MERCHANT TERMS AND CONDITIONS
Effective date 05/11/2016
These Merchant Terms and Conditions (the “Terms and Conditions”) govern and are incorporated into the Buddy Drinks Merchant Agreement between Buddy Drinks and Merchant (collectively, the "Agreement"). Buddy Drinks, subject to the provisions of this paragraph, may amend the Agreement in its sole discretion and at any time. The most recent version of the Terms and Conditions will be available on the Buddy Drinks’ website. Merchant agrees that either or both of these notification methods constitute adequate notice to inform Merchant of any amendments to the Agreement and Merchant further agrees to be bound by any such amendments to the Agreement upon such notification.
- Buddy Drinks is authorized to review Merchant's credit history, which may include a soft credit check.
- Buddy Drinks shall make payments to Merchant every two weeks, subtracting the percentage of the transactions that Buddy Drinks is owed for its fees.
- Taxes Generally. It is Merchant's responsibility to determine what, if any, taxes apply to the payments Merchant makes or receives, and it is Merchant’s responsibility to collect, report and remit the correct tax to the appropriate tax authority. Buddy Drinks is not responsible for determining whether taxes apply to Merchant’s transaction with either customers or Buddy Drinks, or for collecting, reporting or remitting any taxes arising from any transaction with or by Merchant and customer. Merchant may be asked to provide Buddy Drinks with a valid Tax Identification Number for tax reporting purposes. Notwithstanding anything else in this Agreement, Merchant shall be, and will remain, registered for sales, use and other similar tax collection purposes in all states and localities in which Merchant is required to be so.
- Transaction Taxes. Merchant bears sole financial responsibility for any and all sales, use, excise, general , or other similar taxes, including any interest penalties and additions related thereto, imposed on or arising from the subject to this Agreement between Buddy Drinks and Merchant (“Transaction Taxes”), if any. Buddy Drinks shall apply the applicable Transaction Tax to the amounts it retains and/or other fees remitted to Buddy Drinks pursuant to this Agreement. Transaction Taxes are calculated using the Merchant’s billing address and will be included on invoices. Tax rates are subject to change. If applied, Transaction Taxes will be calculated at the time of each payment using the rates in effect under current law.
- Withholding Taxes. Buddy Drinks may be required by tax authorities to withhold taxes on behalf of Merchant. Buddy Drinks reserves the right to deduct any such taxes from amounts due to Merchant and to remit them to the appropriate tax authority. Buddy Drinks may also be required to report the withholding tax payments to the tax authorities. Buddy Drinks shall provide evidence of payment of withholding taxes to Merchant no later than 60 days after payment of the withholding taxes.
2. Customer Data Restrictions
- "Customer Data" means all identifiable information about customers generated or collected by Buddy Drinks or Merchant, including, but not limited to, customers' name, email addresses, phone numbers, customer preferences and tendencies, and financial transaction data.
- Merchant shall immediately notify Buddy Drinks if Merchant becomes aware of or suspects any unauthorized access to or use of Customer Data or any confidential information of Buddy Drinks, and shall cooperate with Buddy Drinks in the investigation of any breach and the mitigation of any damages. Merchant will bear all associated expenses incurred by Buddy Drinks to comply with applicable laws (including, but not limited to, any data breach laws) or arising from any unauthorized access or acquisition of Customer Data while such data is in Merchant's reasonable possession or control. Upon termination or expiration of this Agreement, Merchant shall, as directed by Buddy Drinks, destroy or return to Buddy Drinks all the Customer Data in Merchant's or any agent of Merchant's possession.
3. Term and Termination
- This Agreement will continue in effect until terminated by either party in accordance with this Section ("Term"). Buddy Drinks is authorized to terminate this Agreement, at any time for any reason, upon 30 business days’ written notice to Merchant. Merchant is authorized to terminate this Agreement upon 30 business days’ prior written notice to Buddy Drinks. Provisions in this Agreement that are intended to survive termination will continue in full force and effect after the Term.
4. Intellectual Property Rights
- Merchant grants to Buddy Drinks a non-exclusive, worldwide, royalty free, paid-up, perpetual, irrevocable, transferable and sub-licensable license and right to use, modify, reproduce, sublicense, publicly display, distribute, broadcast, transmit, stream, publish and publicly perform: (a) Merchant's name, logos, trademarks, service marks, domain names, and any audiovisual content, video recordings, audio recordings, photographs, graphics, artwork, text and any other content provided, specified, recommended, directed, authorized or approved to use by Merchant (collectively, "Merchant IP"); and (b) any third party's name, logos, trademarks, service marks, domain names, audiovisual recordings, video recordings, audio recordings, photographs, graphics, artwork, text and any other content provided, specified, recommended, directed, authorized or approved for use by Merchant (collectively, "Third Party IP"), in each case in connection with the promotion and resale of the goods and services in all media or formats now known or hereinafter developed ("License"). Any use of the Merchant IP or Third Party IP as contemplated in this Agreement is within Buddy Drinks' sole discretion.
- Merchant acknowledges and agrees that, as between the parties, Buddy Drinks owns all interest in and to its App, Customer Data, Buddy Drinks’ trade names, logos, trademarks, service marks, domain names, social media identifiers, all data collected through or from the App, all audiovisual content, video recordings, audio recordings, photographs, graphics, artwork, text or any other content created by Buddy Drinks or at Buddy Drinks' direction, or assigned to Buddy Drinks, and any materials, software, technology or tools used or provided by Buddy Drinks to promote, resell or distribute the goods and services and conduct its business in connection therewith (collectively "Buddy Drinks IP"). Merchant shall not use, sell, rent, lease, sublicense, distribute, broadcast, transmit, stream, place shift, transfer, copy, reproduce, download, time shift, display, perform, modify or timeshare the Buddy Drinks IP or any portion thereof, or use such Buddy Drinks IP as a component of or a base for products or services prepared for commercial use, sale, sublicense, lease, access or distribution. Merchant shall keep the Buddy Drinks IP confidential, and shall not prepare any derivative work based on the Buddy Drinks IP or translate, reverse engineer, decompile or disassemble the Buddy Drinks IP. Merchant shall not take any action to challenge or object to the validity of Buddy Drinks' rights in the Buddy Drinks IP or Buddy Drinks' ownership or registration thereof. Except as specifically provided in this Agreement, Merchant and any third party assisting Merchant with its obligations in this Agreement, are not authorized to use Buddy Drinks IP in any medium without prior written approval from an authorized representative of Buddy Drinks. Merchant shall not include any trade name, trademark, service mark, domain name, social media identifier, of Buddy Drinks or its affiliates, or any variant or misspelling thereof, in any trademark, domain name, email address, social network identifier, metadata or search engine keyword. Merchant shall not use or display any Buddy Drinks IP in a manner that could reasonably imply an endorsement, relationship, affiliation with, or sponsorship between Merchant or a third party and Buddy Drinks. All rights to the Buddy Drinks IP not expressly granted in this Agreement are reserved by Buddy Drinks.
5. Representations and Warranties
- Merchant represents and warrants that: (a) Merchant has the right, power and authority to enter into this Agreement; (b) Merchant, if required by applicable law, is registered for sales and use tax collection purposes in all jurisdictions where Merchant's goods and services will be provided; (c) Merchant owns all interest in and to the Merchant IP and has licensing rights in (with the right to sublicense to Buddy Drinks) the Third Party IP, and has the right to grant the License stated in this Agreement; (d) the Merchant IP does not infringe, dilute, misappropriate, or otherwise violate, anywhere in the world, any patent, copyright, logo, trademark, service mark, trade name, rights in designs, or other intellectual property right or right of privacy or publicity of any third party or any applicable law, and does not and will not result from the misappropriation of any trade secret or the breach of any confidentiality obligations to any person or entity; (e) Merchant's business information and direct deposit details as provided in this Agreement, indicating where payments should be forwarded are accurate and Merchant is the authorized entity to receive the funds forwarded by Buddy Drinks; (f) Merchant is not authorized to resell, broker or otherwise disclose any Customer Data (as defined in this Agreement) to any third party, in whole or in part, for any purpose, and Merchant is not authorized to copy or otherwise reproduce any Customer Data.
- To the extent allowed under applicable law, Merchant agrees to defend, indemnify and hold Buddy Drinks, 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 breach or alleged breach by Merchant of this Agreement, or the representations and warranties made in this Agreement; (b) any claim for state sales, use, or similar tax obligations of Merchant; (c) any claim arising out of a violation of any law or regulation by Merchant or governing Merchant's goods and/or services; (d) any claim arising out of Merchant's violation of law or regulation governing the use, sale, and distribution of alcohol; (e) any claim by a customer or anyone else arising out of or relating to the goods and services provided by Merchant, including but not limited to, any claims for false advertising, personal injury, death, or property damages; (f) any claim by a customer for the Amount Paid; (g) any claim arising out of Merchant's misuse of Customer Data, or any violation of an applicable data privacy or security law. Buddy Drinks maintains the right to control its own defense and to choose and appoint its own defense counsel, regardless of the presence or absence of a conflict of interest between Buddy Drinks and Merchant; and (h) any claim arising out of Merchant's negligence, fraud or willful misconduct. Merchant's duty to defend and indemnify Buddy Drinks includes the duty to pay Buddy Drinks’ reasonable attorneys' fees and costs, including any expert fees.
- The terms this Agreement are confidential, and Merchant agrees not to disclose the terms described in this Agreement to any party (other than to its employees, parent companies, shareholders, lawyers and accountants on a strict need-to-know basis or as required by applicable public records and other law, if Merchant has taken the necessary precautions of the kind generally taken with confidential information to preserve the confidentiality of the information made available to such parties). In the event of a breach, Buddy Drinks is entitled to injunctive relief and a decree for specific performance, and any other relief allowed under applicable law (including monetary damages if appropriate).
8. Limitation of Liability
- EXCEPT FOR MERCHANT'S INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT IS EITHER PARTY LIABLE OR OBLIGATED TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST BUSINESS, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE, OR INDIRECT DAMAGES REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGES IN ADVANCE. BUDDY DRINKS'S SOLE AND COMPLETE LIABILITY TO MERCHANT FOR ANY CLAIMS IS LIMITED TO THE AMOUNT OF FEES RETAINED BY BUDDY DRINKS HEREUNDER FOR THE PRECEDING SIX(6) MONTHS AFTER FINAL CALCULATION AND RECONCILIATION OF ALL REFUNDS. THIS LIMITATION OF LIABILITY APPLIES TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF ANY LIMITED REMEDY. IN ADDITION, ANY CLAIM BY OR ON BEHALF OF A MERCHANT IN CONNECTION WITH ANY PAYMENT MADE BY BUDDY DRINKS, INCLUDING, BUT NOT LIMITED TO, CLAIMS ALLEGING THAT A MERCHANT WAS UNDERPAID, MUST BE MADE IN WRITING TO BUDDY DRINKS WITHIN NINETY (90) DAYS FROM THE DATE BUDDY DRINKS REMITS THE PAYMENT AT ISSUE. ALL CLAIMS NOT MADE IN ACCORDANCE WITH THE FOREGOING SHALL BE DEEMED WAIVED, RELEASED AND DISCHARGED BY MERCHANT.
9. Dispute Resolution
All disputes arising out of, or relating in any way to this Agreement, shall be resolved pursuant to this Dispute Resolution.
- Binding Arbitration
EXCEPT AS SPECIFICALLY STATED HEREIN, ANY DISPUTE OR CLAIM BETWEEN MERCHANT AND BUDDY DRINKS ARISING OUT OF, OR RELATING IN ANY WAY TO, THIS AGREEMENT ("DISPUTES") SHALL BE RESOLVED EXCLUSIVELY BY FINAL, BINDING ARBITRATION. BY VIRTUE OF THE AGREEMENT IN THIS SECTION 14 TO ARBITRATE, MERCHANT AND BUDDY DRINKS ARE EACH GIVING UP THE RIGHT TO GO TO COURT AND HAVE A DISPUTE HEARD BY A JUDGE OR JURY (EXCEPT AS OTHERWISE SET FORTH IN THIS SECTION 14).
The provisions of this Section 14 shall constitute Merchant’s and Buddy Drinks’ written agreement to arbitrate Disputes under the Federal Arbitration Act. The arbitration will be administered by the American Arbitration Association ("AAA") and conducted before a single arbitrator pursuant to its applicable rules, including those applicable to Commercial Disputes, available at http://www.adr.org or by calling 800-778-7879. The arbitrator will apply and be bound by this Agreement, apply applicable law and the facts, and issue a reasoned award.
To begin an arbitration proceeding, Merchant or Buddy Drinks must comply with the limitations provision and submit the Dispute by making a demand for arbitration as detailed at http://www.adr.org. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. The arbitration will be conducted based upon written submissions unless Merchant requests and/or the arbitrator determines that a telephone or in-person hearing is necessary.
- Class Action Waiver
WE EACH AGREE THAT WE SHALL BRING ANY DISPUTE AGAINST THE OTHER IN OUR RESPECTIVE INDIVIDUAL CAPACITIES AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE PROCEEDING OR AS AN ASSOCIATION. IN ADDITION, WE EACH AGREE THAT DISPUTES SHALL BE ARBITRATED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. THE ARBITRATOR DOES NOT HAVE THE POWER TO VARY THESE PROVISIONS.
- No Jury Trial
If for any reason a Dispute proceeds in court: (i)Merchant and Buddy Drinks agree that the Federal Arbitration Act, the AAA rules, applicable federal law and the laws of the State of California, without regard to principles of conflicts of law, will govern this Agreement and any Disputes; and (ii) MERCHANT AND BUDDY DRINKS AGREE TO WAIVE ANY RIGHT TO A TRIAL BY JURY.
- Injunctive Relief/Attorneys' Fees
Notwithstanding anything to the contrary in this Agreement, either party may bring suit in court seeking an injunction or other equitable relief arising out of or relating to claims that the other party’s conduct may cause the other irreparable injury. In the event Buddy Drinks is the prevailing party in any Dispute, Merchant shall pay to Buddy Drinks all reasonable attorneys’ fees and costs incurred by Buddy Drinks in connection with any Dispute.
- The parties are independent contractors. Nothing in this Agreement is to 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 in any way.
- This Agreement constitutes the entire agreement between the parties relating to its subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter.
- Merchant is not authorized to transfer or assign its rights or obligations under this Agreement, whether by operation of law or otherwise, without Buddy Drinks' prior written consent. Any waiver must be in writing and signed by an authorized signatory of Buddy Drinks. Buddy Drinks is authorized to transfer or assign this Agreement 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 Merchant.
- 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.
- EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS NOR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. BUDDY DRINKS DOES NOT WARRANT OR GUARANTEE THAT THE SERVICES OFFERED ON OR THROUGH THE APP WILL BE UNINTERRUPTED OR ERROR-FREE.