveback360 IP. Giveback360 has the right to revoke the rights sets forth in this Section upon written notice to you reserves all rights not specifically granted.
11.1 LIMITATION OF GIVEBACK360’S LIABILITY. GIVEBACK360'S SOLE AND COMPLETE LIABILITY TO YOU SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO YOU BY GIVEBACK360 PURSUANT TO THESE TERMS PRIOR TO THE DATE THE CLAIM AROSE PER DEAL. IN NO EVENT SHALL GIVEBACK360 BE LIABLE TO YOU, ANY THIRD PARTY MERCHANT OR ANY OTHER THIRD PARTY FOR ANY CLAIMS RELATING TO THE USE OF YOUR GOODS AND SERVICES, INCLUDING BUT NOT LIMITED TO CLAIMS RELATING TO FALSE ADVERTISING, INJURIES, ILLNESSES, DAMAGES, OR DEATH. ANY CLAIM ARISING OUT OF OR RELATING TO ANY VOUCHER OFFERED UNDER THE APPLICABLE PO MUST BE MADE WITHIN ONE (1) YEAR OF FIRST PUBLICATION OF THE VOUCHER AND ALL CLAIMS NOT SO MADE SHALL BE DEEMED WAIVED BY YOU.
11.2 NO CONSEQUENTIAL DAMAGES. EXCEPT FOR (A) INDEMNIFICATION OBLIGATIONS HEREUNDER OR (B) EITHER PARTY’S (OR WITH RESPECT TO YOU, YOUR THIRD PARTY MERCHANT’S) (I) VIOLATION OF SECTION 8 (COMPLIANCE WITH LAW AND AUTHORIZATIONS), SECTION 9 (CONFIDENTIALITY), OR SECTION 10 (CUSTOMER DATA; INTELLECTUAL PROPERTY RIGHTS) OR (II) FRAUD, WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, IN NO EVENT SHALL EITHER PARTY BE LIABLE OR OBLIGATED TO THE OTHER PARTY OR ANY THIRD PARTY IN ANY MANNER FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE, OR INDIRECT DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGES IN ADVANCE.
11.3 Insurance. You represent and warrant that you have, and shall maintain at your expense and at all times during the term of these Terms, all types of liability insurance policies, with coverage in amounts that are customary for merchants and/or service providers in your region, consistent with best industry practices, and sufficient to fully comply with applicable Law and fulfill your obligations under these Terms. Upon Giveback360’s request, you shall provide proof of your maintenance of such policies and provide assurances that indicate that Giveback360 will be covered by your insurance policies in the event of a claim arising under or in relation to these Terms or any Deal.
12.1 Binding Arbitration. The Parties hereby agree that (a) these Terms and all disputes, controversies, or claims arising out of or relating to these Terms, the Deal, or the PO shall be resolved exclusively by final and binding arbitration administered by the American Arbitration Association ("AAA") and conducted before a single arbitrator pursuant to the applicable Rules and Procedures established by AAA ("Rules and Procedures"); (b) the arbitration shall be held at a location determined by AAA pursuant to the Rules and Procedures (provided that such location is reasonably convenient for you), or at such other location as may be mutually agreed upon by you and Giveback360; (c) the arbitrator shall apply California Law consistent with the Federal Arbitration Act and applicable statutes of limitations, and shall honor claims of privilege recognized at law; (d) there shall be no authority for any claims to be arbitrated on a class or representative basis; arbitration will decide only your and/or Giveback360’s individual claims; and the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated; (e) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Giveback360 will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive; and (f) with the exception of subpart (d) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures established by AAA, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subpart (d) is found to be invalid, unenforceable or illegal, then the entirety of this Arbitration Provision shall be null and void, and neither you nor Giveback360 shall be entitled to arbitrate their dispute. For more information on AAA and its Rules and Procedures, visit the AAA website at http://www.adr.org.
13.1 Electronic Communications and Notices. You acknowledge that communications between the Parties often are conducted through the use of electronic or digital means. For contractual purposes, you hereby (a) consent to receive communications from Giveback360 in an electronic form and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Giveback360 provides to you electronically satisfy any legal requirement that such communications would satisfy if the communications were in writing. The foregoing does not affect your statutory rights. Any notice required or permitted hereunder shall be provided in writing, and shall be deemed delivered when (a) delivered by electronic mail to the then-current e-mail address in your Merchant Account, or (b) regardless of whether or not actually received, when deposited in (i) the United States mail, postage prepaid, certified mail, return receipt requested, or (ii) a regional or national overnight courier service, addressed to the applicable Party at the address set forth in your case, in your Merchant Account, and in Giveback360's case, to Giveback360, Inc., 16776 Bernardo Center Drive #110, San Diego, California, 90218, with a copy to the attention of the Giveback360 Legal Department.
14.1 Force Majeure. Neither Party shall be liable for any default or delay in the performance of its obligations under these Terms due to acts of God, terrorism, natural disasters, earthquakes, fire, riots, floods, and other similar events, to the extent such event is beyond the reasonable control of such Party and only for the duration of such event.
14.2 Relationship of the Parties. The Parties are independent contractors. Nothing in these Terms shall be deemed or construed by the Parties hereto, nor by any third party, as creating a joint venture, partnership, franchise, or an agency relationship between the Parties. Neither Party has the authority, without the other Party's prior written approval, to bind or commit the other Party in any way. Giveback360 is not a vendor or co-vendor of your goods and services.
14.3 Agreement. These Terms constitute the entire understanding between the Parties relating to any Program Deal and your obligations in making such Deal, and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter. No part of these Terms may be amended or modified except by mutual written agreement of the Parties. In the event of a conflict between these Terms and the terms of your Deal, these Terms shall govern.
14.4 Interpretation. The section headings of these Terms are for purposes of reference only and shall not in any way limit or affect the meaning or interpretation of any of the terms hereof. References to a section include references to all subsections of that section.
14.5 Invalid Provisions. If any provision of these Terms should be held to be invalid or unenforceable the validity and enforceability of the remaining provisions of these Terms shall not be affected and the Parties shall negotiate an equitable adjustment in the provisions in order to affect, to the maximum extent permitted by Law, the intent and purpose of said Terms.
14.6 Waivers. One or more waivers of any covenant, term or condition of these Terms by either Party shall not be construed as a waiver of a subsequent breach of the same covenant, term or condition.
14.7 Assignment. You may not assign or transfer any of your rights, or delegate any of your obligations, under these Terms without Giveback360's prior written consent, and any attempt to do so shall be void and unenforceable.
14.8 Successors and Assigns; No Third Party Beneficiaries. These Terms shall be binding upon and inure to the benefit of, the Parties and their respective permitted successors and assigns. There are no third party beneficiaries to these Terms, except as expressly set forth herein or in a particular PO.