Version Date: December 21, 2016
This Merchant Agreement (this “Agreement”) is between booqu Inc. (“booqu”) and each merchant or vendor (each, a “Merchant” or “you”) using the Platform (as defined below) as a provider or seller of products and/or services.
By accessing or using the Platform or clicking “accept” or “agree” to this Agreement, (1) you acknowledge that you have read, understand, and agree to be bound by this Agreement, and (2) you represent and warrant that you are of legal age and not prohibited by law from accessing or using the Platform.
1. Nature of Services
The “Platform” means any or all of the booqu branded (a) website at www.booqu.com (the “booqu Site”), (b) applications for mobile phones and other devices (the “booqu Apps”), and (c) the services offered by booqu through the booqu Site and the booqu Apps, including services by which (i) Merchants can offer, market and promote products and services to consumers (each, an “Offer”), which might be requested by consumers (called “Live Deals” on the Platform) or initiated by a Merchant (called “Last Minute” bookings on the Platform), (ii) consumers can purchase the products and services made available by an Offer (each, a “Purchased Offer”), (iii) Merchants can accept payments through the Platform from consumers for Offers, and (iv) Merchants can schedule consumer appointments independently of Offers promoted on the Platform using booqu’s beta booking system (the “Booking System”). Notwithstanding the foregoing, the operation and requirements for use of the Platform are subject to change from time to time in the sole discretion of booqu. The Merchant will select the products and services to be offered as Offers via the Platform and the price at which they are offered. booqu acts as the marketing agent for the Offer, but the Merchant is the offering and selling party.
2. booqu Responsibilities
During the term of this Agreement and provided that the Merchant remains in compliance with this Agreement, booqu will use the Platform to offer and promote Offers on behalf of the Merchant, at the offering price specified by the Merchant via the Platform and for the time period designated by the Merchant via the Platform, subject to the Merchant Use Guidelines from time to time posted by booqu at www.booqu.com/merchantTerms.
b. Purchase Confirmations
Upon a consumer using the Platform to purchase an Offer, booqu will issue to the Merchant and the purchaser (the “Purchaser”) of the Offer a confirmation of such purchase. Each Merchant Account on the Platform will also contain a record of Purchased Offers and Purchasers.
c. Fees and Payment
i. Merchant Payments
Subject to Merchant’s performance of its obligations under this Agreement, booqu will remit to Merchant all payments received from purchasers of Offers less the Commission (as defined below) and subject to clause (ii) below (such net amount, the “Merchant Payment”). Unless otherwise agreed in writing by the parties hereto, the amount due to Merchant will be paid by check or electronic transfer of funds, in booqu’s discretion. Payments will be initiated by booqu within 21 days of booqu’s receipt of the applicable customer payments.
ii. Customer Complaints
In the event booqu has received a substantial number of customer complaints, payment challenges, or requests for refunds, as determined in booqu’s discretion, booqu may hold back amounts subject to those complaints, challenges, or requests and may also hold back up to one-third of the other amounts otherwise due Merchant until the parties have reached a mutually acceptable plan for resolving the complaints.
booqu will be entitled to retain a commission from the pre-tax purchase price of a Purchased Offer (the “Commission”). booqu will also charge Merchant a credit card and/or other payment processing fee. The Commission percentage rate and payment processing fees will be set forth at www.booqu.com/pricing or will be as otherwise agreed in writing by Merchant and booqu.
If Merchant has subscribed to the Booking System, Merchant will pay booqu the fees specified on the Platform at www.booqu.com/pricing, as from time to time updated by booqu.
Merchant will be solely responsible for collecting and remitting any value added, use or sales taxes owed to federal, state, or local taxing authorities in connection with the offering, sale or redemption of Offers.
d. Booking System
Merchants that subscribe to the Booking System will gain access to the Booking System features of the Platform, subject to the applicable fee requirements described on the Platform.
e. No Screening
booqu does not screen consumers using the Platform for suitability with any Merchant or Offers.
3. Merchant Responsibilities
Each Merchant will need to register by creating an account (a “Merchant Account”) with booqu in order to act as a Merchant on the Platform. By creating a Merchant Account, Merchant agrees to provide only accurate, complete registration information and will keep that information up-to-date if it changes. Upon registration, Merchant will obtain unique log-in credentials (a “User Name”). Access to the Platform is not authorized by any other person or entity using Merchant’s User Name, and Merchant is responsible for preventing such unauthorized use. Individuals and entities whose privilege to access or use the Services has previously been terminated by booqu may not register for a Merchant Account.
Merchant agrees and acknowledges that booqu markets Offers and facilitates Purchased Offers, but that Merchant, and not booqu, is offering and selling its products and services to consumers. Accordingly, Merchant agrees that it, and not booqu, is solely responsible to fulfill the Offer and provide the underlying product or services to the consumer purchasing it in accordance with this Agreement.
d. Merchant Content
Merchant may be asked to provide a logo, photograph, copy, or other marketing materials (“Merchant Content”) to be used in developing the Offer Creatives (as defined below). Merchant hereby grants booqu a nonexclusive worldwide license to reproduce, use, display, perform, distribute, and create derivative works based upon the Merchant Content for the purpose of developing, distributing, and otherwise promoting the Offer Creatives as booqu deems appropriate. After the term of this Agreement, booqu may continue to use and distribute the Offer Creatives as exemplars and for general promotional purposes. booqu will not, however, use the Offer Creatives in a manner derogatory to the Merchant.
e. Deal Creatives
booqu may, in its discretion, use Merchant Content to prepare one or more promotional creatives for one or more particular Offers of a Merchant (“Deal Creatives”), which may include an Offer page hosted on the www.booqu.com website or other websites offered with our distribution partners, an email creative to be distributed to potential purchasers of the Offer, or other similar creatives for online promotion of the Offer. Offer Creatives will be subject to Merchant’s prior approval (which may be made by email or other electronic means), not to be unreasonably withheld or delayed. Once an Offer Creative has been approved, booqu is deemed to have approval to use and promote other Offer Creatives that are substantially similar to the approved Offer Creative.
a. Merchant Data
As between Merchant and booqu, Merchant owns all right, title and interest in Merchant Data (as defined below). Merchant hereby grants to booqu a nonexclusive, worldwide, assignable, sublicensable, fully paid-up and royalty-free license and right to copy, distribute, display and perform, publish, prepare derivative works of and otherwise use Merchant Data for the purposes of providing, improving and developing booqu’s products and services and/or complementary products and services of our partners. Merchant represents and warrants to booqu that Merchant has all rights necessary to grant the licenses in this subsection (a), and that Merchant’s provision of Merchant Data through and in connection with the Platform does not violate any applicable laws or rights of any third party. “Merchant Data” means any data, information or material provided or submitted by Merchant and its affiliates to the Platform, but excludes Aggregated Data.
b. booqu Data
Notwithstanding subsection (a) above, all right, title and interest in any data or information collected by booqu independently and without access to, reference to or use of any of Merchant Data, including, without limitation, any data or information booqu obtains about Purchasers through the booqu Apps (whether the same as Merchant Data or otherwise), will be solely owned by booqu (collectively, “booqu Data”).
c. Aggregated Data
booqu will own all Aggregated Data (as defined below). Merchant agree that nothing in this Agreement will prohibit booqu from utilizing Aggregated Data for any purpose, provided such Aggregated Data does not reveal any personally identifying information about Merchant or any Purchasers. “Aggregated Data” means anonymized, aggregated data derived by or through the operation of the Platform that is created by or on behalf of booqu and that does not reveal any personally identifying information.
The Health Insurance Portability and Accountability Act, as amended and supplemented (“HIPAA”) imposes rules to protect certain personal health information or “PHI” as that term is defined under HIPAA. If Merchant or any affiliate is subject to HIPAA, prior to accessing or using the Platform, Merchant must notify booqu and enter into a Business Associate Agreement (“BAA”) in the form provided by booqu. Merchant is solely responsible for determining whether Merchant or any affiliates are subject to HIPAA. Merchant may send notice and request a BAA by emailing email@example.com.
6. Representations and Warranties
Each party hereto hereby represents and warrants that (i) it has the authority to enter into this Agreement and to fully perform its obligations hereunder and (ii) this Agreement does not and will not conflict with any of the party’s other obligations to any third parties.
b. Merchant Warranties
Merchant additionally represents and warrants that: (i) it will provide the Purchased Offer in a safe and professional manner; (ii) the Merchant Content does not infringe or misappropriate any third party copyright, trademark, right of publicity, moral right, trade secret, or other proprietary right, and (iii) it will comply with applicable federal and state laws related to its performance under this Agreement and the offering and sale of Offers, including those related to deceptive trade practices, unclaimed property liability associated with Purchased Offers that have not been redeemed, alcohol related service and discounting, and expiration of gift cards.
Merchant is responsible for honoring the terms of any Offers as provided by Merchant, even if in error. Merchant may enforce time and date requirements and other requirements only in accordance with applicable federal and state laws.
If any federal and/or state law requires Merchant to refund or provide the Purchaser cash redemption for all or some portion of the Purchased Offer, Merchant, and not booqu, is responsible to comply with any such refund or cash redemption requirements.
Merchant will indemnify, defend, and hold harmless booqu, its owners, 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 the Offer, the fulfillment thereof, and/or any breach or alleged breach of any Merchant obligation, representation, or warranty under this Agreement.
booqu must notify Merchant promptly in writing of any claim for indemnification hereunder, and provide, at Merchant’s expense (to the extent of out-of-pocket expenses only), all reasonably necessary assistance, information and authority to allow Merchant to control the defense and settlement of such claim using counsel reasonably acceptable to booqu, provided that the failure of booqu to promptly inform Merchant of any claim will not excuse Merchant of its obligations under this Section except to the extent such failure materially prejudices Merchant. Notwithstanding the foregoing, Merchant will not enter into any settlement of the defense of such action, other than with respect to the payment of monies fully covered by Merchant, without booqu’s prior written consent, which consent will not be unreasonably withheld or delayed. booqu may participate at its expense in the defense and/or settlement of any such action with counsel of its choosing and at its sole expense
8. Limitation of Liability
NEITHER PARTY WILL 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 DATA, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS (COLLECTIVELY, “DISCLAIMED DAMAGES”). booqu’S CUMULATIVE LIABILITY RELATED TO DIRECT DAMAGES WILL BE LIMITED TO THE FEES RECEIVED BY booqu FROM MERCHANT IN THE 12 MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE CLAIM FOR DIRECT DAMAGES. THESE LIMITATIONS WILL NOT APPLY TO ANY INDEMNIFICATION OBLIGATION.
This Agreement will commence on the date the Merchant first uses any element of the Platform and will terminate when all of the Merchant’s Offers have expired and the Merchant has closed its Merchant Account.
Either party may terminate this Agreement by notice upon material breach by the other party. booqu may cancel this Agreement, in its discretion, upon notice to Merchant at any time prior. Merchant may terminate this Agreement, upon notice to booqu, if Merchant rejects any updates to this Agreement as provided above in the preamble to this Agreement. If Merchant rejects any update to this Agreement because of fee increases and terminates this Agreement within 30 days of such fee increase, the fee increase will not apply to Merchant.
Sections 3(b), (3(c), 3(d), 3(e), 4, 5, 6, 7, 8, 9 and 10 will survive expiration or termination of this Agreement. In addition, following termination or expiration, Merchant will continue to honor all outstanding Offers and all Purchased Offers, and booqu may provide Merchant with access to its Merchant Account for that limited purpose.
Merchant will treat Merchant’s Commission Rate and any economic or other terms that vary from this Agreement as confidential. Merchant agrees not to use any such confidential information for any purpose other than the performance of this Agreement and not to disclose any such confidential information to any third party, other than its legal, tax, and accounting advisors who are bound by a duty of confidentiality, or as required by applicable law.
b. Entire Agreement
All notices and requests in connection with this Agreement will be deemed received as of the open of business on the next business day (as determined in Seattle, Washington) after being given in accordance with this subsection (c). Notices given by booqu to the Merchant may be given by posting such notice in the Merchant’s Merchant Account or by email to the primary email address given by the Merchant for use with the Merchant’s account. Notices given by the Merchant to booqu must be given by email to firstname.lastname@example.org.
No waiver of any term or condition hereof will be effective unless in writing and signed by the authorized representative of the party against whom such waiver is asserted. Any waiver will be specifically limited to its terms, and will not be deemed applicable to subsequent like circumstances.
e. Governing Law
This Agreement will be governed by the laws of the State of Washington, without reference to principles of conflicts of law, and the parties further consent to the exclusive jurisdiction of the local and federal courts located in King County, Washington to resolve any dispute that may arise between the parties relating to this Agreement.
f. Authorization, Electronic Signatures and Counterparts
Merchant’s acceptance of this Agreement via the Platform and/or use of the Platform as a Merchant constitutes Merchant’s binding acceptance of this Agreement. The individual accepting this Agreement or using the Platform as a Merchant represents and warrants that such individual is a duly authorized representative of Merchant and that such person’s act of electronically accepting this Agreement or using the Platform as a Merchant will be a binding commitment of Merchant under the terms of this Agreement