YCS® Mobile Applications Merchant Agreement
BY CLICKING THE “I AGREE” BUTTON ON THE YCS® GROUP WEBSITE (THE “YCS® WEBSITE”), YOU (THE “MERCHANT”) AGREE THAT YOU HAVE READ, UNDERSTAND AND ACCEPT THE FOLLOWING TERMS AND CONDITIONS, AND YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS AND ALL TERMS AND POLICIES INCORPORATED BY REFERENCE HEREIN. THESE TERMS AND CONDITIONS CONSTITUTE A BINDING AGREEMENT BETWEEN MERCHANT AND YCS® GROUP, LLC (“YCS®”) AND ARE HEREINAFTER REFERRED TO AS THE “AGREEMENT” BETWEEN MERCHANT AND YCS®. IF MERCHANT DOES NOT AGREE TO THIS AGREEMENT IN ANY RESPECT, MERCHANT SHOULD NOT USE OR ACQUIRE THE PRODUCTS OR SERVICES OFFERED BY YCS® IN ANY WAY. PRODUCTS AND SERVICES ARE OFFERED TO MERCHANT BY YCS® CONDITIONED UPON MERCHANT’S ACCEPTANCE WITHOUT MODIFICATION OF THIS AGREEMENT.
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WHEREAS, YCS® is a company in the business of digital consumer benefits, including fundraising tools, direct sales, employee benefits and rewards programs, and “white label” mobile application services for not-for-profit and for-profit organizations and public entities, and further provides marketing services to merchants in the offering of merchants’ discount offers and promotions via online offers, print offers, and mobile applications that promote the merchant’s business brand; and
WHEREAS, Merchant desires to participate in, and provide discount and other customer offers and benefits for offering and/or use on and/or in connection with, YCS®’s iGiftback® Community Marketing Mobile Application (the “iGiftback® App”) and YCS®’s “white label” mobile application products (the “White Label Apps”), via online offers, and printed distribution offers on the terms and subject to the conditions set forth in this Agreement, so that Merchant may market to existing and potential customers and build customer or brand loyalty; and
WHEREAS, YCS® desires to enter into an agreement with Merchant to provide Merchant with the benefit of YCS®’s mobile applications, via online offers, print offers, and provide other related services for and to Merchant;
NOW, THEREFORE, in consideration of the following promises, performances, and the mutual covenants hereinafter set forth and other valuable consideration, Merchant and YCS® agree as follows:
- PARTICIPATION IN YCS® MOBILE APPLICATION PRODUCTS AND SERVICES: Merchant agrees to participate in YCS®’s iGiftback® App and YCS®’s White Label Apps (collectively, the “YCS® Mobile Applications”), via online offers, printed offers, and YCS® agrees to allow Merchant to participate in the YCS® Mobile Applications, on the terms and subject to the conditions set forth in this Agreement.
- MERCHANT OFFERS:
- Subject to the terms and conditions in this Agreement, Merchant agrees to provide YCS® with the terms of promotional and discount offers (the “Merchant Offers”) and to permit YCS® to provide the Merchant Offers to any potential purchasers using any YCS® Mobile Application that YCS®, in its sole discretion, deems appropriate. A promotional or discount offer shall not qualify as a Merchant Offer within the meaning of this Agreement unless (i) it provides a discount of twenty-five percent (25%) or more for each single offer (a “Qualifying Percentage Discount”) or (ii) it provides a buy-one-get-one-free offer (a “BOGO Offer”) or (iii) it provides a fifty percent (50%) discount on the purchase of a second, comparably priced item upon purchase of a specified item (a “Buy-One-Get-Half-Off Offer”) or (iv) for any offer that is not a Qualifying Percentage Discount, a BOGO Offer or a Buy-One-Get-Half-Off Offer, the offer is, in YCS®’s sole discretion, as good as or better than any promotional or discount offer then being offered by Merchant. Merchant shall provide YCS® with at least one (1) Merchant Offer, and may provide up to ten (10) Merchant Offers, in accordance with the provisions of this Section 2. YCS® shall not be obligated to display any Merchant Offer on any YCS® Mobile Application at any time, via online, and print offers but YCS® may, in YCS®’s sole discretion, display any Merchant Offer on any YCS® Mobile Application, via online, and print offers that YCS® determines, in its sole discretion, to be appropriate.
- Merchant-Supplied Materials: Within three (3) business days following the Effective Date of this Agreement (as defined in Section 3(A)), Merchant shall provide YCS® with the terms and conditions of its Merchant Offers, written copy, discount or promotional terms, logos, photos and any other material (collectively, “Merchant-Supplied Materials”) that Merchant proposes to be used in or in connection with such YCS® Mobile Applications as YCS®, in its sole discretion, may deem appropriate. YCS® reserves the right, in its sole discretion and for any reason, to refuse to use any Merchant-Supplied Materials or to request that Merchant submit additional or different Merchant-Supplied Materials for YCS®’s review and approval and for possible use in connection with such YCS® Mobile Applications as YCS®, in its sole discretion, may deem appropriate. Merchant shall be solely responsible for ensuring the accuracy and completeness of all Merchant-Supplied Materials. Subject to this Section 2, Merchant and YCS® acknowledge and agree that YCS® shall have the right, in YCS®’s sole discretion, to incorporate the Merchant-Supplied Materials provided by Merchant into passes (the “Passes”) containing Merchant Offers that YCS® may offer for purchase via such YCS® Mobile Applications as YCS®, in its sole discretion, may deem appropriate. Merchant acknowledges and agrees that the Merchant-Supplied Materials will comply with the following additional specifications:
- Merchant Logo: In the event that Merchant elects to include its logo with its Merchant Offer on any Pass, Merchant shall provide YCS® with a copy of Merchant’s logo in a transparent Portable Network Graphics (PNG) format that is capable of fitting in a 180x85px box.
- Merchant Offer Text: The text for any Merchant Offer shall not exceed 85 characters (including spaces) comprising up to three lines of text.
- Duration of Merchant Offer: Except as otherwise provided in Section 2(F), each Merchant Offer shall be valid and available to YCS® for incorporation into Passes and any YCS® Mobile Applications for a period of two (2) years following the date that Merchant provides YCS® with the Merchant-Supplied Materials relating to that Merchant Offer, or for such longer duration as Merchant may specify in writing to YCS® (such period of time being the “Duration of the Merchant Offer”).
- Expiration Date: Each Pass will carry a unique expiration date that (i) does not exceed the Duration of the Merchant Offer contained on such Pass and (ii) will otherwise be determined by YCS® in its sole discretion. Each Pass will clearly and conspicuously disclose when that Pass expires, as well as any other material terms pertaining to the Pass.
- Promotion Code: Upon Merchant’s written request to YCS®, YCS® will assign to Merchant a unique promotion code for each Merchant Offer, which Merchant may use to track that Merchant Offer at the Merchant’s point of sale.
- Modifications to Merchant Offers: Merchant may not modify any Merchant Offer after that offer has been incorporated on a Pass that has been issued to any customer, and Merchant acknowledges and agrees that Merchant shall abide by the terms of any issued and outstanding Merchant Offer until that Merchant Offer expires according to its terms. If Merchant desires to modify any Merchant Offer before it is offered or issued to any customer, Merchant shall provide written notice to YCS® of any proposed change to the Merchant Offer and/or any Merchant-Supplied Materials relating to the Merchant Offer at least thirty (30) days prior to the date as of which the Merchant proposes for the modified Merchant Offer to take effect. YCS® shall use reasonable efforts to modify the Merchant Offer in accordance with such notice on newly-offered Passes within thirty (30) days (or such longer period as may be specified by Merchant) following YCS®’s receipt of such written notice.
- TERM AND TERMINATION:
- The “Initial Term” of this Agreement shall commence on the date that Merchant enters into this Agreement by clicking the “I AGREE” tab on the YCS® Website (such date being the “Effective Date” of this Agreement), and shall continue for two (2) years thereafter, unless earlier terminated in accordance with this Agreement. Subject to the parties’ termination and non-renewal rights described below, upon the expiration of the then-existing Initial Term or Renewal Term (as defined below) of this Agreement, it is agreed that this Agreement will automatically continue for a term of two years following the expiration of the then-existing Initial Term or Renewal Term (each such renewal being a “Renewal Term”). The “Term” of this Agreement shall consist of its Initial Term and any Renewal Terms.
- Subject to the parties’ termination rights (described below), YCS® reserves the right to decline to renew this Agreement with Merchant upon thirty (30) days’ written notice to Merchant prior to expiration of the then-existing Initial Term or Renewal Term. YCS® reserves the right, upon thirty (30) days’ written notice to Merchant prior to expiration of the then-existing Initial Term or Renewal Term, to require new written Agreement with new or additional provisions, terms and conditions in order to continue services for Merchant.
- This Agreement shall terminate upon the expiration of its Initial Term or any Renewal Term upon the issuance and receipt of a written notice from either party to the other party of intent not to renew this Agreement following the expiration of the then-existing Initial Term or Renewal Term. Such notice shall be in writing, shall be provided in any manner specified in Section 9 of this Agreement, and must be received by the recipient party no less than thirty (30) days prior to the expiration of the then-existing Initial Term or Renewal Term.
- Except as otherwise provided herein, either party may terminate this Agreement upon the material breach of the other party, if such breach remains uncured for thirty (30) days following written notice to the breaching party.
- ASSIGNMENT OF RIGHTS OR DUTIES: YCS® is permitted to assign all or part of its rights or obligations under this Agreement, in its sole discretion, to any affiliate, subcontractor or third-party. Merchant shall not assign or attempt to transfer any of its rights or obligations to any third-party or subcontractor without the prior written consent of YCS®, and any purported or attempted assignment by Merchant without YCS®’s prior written consent shall be null and void and of no effect.
- GRANT OF RIGHTS: Merchant hereby grants to YCS® a non-exclusive, royalty-free license to use Merchant’s logo and all other Merchant-Supplied Materials for the purposes described herein during the Term of this Agreement.
- RESERVATION OF RIGHTS: The YCS® Mobile Applications and the infrastructure and source code used to provide the YCS® Mobile Applications are proprietary to YCS®. Merchant does not acquire any ownership of any YCS® Mobile Application or any part thereof under this Agreement. YCS® reserves all rights not expressly granted to Merchant under this Agreement.
- MERCHANT INDEMNIFICATION: Merchant agrees to indemnify, defend and hold harmless YCS®, its affiliated companies, and their respective employees, contractors, officers, directors, representatives, agents, partners, and subsidiaries (each a “YCS® Indemnified Party”) from and against any and all claims and demands, losses, causes of action, suits, liability, damages, fines, penalties, and all reasonable costs and expenses (including but not limited to attorney’s fees) (collectively, “Claims”), arising out of or related to any Merchant Offer, any Merchant-Supplied Materials, or any other materials included in or made available via any YCS® Mobile Application at the request of Merchant.
Merchant further agrees to indemnify, defend and hold harmless YCS® and the other YCS® Indemnified Parties from and against any and all Claims arising out of or related to any product or service of Merchant, and any action or inaction of Merchant, its affiliated companies, any of their respective employees, contractors, officers, directors, representatives, agents, partners or subsidiaries, or anyone else acting for or on behalf of Merchant (collectively, the “Merchant Indemnifying Parties”) (including without limitation any failure by any Merchant Indemnifying Party to comply with terms of any discount, give-away, promotion or offer, or to comply with applicable law).
Merchant further agrees to indemnify, defend and hold harmless YCS® and the other YCS® Indemnified Parties from and against any and all Claims arising out of or related to:
(i) any Merchant Indemnifying Party’s use or misuse of any YCS® Mobile Application, any YCS® website, or any YCS® product or service;
(iii) any Merchant Indemnifying Party’s negligence or violation or alleged violation of any rights of any third-party;
(iv) any information submitted or otherwise provided by Merchant to YCS® or any other YCS® Indemnified Party, or that Merchant transmits or otherwise makes available using any YCS® Mobile Application, the YCS® Website, or any other YCS® website; and
(v) any dispute, litigation, claim or lawsuit between a YCS® Indemnified Party and a third-party caused by any act, omission or misrepresentation by a Merchant Indemnifying Party.
- YCS® INDEMNIFICATION: YCS® agrees to indemnify, defend and hold harmless Merchant from and against any and all third-party Claims resulting from any act, omission or misrepresentation by YCS® under this Agreement (including without limitation any breach by YCS® of any warranty contained in this Agreement).
- MECHANICS OF INDEMNIFICATION: The indemnifying party’s obligations are conditioned upon the indemnified party: (a) giving the indemnifying party prompt written notice of any Claim for which the indemnified party is seeking indemnification; (b) granting control of the defense and settlement of the Claim to the indemnifying party; and (c) reasonably cooperating with the indemnifying party at the indemnifying party’s expense.
- NOTICE: Any notices required or permitted hereunder shall be given in writing and shall be deemed given: upon personal delivery; if sent by facsimile, upon confirmation of receipt; or if sent by certified or registered mail (postage prepaid), five (5) days after the date of mailing. Within three (3) business days after the Effective Date, Merchant shall provide YCS® with written notice of the address (including fax number) to which YCS® may direct any notice required or permitted under this Agreement. Unless otherwise specified in writing by YCS®, any notices to YCS® shall be directed to the following address:
YCS® Group, LLC
105 East 5th Street, Suite 401
Kansas City, Missouri 64106
Fax: (816) 569-4701
- COPYRIGHT AND/OR TRADEMARK NOTICE: Copyright and/or trademark notice in YCS®’s name shall be published in any promotional, advertising, instructional, or other material associated or used in connection with any YCS® Mobile Application.
- OWNERSHIP OF TECHNOLOGY AND MATERIALS; RETURN OF TECHNOLOGY, CONTENT AND INTELLECTUAL PROPERTY: The parties agree that YCS® shall at all times retain all of the right, title, and interest in and to all intellectual property, computer technology, mobile application technology, computer programs, software, and any other technology that YCS® designs, creates, builds or acquires under or in connection with this Agreement, as well as before, during and after this Agreement (collectively, “Technology”). Merchant’s use of any YCS® Technology under this Agreement shall be deemed a non-exclusive license to use or benefit from said Technology while this Agreement is in effect, and such license shall terminate upon the expiration or termination of this Agreement. YCS® further retains all right, title and interest in and to any original artwork, photos, text, logos, or other similar media or content (collectively, “Content”) provided, designed, developed, prepared or created by YCS® for any YCS® Mobile Application, including proofs, previews and any other materials created in the process of making any finished YCS® Mobile Application. All Technology, Content, and any other materials designed, prepared, developed or created by or for YCS® under or in connection with this Agreement shall remain the sole and exclusive property of YCS®. Upon the expiration or termination of this Agreement, Merchant shall return to YCS® all Technology and Content used in connection with any YCS® Mobile Application. Merchant shall return such Technology and Content to YCS® by bonded messenger, air freight, or registered mail within thirty (30) days following the expiration or termination of this Agreement. Merchant agrees that Merchant’s unauthorized use, retention, copying or transfer of any YCS® Technology, Content or other intellectual property will cause YCS® substantial and irreparable harm which cannot be adequately compensated by damages, and that YCS® shall thus be entitled to seek and receive injunctive and other equitable relief against Merchant whether in the form of a temporary restraining order, preliminary injunction, permanent injunction, specific performance, or some other form. All of the original artwork, photos, text, logos, or other similar media or content provided by Merchant shall remain the sole and exclusive property of Merchant and shall be returned to Merchant by bonded messenger, air freight, or registered mail within thirty (30) days following the expiration or termination of this Agreement.
Upon the expiration or termination of this Agreement, Merchant shall cease and desist from all direct and indirect use and/or possession of any YCS® Mobile Application for any purpose. Merchant acknowledges and agrees that Merchant shall not use any Technology, Content, or intellectual property obtained, learned or acquired in connection with the development, acquisition or use of any YCS® Mobile Application in connection with Merchant’s development of any other similar mobile application.
- MERCHANT COVENANT: During the period that Merchant participates in any YCS® Mobile Application, Merchant shall not distribute on any YCS® Mobile Application or any related media any content that: (a) infringes on the intellectual property rights of any third-party or any rights of publicity or privacy; (b) violates any law, statute, ordinance or regulation (including without limitation the laws and regulations governing export control, unfair competition, antidiscrimination or false advertising); (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (d) is obscene, pornographic or indecent; or (e) contains any viruses, Trojan horses, worms, time bombs, or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.
- CONFIDENTIAL INFORMATION: Merchant’s confidential information includes any Merchant passwords used by Merchant in connection with any YCS® Mobile Application, any Merchant-Supplied Materials that Merchant designates as confidential, and any other materials of Merchant that Merchant designates as confidential. YCS®’s confidential information includes, but is not limited to, the source codes of any YCS® tools, all work product created, developed or provided by YCS® and documents related to such work product, any Content created, developed or provided by YCS® which YCS® designates as confidential, YCS® work product, know-how, product information and intellectual property concerning any YCS® Mobile Application, YCS® Technology, and any other materials, data or information of YCS® that YCS® designates as confidential or that Merchant should reasonably believe to be confidential. Each party shall hold the other party’s confidential information in confidence and shall not disclose such confidential information to third-parties without the other party’s prior written consent, nor use the other party’s confidential information for any purpose other than as necessary to perform its obligations under this Agreement. The foregoing restrictions on disclosure shall not apply to confidential information which the recipient can document (a) is already known by the recipient, (b) becomes, through no act or fault of the recipient, publicly known, (c) is received by recipient from a third-party without restriction on disclosure or use, or (d) is independently developed by recipient without reference to the other party’s confidential information.
- LIMITATIONS ON LIABILITY: IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOST PROFITS OR SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (HOWEVER ARISING, INCLUDING NEGLIGENCE) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. IF MERCHANT ASSERTS A CLAIM AGAINST YCS® AND/OR ANY YCS® INDEMNIFIED PARTIES FOR ANY REASON (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER CLAIM), THE TOTAL LIABILITY (IF ANY) OF YCS® AND THE OTHER YCS® INDEMNIFIED PARTIES TO MERCHANT FOR ALL DAMAGES SHALL NOT EXCEED THE AMOUNT OF FIVE HUNDRED DOLLARS (US$500.00).
Some jurisdictions do not allow limitations of liability, so this limitation may not apply to you.
- DISCLAIMER OF WARRANTIES: EXCEPT AS SET FORTH HEREIN, EACH PARTY EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ANY YCS® MOBILE APPLICATION, AND ANY PRODUCT OR SERVICE PROVIDED BY YCS® HEREUNDER, IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.
- NOT A JOINT VENTURE OR PARTNERSHIP: YCS® and Merchant agree that this Agreement does not create a joint venture, partnership, agency, or employer-employee relationship between the parties.
- GOVERNING LAW: This Agreement will be governed by and construed in accordance with the laws of the State of Missouri without giving effect to principles of conflicts of laws. Both parties agree to submit to jurisdiction in Missouri and further agree that the federal and/or state courts of Clay County, Missouri shall have exclusive jurisdiction over any action or suit relating to or arising out of this Agreement. The parties mutually agree that they shall not raise, and hereby waive, any defense based upon venue, inconvenience of forum, or lack of personal jurisdiction in any action or suit relating to or arising out of this Agreement brought in accordance with this Section.
- FURTHER ASSURANCES: YCS® and Merchant shall cooperate with one another in executing, when requested, any other documents deemed necessary or appropriate to carry out the purposes of this Agreement.
- SEVERABILITY; WAIVER: If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force and effect without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision which most closely approximates the intent and economic effect of the invalid provision. The waiver by either party of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.
- WAIVER OF JURY TRIAL: Any and all disputes between the parties relating to or arising out of this Agreement, or promises or performances related thereto, that rise to the level of a lawsuit shall solely be resolved by a judge-tried, non-jury trial. THE PARTIES HEREBY WAIVE AND RELEASE ANY AND ALL RIGHTS TO TRIAL BY JURY WITH REGARD TO ANY AND ALL DISPUTES OR DISAGREEMENTS OR CAUSES OF ACTION ARISING BETWEEN THE PARTIES UNDER THIS AGREEMENT WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE, OR OTHER CLAIMS, OR ARISING FROM THE ACTS OR OMISSIONS OF THE PARTIES IN THE COURSE OF THE PERFORMANCE OF THIS AGREEMENT.
- ENTIRE AGREEMENT: This Agreement sets forth the entire understanding and agreement of the parties and supersedes any and all oral or written agreements or understandings between the parties as to the subject matter of this Agreement. This Agreement may be changed only by a writing signed by both parties. Neither party is relying upon any warranties, representations, assurances or inducements not expressly set forth herein.
- EXECUTION: By clicking the “I AGREE” button on the YCS® Website and entering into this Agreement over the Internet, Merchant agrees that its electronic signature constitutes a valid authorization signature and accepts the terms and conditions set out in this Agreement.