MERCHANT TERMS AND CONDITIONS

Effective date 11/01/19

 

These Merchant Terms and Conditions (the “Terms and Conditions”) govern and are incorporated into the WiFiesta Merchant Agreement between WiFiesta and Merchant (collectively, the “Agreement”). WiFiesta, subject to the provisions of this paragraph, may amend the Terms and Conditions in its sole discretion and at any time. The most recent version of the Terms and Conditions (as may be amended by WiFiesta from time to time) will be available: (i) in WiFiesta App, and/or (ii) as part of the WiFiesta Website. Merchant agrees that either or both of these notification methods constitute 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.

 

Definitions

 

“ACTIVE BUSINESS PROFILE” is a Business Profile that meets all WiFiesta requirements including, but not limited to, having active Special Promotions and being subscribed to Core Product Plans. Business Profile must not be, otherwise, suspended. Business Profile must not be deactivated by Legal Representative or administrators of Business Profile.

 

“BUSINESS PROFILE” refers to the WiFiesta entity through which the Merchant manages its activities on the WiFiesta app and website. The term Merchant and Business Profile may be used interchangeably in this Agreement.

 

“COUPON” is the mean through which Promotions can be redeemed at Merchant Location.

 

“CUSTOM PROMOTIONS” refers to all promotions, other than Special Promotions.

 

“ENGAGEMENT REQUIREMENTS” refers to the actions the user must undertake in the WiFiesta app to qualify to redeem a Coupon at Location.

 

“ID FOR REFERRALS” refers to the alphanumeric code, which appears in the Business Profile section in the WiFiesta app. This code can be used as a referral code to refer users and other Merchants. 

 

“FINE PRINT” refers to the conditions and restrictions governing Merchant Promotions and the Merchant Offering stated on the website and app.

 

“LOCATION” refers to the physical outlet through which Merchant sells their Offering. 

 

“LEGAL REPRESENTATIVE” refers to the person legally authorized to control Business Profile.

 

“MERCHANT” refers to the legal entity that controls one or more physical Locations.

 

“OFFERING” refers to the goods and/or services to be provided by the Merchant. Value is determined by Merchant.

“PROMOTIONS” refers to Special Promotions and / or Custom Promotions.

“PROMOTION EXPIRATION DATE” refers to the time and date beyond which users will not be able to generate coupons for that promotion. It is set to be 11:59:59 PM of the expiry date adjusted to the time zone of Location

 

“PAYOUT AMOUNT” refers to the amount WiFiesta shall remit to Merchant against their Profit Sharing Profits, subject to the payout terms.

 

“PAYOUT PERIOD” refers to the period, as specified in a plan, during which Business Profile shall receive a percentage of the Profits generated from the Merchants and users referred to WiFiesta. 

 

“PROFITS” are deemed to be calculated by the sale price less any expenses WiFiesta paid on behalf of Business Profile in furtherance of the sale, the cost of goods sold and any fees charged by third party service providers including, but not limited to, payment and payout processing fees, App Store fees and / or Google Play Store fees.

 

“PROFIT SHARE COMMISSION” refers to a percentage of the Profits earned from the Referred Entities by the Business Profile, if subscribed to RPSP. Profit Share Commission solely applies to WiFiesta Intangible Products.

 

“REFERRAL PROFIT SHARING PROGRAM (RPSP)” refers to the WiFiesta program that pays recurring Profit Share Commission for Payout Duration to Merchants for referring, marketing and selling WiFiesta app and WiFiesta Products to other Merchants and customers. 

 

“REFERRED ENTITY” refers to users who create a WiFiesta account or Merchants who create a Business Profile using a Business Profile’s ID for Referrals code.


 

“SPECIAL PROMOTIONS” refers to the mandatory promotions required to have an Active WiFiesta Business Profile. 

 

“WIFIESTA BUSINESS COMMUNITY” refers to all Merchants with active Business Profiles on the WiFiesta app.

 

“WIFIESTA TANGIBLE PRODUCT” refers to any WiFiesta Product that has a physically deliverable component.

 

“WIFIESTA INTANGIBLE PRODUCT” refers to any WiFiesta Product that does not have any physically deliverable component.

 

“WIFIESTA PRODUCT” refers to WiFiesta Tangible and / or Intangible Product.


 

  1. Business Profile  

    1. Merchant shall create and maintain a Business Profile on the WiFiesta prior to selling or promoting Offering on the app.

    2. Merchant shall maintain up-to-date legal information of the WiFiesta Business Profile.

    3. Only legal representatives, explicitly authorized by Merchant, may establish a WiFiesta Business Profile.

    4. For a Business Profile to be deemed active, it must maintain, at all times, active Special Promotions

    5. Legal representative and administrators of Business Profile may temporarily deactivate Business Profile. While Business Profile is deactivated, the Business Profile loses all privileges of WiFiesta Business Community including, but not limited to, control of the Business Profile Places on WiFiesta and all privileges of WiFiesta Referral Profit Sharing Program.

    6. WiFiesta is authorized to charge a credit card, or any other method of payment, associated with the Business Profile of Merchant, for the product and services purchased or subscribed to by Merchant.

    7. Legal representative of Business Profile may, at their own discretion, delete Business Profile. Deletion of Business Profile is permanent. Deleted Business Profiles continue to be liable for any amount due, prior to the deletion date. Deleted Business Profile will permanently lose all privileges of WiFiesta Business Community including, but not limited to, control of Locations on WiFiesta and all privileges of WiFiesta Referral Profit Sharing Program including, but not limited to, all pending and future Payouts.

    8. WiFiesta is authorized to charge a credit card, or any other method of payment, associated with the Business Profile of Merchant, to settle any amounts due after the Business Profile has been deleted.

  2. Locations

    1. Business Profile may add or claim an existing Location on the WiFiesta app, if it has not been claimed by another Business Profile already.

    2. Business Profiles may only add or claim existing Locations on the WiFIesta app in the same country where the Business Profile is located.

    3. Merchant can authorize legal representatives and assigned administrators of Business Profile to add or claim existing Locations on the WiFiesta App.

    4. WiFiesta reserves the right to charge Business Profile a penalty of up to USD1,000 per Location falsely added or claimed on the WiFiesta by the Business Profile of Merchant.

    5. WiFiesta reserves the right to permanently delete, at its own discretion or due to user negative reports, any Location and all associated user activities on the app.

    6. Business Profile shall notify WiFiesta immediately once it becomes aware that a duplicate or counterfeit Location exists on the WiFiesta app.

  3. Promotion Program

    1. All Promotions are redeemable via Coupons issued to WiFiesta users for their engagement on the WiFiesta place associated with a Location of Business Profile.

    2. MERCHANT SHALL HONOR THE VALUE OF COUPONS FOR MERCHANT OFFERING THROUGH THE PROMOTIONAL EXPIRATION DATE. 

    3. MERCHANT SHALL VALIDATE ALL COUPONS PRIOR TO APPLYING REDEEMED VALUE TO USER’S INVOICE. WIFIESTA RESERVES THE RIGHT TO DEACTIVATE OR SUSPEND MERCHANT’S BUSINESS PROFILE OR, OTHERWISE, CHARGE BUSINESS PROFILE FOR UNVERIFIED COUPONS SHOULD IT BE ESTABLISHED THAT A LARGE PERCENTAGE OF ISSUED COUPONS WERE UNVERIFIED.

    4. Merchant is solely responsible for the safeguarding of the Coupon verification PIN. It shall only be disclosed to one authorized person at a given Location and never shared with customers.

    5. Merchant shall not hold WiFiesta responsible for any loss or damage resulting from failure to securely maintain the Coupon verification PIN.

    6. Merchant accepts financial responsibility of all verified Coupons.

    7. It is the Merchant’s sole responsibility to ensure that Promotions are shown to users at the correct locations and be available for redemption during the time and date set by Merchant. Merchant shall notify WiFiesta immediately should there be any discrepancy in the Promotion information and availability on the WiFiesta app.

    8. WiFiesta is authorized to issue Coupons on Merchant's behalf subject to the terms of this Agreement and “Promotion Terms”. The Coupon will evidence the Merchant Promotion and will be delivered to the user electronically once Engagement Requirements have been met. The user will then redeem the Coupon with the Merchant by presenting the Coupon in electronic or physical form. Merchant is the issuer of the Coupon and seller of the Merchant Offering. If there is a conflict between this Agreement and the “Promotion Terms”', the Agreement governs.

    9. WiFiesta is authorized to promote Coupons on Merchant’s behalf through any platform, affiliates, business partner network, marketplace, or referral network. The Coupons may be offered to all or part of WiFiesta’s subscriber base or its affiliate subscriber base or referral network and segmented by various variables including gender, age, location, and consumer preferences. The Coupons may be offered through a variety of distribution channels, including the WiFiesta app and website, affiliate websites, business partner networks, email, mobile applications, other types of electronic offerings and other platforms or distribution channels owned, controlled, or operated by WiFiesta, its affiliates or business partners.

    10. In an effort to increase Merchant sales by incentivizing Coupon redemption, Merchant authorizes WiFiesta, at any time and in WiFiesta’s sole discretion, to increase or decrease the value of the Coupon, within the minimum and maximum value set by Merchant. WiFiesta shall use its own proprietary optimization algorithm which includes, but not limited to, factors such as the time of day, number of people already checked-in and the size of the group claiming Coupon. 

    11. WiFiesta is authorized to modify, at its own discretion, the start and the end date by no more than one hour to satisfy any technical constraints.

    12. For appointment based Merchant Offerings, WiFiesta may require that Merchant provide WiFiesta with a calendar of available appointment times and allow WiFiesta users to schedule appointments with the Merchant through WiFiesta and any third party service WiFiesta may use. WiFiesta may audit Merchant response times using various methods, including but not limited to, auto-dialers, call forwarding and pre-recorded calls. If WiFiesta, in its sole discretion, determines Merchant response times or the quality of service provided to purchasers is unsatisfactory, WiFiesta may terminate the Agreement. 

    13. Any Merchant who provides a Merchant Offering that includes massage services shall: (i) conduct social media searches for all of its employees, agents and/or independent contractors performing any massage service to ensure that they maintain a good reputation; and (ii) confirm that its employees, agents and/or independent contractors providing massage services have the required licenses and/or certifications, as well as meet other applicable state legal requirements, for performing the services. Further, Merchant shall certify to WiFiesta annually that it is in compliance with (i) and (ii) above.

    14. If Merchant performs background checks on its employees, agents and/or independent contractors performing services, Merchant shall provide the results of such background checks to WiFiesta upon request. Merchant shall obtain the necessary consent to share with WiFiesta the results requested.

    15. Merchant shall promptly notify WiFiesta any time it receives a complaint related to potentially criminal conduct, including allegations of sexual assault, allegedly engaged in by any of its employees, agents or independent contractors, regardless of whether a WiFiesta customer makes the complaint.

    16. WiFiesta reserves the continuing right to reject, revise, or discontinue any Merchant Offering, at any time and for any reason in WiFiesta’s sole discretion, and to terminate the Merchant Offering and to remove all references to the Merchant Offering and Promotions from the app or website and all distribution networks; and redirect or delete any URL used in connection with the Merchant Offering.

    17. Partial redemptions: if applicable, and if a user redeems a Coupon for less than the amount of the Invoice, the Merchant shall still honor the Coupon.

    18. Merchant agrees that in providing the Merchant Offering, Merchant will not inflate prices or impose any additional fees, charges, conditions or restrictions that contradict or are inconsistent with the terms stated on the Coupon, including the Fine Print. Unless disclosed in the Fine Print, Merchant further agrees not to impose different terms or a different cancellation policy than what is imposed on its non-WiFiesta customers

    19. Merchant agrees that if an appointment or reservation is made to redeem a Coupon, or purchaser has made an attempt to make an appointment, before the Promotional Expiration Date, the Coupon will be honored without restriction, even though the services may be provided after the Promotional Expiration Date.

    20. Merchant is responsible for all customer service in connection with the Merchant Promotion and for supplying all goods and services stated in the Merchant Offering. Merchant is also responsible for any customer loyalty programs associated with the Merchant Offering.

    21. If applicable, Merchant will hold the Merchant Offering for pick-up by each purchaser at the Redemption Site. The “Redemption Site” is the complete and accurate address provided by Merchant to WiFiesta where purchasers are able to redeem the Coupon to pick-up the Merchant Offering. Merchant also agrees to provide WiFiesta with the hours and dates of operation, complete with any exceptions, and a valid phone number for the Redemption Site. If any of the information related to a Redemption Site changes, Merchant agrees to update that information on the WiFiesta app immediately.

    22. Merchant agrees to accept returns of the Merchant Offering in compliance with applicable laws and the Fine Print, but in any event: (i) will accept returns of a defective Merchant Offering or nonconforming items in or a part of any Merchant Offering at all times and pay (or reimburse a purchaser for) any and all costs associated with the return of such Merchant Offering; and (ii) will not impose a more restrictive return policy on purchasers than Merchant’s regular return policy as applied to Merchant’s purchaser in the ordinary course of Merchant’s business.

  4. Referral Profit Sharing Program (RPSP)

    1. The RPSP is operated in good faith and the same good faith is expected in return. WiFiesta may withhold payouts where WiFiesta believes Merchants are acting in bad faith or otherwise acting contrary to the intent of the program. Commercializing, advertising, publishing, mass distributing, selling or paying for use of Merchant’s ID for Referrals is not appropriate, and WiFiesta will not honor such ID for Referrals Code. While WiFiesta cannot foresee every possible unacceptable scenario, some general guidelines for what is and is not permissible to promote your ID for Referrals include: : 

      1. Not permissible:

        1. Advertising

        2. Spam

        3. Publishing anything misleading information

        4. Paying or offering incentives for use of Merchant’s ID for Referrals

      2. Permissible:

        1. YouTube channels

        2. Informational and fan websites

        3. Social media sharing

    2. If subscribed to a relevant RPSP plan, Merchant is to act, in good faith, as a representative of WiFiesta to associate and / or promote to:

      1. Other Merchants

      2. Merchant’s customers

      3. Merchant’s followers on other social media platforms

    3. In consideration for the duties performed hereunder, Merchant, acting through their WiFiesta Business Profile, shall be entitled to a percentage of the profits, Profit Share Commission, earned from the Referred Entities. The referral must be “direct result” of Business Profile’s efforts. The exact percentage and duration is governed by the specific plan to which the Business Profile is subscribed.

    4. To be considered a “direct result” of Business Profile’s efforts: 

      1. Business Profile must be Active and shall be offering Special Promotions at the time of the creation of a user account or a Merchant’s Business Profile. 

      2. Substantially all of the contacts with users or other Merchants, which lead to the creation of an active WiFiesta user account or an active WiFiesta Business Profile, must have been made by the Business Profile. Although initial contact and contact at the sale point shall be factors to consider, they are not determinative of such sale being a “direct result” of Business Profile’s efforts.

      3. REFERRED ENTITIES MUST USE THE ID FOR REFERRALS OF REFERRING BUSINESS PROFILE DURING THE SIGNUP PROCESS OR THE CREATION OF MERCHANT’S BUSINESS PROFILE TO BE QUALIFIED AS A REFERRAL. WIFIESTA WILL FACILITATE, WHEN POSSIBLE, THE REFERRAL PROCESS OF USERS BY TREATING THOSE WHOSE FIRST CHECK-IN AT ONE OF THE LOCATIONS OF BUSINESS PROFILE AS EQUIVALENT TO HAVING INPUT THE ID FOR REFERRALS OF BUSINESS PROFILE DURING THE SIGN UP PROCESS.  

    5. In consideration for the Profit Share Commission granted herein, Business Profile shall perform the following duties:

      1. Perform research and other prospecting duties with regard to potential Merchants;

      2. Ensure that Referred Merchants are displaying WiFiesta table tents and marketing material at all times;

      3. Ensure that Referred Merchants honor and validate WiFiesta Coupons;

      4. Promote WiFiesta App to Merchant customers;

      5. Encourage users to engage on the App;

      6. Perform other such duties and services as may be assigned by the Company to accomplish the aims of this Agreement in the time, place, and manner deemed appropriate by Merchant.

    6. This RPSP shall last from the start date of the RPSP plan until any of the following events happen, whichever event happens first:

      1. The end of the Payout Period of a specific plan of the RPSP;

      2. The Business Profile terminates subscription of the RPSP plan;

      3. WiFiesta terminates RPSP;

      4. WiFiesta terminates the plan;

      5. WiFiesta terminates the subscription.

      6. WiFiesta deletes or suspends the Business Profile.

    7. Upon termination, the following shall occur:

      1. The Business Profile shall receive the Profit Share Commission described herein up until the termination date;

      2. The Business Profile shall direct all further inquiries regarding the WiFiesta app back to WiFiesta;

      3. The Business Profile shall return or destroy any physical or digital copies of the Company’s proprietary information in its possession including (but not limited to): marketing material, business plans, customer lists, and pricing information.

    8. Business Profile will cease to earn Profit Share Commission, if at the time of the revenue generation, Business Profile was inactive.

    9. The Referred Entity may opt, at their own discretion, to switch the ID for Referrals to which they are associated. Under this scenario, Business Profile will cease to earn Profit Share Commission generated from Referred Entity. 

    10. The WiFiesta and Merchant agree that Merchant shall be considered independent contractors and not agents or employees of the other Party. Neither Party shall have authority to make any statements, representations or commitments of any kind, nor to take any action which shall be binding on the other Party, except as may be expressly provided for herein or authorized in writing.

    11. The Merchant is responsible for all taxes and local requirements and fees. Program Payouts are conditional on and subject to local laws and regulations.

    12. The Merchant shall not be entitled to reimbursement for any expenses except those that have been previously approved in writing by WiFiesta. 

    13. The Merchant shall receive written confirmation from WiFiesta before using any marketing materials related to WiFiesta Products that were not directly provided by WiFiesta.

    14. The legal representative of Business Profile participating in RPSP may not be an employee, legal representative of a partner of WiFiesta or any affiliate of WiFiesta. The RPSP shall not be deemed to create any kind of relationship between the Merchant and WiFiesta or any of WiFiesta’s affiliates. The Merchant has no authority to represent or bind WiFiesta. 

    15. Profit Share Commission is non-transferable.

    16. Profit Share Commission is redeemable for cash.

    17. NOTWITHSTANDING ANYTHING TO THE CONTRARY, WIFIESTA WILL HAVE NO OBLIGATION TO ADVANCE ANY PROFIT SHARE COMMISSION WHOSE REVENUES HAVE NOT YET BEEN COLLECTED BY WIFIESTA. MERCHANT WILL ONLY GET PAID WHEN WIFIESTA GETS PAID.

    18. In the event of a chargeback, refund or otherwise of a revenue source for which Payout has been processed, WiFiesta is authorized to recover the amount of the processed Payout from future Payouts.

    19. WiFiesta reserves the continuing right to, at any time, for any reason and without prior notice in WiFiesta’s sole discretion, to terminate RPSP.

    20. WiFiesta reserves the continuing right to, at any time, for any reason and without prior notice in WiFiesta’s sole discretion, to change the terms of RPSP and / or its associated plans.

    21. WiFiesta reserves the continuing right to, at any time, for any reason and without prior notice in WiFiesta’s sole discretion, to change how Profit Share Commission is paid out, cash or otherwise, and the timing of the Payout.

    22. WiFiesta reserves the continuing right to, at any time, for any reason and without prior notice in WiFiesta’s sole discretion, to terminate the subscription of any Business Profile.

    23. WiFiesta reserves the continuing right to, at any time, for any reason and without prior notice in WiFiesta’s sole discretion, to change the Profit Share Commission percentage and Payout Duration of RPSP plans.

  5. Payout

    1. WiFiesta is authorized to initiate credit transaction entries to Merchant’s depository account at the depository financial institution or any third party financial service providers including, but not limited to, PayPal, Stripe and Adyen, associated with the Business Profile of Merchant. Only in the event of an error, WiFiesta is authorized to initiate debit entry adjustments to the Merchant Account, at the depository financial institution or third party financial service provider associated with its Business Profile on WiFiesta, to correct any error. Merchant hereby acknowledges that WiFiesta’s origination to Merchant Account must comply with provisions of U.S. law. Payments take up to five (5) business days to become available in the Merchant Account after processing.

    2. Payouts are subject to minimums set by WiFiesta RPSP plans and / or third party financial service providers including, but not limited to, PayPal, Stripe and Adyen. 

    3. Merchant will not attempt to bill or collect reimbursement from any third-party payor, including but not limited to, any insurer, health insurance plan, Medicare, Medicaid, or any other federal, state, provincial, territorial or local governmental program or entity (“Third-Party Payor”), for any of Merchant’s services. 

    4. Tax Levy. In the event WiFiesta receives written notice of a validly issued state or federal tax levy relating to past-due taxes owed by Merchant, WiFiesta may, in accordance with applicable law, deduct any such amounts from payouts due to Merchant.

    5. Taxes Generally. It is Merchant’s responsibility to determine what, if any, taxes apply to the payments Merchant makes or receives, and it is Merchant’s responsibility to collect, report and remit the correct tax to the appropriate tax authority. WiFiesta is not responsible for determining whether taxes apply to Merchant’s transaction with either purchasers or WiFiesta, or for collecting, reporting or remitting any taxes arising from any transaction with or by Merchant and purchaser. Merchant may be asked to provide WiFiesta with a valid Tax Identification Number for tax reporting purposes. An IRS Form 1099 may be issued in Merchant’s name for the value of payments made. Notwithstanding anything else in this Agreement, Merchant shall be, and will remain, registered for sales, use and other similar tax collection purposes in all states and localities in which Merchant is required to be registered in connection with the Merchant Offering and pursuant to the terms and redemption of the Coupon, and shall be responsible for paying any and all sales, use or any other taxes related to the Merchant Offering or the goods and services.

    6. Transaction Taxes. Merchant bears sole financial responsibility for any and all sales, use, excise, general, goods and services tax, or other similar taxes, including any interest penalties and additions related thereto, imposed on or arising from the transactions contemplated by this Agreement between WiFiesta and Merchant (“Transaction Taxes”), if any. WiFiesta shall apply the applicable Transaction Tax to the amounts it retains and/or other fees remitted to WiFiesta pursuant this Agreement. Transaction Taxes are calculated using the Merchant’s billing address and will be included on invoices. Tax rates are subject to change. If applied, Transaction Taxes will be calculated at the time of each payment using the rates in effect under current law.

    7. Withholding Taxes. WiFiesta may be required by the tax authorities to withhold taxes on behalf of Merchant. WiFiesta reserves the right to deduct any such taxes from amounts due to Merchant and to remit them to the appropriate tax authority. WiFiesta may also be required to report the withholding tax payments to the tax authorities. WiFiesta shall provide evidence of payment of withholding taxes to Merchant no later than 60 days after payment of the withholding taxes.

    8. Until Merchant has complied with Merchant’s obligations under this Agreement. If WiFiesta reasonably believes that Merchant has breached any provision of this Agreement, WiFiesta may offset, delay, withhold, or suspend future Payouts to Merchant, in WiFiesta’s sole discretion. In addition, if Merchant is unwilling to, or in WiFiesta’s reasonable discretion appears unable to perform its obligations under this Agreement, WiFiesta is authorized to offset, delay, withhold, or suspend future payments to Merchant in addition to such other remedies as may be available under this Agreement or at law, to secure payment from Merchant for any refunds and/or other amounts payable by Merchant under this Agreement.

  6. Customer Data Restrictions

    1. “Customer Data” means all identifiable information about users and Merchants generated or collected by WiFiesta or Merchant, including, but not limited to, user’s name, shipping addresses, email addresses, phone numbers, purchaser preferences and tendencies, and financial transaction data.

    2. Merchant shall use Customer Data only to fulfill its 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 Coupons and provision of goods and services to users), and not to enhance a file or list owned by Merchant, or any third party. Merchant represents, warrants and covenants that it will not resell, broker or otherwise disclose any Customer Data to any third party, in whole or in part, for any purpose, unless required by applicable law. If Merchant engages any third party to facilitate its redemption obligations hereunder, Merchant shall ensure that such third party implements and complies with reasonable security measures in handling any Customer Data. If any Customer Data is collected directly by Merchant or a third party engaged by Merchant to facilitate its redemption obligations hereunder, Merchant shall ensure that it or such third party adopts, posts and processes the Customer Data in conformity with its posted privacy policy and all applicable laws.

    3. As long as Merchant uses Customer Data in compliance with applicable law and Merchant’s posted privacy policy, restrictions stated in this Agreement on Merchant’s use of Customer Data do not apply to: (i) data from any user who is already a customer of Merchant before the user’s first interaction with Business Profile of Merchant on WiFiesta, if such data was provided to Merchant by such user independent of this Agreement or any transaction hereunder; or (ii) data supplied by a user directly to Merchant who becomes a customer of Merchant in connection with such user explicitly opting in to receive communications from Merchant.

    4. Merchant shall immediately notify WiFiesta if Merchant becomes aware of or suspects any unauthorized access to or use of Customer Data or any confidential information of WiFiesta, and shall cooperate with WiFiesta in the investigation of such breach and the mitigation of any damages. Merchant will bear all associated expenses incurred by WiFiesta to comply with applicable laws (including, but not limited to, any data breach laws) or arising from any unauthorized access or acquisition of Customer Data while such data is in Merchant’s reasonable possession or control. Upon termination or expiration of this Agreement, Merchant shall, as directed by WiFiesta, destroy or return to WiFiesta all the Customer Data in Merchant’s or any agent of Merchant’s possession.

  7. Mobile Redemption Devices
    If WiFiesta leases or lends Merchant a tablet or mobile redemption device (“Device”), Merchant agrees to be bound by the terms of use, end user license agreements, or other provisions governing its use, unless otherwise authorized by WiFiesta in writing. Unless otherwise stated in writing, Merchant shall only use the Device for transmitting redemption data to WiFiesta and processing user payments and shall return a loaned Device fourteen (14) days after the Promotional Expiration Date, unless a new feature is planned or if requested by WiFiesta for any reason. WiFiesta reserves the right to bill Merchant for the cost of the Device, or offset any current or future payments due to Merchant under any contract between the parties if the device is not returned, or for costs related to damage or other misuse.

  8. Term and Termination
    This Agreement will continue in effect until terminated by either party in accordance with this Section (“Term”). WiFiesta is authorized to terminate this Agreement, at any time for any reason, by suspending or deleting Business Profile of Merchant on WiFiesta. Merchant is authorized to terminate this Agreement by deleting Business Profile on WiFiesta. Termination of this Agreement will not in any way affect Merchant’s obligation to redeem any Coupon according to the terms of this Agreement, including the obligation to honor the Coupon, already verified, after the Promotional Expiration Date. All Provisions in this Agreement that are intended to survive termination will continue in full force and effect after the Term. 

  9. Compliance with Gift Card, Gift Certificate and Abandoned Property Laws
    Merchant agrees to comply with the Coupon terms and conditions as stated on the Website, including but not limited to the “Terms of Use” of WiFIesta, and to ensure that the Coupons comply with all laws that govern Coupons, gift cards, coupons, and gift certificates, including but not limited to the United States Credit CARD Act of 2009 (if applicable) and any laws governing the imposition of expiration dates, service charges or dormancy fees and all Fine Print related to the Merchant Offering stated on the Coupon. Merchant is solely responsible for compliance with any applicable escheat or abandoned or unclaimed property laws. Upon written request from Merchant, but only when required, WiFiesta will provide Merchant with information in WiFiesta’s possession that the Merchant needs to comply with its obligations under this Agreement. Merchant agrees that, regardless of the payment terms, Merchant, and not WiFiesta, maintains any obligation for unredeemed Coupons under applicable escheat or abandoned or unclaimed property laws.

  10. Marketing
    WiFiesta and its business partners may communicate with Merchant with regard to products, promotions, and other services that may be of interest to Merchant. This may include email or other communications. WiFiesta may also solicit Merchant’s opinion for market research purposes.

  11. Intellectual Property Rights

    1. Merchant grants to WiFiesta a non-exclusive, worldwide, royalty free, paid-up, perpetual, irrevocable, transferable and sub-licensable license and right to use, modify, reproduce, sublicense, publicly display, distribute, broadcast, transmit, stream, publish and publicly perform: (a) Merchant’s name, logos, trademarks, service marks, domain names, and any audiovisual content, video recordings, audio recordings, photographs, graphics, artwork, text and any other content provided, specified, recommended, directed, authorized or approved to use by Merchant (collectively, “Merchant IP”); and (b) any third party’s name, logos, trademarks, service marks, domain names, audiovisual recordings, video recordings, audio recordings, photographs, graphics, artwork, text and any other content provided, specified, recommended, directed, authorized or approved for use by Merchant (collectively, “Third Party IP”), in each case in connection with the promotion of WiFiesta to users and/or association of Merchants to WiFiesta Business Community, Merchant promotions, sale/resale (as may be applicable) or distribution of the Merchant Offering in all media or formats now known or hereinafter developed (“License”). Any use of the Merchant IP or Third Party IP as contemplated in this Agreement is within WiFiesta’s sole discretion.

    2. Merchant acknowledges and agrees that, as between the parties, WiFiesta owns all interest in and to the Website, Mobile apps, Customer Data, WiFiesta trade names, logos, trademarks, service marks, domain names, social media identifiers, all data collected through or from the Website, all audiovisual content, video recordings, audio recordings, photographs, graphics, artwork, text or any other content created by WiFiesta or at WiFiesta’s direction, or assigned to WiFiesta, and any materials, software, technology or tools used or provided by WiFiesta to promote, sell/resell (as may be applicable) or distribute the Merchant Offering and conduct its business in connection therewith (collectively “WiFiesta IP”). Merchant shall not use, sell, rent, lease, sublicense, distribute, broadcast, transmit, stream, place shift, transfer, copy, reproduce, download, time shift, display, perform, modify or timeshare the WiFiesta IP or any portion thereof, or use such WiFiesta IP as a component of or a base for products or services prepared for commercial use, sale, sublicense, lease, access or distribution, except that WiFiesta grants Merchant a limited, non-exclusive, revocable, non-transferable, non-sub licensable license during the Term to use one copy of WiFiesta’s mobile merchant software application on a single mobile computer, tablet computer, or other device, solely for the purposes permitted by that software, and to make one copy of the software for back-up purposes. Merchant shall keep the WiFiesta IP confidential, and shall not prepare any derivative work based on the WiFiesta IP or translate, reverse engineer, decompile or disassemble the WiFiesta IP. Merchant shall not take any action to challenge or object to the validity of WiFiesta’s rights in the WiFiesta IP or WiFiesta’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 WiFiesta IP in any medium without prior written approval from an authorized representative of WiFiesta. Merchant shall not include any trade name, trademark, service mark, domain name, social media identifier, of WiFiesta 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 WiFiesta IP in a manner that could reasonably imply an endorsement, relationship, affiliation with, or sponsorship between Merchant or a third party and WiFiesta. All rights to the WiFiesta IP not expressly granted in this Agreement are reserved by WiFiesta.

    3. If Merchant provides WiFiesta or any of its affiliates with feedback, suggestions, reviews, modifications, data, images, text, or other information or content about a WiFiesta product or service or otherwise in connection with this Agreement, any WiFiesta IP, or Merchant’s participation in the Merchant Offering or Coupon, (collectively, “Feedback”), Merchant irrevocably assigns to WiFiesta all right, title, and interest in and to Feedback. In the event Merchant  assignment to WiFiesta is invalid for any reason, Merchant hereby irrevocably grants WiFiesta and its affiliates a perpetual, paid-up, royalty-free, nonexclusive, worldwide, irrevocable, freely transferable right and license to (i) use, reproduce, perform, display, and distribute Feedback; (ii) adapt, modify, re-format, and create derivative works of Feedback for any purpose and sublicense the foregoing rights to any other person or entity. Merchant warrants that: (A) Feedback is Merchant’s original work, and Merchant obtained Feedback in a lawful manner; and (B) WiFiesta and its sublicensees’ exercise of rights under the license above will not violate any person’s or entity’s rights, including any copyright rights. Merchant agrees to provide WiFiesta such assistance as WiFiesta might require to document, perfect, or maintain WiFiesta’s rights in and to Feedback.

  12. Representations and Warranties
    Merchant represents and warrants that: (a) Merchant has the right, power and authority to enter into this Agreement; (b) Merchant, if required by applicable law, is registered for sales and use tax collection purposes in all jurisdictions where Merchant’s goods and services will be provided; (c) the Coupon, upon being delivered by WiFiesta, will be available immediately, or as per Merchant set Start and End date of Promotion, for redemption and Merchant will have sufficient goods and/or services available for redemption through the Promotional Expiration Date (i.e., a number of goods and/or services sufficient to fulfill its redemption obligations in connection with the applicable, if any, Maximum Number of Coupons); (d) the terms and conditions of the Coupon, including any discounts or goods and services offered thereunder do not and will not violate any, local, state, provincial, territorial or federal law, statute, rule, regulation, or order, including but not limited to, any law or regulation governing the use, sale, and distribution of alcohol and any laws governing Coupons, gift cards, coupons, and gift certificates; (e) the Merchant’s redemption of the Coupon will result in the bona fide provision of goods and/or services by Merchant to the purchaser; (f) Merchant owns all interest in and to the Merchant IP and has licensing rights in (with the right to sublicense to WiFiesta) the Third Party IP, and has the right to grant the License stated in this Agreement; (g) the Merchant IP and the Third Party IP, the Merchant Offering, WiFiesta’s use and promotion thereof, and the results of such Merchant Offerings, will not infringe, dilute, misappropriate, or otherwise violate, anywhere in the world, any patent, copyright, logo, trademark, service mark, trade name, rights in designs, or other intellectual property right or right of privacy or publicity of any third party or any applicable law, and does not and will not result from the misappropriation of any trade secret or the breach of any confidentiality obligations to any person or entity; (h) the Merchant IP and Third Party IP does not include any material that is unlawful, threatening, abusive, defamatory, vulgar, obscene, profane or otherwise objectionable, or that encourages conduct that constitutes a criminal offense, gives rise to civil liability or otherwise violates any law; (i) the Coupons and any advertising or promotion of Merchant’s goods and services relating thereto will not constitute false, deceptive or unfair advertising or disparagement under any applicable law; (j) Merchant and its employees, contractors and agents have had the proper education and training and hold all required and up-to-date regulatory authorization, licenses and certifications relating to any Merchant Offering to provide the goods or services described in this Agreement; (k) Merchant’s business information and direct deposit details as provided in this Agreement, indicating where payments should be forwarded are accurate and Merchant is the authorized entity to receive the funds forwarded by WiFiesta; (l) Merchant is not authorized to resell, broker or otherwise disclose any Customer Data (as defined in this Agreement) to any third party, in whole or in part, for any purpose, and Merchant is not authorized to copy or otherwise reproduce any Customer Data other than for the purpose of redeeming or verifying the validity of Coupons in connection with this Agreement and (m) the Merchant Offering is: (i) free from defects in workmanship, materials and design, (ii) merchantable and suitable for the purposes, if any, stated in the Agreement, and (iii) genuine, bona fide products, as described herein and does not violate the rights of any third party.

  13. Indemnification
    To the extent allowed under applicable law, Merchant agrees to defend, indemnify and hold WiFiesta, its affiliated and related entities, and any of its respective officers, directors, agents and employees, harmless from and against any claims, lawsuits, investigations, penalties, damages, losses or expenses (including but not limited to reasonable attorneys’ fees and costs) arising out of or relating to any of the following: (a) any breach or alleged breach by Merchant of this Agreement, or the representations and warranties made in this Agreement; (b) any claim for state sales, use, or similar tax obligations of Merchant arising from the sale and redemption of a Coupon; (c) any claim by any local, state, provincial, territorial or federal governmental entity for unredeemed Coupons or unredeemed cash values of Coupons or any other amounts under any applicable abandoned or unclaimed property or escheat law, including but not limited to any claims for penalties and interest; (d) any claim arising out of a violation of any law or regulation by Merchant or governing Merchant’s goods and/or services; (e) any claim arising out of Merchant’s violation of law or regulation governing the use, sale, and distribution of alcohol; (f) any claim by a purchaser or anyone else arising out of or relating to the goods and services provided by Merchant and/or pick up of the goods and services at the Redemption Site, including but not limited to, any claims for false advertising, product defects, personal injury, death, mount paid; (g) any claim arising out of Merchant’s misuse of Customer Data, or any violation of an applicable data privacy or security law; and (h) any claim arising out of Merchant’s negligence, fraud or willful misconduct. WiFiesta maintains the right to control its own defense and to choose and appoint its own defense counsel, regardless of the presence or absence of a conflict of interest between WiFiesta and Merchant. Merchant’s duty to defend and indemnify WiFiesta includes the duty to pay WiFiesta’s reasonable attorneys’ fees and costs, including any expert fees.

  14. Confidentiality
    The terms for the Merchant Offering described in this Agreement are confidential, and Merchant agrees not to disclose the terms described in this Agreement to any party (other than to its employees, parent companies, shareholders, lawyers and accountants on a strict need-to-know basis or as required by applicable public records and other law, if Merchant has taken the necessary precautions of the kind generally taken with confidential information to preserve the confidentiality of the information made available to such parties). In the event of a breach, WiFiesta is entitled to injunctive relief and a decree for specific performance, and any other relief allowed under applicable law (including monetary damages if appropriate).

  15. Limitation of Liability
    EXCEPT FOR MERCHANT’S INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT IS EITHER PARTY LIABLE OR OBLIGATED TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST BUSINESS, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE, OR INDIRECT DAMAGES REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGES IN ADVANCE. WIFIESTA’S SOLE AND COMPLETE LIABILITY TO MERCHANT FOR ANY CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR ANY ERRORS, OMISSIONS OR MISPLACEMENTS OF ANY COUPON AND/OR PROMOTION IS LIMITED TO THE AMOUNT OF FEES CHARGED TO MERCHANT BY WIFIESTA AS PART OF AGREEMENT FOR THE PRECEDING SIX(6) MONTHS AFTER FINAL CALCULATION AND RECONCILIATION OF ALL REFUNDS. THIS LIMITATION OF LIABILITY APPLIES TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF ANY LIMITED REMEDY. IN ADDITION, ANY CLAIM BY OR ON BEHALF OF A MERCHANT IN CONNECTION WITH ANY PAYMENT MADE BY WIFIESTA, INCLUDING, BUT NOT LIMITED TO, CLAIMS ALLEGING THAT A MERCHANT WAS UNDERPAID, MUST BE MADE IN WRITING TO WIFIESTA WITHIN NINETY (90) DAYS FROM THE DATE WIFIESTA REMITS THE PAYMENT AT ISSUE. ALL CLAIMS NOT MADE IN ACCORDANCE WITH THE FOREGOING SHALL BE DEEMED WAIVED, RELEASED AND DISCHARGED BY MERCHANT.

  16. Dispute Resolution
    All disputes arising out of, or relating in any way to this Agreement, shall be resolved pursuant to this Section 16 Dispute Resolution.

    1. Binding Arbitration
      EXCEPT AS SPECIFICALLY STATED HEREIN, ANY DISPUTE OR CLAIM BETWEEN MERCHANT AND WIFIESTA ARISING OUT OF, OR RELATING IN ANY WAY TO, THIS AGREEMENT (“DISPUTES”) SHALL BE RESOLVED EXCLUSIVELY BY FINAL, BINDING ARBITRATION. BY VIRTUE OF THE AGREEMENT IN THIS SECTION 16 TO ARBITRATE, MERCHANT AND WiFiesta ARE EACH GIVING UP THE RIGHT TO GO TO COURT AND HAVE A DISPUTE HEARD BY A JUDGE OR JURY (EXCEPT AS OTHERWISE SET FORTH IN THIS SECTION 16). The provisions of this Section 16 shall constitute Merchant’s and WiFiesta’s written agreement to arbitrate Disputes under the Federal Arbitration Act. The arbitration will be administered by the American Arbitration Association (“AAA”) and conducted before a single arbitrator pursuant to its applicable rules, including those applicable to Commercial Disputes, available at http://www.adr.org or by calling 800-778-7879. The arbitrator will apply and be bound by this Agreement, apply applicable law and the facts, and issue a reasoned award.
      To begin an arbitration proceeding, Merchant or WiFiesta must comply with the limitations provision set forth in Section 15 and submit the Dispute by making a demand for arbitration as detailed at http://www.adr.org. If Merchant demands arbitration, it shall simultaneously send a copy of the completed demand to the following address: 920 Mohawk St., Suite 202, Lewiston NY 14092. If WiFiesta demands arbitration, it shall simultaneously send a copy of the completed demand to the Merchant’s address of record. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. WiFiesta will reimburse those fees for Disputes totaling less than $10,000 if Merchant is the prevailing party in such arbitration. WiFiesta will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines that a Merchant Dispute is frivolous. The arbitration will be conducted based upon written submissions unless Merchant requests and/or the arbitrator determines that a telephone or in-person hearing is necessary. If the arbitrator grants the request or determines an in-person hearing is necessary, the hearing will proceed in Lewes, Delaware, unless the arbitrator determines or we agree that the matter should proceed in the county of Merchant’s principal place of business.

    2. Class Action Waiver
      WE EACH AGREE THAT WE SHALL BRING ANY DISPUTE AGAINST THE OTHER IN OUR RESPECTIVE INDIVIDUAL CAPACITIES AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE PROCEEDING OR AS AN ASSOCIATION. IN ADDITION, WE EACH AGREE THAT DISPUTES SHALL BE ARBITRATED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. THE ARBITRATOR DOES NOT HAVE THE POWER TO VARY THESE PROVISIONS.

    3. Choice of Law / No Jury Trial
      If for any reason a Dispute proceeds in court: (i) Merchant and WiFiesta agree that any such Dispute may only be instituted in a state or federal court in Sussex County, Delaware; (ii) Merchant and WiFiesta irrevocably consent and submit to the exclusive personal jurisdiction and venue of such courts for resolution of such Disputes; (iii) Merchant and WiFiesta agree that the Federal Arbitration Act, the AAA rules, applicable federal law and the laws of the State of Delaware, without regard to principles of conflicts of law, will govern this Agreement and any Disputes; and (iv) MERCHANT AND WIFIESTA AGREE TO WAIVE ANY RIGHT TO A TRIAL BY JURY.

    4. Injunctive Relief / Attorneys’ Fees
      Notwithstanding anything to the contrary in this Agreement, either party may bring suit in court seeking an injunction or other equitable relief arising out of or relating to claims that the other party’s conduct may cause the other irreparable injury.
      In the event WiFiesta is the prevailing party in any Dispute, subject to any exceptions in this Section 16, Merchant shall pay to WiFiesta all reasonable attorneys’ fees and costs incurred by WiFiesta in connection with any Dispute.

  17. Other

    1. 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.

    2. This Agreement constitutes the entire agreement between the parties relating to its subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter.

    3. Merchant is not authorized to transfer or assign its rights or obligations under this Agreement, whether by operation of law or otherwise, without WiFiesta’s prior written consent. Any waiver must be in writing and signed by an authorized signatory of WiFiesta. WiFiesta is authorized to transfer or assign this Agreement to a present or future affiliate or pursuant to a merger, consolidation, reorganization or sale of all or substantially all of the assets or business, or by operation of law, without notice to Merchant.

    4. 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.

    5. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS NOR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WIFIESTA DOES NOT WARRANT OR GUARANTEE THAT THE SERVICES OFFERED ON OR THROUGH THE WEBSITE OR MOBILE APP WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE COUPONS OR PROMOTIONS ARE ERROR-FREE, OR THAT ANY MERCHANT OFFERING WILL RESULT IN ANY REVENUE OR PROFIT FOR MERCHANT OR THE RPSP WILL RESULT IN GUARANTEE PROFIT