Terms and Conditions
I LOVE FUN'S MERCHANT TERMS AND CONDITIONS
Effective Date and Date Last Updated: 7/13/2015
These Merchant Terms and Conditions (the “Terms and Conditions”) govern and are incorporated into the Merchant Offering Agreement between I Love Fun, Inc. ("ILF") and Merchant (collectively,
the "Agreement"). ILF, subject to the provisions of this paragraph, may amend the Agreement in its sole discretion and at any time. The most recent version of the Terms and Conditions will be available at.
Merchant shall receive notice of any amendment or update to ILF's Terms and Conditions by email. Merchant agrees that such notification method constitutes adequate notice to inform Merchant of any amendments to the Agreement and Merchant further agrees to be bound by any such amendments to the Agreement upon such notification.
Fulfillment By Merchant of Merchant Offering.
Merchant agrees and acknowledges that ILF is the seller of record for the Merchant Offering, on behalf of Merchant, but that Merchant remains the issuer of the Vouchers, the provider of the products and/or services, and the obligor with regard to the Voucher. Accordingly Merchant agrees that it, and not ILF, is solely responsible to fulfill the Merchant Offering and provide the products and/or services to the individuals redeeming each Voucher in accordance with this Agreement.
Merchant agrees to honor and fulfill all Vouchers sold by ILF in accordance with the terms stated on the Voucher and pursuant to its agreements with ILF. Merchant agrees to accept Vouchers in any form presented for redemption that has been approved by ILF, including, without limitation, a physical printout of the Voucher or by displaying the Voucher on a mobile device such as a smartphone at the point of service. Merchant agrees that in fulfilling the Voucher, it will not require any payments or impose any conditions that were not disclosed to the purchaser in the terms of the Voucher. Merchant shall not treat Voucher holders differently from other paying customers in the scheduling (e.g., use of blackout dates and
times) or delivery of services, except as expressly set forth in the Merchant Offering. Vouchers for a specified value or discount shall be redeemable for goods or services priced at the same level and on the same terms as other paying customers. For Merchant Offerings that require advance scheduling, Merchant shall use its best efforts to accommodate the scheduling request of the Voucher holder. Except as otherwise expressly set forth in the Merchant Offering, if the Voucher holder contacts Merchant prior to the applicable Promotional Value Expiration Date for the purpose of scheduling service thereafter, the customer shall get the full benefit of the Promotional Value.
Merchant may be asked to provide a logo, photograph, or other marketing materials (“Merchant Content”) to be used to market the Merchant Product. Merchant hereby grants ILF a non-xclusive, perpetual, irrevocable, royalty-free and worldwide license to reproduce, use, display, perform, distribute, adapt, reformat, and create derivative works based upon some or all of the Merchant Content for the purpose of developing, distributing, and otherwise promoting a Merchant Offering through its Promotion Channels as ILF deems appropriate. To the extent the Merchant Offering includes any third party names, likeness, logos, or trade identifiers, such third party contributions shall be deemed Merchant Content. Merchant shall be solely responsible for obtaining all rights and permissions necessary to grant the licenses herein. Merchant will not provide any Merchant Content for which it cannot grant the licenses described in this paragraph.
Merchant will be solely responsible for calculating, collecting and remitting any value added, use, occupancy, restaurant, privilege, gross receipts, sales or other applicable taxes (each a “Tax” and collectively, “Taxes”) owed to federal, state, or local taxing authorities in connection with the sale or redemption of Vouchers. Merchant shall be responsible for determining whether sales Tax should be charged and collected based on only the paid value (plus any additional amounts spent by the consumer) or the full offer value (paid value plus promotional value, plus any additional amounts spent by the consumer), based on applicable state laws. Merchant shall provide ILF with information sufficient for purposes of preparing a Form 1099-K, including, without limitation, Merchant's identification as a United States or non-United States person or entity, an Employer Identification Number or other tax identification number, legal business name and correct address (“Form 1099-K Information”). This Form 1099-K Information must be provided to ILF previous to ILF's publication of Merchant's Merchant Offering unless Merchant both is not located in the United States and is not providing services to ILF consumers in the United States. Merchant understands and agrees that it will indemnify ILF from any Tax and any penalties imposed that result from failure of Merchant to provide accurate Tax pay or information as required by the Internal Revenue Code and the regulations thereunder.
Merchant agrees that ILF shall have the right to refund the Amount Paid to any purchaser who is dissatisfied with the Merchant product or service.
Merchant shall indemnify, defend, and hold harmless ILF, its directors, officers, employees, and agents, from and against any and all claims, demands, causes of action, or liabilities, and expenses, including reasonable attorney’s fees, to the extent arising out of a Merchant Offering, Voucher, Merchant Content, product or service or the fulfillment thereof, and/or any breach or alleged breach of any Merchant obligation, representation, or warranty under this Agreement.
Limitation of Liability.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL 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, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS (COLLECTIVELY, “DISCLAIMED DAMAGES”). ILF’S CUMULATIVE LIABILITY RELATED TO DIRECT DAMAGES WILL BE LIMITED TO THE MARKETING FEES RECEIVED BY ILF RELATED TO THE MERCHANT OFFERING SET FORTH IN THE ORDER FORM. THESE LIMITATIONS SHALL NOT APPLY TO ANY INDEMNIFICATION OBLIGATION.
The terms of this Agreement are to be treated by Merchant and ILF as confidential, provided that ILF may disclose such terms as necessary to its third party Promotion Channels to enable them to market, distribute, or promote Merchant Offerings. The Merchant Offering, Paid Value, Promotional Value, and Offer Period are also to be treated by Merchant as confidential until the Merchant Offering has been publicly promoted by ILF or its Promotion Channels. 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.
Governing Law and Resolution of Disputes.
This Agreement shall be governed by the laws of the State of California, without application of principles of conflicts of law. In the event of any dispute, claim, or disagreement arising from or relating to this Agreement, the Merchant Offering Agreement, or any breach thereof, the parties agree that all disputes, claims, or differences may only be instituted and maintained in a state or federal court in Orange County, California. Merchant and ILF consent and submit to the exclusive personal jurisdiction and venue of such courts for resolution of all disputes.No party shall have the right to recover attorneys' fees against the other.
"Customer Data" means all identifiable information about purchasers generated or collected by ILF, including, but not limited to, purchasers' name, shipping addresses, email addresses, phone numbers, purchaser preferences and tendencies, and financial transaction data. Merchant shall use Customer Data only to fulfill its redemption obligations in connection with the Merchant Offering as authorized by this Agreement. Merchant expressly agrees that any Customer Data shall be used only for this purpose (including, but not limited to, the redemption of Vouchers and provision of goods and services to purchasers), and not to enhance a file or list owned by Merchant, or any third party. Merchant shall not sell
or use any Customer Data without the express written permission of ILF. Merchant acknowledges and agrees that ILF owns all interest in and to the Customer Data.
Merchant acknowledges and agrees that, as between the parties, ILF owns all interest in its website, Customer Data, trade name, logos, trademarks, and social media identifiers (collectively "ILF IP"). Merchant shall keep the ILF IP confidential, and shall not prepare any derivative work based on the ILF IP. Merchant shall not take any action to challenge or object to the validity of ILF's rights in the ILF IP or ILF's ownership or registration thereof. Except as specifically provided in this Agreement, Merchant and any third party assisting Merchant with its obligations in this Agreement, are not authorized to use ILF IP in any medium without prior written approval from an authorized representative of ILF. Merchant shall not include any trade
name, trademark, service mark, domain name, social media identifier, of ILF or its affiliates, or any variant or misspelling thereof, in any trademark, domain name, email address, social network identifier, metadata or search engine keyword. Merchant shall not use or display any ILF IP in a manner that could reasonably imply an endorsement, relationship, affiliation with, or sponsorship between Merchant or a third party and ILF. All rights to the ILF IP not expressly granted in this Agreement are reserved by ILF.
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.
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.
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.
ILF may assign this Agreement to (i) any of its subsidiary companies, or (ii) a successor entity in connection with a change of control or acquisition of substantially all of its Merchant Offerings business without notice to Merchant.
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 pecifically limited to its terms, and shall not be deemed applicable to subsequent like circumstances.
Merchant agrees that during the Term of this Agreement and for one additional year after termination of this Agreement, Merchant will not make disparaging, degrading, or otherwise negative remarks about ILF, its officers, directors, affiliates, or its business practices, strategies or plans.
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 Order Form or such other address as a Party may designate pursuant to this notice provision. MERCHANT AGREES THAT ILF MAY PROVIDE NOTICE TO MERCHANT VIA EMAIL TO THE EMAIL ADDRESS PROVIDED BY MERCHANT IN THE MERCHANT OFFERING AGREEMENT. - See more at: http://ilovefundotcom.com/index.php/terms-conditions/#sthash.YFZgC2Pi.dpuf