Merchant Rights and Responsibilities: Gift & Loyalty Card Service

ALL INFORMATION CONTAINED ON THIS APPLICATION WAS COMPLETED BY OWNERS AND/OR OFFICERS OF MERCHANT AND THEY WARRANT THAT ALL ACCOUNT INFORMATION AND SALES VOLUME INDICATED THROUGHOUT THIS APPLICATION ARE ACCURATE AND ACKNOWLEDGE THAT ANY VARIANCE TO THIS INFORMATION COULD RESULT IN DELAYED AND/OR WITHHELD SETTLEMENT OF FUNDS. NO BLANK SPACES WERE LEFT INCOMPLETE. N/A OR NONE HAS BEEN FILLED IN ANY SPACES WHERE APPLICABLE. THIS AGREEMENT SHALL NOT BE BINDING OR TAKE EFFECT UNTIL MERCHANT HAS BEEN APPROVED BY A GETI / WEB.COM OFFICER AND A MERCHANT NUMBER HAS BEEN ISSUED.

GETI / WEB.COM has developed the GETI / WEB.COM prepaid service. The service together with its related software and documentation integrates with various retail store locations and provides a prepaid/stored value tracking system for anonymous customer activity at the retail business. The service shall hereinafter be referred to as the GETI / WEB.COM Gift prepaid. MERCHANT desires to initially purchase processing for GETI / WEB.COM Gift prepaid and desires GETI / WEB.COM to service those cards. By processing gift cards and use of the GETI / WEB.com Gift prepaid, merchant acknowledges and agrees to the terms stated herein. NOW, THEREFORE, for and in consideration of the mutual covenants contained herein and other good and valuable consideration, GETI / WEB.COM and MERCHANT agree as follows:

TERMS AND CONDITIONS

  1. GETI / WEB.COM's LICENSE
    1. GETI / WEB.COM hereby grants to MERCHANT the right to use the GETI / WEB.COM product at its specified locations. Further, MERCHANT agrees that GETI / WEB.COM shall be the exclusive store value /prepaid processing provider of MERCHANT during the term of this Agreement and that each GETI / WEB.COM Gift Card issued will contain an account number and magnetic stripe encoded to GETI / WEB.COM’s specifications.
    2. If MERCHANT fails to perform any of its obligations hereunder or shall commit an act of bankruptcy within the meaning of the Federal Bankruptcy Act or if the bankruptcy, receivership, insolvency, liquidation, or other similar proceeding shall be instituted by MERCHANT on all or any part of its property, GETI / WEB.COM may terminate the limited license granted in this Section 1 immediately upon written notice. No payments made to GETI / WEB.COM by MERCHANT hereunder shall be refunded to it; and the obligations of MERCHANT under this Agreement shall survive any termination thereof.
  2. FEE, PAYMENTS AND OBLIGATIONS
    1. MERCHANT shall pay fees as per attached Exhibit A - Fee Schedule. MERCHANT agrees that GETI / WEB.COM will assess up to $25.00 for each NSF chargeback. Applicable shipping charges will be assessed for all reorders. MERCHANT may select to convert previously issued cards to the new processor and shall pay a fee for conversion of card database of previously issued cards. Rush conversion is available and will be added to the conversion cost. Refer to the Gift Card Conversion Worksheet for further information and conversion rates.
    2. MERCHANT must promptly notify GETI / WEB.COM in writing of any dispute regarding fees under this Agreement. MERCHANT’S written notice must include: (i) MERCHANT name and account number; and (ii) the dollar amount and description of the disputed fees. Such written notice must be received by GETI / WEB.COM no later than ninety (90) days after the disputed fees have been paid by MERCHANT or charged to MERCHANT’S account by GETI / WEB.COM. MERCHANT’S failure to so notify GETI / WEB.COM will waive and bar the dispute.
    3. Payment for the service of all GETI / WEB.COM cards ordered by MERCHANT shall be in advance and concurrent with the MERCHANT’s GETI / WEB.COM Service Agreement. See cost of set-up, card reorders, and training and download fees under the schedule of fees section on page one.
    4. GETI / WEB.COM reserves the right to block MERCHANT’s access to related processing equipment and/or software in the event any related GETI / WEB.COM Prepaid Service fees or charges result in a chargeback or return of any kind from MERCHANT’s designated account.
    5. GETI / WEB.COM reserves the right at all times to unilaterally change all or part thereof, or any other terms of this Agreement upon written notice to MERCHANT.
  3. PROMOTIONAL MATERIALS AND REPRESENTATIONS CONCERNING GETI / WEB.COM'S SERVICE
    1. From time to time, GETI / WEB.COM may design educational and promotional materials and send such to MERCHANT for MERCHANT to distribute or display. MERCHANT further agrees to immediately remove and properly dispose of GETI / WEB.COM’s stale promotional materials and to display the most current materials upon receipt of such from GETI / WEB.COM. MERCHANT will discontinue the use of all of GETI / WEB.COM’s promotional materials and properly remove said materials upon receipt of written notification of suspension or termination of this Agreement. In the event of suspension, MERCHANT shall redisplay appropriate materials upon receipt of written verification of resumption of service by GETI / WEB.COM.
    2. MERCHANT shall make no use of GETI / WEB.COM’s promotional materials or marks, other than as set forth in paragraph (a) above, without GETI / WEB.COM’s prior written consent. In no way shall the MERCHANT indicate that GETI / WEB.COM’s services are an endorsement of the MERCHANT, its business or its business practices.
  4. EQUIPMENT AND SOFTWARE
    1. MERCHANT shall furnish each outlet, retail location, or business entity with compatible terminal or approved POS software. GETI / WEB.COM shall assign each MERCHANT’s terminal or virtual terminal an identification number. MERCHANT is responsible for all telecommunication fees and charges, including but not limited to telephone fees, associated with and related to the use of the terminal. MERCHANT shall maintain all equipment related to GETI / WEB.COM Gift Prepaid processing in good working order at MERCHANT’s expense. MERCHANT shall advise GETI / WEB.COM immediately in the event of a breakdown of related equipment, software, or of any other system failure. Moreover, GETI / WEB.COM’s approval of such equipment does not constitute nor express an implied warranty, representation or endorsement of such equipment.
    2. MERCHANT agrees to utilize only equipment approved by GETI / WEB.COM for the processing of GETI / WEB.COM Gift Prepaid transactions and in a format and medium of transmission acceptable to GETI / WEB.COM.
    3. Any improvements or modifications requested by MERCHANT and performed by GETI / WEB.COM (or its affiliated Information Technology Partners) will be agreed to by both parties in writing. All such enhancements shall remain the sole property of GETI / WEB.COM (or GETI / WEB.COM’s partners). All costs for said services shall be covered under a separate agreement.
  5. SERVICE PROVIDED
    GETI / WEB.COM will provide the following facilities and capabilities to MERCHANT:
    1. AUTHORIZATION: GETI / WEB.COM will provide authorization of a GETI / WEB.COM Card Program transaction requested and initiated by the retail location via a dial telephone network. GETI / WEB.COM will respond to each request with an approval or decline.
    2. ONLINE REPORTING: GETI / WEB.COM will provide periodic reports to enable MERCHANT to monitor and manage the program implemented at each of its affiliated retail store locations. MERCHANT will have access to a web site secured with a username and password.
    3. CUSTOMER SERVICE (Help Desk): GETI / WEB.COM provides a telephone Help Desk, which will be used for response to MERCHANT and/or CONSUMER inquiries and for receiving notifications of problems, defects, and malfunctions.
    4. RESPONSE TIME: GETI / WEB.COM agrees to provide to MERCHANT an estimated resolution time within forty-eight (48) hours of the time a problem, which materially impacts MERCHANT’s operation, is reported.
    5. SUPPORT: GETI / WEB.COM agrees to establish support for problem diagnosis and to provide file transfer capabilities for downloading and uploading software. MERCHANT agrees to install a GETI / WEB.COM approved devise on their premises.
    6. POS SOFTWARE SUPPORT: MERCHANTS using POS software must submit a POS Installation Form and POS software users shall pay a monthly fee for software support. POS Software support is limited to three calls per month and MERCHANTS shall be charged for calls exceeding the three call limit (refer to FEE, PAYMENTS AND OBLIGATIONS section).
    7. VIRTUAL TERMINAL: The virtual terminal is an optional service that provides MERCHANT the ability to issue cards, add value, void transactions, and redeem cards on the virtual terminal.
  6. ADDITIONAL SERVICES
    1. ACH POOLING: If MERCHANT has submitted the ACH Pooling Agreement addendum then MERCHANT wishes GETI / WEB.COM also to provide ACH Pooling services to MERCHANT. If MERCHANT has not submitted the appropriate addendum, MERCHANT is not entitled to such services. If MERCHANT elects the ACH Pooling service, MERCHANT agrees that WEB.COM will move funds associated with GETI / WEB.COM Card Program to/from the account MERCHANT has designated on the ACH Pooling Agreement and the ACH Pooling Agreement Terms and Conditions also apply.
    2. LOYALTY SERVICES: If MERCHANT has submitted the Loyalty Addendum then MERCHANT wishes GETI / WEB.COM also to provide Loyalty Card services to MERCHANT. If MERCHANT has not submitted the appropriate addendum, MERCHANT is not entitled to such services. If MERCHANT elects Loyalty Card services, MERCHANT agrees that GETI / WEB.COM will awards points or dollar value as outlined in the Loyalty Addendum.
    3. GIFT CARD CONVERSION: If MERCHANT has submitted the Gift Card Conversion Worksheet then MERCHANT wishes GETI / WEB.COM also to provide Card Conversion services to MERCHANT. If MERCHANT has not submitted the appropriate Worksheet, MERCHANT is not entitled to such services.
  7. AUTHORITY OF PARTIES

    Each party represents and warrants that it is a corporation duly authorized, validly existing, and in good standing under the laws of the jurisdiction under which it is incorporated and the execution of this Agreement is valid, binding, and enforceable in accordance with its terms.

    GETI / WEB.COM hereby reserves the right to use MERCHANT’s custom card artwork for promotional purposes.

  8. WARRANTY/LIMITATIONS OF REMEDY

    GETI / WEB.COM warrants that any maintenance or other services rendered to MERCHANT in accordance with the terms of this Agreement will be performed in a professional manner by qualified personnel. EXCEPT FOR THE WARRANTY STATED IN SECTION (a), GETI / WEB.COM MAKES NO WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES FOR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

    1. LIMITATION OF LIABILITY AND MERCHANT’S WAIVER OF DAMAGES.
      1. Force Majeure: GETI / WEB.COM shall not be responsible for delays, nonperformance, damages, lost profits or other losses caused directly or indirectly by any Act of God, including, without limitation, fires, earthquakes, tornadoes, hurricanes, wars, labor disputes, communication failures, legal constraints, power outages, data transmission loss or failure, incorrect data transmission or any other event outside the direct control of GETI / WEB.COM.
      2. MERCHANT must examine all statements relating to this Agreement, and promptly notify GETI / WEB.COM in writing of any dispute regarding fees owed to GETI / WEB.COM. MERCHANT’S written notice must include: (i) MERCHANT name and account number; and (ii) the dollar amount and description of the disputed fees. Such written notice must be received by GETI / WEB.COM no later than ninety (90) days after MERCHANT received from GETI / WEB.COM the periodic statement of fees that includes the disputed fees. MERCHANT’S failure to so notify GETI / WEB.COM of a dispute regarding any component of the statement and fees owed will waive and bar the dispute.
      3. GETI / WEB.COM shall be responsible for performance of the services as a third-party provider in accordance with the terms of this Agreement. GETI / WEB.COM shall not be responsible for any other person’s or entity’s errors, acts, omissions, failures to act, negligence, or internal conduct, including without limitation entities such as GETI / WEB.COM’s communication carrier or clearing houses, and no such entity shall be deemed to be a representative or an agent of GETI / WEB.COM. IN NO EVENT SHALL GETI / WEB.COM BE LIABLE TO MERCHANT FOR ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES WHICH MERCHANT OR ITS CUSTOMERS, AFFILIATES, PARENT COMPANIES, ASSOCIATES, AGENTS, OFFICERS, DIRECTORS OR EMPLOYEES MAY INCUR OR SUFFER IN CONNECTION WITH THIS AGREEMENT, INCLUDING LOSS OR DAMAGE FROM SUBSEQUENT WRONGFUL DISHONOR RESULTING FROM GETI / WEB.COM’S ACTS OR OMISSIONS PURSUANT TO THIS AGREEMENT.
    2. SITUS: The situs for all transactions covered by this Agreement shall be Okaloosa County, Florida. MERCHANT acknowledges that this Agreement was formed in Florida, upon its acceptance by GETI / WEB.COM.
    3. ATTORNEYS FEES: In the event that it becomes necessary for GETI / WEB.COM to employ an attorney to enforce, interpret, mediate or arbitrate this Agreement, or collect a debt from MERCHANT, GETI / WEB.COM shall be entitled to recover its reasonable attorneys’ fees, costs, and disbursements related to such dispute from MERCHANT.
    4. ASSIGNABILITY: MERCHANT may not assign its rights and obligations hereunder to a third party, without prior written consent of the other party, which consent shall not be unreasonably withheld, provided that such consent shall not relieve the assigning party of any of its obligations hereunder. Notwithstanding the foregoing, either party may assign this Agreement to a parent, affiliated or Subsidiary Corporation, or a Partnership, Limited Liability Company or other entity consisting of the majority of existing shareholders without consent upon notice to the other party.
    5. TERM AND TERMINATION
      1. This Agreement shall be effective upon the date hereof until terminated by Merchant or GETI / Web.com. As long as this agreement is in force, all GETI / WEB.COM Gift Card Programs on the system shall continue to be maintained.
      2. In the event of a material breach, this Agreement shall terminate at the sole discretion of GETI / WEB.COM.
  9. BINDING FORCES

    This Agreement shall be binding upon and inure to the benefit of and be enforceable by the administrators, legal representatives, agents, successors, and assigns of the parties hereto.

  10. NOTICES

    All notices provided for by this Agreement shall be made in writing and shall be deemed received by the intended recipient; (i) the third business day after the date placed in United States Mail or; (ii) the first day after notice is sent by express mail or; (iii) the first day after notice is sent by express mail or other overnight mail service. All notices shall be delivered to the address indicated on this agreement unless the party giving any such notice has been notified, in writing or verbally, of a change of such address.

  11. ENTIRE AGREEMENT

    This Agreement and Exhibits attached hereto shall constitute the entire agreement between the parties with respect to the subject of this Agreement and the parties represent that there are no collateral agreements or side agreements not otherwise provided for within the terms of this Agreement. The terms and conditions of the Agreement supersede those of all previous agreements, if any, between the parties with respect to the subject matter of this Agreement.

  12. GOVERNING LAW

    This Agreement shall be governed and construed and enforced in accordance with the laws of the State of Florida. Any claims or charge made hereunder shall be brought in state or federal court in the State of Florida. The parties hereto irrevocably consent to the jurisdiction and venue of such court and waive any present or future objections to venue or jurisdiction in such court. The parties agree that service of process may be made upon them by certified or registered mail as provided in paragraph (X) above or any other method authorized under local rules of civil procedure.

  13. FAIR GIFT CARD ACT OF 2009
    1. UNFAIR OR DECEPTIVE ACTS OR PRACTICES REGARDING GIFT CARDS:
      1. Prohibition on Imposition of Fees or Charges:
        1. IN GENERAL - It shall be unlawful for any person to impose, with respect to a gift certificate, store gift card, or general-use prepaid card, a dormancy fee, inactivity charge or fee, or a service fee.
        2. EXCEPTION - A dormancy fee, inactivity charge or fee, or service fee may be charged with respect to a gift certificate, store gift card, or general-use prepaid card if (a) such certificate or card has a remaining value of $5 or less at the time such charge or fee is assessed; (b) such charge or fee does not exceed $1; (c) (i) there has been no activity with respect to the certificate or card in the 24-month period ending on the date the charge or fee is imposed; and (ii) the certificate or card was issued more than 24 months before such date; (d) the holder of the certificate or card may reload or add value to the certificate or card; and (e) the following disclosure requirements are met.
        3. DISCLOSURE REQUIREMENTS - The disclosure requirements of this paragraph are met if (a) the gift certificate, store gift card, or general-use prepaid card clearly and conspicuously states in at least 10-point type (i) that a dormancy fee, inactivity charge or fee, or service fee may be charged; (ii) the amount of such fee or charge; (iii) how often such fee or charge may be assessed; and (iv) that such fee or charge may be assessed for inactivity; and (b) the issuer of such certificate or card informs the purchaser of such charge or fee before such certificate or card is purchased, regardless of whether the certificate or card is purchased in person, over the Internet, or by telephone.
      2. Prohibition on Sale of Gift Cards With Expiration Dates:
        1. IN GENERAL - It shall be unlawful for any person to sell or issue a gift certificate, store gift card, or general-use prepaid card that is subject to an expiration date.
        2. EXCEPTIONS- A gift certificate, store gift card, or general-use prepaid card may contain an expiration date if (a) the expiration date is not less than 5 years after the date on which the card is purchased; and (b) the terms of expiration are prominently disclosed in all capital letters that are at least 10-point type.
      3. RELATION TO STATE LAWS: This Act shall not supersede any provision of State law with respect to dormancy fees, inactivity charges or fees, service fees, or expiration dates of gift certificates, store gift cards, or general-use prepaid cards.
      4. ENFORCEMENT: A violation of this Act shall be treated as a violation of a rule defining an unfair or deceptive act or practice prescribed under section 18(a)(1)(B) of the Federal Trade Commission Act (15 U.S.C. 57a(a)(1)(B)).

    EXHIBIT A – FEE SCHEDULE

    Monthly Subscription Fee $25.00
    Gift Card Start Up Kit $25.00
    Start Up Kit Shipping and Handling $10.00
    Selling Gift Cards on Facebook Monthly Subscription Fee $10.00
    Online Merchant Account Monthly Fee (excluding Merchant Account discount rate charges and other related fees) $17.00
    Gift Card Re-Orders
    • 100 Gift Cards (plus shipping and handling)
    • 500 Gift Cards (plus shipping and handling)
    $129.00

    REV. 9-16-2011 Global eTelecom, Inc. Gift & Loyalty Service Agreement v3