Last updated on Wednesday, December 30, 2020
Giftboard, Inc. d/b/a ItsOnMe d/b/a Gift Local (“the Company”, below) is a Delaware Corporation with its principal place of business in Las Vegas, Nevada.
The Company operates itson.me, giftlocal.com and other related websites, including but not limited to merchant.itson.me and partner.giftlocal.com (“Merchant Tools”, below) and may also operate the ItsOnMe Mobile App (collectively, “the Platform”, below).
Through the Platform the Company provides a Merchant website-based eGifting services (“the ItsOnMe Service” or “ItsOnMe” and “the Gift Local Service” or “Gift Local”), a network-based eGifting service (“the Gift Local Network”), and business-to-consumer promotional gifting services (“the Birthday Gift Service” or “the Birthday Gift Program”) and (“the Promotional Gift Service” or “the Promotional Gift Program”).
Merchant (“Merchant”, below) is the business entity operating the retail hospitality location(s) identified by the information entered into the Merchant Location Information fields in Merchant Tools (“Merchant Location(s)”, below).
Gift voucher(s) (“Gift Voucher(s)”) are alphanumeric gift codes presented by a customer on a customer’s mobile device to a server or cashier at a Merchant Location. Gift Vouchers may be for a specific dollar amount or for one or more specific item(s).
As part of the ItsOnMe and Gift Local Services, users of the Platform may purchase Gift Voucher(s) for use as payment in Merchant Location(s) (and only in Merchant Location(s)).
As part of the Birthday Gift and Promotional Gift Services, Merchants can provide Gift Vouchers to consumers redeemable for promotional items in Merchant Location(s).
Valid form of payment. Merchant will accept Gift Vouchers for the GiftBoard Service(s) in which Merchant is enrolled as a form of payment in Merchant Location(s).
a. If a customer presents a Gift Voucher for a specific value for payment in Merchant Location(s), Merchant’s staff will validate and accept the Gift Voucher as payment for the full amount of the voucher;
b. If a customer presents a Gift Voucher for a specific item for payment in Merchant Location(s), Merchant’s staff will validate and accept the Gift Voucher as full payment for a valid item, even in the event that the price of an item has increased since the purchase of the Gift Voucher;
c. Merchant agrees that in the event a menu item which is the subject of a valid Gift Voucher is out of stock or discontinued (or for any other reason that the staff determines, in its reasonable discretion, is likely to maximize customer satisfaction) that staff at Merchant Location(s) will accept the Gift Voucher for an item of comparable quality and value, or apply the value of the item to another menu item or items.
Merchant Responsibilities. Merchant will use reasonable commercial efforts to support the use of the Platform in the Merchant Location(s), including but not limited to:
a. create and maintain staff awareness in Merchant Location(s) that Merchant is using and promoting the use of the Platform;
b. train staff in Merchant Location(s) on the use of the Platform and the redemption process;
c. display promotional materials, including window clings; display such materials no less prominently than material from other third-party on-line services;
d. For Merchants utilizing the ItsOnMe gifting service, enable and display the Platform’s gifting widget in a prominent location on the home page of Merchant Location’s website and no less prominently than other third-party on-line services;
a. Payments by consumers. The Company will utilize the Platform to accept and process payment by consumers for the purchase of ItsOnMe and Gift Llocal Gift Vouchers.
b. Payments to Merchant
i. For Gift Vouchers purchased as part of the ItsOnMe Service, the Company will pay to Merchant 95% of the gift amount associated with a Gift Voucher.
ii. Payments described in this section shall be made via ACH transfer to the bank account whose information is maintained by Merchant in Merchant Tools. Merchant is responsible for entering and maintaining current account information in Merchant Tools or ensuring that such information is provided to a Company representative for entry. Payment for transactions occurring from the 1st to the 15th of a given month will be initiated on the 20th of the same month (or the first business day thereafter). Payment for transactions occurring from the 16th to the last day of a given month will be initiated on the 5th of the following month (or the first business day thereafter). ACH transfers may take 3-5 business days to process. For cancellations, refunds, charge backs or errors occurring after a period for which Merchant has been paid, Company may deduct from future payments amounts previously paid in connection therewith.
c. Payment to the Company
The annual per location fee for the ItsOnMe Service is $300 per year. The fee becomes due once a Merchant Location records $3,000 in gross gift voucher sales in a calendar year. For Merchants selling Gift Vouchers redeemable at multiple Merchant Locations, an amount equal to the annual per location fee shall become due each time a Merchant accrues gross gift voucher sales equal to any multiple of the threshold amount. The maximum annual amount payable under this section by such a Merchant is equal to the total number of Merchant Locations multiplied by the annual per location fee amount. The amount of the fee will be deducted from the payments to be made Merchant (described in §3.b.i).
No Special Privileges. A Gift Voucher is a valid form of payment and nothing more than a valid form of payment. That is, a patron in possession of a Gift Voucher remains subject to any and all restrictions to which other patrons in Merchant Location(s) are subject, including but not limited to applicable dram shop laws and other local, state or federal laws governing retail food and beverage service in general and alcohol service specifically. It is solely the responsibility of the Merchant to enforce any applicable laws, rules or regulations.
POS Integration. The terms of this paragraph are applicable only to Merchants who utilize the Company’s POS integrated redemption process.
a. POS Integration will be provided through third-party software and services (“Integration Partners”).
b. Merchant will provide the Company, the Company’s Integration Partners and their agents whatever access is necessary to Merchant’s’ business systems in order to install new software and configure existing software in order to enable integration between Merchant’s POS and the Platform. Merchant hereby authorizes the Company, its Integration Partners and their agents to access Merchant’s business systems for the purpose of performing said installation and configuration.
c. Merchant will not be responsible for any costs related to the installation and configuration process incurred by the Company or its Integration Partners, unless such cost is agreed upon in writing by the Company and Merchant. Neither the Company nor its Integration Partners will be responsible for any such cost incurred by Merchant, unless such cost is agreed upon in writing by the Company and Merchant. Neither the Company nor its Integration Partners will be liable to Merchant for any mistakes, errors or omission that might occur during the installation and configuration process, or for any damages arising from any mistakes, errors or omissions.
d. Merchant hereby grants to the Company: (a) a non-exclusive, worldwide, royalty-free, fully paid up, sublicenseable (through multiple tiers), transferable right and license, during the Term, to copy, distribute, display and create derivative works of and otherwise use the Data solely to exercise its rights and perform its obligations under this Agreement; and (b) a non-exclusive, perpetual, worldwide, royalty-free, fully paid up, sublicenseable (through multiple tiers), transferable right and license to copy, distribute, display and create derivative works of and otherwise use the Data for the Company’s business purposes; provided, that, the Company and its business partners may only share the Data with third parties to the extent such Data is aggregated and/or anonymized such that the identity of Customer, its Permitted Sublicensees and/or its individual patrons cannot be determined by such third parties.
a. Merchant, and not the Company, is solely responsible for any loss to Merchant caused by Merchant’s failure to maintain current information in the Merchant Tools.
b. Neither the Company nor Merchant shall be liable to the other for any special, incidental or consequential damages.
c. Merchant will hold harmless the Company from any cause of action directly or indirectly arising from Merchant’s service of food, non-alcoholic beverages or alcoholic beverages to Merchant’s customers and Merchant will indemnify the Company for any liabilities and legal fees and costs incurred by the Company arising from any such cause of action.
d. The Company will hold harmless from and indemnify Merchant for any liabilities and legal fees and costs incurred by Merchant arising from any security breach or data loss occurring on servers controlled or operated by the Company.
THE COMPANY MAKES NO WARRANTIES TO MERCHANT WITH RESPECT TO THE PLATFORM AND DISCLAIMS ALL IMPLIED WARRANTIES.
a. Either party may terminate this Agreement at any time by providing not less than thirty (30) days written notice to the other party. Written notice may be by letter, fax or email.
b. Upon the termination of this Agreement, the Company shall cease displaying Merchant’s products in Platform and Merchant’s responsibilities under paragraph 2 shall cease. Paragraphs 1, 3, 4, 5, 6, 7 and 9 shall remain in full force and effect. In the event Merchant has received payment for any unredeemed Gift Vouchers, Merchant shall, upon termination, return such proceeds to the Company for the sole purpose of allowing the Company to provide a credit or item of comparable value to any customer holding Merchant’s unredeemed Gift Voucher.