Jamaica Merchant Agreement

 

The Parties

This agreement (hereafter “Merchant Agreement” or “Agreement”) is effective as of the date of the first insertion order as described below (hereafter “Effective Date”) and is entered into by and between the merchant identified on the insertion order (“Merchant”) and Jamaica Holding, LLC (“Gustazos”), a Puerto Rico limited liability company with its principal offices located at 1418 Avenida Juan Ponce de León #101, San Juan, Puerto Rico, 00907, Puerto Rico (collectively, “Parties” or “the Parties”). 

 

The Exchange

Merchant wishes to offer its products or services for sale on Gustazos’ website, www.gustazos.com, through vouchers (“Voucher”) which are valid for Merchant’s goods and/or services at a discount as detailed on the Voucher on www.gustazos.com. Such Vouchers are offered and available for purchase by the public at www.gustazos.com (“Website” or “the Website”). Vouchers sold on the Website are eligible for redemption and use according to the details on the face of the Merchant’s offer (“Offer” or “the Offer”), the Terms and Conditions listed on the particular voucher Offer, and the Terms and Conditions for www.gustazos.com, available at www.gustazos.com/page/terms.

 

Gustazos wishes to market and sell Merchant’s Vouchers to purchasers on the Website. Merchant shall be the seller of any goods and/or services offered via the Voucher on the Website. Gustazos shall be the seller of intangible rights, embodied within the Merchant’s Voucher. 

 

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and in consideration of the mutual covenants set forth in this Agreement, the Parties agree as follows:

 

I.          General Terms and Offer Terms

This Agreement embodies the general terms of all Merchant Offers that Merchant promotes on the Website. Merchant shall complete an insertion order (“Insertion Order”) for each individual Offer advertised on the Website. Each Insertion Order will adopt by reference the complete terms of this Merchant Agreement. The general terms and conditions of this Merchant Agreement will apply to every Offer that Merchant advertises through the Website. The terms of each Insertion Order are subject to, and shall supplement, but not supersede, the remainder of the terms of this Agreement. To the extent there is conflict between the Offer Terms embodied within the Insertion Order and the remainder of this Agreement, the remainder of this Agreement shall prevail.

 

II.         Gustazos.com Vouchers – How It Works

            This section discusses how a Gustazos.com Voucher Offer functions.

            A.         Gustazos.com, Merchant, and the Voucher

Gustazos will promote the Voucher according to the terms specified in each Insertion Order and the remainder of this Agreement. Merchant remains the seller of all goods and services set forth in the Voucher. Gustazos will cause the Voucher to be sent to the purchaser of the Voucher electronically, upon purchase of the Voucher. The purchaser will present the Voucher to Merchant for redemption according to the terms of the offer.

            1.         No Joint Venture or Other Agency Relationship

Merchant is making this Offer available through the Vouchers on Gustazos’ website. Nothing in this Agreement or otherwise shall be construed to create a joint venture, partnership, principal and agent, employer and employee, or other agency relationship between the Parties.

            2.         Presentation of Offers

Gustazos will present Merchant’s Offer to the purchasing public through the Website. Merchant will complete an Insertion Order for each individual Offer, and shall give final approval of the Offer, prior to the launch of any Offer, in conformance with section 8 below, Submission of Information for Offer and Approval of Form of Offer. 

3.         Restrictions on the Offer

No restrictions on the Offer and related Vouchers are allowed unless specifically provided for by this Agreement. Vouchers shall be redeemable up to and including the Voucher Expiration Date. After the Voucher Expiration Date, as required by applicable law, Merchant shall: (1) allow the continued redemption of Vouchers; or (2) allow the redemption of Vouchers for credit with the Merchant in the amount of the total amount paid for the Voucher. Should applicable law require Merchant to do further, Merchant shall comply with all applicable laws and regulations.

4.         Partial Use of Vouchers

            In the event a customer does not use the entire value of a Voucher, Merchant shall comply with all applicable laws, reimbursing the customer, whether in cash or Merchant credit, if required by applicable law.

            5.         Redemption of Voucher for Face Value after Expiration

            Upon expiration, all Vouchers shall be redeemable for a period of six (6) months after the Expiration Date for the full purchase price of the Voucher (the “Paid Value”). For example, a Voucher offering a $50 service for an Offer Purchase Price of $19 shall be redeemable for $19 toward any service offered by the Merchant for six (6) months after the Voucher Expiration Date.

6.         No Additional Charges Beyond Voucher Price Allowed

            Merchant shall not require any person redeeming a Voucher to pay any amount, whether in the form of a fee or charge, that conflicts with the terms of the Offer. This section does not preclude the Merchant from requiring the payment of taxes as required by applicable law. However, should Merchant require Voucher purchasers to pay tax on the value of the redeemed Voucher, Merchant shall indicate on the face of the Offer that taxes are required to be paid by the Voucher redeemer.

            7.         Specific Conditions Related to Offer

            Merchant will adhere to any and all Specific Conditions related to the Offer, as set forth in any Specific Conditions exhibit attached to the Insertion Order for the Offer.

            8.         Submission of Information for Offer and Approval of Form of Offer

            Merchant shall submit all necessary information related to the Offer in order to present the Offer on the Website in advance before the date that Merchant’s Offer is scheduled to be published on the Website. Such information includes: photographs, language for the offer, and any other information relevant to, or necessary to present, the Offer. Based on the information provided, Gustazos will produce a “mock up” of the offer and present the “mock up” to Merchant for approval. Merchant shall provide approval of the form of the Offer by signing, dating, and providing Gustazos with a printed copy of the “mock up” or by submitting an email with the word “Approved” in the subject line or body of an email in response to an email embodying the “mock up”.

            In the event that Merchant does not approve the mock-up or the Insertion Order by 6:00 PM local time on the day before the Merchant's Offer is scheduled for publication, Gustazos may, at its discretion, elect to delay the posting of the Offer or cancel the posting of the Offer.

            B.         Sale of Vouchers – Authorization for Gustazos to Sell Vouchers

            Merchant hereby authorizes Gustazos to market, offer, sell, and submit Merchant’s Offer to purchasers in a manner consistent with this Merchant Agreement and the Website’s Terms and Conditions, available at http://www.gustazos.com/page/terms.

            C.         Termination of Sale of Vouchers

            Gustazos may terminate the marketing, offering, selling, and submission of Merchant’s Vouchers at any time, for any reason.

            D.         Marketing, Offering, and Sale of Vouchers

            Gustazos will market and offer Vouchers for purchase on the Website according to the terms of this Agreement. Gustazos will list Vouchers for sale on the dates specified in this Agreement. If dates are not specified, Gustazos will list Vouchers for sale at its discretion, within the term of this Agreement.

            Maximum Number Available: Should Merchant specify a Maximum Number of Vouchers available, Gustazos shall use reasonable business efforts to prevent further purchases of the Offer upon reaching the set maximum.

            E.         Customer Service Responsibility

            Prior to purchase of Merchant’s Voucher on the Gustazos website, Gustazos shall remain responsible for all customer support. Once a customer has purchased a Voucher and the Voucher has been electronically provided to customer, Merchant is responsible for any and all customer service from then on. Such responsibility includes the responsibility for all customer service related to the supplying of the goods and services that are included within the Voucher.

            Customer Service – Hotels Only

            In the case of Merchants that are promoting hotel reservations (“Hotel Merchants”) only, Gustazos remains responsible for customer support until a reservation has been made with the Hotel. Once a reservation has been made with the Hotel, the Hotel is responsible for all Customer Service, including addressing cancellations pursuant to the applicable terms.

            All applicable terms and conditions that apply to a Hotel Merchant’s Offer shall be clearly described on the Offer’s face.

            F.         Offer Modification or Revision

            Gustazos reserves the right to modify or revise the layout and description of Merchant Offers at its discretion. However, Gustazos is not obligated to make any modifications or revisions.

            G.        Offer Termination

            Gustazos reserves the right to reject or discontinue the publication of any Voucher. Gustazos also reserves the right to require Merchant to modify or revise its Offer or Offers in order to comply with Gustazos’ business standards and applicable laws or regulations.

            H.        Payment for Vouchers Purchased

            Gustazos shall pay Merchant the Merchant Payout described on the Insertion Order for each Voucher purchased and paid for in full on the Website by each purchaser, subject to the terms of Section II, subsection J (“Taxes, Payouts, and License Grant”) below and the remainder of this Agreement.

            I.          Refund of Vouchers Purchased

            In the event a customer demands a refund for an Offer purchased on the Website before the Voucher has been redeemed or expired and Merchant has been paid for such Voucher, Gustazos and Merchant shall be responsible for proportions of the refund according to the revenue split negotiated between Gustazos and Merchant for redeemed Vouchers, as embodied on the Insertion Order. Gustazos shall invoice Merchant for its contribution toward any such refund, or shall withhold the corresponding amount from any further Merchant payments.

            In the event a customer demands a refund for an Offer purchased on Gustazos’ Website after the Voucher has been redeemed, and Gustazos, in its discretion, determines that a refund is justified, Gustazos and Merchant shall be responsible for proportions of the refund according to the revenue split negotiated between Gustazos and Merchant for redeemed Vouchers. Gustazos shall invoice Merchant for its contribution toward any such refund, or shall withhold the corresponding amount from any further Merchant payments.

            Refund of Vouchers Purchased – Hotels

            In the case of Hotel Merchants, if a customer demands a refund prior to booking a reservation, Gustazos shall be responsible for any refund provided.

            In the case of Hotel Merchants, if a customer demands a refund after booking a reservation, but prior to the cancellation deadline imposed by the Hotel Merchant’s cancellation policy, Gustazos and Hotel Merchant shall be responsible for proportions of the refund according to the revenue split negotiated between Gustazos and Hotel Merchant for redeemed Vouchers.

If a customer demands a refund before the reservation date, after the Hotel Merchant’s cancellation deadline, but before checking-in, refunds may be provided by Gustazos and Hotel Merchant at the parties’ discretion.

For Hotel reservations that are not refunded under this section or due to a condition that makes the Voucher purchase non-refundable, Hotel shall honor the Voucher in the form of a credit to the client for the amount paid for the Gustazos’ Voucher, to be used toward a future stay at the Hotel.

            In the case of Hotel Merchants, if a customer demands a refund after booking, after the cancellation deadline, and after checking-in, Gustazos and Hotel Merchant may provide refunds at the parties’ discretion. If the customer demands the refund due to a bad customer experience, including unsanitary or unsafe conditions, Gustazos and Hotel Merchant may provide refunds at the parties’ discretion. If the customer demands the refund upon check-in due to perceived safety or health issues, refunds may be provided by Gustazos and Hotel Merchant at the parties’ discretion and Gustazos may elect to exercise any of the remedies afforded to Gustazos under this Agreement, including terminating the Offer, refunding all unused Vouchers, requiring Hotel Merchant to contribute to all refunds as provided for above, and collecting any unearned Advance from Hotel Merchant (as discussed in Section 4 below, “Funds Received by Merchant Before Fulfilling Offers”).

            J.         Taxes, Payouts, and License Grant

1. Taxes

Merchant hereby attests that it is registered for sales tax and use tax collection, and shall be responsible for properly accounting for and paying all sales taxes and use taxes associated with the goods and/or services listed on, and/or provided upon remittance of, the Voucher.

2.         Merchant Payout for Vouchers Sold – Merchants Other Than Hotels

            Gustazos shall provide Merchant Payouts for Vouchers sold in conformance with this section. The Merchant Payouts shall be staggered, with partial payments as follows in order to assure Merchant performance of the Offer. All Voucher redemptions must be noted in the Gustazos Platform in order to be eligible for payment. If there are indications that Merchant has improperly marked Vouchers as redeemed before actual redemption of the Vouchers, Gustazos may require proof of Vouchers redeemed; such proof may include paper copies of each Voucher redeemed. If Merchant uses the Gustazos Merchant redemption app to redeem Vouchers, Merchant will not have to retain proof for Vouchers marked as redeemed using the app.

1. Within ten (10) business days of the close of the Merchant Offer, Gustazos shall send a Payout for the value of at least 50% of the Total Merchant Payout, assuming less than 50% of the sold Vouchers have been redeemed.

2. After the initial Payout Advance, and after 50% of the Vouchers sold have been redeemed and noted in the Gustazos Platform, Payouts shall be electronically deposited in Merchant’s specified account as follows. On or before each Friday, Gustazos shall deposit weekly Payouts for Vouchers marked as redeemed on the Gustazos Platform by the prior Friday at midnight, La Paz (-4) Time.

3. In addition, in the event that expired Vouchers are redeemed following the Offer’s Expiration Date, whether for the full value of the Voucher or for the amount paid, Gustazos shall remit Payouts in the same manner as detailed in subsection b. above.

            In the event that Merchant has received the first payment outlined in subsection a. above, less than 50% of Vouchers have been redeemed, and Merchant is unable or unwilling to provide the Services or Products advertised in its Voucher offer, Merchant shall reimburse Gustazos for all refunds provided to customers that have not redeemed Vouchers.

            Gustazos reserves the right to modify the amount advanced under subsection a. of this section according to the terms within section 4 below, Funds Received by Merchant Before Fulfilling Offers.

3.         Merchant Payout for Vouchers Sold – Hotels

Merchants selling Vouchers valid for hotel rooms or reservations on Gustazos (“Hotel Merchant” or “Hotel Merchants”) are subject to the payout terms in this paragraph.

The Merchant Payout shall be staggered, with partial payments as follows in order to assure Hotel Merchant performance of the Offer.

1. Within ten (10) business days of the close of the Merchant Offer, Gustazos shall send or electronically deposit a Merchant Payout to Hotel Merchant for the value of 25% of the Total Merchant Payout for all Vouchers sold.

2. Further payments will be submitted to Merchant once Hotel Merchant has fulfilled reservations meeting or exceeding the 25% advance Payout.

3. After the first 25% of Vouchers have been redeemed, Gustazos shall pay Hotel Merchant every two weeks on an as-reserved basis, according to the terms in this section 3 below. These payments will be made for reservations that will be checking in in the following two weeks.

In the event that less than 25% of Vouchers have been redeemed and Merchant is unable or unwilling to provide the Services or Products advertised in its Voucher offer, Merchant shall reimburse Gustazos for all refunds provided to customers that have not redeemed Vouchers.

After the advance Payout outlined in subsection a. above, Gustazos shall provide Merchant Payouts weekly for Hotel Vouchers redeemed. For purposes of calculating the weekly payout, Gustazos shall deem each redeemed Voucher as payable if the reserved date related to the Voucher falls within the following seven (7) days.

Payment shall be made via electronic funds transfer upon Merchant’s completing the necessary forms and authorizations.

All money retained by Gustazos is compensation for Gustazos’ advertising and selling Vouchers for Merchant.

4.         Funds Received by Merchant Before Fulfilling Offers

The Parties agree to the staggered payment schedule outlined in Section 2 and 3 above, as applicable. As a result, the Parties acknowledge that the Merchant will receive payments in advance of providing services and products (“Advance”).

In the case of a bankruptcy proceeding, sale, or liquidation of Merchant before Merchant has performed pursuant to its obligations under this Agreement, the Parties agree that the Advance and all attendant funds represent funds that have been held in trust by Merchant for Gustazos and that Gustazos shall have uncontested title and ownership of all such funds.

Additionally, if the Advance under Section 2, Section 3, this Section 4, or the remainder of this Agreement meets or exceeds $15,000.00 in total, Gustazos reserves the right to perform credit checks, to limit advance payment, and to otherwise investigate Merchant’s credit health prior to the advancement of funds. 

5.         License Grant – Merchant’s Name, Logo, Trademarks, Photographs, etc.

Merchant grants Gustazos a non-exclusive worldwide license and right to use, reproduce, license, display, distribute and transmit the Merchant’s name, logo, trademarks (“Merchant’s Marks”), photographs, graphics, artwork, text, and other content (“Content”) provided or specified by Merchant to market, promote, sell, or distribute Vouchers. Gustazos’ license shall permit Gustazos to use such Content and Merchant’s Marks in all forms in which Vouchers are marketed, promoted, transmitted, sold, or distributed, including but not limited to, the Gustazos Website. 

 

III.        Term and Termination of This Agreement

This Agreement shall remain in effect for one (1) year after the Date each Insertion Order is signed or the last date on which a customer redeems a Voucher offered for sale by Merchant via Gustazos. Gustazos may terminate this Agreement at any time at its discretion by giving Merchant written notice of such termination. The expiration of the one (1) year term shall not in any way affect the purchaser’s usage of the Voucher, or Merchant’s obligation for redemption of Vouchers.

A.         No Advertising Similar or Better Offer Online During Voucher Offer

Upon execution of each Insertion Order, Merchant agrees that Merchant will not promote a similar or better online offer with respect to the products or services described in the Insertion Order for a period of up to 90 days from the Insertion Order’s Effective Date, plus a minimum of 90 days after the Merchant’s date of feature on the Website.

B.         No Advertising with Competing Website for Six Months after Offer

Upon execution of this Agreement, Merchant agrees that Merchant will not advertise any products or services with a competing, daily deal promotion site for a period of six months from the last date that Merchant runs an Offer on Gustazos’ Website.

C.         Implications of Breach of This Agreement

In the event Merchant violates any part of this Agreement, Gustazos may withhold all pending payments notwithstanding the terms of payment outlined in the remainder of this Agreement and require the repayment of any and all advance payments. In the event Merchant violates any part of this Agreement and Gustazos does not exercise its right to terminate this Agreement, payment for all Vouchers will be made on an as-redeemed basis in conformance with section II, subsection J of this Agreement.

D.         Survival of Terms After Expiration or Termination of Agreement

The following sections of this Agreement shall survive any expiration or termination of this Agreement.

IV.        Merchant Representations and Warranties, and Indemnification

            A.         Merchant Representations and Warranties

Merchants hereby represents and warrants throughout the Term of this Agreement that: (a) Merchant has the rights, power, and authority to enter into this Agreement; (b) Merchant is registered for sales tax and use tax collection purposes in all states, territories, and countries in which Merchant’s goods and services will be provided pursuant to the terms and presentation of the Voucher; (c) once the Voucher has been electronically provided to a purchasing customer, the Voucher shall be immediately eligible for redemption by the purchase; (d) all terms and conditions of the Voucher offer, including all discounts or goods or services offered, comply with all local, state, and federal law, statutes, rules, regulations, and orders (“Laws”), including and not limited to, any law or regulation governing the use, sale, or distribution of alcohol, any Laws governing Vouchers, gift cards, gift certificates, or vouchers; (e) Merchant owns all rights, titles, and interest in the Marks and Content and has the right to grant licenses in the Marks and Content as stated in this Agreement; (f) the Voucher and any advertising or promotion of Merchant’s products or services do not represent false, deceptive, or unfair advertising or disparagement under any applicable Laws; and (g) the Marks and Content do not and will not violate any copyright, trademark, or other intellectual property right or right of privacy or publicity of any third party or Laws.

B.         Indemnification

Merchant agrees to defend, indemnify and hold harmless Gustazos and its affiliates, volunteers, partners and service providers, and their respective directors, officers, employees, affiliates and agents and their heirs, successors and assigns (“Indemnitees”), from and against any and all liabilities, demands, losses, damages, costs, expenses, fines, amounts paid in settlements or judgments, including without limitation, costs, reasonable attorneys’ fees, witnesses’ fees, investigation expenses, cost of management time, any and all out-of-pocket expenses, consequential damages, and all other expenses and costs incident thereto (collectively referred to as “Damages”) resulting from: (a) any breach or alleged breach of this Agreement by Merchant or Merchant’s agents or employees; (b) any breach or alleged breach of the Representations and Warranties within this Agreement; (c) any claim or recovery action for state sales tax or use tax obligations (“Taxes”) as a result of the sale and redemption of a Voucher; (d) any claim by a local, state, or federal government entity for unused Vouchers or unredeemed cash value of any Vouchers or any other amounts under applicable escheat, unclaimed property, abandoned property, including, but not limited to, claims for penalties and interest (“Abandoned Property Claims”); (e) any claim by a local, state, or federal government entity for violating any Laws related to the sale, distribution, or use of alcohol; (f) any claim sounding in warranty, false advertising, product defects, personal injury, death, or property damage due to Merchant’s sale of products or services through a Voucher on Gustazos’ Website (“Consumer Protection Claims”); (g) any claim, lawsuit, investigation, proceeding, regulatory action, or other cause of action that may be suffered by reason of any loss, damage, death, injury, and/or other reason arising out of or in connection with the purchase of a Voucher on Gustazos’ Website and any infringement or alleged infringement or other violation of any patent, trademark, copyright, trade secret, or other intellectual property right or right of privacy or publicity.

Without limiting the above, Merchant shall pay all money owed to any party, as well as all attorneys’ fees, related to any action against, or determinations against, Indemnitees related to any action to pursue Indemnitees for Taxes, Abandoned Property Claims, or Consumer Protection Claims.

V.         Legal Compliance: Gift Cards, Gift Certificates, and Abandoned Property Laws

            Merchant agrees to comply with all Voucher terms set forth above, on the Gustazos Website, and on the face of the Offer, and all applicable Laws. Merchant further agrees to ensure that any and all of Merchant’s Vouchers offered for sale on the Gustazos Website comply with any and all Laws that regulate vouchers, vouchers, gift cards, gift certificates, and discounts. Such Laws include, but are not limited to: all state or local Laws governing expiration dates, service charges, dormancy fees, or other terms and conditions of the Voucher, the Credit Card Act of 2009, contract law, advertising laws, and any other applicable Laws. 

            As required by state or federal Laws, Merchant shall permit the Voucher purchaser to redeem the Voucher with the Merchant for the total amount paid by the purchaser for the Voucher, meaning the cash value or redemption value of the Voucher. Merchant shall comply with all requirements of any such Laws.

            As required by escheat or unclaimed or abandoned property Laws, Merchant shall be solely responsible for, and agrees to report and pay the applicable local, state, or federal governmental agency for any unredeemed cash value of any Voucher issued under this Agreement. Additionally, Merchant shall track and account for cash paid by any and every purchaser of a Voucher issued under this Agreement, including any unredeemed amount(s) of cash paid by the purchaser for a Voucher, in order to comply with this Section V.

            A.         Voucher to be Honored After Expiration Date in Certain Circumstances

In the event a Voucher purchaser makes an appointment for services or presents a Voucher for redemption prior to the expiration date of a Voucher, Merchant shall observe all redemption value in the Voucher that remains after the expiration date, even if such services or goods must be provided after the established expiration date for redemption.

In the even Merchant, by choice or necessity, does not operate the Merchant’s business for a period of time, during which time a Voucher is otherwise redeemable, Merchant shall extend the time for redemption of the Vouchers for the same period of time that Merchant’s business was not operational.

            B.         Extension of Time for Redemption of Vouchers – Force Majeure – Acts of God

In the event of any force majeure delay due to causes beyond the reasonable control of Voucher purchasers or Merchant, including, but not limited to, acts of God, fire, explosion, fuel shortages, strike, civil uprising, or any act or failure to act of any civil or military authority (“Delay”), the Voucher Expiration Date shall be extended for a period of time equal to the time lost by reason of such delay. Merchant shall promptly restore the original operating conditions and shall remit the funds for any Vouchers that are unused as a result of any Delay. Merchant shall promptly notify Gustazos of any such Delay and its effect on the Offer and demonstrate that Merchant has done everything reasonable to minimize the resulting Delay and to accommodate Voucher holders.

Merchant shall not be excused from performing pursuant to the Offer as a result of any Delay. Additionally, Merchant shall remain liable to Gustazos for any refunds that must be provided as a result of the Delay. Refunds are considered a result of the Delay if a Voucher purchaser indicates that any refund request is a product of the Delay.

 

VI.        Confidentiality of this Agreement and Intellectual Property Rights

            A.         Confidentiality

This Agreement and the terms contained herein are confidential. Merchant agrees not to disclose the terms of this Agreement to any other party, with the exception of Merchant’s employees, parent companies, and shareholders as required, but only upon exercising reasonable precautions to protect confidential information.

            The terms of this Agreement are not known to the general public. Any breach of this Agreement by Merchant will cause irreparable damage to Gustazos that cannot be remedied by any remedy provided for by law. In turn, in the event of a breach of this Agreement, Gustazos shall be entitled to injunctive relief and/or specific performance, in addition to any and all such further relief as may be deemed appropriate. This section does not foreclose the possibility of monetary damages being awarded to Gustazos for any such breach.

            B.         Intellectual Property

            Merchant agrees and acknowledges that Social Media, LLC, a Puerto Rico limited liability company, owns all rights, titles, and interests in the Gustazos Website, Gustazos trademarks, any software, technology, or tools used by Gustazos to promote, sell, market, generate, or distribute Vouchers (collectively, “Social Media Intellectual Property”).

            Merchant shall not redistribute, circulate, sell, rent, license, transfer, rent, display, reproduce, modify, or share Social Media Intellectual Property in whole or in part. Nor shall Merchant use Social Media Intellectual Property as an element of a good or service for sale, rental, lease, or other distribution.

            Merchant shall not use Social Media Intellectual Property, in whole or in part, as a basis for derivative work based on Social Media Intellectual Property. This prohibition extends to reworking, translating, reverse engineering, decompiling, or dissembling Social Media Intellectual Property.

VII.       Limitation of Liability

            Aside from indemnification rights and obligations pursuant to this Agreement, in no event shall either party be liable for any special, incidental, exemplary, statutory, consequential, punitive, or any other indirect damages of any kind. This limitation of liability applies regardless of the form of the action, whether contractual, tort, negligence, strict product liability, statutory, or otherwise, and regardless of whether either party provides advance notice of the possibility of such damages. Gustazos’ only liability to Merchant for any claims arising out of, or related to, this Agreement or any errors, omissions, or misplacements of the Vouchers shall be limited to the amount of opportunity fees paid under this Agreement. This limitation of liability shall be effective to the fullest extent allowed by applicable law.

            Any claim related to, resulting from, or arising out of, any error or omission in a Voucher must be made within one (1) year of the first publication of Voucher on Gustazos’ Website. If Merchant does not make any such claim within the one (1) year period prescribed, Merchant shall be deemed to have waived any such claim.

VIII.      Miscellaneous

A.         Entire Agreement

            This Agreement represents the entire and sole agreement between the parties. This Agreement supersedes any and all prior or contemporaneous agreements, whether written or oral, concerning the subject matter of this Agreement. Any Insertion Order executed by Merchant shall supplement, but not supersede, the terms of this Agreement. To the extent there is conflict between the terms of an Insertion Order and this Agreement, this Agreement shall prevail.

B.         Modification

            No modification or claimed waiver of any portion of this Agreement shall be valid except by express written amendment signed by an authorized representative of each party to this Agreement.

C.         No Assignment or Transfer

Merchant may not assign or transfer its rights or obligations under this Agreement at any time without Gustazos’ prior, express written consent.

D.         Disclaimer of Warranties

Unless expressly set forth in this Agreement, all warranties are expressly disclaimed. Neither party makes any representations or warranties, whether express or implied, including, but not limited to, any implied warranty of merchantability, fitness for a particular purpose, or non-infringement. Gustazos does not warrant or guarantee that services offered on or through the website will be uninterrupted or error-free, that the purchase, remittance, or redemption of Vouchers will be error-free, that omissions, errors, or misplacements on Vouchers offered for sale will be corrected, or that Vouchers will result in any revenue or profit for Merchant.

E.         Section Headings

The headings in this Agreement are for convenience and ease of reference only and shall not be construed to limit or otherwise affect the meaning of any part of this Agreement.

F.         Governing Law

This Agreement and any dispute shall be interpreted and construed according to the laws of Puerto Rico, without giving effect to conflicts of law principles. Any dispute, controversy, or claim arising as a result of, or in connection with, this Agreement shall be addressed and resolved by binding arbitration in Jamaica.

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