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HomeMy WebLinkAboutContracts & Agreements_232-2022Community Card Customer Agreement THIS AGREEMENT (the "Agreement") is made effective as of November 1, 2022 (the "Effective Date') by and between Yiftee Inc., a Delaware corporation, with an address at 325 Sharon Park Drive i#215, Menlo Park, CA 94025 ("Yiftee") and City of Redlands, a municipal corporation and general law city with an address at 35 Cajon Street, Suite 200, Redlands, CA 92373 ("Customer"). The parties agree a follows: 1. Definitions. 1.1 "Merchant" means a merchant, prospect or other contact that may be using or desire to use Yiftee Services to redeem eGifts. 1.2 "Participant" means a Merchant who has opted to participate in a Community Card by running an Activation Card and agreeing to the Merchant Agreement. 1.3 "Yiftee Services" means Yiftee's gift -giving platform. It is the technology foundation for Community Cards. 1.4 "Purchaser" means a person or entity that purchases or redeems eGifts. 1.5 "eGift" means a digital virtual gift voucher used as payment for goods or services at a Participant. 1.6 "Offer" or "Offers" mean specific benefits that Participants provide to consumers who use their Community Cards in their store, as determined by the Participants and posted on their eGift Card web page. 1.7 "Chargeback" means a purchase that has been disputed by the person who owns the credit card used to purchase an eGift. Chargebacks cause the amount of the purchase to be refunded to the cardholder out of Yiftee's bank account and often also include an associated fee. 2. Merchant Enrollment. 2.1 Merchant Enrollment Obligations (a) Customer will collect a set of Merchants who have elected to participate in the Yiftee Services. Merchants must all be located in the same state in the USA, due to varying gift card laws by state. Each Merchant must agree to the Yiftee Merchant Agreement located on the Yiftee.com website. Merchants who have not agreed to the Merchant Agreement will not be able to utilize the Yiftee Services to redeem eGifts. Customer will upload into the Yiftee Services or provide the names of the Merchants who intend to participate to Yiftee. Upon the agreed upon launch date, the billing for the Yiftee Services will begin ("Commencement Date"). This billing will include the agreed -upon cost for each Participant or group thereof as defined in Appendix A. (b) Yiftee will provide to Customer or directly to Merchants, upon receipt of the set of Merchant names in 2.1a, a set of unique Activation Cards to be run by each Merchant. Customer will inform Merchants of their individual Activation Card and provide instructions on its use. Additionally, Customer will inform Merchants that running the Activation Card implies consent to the Merchant Agreement located on the Yiftee.com website. Yiftee Community Card Customer Agreement, Revised 2022-09-18 (c) As Merchants run the Activation Cards, they will be included in the set of Merchants enabled to participate in the Yiftee Services, i.e. the Participants. Participant may also post their Offers to be available for eGift Card holders who redeem gifts in their stores. (d) Yiftee will bill Customer or Merchants as described in Appendix A. Customer can add or remove Participants and fees will be adjusted accordingly, if applicable. There will be no retroactive adjustments allowed by Yiftee (that is, a cancelled Participant's billing obligation will result in that Participant's cost to Customer, as defined in Appendix A, to be eliminated beginning only on the next annual billing cycle). A Participant may be added to the list of Participants at anytime ("Enrollment Time'), with billing adjustment for said Participant to begin immediately and to be included in the current month's billing. (e) Each party shall comply with good, ethical and moral business practices and all applicable laws and regulations in engaging in any activities here under. (f) Fees and payment terms applicable to the subject matter here under shall be as set forth in Appendix A. Customer is not entitled to compensation other than what is described in Appendix A. (g) Customer is responsible and liable for any disputes or liability arising out of its relationships with Merchants and Participants, except with respect to any liability of Yiftee under this agreement. 2.2 Yiftee Materials. Yiftee may provide Customer with certain materials for use in conjunction with promotingthe Yiftee Services here under ("Yiftee Materials"). No rights or licenses, express or implied, are granted in those Yiftee Materials or otherwise, except as expressly and unambiguously set forth in this Agreement. 2.3 Limited Licenses. Subject to the terms and conditions of this Agreement, Yiftee hereby grants to Customer, a non- exclusive, non -transferable, non -assignable, non-sublicensable right and license to access and use the Yiftee Services and Yiftee Materials solely for the purposes of Customer's performance of this Agreement. 2.4 Trademark License. Subject to the terms and conditions of this Agreement, Yiftee hereby grants Customer and Customer hereby grants Yiftee a non-exclusive, non -transferable, non -assignable, non-sublicensable, royalty -free license to use Yiftee's or Customer's name, trade names, trademarks, service marks, and logos (collectively, a party's "Marks') solely in connection with Customer's and Yiftee's promotion and marketing of the Yiftee Services, subject to written usage guidelines, if any, made mutually available. 2.5 Indemnification. If a third party makes a claim against the Customer that any Customer's use of Yiftee Materials, Yiftee Marks, and/or Yiftee Services infringes such third party's intellectual property rights, Yiftee, at its sole cost and expense, will defend Customer against the claim and indemnify and hold harmless Customer from the damages, losses, liabilities, costs and expenses awarded by the court to the third party claiming infringement or the settlement agreed to by Yiftee, with the exception of any marks provided to Yiftee by Customer or any marks used by customer in advertising related to Yiftee or the Yiftee program. Yiftee Community Card Customer Agreement, Revised 2022-09-18 3. Chargebacks. When purchasing eGifts using Purchasers' credit cards or other forms of payment using the Yiftee "Order Desk" functionality, or any purchase using Customer's Community Card account with a third party credit card that is not Customer's, Customer is responsible for verifying that the Purchaser owns the payment instrument and has authority to use it for said purchase. Should Yiftee receive a Chargeback, Yiftee will attempt to cancel any outstanding value on the eGift purchased and Customer will be liable for any remaining balance and fees incurred by Yiftee. Customer is not liable for Chargebacks for gifts purchased through the normal Yiftee eGift process where Customer is not party to the gift purchase. 4. Ownership. As between the parties, Yiftee owns all right, title and interest in and to the Yiftee Services, Yiftee's Marks and the Yiftee Materials. Customer owns all right, title and interest in and to Customer's Marks. 5. Warranties Disclaimer. YIFTEE AND ITS LICENSORS MAKE NO WARRANTIES TO CUSTOMER, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING OUT OF USAGE OR TRADE, COURSE OF DEALING AND COURSE OF PERFORMANCE. 6. Liability Limitation. EXCEPT FOR LIABILITY ARISING UNDER SECTION 8, AND WITHOUT LIMITING THE INDEMNIFICATION OBLIGATION UNDER SECTION 2.5, NEITHER PARTY (NOR ITS LICENSORS) WILL BE LIABLE OR OBLIGATED WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR UNDER ANY CONTRACT, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES WHATSOEVER, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, REVENUE, DATA OR USE AND IN NO EVENT SHALL EITHER PARTY'S LIABILITY EXCEED THE AMOUNTS PAID AND/OR PAYABLE BY YIFTEE TO CUSTOMER (AND/OR BY CUSTOMER TO YIFTEE, IF PAYMENTS ARE PAYABLE BY CUSTOMER TO YIFTEE IN ACCORDANCE WITH PROPOSAL) HEREUNDER IN THE TWELVE (12) MONTH PERIOD PRECEDING THE APPLICABLE CLAIM. 7. Term and Termination. 7.1 Term. This Agreement shall be effective as of the Effective Date and shall continue in full force on an annual period from the Effective Date, and thereafter shall automatically renew annually, unless and until either party terminates this Agreement pursuant to Section 7.2. 7.2 Termination. (a) Either party may, at its option, terminate this Agreement upon thirty (30) days written notice to the other party for any reason or for no reason whatsoever. (b) Either party may terminate this Agreement if the other party materially breaches a term of this Agreement and fails to cure such breach within fifteen (15) days after receipt of written notice of such breach from the non -breaching party. (c) Participants are obligated to honor all outstanding eGifts issued by Yiftee for the entire duration of those eGift's validity periods. Termination does not relieve Participants from honoring conditions outlined in the Merchant Agreement. 7.3 Effect of Termination. Upon any termination: (a) Customer shall immediately cease all promotion of the Yiftee Services and shall immediately return to Yiftee, or at the option of Yiftee, destroy, all Confidential Information (as defined below) of Yiftee disclosed to Customer, Yiftee Materials, Yiftee Community Card Customer Agreement, Revised 2022-09-18 and any Yiftee Services, hardware and software provided to Customer here under, (b) Yiftee shall immediately return to Customer, or at the option of Customer, destroy, all Confidential Information of Customer disclosed to Yiftee here under, and (c) all licenses granted under this Agreement shall immediately cease. The following Sections shall survive termination and remain in effect 1, 2.5, 4, 5, 6, 7.3, 8 and 9. Any termination of this Agreement shall be without prejudice to any other rights or remedies available under this Agreement or at law. 8. Confidentiality. Because of this Agreement, the parties may have access to information that is confidential to the disclosing party ("Confidential Information"). Confidential Information shall include, without limitation, Purchaser lists and information relating to the parties' products and pricing, exempting this Agreement, and all information marked and expressly designated as confidential by the disclosing party at the time of disclosure. A party's Confidential Information shall not include any information which (i) becomes generally publicly available through no wrongful act or omission of the receiving party; (ii) is lawfully acquired by the receiving party from a third party without any breach of a confidentiality obligation; or (iii) is independently developed without use of or reference to the disclosing party's Confidential Information. Each party agrees to maintain the confidentiality of the other party's Confidential Information using the same degree of care that it uses with regard to its confidential information of like nature, but in no event less than reasonable care, and to protect as a trade secret any portion of the other party's Confidential Information by preventing any unauthorized copying, use, distribution, installation or transfer of possession of such information. If required by law, court order or subpoena, the receiving party may disclose Confidential Information of the disclosing party, but will give prior notice of such disclosure to the disclosing party to permit the disclosing party to intervene and to request protective orders or other confidential treatment therefor. The parties acknowledge that money damages will not be an adequate remedy if this Section 8 is breached and, therefore, either party may, in addition to any other legal or equitable remedies, seek an injunction or other equitable relief against such breach or threatened breach without the necessity of posting any bond or surety. 9. Non -solicitation During the term of this Agreement, neither party will (on behalf of itself or any other person or entity) solicit any Purchaser or Merchant of the other party to restrict, limit, or terminate such Purchaser's or Merchant's participation in the other party's products and services. 10. Miscellaneous 10.1 Notices. Any notice or other communication required or permitted in this Agreement shall be in writing and shall be deemed to have been duly given on the day of service if served personally or by facsimile transmission with confirmation, or three (3) days after mailing if mailed by First Class mail, registered or certified, postage prepaid, and addressed to the respective parties at the addresses set forth above, or at such other addresses as may be specified by either party pursuant to the terms and provisions of this section. 10.2 Assignment. Customer may not assign or otherwise transfer, without the prior written consent of Yiftee, its rights, duties or obligations under this Agreement to any person or entity, in whole or in part. Yiftee may freely assign or otherwise transfer this Agreement in connection with the sale of all of its business or assets. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Yiftee Community Card Customer Agreement, Revised 2022-09-18 10.3 Severability. Any provision of this Agreement that is determined to be unenforceable or unlawful shall not affect the remainder of the Agreement and shall be severable therefrom, and the unenforceable or unlawful provision shall be limited or eliminated to the minimum extent necessary to that this Agreement shall otherwise remain in full force and effect and enforceable. 10.4 Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes any and all prior agreements between them, whether written or oral, with respect to the subject matter hereof, and may not be amended, modified or provision hereof waived, except in a writing signed by the parties hereto. No waiver by either party, whether express or implied, of any provision of this Agreement, or of any breach thereof, shall constitute a continuing waiver of such provision or a breach or waiver of any other provision of this Agreement. 10-S Bonus Card Expiration: When the bonus card expires, Yiftee will return the unused amount to the Customer, less restocking fee which is the lesser of 10% of the original bonus card value or the remaining unused amount of the card. IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date, CITY OF REDLANDS YIFT F, INC. A municipal corporation and general law city Authorized signature: Authorized signature: Charles M. Duggan, Jr. Donna Novitsky, Yiftee CEO City Manager Attest: e ne Donaldson, City Clerk Yiftee Community Card Customer Agreement, Revised 2022-09-18 Community Card Customer Agreement APPENDIX A- Pricing Customer and Participants are not required to pay Yiftee a subscription fee or a revenue share. Purchasers pay the face value of the card plus a $1+5% of the eGift Card value eDelivery fee at the time of purchase. Bulk purchases of one thousand dollars ($1000) or more, and enterprise accounts may, at Yiftee's sole discretion, qualify for a reduced eDelivery fee by depositing funds into their Yiftee eGifting accounts by check or ACH and disabling credit cards. The ability for Customer or a sponsor to pay the eDelivery fee is available. Participants receive full value of redemptions less credit card processing fees for a card -not -present (CNP) transaction upon redemption. Yiftee does not control these fees; they are set by the Merchant Acquirer who is their credit card processor. Where permitted by law, Yiftee will implement a monthly maintenance fee on eGift Cards that have been inactive (i.e. no spending on the Card) for periods of greater than 12 consecutive months. Yiftee eGift Cards do not generally expire. Subject to applicable laws, in some cases eGift Cards given by corporations or merchants as promotions, rewards and awards may have expiration dates. In the case of eGift Cards expiring, Yiftee retains 10% of the original eGift Card value not to exceed the remaining unspent funds and refunds the balance to the purchaser's Yiftee eGift Card account. eDelivery fees are not refunded. Expiring eGift Cards do not incur maintenance fees. Participants may choose, at their discretion, to post Offers to encourage Purchasers to use their Community Cards in their stores. Participants may choose, at their discretion, to offer rebates as fund raisers to local groups such as schools, churches and other non -profits. Such programs are an incentive for the local groups to sell Community Cards to their members, and for the Purchasers to use them in specific stores who are offering rebates. Yiftee will work with the Participants and Purchasers to execute such programs. No tipping is allowed on Yiftee eGift Cards. The maximum and minimum prices of gifts are determined by Yiftee in its sole discretion. Yiftee Community Card Customer Agreement, Revised 2022-09-18