The Merchant Agreement ("Agreement") entered into by and between Ackroo Inc., a Canadian corporation ("Ackroo") having offices at 62 Steacie Drive. Suite 201, Ottawa, Ontario K2K 2A9 and the merchant_________________________________ ("Merchant") are subject to the following terms and conditions and is effective as of the "Effective Date" stated in the Agreement.
Each of Ackroo and Merchant may be referred to herein individually as a "Party" and collectively as the "Parties".
WHEREAS Merchant desires to have Ackroo provide loyalty, gift card, or other program product or services using Ackroo's proprietary platform and services offering, and Ackroo desires to provide such products and/or services;
NOW, THEREFORE, the Parties agree as follows:
- Services and Support: Ackroo shall provide Merchant with use of Ackroo's platform and services as set forth in Agreement (the "Services") in order for Merchant to operate its own customer loyalty and gift card programs (the "Merchant Programs"). Ackroo shall provide support for Merchant Programs to Merchants between regular business hours, Monday to Friday 8 am to 6 pm EST.
- Billing and Payment:
- Ackroo Anywhere: Merchant agrees to pay to Ackroo the fees associated with the Services as set forth in Agreement. As of the Effective Date, Ackroo shall invoice and charge Merchant for TOTAL INITIAL FEES as shown on Agreement plus applicable taxes. All future program materials purchased by Merchant are invoiced upon ordering. Upon program setup, and delivery of cards (if applicable), the Initial Term of this Agreement shall commence. Ackroo invoices monthly program fees at the beginning of each month; payment is due immediately for manually billing clients or is applied on the 15th of each month, or the previous business day, if the 15th falls on a non-business day, for customers on automated payment (credit card or void cheque). The monthly invoice shall include the current month’s program fee, any applicable overage charges for the previous month, and applicable taxes via the payment method agreed between the Parties. Any delayed or incomplete payment shall be remedied by Merchant within ten days after which Ackroo may in its sole discretion withhold the provision of the Services. Payments that are not complete due to Nonsufficient Funds or declined Credit Cards will be subject to a charge of $35 that will be billed in the next billing cycle. Late payments will be charged an interest rate of 2% per month until payment is received. We accept PAD, MasterCard, and VISA. American Express is subject to a 2% surcharge.
- Custom Cardholder Portal (optional): Ackroo provides the option for merchants to have their own Branded Cardholder Portal vs. the generic Ackroo Cardholder portal based on Ackroo’s defined customization set. This portal can be accessed via the Merchant’s website and has a predefined portal template and is used by customers to run cardholder operations like registration, check and transfer of balances. The monthly Ackroo Anywhere invoice will reflect the chargeable Custom Cardholder Portal amount.
- E-Gift (optional): Ackroo provides an application for the Merchant to host E-Gift purchasing on the Merchant’s website. Merchant provides their PayPal account, or other Ackroo supported account information, for processing E-Gift purchases; Ackroo charges the applicable monthly fee for this service that is outlined in the Merchant Agreement. The Merchant pays PayPal, or other Ackroo supported payment processors, their associated fees directly. The monthly Ackroo Anywhere invoice will reflect the chargeable e-Gift Ackroo fees.
- PhotoGiftCardMall Kiosk(optional): Ackroo provides a kiosk on photogiftcard.com for Merchants that opt to sell standard cards or custom photo cards via Ackroo’s PhotoGiftCard mall. Ackroo also provides an optional PhotoGiftCard application for the Merchant to host on the Merchant’s website. Merchant will provide standard cards and/or blank cards to Ackroo for distribution. Merchant may also provide Ackroo with cardholders for distribution, if desired. Ackroo charges a 10% commission of funded amounts to cover both processing fees and handling. Ackroo provides a direct deposit to the Merchant for the funded amount minus commission and applicable taxes. The direct deposit is calculated at the beginning of each month and deposited within 45 days of the month following the month of transactions.
- API License: Ackroo grants Merchant or Merchant affiliate, a non-transferable license to use the Ackroo Application Programing Interface (API) in order to integrate the Ackroo platform to other software platforms. With this license comes access to Ackroo’s sandbox environment and SDK along with up to 8 hours of development support from Ackroo. This fee is charged up front once access is granted.
- Term and Termination: At the end of the Initial Term, the Agreement shall automatically renew for a successive 12 month period, or as otherwise set forth in Agreement (each “Renewal Term”) unless terminated earlier as provided for herein, or for convenience by either Party upon 30 days written notice prior to the end of the Initial Term or a Renewal Term. Upon the occurrence of any of the following events of default during the Initial Term or a Renewal Term, the non-defaulting Parties shall have the right to cancel and terminate this Agreement forthwith upon written notice to the defaulting Party: (a) the insolvency of Ackroo or Merchant or the institution of voluntary or involuntary proceedings in bankruptcy or under any other insolvency law, or any arrangement with creditors or corporate reorganization or receivership or dissolution of Ackroo or Merchant; or (b) material breach of this Agreement if not remedied to the satisfaction of the non-breaching Party within fifteen days of notice of the breach.
- Termination Fee: Early cancellation fees are calculated as follows: The Termination Fee is the minimum of the remaining contract months per: (a) the initial Agreement program fee; or, (b) a downgrade fee + the current advertised minimum program fee per month.
- Canadian Anti-Spam Legislation (CASL): The option for cardholders to unsubscribe is presented to the cardholder at the time the account is registered by the cardholder or merchant on behalf of the cardholder. This information is available to the Merchant and must be abided by in accordance with CASL. Ackroo will not be held liable for any Merchant that is not compliant with CASL.
- Publicity: Merchant agrees that Ackroo may use Merchant’s name and brand marks in lists of Ackroo customers, press releases, and other public promotional materials.
- Restrictions: Merchant shall use the Services solely for its own internal business purposes. Merchant shall use commercially reasonable efforts to make sure a third party does not: (a) sell, resell, lease etc., the Services to a third party; (b) attempt to reverse engineer the Services or any component; (c) attempt to create a substitute or similar service through use of, or access to, the Services.
- Representations and Warranties: Each Party represents that it has full power and authority to enter into the Agreement. Each Party warrants that it will comply with all laws and regulations applicable to its provision, or use, of the Services, as applicable. Ackroo warrants that it will make commercially reasonable efforts to maintain the continuous availability of the Services.
- Disclaimers: TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, NEITHER PARTY MAKES ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NONINFRINGEMENT. ACKROO MAKES NO REPRESENTATIONS ABOUT ANY CONTENT OR INFORMATION MADE ACCESSIBLE BY, THROUGH OR WITHIN THE SERVICES.
- Limitation of Liability: NEITHER PARTY OR ITS RESPECTIVE AGENTS, SUPPLIERS, AND SUBCONTRACTORS WILL BE LIABLE UNDER THIS AGREEMENT FOR LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE. NEITHER PARTY MAY BE HELD LIABLE UNDER THIS AGREEMENT FOR MORE THAN THE AMOUNT PAID BY MERCHANT TO ACKROO HEREUNDER DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY. These limitations of liability apply to the fullest extent permitted by applicable law but do not apply to breaches of confidentiality obligations, violations of a Party’s intellectual property rights by the other Party, or indemnification obligations.
- Intellectual Property Rights: Except as expressly set forth herein, this Agreement does not grant either Party any rights, implied or otherwise, to the other’s content or intellectual property. Merchant shall own all right, title and interest to the Merchant Data. Ackroo shall own all right, title and interest in and to any data entered into the Services by an end user.
- Indemnification: Merchant will indemnify, defend, and hold harmless Ackroo and its Affiliates from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a third party claim regarding Merchant’s use of the Services (including claims of breach of privacy) or material breach of this Agreement.
- Trademarks: Ackroo retains all right, title, and interest in and to its trademarks, service marks, and trade names worldwide. Merchant may only use Ackroo trademarks, service marks, and trade names with the express permission of Ackroo.
- Notices: Unless specified otherwise herein, (a) all notices must be in writing and addressed to the attention of the other Party’s legal department and primary point of contact and (b) notice will be deemed given: (i) when verified by written receipt if sent by personal courier, overnight courier, or when received if sent by mail without verification of receipt; or (ii) when verified by automated receipt or electronic logs if sent by facsimile or email.
- Assignment: Neither Party may assign or transfer any part of this Agreement without the written consent of the other Party, except to an Affiliate, but only if: (a) the assignee agrees in writing to be bound by the terms of this Agreement; and (b) the assigning Party remains liable for obligations incurred under the Agreement prior to the assignment. Notwithstanding the foregoing, either Party may freely assign this Agreement with notice to the other Party in connection with any merger or acquisition or sale of all or substantially all of its assets or stock. Any other attempt to transfer or assign is void.
- Force Majeure: Neither Party will be liable for inadequate performance to the extent caused by a condition (ie. natural disaster, act of war or terrorism, riot, labor condition, governmental action, or internet disturbance) that was beyond the Party’s reasonable control.
- Severability: If any provision of this Agreement is found unenforceable, the balance of the Agreement will remain in full force.
- Governing Law: This Agreement is governed by the laws of the Province of Ontario. The Parties attorn to the exclusive jurisdiction of the federal and provincial courts in the Province of Ontario over any matters arising out of this Agreement.
- Survival: The following sections will survive expiration or termination of this Agreement: Section 2, 5, 6, 11, 12, 13, and 14.
- Entire Agreement: This Agreement, and all documents referenced herein, is the Parties’ entire agreement relating to its subject matter and supersedes any prior or contemporaneous agreements.
Last updated: May 2016