Ouli ™ Merchant Terms and Conditions
Effective date 4/1/2016

These Merchant Terms and Conditions (the “Terms and Conditions”) govern and are incorporated into the Ouli™ Merchant Agreement between Dante Consulting, Inc. (“Dante”) and Merchant (collectively, the "Agreement"). The most recent version of the Terms and Conditions (as may be amended by Dante from time to time) will be available in Ouli™’s Merchant Center (www.Ouliapp.com). Dante shall notify Merchant by email to the Merchant designated contact person of any amendments to the Terms and Conditions. Merchant agrees that this notification method constitutes adequate notice to inform Merchant of any amendments to the Terms and Conditions and Merchant further agrees to be bound by any such amendments to the Agreement upon such notification.

Definitions

"Ouli™ OFFER" means the goods and/or services to be provided by the Merchant or promotional pricing or discounts appertaining thereto stated on an offer as presented by Ouli™ as specified by Merchant and any notifications or postings provided by Merchant through the Ouli Services. For purposes of the Agreement, Ouli Offers include any third party notifications, postings, goods and/or services or promotional pricing or discounts provided by third parties authorized by Merchant.

"OFFER EXPIRATION DATE" means the date stated on the Ouli™ Offer after which the Merchant will no longer be required to honor the offered good, service, discount, and/or promotional value.

"FINE PRINT" means the conditions and restrictions concerning Offer redemption.

  1. Ouli™ Offer

    1. Dante is authorized to promote Ouli™ Offers on Merchant's behalf or on behalf of any third parties authorized by Merchant subject to the terms of the Agreement. The Ouli™ Offers will be sent to the Ouli™ subscribers electronically. The subscriber will then redeem the Offer with the Merchant by presenting the Offer in paper or electronic form. Merchant is the issuer of the Offer and seller of the corresponding goods and/or services.
    2. Dante is authorized to promote Ouli™ Offers on Merchant's behalf or on behalf of any third parties authorized by Merchant through any platform, including affiliates, business partner network, marketplace, or referral network. The Ouli™ Offers may be presented to all or part of Ouli™’s subscriber base or its affiliate subscriber base or referral network and segmented by various variables including gender, age, location, and consumer preferences. The features may be offered through a variety of distribution channels, including, the Internet, the Ouli™ App, affiliate websites, business partner network, email, mobile applications, other types of electronic offerings and other platforms or distribution channels owned, controlled, or operated by Dante, its affiliates or business partners.
    3. Dante reserves the continuing right to reject, revise, or discontinue any Merchant Ouli™ Offer, at any time and for any reason in Dante’s sole discretion, and to terminate the Merchant Ouli™ Offers and to remove any and all references to the Ouli™ Offers from any of its distribution channels.
    4. Merchant shall honor the Ouli™ Offers through their Expiration Date.
    5. Merchant agrees that Merchant will not inflate prices or impose any additional fees, charges, conditions or restrictions that contradict or are inconsistent with the terms stated on the Ouli™ Offer, including the Fine Print. Unless disclosed in the Fine Print, Merchant further agrees not to impose different terms than what is imposed on its non-Ouli™ customers.
    6. Merchant agrees that so long as an appointment or reservation is made to redeem a Merchant Ouli™ Offer before the Offer Expiration Date, the Ouli™ Offer will be honored without restriction.
    7. Merchant is responsible for all customer service in connection with the Merchant's goods and/or services or the goods and/or services of any third party authorized by Merchant and for supplying all goods and services stated in an Ouli™ Offer.

  2. Invoices and Payment

    1. Dante shall submit a monthly invoice for all Ouli™ Offer redemptions during the month. Each redemption shall be billed at the rate specified in the Ouli™ Merchant Agreement.
    2. Invoices shall be submitted electronically to the Merchant designated contact.
    3. Invoices shall be payable within thirty (30) days from invoice date.
    4. Any unpaid amounts shall bear interest at a monthly rate of 1.5% compounded monthly.
    5. Taxes Generally. It is Merchant's responsibility to determine what, if any, taxes apply to the payments Merchant makes or receives, and it is Merchant’s responsibility to collect, report and remit the correct tax to the appropriate tax authority. Dante is not responsible for determining whether taxes apply to Merchant’s transaction with either Ouli™ subscribers or Dante, or for collecting, reporting or remitting any taxes arising from any transaction with or by Merchant and Ouli™ subscriber.
    6. Notwithstanding anything else in this Agreement, Merchant shall be, and will remain, registered for sales, use and other similar tax collection purposes in all states and localities in which Merchant is required to be so registered in connection with the Ouli™ Offers and pursuant to the terms and redemption of the Ouli™ Offers, and shall be responsible for paying any and all sales, use or any other taxes related to the Ouli™ Offers or the goods and services.

  3. Customer Data Restrictions

    1. "Customer Data" means all identifiable information about Ouli™ subscribers generated or collected by Dante or Merchant, including, but not limited to, subscribers’ names, shipping addresses, email addresses, phone numbers, subscriber preferences and tendencies, and financial transaction data.
    2. Merchant shall use Customer Data only to fulfill its redemption obligations in connection with the Ouli™ Offer as authorized by this Agreement. Merchant expressly agrees that any Customer Data shall be used only for this purpose (including, but not limited to, the redemption of Ouli™ Offers and provision of goods and services to Ouli™ subscribers), and not to enhance a file or list owned by Merchant, or any third party. Merchant represents, warrants and covenants that it will not resell, broker or otherwise disclose any Customer Data to any third party, in whole or in part, for any purpose, unless required by applicable law. If Merchant engages any third party to facilitate its redemption obligations hereunder, Merchant shall ensure that such third party implements and complies with reasonable security measures in handling any Customer Data. If any Customer Data is collected directly by Merchant or a third party engaged by Merchant to facilitate its redemption obligations hereunder, Merchant shall ensure that it or such third party adopts, posts and processes the Customer Data in conformity with its posted privacy policy and all applicable laws.
    3. As long as Merchant uses Customer Data in compliance with applicable law and Merchant's posted privacy policy, restrictions stated in this Agreement on Merchant's use of Customer Data do not apply to: (i) data from any customer who is already a customer of Merchant before the Effective Date, if such data was provided to Merchant by such customer independent of this Agreement or any transaction hereunder; or (ii) data supplied by a customer directly to Merchant who becomes a customer of Merchant in connection with such customer explicitly opting in to receive communications from Merchant.
    4. Merchant shall immediately notify Dante if Merchant becomes aware of or suspects any unauthorized access to or use of Customer Data or any confidential information of Dante, and shall cooperate with Dante in the investigation of such breach and the mitigation of any damages. Merchant will bear all associated expenses incurred by Dante to comply with applicable laws (including, but not limited to, any data breach laws) or arising from any unauthorized access or acquisition of Customer Data while such data is in Merchant's reasonable possession or control. Upon termination or expiration of this Agreement, Merchant shall, as directed by Dante, destroy or return to Dante all the Customer Data in Merchant's or any agent of Merchant's possession.

  4. Mobile Redemption Devices

    If Dante leases or lends Merchant a tablet or mobile redemption device ("Device"), Merchant agrees to be bound by the terms of use, end user license agreements, or other provisions governing its use, unless otherwise authorized by Dante in writing. Unless otherwise stated in writing, Merchant shall only use the Device for transmitting redemption data to Dante and processing customer payments and shall return a loaned Device fourteen (14) days after the termination of the Agreement. Dante reserves the right to bill Merchant for the cost of the Device if the device is not returned, or for costs related to damage or other misuse.

  5. Term and Termination

    This Agreement will continue in effect until terminated by either party in accordance with this Section ("Term"). Either Party is authorized to terminate this Agreement, at any time for any reason, upon written notice to the other Party. Upon termination, Dante will cease to present any Ouli™ Offers to its subscribers within twenty four (24) hours of receiving termination notice from Merchant. Termination of this Agreement will not in any way affect Merchant's obligation to redeem any Ouli™ Offer according to the terms of this Agreement, including the obligation to honor the Ouli™ Offers that were distributed prior to the termination date. Provisions in this Agreement that are intended to survive termination will continue in full force and effect after the Term.

  6. Marketing

    Dante and its business partners may communicate with Merchant with regard to products, promotions, and other services that may be of interest to Merchant. This may include email or other communications. Dante may also solicit Merchant’s opinion for market research purposes.

  7. Intellectual Property Rights

    1. Merchant grants to Dante a non-exclusive, worldwide, royalty free, paid-up, perpetual, irrevocable, transferable and sub-licensable license and right to use, modify, reproduce, sublicense, publicly display, distribute, broadcast, transmit, stream, publish and publicly perform: (a) Merchant's name, logos, trademarks, service marks, domain names, and any audiovisual content, video recordings, audio recordings, photographs, graphics, artwork, text and any other content provided, specified, recommended, directed, authorized or approved to use by Merchant (collectively, "Merchant IP"); and (b) any third party's name, logos, trademarks, service marks, domain names, audiovisual recordings, video recordings, audio recordings, photographs, graphics, artwork, text and any other content provided, specified, recommended, directed, authorized or approved for use by Merchant (collectively, "Third Party IP"), in each case in connection with the promotion and resale of the goods and services in all media or formats now known or hereinafter developed ("License"). Any use of the Merchant IP or Third Party IP as contemplated in this Agreement is within Dante’s sole discretion.
    2. Merchant acknowledges and agrees that, as between the parties, Dante owns all interest in and to the Ouli™ App, Ouli™ Services, Customer Data, Dante trade names, logos, trademarks, service marks, domain names, social media identifiers, all data collected through or from Ouli™, all audiovisual content, video recordings, audio recordings, photographs, graphics, artwork, text or any other content created by Dante or at Dante’s direction, or assigned to Dante, and any materials, software, technology or tools used or provided by Dante to promote, resell or distribute the goods and services and conduct its business in connection therewith (collectively "Dante IP"). Merchant shall not use, sell, rent, lease, sublicense, distribute, broadcast, transmit, stream, place shift, transfer, copy, reproduce, download, time shift, display, perform, modify or timeshare the Dante IP or any portion thereof, or use such Dante IP as a component of or a base for products or services prepared for commercial use, sale, sublicense, lease, access or distribution, except that Dante grants Merchant a limited, non-exclusive, revocable, non-transferable, non-sub licensable license during the Term to use one copy of Dante's mobile merchant software application on a single mobile computer, tablet computer, or other device, solely for the purposes permitted by that software, and to make one copy of the software for back-up purposes. Merchant shall keep the Dante IP confidential, and shall not prepare any derivative work based on the Dante IP or translate, reverse engineer, decompile or disassemble the Dante IP. Merchant shall not take any action to challenge or object to the validity of Dante’s rights in the Dante IP or Dante’s ownership or registration thereof. Except as specifically provided in this Agreement, Merchant and any third party assisting Merchant with its obligations in this Agreement, are not authorized to use Dante IP in any medium without prior written approval from an authorized representative of Dante. Merchant shall not include any trade name, trademark, service mark, domain name, social media identifier, of Dante or its affiliates, or any variant or misspelling thereof, in any trademark, domain name, email address, social network identifier, metadata or search engine keyword. Merchant shall not use or display any Dante IP in a manner that could reasonably imply an endorsement, relationship, affiliation with, or sponsorship between Merchant or a third party and Dante. All rights to the Dante IP not expressly granted in this Agreement are reserved by Dante.
    3. If Merchant provides Dante or any of its affiliates with feedback, suggestions, reviews, modifications, data, images, text, or other information or content about a Dante product or service or otherwise in connection with this Agreement, any Dante IP, or Merchant's participation in the Ouli™ Offer, (collectively, "Feedback"), Merchant irrevocably assigns to Dante all right, title, and interest in and to Feedback. In the event your assignment to Dante is invalid for any reason, you hereby irrevocably grant Dante and its affiliates a perpetual, paid-up, royalty-free, nonexclusive, worldwide, irrevocable, freely transferable right and license to (i) use, reproduce, perform, display, and distribute Feedback; (ii) adapt, modify, re-format, and create derivative works of Feedback for any purpose and sublicense the foregoing rights to any other person or entity. Merchant warrants that: (A) Feedback is Merchant's original work, or Merchant obtained Feedback in a lawful manner; and (B) Dante and its sublicensees' exercise of rights under the license above will not violate any person's or entity's rights, including any copyright rights. Merchant agrees to provide Dante such assistance as Dante might require to document, perfect, or maintain Dante’s rights in and to Feedback.

  8. Representations and Warranties

    Merchant represents and warrants that: (a) Merchant has the right, power and authority to enter into this Agreement; (b) Merchant, if required by applicable law, is registered for sales and use tax collection purposes in all jurisdictions where Merchant's goods and services will be provided; (c) the Ouli™ Offer, upon being delivered by Ouli™, will be available immediately for redemption; (d) the terms and conditions of the Ouli™ Offer, including any discounts or goods and services offered thereunder do not and will not violate any, local, state, provincial, territorial or federal law, statute, rule, regulation, or order, including but not limited to, any law or regulation governing the use, sale, and distribution of alcohol and any laws governing vouchers, gift cards, coupons, and gift certificates; (e) Merchant owns all interest in and to the Merchant IP and has licensing rights in (with the right to sublicense to Dante) the Third Party IP, and has the right to grant the License stated in this Agreement; (f) the Merchant IP and the Third Party IP, the goods or services, Dante’s use and promotion thereof, and the results of such goods or services, will not infringe, dilute, misappropriate, or otherwise violate, anywhere in the world, any patent, copyright, logo, trademark, service mark, trade name, rights in designs, or other intellectual property right or right of privacy or publicity of any third party or any applicable law, and does not and will not result from the misappropriation of any trade secret or the breach of any confidentiality obligations to any person or entity; (g) the Merchant IP and Third Party IP does not include any material that is unlawful, threatening, abusive, defamatory, vulgar, obscene, profane or otherwise objectionable, or that encourages conduct that constitutes a criminal offense, gives rise to civil liability or otherwise violates any law; (h) the Ouli™ Offers and any advertising or promotion of Merchant's or third party’s goods and services relating thereto will not constitute false, deceptive or unfair advertising or disparagement under any applicable law; (i) Merchant (or any third party authorized by Merchant) and their employees, contractors and agents have had the proper education and training and hold all required and up-to-date regulatory authorization, licenses and certifications relating to any Ouli™ Offer to provide the goods or services described in this Agreement; (j) Merchant (and any third party authorized by Merchant) is not authorized to resell, broker or otherwise disclose any Customer Data (as defined in this Agreement) to any other party, in whole or in part, for any purpose, and Merchant (and any third party authorized by Merchant) is not authorized to copy or otherwise reproduce any Customer Data other than for the purpose of redeeming or verifying the validity of Ouli™ Offers in connection with this Agreement.

  9. Idemnification

    To the extent allowed under applicable law, Merchant agrees to defend, indemnify and hold Dante, its affiliated and related entities, and any of its respective officers, directors, agents and employees, harmless from and against any claims, lawsuits, investigations, penalties, damages, losses or expenses (including but not limited to reasonable attorneys' fees and costs) arising out of or relating to any of the following: (a) any breach or alleged breach by Merchant of this Agreement, or the representations and warranties made in this Agreement; (b) any claim for state sales, use, or similar tax obligations of Merchant (or any third party authorized by Merchant) arising from the sale and redemption of an Ouli™ Offer; (c) any claim arising out of a violation of any law or regulation governing Merchant's (and any third party authorized by Merchant) goods and/or services; (d) any claim arising out of Merchant's or any third party’s violation of law or regulation governing the use, sale, and distribution of alcohol; (e) any claim by a purchaser or anyone else arising out of or relating to the goods and services provided by Merchant or any third party, including but not limited to, any claims for false advertising, product defects, personal injury, death, or property damages; and (f) any claim arising out of Merchant's or any third party’s misuse of Customer Data, or any violation of an applicable data privacy or security law, and (g) any claim arising out of Dante’s provision of any notifications or postings via the Ouli Services. Dante maintains the right to control its own defense and to choose and appoint its own defense counsel, regardless of the presence or absence of a conflict of interest between Dante and Merchant. Merchant's duty to defend and indemnify Dante includes the duty to pay Dante’s reasonable attorneys' fees and costs, including any expert fees.

  10. Confidentiality

    The terms of this Agreement are confidential, and Merchant agrees not to disclose the terms described in this Agreement to any party (other than to its employees, parent companies, shareholders, lawyers and accountants on a strict need-to-know basis or as required by applicable public records and other law, if Merchant has taken the necessary precautions of the kind generally taken with confidential information to preserve the confidentiality of the information made available to such parties). In the event of a breach, Dante is entitled to injunctive relief and a decree for specific performance, and any other relief allowed under applicable law (including monetary damages if appropriate).

  11. Limitation of Liability

    EXCEPT FOR MERCHANT'S INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT IS EITHER PARTY LIABLE OR OBLIGATED TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST BUSINESS, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE, OR INDIRECT DAMAGES REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGES IN ADVANCE. DANTE’S SOLE AND COMPLETE LIABILITY TO MERCHANT FOR ANY CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR ANY ERRORS, OMISSIONS OR MISPLACEMENTS OF ANY OFFER IS LIMITED TO THE AMOUNT OF FEES PAID BY MERCHANT HEREUNDER FOR THE PRECEEDING SIX(6) MONTHS. THIS LIMITATION OF LIABILITY APPLIES TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF ANY LIMITED REMEDY.

  12. Dispute Resolution

    All disputes arising out of, or relating in any way to this Agreement, shall be resolved pursuant to this Section 12 Dispute Resolution.
    1. Binding Arbitration
      EXCEPT AS SPECIFICALLY STATED HEREIN, ANY DISPUTE OR CLAIM BETWEEN MERCHANT AND DANTE ARISING OUT OF, OR RELATING IN ANY WAY TO, THIS AGREEMENT ("DISPUTES") SHALL BE RESOLVED EXCLUSIVELY BY FINAL, BINDING ARBITRATION. BY VIRTUE OF THE AGREEMENT IN THIS SECTION 12 TO ARBITRATE, MERCHANT AND DANTE ARE EACH GIVING UP THE RIGHT TO GO TO COURT AND HAVE A DISPUTE HEARD BY A JUDGE OR JURY (EXCEPT AS OTHERWISE SET FORTH IN THIS SECTION 12). The provisions of this Section 12 shall constitute Merchant’s and Dante’s written agreement to arbitrate Disputes under the Federal Arbitration Act. The arbitration will be administered by the American Arbitration Association ("AAA") and conducted before a single arbitrator pursuant to its applicable rules, including those applicable to Commercial Disputes, available at http://www.adr.org. The arbitrator will apply and be bound by this Agreement, apply applicable law and the facts, and issue a reasoned award.

      To begin an arbitration proceeding, Merchant or Dante must comply with the limitations provision set forth in Section 11 and submit the Dispute by making a demand for arbitration as detailed at http://www.adr.org. If Merchant demands arbitration, it shall simultaneously send a copy of the completed demand to the following address: Dante Consulting, 5328 Lee Hwy Arlington Virginia 22207, Attn: Pierre Malko. If Dante demands arbitration, it shall simultaneously send a copy of the completed demand to the Merchant's address of record. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. Dante will reimburse those fees for Disputes totaling less than $10,000 if Merchant is the prevailing party in such arbitration. Dante will not seek attorneys' fees and costs in arbitration unless the arbitrator determines that a Merchant Dispute is frivolous. The arbitration will be conducted based upon written submissions unless Merchant requests and/or the arbitrator determines that a telephone or in-person hearing is necessary. If the arbitrator grants the request or determines an in-person hearing is necessary, the hearing will proceed in Arlington, Virginia, unless the arbitrator determines or we agree that the matter should proceed in the county of Merchant's principal place of business.
    2. Class Action Waiver
      WE EACH AGREE THAT WE SHALL BRING ANY DISPUTE AGAINST THE OTHER IN OUR RESPECTIVE INDIVIDUAL CAPACITIES AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE PROCEEDING OR AS AN ASSOCIATION. IN ADDITION, WE EACH AGREE THAT DISPUTES SHALL BE ARBITRATED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. THE ARBITRATOR DOES NOT HAVE THE POWER TO VARY THESE PROVISIONS.
    3. Choice of Law/No Jury Trial
      If for any reason a Dispute proceeds in court: (i) Merchant and Dante agree that any such Dispute may only be instituted in a state or federal court in Arlington County, Virginia; (ii) Merchant and Dante irrevocably consent and submit to the exclusive personal jurisdiction and venue of such courts for resolution of such Disputes; (iii) Merchant and Dante agree that the Federal Arbitration Act, the AAA rules, applicable federal law and the laws of the State of Virginia, without regard to principles of conflicts of law, will govern this Agreement and any Disputes; and (iv) MERCHANT AND DANTE AGREE TO WAIVE ANY RIGHT TO A TRIAL BY JURY.
    4. Injunctive Relief/Attorneys' Fees
      Notwithstanding anything to the contrary in this Agreement, either party may bring suit in court seeking an injunction or other equitable relief arising out of or relating to claims that the other party’s conduct may cause the other irreparable injury.

      In the event Dante is the prevailing party in any Dispute, subject to any exceptions in this Section 12, Merchant shall pay to Dante all reasonable attorneys’ fees and costs incurred by Dante in connection with any Dispute.

  13. Other

    1. The parties are independent contractors. Nothing in this Agreement is to be construed to create a joint venture, partnership, franchise, or an agency relationship between the parties. Neither party has the authority, without the other party's prior written approval, to bind or commit the other in any way.
    2. This Agreement constitutes the entire agreement between the parties relating to its subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter.
    3. Merchant is not authorized to transfer or assign its rights or obligations under this Agreement, whether by operation of law or otherwise, without Dante’s prior written consent. Any waiver must be in writing and signed by an authorized signatory of Dante. Dante is authorized to transfer or assign this Agreement to a present or future affiliate or pursuant to a merger, consolidation, reorganization or sale of all or substantially all of the assets or business, or by operation of law, without notice to Merchant.
    4. If any provision of this Agreement should be held to be invalid or unenforceable, the validity and enforceability of the remaining provisions of this Agreement are not affected.
    5. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS NOR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. DANTE DOES NOT WARRANT OR GUARANTEE THAT THE SERVICES OFFERED ON OR THROUGH Ouli™ WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE OFFERS ARE ERROR-FREE, OR THAT ANY Ouli™ OFFER WILL RESULT IN ANY REVENUE OR PROFIT FOR MERCHANT.