Merchant Agreement General Terms & Conditions
This “Agreement” is comprised of (a) these General Terms and Conditions, (b) the Special Terms and Conditions and (c) the Additional Terms and Conditions, if any.
1. Parties‘ Obligations
1.1. GAAPER’s Obligations
(1) GAAPER shall, based on the specifications provided by the Merchant and set out in the Special Terms and Conditions, design and publish advertisements (the “Advertisements”) for Vouchers (as defined below) which are issued by the Merchant.
(2) The Advertisements shall be published for one or more periods of time (“Feature Periods”) and up to a maximum of number of Vouchers (the “Cap”). The length of the Feature Period(s) and their relationship to the respective Cap(s) are specified in the Special Terms and Conditions.
(3) GAAPER, in its sole discretion, shall decide when, where and to whom the Advertisements are published during the Feature Period(s).
(4) Voucher shall mean an instrument, in either physical or electronic form, which, when presented to the Merchant within a certain period of time (the “Redemption Period”), shall entitle the holder of such Voucher (the “Voucher Holder”) to receive the Merchant Offering from the Merchant.
(5) Merchant Offering shall mean the goods and/or services specified in the Special Terms and Conditions
(6) The Redemption Period, as set out in the Special Terms and Conditions, may be:
(a) Fixed, where all the Vouchers must be presented to the Merchant by a fixed date (e.g. December 31); or
(b) Relative to Feature Period, where the Redemption Period of the Voucher begins on the first day of the Feature Period and ends a certain period of time (e.g. three months) afterwards; or
(c) Relative to purchase, where the Redemption Period of the Voucher begins with its purchase and ends a certain period of time (e.g. three months) afterwards; and
(d) Staggered, which means that, irrespective of whether the Redemption Period is fixed or relative, for an agreed upon portion of the Cap, the end of the Redemption Period is postponed by an agreed upon period of time (e.g. for 1/3 of the Vouchers the final date for redemption of December 31 is postponed to January 31).
(7) In addition to the Advertisement, GAAPER shall have the exclusive right to sell and distribute the Vouchers on its own behalf.
1.2. Merchant’s Obligations
The Merchant – not GAAPER – is solely responsible for providing the Merchant Offering to the Voucher Holder including, but not limited to, the supply or delivery of the Merchant Offering, customer service, after-sales-service and return management. The Merchant holds GAAPER free from any possible claims of the Voucher Holder regarding the Merchant Offering, including, but not limited to, claims of personal injury, death or property damage. Issues arising out of or related to the supply of the Merchant Offering by the Merchant to Voucher Holders do not affect GAAPER’s right to retain its Commission.
2. Warranties and Representations
2.1. Merchant’s Warranties and Representations
The Merchant warrants, represents and undertakes that:
(a) it is authorised to enter into this Agreement and that this Agreement is signed by an authorised representative of the Merchant;
(b) it shall inform GAAPER in writing immediately of any change that could affect this Agreement;
(c) all information provided by the Merchant and set out in this Agreement is accurate, complete and correct, including, but not limited to, the Merchant Offering, the discount or any shipping dates or delivery timeframes (if applicable);
(d) it has obtained (and shall obtain and maintain throughout the term of this Agreement) all necessary licenses, consents and permissions relevant to this Agreement and to the Merchant Offering;
(e) all data and information provided by the Merchant to GAAPER shall (and the Merchant’s behaviour shall at all times) be in compliance with all applicable laws and regulations and in accordance with any guidelines, standards and relevant codes of practice;
(f) in respect of the redemption of Vouchers online (including the use of Voucher and/or security codes generated by GAAPER, the Merchant or a third party), the Merchant’s website shall be capable of handling and processing such online redemption;
(g) during the term of this Agreement it shall not give any individuals other than a Voucher Holder who has presented a Voucher to the Merchant a discount for the products and/or services which constitute the Merchant Offering;
(h) that the price specified in the Special Terms and Conditions as the “original price” was the actual selling price of the Merchant Offering for at least 30 days prior to the Effective Date of this Agreement; and
(i) (1) it complies with all applicable international, federal, state, local and other laws, including but not limited to the U.S. Foreign Corrupt Practices Act and UK Bribery Act, and any and all executive orders and rules and regulations issued thereunder (collectively, “Applicable Laws”) that prohibit providing a payment of money or anything of value to a foreign government official, public international organization official, foreign political party, foreign political party official or candidates for such offices, either directly or indirectly, for the purpose of influencing official acts and decisions (including failures to act and decide) in order to assist in obtaining or retaining business or directing business to any entity and any provisions of local law and Buyer’s policies and procedures related thereto; and
(2) it complies with all Applicable Laws regarding imports and exports, including, without limitation, any Applicable Laws regarding unsanctioned foreign boycotts, anti-boycott laws and embargoed countries.
2.2. GAAPER’s Warranties and Representations
(1) GAAPER warrants, represents and undertakes that it will execute its obligations arising under or in connection with this Agreement with reasonable care and skill.
(2) GAAPER does not warrant or guarantee that services offered on or through the Internet will be uninterrupted or error-free or that its services will result in any revenue or profit for the Merchant.
3. Exclusion of Liability
(1) GAAPER does not exclude or limit any liability that cannot be excluded or limited by applicable law.
(2) Subject to section 3. (1), GAAPER shall not be liable for any indirect loss. Further, GAAPER shall not be liable, whether directly or indirectly, for (i) loss of actual or anticipated profits; (ii) loss of goodwill; or (iii) loss of data and/or the costs of restoration of data.
(3) Subject to sections 3. (1) and (2), GAAPER’s total liability under this Agreement, howsoever arising, shall in no circumstances exceed the greater of the cumulative total amount of the Commission GAAPER has received under this Agreement.
4. Payment and Payment Terms
4.1. Voucher Price Collection
(1) GAAPER shall collect from the sale of each Voucher the purchase price of such Voucher (the “Voucher Price”) as set out in the Special Terms and Conditions, unless the Voucher Price advertised on the GAAPER platform is discounted in which case clause (2) applies. If the Voucher is redeemed (as defined below) GAAPER shall deduct from the Voucher Price: (a) its Success Fee, as set out in the Special Terms and Conditions, (b) a percentage of the Voucher Price defined in the Special Terms and Conditions as payment for administrative fees, and (c) any legally applicable VAT in respect of (a) and (b), and remit the balance (the “Remittance Amount”) to the Merchant.
(2) GAAPER, in conjunction with the Merchant, may choose to discount the Voucher Price, to an amount below the Voucher Price as set out in the Special Terms and Conditions (the “Discounted Voucher Price”). In such event, GAAPER shall inform the Merchant of all Vouchers sold to customers at this Discounted Voucher Price, within 14 days after the end of a Feature Period. In the event that a Voucher is sold to the customer at the Discounted Voucher Price, GAAPER shall collect from the sale of each Voucher the Discounted Voucher Price. If the Voucher is redeemed (as defined below), GAAPER shall deduct from the Discounted Voucher Price: (a) a Discounted Success Fee, being the VAT-inclusive value of the Success Fee minus the difference between the Voucher Price and the Discounted Voucher Price (the “Discounted Success Fee”); (b) a percentage of the Voucher Price defined in the Special Terms and Conditions as payment for administrative fees; and (c) any legally applicable VAT in respect of (a) and (b), and remit the Remittance Amount to the Merchant. For the avoidance of doubt, the Discounted Success Fee is inclusive of VAT.
4.2. Payment Terms
(1) The Merchant shall receive the Remittance Amount only for Vouchers where the Merchant has informed GAAPER, within 10 days following the end of the Redemption Period applicable to that Voucher (the “Notice Period”), that such Voucher was redeemed. GAAPER shall remit the Remittance Amount for redeemed Vouchers to the Merchant within 10 days after it has been informed of the redemption of the Voucher. For the avoidance of doubt, GAAPER’s Commission in respect of a Voucher shall become due when the Voucher is sold and GAAPER is under no obligation to transfer any amounts (including, but not limited to, any Remittance Amount) to the Merchant where a Voucher is not redeemed or, even if redeemed, the Merchant informs GAAPER of the same after expiry of the Notice Period.
(2) The parties agree that a Voucher is redeemed when:
(a) The Voucher Holder has presented the Voucher to the Merchant within the redemption Period;
(b) The Merchant has delivered the Merchant Offering in full to the Voucher Holder;
(c) The Merchant has provided to GAAPER evidence of (a) and (b) prior to the end of the Notice Period (including the Voucher security code and/or other evidence GAAPER may reasonably request as proof of the provision of the Merchant Offering, for example, but not limited to, a delivery confirmation in case of delivery of physical goods); and
(d) The Voucher Holder whose Voucher or Voucher’s security code the Merchant has submitted to GAAPER has not asked GAAPER for a refund and GAAPER has not given the Voucher Holder a refund.
For the avoidance of doubt, if any of the above four described requirements are not met, a Voucher is not redeemed and GAAPER is under no obligation to pay the Merchant any amount in respect of that Voucher.
(3) In the event of a Merchant Offering which comprises the provision of services over an extended period of time (for example, a gym membership or multiple yoga sessions) (“Long-Term-Deal”) and in the event such provision extends beyond the Notice Period, the condition set out in section 4.2 (2) (b) shall be waived. Instead, for each Long-Term-Deal, GAAPER shall withhold the percentage set out in the Special Terms and Conditions of the respective total Remittance Amount as security until the Merchant has delivered or provided the Merchant Offering in full to each and every Voucher Holder.
(4) Any payment made by GAAPER to the Merchant shall be without prejudice to any claims or rights which GAAPER may have against the Merchant.
4.3. VAT and Invoices
(1) GAAPER shall be liable for the amount of any legally applicable VAT which, under the laws applicable to this Agreement, shall accrue to GAAPER. The Merchant shall be liable for the amount of any legally applicable VAT which, under the laws applicable to this Agreement, shall accrue to the Merchant. If applicable VAT laws change such that GAAPER becomes liable to pay VAT which previously accrued (or was scheduled to accrue) to the Merchant, the Merchant agrees that GAAPER may unilaterally vary the financial provisions of this Agreement to produce the result which would have been achieved had the change in VAT laws not occurred.
(2) GAAPER shall send an invoice to the Merchant in compliance with applicable law.
(3) The Merchant shall provide Voucher Holders with an invoice in compliance with applicable law.
GAAPER has the right to refund any buyer of a Voucher who, in GAAPER’s reasonable opinion, has a valid complaint about the Merchant Offering, including, but not limited to, its supply or delivery. If GAAPER has already paid the Merchant in respect of such refunded Voucher, GAAPER may recover the refunded amount from the Merchant.
GAAPER may set off against any amounts payable to the Merchant any amount owed by the Merchant to GAAPER (or to a third party, if such third party claims such amount from GAAPER or, in GAAPER’s reasonable opinion, will likely do so). The Merchant shall not have the right to set off any amounts owed by GAAPER.
5. Merchant Centre (CRM)
6. Intellectual Property
6.1. Licensing of IP by the Merchant
For the term of this Agreement, the Merchant grants to GAAPER a non-exclusive, worldwide, royalty free, paid-up, irrevocable, transferable and sub-licensable right to use the Merchant’s registered and un-registered intellectual property rights (“Merchant IP”), and any third party’s intellectual property rights supplied by the Merchant to GAAPER (“Third Party IP”), including, but not limited to, any editorial text or images.
6.2. Merchant’s Warranties regarding Licensed IP
The Merchant warrants that it owns all interest in and to the Merchant IP, has licensing rights (including the right to sublicense to GAAPER) in the Third Party IP, and has the right to grant the license stated in this Agreement.
6.3. GAAPER’s IP
The Merchant shall not use any of GAAPER’s intellectual property rights or prepare any derivative work based thereon.
7. Confidentiality and Privacy
7.1. This Agreement
The Merchant agrees to keep strictly confidential the terms of this Agreement, all of its contents and all information that it obtained about GAAPER’s business, including, but not limited to, the finances, technology and affairs of GAAPER.
7.2. Voucher Holder Data
GAAPER or an affiliated entity owns all personal data about Voucher Holders. Where GAAPER (or an affiliated entity or other third party) makes personal data about Voucher Holders available to the Merchant, the Merchant shall use the personal data of Voucher Holders only to fulfil its obligations in connection with the Merchant Offering, and for no other purpose. The Merchant shall ensure that at all times it implements and complies with reasonable security measures, including, but not limited to, such security measures as prescribed by applicable law, in the handling of any personal data of Voucher Holders. If the Merchant engages any third party to facilitate any of its obligations hereunder, the Merchant shall ensure that such third party complies in the same way with all of the Merchant’s obligations under this Agreement.
7.3. Background Checks
(1) GAAPER reserves the right to make general and specific credit and financial checks and credit-related enquiries about the Merchant and certain individuals and/or legal entities working with and/or for the Merchant. The Merchant consents to these checks and agrees to co-operate with GAAPER’s reasonable requests in respect of conducting these checks.
(2) The Merchant acknowledges that GAAPER may record phone calls with the Merchant for quality assurance and compliance purposes.
8. Term and Termination
(1) This Agreement ends when the period for making payments, as set out in sections 4.2 (1) and (3), has expired for the last Feature Period covered by this Agreement.
(2) In the event the number of Feature Periods is not defined, each party may terminate this Agreement with 1 months’ written notice to the end of each Feature Period.
8.2. Termination in Case of Material Breach
(1) Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving notice in writing to the other party if:
(a) the other party commits a material breach of this Agreement and such breach either cannot be remedied or, where remedy is possible, is not remedied within 5 days after a written request to do so; or
(b) the other party commences negotiations with any class of creditors about re-scheduling its debts, an order is made for the other party to be wound up, or an administrator is appointed over the other party.
(2) Without prejudice to GAAPER’s other rights hereunder or at law, if the Merchant commits a material breach or persistent breaches of this Agreement, including, but not limited to, its duties under section 1.2, GAAPER may suspend its performance under this Agreement until such time as the same are remedied.
8.3. Accrual of Rights and Obligations
Termination of this Agreement in accordance with its terms shall not affect the accrued rights or liabilities of the parties at the date of termination and shall have no effect on: (a) the validity of Vouchers already sold prior to termination; or (b) the Merchant’s obligations to provide the Merchant Offering in respect of such Vouchers.
Any provision of this Agreement which expressly or by implication is intended to come into or continue in force on or after termination of this Agreement, including, but not limited to, sections 1.2, 2, 3, 4, 6, 7.1, 7.2, 8.3, 8.4, 9 and 10 shall remain in full force and effect indefinitely.
The Merchant agrees to defend, indemnify and hold GAAPER, its affiliated and related entities, and any of its respective officers, directors, agents and employees, harmless from and against any claims, lawsuits, investigations, penalties, damages, losses or expenses (including, but not limited to, reasonable attorneys’ fees and costs) arising out of or relating to any of the following:
(a) any claim by the relevant tax authorities for the tax obligations of the Merchant arising from the issuance, sale or redemption of a Voucher;
(b) any claim by a Voucher Holder or anyone else arising out of or in connection with the Merchant Offering (or any goods and/or services actually or purportedly offered in respect of or in connection to a Voucher) or any other goods and/or services offered by the Merchant, including, but not limited to, claims for personal injury, death, or property damages; and
(c) any breach (or alleged breach) of sections 6, 7.1 or 7.2.
(1) This Agreement contains all the terms agreed between the parties regarding its subject matter and supersedes and excludes any prior agreement, understanding or arrangement between the parties, whether oral or in writing.
(2) No terms and conditions or other document submitted, proposed or stipulated by the Merchant other than the Agreement shall be binding between the parties in respect of the transaction set out in this Agreement, unless expressly agreed to in writing by GAAPER.
(3) This Agreement may be amended or modified only by mutual written agreement of authorised representatives of the parties.
(4) No waiver by GAAPER of any violation or default in performance of the provisions of this Agreement shall be deemed a waiver of such provisions or the right of GAAPER to thereafter enforce such provisions, or any other provisions, of this Agreement.
(5) Nothing in this Agreement shall be construed to create a joint venture, partnership, franchise, or an agency relationship between the parties. Neither party has the authority, without the other party’s prior written approval, to bind or commit the other party in any way.
(6) Headings to and within sections of this Agreement are for convenience only and do not form part of this Agreement and shall not affect the interpretation of this Agreement.
(7) The Merchant is not authorised to transfer or assign its rights or obligations under this Agreement, whether by operation of law or otherwise, without GAAPER’s prior written consent. GAAPER is authorised to transfer or assign this Agreement or any of its rights thereunder to a present or future affiliate or pursuant to a merger, consolidation, reorganization or sale of all or substantially all of the assets or business, or by operation of law, without notice to the Merchant.
(8) In case this Agreement is in electronic form, the parties agree to use an electronic signature service for the purpose of signing this Agreement; the parties further agree that using an electronic signature shall be treated with the same legal force and effect as a signature written by hand, and will not be denied legal validity solely due to the fact that the signature is in electronic form.
(9) If any provision of this Agreement should be held to be invalid or unenforceable, the validity and enforceability of the remaining provisions of this Agreement are not affected. Such invalid or unenforceable provision shall be replaced by a valid and enforceable provision which most closely achieves the economic effect contemplated by the invalid or unenforceable provision.
(10) This Agreement shall be governed and interpreted by the laws of Hong Kong, without regard to its conflict or choice of law principles. Exclusive venue for any disputes shall be the courts of Hong Kong.
(11) The Effective Date of this Agreement shall be the date that the last of GAAPER or the Merchant signs this Agreement or otherwise indicates its assent in writing.