By accessing and using Whistl’s services through your Merchant Account (as defined below), you agree to the following terms and conditions and any policies, guidelines or amendments thereto that may be presented to you from time to time (collectively, the "Terms"). If the law or our functionality changes and affects the services we are able to offer you through your Merchant Account, we may need to change these Terms or our program features from time to time. You should review these Terms regularly. If at any time you do not agree with these Terms, or you do not agree to any modified Terms, then you must immediately stop using your Merchant Account and cease your participation in any Whistl self-service merchant program (any self-service program a "Program", as the same may exist from time to time). Unless you have agreed otherwise in writing with Whistl, these Terms govern your use of our services through your Merchant Account. In the event of a conflict between these Terms and the terms of a deal ("Offer") created or submitted via a Deal Request or DR through your Merchant Account, these Terms shall govern. You and Whistl may be referred to throughout these Terms individually as a "Party" and collectively as the "Parties".
2.1 Merchant Account. In order to use certain services, you are required to be registered with a special account on the Whistl Site (your "Merchant Account"). Your Merchant Account will facilitate your use of various Whistl services and will allow you to provide and receive current and accurate, contact and other information pertaining to your relationship with us. You are responsible for maintaining the confidentiality of your Merchant Account password, and are responsible for all activities that occur under such account. You agree to immediately notify Whistl of any unauthorized use of your password or Merchant Account or any other breach of security related to the Whistl Site. Whistl is not and will not be liable for any loss or damage arising from your failure to manage your Merchant Account, including without limitation to regularly review the accuracy of your Offers and other information created on your behalf by authorized Whistl personnel. In addition to the other rights set forth herein, Whistl reserves the right to refuse service and/or access to the Whistl Site to you or any other merchant at any time without notice for any reason. When using your Merchant Account and the Whistl Site directly, or indirectly via an authorized agent, to submit and manage other deals, you accept and comply with certain terms and conditions applicable to merchants. Whistl may offer certain optional features or functionalities within your Merchant Account. If you choose to use such features, then you may be required to agree to separate terms that are specific to those features that will be disclosed and available at the time you elect any such option. You represent that you are of legal age to form a binding contract and have full power, capacity and authority to accept these Terms. If you are accepting these Terms on behalf of your employer or another entity, you represent that you have full legal authority to bind your employer or such entity to these Terms. If you don't have the legal authority to bind your entity, please ensure that only an authorized person from your organization consents to, and accepts, these Terms.
2.2 Merchant Center. The Merchant Center is the section of your Merchant Account (in contrast to any individual user account you may maintain) where Merchants may directly, or indirectly through an authorized employee or representative manage Active Offers. You may use your Merchant Account to submit a request to launch a new Offer through a Program and suspend or stop a particular Active Offer.
3.1 Creation of Offers. By participating in a Program, you shall define the conditions of, and may supply the content and images to describe and illustrate, your Offer and its terms, by completing and submitting, or authorizing an agent to complete and submit, a DR through your Merchant Account. Submission of a DR does not obligate Whistl to accept the DR or any of its contents nor to promote the Offer, and is not binding on Whistl until Whistl actually promotes the Offer on the Whistl Site. At the point Whistl begins to promote your Offer to the public, the Offer becomes an "Active Offer" unless Whistl earlier terminates the Offer for any or no reason. You are responsible and liable for all Offer content and terms, and for Whistl’s or any user's use or reliance on any of the foregoing. In creating your Offer, you may not: (a) offer to sell any goods or services on terms or in a manner that is prohibited by law from being offered or advertised; (b) include any content that violates or infringes in any way upon the rights of others; or (c) include any material that is unlawful, threatening, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane or otherwise objectionable, which encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any Law.
3.2 Promotion of Offers. If Whistl accepts your DR, Whistl may promote the Offer using any method and through any medium that Whistl deems appropriate in its sole discretion, including through e-mail, mobile applications and any other type of electronic interface or distribution channel owned, affiliated, controlled or operated by or through Whistl. Whistl further reserves the right, but has no obligation, to promote the Offer through its affiliates and third party business partners from time to time. Whistl will promote your Offer to Whistl users and potential users based on geographic or other geolocational data, but will determine the customers and potential customers to whom your Offer is actually promoted and made available in its sole discretion.
3.3 Responsibility for Offer. You acknowledge that you are the exclusive seller of your Offer. You also are responsible and liable for: (a) the decision to make your Offer available through the Whistl services; and (b) supplying all goods and/or services specified in the Offer.
3.4 Redemption Obligations. You shall comply with your obligations specified in these Terms, the DR and other obligations regarding the use of your Merchant Account.
3.5 Other Programs; Expiration & Redemption. Whistl does not currently offer other Programs but if and as it does, these Terms will be updated accordingly.
3.6 Your Third Party Merchants. You may subcontract or delegate portions of your performances required by these Terms with respect to a particular Offer to a third party (each, a "Third Party Merchant"). If you subcontract or delegate to Third Party Merchants with respect to fulfilling such Offer, you will remain solely responsible and liable for (a) all your obligations, including financial obligations, under these Terms and (b) all acts and omissions of your Third Party Merchants. You shall require your Third Party Merchants to comply with all applicable restrictions and obligations imposed on you under these Terms, and you will be solely responsible for your financial and contractual relationship with your Third Party Merchants.
3.7 License to Your Content. You hereby grant Whistl a non-exclusive, worldwide, transferable, irrevocable, perpetual and sub-licensable license to use, copy, distribute, display and perform any trademarks, photographs, graphics, artwork, videos, sound clips, text, and other content or materials that you provide to Whistl in your Merchant Account or otherwise use to describe your Offer ("your Content") in any and all media or formats in connection with Whistl’s fulfillment of its rights and obligations under these Terms, including the promotion of Offers.
3.8 Press Release. Whistl may, in its sole discretion, include you in any press release regarding the Offers described herein or identify you as a merchant.
Payment terms governing our provided Service are as set forth below, unless you have a separate written agreement with Whistl expressly modifying the terms of your payment under a particular Program. You are required to pay a set amount, determined by Whistl, every month for the duration of the Service. Prices are subject to change upon Whistl’s sole discretion. Whistl will provide You with one (1) month’s notice for any price changes. Whistl will periodically be adding Programs to our Service. You have the option, but are not obligated to participate in any of these other Programs. If, and when a new Program is created, You will be notified about the Program, and how its payments are structured.
5.1 Term. These Terms are effective on the earlier of the date on which you first access the Merchant Center through your Merchant Account, accept the Merchant Account Terms, or submit a DR.
5.2 Termination. Whistl may terminate these Terms and suspend your access to the Merchant Account with one (1) day advance written notice for convenience, or immediately for cause if: (a) you violate any of the material terms of these Terms or any other agreement you have with Whistl, or (b) or otherwise misuse, repeatedly abuse Program guidelines or Whistl standards that have been communicated to you in advance., or in any way engage in conduct, which in Whistl’s sole discretion, is unfair, misleading, deceptive or otherwise in bad faith, and without regard to whether such conduct is actually adverse to the interests of Whistl or any Whistl customer.
5.3 Suspension of a Program Offer. Notwithstanding anything herein to the contrary, you or Whistl may cancel or suspend a Program Offer through your Merchant Account for any or no reason.
6.1 By Both Parties. Each Party represents and warrants to the other that: (a) it has the power and authority to enter into the Agreement and perform its obligations under these Terms; (b) it is an entity duly organized, validly existing and in good standing under the Laws of its jurisdiction of incorporation or formation; and it is duly qualified to do business and is in good standing in each jurisdiction where the conduct of its business, provision of its goods and/or services, or the ownership of its property requires such qualification; (c) these Terms reflect its legal, valid and binding obligation, enforceable against it; and (d) it shall comply with all Laws applicable to its obligations under the Agreement.
6.2 By you. You represent and warrant to Whistl that: (a) your Content, your representations about your business, do not and will not infringe, misappropriate, or otherwise violate any intellectual property right or right of privacy or publicity of any third party; (b) you hold all necessary Regulatory Documents and Authorization Documents, if any, required to make any Offer and provide the goods or services described therein; (c) you will provide the goods and services made available through any Offer in a manner consistent with industry best practices; and (d) you have all rights necessary to grant the licenses set forth in these Terms.
6.3 NO FURTHER REPRESENTATIONS. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WHISTL DOES NOT WARRANT OR GUARANTEE THAT (A) ANY OFFER WILL BE ERROR-FREE; (B) ANY ERRORS, OMISSIONS OR MISPLACEMENTS WILL BE CORRECTED, OR (C) THE OFFER WILL RESULT IN ANY REVENUE OR PROFIT FOR YOU. WHISTL MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE WHISTL SITE OR ANY OTHER PROMOTION OR DISTRIBUTION METHOD USED OR PROVIDED BY WHISTL (INCLUDING WITH RESPECT TO ITS UNINTERRUPTED OR ERROR-FREE OPERATION) AND/OR THE ACCURACY, ADEQUACY, RELIABILITY, AVAILABILITY, TIMELINESS, COMPLETENESS, SUITABILITY OR OTHER CHARACTERISTICS OF THE INFORMATION AND MATERIALS CONTAINED ON OR PRESENTED THEREIN. THE WHISTL SITE AND OTHER PROMOTION OR DISTRIBUTION METHODS USED OR PROVIDED BY OFFERS AND ALL RELATED INFORMATION AND MATERIALS ARE PROVIDED "AS IS", WITHOUT ANY WARRANTY OF ANY KIND, AND ON AN "AS AVAILABLE" BASIS.
7.1 By you. You, at your sole cost and expense, shall defend, indemnify and hold Whistl, its affiliated and related entities, and any of their respective officers, directors, agents and employees, harmless from and against any third party claims, lawsuits, actions, proceedings or investigations (collectively, "Claims") from and against any fees, costs, sanctions, penalties, damages, losses or expenses (including but not limited to attorney's fees and costs) (collectively, "Losses") arising out of or relating to any of the following: (a) your or any Third Party Merchant’s (i) fraud, willful misconduct, or gross negligence or (ii) breach or alleged breach of these Terms; (b) the goods and/or services provided by you, including but not limited to, any claims for false advertising, injuries, illnesses, damages, or death; (c) any Offer, including your provision of incomplete or inaccurate or information applicable to such Offer; or (d) your Content; and (e) any infringement, misappropriation, or other violation, of any patent, trademark, copyright, publicity, privacy, trade secret, or other right of any third party by you, your Content, or the use thereof.
7.2 By Whistl. Whistl, at its sole cost and expense, shall defend, indemnify and hold harmless you and your officers, directors, agents and employees, from and against any and all Claims brought against any of you arising out of or in connection with (a) Whistl’s material breach of these Terms or (b) any infringement, misappropriation or other violation of any trademark or copyright of any third party by Whistl (excluding Whistl’s use of materials provided or authorized for Whistl’s use by, you.)
7.3 Indemnification Process. The Party seeking indemnification under this Section 7 shall promptly notify the other Party in writing of any Claim for which it seeks indemnification; provided that such indemnified Party’s failure to timely provide such notice shall not relieve the indemnifying Party of its indemnification obligations unless it can demonstrate actual prejudice as a result of such failure. In the event Whistl is the indemnifying Party, Whistl shall have the right to, upon written notice to you, elect to assume control of the defense and settlement of any such Claim, and you will have the right to participate and be represented in the defense of such Claim by your own counsel and at your own expense. You shall not settle any Claim for which you are to be indemnified hereunder without Whistl’s prior written consent, which consent shall not be unreasonably withheld or delayed.
8.1 General. You will ensure that the terms of any Offer, any Fine Print, and your activities under the Agreement, comply with any and all state, federal and local laws, rules regulations, and orders, including the Credit Card Accountability, Responsibility, and Disclosure Act of 2009 and all laws that govern false, unfair and deceptive practices, (collectively "Laws"). You understand and agree further that your compliance with Laws is a basic requirement, and that you must also comply with all of Whistl’s Program requirements and product -specific policies applicable to Offers ("Rules"), which Rules may require you to do more than the Laws alone might mandate.
8.2 Health and Safety. You represent and warrant that all good or services provided in connection with any Offer are safe and comply with all applicable Laws regarding health and safety, fire, and hygiene standards (collectively, "Health Laws"). At Whistl’s request, you will promptly provide copies of any applicable facility operating license(s), or similar credentials or documents evidencing your and your facility(ies) compliance with the Health Laws. You shall ensure that your facilities and operations remain in compliance with all applicable Health Laws during the term of these Terms. Whistl reserves the right to immediately terminate its relationship with you, and to refuse to promote your Offer, if it believes you do not fully comply with any or all applicable Health Laws.
8.3 Authorization Documents. You hereby represent and warrant that you have all rights and permissions necessary to provide or use any goods, services, or brands that you do not independently own as part of any Offer and to grant the rights to your Content granted under these Terms. Even if Whistl has accepted a particular DR for your Offer, Whistl shall have no obligation to promote or to continue to promote, any Offer if it has any concerns about the integrity of said Offer. You shall immediately notify Whistl if, at any time during the term of the Agreement, you no longer have all necessary rights and permissions required to make the Offer available on the App or Site through the Whistl services.
8.4 Regulatory Documents. You hereby represent and warrant that you have all obtained all governmental licenses, approvals, and authorizations necessary to provide the goods or services included as part of such Offer. If requested, you shall provide Whistl with copies of licenses, proof of authorization or other appropriate documentation evidencing such regulatory permissions ("Regulatory Documents"). Even if Whistl has accepted the DR for your Offer, Whistl shall have no obligation to promote or continue to promote your Offer if it has any concerns regarding the existence, integrity or veracity of Regulatory Documents it reasonably is relying on you to have and maintain. You shall immediately notify Whistl if, at any time during the term of the Agreement, you no longer have all rights and Regulatory Documents required to make the Offer available on the App or Site and through the Whistl services.
9.1 Confidential Information. Each Party agrees that (i) the terms set forth in a Merchant Account are confidential, (ii) any information designated by the other Party as "confidential," and (iii) any other information that the recipient should reasonably expect to be confidential under the circumstances shall be collectively deemed "Confidential Information." Confidential Information does not include information that (a) was, or becomes, publicly known through no action of the receiving Party; (b) is already in the legitimate possession of the receiving Party prior to its disclosure; (c) is obtained by the receiving Party without a breach of any third party’s obligations or violation of Laws; or (d) is independently developed by the receiving Party.
9.2 Obligation. Each Party shall take reasonable precautions to protect all Confidential Information, and will only disclose Confidential Information to its employees on a need-to-know basis. You may also disclose Confidential Information to your Third Party Merchants if they have signed a confidentiality agreement that requires them to protect the Confidential Information in at least the same manner specified in these Terms. If a Party is required by Law to disclose the other Party’s Confidential Information, it shall promptly notify the other Party and shall cooperate with the other Party to obtain a protective order or to otherwise limit the disclosure of the Confidential Information.
9.3 Irreparable Harm. Each Party agrees that, in the event of an actual, alleged or threatened breach of its confidentiality obligations established by these Terms, the other Party is likely to suffer immediate and irreparable harm, and may seek a temporary restraining order, injunction or other form of equitable relief without the posting of any bond or other security.
Whistl IP. You acknowledge that Whistl owns all right, title, and interest, including all intellectual property rights, in the Whistl App and Site, trade name, logos, trademarks, and service marks, and any content, data, software, technology, tools, or business methods used by Whistl to develop, promote, market, sell, generate, or distribute Offers and otherwise perform under these Terms (collectively the "Whistl IP"). With respect to any Offer, you may use Whistl’s name, trademarks, and logos solely to publicize to your customers and potential customers the fact that you are featuring that Offer through a particular Program. You shall not use or display the Whistl IP in any manner that states or implies that Whistl has endorsed or approved the Offer or your products or services without consent from Whistl. Any use of Whistl IP shall comply with any Whistl usage guidelines posted on the Whistl Site or provided to you from time to time. All goodwill and improved reputation in respect of and associated with the Whistl IP shall inure to the sole benefit of Whistl. Except as expressly set forth in these Terms, you have no right, license, title or interest in or to any Whistl IP, and shall not use, distribute, transfer, copy, download, display, modify, perform or create derivative works of the Whistl IP without the express written consent of Whistl. You shall not translate, reverse engineer, decompile or disassemble the Whistl IP. Whistl has the right to revoke the rights sets forth in this Section upon written notice to you reserves all rights not specifically granted.
11.1 LIMITATION OF WHISTL’S LIABILITY. IN NO EVENT SHALL WHISTL BE LIABLE TO YOU, ANY THIRD PARTY MERCHANT OR ANY OTHER THIRD PARTY FOR ANY CLAIMS RELATING TO THE USE OF YOUR GOODS AND SERVICES, INCLUDING BUT NO LIMITED TO CLAIMS RELATING TO FALSE ADVERTISING, INJURIES, ILLNESSES, DAMAGES, OR DEATH.
11.2 NO CONSEQUENTIAL DAMAGES. EXCEPT FOR (A) INDEMNIFICATION OBLIGATIONS HEREUNDER OR (B) EITHER PARTY’S (OR WITH RESPECT TO YOU, YOUR THIRD PARTY MERCHANT’S) (I) VIOLATION OF SECTION 8 (COMPLIANCE WITH LAW AND AUTHORIZATIONS), SECTION 9 (CONFIDENTIALITY), OR SECTION 10 (INTELLECTUAL PROPERTY RIGHTS); OR (II) FRAUD, WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, IN NO EVENT SHALL EITHER PARTY BE LIABLE OR OBLIGATED TO THE OTHER PARTY OR ANY THIRD PARTY IN ANY MANNER FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE, OR INDIRECT DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGES IN ADVANCE.
11.3 Insurance. You represent and warrant that you have, and shall maintain at your expense and at all times during the term of these Terms, all types of liability insurance policies, with coverage in amounts that are customary for merchants and/or service providers in your region, consistent with best industry practices, and sufficient to fully comply with applicable Law and fulfill your obligations under these Terms. Upon Whistl’s request, you shall provide proof of your maintenance of such policies and provide assurances that indicate that Whistl will be covered by your insurance policies in the event of a claim arising under or in relation to, these Terms or any Offer.
12.1 Binding Arbitration. The Parties hereby agree that (a) these Terms and all disputes, controversies, or claims arising out of or relating to these Terms, the Offer, or the DR shall be resolved exclusively by final and binding arbitration administered by the American Arbitration Association ("AAA") and conducted before a single arbitrator pursuant to the applicable Rules and Procedures established by AAA ("Rules and Procedures"); (b) the arbitration shall be held at a location determined by AAA pursuant to the Rules and Procedures (provided that such location is reasonably convenient for you), or at such other location as may be mutually agreed upon by you and Whistl; (c) the arbitrator shall apply Arizona Law consistent with the Federal Arbitration Act and applicable statutes of limitations, and shall honor claims of privilege recognized at law; (d) there shall be no authority for any claims to be arbitrated on a class or representative basis; arbitration will decide only your and/or Whistl’s individual claims; and the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated; (e) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Whistl will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive; and (f) with the exception of subpart (d) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures established by AAA, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subpart (d) is found to be invalid, unenforceable or illegal, then the entirety of this Arbitration Provision shall be null and void, and neither you nor Whistl shall be entitled to arbitrate their dispute. For more information on AAA and its Rules and Procedures, visit the AAA website at http://www.adr.org.
13.1 Electronic Communications and Notices. You acknowledge that communications between the Parties often use electronic means. For contractual purposes, you hereby (a) consent to receive communications from Whistl in an electronic form and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Whistl provides to you electronically satisfy any legal requirement that such communications would satisfy if it were be in writing. The foregoing does not affect your statutory rights. Any notice required or permitted hereunder shall be provided in writing, and shall be deemed delivered when (a) delivered by electronic mail to the then-current e-mail address in your Merchant Account, or (b) regardless of whether or not actually received, when deposited in (i) the United States mail, postage prepaid, certified mail, return receipt requested, or (ii) a regional or national overnight courier service, addressed to the applicable Party at the address set forth in your case, in your Merchant Account, and in Whistl 's case, to Whistl, 5401 E. Gelding Dr., Scottsdale, AZ 85254, with a copy to the attention of the Legal Department.
13.2 Force Majeure. Neither Party shall be liable for any default or delay in the performance of its obligations under these Terms due to acts of God, terrorism, natural disasters, earthquakes, fire, riots, floods, and other similar events, to the extent such event is beyond the reasonable control of such Party and only for the duration of such event.
13.3 Relationship of the Parties. The Parties are independent contractors. Nothing in these Terms shall be deemed or construed by the Parties hereto, nor by any third party, as creating 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 Party in any way. Whistl is not a vendor or co-vendor of your goods and services.
13.4 Agreement. These Terms constitute the entire understanding between the Parties relating to any Program Offer and your obligations in making such Offer, and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter. No part of these Terms may be amended or modified except by mutual written agreement of the Parties. In the event of a conflict between these Terms and the terms of your Offer, these Terms shall govern.
13.5 Interpretation. The section headings of these Terms are for purposes of reference only and shall not in any way limit or affect the meaning or interpretation of any of the terms hereof. References to a section include references to all subsections of that section.
13.6 Invalidity of a Provision. If any provision of these Terms should be held to be invalid or unenforceable the validity and enforceability of the remaining provisions of these Terms shall not be affected and the Parties shall negotiate an equitable adjustment in the provisions in order to affect, to the maximum extent permitted by Law, the purpose of these Terms.
13.7 Waivers. One or more waivers of any covenant, term or condition of these Terms by either Party shall not be construed as a waiver of a subsequent breach of the same covenant, term or condition.
13.8 Assignment. You may not assign or transfer any of your rights, or delegate any of your obligations, under these Terms without Whistl's prior written consent, and any attempt to do so shall be void and unenforceable.
13.9 Successors and Assigns; No Third Party Beneficiaries. These Terms shall be binding upon and inure to the benefit of, the Parties and their respective permitted successors and assigns. There are no third party beneficiaries to these Terms, except as expressly set forth herein or in a particular DR.