Corporate Account Master Services Agreement

THIS CORPORATE ACCOUNT MASTER SERVICES AGREEMENT (“AGREEMENT”) AND THE EXHIBITS ATTACHED HERETO ARE BETWEEN GROUPGIFTING.COM, INC., A DELAWARE CORPORATION, DBA EGIFTER WITH A PRINCIPAL PLACE OF BUSINESS AT 315 MAIN STREET 2^ND FLOOR HUNTINGTON NY 11743 (“EGIFTER”) AND THE COMPANY REGISTERING FOR AN EGIFTER CORPORATE ACCOUNT (“COMPANY” or “Company”) (TOGETHER OR INDIVIDUALLY “PARTIES” OR “PARTY”) AND SHALL GOVERN THE ONGOING USE OF SERVICES.

1. SERVICES

1.1. General Services. eGifter provides its clients, such as Company, the ability to purchase digital or physical gift cards (“Gift Cards”).

eGifter will provide the Services pursuant to this Agreement and any relevant SOW during the term commencing today, and/or on the start date specified in the SOW (“SOW Effective Date”) and continuing for the period set forth therein (“Subscription Term”) or (“SOW Term”). Any modifications to an SOW will be documented and presented to Company for approval. (“Change Order”).

During the Subscription Term and as provided in this Agreement and an applicable SOW, eGifter will provide Company access to use the Subscription Service.

Company’s limited license to access and use the Subscription Service is governed by the terms of this Agreement and any  applicable SOW.

eGifter is constantly working to improve the quality of the Service and modifies the Subscription Service from time to time, including adding or deleting features and functions, in an effort to improve the user’s experience. Nothing in this Agreement shall prohibit eGifter from making such changes to the Subscription Service, provided that no such change to the Subscription Service shall materially reduce the functionality of the Subscription Service provided to Company during the Subscription Term.  eGifter reserves the right to provide some or all elements of the Subscription Service through use of third party providers.

Company may subscribe to additional features of the Subscription Service from time to time by entering into another SOW.  Such additional features of the Subscription Service shall, starting on the SOW Effective Date, be included in the Subscription Service provided and subject to fees payable under this Agreement and defined in the SOW.

1.2. Customer Support.

Unless otherwise specified in a particular Statement of Work (SOW), Company will provide Level 1 Customer Support to gift card recipients. eGifter will provide Level 2 Customer Support to Company.

In the event an issue cannot be resolved by Company’s support team, Company can contact the eGifter support team by opening a support ticket. eGifter will address the issue and provide the resolution back to Company. Company will then communicate the solution back to the gift card recipient. Gift card recipients should not be directed by Company to eGifter for support.

eGifter support is provided by email/web, where a customer or Company User can open a support ticket 24/7. Tickets are addressed by eGifter from 9 am – 6 pm ET, Monday – Friday.

1.3. Consulting Services. In addition to the Subscription Services, eGifter may provide consulting and other one-time Services (“Consulting Services”) to Company pursuant to an SOW as part of the total solution or as a separate SOW.  Fees for these Consulting Services are in addition to Company’s Subscription Service fee(s) and are payable at the start of the engagement, or as otherwise set forth in Section 2.1 or the applicable SOW.

 

2. FEES AND PAYMENT TERMS

2.1. Invoice and Payment. Company agrees to pay for all gift cards purchased in advance by funding their Deposit Account, or pay all fees as set forth in an applicable SOW. The Parties agree if any action is taken to enforce monies due hereunder, the prevailing Party shall be entitled to receive all costs of collection including all court costs and reasonable attorney’s fees.

2.2. Taxes. Company is solely responsible for the payment of all taxes, assessments, tariffs, duties or other fees imposed, assessed or collected by or under the authority of any governmental body (collectively, “Taxes”) arising from eGifter’s provision of the Services hereunder. If eGifter is required to directly pay Taxes related to Company’s use of the Services hereunder, Company agrees to promptly reimburse eGifter for any amounts paid by eGifter and any other out-of-pocket costs incurred to eGifter in connection with paying such Taxes.

3. PROPRIETARY RIGHTS

3.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, eGifter reserves all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to Company hereunder other than those expressly set forth herein. Neither Company nor any of its representatives will delete or in any manner alter the copyright, trademark, and other proprietary notices of eGifter, appearing on any eGifter application or documentation.

3.3. Enhancements and Recommendations. eGifter shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Company relating to the Services. Company acknowledges and agrees that any Services incorporating such suggestions, enhancement requests, recommendations or other feedback shall be the sole and exclusive property of eGifter and all such recommendations shall be free from any confidentiality restrictions that might otherwise be imposed upon eGifter pursuant to Section 5 below.

4. GIFT CARD TERMS

Company agrees to abide by the Gift Card Terms located at the following link – https://egifterrewards.com/gift-card-terms/

5. CONFIDENTIALITY ; INTELLECTUAL PROPERTY

5.1. Each Party agrees that it may have access to confidential or proprietary, technical or business information of the other Party including but not limited to customer data, pricing, trade secrets and know how (collectively, “Confidential Information”). Both Parties recognize that there is a need for each Party (the “Disclosing Party”) to disclose to the other Party (the “Receiving Party”) certain Confidential Information of the Disclosing Party. Each Party will maintain the strict confidentiality of the Confidential Information of the Disclosing Party and will not disclose the Confidential Information to any third party and shall exercise at least the same degree of care in safeguarding the Confidential Information as it would with its own Confidential Information (in no event less than reasonable care). Furthermore, neither Party will use the Confidential Information for any purpose except those contemplated by the Parties herein relating to this Agreement.  The following shall not be deemed Confidential Information: (i) information that is or becomes publicly available through no wrongful act of the Receiving Party; (ii) information that is already known by the Receiving Party as evidenced by documentation bearing a date prior to the date of disclosure; (iii) information that is approved for release in writing by an authorized representative of the Disclosing Party; and (iv) information disclosed pursuant to a valid court order or subpoena issued by a court of competent jurisdiction to a Party, provided that such Party provides reasonable notice to the other Party to appropriately object to such disclosure.

5.2. Injunctive Relief. The Parties agree that any unauthorized disclosure of Confidential Information by the Receiving Party may cause immediate and irreparable injury to the Disclosing Party and that, in the event of such breach, the Disclosing Party will be entitled, in addition to any other available remedies, to immediate injunctive and other equitable relief, without posting a bond and without the necessity of showing actual monetary damages. The foregoing notwithstanding, Company irrevocably waives any right to enjoin or restrain the operation of the Services as a whole, or eGifter’s use of any content or other material used or displayed through the Services other than Company Confidential Information.

5.3. Intellectual Property Rights. Any third-party trademarks, service marks, names, logos, icons, copyrights and other intellectual property (collectively, “Third-Party IP”) associated with the eGifter Service are the property of such third party and may not be used by Company without the prior written consent of such third party or is made available by such third party for public use. All rights to Third-Party IP are reserved to such third party. Company agrees not to post, distribute, reproduce, or sell in any way, any Third-Party IP without legal authorization. eGifter does not provide any warranty as to the use of any Third-Party IP, content, service, or product.

The eGifter Service, eGifter Logo and other names, logos, icons and marks identifying eGifter and its products and Services are the intellectual property of eGifter (“eGifter IP”) and may not be used without the prior written consent of eGifter, which eGifter may grant or withhold in its sole and absolute discretion. All rights not expressly granted in this Agreement are reserved to eGifter. Except as expressly set forth herein, by using the Service, Company agrees it will not post, distribute, reproduce, or sell in any way, any eGifter IP without legal authorization. Company agrees not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes, any aspect of the Service. eGifter retains full copyright and intellectual property ownership, rights and protection in the Service, the web site (except for Third-Party IP), including but not limited to all software, and other code. Company may not reverse-engineer, disassemble, decompile, transcribe, resell or redistribute any eGifter IP without the prior written consent of eGifter, which eGifter may grant or withhold in its sole and absolute discretion. Company acknowledges that it does not acquire any ownership rights in any eGifter IP. With the exception of Company content and any Third-Party IP, all content of this Service is owned by eGifter. All rights are reserved.

5.4. Security.  eGifter acknowledges and agrees that eGifter will provide an SSAE 16 Type 1 or Type 2 report from eGifter’s host provider upon request of Company, which as of the date hereof is Amazon. In the event eGifter fails to provide its host provider’s SSAE 16 report, eGifter will (a) promptly notify Company of such failure, and (b) use commercially reasonable steps to ensure a reasonable remediation plan is in place no later than ninety (90) days following such notification.

6. WARRANTIES; DISCLAIMERS

6.1. Each Party represents and warrants that it has the power and authority to enter into this Agreement. eGifter warrants to Company that Services provided to Company will be performed in a competent and workmanlike manner in conformance with generally accepted industry standards. eGifter warrants that it will use commercially reasonable efforts to ensure the Services will be free of any unauthorized programs or devices developed to disable or to erase, damage or corrupt software, hardware or data detectable by means of commercially-available virus-detection software.

6.2. PCI Compliance Standards. eGifter represents and warrants that as of the Effective Date of this Agreement, and continuing annually thereafter, it shall maintain compliance with the PCI Compliance Standards and any applicable rules of a network.  Upon Company’s request, eGifter shall provide evidence of such compliance.

6.3 THE WARRANTIES EXPRESSLY SET FORTH IN SECTION 6.1 AND 6.2 ARE THE SOLE AND EXCLUSIVE WARRANTIES GIVEN BY EGIFTER AND, TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, EGIFTER MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, AND EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, GOOD TITLE, SATISFACTORY QUALITY AND NONINFRINGEMENT.

6.4. EXCEPT AS EXPRESSLY SET FORTH HEREIN, EGIFTER DOES NOT WARRANT THAT THE EGIFTER SERVICES WILL MEET COMPANY’S SPECIFIC NEEDS, ACHIEVE A PARTICULAR MARKETING OR OTHER BUSINESS RESULT, OR ARE ERROR FREE, THAT COMPANY CONSUMERS OR OTHER USERS OF THE SERVICE WILL BE ABLE TO ACCESS OR USE THE EGIFTER SERVICES WITHOUT PROBLEMS OR INTERRUPTIONS, OR THAT THE SERVICES ARE NOT SUSCEPTIBLE TO INTRUSION, ATTACK OR COMPUTER VIRUS INFECTION.

7. INDEMNIFICATION

7.1. Indemnification by eGifter. eGifter will indemnify Company for any damages, costs and expenses (including reasonable attorneys’ fees) arising out of any third-party claim, suit or proceeding alleging that Company’s use of the eGifter Services in accordance with the terms and conditions of this Agreement infringe a third party’s United States copyright or patent issued as of the Effective Date. The foregoing obligation shall not apply with respect to a claim of infringement if such claim arises out of (i) use of the Services in combination with any software, hardware, network or system not supplied by eGifter where the alleged infringement relates to such combination, (ii) any modification or alteration of the Services (other than by eGifter), (iii) if Company continues the allegedly infringing activity after being informed of modifications that would have avoided the alleged infringement, or (iv) Company violation of applicable law or the rights of third parties. If any claim has occurred, or in eGifter’s determination is likely to occur, eGifter may, in its sole discretion and at its option and expense (a) obtain for Company the right to use the allegedly infringing item, (b) substitute a functionality equivalent, non-infringing replacement for such item, (c) modify such item to make it non-infringing and functionally equivalent, or (d) terminate the Agreement and refund to Company fees paid by Company to eGifter for the infringing items in an amount pro-rated to reflect the period of time between the date Company was unable to use the Service due to such claim and the remaining days in the current Subscription Term.

7.2. Indemnification by Company. Company will indemnify eGifter for any damages, costs and expenses (including reasonable attorneys’ fees) arising out of (i) any third-party claim, suit or proceeding alleging that the Company is infringing any trade secret, trademark, copyright, or patent issued as of the Effective Date of any third party; or (ii) Company’s unauthorized use of any Third-Party IP (iii) Company’s unauthorized use of any eGifter IP, or (iv) any breach of this Agreement.

7.3. Notice. The Parties’ indemnification obligations under this section 7 are contingent upon the indemnified Party (i) giving prompt written notice to the indemnifying Party of any claim under this section, (ii) giving the indemnifying Party sole control of the defense or settlement of such claim, and (iii) cooperating in the investigation and defense of such claim. The indemnifying Party shall not settle or consent to an adverse judgment in any such claim that adversely affects the rights or interests of the indemnified Party or imposes additional obligations on the indemnified Party, without the prior express written consent of the indemnified Party. The rights and remedies set forth in this section are subject to the limitations and exclusions set forth in section 8 below, and are the sole obligations of the indemnifying Party and exclusive remedies available to the indemnified Party in the event of an applicable third party claim.

8. LIMITATION OF LIABILITY

8.1. LIMITATION OF LIABILITY. EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS OF EACH OF THE PARTIES, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY COMPANY TO EGIFTER HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE AMOUNT PAID BY COMPANY TO EGIFTER HEREUNDER IN THE 6 MONTHS PRECEDING THE INCIDENT. THE FOREGOING SHALL NOT LIMIT COMPANY PAYMENT OBLIGATIONS UNDER SECTION 2 (FEES AND PAYMENT TERMS).

8.2. EXCLUSION OF CONSEQUENTIAL AND RELATED DAMAGES.

IN NO EVENT WILL EGIFTER (INCLUDING, WITHOUT LIMITATION, ITS AFFILIATES, AND ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS) BE LIABLE TO COMPANY OR TO ANY THIRD PARTY FOR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, COVER, OR PUNTITIVE DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS, LOSS OF DATA, BUSINESS INTERUPTION OR OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR IN ANY WAY RELATED TO THE SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY EVEN IF EGIFTER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9. TERM AND TERMINATION.

9.1. Term. The Term of this Agreement will commence on the Effective Date and will continue for an initial term of three (3) years (“Initial Term”), unless terminated per an SOW or this Agreement.  At the end of the Initial Term, this Agreement shall automatically renew for additional one (1) year terms unless cancelled in writing at least thirty (30) days in advance of such renewal date.

9.2. Termination for Cause. This Agreement may be terminated at any time as follows: (a) by a Party that has not breached or defaulted in the performance of its obligations under this Agreement upon written notice to the Party that has breached or defaulted in the performance of its obligations under this Agreement, provided such breach or default is not cured or substantially cured within fifteen (15) days of such notice; (b) by either Party if the other Party makes a general assignment for the benefit of creditors, files a voluntary petition in bankruptcy or for reorganization or arrangement under the bankruptcy laws, or if a petition in bankruptcy is filed against the other Party, or if a receiver or trustee is appointed for all or any part of the property or assets of the other Party; or (c) by a written Agreement executed by both of the Parties.

9.3. Effect of Termination. Upon termination of this Agreement, all Services granted under this Agreement shall terminate immediately. Company agrees to pay eGifter all fees due up to the date of termination or expiration of this Agreement or any such SOW.

10. SURVIVAL

Except to the extent expressly provided to the contrary herein, Sections 2 through 11 shall survive the Termination of this Agreement.

11. GENERAL

11.1. Relationship. The relationship between the Parties is non-exclusive and does not constitute any joint venture between the Parties. The relationship between the Parties created by this Agreement is that of independent contractors.

11.2. Compliance. Company shall comply with this Agreement and all applicable laws, rules, and regulations including, without limitation, any Gift Card laws and all applicable federal, state, province, or other applicable regional authority, and local advertising, marketing, promotional Gift Card and trade practices laws, rules, regulations, codes and ordinances.

11.3. Force Majeure. Except for performance of a payment obligation, neither Party shall be liable under this Agreement for delays, failures to perform, damages, losses or destruction, or malfunction of any equipment, or any consequence thereof, caused or occasioned by, or due to fire, earthquake, flood, water, the elements, labor disputes or shortages, utility curtailments, power failures, explosions, civil disturbances, governmental actions, shortages of equipment or supplies, unavailability of transportation, acts or omissions of third parties, or any other cause beyond its reasonable control (“Force Majeure”). If the Force Majeure continues for more than thirty (30) calendar days, then either Party may terminate the Agreement for convenience upon written notice to the other Party.

11.4. Modification and Waiver. Except for eGifter’s modification or update of the Agreement as necessary to comply with applicable laws, rules or government regulations, no modification of this Agreement, and no waiver of any breach of this Agreement, shall be effective unless in writing and signed by both Parties. No waiver of any breach of this Agreement, and no course of dealing between the Parties, shall be construed as a waiver of any subsequent breach of this Agreement.

Notwithstanding anything to the contrary, unless otherwise agreed to by the Parties, when required by law, statute, regulation court or other legally binding ruling, settlement or other document or industry trade association standard, (such as Payment Card Industry Data Security Standards, PCI DSS),  (hereinafter “Laws”), eGifter reserves the right to modify or discontinue, either temporarily or permanently, the Services (or any part, terms or conditions thereof) necessary to comply with such Laws by providing as much time as possible, but in no event less than thirty (30) days prior written notice to Company of such intent, unless Laws dictate a shorter timeline.  Company agrees that eGifter shall not be liable to Company or to any third party for any necessary modification, suspension or discontinuance of the Services due to the change in the Laws, provided that eGifter has taken or attempted to take, all reasonable actions to comply with such Laws in a manner that would enable the continued business between the Parties as set forth in this Agreement.  If a new law materially reduces the Services provided herein, Company may terminate this Agreement upon thirty (30) days written notice to eGifter, provided that if Company does not provide such notice within thirty (30) days after the new Law is in effect then Company waives its right to terminate under this clause.

11.5. Entire Understanding. This Agreement (including any SOW, Change Order or other documents incorporated by reference herein) states the entire understanding between the Parties with respect to its subject matter, and supersedes all prior proposals, click-to-agree agreements, marketing materials, negotiations and other written or oral communications between the Parties with respect to the subject matter of this Agreement. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any SOW, the Terms of such exhibit, addendum or SOW shall prevail.

11.6. Governing Law and Venue. This Agreement shall be governed by and construed under the laws of the State of Delaware. The Parties agree that the state and federal courts located in Wilmington, Delaware, will have exclusive jurisdiction to adjudicate any dispute relating to this Agreement. Each Party hereby irrevocably consents to the exclusive jurisdiction of such courts. Regarding any liability arising out of a violation of regional privacy laws, the Parties agree that U.S. privacy laws, and not the privacy laws of any other jurisdiction apply, unless otherwise agreed in writing by the Parties.

11.7. Assignment. Neither Party may assign this Agreement without the express written consent of the other Party, such consent not to be unreasonably withheld. Notwithstanding the foregoing, either Party may assign this Agreement in its entirety (including all SOWs), without consent of the other Party, to its affiliate or in connection with a merger, acquisition or sale of all or substantially all of its assets.

11.8. Notices. Except for email notifications as permitted hereunder, all other legal notices required to be sent hereunder shall be in writing and shall be deemed to have been given upon (i) the date sent by confirmed facsimile or email, (ii) on the date it was delivered by courier, or (iii) if by certified mail return receipt requested, on the date received, to the addresses set forth on the relevant SOW. All communications and notices to be made or given pursuant to this Agreement shall be in the English language.

11.9. Severability. All clauses and covenants contained in this Agreement are severable and in the event any of them are held to be invalid by any court, such clause or covenant shall be valid and enforced to the maximum extent as to which it may be valid and enforceable, and this Agreement will be interpreted as if such invalid clauses or covenants were not contained herein.