LOCAL 5 MERCHANT STANDARD TERMS AND CONDITIONS

 

Effective Date of Terms and Conditions:  July 17, 2020

 

These Local 5 Merchant Standard Terms and Conditions (the “Terms and Conditions”) are incorporated into and read in conjunction with the Local 5 Merchant Agreement between Local 5 and Merchant (the “Agreement”).  The Agreement and these Terms and Conditions shall be referred to collectively as the “Contract” between Local 5 and Merchant.  Merchant and Local 5 shall be collectively referred to as the “Parties” and each a “Party.”

 

The Agreement and these Terms and Conditions shall be read as one document.  If there is a conflict or inconsistency between the Agreement and the Terms and Conditions, the provisions of the Agreement shall control and govern.  Local 5 may amend the Terms and Conditions in its sole discretion and at any time.  The most recent version of the Terms and Conditions (as may be amended by Local 5 from time to time) will be available on Local 5’s website at www.Local5.co, or at such other website(s) as Local 5 may establish.  Merchant agrees that the posting of updated Terms and Conditions on Local 5’s website constitutes adequate notice to inform Merchant of any amendments to the Terms and Conditions and Merchant further agrees to be bound by any such amendments to the  Terms and Conditions upon such notification.  Any modification or change to the Agreement, or any term or condition contained in the Agreement, shall be unenforceable unless it is evidenced by a writing signed by an authorized signatory of each Party. 

 

Note on Definitions in Agreement:  All Definitions (defined terms) set forth in the Local 5 Agreement shall have the same meaning in these Terms and Conditions.

 

  1. Basic Authorizations and Obligations:

 

Member grants Local 5 the authority to, and Member accepts the obligations for, all of the following set forth in this Section 1:

 

  1. Local 5 is authorized to promote and offer for sale Discounts on Merchant’s behalf subject to the terms and conditions of the Agreement and these Terms and Conditions, with these Terms and Conditions located and updated on Local 5’s website at Local5.co. The Card and the phone number associated with the Card will evidence the Member’s right to receive the Discount from the Merchant.  The Card will be sent to the Member electronically.  The Member will receive the Discount upon presenting the Card to the Merchant in paper or electronic form and confirming the Member’s identification.  Merchant is the grantor of the Discount as set forth in the Agreement. 

 

  1. Local 5 is authorized to promote and sell a Discount on Merchant’s behalf through any platform, including Local 5’s website, social media pages, business partner network, marketplace, referral network, or otherwise. Further, Local 5 is authorized to use the App to support the Card and Local 5’s business; the selection of the App is solely made by Local 5, and the right to change the App at any time in Local 5’s sole and absolute discretion is authorized by Merchant.  The Discount may be offered to all or part of Local 5’s Member base or Local 5’s referral network and segmented by various variables including gender, age, location, and consumer preferences.  The features may be offered through a variety of distribution channels including but not limited to the Internet, the Website, affiliate websites, business partner network, email, mobile applications, other types of electronic offerings and other platforms or distribution channels owned, controlled, or operated by Local 5, its affiliates or business partners.  In addition, in connection with Local 5’s promotion of a Discount, Merchant authorizes Local 5 to shorten or extend any Promotional Programs that Local 5 sees fit.

 

  1. No time, date, or other limitations shall prevent a Member from applying any Discount unless specified in the Agreement. If the Merchant is open or otherwise operating during the Feature Period, then the Discount shall be applied by Merchant to a Member with a valid Card or phone number.  If Local 5, in its sole discretion, determines Merchant response times or the quality of services or goods provided to Members are unsatisfactory, Local 5 may terminate the Agreement at any time.

 

  1. Merchant grants Local 5 with authority to use Merchant’s Logo, and will provide Local 5 with an electronic version of the Logo that is compatible for Local 5’s use on the Website, social media, the App, or otherwise. 

 

  1. Local 5 must locate and affix Local 5’s adhesive sticker (“Sticker”) in a prominent place at Merchant’s entrance(s) to all Redemption Sites; the location must be outward-facing and must allow the general public outside the entrance of each Redemption Site to view Local 5’s Sticker. Local 5 reserves the right to encourage other marketing and advertising obligations, which are optional as of the Effective Date.

 

  1. The Discount shall apply to all of Merchant’s Redemption Sites unless otherwise specifically excluded in the Agreement.

 

  1. Merchant shall obtain all necessary consents to share with Local 5 the results of any survey that Local 5 may request Merchant to participate in, or to which Merchant is requested to respond.

 

  1. Merchant shall promptly notify Local 5 any time Merchant receives a complaint related to Local 5, or to any potentially criminal conduct, including allegations of sexual assault; racial, religious, gender, or other protected-class bias; or alleged engagement by any of its employees, agents or independent contractors. The obligations in this Section apply regardless of whether a Local 5 Member makes a complaint.

 

  1. Local 5 is authorized to promote and sell Cards granting the Discount in multiple countries, states, territories, channels and markets, and on dates and at times, all as selected and elected in Local 5’s sole and absolute discretion.

 

  1. Local 5 reserves the continuing right to reject, revise, or discontinue any Discount at any time and for any reason in Local 5’s sole discretion; to terminate the Discount and to remove all references to the Discount and Logo from the Website; to redirect or delete any URL that may be used in connection with the Discount; or to remove, delete or take down any other technology used in support of Local 5’s business.

 

  1. Merchant shall honor the Discount through the entirety of the Feature Period to the Expiration Date of Discount Period.

 

  1. After the Expiration Date of Discount Period, Merchant may elect to honor the Discount granted to the Member, but need not do so. If the services and/or goods entitled to the Discount are no longer available, the Merchant must always allow the Member to apply the Discount toward any services and/or goods then-offered by the Merchant in the percentage or numerical amount of the Discount.

 

  1. Partial Application of Discount. If applicable, and if a Member seeks to apply a Discount for less than the Discount amount, the Merchant is responsible for handling any unapplied Discount value as required by applicable law.

 

  1. Merchant agrees that in providing the Discount, Merchant will not inflate prices or impose any additional fees, charges, conditions or restrictions that contradict or are inconsistent with the normal, day-to-day offerings of services and/or goods offered by the Merchant. Merchant further agrees not to impose upon Members different terms, conditions, or policies than what is imposed on its non-Local 5 Members.

 

  1. Merchant agrees that so long as a reservation or appointment is made to apply a Discount, or Member has made an attempt to make a reservation or appointment before the Expiration Date of Discount Period, the Discount will be honored for the full value of the Discount, without restriction, even though the services or goods may be provided after the Expiration Date of Discount Period.

 

  1. Merchant is responsible for all customer service in connection with the Discount and for supplying all services and goods covered by the Discount. Merchant is also responsible for any customer loyalty programs associated with the Discount, if any.

 

  1. If applicable, Merchant will hold the Discount for application at every Merchant Redemption Site. A “Redemption Site” (or, if more than one, “Redemption Sites”) is the physical location where Members are able to apply the Discount and obtain the services and/or goods.  Merchant agrees to provide Local 5 with the hours and dates of operation, complete with any exceptions, and a valid phone number for the Redemption Sites.  If any of the information related to a Redemption Site changes, Merchant agrees to notify Local 5 immediately of such change.  NOTE:  If Merchant has franchised or multiple Redemption Sites, all Redemption Sites shall be included in the Discount unless specifically excluded as set forth in the Discount sub-Paragraph of the Agreement.

 

  1. Merchant agrees to accept returns of the services and/or goods in compliance with applicable laws, but in any event: (i) will accept returns of/refunds for improperly prepared, low-quality, defective or nonconforming services and/or goods in or a part of any services and/or goods at all times and pay (or reimburse a Member for) any and all costs associated with the return of such services and/or goods; and (ii) will not impose a more restrictive return policy on Members than Merchant’s regular policies as applied to Merchant’s non-Member customers in the ordinary course of Merchant’s business.

 

  1. Payment

 

  1. No payment or exchange of funds takes place between Merchant and Local 5.

 

  1. Merchant will accept the amounts received from Local 5’s Member as payment in full for all services provided by Merchant. Merchant is solely responsible for complying with any contractual requirements imposed by Merchant’s contracts with third parties (other than Members or other customers) related to the Merchant’s services, goods, or business in general (“Third Party Contractor”), including but not limited to requirements related to offering discounted services.

 

  1. Taxes in General. Merchant is responsible for all taxes of any kind related to the Discount and Merchant’s business and operations.

 

  1. Specific Tax Matters. Regarding certain specific tax matters:

 

  1. Tax Levy. In the event Local 5 receives written notice of a validly issued state or federal tax levy relating to past-due taxes owed by Merchant, Local 5 shall provide Merchant with notice and Merchant shall pay the tax levy in full.

 

  1. 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(ies).  Local 5 is not responsible for determining whether taxes apply to Merchant’s transaction with either Members or Local 5, or for collecting, reporting or remitting any taxes arising from any transaction with or by Merchant and Member.  Merchant may be asked to provide Local 5 with a valid Tax Identification Number for tax reporting purposes.  An IRS Form 1099 may be issued in Merchant’s name for the value of payments made.  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 registered in connection with the services and/or goods offered and pursuant to the terms and application of any Discount, and shall be responsible for paying any and all sales, use or any other taxes related to the Discount or the services and goods.

 

  • Transaction Taxes. Merchant bears sole and complete financial responsibility for any and all sales, use, excise, general, GST, or other similar taxes, including any interest, penalties and additions related thereto, imposed on, or arising from the transactions contemplated by this Contract between Local 5 and Merchant (“Transaction Taxes”), if any.  Local 5 shall apply the applicable Transaction Tax to the amounts Local 5 retains and/or other fees remitted to Local 5 pursuant this Contract.  Transaction Taxes are calculated using the Merchant’s billing address.  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.

 

  1. Withholding Taxes. While unlikely based upon the terms and conditions of the Contract, Local 5 may be required by tax authorities to withhold taxes on behalf of Merchant.  Local 5 reserves the right to deduct any such taxes from amounts due to Merchant and to remit them to the appropriate tax authority.  Local 5 may also be required to report the withholding tax payments to the tax authorities.  Local 5 shall provide evidence of payment of withholding taxes to Merchant no later than sixty (60) days after payment of the withholding taxes.

 

  1. Notwithstanding anything to the contrary, Local 5 will have no obligation to advance amounts to Merchant for Merchant’s obligations under this Agreement. If Local 5 believes that Merchant has breached any provision of this Contract, Local 5 is authorized to offset, setoff, delay, withhold, or suspend future payments to Merchant in addition to such other remedies as may be available under this Contract or at law, to secure payment from Merchant for any refunds and/or other amounts payable by Merchant under this Contract.

 

  1. Customer Data Restrictions

 

  1. “Customer Data” means all identifiable information about Members (including but not limited to personally identifiable information[“PII”]) generated or collected by Local 5 or Merchant, including, but not limited to, Members’ name, addresses, email addresses, phone numbers, Member preferences and tendencies, and financial transaction data.

 

  1. Merchant shall use Customer Data only to fulfill Merchant’s obligations in connection with the Discount as authorized by this Contract. Merchant expressly agrees that any Customer Data shall be used only for this purpose (including, but not limited to, the application of the Discount and provision of goods and services to Members), and not to enhance a file or list owned by Merchant, or any third party.  Merchant represents, warrants and covenants that it will not resell, broker or otherwise disclose any Customer Data to any third party, in whole or in part, for any purpose, unless required by applicable law; and if required by applicable law, Merchant shall provide Local 5 with prior written notice of and reasonable time and opportunity to contest or prevent the intended disclosure.  If Merchant engages any third party to facilitate Merchant’s obligations under the Contract or these Terms and Conditions, Merchant shall ensure that such third party implements and complies with security measures necessary to prevent improper disclosure in handling any Customer Data.  If any Customer Data is collected directly by Merchant or a third party engaged by Merchant to facilitate its redemption obligations hereunder, Merchant shall ensure that it or such third party adopts, posts and processes the Customer Data in conformity with its posted privacy policy and all applicable laws.

 

  1. As long as Merchant uses Customer Data in compliance with applicable law and Merchant’s posted privacy policy, restrictions stated in the Agreement and the Terms and Conditions on Merchant’s use of Customer Data do not apply to: (i) data from any Member who is already a customer of Merchant before the Effective Date, if such data was provided to Merchant by such Member independent of this Contract or any transaction hereunder; or (ii) data supplied by a Member directly to Merchant who becomes a customer of Merchant in connection with such Member explicitly opting in to receive communications from Merchant.

 

  1. Merchant shall immediately notify Local 5 if Merchant becomes aware of or suspects any unauthorized access to or use of Customer Data or any confidential information of Local 5, and shall cooperate with Local 5 in the investigation of such breach and the mitigation of any damages. Merchant will bear all associated expenses incurred by Local 5 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 Contract, Merchant shall, as directed by Local 5, destroy or return to Local 5 all the Customer Data in Merchant’s or any agent of Merchant’s possession.

 

  1. Mobile Redemption Devices

 

If Local 5 leases or lends Merchant a tablet or mobile redemption device (“Device”), Merchant agrees to be bound by the terms of use, end user license agreements, or other provisions governing its use, unless otherwise authorized by Local 5 in writing.  Unless otherwise stated in writing, Merchant shall only use the Device for transmitting data related to Local 5 and its Member, and shall return a loaned Device seven (7) days after the Expiration Date of Discount Period, unless a new feature is planned or if requested by Local 5 for any reason.  Local 5 reserves the right to bill Merchant for the cost of the Device, or offset any current or future payments due to Merchant under any contract between the parties if the device is not returned, or for costs related to damage or other misuse.

 

  1. Promotional Programs

In an effort to incentivize Members to frequent Merchant, Merchant authorizes Local 5, at any time and in Local 5’s sole discretion, to execute promotional efforts funded by Local 5 (any such effort, “Promotional Program(s)”).  Promotional Programs include the following, as defined in 5 a. and 5 b. of this Section below:

 

  1. On a rotational basis, highlighting (i.e. emphasizing or drawing attention to) Merchant on Local 5’s Website.

 

  1. Granting Other Promotional Programs – “Other Promotional Programs” means any other promotional programs, at no cost to Merchant, in Local 5’s sole and absolute discretion.

 

  1. NOTE: Local 5 does not guaranty any specific type, number or frequency of Promotional Programs.  The type, number or frequency of any Promotional Programs shall be implemented or occur if, as, and when Local 5 sees fit, in Local 5’s sole and absolute discretion. 

 

  1. Term and Termination

 

This Contract will continue in effect until terminated by either Party in accordance with this Section (“Term”).  Local 5 is authorized to terminate the Contract, at any time or for any reason (or no reason at all), upon written notice to Merchant.  Merchant is authorized to terminate the Agreement upon fourteen (14) business days prior written notice to Local 5; however, notwithstanding anything to the contrary, termination of the Agreement will not in any way affect Merchant’s obligation and commitment to redeem any Discount granted according to the terms of the Agreement, including the obligation to honor the Discount up to the Expiration Date of Discount Period; and, during the entirety of the Feature Period, the terms and conditions of the Agreement shall continue to apply and remain in full force and effect; and, further, the Terms and Conditions shall continue to apply during the entirety of the Feature Period and shall survive as set forth in this Section.  The terms and conditions in the Contract that are intended to survive termination will continue in full force and effect after the Term, which specifically includes but is not limited to those terms and conditions related to honoring the Discount and the Feature Period, confidentiality, privacy, protection of PII, tax, insurance, indemnity, representations and warranties, limitation of liability, and limitation of liability provisions.

 

  1. Compliance with Gift Card, Gift Certificate and Abandoned Property Laws

 

Merchant agrees to comply with all terms and conditions as stated on the Website, including but not limited to the “Terms of Use” of the Website and the App, and to ensure that the Discounts comply with all laws that govern discounts, vouchers, gift cards, coupons, and gift certificates, including but not limited to the United States Credit CARD Act of 2009 (if applicable) and any laws governing the imposition of expiration dates, service charges or dormancy fees related to the Discount.  Merchant is solely responsible for compliance with any applicable escheat or abandoned or unclaimed property laws.  Upon written request from Merchant, but only when required, Local 5 will provide Merchant with information in Local 5’s possession that the Merchant needs to comply with its obligations under this Contract.  Merchant agrees that, regardless of the payment terms, Merchant, and not Local 5, maintains any obligation for unredeemed Discounts under applicable escheat or abandoned or unclaimed property laws.

 

  1. Marketing

 

Local 5 and any of Local 5’s agents or business associates may communicate with Merchant with regard to products, promotions, and other services that may be of interest to Merchant.  This may include email or other communications.  Local 5 may also solicit Merchant’s opinion for market research purposes, and Merchant shall provide use its best reasonable efforts to provide the opinion.

 

  1. Intellectual Property Rights

 

  1. Merchant grants to Local 5 a non-exclusive, worldwide, royalty free, fully paid-up, perpetual, irrevocable, transferable and sub-licensable license and right to use, modify, reproduce, sublicense, publicly display, distribute, broadcast, transmit, stream, publish, use via social media, use on websites (including Website), 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, sale/resale (as may be applicable) or distribution of the Discount 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 Contract is within Local 5’s sole discretion.

 

  1. Merchant acknowledges and agrees that, as between the parties, Local 5 owns all interest in and to the Website, Customer Data, Local 5 trade names, logos, trademarks, service marks, domain names, social media identifiers, all data collected through or from the Website, all audiovisual content, video recordings, audio recordings, photographs, graphics, artwork, text or any other content created by Local 5 or at Local 5’s direction, or assigned to Local 5, and any materials, software, technology or tools used or provided by Local 5 to promote, sell/resell (as may be applicable) or distribute the Discount and conduct Local 5’s business in connection therewith (collectively “Local 5 IP”). Merchant shall not use, sell, rent, lease, sublicense, distribute, broadcast, transmit, stream, place shift, transfer, copy, reproduce, download, time shift, display, perform, present on social media, present on website(s), modify or timeshare the Local 5 IP or any portion thereof, or use such Local 5 IP as a component of or a base for products or services prepared for commercial use, sale, sublicense, lease, access or distribution, except that Local 5 grants Merchant a limited, non-exclusive, revocable, non-transferable, non-sub licensable license during the Term to use Local 5’s logo, solely for the purposes of promoting Local 5’s brand in support of the stated business purposes set forth in the Agreement and these Terms and Conditions.  Merchant shall keep the Local 5 IP protected and confidential, and shall not prepare any derivative work based on the Local 5 IP or translate, reverse engineer, decompile or disassemble the Local 5 IP.  Merchant shall not take any action to challenge or object to the validity of Local 5’s rights in the Local 5 IP or Local 5’s ownership or registration thereof. Except as specifically provided in the Agreement and these Terms and Conditions, Merchant and any third party assisting Merchant with its obligations in the Contract, are not authorized to use Local 5 IP in any medium without prior written approval from an authorized representative of Local 5.  Merchant shall not include any trade name, trademark, service mark, domain name, social media identifier, of Local 5 or its affiliates, or any variant or misspelling thereof, in any trademark, domain name, email address, social network identifier, metadata or search engine keyword.  Except as specifically set forth in this Contract, Merchant shall not use or display any Local 5 IP in a manner that could reasonably imply an endorsement, relationship, affiliation with, or sponsorship between Merchant or a third party and Local 5.  All rights to the Local 5 IP not expressly granted in this Contract are reserved by and for the benefit of Local 5.

 

  1. If Merchant provides Local 5 or any of its affiliates with feedback, suggestions, reviews, modifications, data, images, text, or other information or content about a Local 5 product or service or otherwise in connection with this Contract, any Local 5 IP, or Merchant’s participation in the Discount (collectively, “Feedback”), Merchant irrevocably assigns to Local 5 all right, title, and interest in and to Feedback. In the event Merchant’s assignment to Local 5 is invalid for any reason, Merchant hereby irrevocably grants Local 5 a perpetual, fully paid-up, royalty-free, nonexclusive, worldwide, irrevocable, freely transferable right and license to (i) use, reproduce, perform, display, and distribute Feedback; (ii) adapt, modify, re-format, and create derivative works of Feedback for any purpose and sublicense the foregoing rights to any other person or entity.  Merchant warrants that: (A) Feedback is Merchant’s original work, or Merchant obtained Feedback in a lawful manner; and (B) Local 5’s exercise of rights under the license above will not violate any person’s or entity’s rights, including but not limited to any copyright or trademark rights.  Merchant agrees to provide Local 5 such assistance as Local 5 might require to document, perfect, or maintain Local 5’s rights in and to Feedback.

 

  1. Merchant shall comply with and abide by all rules and regulations established by the App. Merchant shall not attempt to translate, reverse engineer, decompile, disassemble, hack, impede, or infringe upon the App or any of the App’s intellectual property, hardware, software, middleware, code, or other technological aspects.  Merchant shall not take any action to challenge or object to the validity of the owner of the App’s rights to, ownership of, or registration of the App.

 

  1. Representations and Warranties

 

Merchant represents and warrants that: (a) Merchant has the right, power and authority to enter into this Contract; (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) the Discount, upon being granted by Merchant to Local 5 for Local 5’s Members, will be available immediately for application, and Merchant will have sufficient ability and materials to render the services and/or goods and make them available for purchase through the Expiration Date of Discount Period (i.e., a volume of services and/or goods sufficient to fulfill Merchant’s obligations under this Contract); (d) the terms and conditions of the Discount for services and/or goods does not and will not violate any, local, state, provincial, territorial or federal law, statute, rule, regulation, or order, including but not limited to, any law or regulation governing the use, sale, and distribution of alcohol; any law or regulation governing the obligation to protect and not disclose the personally identifiable information (“PII”) of any Member or other customer of Merchant; and any law or regulation governing vouchers, gift cards, coupons, and gift certificates; (e) the Merchant’s application of the Discount will result in the bona fide provision of services and/or goods by Merchant to the Member; (f) Merchant owns all interest in and to the Merchant IP and has licensing rights in (with the right to sublicense to Local 5) the Third Party IP, and has the right to grant the License stated in this Contract; (g) the Merchant IP and the Third Party IP, the Discount, Local 5’s use and promotion thereof, and the results of such Discounts, do not and will 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 do not and will not result from the misappropriation of any trade secret or the breach of any confidentiality obligations to any person or entity; (h) the Merchant IP and Third Party IP does not include any material that is unlawful, threatening, abusive, defamatory, vulgar, obscene, profane, discriminatory based on race, gender, creed, religious affiliation, sexual orientation, or otherwise objectionable, or that encourages conduct that constitutes a criminal offense, gives rise to civil liability or otherwise violates any law; (i) the Discount and any advertising or promotion of Merchant’s services and/or goods will not constitute false, deceptive or unfair advertising or disparagement under any applicable law; (j) Merchant and Merchant’s employees, contractors and agents have had the proper education and training and hold all required and up-to-date regulatory authorization, licenses and certifications relating to any Discount to be applied to the goods or services described in this Contract; (k) Merchant’s business information as provided in this Contract, indicating where services shall be rendered is accurate, and Merchant is the authorized entity to receive the benefit of any Promotional Program provided by Local 5; (l) Merchant is not authorized to resell, broker or otherwise disclose any Customer Data (as defined in this Contract) to any third party, in whole or in part, for any purpose, and Merchant is not authorized to copy, disclose, or otherwise reproduce any Customer Data other than for the purpose of redeeming or verifying the validity of the Discount in connection with this Contract; as a result, Merchant shall not resell, broker otherwise disclose Customer Data in whole or in part, for any purpose, and shall not copy or otherwise reproduce Customer Data; (m) each Redemption Site shall be clean, safe, free of defects, free of unsafe conditions, and shall not cause any personal injury or property damage to any Member or other customer; and (n) the Discount is merchantable and suitable for the purposes, if any, stated in the Contract, and does not violate the rights of any third party.

 

  1. Indemnification

 

To the maximum extent allowed under applicable law, Merchant agrees to defend, indemnify and hold Local 5, its affiliated and related entities, and any of its respective officers, directors, owners, shareholders, partners, agents and employees (collectively the “Local 5 Indemnified”) harmless from and against any claims, lawsuits, investigations, penalties, damages, losses or expenses (including but not limited to attorneys’ fees and costs, and any expert fees and costs) arising out of or relating to any of the following:  (a) any breach or alleged breach by Merchant of this Contract, or the representations or warranties made by Merchant in this Contract, including but not limited to claims of intellectual property infringement; (b) any claim for state sales, use, or similar tax obligations of Merchant arising from the Discount or Merchant’s business or operations; (c) any claim by any local, state, provincial, territorial or federal governmental entity for unredeemed, unused, miscalculated or misapplied Discount or unredeemed cash values of Discounts or any other amounts under any applicable abandoned or unclaimed property or escheat law, including but not limited to any claims for penalties and interest; (d) any claim arising out of a violation of any law or regulation by Merchant or governing Merchant’s services and/or goods; (e) any claim arising out of Merchant’s violation of law or regulation governing the use, sale, and distribution of alcohol; (f) any claim by a Member or anyone else arising out of or relating to the goods or services provided by Merchant and/or occurring on a Redemption Site or other physical location owned, leased, or controlled by Merchant, including but not limited to, any claims for false advertising, product defects, personal injury, death, or property damages; (g) any claim by a Member for the application of a Discount to the services and/or goods offered by the Merchant; (h) any claim arising out of Merchant’s misuse of Customer Data, or any violation of an applicable data privacy or security law; and (i) any claim arising out of Merchant’s negligence, fraud or willful misconduct.  Local 5 maintains the right to control Local 5’s own defense at Merchant’s cost and expense, to have the authority to pre-approve the settlement of any claim against any of the Local 5 Indemnified, and to choose and appoint Local 5’s own defense counsel, regardless of the presence or absence of a conflict of interest between Local 5 and Merchant.  Merchant’s duty to defend and indemnify Local 5 includes the duty to pay Local 5’s attorneys’ fees and costs, as well as any expert fees and costs.

 

 

 

  1. Merchant’s Insurance.

 

Prior to the Effective Date, Merchant shall procure and thereafter maintain, at Merchant’s own expense, insurance coverage customarily procured to protect and insure a business like Merchant’s.  At a minimum, the types of insurance and minimum policy limits specified shall be expected to maintain in a form and from insurers acceptable to the Local 5 Indemnified (defined below).  All insurers shall have at least an A- (excellent) rating by A.M. Best and be qualified to do business in the state where the property is located.  Proof of this insurance shall be provided to the Local 5 Indemnified within twenty (20) days of the Effective Date.  To the extent that Merchant is permitted to subcontract with any other entity or individual to perform all or part of Merchant’s services, Merchant shall require its subcontractors to furnish evidence of equivalent insurance coverage, in all respects, terms and conditions as set for herein, prior to the commencement of services by the subcontractor.  In no event shall the failure to provide this proof, prior to the commencement of services, be deemed a waiver by the Local 5 Indemnified of Merchant’s or the subcontractor’s insurance obligations set forth herein.  

 

  1. Insurance Expectations.

 

  1. Insurance Coverages. Merchant is expected, but not required, to carry the following insurance: Commercial General Liability Insurance, Business or Commercial Automobile Liability Insurance, Worker’s Compensation and Employers Liability Insurance, and Excess or Umbrella Liability Insurance.  Insurance coverages are expected to cover bodily injury and property damage liability to the Local 5 Indemnified and/or third persons or parties.  Such insurance may be provided by endorsements to the Commercial General Liability insurance or by a separate policy.  Coverage, if any, must be provided for all remediation or disposal of hazardous materials.

 

  1. Named as Additional Insured. The Local 5 Indemnified shall be named as additional insured for ongoing operations and products/completed operations on any of Merchant’s and any subcontractor’s Commercial General Liability Policy, Business or Commercial Automobile Liability Policy, and Excess/ Umbrella Policy, all of which shall be primary and noncontributory with respect to the additional insureds.  Merchant shall endeavor to continue to carry Completed Operations Liability Insurance for at least the later of: (i) three (3) years following completion of the services; or (ii) three (3) years following expiration or termination of the Contract.  It is expressly understood by the Parties to the Contract that it is the intent of the Parties that any insurance obtained by the Local 5 Indemnified is deemed excess, non-contributory and not co-primary in relation to the coverage(s) procured by Merchant, the subcontractor, or any of their respective consultants, officers, agents, contractors, employees or anyone directly or indirectly employed by any of them, or by anyone for whose acts any of the aforementioned may be liable by operation of statute, government regulation or applicable case law.

 

  1. Waiver of Subrogation. A Waiver of Subrogation Clause shall be added to the Commercial General Liability, Excess/Umbrella, and Automobile (and Worker’s Compensation where allowable by state law) policies in favor of Local 5 and the other Local 5 Indemnified, and this clause shall apply to the officers, agents and employees of Local 5 with respect to the services and goods.

 

  1. Certificate(s) of Insurance. Prior to commencement of services in relation to the Discount, Merchant shall submit a Certificate(s) of Insurance in favor of Local 5 L.L.C. and the other Local 5 Indemnified, and an Additional Insured Endorsement (in a form acceptable to Local 5) as required hereunder.  The Certificate(s) shall provide for thirty (30) days’ notice to Local 5 for cancellation or any change in coverage.  Copies of insurance policies shall promptly be made available to Local 5 upon request.

 

  1. Confidentiality

 

The terms and conditions for the Discount, and all related terms described in this Contract, are confidential to Local 5, and Merchant agrees not to disclose the terms described in this Contract 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, but only 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, and to limit the disclosure of the Confidential to only that minimal amount of Confidential Information that needs to be disclosed to effectuate the purpose of the disclosure).  For sake of clarity, “necessary precautions of the kind generally taken” means, before the confidential information is disclosed, to advise the individual who is to receive the information that the information is confidential, present this Section to the individual, and require that the individual agree in writing, on behalf of the individual and the individual’s company or firm, to be bound by the terms and conditions of this Confidentiality Section.  In the event of a breach, Merchant agrees to immediately disclose the breach to Local 5 in writing, so that Local 5 may mitigate the exposure.  Local 5 is entitled to injunctive relief without the need to post a bond or other surety, a decree for specific performance, and any other relief allowed under applicable law (including  but not limited to monetary damages).

  1. 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 CONTRACTUAL, IN TORT, OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGES IN ADVANCE.  IN ADDITION, LOCAL 5 IS NOT LIABLE FOR ANY DAMAGES OF ANY TYPE, INCLUDING BUT NOT LIMITED TO DIRECT DAMAGES.  MERCHANT IS ABSOLUTELY BARRED FROM CLAIMING OR BEING ENTITLED TO ANY DAMAGES, WHETHER DIRECT DAMAGES OR OTHERWISE, ARISING FROM OR RELATING TO THIS CONTRACT, OR FOR ANY ERRORS, OMISSIONS OR MISPLACEMENTS.  HOWEVER, IF THIS ABSOLUTE BAR TO DAMAGES AGAINST LOCAL 5 IS UNENFORCEABLE UNDER APPLICABLE LAW, THEN LOCAL 5’S SOLE AND COMPLETE LIABILITY TO MERCHANT FOR ANY CLAIMS ARISING OUT OF OR RELATING TO THIS CONTRACT, OR FOR ANY ERRORS, OMISSIONS OR MISPLACEMENTS, IS LIMITED TO THE VALUE OF DISCOUNTS GRANTED BY MERCHANT TO LOCAL 5’S MEMBERS FOR THE PRECEDING THREE (3) DAYS PRIOR TO THE DATE THE CLAIM BY MERCHANT IS RAISED.  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 CLAIM AGAINST LOCAL 5 MUST BE MADE IN WRITING TO LOCAL 5 WITHIN NINETY (90) DAYS FROM THE DATE THE CLAIM OCCURRED (AND NOT WHEN THE CLAIM WAS DISCOVERED).  ALL CLAIMS NOT MADE IN ACCORDANCE WITH THE FOREGOING SHALL BE DEEMED WAIVED, RELEASED AND DISCHARGED BY MERCHANT.

  1. Dispute Resolution

All disputes arising out of or relating in any way to this Contract shall be resolved pursuant to this Section 16, the Dispute Resolution section.

  1. Binding Arbitration

EXCEPT AS SPECIFICALLY STATED HEREIN, ANY DISPUTE OR CLAIM BETWEEN MERCHANT AND LOCAL 5 ARISING OUT OF, OR RELATING IN ANY WAY TO, THIS CONTRACT (“DISPUTES”) SHALL BE RESOLVED EXCLUSIVELY BY FINAL, BINDING ARBITRATION.  BY VIRTUE OF THE CONTRACT TERMS AS SET FORTH IN THIS SECTION 16 TO ARBITRATE, MERCHANT AND LOCAL 5 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 16).  The provisions of this Section 16 shall constitute Merchant’s and Local 5’s 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 Contract, apply applicable law and the facts, and issue a reasoned award, along with a short explanatory opinion.  THE CLAIMS RAISED AGAINST A PARTY AND THE SUBSTANCE OF THE ARBITRATION SHALL REMAIN CONFIDENTIAL AND SHALL NOT BE DISCLOSED TO THE PUBLIC.

To begin an arbitration proceeding, Merchant or Local 5 must acknowledge and comply with the limitations provision set forth in Section 15 of these Terms and Conditions, and thereafter may submit the Dispute by making a demand for arbitration as detailed at http://www.adr.org.  If Merchant demands arbitration, Merchant shall simultaneously send a copy of the completed demand to Local 5 at the following address: 44 Levering Circle, Bala Cynwyd, Pennsylvania 19004.  If Local 5 demands arbitration, it shall simultaneously send a copy of the completed demand to the Merchant’s address in the Agreement.  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 Local 5 requests and/or the arbitrator determines that a telephone or in-person hearing is necessary.  If the arbitrator grants the request or determines an in-person hearing is necessary, the hearing will proceed in Bala Cynwyd, Pennsylvania, unless the Parties agree that the matter should proceed in another city or town within Montgomery County, Pennsylvania.  If the arbitration does not take place in Montgomery County Pennsylvania, it shall take place in a county contiguous to Montgomery County, Pennsylvania.

  1. Class Action Waiver

THE PARTIES TO THIS CONTRACT 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.

 

  1. Choice of Law. Any claims directly or indirectly arising out of, under, or in connection with this Contract or any related instrument, or any services, goods, actions or omission directly or indirectly arising from or related to this Contract or any related instrument, shall be governed by, subject to and apply the laws of the Commonwealth of Pennsylvania, including its statutes of limitations, without regard to any conflicts of laws principles.

 

 

 

 

  1. Cases Proceeding to Court; No Jury Trial

If for any reason the Binding Arbitration Section of this Contract is not enforceable or is mutually waived by the Parties in a signed writing, and a Dispute proceeds in court, then: (i) Merchant and Local 5 agree that claims, suits or disputes arising from or relating to this Contract (or any related instrument), the Discount, the services and/or goods, or otherwise, shall be exclusively brought and litigated in the appropriate Federal or state courts located in Montgomery County, Pennsylvania, and all appropriate appellate courts (but, if no Federal court is located in Montgomery County, Pennsylvania, then the alternative shall be the Federal court located in Lehigh County, Pennsylvania); (ii) Merchant and Local 5 irrevocably consent and submit to the exclusive personal jurisdiction and venue of the applicable Federal and state courts located within Montgomery County, Pennsylvania, for resolution of such Disputes (but if no Federal court is located in Montgomery County, Pennsylvania, then the alternative shall be the Federal court located in Lehigh County, Pennsylvania); (iii) Merchant and Local 5 agree that the Federal Arbitration Act, the AAA rules, applicable federal law, and the laws of the Commonwealth of Pennsylvania, without regard to any conflicts of laws principles, will govern this Contract and any Disputes; and (iv) MERCHANT AND LOCAL 5 AGREE TO WAIVE ANY RIGHT TO A TRIAL BY JURY.

  1. Injunctive Relief; Attorneys’ Fees & Experts’ Fees

Notwithstanding anything to the contrary in this Contract, either Party may bring suit in court on the limited basis of seeking preliminary or permanent injunctive relief arising out of or relating to claims that one Party’s conduct may cause the other Party irreparable injury.

In the event Local 5 is the prevailing party in any Dispute, Merchant shall pay to Local 5 all of Local 5’s actual attorneys’ fees and costs and all experts’ fees and costs incurred by Local 5 in connection with any Dispute.

  1. Miscellaneous

 

  1. The Parties are independent contractors. Nothing in this Contract 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.

 

  1. The Contract is the exclusive record of the Parties’ agreement. The Parties intend the terms and conditions of this record to constitute the final, complete, exclusive, and completely integrated terms and conditions to which the Parties intend to be bound, and the Parties do not intend to be bound by any other agreements, promises, conditions, or representations, written or oral, of whatsoever kind or nature, including without limitation, any trade usage or course of dealing, which the Parties hereby intend to be negated.  This Contract supersedes all prior or contemporaneous oral or written agreements concerning such subject matter.

 

  1. Merchant is not authorized to transfer or assign its rights or obligations under this Contract, whether by operation of law or otherwise, without Local 5’s prior written consent. Any waiver must be in writing and signed by an authorized signatory of Local 5.  Local 5 is authorized and permitted to transfer or assign this Contract 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 any notice to Merchant.

 

  1. In case any one or more of the provisions of this Contract shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Contract, and the other provisions of this Contract shall be construed and enforced as if such invalid, illegal or unenforceable provisions had never been contained herein, provided that such invalid, illegal or unenforceable provisions shall first be curtailed, reformed, limited or eliminated to the extent necessary to remove such invalidity, illegality or unenforceability with respect to the applicable law as it shall then be applied.

 

  1. EXCEPT AS EXPRESSLY STATED IN THIS CONTRACT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. LOCAL 5 DOES NOT WARRANT OR GUARANTEE THAT THE SERVICES OFFERED ON OR THROUGH THE WEBSITE OR APP WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE DISCOUNT CALCULATIONS SHALL BE ERROR-FREE, OR THAT ANY DISCOUNT WILL RESULT IN ANY REVENUE OR PROFIT FOR MERCHANT.

 

  1. Compliance with Laws. Merchant agrees to comply with all applicable Federal, national, state and local laws governing or relating to the Merchant’s business, services, and goods; and to comply with all orders, rules, statutes and regulations issued or related to Merchant’s business, services or goods, whether now or hereafter in force, and any provisions or representations required thereby.

 

  1. Headings. Headings and captions in these Terms and Conditions or in the Agreement are for convenience and reference only.  The text and language of these Terms and Conditions and in the Agreement shall control and dictate the relationship between the Parties.  Use of “Section” or “Sections” shall, unless otherwise specified, mean the identified section or sections of these Terms and Conditions.  Clauses not numbered which are located on the first page of these Terms and Conditions shall be read as if located in the body (main part) of these Terms and Conditions.  Words with a capitalized first letter are defined terms that shall have the meaning ascribed to them in Agreement or these Terms and Conditions; and if there is a conflict between the definitions of the Agreement and of these Terms and Conditions, the definitions in the Agreement shall control and govern.  Words, including but not limited to defined terms, shall be read as the singular to mean the plural, and the plural to mean the singular. 

 

[End of Terms and Conditions]