MY DAILY DILLIO TERMS AND CONDITIONS
Standard Terms and Conditions (US) v.1.3
These My Daily Dillio Merchant Service Agreement Standard Terms & Conditions together with a Merchant Service Agreement Order Form are collectively referred to herein as the “Agreement.”
1. Nature of Services
This Agreement relates to the placement of marketing and promotion services by Merchant with My Daily Dillio. My Daily Dillio will promote a voucher for the Merchant product or service with the particular deal characteristics identified in the Order Form, in accordance with this Agreement. The Merchant is the “issuer” of the voucher for its Deal, and My Daily Dillio acts as the marketing agent for the Deal.
2. My Daily Dillio Responsibilities
a. Deal Creatives. My Daily Dillio may use Merchant Content to prepare one or more promotional creatives for the particular Deal (“Deal Creatives”), in its discretion, which may include a Deal page hosted on the MyDailyDillio.com website or other websites offered with our distribution partners, an email creative to be distributed to potential purchasers of the Deal voucher, or other similar creatives for online promotion of the Deal. Deal Creatives will be subject to Merchant’s prior approval (which may be made by email), not to be unreasonably withheld or delayed. Once a Deal Creative has been approved, My Daily Dillio is deemed to have approval to use and promote other Deal Creatives that are substantially similar to the approved Deal Creative.
b. Promotion. My Dily Dillio will offer and promote the Merchant product or service identified in the Order Form (the “Merchant Product”) through My Daily Dillio’s online platform on the terms and conditions described in the Order Form and the Deal Creatives approved by Merchant (the “Deal”), including the discounted price to be paid by the purchaser (the “Deal Price”). The scheduled time period that each Deal is marketed and offered (the “Offer Period”) will be designated solely by My Daily Dillio. Without limiting the foregoing, an Offer Period is typically 24 hours for Deals made available on Monday through Thursday or 72 hours for Deals offered over a weekend. Merchant has option to extend deal on MyDailyDillio.com active deal page for up to 5 days. Offer Periods are subject to scheduling change or cancellation in the sole discretion of My Daily Dillio. My Daily Dillio will endeavor to notify Merchant in advance of the Offer Period, however, My Daily Dillio provides no guarantee that it will provide advance notice of Offer Periods or changes to a planned Offer Period.
c. Vouchers. My Daily Dillio will issue each purchaser of the Merchant Product (each a “Purchaser”) a numbered voucher for each purchase (each a “Voucher”). Within one business day following the end of the Offer Period, My Daily Dillio will provide Merchant with the names of all persons having the right to redeem the Vouchers and the corresponding Voucher numbers.
3. Merchant Responsibilities
a. Issuer. Merchant agrees and acknowledges that My Daily Dillio markets and facilitates the purchase of the Deal, but that Merchant remains the issuer of the Vouchers. Accordingly Merchant agrees that it, and not My Daily Dillio, is solely responsible to fulfill the Deal and provide the Merchant Product to the individual redeeming each Voucher in accordance with this Agreement.
b. Fulfillment. Merchant agrees to honor and fulfill all Vouchers sold for the Deal in accordance with the terms of the Deal, the standard My Daily Dillio Terms and Conditions [http://www.MyDailyDillio.com/terms], this Agreement, and any applicable laws. Merchant agrees to accept Vouchers in any form presented for redemption that has been approved by My Daily Dillio, including, without limitation, a physical print out of the Voucher or by displaying the Voucher on a mobile device such as an iPhone at the point of service. Merchant shall not treat Voucher holders differently from other paying customers in the scheduling (e.g., use of blackout dates and times) or delivery of services, except as expressly set forth in the Deal. For Deals that require advance scheduling, Merchant shall use its
best efforts to accommodate the scheduling request of the Voucher holder. Except as expressly set forth in the Deal, Merchant shall permit Voucher holders to redeem Vouchers after the Expiration Date for Vouchers that require advance scheduling if the Voucher holder contacts Merchant prior to the Expiration Date for the purpose of scheduling service.
c. Merchant Content. Merchant may be asked to provide a logo, photograph, or other marketing materials
My Daily Dillio Merchant Agreement (US) v1.3 CONFIDENTIAL (“Merchant Content”) to be used in developing the Deal Creatives. Merchant hereby grants My Daily Dillio a non- exclusive worldwide license to reproduce, use, display, perform, distribute, and create derivative works based upon the Merchant Content for the purpose of developing, distributing, and otherwise promoting the Deal Creatives as My Daily Dillio deems appropriate. After the term of this Agreement, My Daily Dillio may continue to use and distribute the Deal Creatives as exemplars and for general promotional purposes.
d. Redemption Data. Merchant shall collect and provide to My Daily Dillio on a regular basis, no less frequently than monthly, a list of the serial numbers of redeemed Vouchers. Merchant may provide this information in paper or digital form or, when available, using My Daily Dillio’s merchant portal through which Merchant can record such data.
4. Fees and Payment
a. Revenue Sharing. In consideration for fulfilling its obligations under this Agreement, My Daily Dillio will be entitled to retain the Revenue Sharing set forth in the Order Form on all payments received from Purchasers of the Vouchers and the Program Fee, if any.
b. Merchant Payment. Subject to Merchant’s performance of its obligations under this Agreement, My Daily Dillio shall remit to Merchant all payments received from Purchasers of Vouchers, minus the Revenue Sharing (the “Merchant Payment”). Unless otherwise agreed by the Parties, the amounts due Merchant will be paid by check. The Merchant Payment will be mailed to Merchant within fifteen (15) business days after the end of the Offer Period. In the event My Daily Dillio has received a substantial number of customer complaints or requests for refunds, as determined in its discretion, My Daily Dillio may hold-back up to a third of the Merchant Payment until the parties have reached a mutually acceptable plan for resolving the complaints.
c. Taxes. Merchant will be solely responsible for collecting and remitting any value added, use or sales taxes owed to federal, state, or local taxing authorities in connection with the sale or redemption of Vouchers.
Merchant agrees that My Daily Dillio shall have the right to refund the Deal Price to any Purchaser who is dissatisfied with the experience of scheduling and using the Merchant Product, provided that My Daily Dillio also refunds the Commission Fee associated with such purchase. In such cases, if the refund occurs before payment in full of the Merchant Payment has been made to Merchant, the refunded fees (not including any refunded Commission Fees) will be set-off against amounts owed to the Merchant. If the Merchant has already been paid the Merchant Payment in full, it agrees promptly to repay to My Daily Dillio the amount of refunded fees (not including any refunded Commission Fees).
6. Representations and Warranties a.
General. Each Party hereby represents and warrants that (a) it has the authority to enter into this Agreement and to fully perform its obligations hereunder, (b) this Agreement does not and will not conflict with any of the Party’s other obligations to any third parties, and (c) it complies and will comply with all applicable laws and regulations.
b. Service Warranties.
Merchant additionally represents and warrants that: (a) it will provide the Merchant Product in a safe and professional manner; (b) the Merchant Content does not infringe or misappropriate any third party copyright, trademark, right of publicity, moral right, trade secret, or other proprietary right, and (c) it will comply with applicable federal and state laws related to redemption of the Vouchers, including those related to deceptive trade practices, unclaimed property liability associated with Vouchers that have not been redeemed, alcohol related service and discounting, and expiration of gift cards. Merchant acknowledges that the Deal terms will state in the Deal Creatives and printed on the Voucher that all or a portion of the Voucher expires after a stated Expiration Date, and if required by law, that the Deal Price does not expire, if at all, until a later date. Merchant is responsible to ensure that it enforces expiration of the Vouchers only in accordance with applicable federal and state laws. In addition, federal and/or state laws may require that the Merchant, upon request, provide the Purchaser or holder of a Voucher cash redemption for all or some portion of the Voucher. Merchant, and not My Daily Dillio are responsible to comply with any cash redemption requirements.
7. Indemnification a. Indemnity
. Merchant shall indemnify, defend, and hold harmless My Daily Dillio, its directors, officers, employees, and agents from and against any and all claims, demands, causes of action, or liabilities, and expenses, including reasonable attorney’s fees, to the extent arising out of the Deal, the Voucher, the Merchant Product and the fulfillment thereof, and/or any breach or alleged breach of any Merchant obligation, representation, or warranty under this Agreement.
b. Process. My Daily Dillio must notify Merchant promptly in writing of any claim for indemnification hereunder, and provide, at Merchant’s expense (to the extent of out-of pocket expenses only), all reasonably necessary assistance, information and authority to allow Merchant to control the defense and settlement of such claim, provided My Daily Dillio Merchant Agreement (US) v1.3 CONFIDENTIAL that the failure of My Daily Dillio to promptly inform Merchant of any claim shall not excuse Merchant of its obligations under this Section except to the extent such failure materially prejudices Merchant. Notwithstanding the foregoing, Merchant shall not enter into any settlement of the defense of such action, other than with respect to the payment of monies, without My Daily Dillio’s prior written consent, which consent shall not be unreasonably withheld or delayed. My Daily Dillio may participate at its expense in the defense and/or settlement of any such action with counsel of its choosing and at its sole expense
8. Limitation of Liability
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM BREACH OF THIS AGREEMENT, OR ARISING FROM ANY OTHER PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS (COLLECTIVELY, “DISCLAIMED DAMAGES”). MY DAILY DILLIO’S CUMULATIVE LIABILITY RELATED TO DIRECT DAMAGES WILL BE LIMITED TO THE COMMISSION FEES RECEIVED BY MY DAILY DILLIO RELATED TO THE DEAL SET FORTH IN THE ORDER FORM. THESE LIMITATIONS SHALL NOT APPLY TO ANY INDEMNIFICATION OBLIGATION.
9. Term a. Term. This Agreement shall commence on the Effective Date and end on the Expiration Date.
b. Termination. Either party may terminate this Agreement upon breach by the other party. My Daily Dillio may cancel this Agreement, in its discretion, upon notice to Merchant at any time prior to the Offer Period.
c. Survival. Sections 3(d), 5, 6, 7, 8, 9(c), and 10 shall survive expiration or termination of this Agreement. In addition, following termination or expiration, Merchant shall continue to honor all Vouchers, according to their terms, for which Merchant Payments have been remitted by My Daily Dillio. [End of Standard Terms and Conditions]
a. Confidentiality. The terms of this Agreement are to be treated by Merchant as confidential. The Deal, Deal Price, and Offer Period are also to be treated as confidential until the Deal has been publicly promoted by My Daily Dillio. Merchant agrees not to disclose any such confidential information to any third party, other than its legal, tax, and accounting advisors who are bound by a duty of confidentiality or as required by applicable law.
b. Entire Agreement. This Agreement is the entire agreement of the Parties with respect to the subject matter hereof, and supersedes any and all prior agreements and/or understandings, whether written or oral. This Agreement shall not be modified except by a written agreement dated subsequent hereto signed on behalf of each Party by their duly authorized representatives.
c. Notices. All notices and requests in connection with this Agreement will be deemed given as of the day they are received either by facsimile, messenger, delivery service, or in the Mail, postage prepaid, certified or registered, return receipt requested, and addressed to a Party at the address specified in the Order Form or such other address as a Party may designate pursuant to this notice provision.
d. Waiver. No waiver of any term or condition hereof shall be effective unless in writing and signed by the
authorized representative of the Party against whom such waiver is asserted. Any waiver shall be specifically limited to its terms, and shall not be deemed applicable to subsequent like circumstances.
e. Governing Law. This Agreement shall be governed by the
laws of the District of Columbia, without reference to principles of conflicts of law, and the Parties further consent to the exclusive jurisdiction of the local and federal courts located in Palm Beach County to resolve any dispute that may arise between the Parties relating to this Agreement.
f. Counterparts. This Agreement may be executed in one or more counterparts, which may be exchanged by
facsimile or other electronic means, each of which shall be deemed an original and which together shall constitute one and the same agreement. My Daily Dillio Merchant Agreement (US) v1.3
CONFIDENTIAL Authorization & signing I represent that I am a duly authorized representative of Merchant and that my act of signing this document shall be a binding commitment of Merchant under the terms of this My Daily Dillio Merchant Service Agreement Order Form and Standard Terms & Conditions.