Merchant Card Distribution
& Service Terms

Terms

Welcome, and thank you for your interest in Giftbit, Corp., a Delaware corporation, and/or Giftbit Inc., a federally incorporated Canadian corporation, (“Giftbit”) and Giftbit’s Web site at www.giftbit.com (the “Site”), as well as all related web sites, networks, embeddable widgets, downloadable software, mobile applications (including tablet applications), and other services provided by us and on which a link to this Agreement of Use is displayed (collectively, together with the Site, the “Giftbit Services”). These Giftbit Merchant Agreement are a legally binding contract between Merchant and Giftbit regarding Merchant’s use of the Giftbit Services.

PLEASE READ THE FOLLOWING TERMS OF USE CAREFULLY. BY AGREEING TO THE MERCHANT DISTRIBUTION SERVICE AGREEMENT, OR BY ACTIVATING YOUR ACCOUNT AND CLICKING “CLICKING HERE” IN THE ACCOUNT CONFIRMATION EMAIL, MERCHANT ACKNOWLEDGES THAT MERCHANT HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS, INCLUDING THE GIFTBIT PRIVACY POLICY AND TERMS OF SERVICE (COLLECTIVELY, THIS “AGREEMENT”) (each of Merchant and Giftbit, a “Party” and collectively, the “Parties”). If Merchant is not eligible, or does not agree to this Agreement, then Merchant must not use the Giftbit Services.

WHEREAS, Giftbit is a developer and processor of an online platform that allows Senders to purchase and send trackable, time-limited, digital gift card offers;

WHEREAS, Merchant would like to enable the sale and delivery of Merchant’s trackable, time-limited, digital gift card offers through the Giftbit marketplace and platform;

WHEREAS, Giftbit provides a payment API that enables Merchant to recognize Giftbit-generated Merchant Digital Codes in Merchant’s check-out process; and

WHEREAS, Merchant desires Giftbit to act as its distribution partner to provide certain distribution, Transaction Data processing, and sales reporting services, and Giftbit desires to act as Merchant’s distribution partner in order to provide such services in accordance with the terms and conditions set forth in this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants and promises of the Parties and other good and valuable consideration, the sufficiency and receipt of which is hereby acknowledged, the Parties agree as follows intending to be legally bound:

  1. Definitions. Certain capitalized terms used in this Agreement shall have the meanings set forth as follows:
    1. “Account Credit” means the amount of credit a Sender purchases from Giftbit to fund the delivery of Card Offers to Recipients and the Activation of Cards.
    2. “Activate(d)” means, with respect to a Card, enabled through Activation and capable of being used to conduct purchase transactions or in any other manner permitted by the Card Terms and Conditions.
    3. “Activation” means the completed process through which a Card is Activated, as set forth in Exhibit B.
    4. “Affiliate” means, with respect to a party, any person, firm, corporation, partnership (including, without limitation, general partnerships, limited partnerships, and limited liability partnerships), limited liability company, or other entity that now or in the future, directly Controls, is Controlled with or by or is under common Control with a party.
    5. “AML Program” has the meaning set forth in Section 5.1.
    6. “Ancillary Materials” has the meaning set forth in Section 2.3.
    7. “Applicable Law" means (i) the Network Rules, (ii) any applicable rule or requirement of NACHA, and (iii) any and all foreign, federal, state or local laws, treaties, rules, regulations, regulatory guidance, directives, policies, orders or determinations of (or agreements with) a Regulatory Authority and mandatory written direction from (or agreements with) any Regulatory Authority, including, without limitation, the Bank Secrecy Act and the regulations promulgated thereunder, including, without limitation, 31 C.F.R. 1022.210, 31 C.F.R. 1022.320, 31 C.F.R. 1022.420, and any successor provisions, any and all sanctions or regulations enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control, and federal or state statutes or regulations relating to stored value cards, money transmission, unclaimed property or data security, and all federal or state statutes or regulations relating to stored value cards, money transmission, unclaimed property or data security, including, without limitation, Title IV of the Credit Card Accountability Responsibility and Disclosure Act of 2009, Pub. L. No. 111-24, 123 Stat. 1734, as amended by Pub. L. No. 111-209, and the regulations promulgated thereunder, including, without limitation, 12 C.F.R. 205.20, or any successor provisions, that are applicable to the Cards or Program, or otherwise applicable to any of the Parties or Processor, as the same may be amended and in effect from time to time during the Term.
    8. “Business Day” means any day (other than a Saturday, Sunday or legal holiday) on which federally-insured financial institutions are permitted to be open.
    9. “Card” means a Merchant-branded digital prepaid gift card, which is issued by Merchant as a product of Merchant under the authority of and in connection with a card program managed by Merchant.
    10. “Card Offer” means a time-limited digital offer to claim a Card, delivered to a Recipient.
    11. “Card Terms and Conditions” means the set of terms and conditions applicable to the Card, including, without limitation, the privacy policy governing the use of Cardholder Data associated with such Card.
    12. “Cardholder” means a Recipient who claims one or more Card Offers delivered to Recipient.
    13. “Cardholder Data” means any data or information of any Cardholder that is provided to or obtained by either Party in the performance of its obligations under this Agreement or otherwise, including but not limited to, all lists of Cardholders, former Cardholders, and all information relating to and identified with such Cardholders, including, but not limited to, “non-public personal information” (as such term is defined under 12 C.F.R. Section 40.3(n) or 16 C.F.R. Section 313.3(n)) including but not limited to postal and e-mail addresses and associated data (including any personally identifiable information, personal account information, financial information, account numbers, personal identification numbers and other related information, social security numbers, or other non-public business or personal or financial information) provided by a Cardholder to either Party; provided, however, “Cardholder Data” shall not include (a) data or information collected from a Cardholder by Giftbit in connection with a transaction separate and apart from the sale of a Card, or (b) data or information collected from a Cardholder by Giftbit in connection with a loyalty or other customer promotional program of Giftbit, provided that such data is limited to name, mailing address, phone numbers and/or email address.
    14. “Cardholder Funds” means those funds that have been tendered on behalf of a Cardholder by Merchant for purposes of loading value to a Card, but that have not yet been redeemed.
    15. “Card Value” means the dollar value to be issued to a Recipient via an Activated Card.
    16. “Claim” has the meaning set forth in Section 8.1.
    17. “Confidential Information” has the meaning set forth in Section 11.
    18. “Control” means the possession, direct or indirect, of the power to vote fifty percent (50%) or more of the securities that have ordinary voting power for the election of directors of any entity, or to direct or cause the direction of the management and policies of such entity, whether through ownership of voting securities or by contract or otherwise.
    19. “Customer Support Hotline” has the meaning set forth in Section 2.10.
    20. “FinCEN” means the U.S. Department of Treasury’s Financial Crimes Enforcement Network.
    21. “Gifting Site” means a dedicated corporate portal which is hosted and maintained by Giftbit, and which may be Merchant-branded at Merchant option, that allows for the Purchase of trackable, time-limited, digital Merchant-branded Card Offers, including all updates, modifications and related documentation and specifications.
    22. “Giftbit Technologies” means (i) the processes, methods, machines, manufactures, technology, software or other technologies and all other materials owned or licensed by Giftbit and used or otherwise provided by Giftbit pursuant to this Agreement; (ii) all improvements, modifications, or upgrades to any of the foregoing; (iii) any such intellectual property developed, invented, patented, or registered by Giftbit prior to or during the Term of this Agreement.
    23. “GLBA” has the meaning set forth in Section 5.2.
    24. “Indemnified Party” has the meaning set forth in Section 8.3.
    25. “Indemnifying Party” has the meaning set forth in Section 8.3.
    26. “Initial Term” has the meaning set forth in Section 7.1.
    27. “Login Information” means the unique log-in credentials that Merchant provides to a Sender, which enable such Sender to place orders for Merchant Card Offers on the Gifting Site.
    28. “Marks” means the trademarks, service marks, trade names and logos of a Party used on or in connection with the Cards.
    29. “Merchant Digital Code” means Merchant-branded codes, personal identification number(s), or other similar mechanism delivered to a Recipient electronically upon Activation of a Card.
    30. “Merchant Technologies” means (i) the processes, methods, machines, manufactures, technology, software or other technologies and all other materials owned or licensed by Merchant and used or otherwise provided solely by Merchant pursuant to this Agreement; (ii) all improvements, modifications, or upgrades to any of the foregoing; (iii) any such intellectual property developed, invented, patented, or registered by Merchant prior to or during the Term of this Agreement.
    31. “NACHA” means NACHA – The Electronic Payments Association.
    32. “Network” means Visa U.S.A., Inc., MasterCard International, Inc., Discover Network, Inc., American Express Travel Related Services Company, Inc., or any other payment network which is utilized by Merchant or its Processor to issue the Cards or otherwise utilized by any Party hereto for the purposes of fulfilling such Party’s obligations hereunder.
    33. “Network Rules” means the by-laws and operating rules of any Network.
    34. “OFAC” means the United States Department of Treasury’s Office of Foreign Assets Control.
    35. “Payment Device” means a debit or credit card supported by Giftbit that a Sender wishes to use in order to complete a Purchase. Current supported Payment Devices are Visa, MasterCard, American Express, and Discover, and are subject to change upon written notice from Giftbit.
    36. “PCI DSS” has the meaning set forth in Section 5.2.
    37. “Person” means any individual, corporation, company, group, partnership or other entity.
    38. “Portal Management Support Fee” has the meaning set forth in Merchant Distribution Service Agreement.
    39. “Prepaid Access” has the meaning set forth in Section 4.1.
    40. “Program” means the marketing, promotion, distribution, sale and servicing of Cards pursuant to this Agreement and any agreement to which Giftbit and Merchant are parties.
    41. “Processor” means the entity which has the responsibility for processing Card transactions on behalf of Merchant.
    42. “Purchase” means a successfully processed Purchase Request.
    43. “Purchase Request” means an electronic transmission whereby Giftbit receives a Sender’s request to process a purchase of a Card Offer on the Gifting Site with a Payment Device.
    44. “Recipient” means a Person who receives one or more Card Offers sent by Sender using the Gifting Site.
    45. “Regulatory Authority” means any card association operating a payment network which is utilized by either Party or its Affiliate for the purposes of fulfilling either Party’s obligations hereunder (including, but not limited to Visa), NACHA, any state banking department, the Federal Deposit Insurance Corporation, the Office of the Comptroller of the Currency, the Federal Reserve Board, FinCEN, the Consumer Financial Protection Bureau, the Federal Trade Commission, and any other governmental agency, including any foreign governmental agency, having jurisdiction over the Cards, Program, any of the services to be provided hereunder, Giftbit, Merchant or any of their respective Affiliates.
    46. “Renewal Term” has the meaning set forth in Section 7.
    47. “Sender” means a Person who creates a Giftbit account and purchases Account Credit from Giftbit to send one or more Card Offers to Recipients.
    48. “Services Invoice” has the meaning set forth in Merchant Distribution Service Agreement.
    49. “Suspicious Activity” means the activity described in 31 C.F.R. 1022.320(a)(2) or any successor provision.
    50. “Term” has the meaning set forth in Section 7.
    51. “Transaction Data” means the data necessary to Activate a Card as mutually agreed upon by the Parties.
  2. Card Program.
    1. Generally.
      1. (a) As part of the Program, certain aspects of which are more fully described in Section 29, Giftbit shall, as further described herein, be responsible for (i) hosting and maintaining the Gifting Site, (i) distributing Card Offers to Recipients, (ii) processing Transaction Data related to the Activation of Cards; (iii) generating and delivering Merchant Digital Codes to Recipients upon Card Activation; and (iv) and remitting Card Value associated with Activated Cards to Merchant.
      2. (b) As between Merchant and Giftbit, Merchant shall be responsible for all obligations relating to the Cards and all other aspects of the Program not otherwise expressly assumed by Giftbit hereunder, and shall bear all costs and expenses associated therewith.
    2. Gifting Site Requirements.
      1. (a) Browser Compatibility. At the time of launch, the Gifting Site will support the following internet browsers: Firefox (which will automatically update), Chrome (which will automatically update), Internet Explorer 10 and all later versions of Internet Explorer, and Safari 8, regardless of whether such browsers are accessed from a computer or mobile device.
      2. (b) Fulfillment Services. The Gifting Site will enable Giftbit to sell Merchant-branded Card Offers to Senders, and Giftbit will fulfill Card Offer orders placed by Senders on the Gifting Site on behalf of Merchant. The Gifting Site will require Senders to provide a “From” email address, and will enable Card Offer delivery through email via a URL. The Gifting Site will also enable Senders to include their Corporate logo as well as provide a personal message of up to 500 characters.
      3. (c) Design of Card Offers. The Card Offers shall bear electronic designs and digital content created by Giftbit, with approval from Merchant, and shall bear the Merchant Marks and any other markings or notices that Merchant deems necessary or required by Applicable Law which Merchant shall determine in its sole discretion. Giftbit shall obtain Merchant’s prior written approval for the use of Merchant’s Mark on any initial design and digital content or on any additional designs or digital content, for the Card Offers.
      4. (d) Denomination of Card Offers. Giftbit will build the Gifting Site to enable Senders to select the denomination of the Card Offers when placing orders on the Gifting Site. The Gifting Site will accommodate variable Card Offer denominations from $5 U.S. dollars to one thousand U.S. dollars ($5-$1,000).
      5. (e) Order Acceptance on Gifting Site. Giftbit will build the Gifting Site to enable Merchant to approve Login Information of the Sender.
      6. (f) Geographic Limitations. Giftbit will build the Gifting Site such that Card Offers may only be purchased by Senders located within the United States for distribution to Recipients located within the United States.
    3. Design, Manufacture and Delivery of Ancillary Materials. Merchant shall be responsible for, and bear all costs and expenses related to, the design, printing, production and delivery of the Card Terms and Conditions, disclosures and advertising materials relating to the Cards (collectively, the “Ancillary Materials”). Merchant shall include on all Ancillary Materials any markings or notices that it deems necessary or required by Applicable Law which Merchant shall determine in its sole discretion. Not less than fifteen (15) Business Days prior to the printing and production of any Ancillary Materials, Merchant shall provide Giftbit with copies of such proposed Ancillary Materials, and shall, prior to production of such Ancillary Materials, work together with Giftbit in good faith to address any compliance or other issues with such materials that Giftbit may raise. Without limiting the foregoing, Merchant will (i) develop and deliver to Cardholders the Card Terms and Conditions and such other disclosures required by Applicable Law, including, without limitation, any privacy or error resolution notices, and (ii) develop and deliver to Giftbit all disclosures, postings and other materials which must be provided on the Gifting Site in connection with the promotion and/or sale of the Cards, which Giftbit shall make available to users of the Gifting Site.
    4. Security of Merchant Digital Codes; Losses Relating to Compromised Merchant Digital Codes.
      1. (a) Security of Merchant Digital Codes. Giftbit shall store any and all Merchant Digital Codes in its possession in a secure environment that may be accessed only by individuals who are authorized by Giftbit to have access in order to fulfill their employment responsibilities. Giftbit shall report any data breach, loss or other compromise of Merchant Digital Codes in its possession as soon as reasonably practicable, but in no event later than twenty-four (24) hours after Giftbit learns of any such breach, loss or compromise of Merchant Digital Codes.
      2. (b) Losses Relating to Compromised Merchant Digital Codes. The Parties acknowledge and agree that as between Giftbit and Merchant, Merchant shall be responsible for any losses relating to or arising from the loss, theft, or compromise of any Merchant Digital Code at any point following Activation of a Card and subsequent delivery of the Merchant Digital Code to a Recipient in accordance with the Card Terms and Conditions.
    5. Marketing and Distribution of Card Offers; Card Activation; Cardholder Funds.
      1. (a) Marketing and Distribution of Cards. With Giftbit's support, Merchant shall (i) arrange for and coordinate the marketing and promotion of the Card Offers to potential Senders through the appropriate means available; and (ii) be responsible for all costs and expenses associated with creating, producing, and printing and shall approve all such marketing materials, signage, and other similar items. Card Offers may only be purchased by Senders located within the United States for distribution to Recipients located within the United States. The Parties acknowledge and agree that either Party may, in its sole reasonable discretion, suspend or terminate the distribution of Card Offers by one or more Senders; provided, however, that if any Sender is removed from the Program by Giftbit, Giftbit shall provide notice (by e-mail, fax, or other written notice) to Merchant within three (3) Business Days following the initiation of the process to accomplish such removal. Subject to the Card Offer denomination limits set forth in Section 2.2(d), Merchant may establish from time to time in Merchant’s sole discretion, both daily and single transaction limits relating to the number and Card Value of Cards that may be sold through the Gifting Site. Merchant reserves the right to suspend transactions initiated by a Sender if such Sender exceeds a daily transaction or volume limit established by Merchant.
      2. (b) Card Activation. Giftbit, upon the claiming of a Card Offer by a Recipient, will transmit the resulting Transaction Data in real time to Merchant or its designated Processor, following which Merchant shall, or shall cause its Processor to, Activate the Card, as described further in Section 29. As between the Parties, Merchant shall be liable for obtaining, recording, reporting and maintaining in confidence any information relating to the Cards or transactions involving the Cards, including, but not limited to, Cardholder Data and any other information as may be required to comply with Applicable Law. Merchant or its Processor shall retain such information and related records in accordance with Applicable Law. In the event that Merchant changes its designated Processor at any time during the Term, Merchant acknowledges and agrees that it shall bear all costs and expenses that Giftbit may incur in establishing all connections to the new Processor which are required for Giftbit to perform its obligations hereunder.
    6. Books and Records.
      1. (a) Each Party shall maintain complete and accurate books of account and records, in accordance with generally accepted accounting principles in the United States, of all financial transactions arising in connection with its obligations pursuant to this Agreement for a period of not less than that legally required for such records from the date last recorded or created, but in no event less than three (3) years following the end of the Term. In addition to and notwithstanding the foregoing, to the extent any Party has sole possession or control of any records required to be maintained by any other Party pursuant to Applicable Law, the Party with possession or control shall maintain, or cause to be maintained, as applicable, such records in such form and for such time periods as required by Applicable Law, and shall make such records available to the other Party upon request. The Parties further agree to work together in good faith to promptly reconcile any accounting discrepancies. No more than once during each fiscal quarter, each Party may, at its own expense, and upon reasonable prior notice, have an internal or third party auditor, at the requesting Party's expense, inspect the books and records of any other Party relating to services performed herein by that Party, and during the Term, each Party shall furnish to the third party auditor of any other Party all such information concerning transactions and services provided by it pursuant to this Agreement as such other Party may reasonably request. Any Confidential Information provided by a Party to another Party pursuant to this provision shall be subject to the provisions of Section 11 hereof.
      2. (b) Each Party shall at all times have reasonable access to all Program information and documents it requires to comply with Applicable Law which may be in the control or possession of the other Party or its Affiliates, including, but not limited to, information and documents concerning Program revenues or transactions and agreements affecting the management and administration of the Program. Merchant shall exercise commercially reasonable efforts to cause its Processor to provide Giftbit with reasonable access to any information and documents that Giftbit may require to comply with Applicable Law which may be in the control or possession of the Processor, including, but not limited to, information and documents concerning Program revenues or transactions and agreements affecting the management and administration of the Program.
    7. Fraud Recovery. Giftbit shall be liable for any fraud losses resulting from (i) the fraud, gross negligence or willful misconduct of its or its Affiliates employees, authorized agents, authorized contractors, or authorized representatives, or (ii) inaccurate Transaction Data transmissions caused by Giftbit to Merchant or the Processor, except to the extent related to Merchant’s breach of this Agreement or the fraud, willful misconduct or negligence of Merchant or the Processor. Merchant shall be responsible for all other fraud losses.
    8. Unauthorized and Erroneous Transactions. Giftbit shall make commercially reasonable efforts to promptly notify Merchant via (a) e-mail or facsimile, and (b) telephone, with a copy by mail with information of which it has actual knowledge about any unauthorized Activation of any Card or about any counterfeit or fraudulent Card sales. Giftbit will promptly investigate and respond to such information in accordance with its obligations under this Agreement and Applicable Law, including, if appropriate, exerting commercially reasonable efforts to cancel the related Card.
    9. Cooperation with Prosecution. The Parties will use commercially reasonable efforts to cooperate fully with each other in an effort to locate and prosecute the perpetrator of any unauthorized activity or fraud in connection with the Cards.
    10. Customer Service and Cardholder Refunds. Upon the Activation of a Card, Merchant shall, as between the Parties, be fully responsible for, and shall bear all costs and expenses associated with, all customer service provided to Cardholders related to the Card and processing all refunds and credits, including, without limitation, services to Cardholders related to lost or stolen Cards, Card transaction inquiries, and the resolution of any Cardholder or potential Cardholder disputes, and shall cooperate with Giftbit in servicing all Giftbit issues, inquiries and complaints arising in connection with Cards or other aspects of the Program and Applicable Law. Merchant shall, and shall instruct its Processor to, resolve, in accordance with Applicable Law, all alleged errors or unauthorized transactions with respect to any Card. Giftbit shall arrange for and maintain, at its sole cost and expense, a dedicated toll-free telephone number (“Customer Support Hotline”) for Senders to call with inquiries regarding Purchase Requests, and such telephone number will appear on Sender’s bank or credit card statement along with the records of the Purchase. Giftbit shall provide support for the Customer Support Hotline twenty-four (24) hours a day, seven (7) days a week and include multilingual payment-related customer support. Giftbit shall provide commercially reasonable assistance to Merchant regarding any issues or questions related to the distribution, marketing, sale or Activation of the Cards.
    11. Compensation. As compensation for the services rendered hereunder, Giftbit shall be entitled to receive those amounts set forth in Merchant Distribution Service Agreement. Payment of such amounts shall be in accordance with Merchant Distribution Service Agreement.
    12. Designated Representatives. Within ten (10) Business Days immediately following the Effective Date, each Party shall designate one of its employees as such Party’s designated representative, who will serve as the single point of contact for such Party with respect to the Program and will have day-to-day authority for undertaking to ensure the Party fulfills its obligations hereunder in a timely manner, including the authority to commit such Party’s resources.
  3. Reporting. Giftbit shall provide information to Merchant at the end of each Business Day for each Business Day and each intervening non-Business Day during which Cards are sold. Such information shall include the reports set forth in Section 30 and such other reports covering such periods as Merchant may reasonably request. Information provided under this Section 3 shall be provided by electronic secure file transfer or in another form mutually agreeable to the Parties. These daily reports shall include the twenty-four (24) hour period from 12:00 AM to 11:59 PM Eastern Time for each Business Day and intervening non-Business Day. Merchant shall pay the costs associated with producing any customized reports it requests from Giftbit that are not listed in Section 30. Nothing contained herein shall obligate Giftbit to provide any information to Merchant in violation of Applicable Law.
  4. Representations, Warranties and Covenants.
    1. Prepaid Access. Giftbit and Merchant acknowledge and agree that due to the Card Offer denomination limits set forth in Section 2.2(d), as well as the geographic limitations set forth in Section 2.2(f), the Program does not constitute regulated prepaid access under 31 C.F.R. Chapter X. However, to the extent the Program is deemed to provide prepaid access, Merchant hereby represents, warrants and covenants to Giftbit that Merchant maintains principal oversight and control of the Program as defined in 31 C.F.R. §1010.100(ff)(4)(ii). Merchant shall be solely responsible for its maintenance of all necessary licenses, registrations, and regulatory obligations relevant to its role in operating the Program.
    2. Merchant Representations, Warranties, and Covenants. Merchant hereby represents, warrants, and covenants to Giftbit that:
      1. (a) it is duly incorporated and validly existing and in good standing under the laws of the State of its incorporation;
      2. (b) it is duly qualified and is properly licensed to do business, and is in good standing (i) in each jurisdiction in which the conduct of its business requires it to so qualify or be licensed, and (ii) with each Regulatory Authority having jurisdiction over it;
      3. (c) prior to Giftbit delivering a Merchant Digital Code upon Activation in any jurisdiction, and at all times during the Term thereafter, Merchant shall possess and maintain all necessary licenses, permits, approvals, and registrations from all applicable state and federal regulatory and governmental authorities which are required to (i) issue the Cards and receive and transmit Cardholder Funds in such jurisdiction for purposes of Merchant’s operation of the Program, and (ii) extend agency to Giftbit, as applicable, and otherwise authorize it to deliver Merchant Digital Codes upon Card Activation in such jurisdiction as Merchant’s distribution partner;
      4. (d) the execution and delivery of this Agreement by Merchant and the performance of its obligations hereunder require no consent, approval, order or authorization of, or registration, declaration or filing with, or other action by, any governmental agency or authority, except for such consents, approvals, orders, authorizations, registrations, declarations or filings which Merchant has made or obtained for purposes of operating the Program;
      5. (e) it is in material compliance, and will at all times materially comply, with Applicable Law relating to the performance of its obligations under this Agreement, including, without limitation, those in connection with the Cards and Merchant’s operation of the Program;
      6. (f) the performance of its obligations hereunder do not and will not violate any other agreement to which it is a party;
      7. (g) it is, and shall at all times remain, the sole owner of, or a licensee with rights to sublicense, the Merchant Marks;
      8. (h) neither the Merchant Technologies nor Marks infringe, or shall infringe, on any United States or other jurisdiction’s patent rights, copyrights, trademarks, trade dress, service marks, trade secret rights, or other proprietary rights of any third party;
      9. (i) the Merchant Technologies are proprietary to Merchant or are in the public domain or are used by Merchant under a license and Merchant has the right to sublicense such Merchant Technologies;
      10. (j) all Merchant Technologies shall comply with Applicable Law; and
      11. (k) as of the Effective Date of this Agreement, there are no pending or, to the knowledge of Merchant, threatened, Claims or litigation against Merchant that would adversely impact Merchant’s ability to perform its obligations under this Agreement, including, but not limited to, any Claims or litigation contesting Merchant’s ownership or right to use any of the Merchant Technologies or its patents, copyrights, trademarks, service marks, or trade secrets in connection with the Merchant Technologies.
    3. Giftbit Representations, Warranties, and Covenants. Giftbit hereby represents, warrants, and covenants to Merchant that:
      1. (a) it is duly incorporated and validly existing and in good standing under the laws of the State of Delaware;
      2. (b) it is duly qualified and is properly licensed to do business, and is in good standing (i) in each jurisdiction in which the conduct of its business requires it to so qualify or be licensed, and (ii) with each Regulatory Authority having jurisdiction over it;
      3. (c) except for those authorizations required to be provided by Merchant hereunder, it has and shall maintain all necessary licenses, permits, approvals, and registrations from all applicable state and federal regulatory and governmental authorities required to perform its obligations hereunder;
      4. (d) the execution and delivery of this Agreement by Giftbit and the performance of its obligations hereunder require no consent, approval, order or authorization of, or registration, declaration or filing with, or other action by, any governmental agency or authority, except for such consents, approvals, orders, authorizations, registrations, declarations or filings which Giftbit has made or obtained;
      5. (e) it is in material compliance, and will at all times materially comply, with Applicable Law relating to the performance of its obligations under this Agreement in connection with the Cards;
      6. (f) the performance of its obligations hereunder do not and will not violate any other agreement to which it is a party;
      7. (g) it is the sole owner of or a licensee with rights to sublicense its Marks, and its Marks do not infringe on the intellectual property rights of any person or entity;
      8. (h) the Giftbit Technologies do not infringe on any United States or other jurisdiction’s patent rights, copyrights, trademarks, trade dress, service marks, trade secret rights, or other proprietary rights of any third party;
      9. (i) the Giftbit Technologies are proprietary to Giftbit or are in the public domain or are used by Giftbit under a license and Giftbit has the right to sublicense the Giftbit Technologies;
      10. (j) all Giftbit Technologies shall comply with Applicable Law; and
      11. (k) as of the Effective Date of this Agreement, there are no pending or, to the knowledge of Giftbit, threatened, Claims or litigation against Giftbit that would adversely impact Giftbit’s ability to perform its obligations under this Agreement, including, but not limited to, any Claims or litigation contesting Giftbit’s ownership or right to use any of the Giftbit Technologies or its patents, copyrights, trademarks, service marks, or trade secrets in connection with the Giftbit Technologies.
  5. Legal Compliance.
    1. Compliance with Applicable Law.
      1. (a) Generally. Each Party shall comply with Applicable Law relating to the performance of its respective obligations hereunder. Merchant shall ensure that its Processor complies with Applicable Law in the performance of its respective obligations related to the Program. In the event that any Regulatory Authority requests or demands that Merchant or Giftbit cease or suspend any activities in connection with the Cards, Giftbit shall have the right to immediately stop all such activities in such jurisdiction.
      2. (b) Merchant Compliance Obligations. As between the Parties, Merchant shall ensure that the Program, Cards, and all related materials comply with Applicable Law.
    2. Security of Cardholder Data.
      1. (a) Merchant agrees that, as between Merchant and Giftbit, Merchant shall bear sole responsibility for protecting the privacy of Cardholder Data in accordance with Applicable Law, including, without limitation, the Gramm-Leach-Bliley Financial Modernization Act (“GLBA”) and related privacy laws and regulations. Merchant acknowledges and agrees that Giftbit shall not receive any Cardholder Data in the performance of its obligations hereunder. Giftbit shall (i) at all times during the Term comply with the Payment Card Industry Data Security Standard (“PCI DSS”) in the performance of its obligations hereunder and (ii) promptly provide notice to Merchant in the event that any third party audit concludes that such Party is not acting in compliance with the PCI DSS in the performance of its obligations hereunder. Merchant shall (i) at all times comply with PCI DSS in the performance of its obligations hereunder, (ii) upon request, deliver to Giftbit evidence of such compliance, (iii) promptly provide notice to Giftbit in the event that any third party audit concludes that Merchant is not acting in compliance with the PCI DSS in the performance of its obligations hereunder; and (iv) ensure that the Processor comply with the foregoing.
      2. (b) Subject to any obligations placed upon Merchant or Giftbit by a law enforcement agency, such Party agrees to fully disclose to the other Party any actual breach in security which results in unauthorized intrusions into such Party's computer and other information systems that materially affects the other Party or the Cardholders or otherwise involves the unauthorized disclosure, access to, acquisition of, or other loss or use of Cardholder Data. As soon as such Party becomes aware that it has such a security breach it shall notify the other Party in writing and provide: (i) a description of the breach or loss, including the data it occurred; (ii) the number of individuals or accounts affected; (iii) the information accessed, acquired, lost, or misused; (iv) whether the breach or loss was computerized in nature or a paper loss; (v) whether such information was encrypted or unencrypted; (vi) whether encryption keys or passwords may have been compromised, and (vii) a description of the steps taken to investigate the incident, secure systems or recover lost information, and prevent the recurrence of further security breaches or losses of the same type. In addition, in the event of an actual breach in security of Merchant’s or Giftbit’s computer or other information systems, such Party agrees to (i) permit a mutually agreed upon independent qualified third party auditor to perform an investigation (including the installation of monitoring or diagnostic software or equipment) to locate the source and scope of the breach and provide the other Party with any material information related to such Party that such independent auditor discovers with respect to the breach, and (ii) be responsible for all costs, expenses, fines, fees, penalties and other liability directly arising out of or related to any such actual breach which the other Party may incur or otherwise be responsible for.
  6. Intellectual Property.
    1. Merchant Technologies and Merchant Marks. Merchant hereby grants to Giftbit during the Term a non-exclusive, royalty-free, non-assignable license to use (but not the right to sublicense) the Merchant Technologies and Merchant Marks (and the copyrights that exist in such Marks, if any) in the United States solely to the extent that (i) Merchant authorizes solely in connection with the Program and (ii) such use is necessary for Giftbit to perform its obligations hereunder. The Merchant Marks shall be used only in the forms and format expressly approved in advance by Merchant, which approval shall not be unreasonably withheld, condition or delayed. Title to and ownership of the Merchant Marks and the Merchant Technologies shall remain with Merchant and all use of the Merchant Marks shall inure to the sole benefit of Merchant. Other than expressly provided herein with respect to the Merchant Marks or Merchant Technologies, Giftbit shall not obtain any right, title or other interest in the Merchant Marks or Merchant Technologies by virtue of this Agreement. Upon termination of this Agreement, all license rights conveyed by Merchant to Giftbit shall cease, and all such rights shall revert to Merchant. Merchant shall ensure that the Merchant Technologies are free from material defects in design, material and workmanship under normal use and operating conditions during the Term of this Agreement.
    2. Giftbit Technologies and Giftbit Marks. Solely in connection with and in furtherance of its obligations under this Agreement, Giftbit hereby grants to Merchant during the Term a non-exclusive, royalty-free, non-assignable license to use (but not the right to sublicense) the Giftbit Technologies and Giftbit Marks (and the copyrights that exist in such Marks, if any) in the United States solely to the extent that (i) Giftbit authorizes in connection with the Program and (ii) such use is necessary for Merchant to perform its obligations hereunder. Giftbit Marks shall be used only in the forms and format expressly approved in advance by Giftbit, which approval shall not be unreasonably withheld, condition or delayed. Title to and ownership of Giftbit Marks and the Giftbit Technologies shall remain with Giftbit and/or one of its Affiliates and all use of Giftbit Marks shall inure to the sole benefit of Giftbit and/or one of its Affiliates. Other than expressly provided herein, Merchant shall not obtain any right, title or other interest in Giftbit Marks or the Giftbit Technologies by virtue of this Agreement. Upon termination of this Agreement, all license rights conveyed by Giftbit to Merchant shall cease, and all such rights shall revert to Giftbit and/or one of its Affiliates. Giftbit shall ensure that the Giftbit Technologies are free from material defects in design, material and workmanship under normal use and operating conditions during the Term of this Agreement.
    3. Improvements. Any improvement(s), modifications, or upgrades to the Merchant Technologies or Merchant Marks made or discovered during the Term shall belong exclusively to Merchant or one of its Affiliates. Any improvement(s), modifications, or upgrades to the Giftbit Technologies or Giftbit Marks made or discovered during the Term shall belong exclusively to Giftbit or one of its Affiliates. To the extent that any Party contributes, in whole or in part, to any improvement(s) to any other Party’s Technologies or Marks such Party hereby assigns to the other Party all right, title and interest in and to such improvement(s). Further, such Party agrees that (a) it will not seek, and that it will require its employees, agents and representatives (including third party contractors) not to seek patent, copyright, trademark, registered design, or other protection for any rights in and to the improvement(s), and (b) it will do and will require its employees, agents and representatives (including third party contractors) to do, at the other Party’s expense, all things and execute all documents as the other Party may reasonably require to vest in the other Party or its nominees any protection for the improvement(s) that the other Party deems appropriate.
  7. Term and Termination.
    1. Term and Termination. The term of this Agreement shall begin on the Effective Date and continue for a period of one (1) year, unless otherwise terminated as provided herein (the “Initial Term”). This Agreement shall automatically renew for additional periods of 1 year (each, a “Renewal Term”) (the Initial Term, collectively with all Renewal Terms, the “Term”), unless either Merchant or Giftbit provides the other Parties with written notice of its intention to not renew the Agreement not less than ninety (90) days prior to the expiration of the Initial Term or Renewal Term then in effect.
    2. Termination of Agreement For Cause. In addition to any termination rights provided elsewhere in this Agreement, any Party shall have the right to terminate the Agreement upon occurrence of one or more of the following events:
      1. (a) Failure by any other Party to observe or perform, in any material respect, that Party’s obligations to any other Party hereunder, so long as the failure is not due to the actions or failure to act of the terminating Party, but only if the failure continues for a period of: (i) thirty (30) Business Days after the non–performing Party received written notice from the terminating Party specifying the failure in the case of a failure not involving the payment of money, or (ii) ten (10) Business Days after the non–performing Party receives written notice for the terminating Party specifying the failure in the case of a failure to pay any amount then due hereunder;
      2. (b) In the event any representation, warranty statement or certificate furnished to it by any other Party in connection with or arising out of the Agreement is materially adverse to the terminating party and intentionally untrue as of the date made or delivered;
      3. (c) Any other Party: (i) voluntarily commences any proceeding or filing any petition seeking relief under Title 11 of the United States Code or any other federal, state or foreign bankruptcy, insolvency, liquidation or similar law; (ii) applies for or consents to the appointment of a receiver, trustee, custodian, sequestrator or similar official for such Party or for a substantial part of its property or assets, (iii) makes a general assignment for the benefit of creditors, or (iv) takes corporate action for the purpose of effecting any of the foregoing;
      4. (d) The commencement of an involuntary proceeding or the filing of an involuntary proceeding or the filing of an involuntary petition in a court or competent jurisdiction seeking: (i) relief in respect for any other Party, or of a substantial part of its property or assets under Title 11 of the United States Code or any other federal, state or foreign bankruptcy, insolvency, receivership or similar law, (ii) the appointment of a receiver, trustee, custodian, sequestrator or similar office for any other Party for a substantial part of its property or assets, or (iii) the winding up or liquidation, of any other Party, if such proceeding or petition shall continue un–dismissed for sixty (60) days or an order or decree approving or ordering any of the foregoing shall continue unstayed and in effect for sixty (60) days;
      5. (e) Upon any change to or enactment of any Applicable Law, or published change in the interpretation thereof by any Regulatory Authority, which would have a material adverse effect upon: (i) the Program; (ii) such Party’s ability to perform its obligations hereunder; or (iii) such Party’s expected risks or benefits under this Agreement; provided that the Parties, after good faith discussions, cannot find a mutually agreeable solution within a reasonable amount of time.
      6. (f) Violation of Applicable Law relating to the performance of this Agreement rendering any of the Parties unable to substantially perform this Agreement, provided that the Parties cannot find a legally workable solution to avoid violating Applicable Law within a reasonable amount of time;
      7. (g) Upon direction from any Regulatory Authority for any Party to cease or materially limit performance of such Party’s obligations under this Agreement.
    3. Additional Termination Right of Giftbit. Without limiting the termination right set forth in Section 7.2(e), Giftbit shall have the right to terminate this Agreement immediately upon written notice to Merchant in the event that (i) Giftbit is deemed, or (ii) Giftbit reasonably determines that Giftbit or may be deemed, a “seller of prepaid access” or “provider of prepaid access” (as each term is defined under 31 C.F.R. 1010.100(ff) or any successor provision) as a result of their respective activities related to any Card.
    4. Rights and Obligations upon Termination. The Parties’ rights to terminate this Agreement shall be in addition to, and not in lieu of, any other remedies they may have by virtue of (a) a breach or default with respect to this Agreement or (b) any other event which permits a termination. Furthermore, the termination or expiration of this Agreement shall not relieve the Parties of any obligations due at or before the time of such termination or expiration or prejudice any claim of either Party. Upon termination of this Agreement, Giftbit shall retain the right to continue offering a platform for customers of Giftbit to purchase and send Merchant-branded Card Offers through Giftbit’s platform. Merchant shall exercise commercially reasonable efforts to cause its Processor to provide Giftbit with reasonable access to any information and documents that Giftbit may require to fulfil its obligations in connection with the purchase and delivery of Merchant-branded Card Offers through its web-based digital gifting platform. Upon termination of this Agreement, each Party shall promptly destroy or return to the disclosing Party in a safe and secure manner as reasonably requested, at its own expense, all Confidential Information of the disclosing Party in its possession. No Party will be obligated to erase Confidential Information contained in an archived computer system backup made in accordance with such party’s security and/or disaster recovery procedures, provided that such archived copy will (i) eventually be erased or destroyed in the ordinary course of such party’s data processing procedures and (ii) will remain fully subject to the obligations of confidentiality stated herein. All provisions of this Agreement which by their nature extend beyond the expiration or termination of this Agreement, shall continue in full force and effect notwithstanding the expiration or termination of this Agreement. The expiration or termination of this Agreement shall not affect a Cardholder’s usage of a Card in accordance with the Card Terms and Conditions provided that such Card was Activated prior to the termination or expiration of this Agreement.
  8. Indemnification
    1. Merchant Indemnification. Merchant agrees to indemnify, defend and hold harmless Giftbit and its respective Affiliates, sureties, officers, directors, agents, employees, parents and subsidiaries, from and against any and all liability, damages, costs, expenses, including reasonable legal fees and expenses, for any third party claim or demand, including, without limitation, any fees or penalties assessed by any Regulatory Authority (“Claim”), arising out of or related to:
      1. (a) Merchant’s breach of any representation, warranty, covenant or obligation under this Agreement;
      2. (b) gross negligence, fraud or willful misconduct on the part of Merchant, its officers, directors, employees, representatives or service providers, and their respective officers, directors and employees;
      3. (c) any actions taken by Giftbit in accordance with or in good faith reliance upon information or instructions provided by Merchant or its agents or representatives;
      4. (d) obligations owed to any third party by Merchant or any third party retained by it;
      5. (e) any actual or alleged infringement or misappropriation of any intellectual property rights of any third party by Merchant;
      6. (f) any act or omission of the Processor, where such act or omission relates to the Program;
      7. (g) any failure of the Processor to remain in good standing with (i) each Regulatory Authority with jurisdiction over it, and (ii) each Network or other electronic payment network which it may be a member of or registered with from time to time;
      8. (h) any failure of the funds underlying any Card to qualify for pass-through federal deposit insurance coverage (“FDIC Insurance”) under Applicable Law, including, without limitation, 12 C.F.R. § 330.5, to the extent such coverage is specified in the Card Terms and Conditions or any other notices, disclosures or promotional materials related to a Card; or
      9. (i) any failure of Merchant to comply with the terms and conditions applicable to a Card, including, without limitation, any failure to make any funds underlying Card, or to be loaded onto a Card, available as specified in such terms and conditions, or with Applicable Law with respect to any Card, Cardholder or Cardholder Funds.
      10. The defense obligation of Merchant attaches if the Claim alleges any of the foregoing violations, breaches, acts or omissions.
    2. Giftbit Indemnification. Giftbit agrees to indemnify, defend and hold harmless Merchant, its Affiliates, sureties, officers, directors, agents, employees, parents and subsidiaries, from and against any and all Claims arising out of or related to:
      1. (a) Giftbit’s breach of any representation, warranty, covenant or obligation under this Agreement;
      2. (b) gross negligence, fraud or willful misconduct on the part of Giftbit, its officers, directors, employees, representatives or service providers, and their respective officers, directors and employees;
      3. (c) any actions taken by Merchant in accordance with or in good faith reliance upon information or instructions provided by Giftbit or its agents or representatives;
      4. (d) obligations owed to any third party by Giftbit or any third party retained by it; or
      5. (e) any actual or alleged infringement or misappropriation of any intellectual property rights of any third party by Giftbit.
      6. The defense obligation of Giftbit attaches if the Claim alleges any of the foregoing violations, breaches, acts or omissions.
    3. Indemnification Procedures. If any Claim is asserted against any party or parties (individually or collectively, the “Indemnified Party”) by any person who is not a Party to this Agreement in respect of which the Indemnified Party may be entitled to indemnification under the provisions of Sections 8.1 or 8.2 above, written notice of such Claim shall promptly be given to any Party or Parties (individually or collectively, the “Indemnifying Party”) from whom indemnification may be sought. The Indemnifying Party shall have the right, by notifying the Indemnified Party within ten (10) Business Days of its receipt of the notice of the Claim, to assume the entire control (subject to the right of the Indemnified Party to participate at the Indemnified Party’s expense and with counsel of the Indemnified Party’s choice) of the defense, compromise or settlement of the matter, including, at the Indemnifying Party’s expense, employment of counsel of the Indemnifying Party’s choice. The Indemnified Party must provide reasonable cooperation in the defense and the failure to do so will be deemed waiver by the Indemnified Party of any and all right to indemnification by the Indemnifying Party. The Indemnifying Party shall not compromise or settle a Claim against the Indemnified Party without the Indemnified Party's prior written consent, which shall not be unreasonably withheld or delayed; provided that the Indemnifying Party may, however, effect a compromise or settlement of an action without the Indemnified Party's consent if the following conditions are met: (i) there is no admission of guilt or liability by the Indemnified Party; (ii) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party; (iii) the compromise or settlement entered into between the parties to the matter shall expressly provide that the compromise or settlement entered into between the parties, and all discussions between and among the parties to the matter surrounding the compromise or settlement, shall be kept confidential; such compromise or settlement also shall stipulate that no press releases or other public statements may be made concerning such compromise or settlement without the prior written consent of the Indemnified Party; and (iv) the Indemnified Party is made aware of the proposed compromise or settlement as reasonably early as practicable, and the proposed compromise or settlement includes the claimant's or the plaintiff's unconditional release of the Indemnified Party from all liability in respect of the claim.
  9. Limitation of Liability. NO PARTY, OR THEIR RESPECTIVE SUBSIDIARIES, PARENTS OR AFFILIATES SHALL BE LIABLE TO ANY PARTY TO THIS AGREEMENT OR THEIR RESPECTIVE SUBSIDIARIES, PARENTS OR AFFILIATES, WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS (EVEN IF SUCH DAMAGES ARE FORESEEABLE, AND WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM OR RELATING TO THIS AGREEMENT. THE CUMULATIVE LIABILITY OF MERCHANT, WITH RESPECT TO GIFTBIT, OR GIFTBIT WITH RESPECT TO MERCHANT, SHALL NOT UNDER ANY CIRCUMSTANCES EXCEED FIFTY THOUSAND DOLLARS ($50,000). NOTWITHSTANDING THE FOREGOING, THE LIMITATIONS CONTAINED IN THIS SECTION 9 SHALL NOT APPLY TO ANY CLAIM THAT (A) IS SUBJECT TO INDEMNIFICATION UNDER SECTION 9, OR (B) WITH RESPECT TO ANY PARTY, ARISES OUT OF SUCH PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD.
  10. Disclaimers. ALL SERVICES PROVIDED BY THE PARTIES HEREUNDER ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, NO PARTY, NOR THEIR RESPECTIVE AFFILIATES MAKES ANY REPRESENTATIONS OR WARRANTIES, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, RELATING TO OR ARISING OUT OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
  11. Confidential Information.
    1. Definition. Each Party acknowledges that it may receive Confidential Information of another Party. For purposes of this Agreement, “Confidential Information” includes the terms of this Agreement, any customer information (including Cardholder Data), financial data and budgetary or proprietary business information, income or sales data or projections, customer lists, business operations, policies, procedures and techniques, advertising summary or tracking reports or other reports generated in accordance with this Agreement, schematics, ideas, techniques, know how, concepts, development tools and processes, computer printouts, computer programs, design drawings and manuals, and improvements, patents, copyrights, trade secrets or other intellectual property of any kind or nature, plans for future development and new product concepts, contemplated products, research, development, strategies, and any information which, from the relevant circumstances, should reasonably be assumed to be confidential and proprietary. The term “Confidential Information” shall not include information which, prior to delivery, was already in the recipient Party’s possession; is or becomes generally available to the public through lawful means, other than as the result of a disclosure by the recipient Party or its representatives; becomes available to a recipient Party without confidential or proprietary restriction by a third party who rightfully possesses the information without confidential or proprietary restrictions; or the recipient Party can demonstrate that it was independently developed by such recipient Party.
    2. Use. Except as otherwise specifically provided in this Agreement, each Party covenants and agrees that it will not, publish, communicate, divulge, or disclose to any person, firm, or corporation any Confidential Information of any other Party, except as necessary in the performance of the terms of this Agreement. Each Party covenants and agrees that it will not use any Confidential Information of any other Party except as necessary to fulfill its obligations or exercise its rights under this Agreement, and only for such purposes and only for the time that it is necessary to do so, except to the extent it is otherwise permitted under this Agreement. Each Party will take commercially reasonable security precautions, at least as great as the precautions it takes to protect its own trade secrets and as may be required by Applicable Law, with respect to the Confidential Information of each other Party which it receives and will disclose such Confidential Information only on a need to know basis and only to its subsidiary, agent or subcontractor who is obligated to treat such Confidential Information in a manner consistent with all the obligations of this Agreement. Liability for damages due to disclosure of the Confidential Information by any such third party shall be with the Party that disclosed the Confidential Information to the third party.
    3. Required Disclosures. In the event that the recipient of Confidential Information is requested or becomes legally compelled to disclose any Confidential Information of the other Party, it is agreed that such recipient Party will provide the disclosing Party with prompt written notice of such request(s) to enable the disclosing Party, at its sole cost and expense, to seek a protective order to protect and preserve the confidential nature of the Confidential Information. In such event, each Party agrees that it will furnish only that portion of the Confidential Information which is legally required and will exercise reasonable efforts to obtain reliable assurance that confidential treatment will be accorded to that portion of the Confidential Information and other information which is being disclosed. Each Party shall immediately notify the other upon discovery of any loss or unauthorized disclosure of the Confidential Information of the other Party.
    4. Return or Destruction. As requested by the furnishing Party during the Term, upon expiration or any termination of this Agreement, or completion of the obligations of the receiving Party, as applicable, the receiving Party shall (a) return or destroy, as the furnishing Party may direct, and in the manner reasonable directed by the furnishing Party, all material in any medium that contains, refers to, or relates to the furnishing Party’s Confidential Information, and (b) retain no copies except one (1) copy solely for compliance with record retention requirements under Applicable Law; provided, however, that no Party will be obligated to erase Confidential Information contained in an archived computer system backup made in accordance with such Party’s security and/or disaster recovery procedures, provided that such archived copy will (a) eventually be erased or destroyed in the ordinary course of such Party’s data processing procedures and (b) will remain fully subject to the obligations of confidentiality stated herein.
    5. Misuse. In the event of any actual or suspected misuse, disclosure or loss of, or inability to account for, any Confidential Information of the furnishing Party, the receiving Party promptly shall: (a) promptly (and in any event within three (3) Business Days) notify the furnishing Party upon becoming aware thereof; (b) furnish to the other Parties full details of the unauthorized possession, use or knowledge, or attempt thereof, and use reasonable efforts to assist the other Party in investigating or preventing the reoccurrence of any unauthorized possession, use, or knowledge, or attempt thereof, of Confidential Information; (c) take such actions as may be necessary or reasonably requested by the furnishing Party to minimize the violation; and (d) cooperate in all reasonable respects with the furnishing Party to minimize the violation and any damage resulting therefrom.
    6. Ownership of Confidential Information. As between the Parties, each Party’s Confidential Information shall remain the property of that Party. Nothing contained in this Agreement shall be construed as obligating a Party to disclose its Confidential Information to the other Party, or as granting to or conferring on a Party, expressly or impliedly, any rights or license to the Confidential Information of the other Party, and any such obligation or grant shall only be as provided by other provisions of this Agreement.
    7. Press Releases and Inquiries. All media releases, public announcements and public disclosures by a Party relating to this Agreement or the subject matter of this Agreement, including promotional or marketing material (but not including announcements intended solely for internal distribution or disclosures to the extent required to meet legal or regulatory requirements beyond the reasonable control of the disclosing party) shall be coordinated with and approved by the other Parties prior to release. If a Party determines that disclosure is required to meet legal or regulatory requirements it shall promptly inform the other Party and coordinate such disclosure with the other Party. The disclosing Party shall limit disclosure to that which is necessary and shall give due consideration to comments the other Party and its counsel may provide regarding the nature of the disclosure.
    8. Conflicts. To the extent that any provision in this Agreement conflicts with a provision of any other agreement between the Parties, the language most protective of Confidential Information shall take precedence as to the subject matter hereof.
  12. Required Disclosures. In the event that the recipient of Confidential Information is requested or becomes legally compelled to disclose any Confidential Information of any other Party, it is agreed that such recipient Party will provide the disclosing Party with prompt written notice of such request(s), unless such notice is prohibited by law, to enable the disclosing Party to seek a protective order to protect and preserve the confidential nature of the Confidential Information. In such event, each Party agrees that it will furnish only that portion of the Confidential Information which is legally required and will exercise reasonable efforts to obtain reliable assurance that confidential treatment will be accorded to that portion of the Confidential Information and other information which is being disclosed. Each Party shall immediately notify the other upon discovery of any loss or unauthorized disclosure of the Confidential Information of the disclosing Party.
  13. Assignment. Except as set forth in this Agreement, no Party may transfer or assign this Agreement or its obligations hereunder, in whole or in part, except to an Affiliate of such Party, and no attempted assignment shall be effective, without the prior written consent of the other Parties. Any purported assignment in violation of this Section 13 shall be void and of no effect. Notwithstanding the foregoing, in the event Giftbit is acquired by, merged into, or sells substantially all of its assets to, any entity, this Agreement shall continue in full force and effect, and such successor entity shall assume the rights and obligations hereunder.
  14. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to that state's conflict of laws principles. Each Party agrees that service of process in any action or proceeding hereunder may be made upon such Party by certified mail, return receipt requested, to the address for notice set forth herein, as the same may be modified in accordance with the terms hereof.
  15. Force Majeure. No Party shall be liable for any failure or delay on its part to perform, and shall be excused from performing any of its non–monetary obligations hereunder if such failure, delay or non–performance results in whole or in part from any cause beyond the absolute control of the party, including without limitation, any act of God, act of war, riot, actions of terrorists, earthquake, fire, explosion, natural disaster, flooding, embargo, sabotage, government law, ordinance, rule, regulation, order or actions. Any Party desiring to rely upon any of the foregoing as an excuse for failure, default or delay in performance shall, when the cause arises, give to the other Parties prompt notice in writing of the facts which constitute such cause; and, when the cause ceases to exist, give prompt notice thereof to the other Parties. This Section 15 shall in no way limit the right of any Party to this Agreement to make any claim against third parties for any damages suffered due to said cause. If any performance under this Agreement is postponed or extended for longer than sixty (60) calendar days any Party may, by written notice to the other Parties, terminate this Agreement immediately.
  16. No Third Party Beneficiaries. No Cardholder nor any other third party, other than an Affiliate of any Party, is a third party beneficiary to this Agreement.
  17. Independent Contractor. The Parties are independent contractors. Except as otherwise provided herein solely for the purposes of compliance with state money transmitter statutes, nothing in this Agreement shall be construed to create a joint venture, partnership, or an agency relationship between the Parties. Except as expressly provided herein, no Party has the authority, without the relevant Party’s prior written approval, to bind or commit such Party in any way.
  18. Subcontractors and Agents. Nothing herein shall be deemed to prevent or restrict either Party from subcontracting any of its duties or obligations hereunder upon written notice to the other Party, provided that the subcontracting Party shall remain at all times liable for the performance of such duties or obligations as if the subcontracting Party had performed such duties or obligations itself.
  19. Notices. All notices to be given hereunder shall be effective only when made in writing and actually delivered (by mail, overnight courier, special courier, telecopier or otherwise) to such Party at its address set forth in Merchant Distribution Service Agreement. Any Party may change its address for receipt of notice by written direction to the other Parties.
  20. Further Assurances. Each Party agrees that it will do and that it will require its employees, agents and representatives (including third party contractors) to do all things and execute all documents as the other Parties may reasonably require to effect the general purposes or any specific provision of this Agreement.
  21. Entire Agreement. This Agreement and any attachments hereto set forth the entire agreement and understanding between Giftbit and Merchant as to the subject matter hereof and supersedes all prior discussions, agreements and understandings of any kind, and every nature between them. This Agreement shall not be changed, modified or amended except in writing and signed by both Parties; provided, however, that the Parties agree to immediately execute such amendments to this Agreement as are deemed necessary by Giftbit and its counsel to ensure compliance with Applicable Law.
  22. Survival. All provisions of this Agreement which by their nature extend beyond the expiration or termination of this Agreement including, without limitation, Sections 2.1(b), 2.4(b), 2.6, 2.7, 2.10, 5.2, 6, 7.4, 8, 9, 10, 11, 12 and 14-27, shall survive the termination or expiration of this Agreement.
  23. Successors and Third Parties. Except as limited by Section 13, this Agreement and the rights and obligations hereunder shall bind, and inure to the benefit of the Parties and their successors and permitted assigns. Nothing in this Agreement, expressed or implied, is intended to confer upon any person, other than the Parties and their successors and permitted assigns, any of the rights hereunder.
  24. Construction. Captions contained in this Agreement are for convenience only and do not constitute a limitation of the terms hereof. The singular includes the plural, and the plural includes the singular. All references to “herein,” “hereunder,” “hereinabove,” or like words shall refer to this Agreement as a whole and not to any particular section, subsection, or clause contained in this Agreement. The terms “include” and “including” are not limiting. Reference to any agreement or other contract includes any permitted modifications, supplements, amendments, and replacements.
  25. Severability; Waiver. If any provision of this Agreement (or any portion thereof) is determined to be invalid or unenforceable, the remaining provisions of this Agreement shall not be affected thereby and shall be binding upon the Parties and shall be enforceable, as though said invalid or unenforceable provision (or portion thereof) were not contained in this Agreement. The failure by either Party to insist upon strict performance of any of the provisions contained in this Agreement shall in no way constitute a waiver of its rights as set forth in this Agreement, at law or in equity, or a waiver of any other provisions or subsequent default by any other Party in the performance of or compliance with any of the terms and conditions set forth in this Agreement.
  26. Headings. The headings, captions, headers, footers and version numbers contained in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement.
  27. Drafting. Each Party: (i) acknowledges and agrees that they fully participated in the drafting of this Agreement and, in the event that any dispute arises with respect to the interpretation or construction of this Agreement, no presumption shall arise that any one Party drafted this Agreement; and (ii) represents and warrants to the other Parties that they have thoroughly reviewed this Agreement, understand and agree to undertake all of their obligations hereunder, and have obtained qualified independent legal advice with respect to the foregoing.
  28. Counterparts. This Agreement may be executed and then delivered via facsimile transmission, via the sending of PDF or other copies thereof via email and in one or more counterparts, each of which shall be an original but all of which taken together shall constitute one and the same Agreement.
  29. Program Description.
    1. Description of Card. The Card shall be a Merchant-branded, digital prepaid gift card issued by Merchant as a product of Merchant which bears Merchant Mark(s), and may be purchased from Giftbit through the Gifting Site hosted and maintained by Giftbit.
    2. Description of Card Offer. The Card Offer shall be a time-limited gift card offer sold by Giftbit and delivered to a Recipient via the Gifting Site hosted and maintained by Giftbit.
    3. Card Activation. Each Card sold by Giftbit shall only be Activated after (a) the Sender has purchased Account Credit from Giftbit sufficient to cover the value of the Card Offer, (b) the Card Offer has been delivered to the Recipient, (c) the Recipient claims his or her Card Offer within the offer period, (d) Giftbit converts and transmits the resulting Transaction Data to Merchant and/or its Processor, (e) Merchant and/or its Processor takes those steps necessary to Activate the Card, and (f) a Merchant Digital Code is displayed to the Recipient, following which the Recipient will have full access to the funds on the Card as provided in the Card Terms and Conditions and will be able to use the Card in accordance with the Card Terms and Conditions. In the event that Merchant or its Processor is unable to successfully complete Activation of a Card, Merchant or its Processor will refund the relevant Card Value to the Sender.
    4. Remittance of Funds to Merchant. Giftbit shall remit the Card Value associated with Activated Cards to Merchant in accordance with this paragraph. No later than the seventh (7th) calendar day following the day that a Card is Activated by a Recipient, Giftbit shall remit the Card Value associated with that Activated Card to Merchant.
  30. Required Reports. Giftbit will provide the Merchant an interface to generate and download an Account Activity report, in .csv format, for transaction activity within a time period selected by the Merchant (the “Reporting Period”). An Account Activity Reports contain the following details on all transactions in the Reporting Period: Transaction Date, Transaction Time, Last 4 digits of gift code, Currency, Transaction Amount, Balance Remaining After Transaction, Spend Period End Date, Merchant Transaction ID, Giftbit Transaction ID, Fee, Tax, and Net Redemption Value.

Last Updated: April 29, 2016