This Merchant’s Agreement (“Agreement”) is made by and between Wowulous Co., Ltd. (“Wowulous”) and a prospective seller of goods fand/or services (“Merchant”) via the Giftvibes platform provided by Wowulous. This Agreement governs a Merchant’s access to and use of the Giftvibes Website, products, and services (“Products”) for the sale of products, services or content (“Merchandise”) directly through the Giftvibes website or via its applications. This Agreement shall subsist between and apply to a Merchant and/or a Merchant’s brand(s), together with any company, and any affiliate or other business entity Merchant represents or with which a Merchant is otherwise affiliated or associated for the purposes herein (individually or collectively also “Merchant”) and Wowulous.
Wowulous provides the services offered by Giftvibes (the “Services”) through Wowulous’ Website, on-line at www.giftvibes.com (the “Site”), and applications for mobile devices (the “Applications”). Merchant wishes to offer its Merchandise for sale through vouchers (“Voucher(s)”) which can be redeemed for Merchant's Merchandise, and which are offered to the public for purchase at www.giftvibes.com, and Wowulous wishes to sell Merchant's Voucher(s) under applicable voucher programs to purchasers at the Website, the Merchant being the seller of the Merchandise, and Wowulous (through the aegis of Giftvibes) being the seller of the intangible rights contained in the Merchant's Voucher(s).
Any Merchant who desires access to the Site or Applications for use of the Services to sell Merchandise must accept the terms and conditions of this Agreement without change. By registering for and using the services, Merchant agrees to be bound by all terms and conditions of this Agreement, and all policies and guidelines of the site that are incorporated by reference herein and made a part hereof. Wowulous reserves the right to change any of the terms and conditions contained in this Agreement or any policies or guidelines governing the Site, Applications or Services at any time and in its sole discretion. Merchant shall be responsible for reviewing the notices and any applicable changes. Any such revisions will be posted to a dedicated column or box titled “Revision to Terms” and appearing on the “Back office” page of the Site for Merchant’s ease of reference. Any changes will become effective after 14 days upon posting of the revisions to the Site. Merchant’s continued use of this site and the services following Wowulous’ posting of any changes will constitute Merchant’s tacit acceptance of such changes or modifications. If Merchant does not agree to any changes to this Agreement, Merchant shall discontinue use of the Services, the Site and/or Applications.
Use of the Site, Applications and Services is limited to parties that may lawfully enter into and form contracts under applicable law(s). For example, minors under 13 year old are not permitted to use the Services. To register, Merchant must provide Merchant’s real name, address, phone number, e-mail address, tax identification number, valid banking information and other particulars as these may from time to time be required by applicable laws or regulations. Merchant represents and warrants that: (a) if Merchant is a corporation, partnership, organization, association or other registered legal entity or person, it is duly organized, validly exists and is in good standing under the laws of the country in which it is registered and that Merchant is registering for the Services within such country; and (b) Merchant has all requisite rights, powers and authority to enter into this Agreement and perform Merchant’s obligations hereunder. If for any reason Wowulous in its sole discretion believes such information to be incorrect, misleading or inaccurate, it reserves the right, without provision of any notice to Merchant, to suspend or revoke any and all licenses under this Agreement and/or to decline to provide the Site’s Services to Merchant hereunder.
2) Merchants' Listing Fees and Payment Terms
All fees for use of the Site and Applications are listed as a percentage of the final sale price unless stated otherwise and are incorporated herein by reference and made a part hereof. All fees and payment terms may vary in the future subject to a changing legal, regulatory or commercial environment. The fee and payment terms in effect on the date of sale of the Merchandise shall govern each transaction. Merchant shall check the fees and terms each time Merchant participates. All fees are deducted from the final transfer of funds to Merchant. By listing Merchandise for sale on the Site, Merchant authorizes Wowulous to deduct any fees from amounts due thereunder.
3) Applicable Policies and Guidelines
a. Redemption Policy:
Merchants will assist the recipient of the Merchant’s goods or services in the redemption process when the recipient retrieves or consumes the goods or services in question at the Merchant's store. Immediately after successful completion of the redemption, the Merchant will deliver the Merchant’s goods or services to the recipient, who will then become the legal owner thereof. In the event that a problem arises, the Merchant will check his/her back office in the order page for the status of the order and other information relating to such order. If the goods or services are unavailable, the Merchant may propose a substitution of goods or services of the same or of a higher value, but the recipient has the option to decline such substitution at any time prior to acceptance. All goods and services purchased by a buyer on giftvibes are valid 3 months from the day of purchase. After the period of 3 months all goods and services bought by a buyer are considered not valid to be redeemed and consumed.
4) Wowulous’ Role
Wowulous provides a platform for Merchants and buyers (“Buyers”) to conclude transactions. Wowulous is not involved in the actual transaction between Merchants and Buyers, and is not the agent of Merchants except for the limited purpose of processing payments. Wowulous has no agency authority for any other purpose, and Wowulous is not the agent of Buyers for any purpose whatsoever. As a Merchant, Merchant may list any item of Merchandise on the Site unless it is a prohibited item as defined in the Site’s Terms of Service, this Agreement or otherwise prohibited by law. Without limitation, Merchant may not list any item of Merchandise or link or post any related material that (a) infringes any third-party intellectual property rights (including copyright, trademark, patent, and trade secrets) or other proprietary rights (including rights of publicity or privacy); (b) constitutes libel or slander or is otherwise defamatory; or (c) is counterfeited, illegal, stolen, misrepresented or fraudulent. It is Merchant’s obligation to accurately describe the item for sale. Merchant uses the Site and the Services at Merchant’s own risk. Wowulous assumes no obligation to investigate the veracity of Merchant’s claims with respect to an item of Merchandise and any defects and nonconformity with warranties, either express or implied with respect to such defects in such Merchandise are the exclusive obligation of the Merchant or redeeming outlet, and Buyers shall have no recourse whatsoever against Wowulous therefor.
Merchant acknowledges that, by only providing Merchant with the ability to publish, sell and distribute Merchant’s own or third party Merchandise, the Services act only as passive conduits for the distribution and/or publishing of such Merchandise. Wowulous assumes no obligation to Merchant or to any third party, and undertakes no obligation to review Merchant’s sales, the Merchandise listed therein or any other content to determine whether any such Merchandise or content(s) may incur liability as against third parties. Notwithstanding anything to the contrary herein, if Wowulous believes in its sole discretion that Merchant’s sale of any Merchandise or other materials in the listing or on Wowulous’ servers holds the potential to incur liability for Wowulous or harm other users of the Services, then Merchant agrees that Wowulous may take any action(s) with respect to the content(s) or materials or listing(s) that Wowulous deems prudent or necessary to minimize or eliminate Wowulous’ potential liability, or to protect other users of Wowulous’ Services.
5) Merchant Obligations and Responsibilities
Merchant is solely responsible for creating, managing, editing, reviewing, deleting and otherwise controlling the content of the sale posted to the Site, including all descriptions of Merchandise and disclosures and warnings of product materials that are required to be disclosed by any applicable domestic and international laws, statutes, ordinances and/or regulations in the jurisdiction wherein the Merchandise is offered for sale. If Merchant has cause to believe that Merchant’s sale is in violation of any law(s) or the rights of any third party, Merchant will promptly notify Wowulous using the functionality for contacting Wowulous as provided on the Site. Notwithstanding anything contained in the foregoing, if Merchant breaches or fails to fulfill any of the terms of this Agreement, Wowulous shall be entitled to suspend or terminate Merchant’s sale(s) and/or any access to information or data related to that Merchant’s Account.
6) Service License
Merchant acknowledges and agrees that, as between Merchant and Wowulous, all Services and Applications provided by Wowulous, and all worldwide intellectual property rights therein are the exclusive property of Wowulous. All rights not expressly granted to Merchant in this Agreement are reserved by Wowulous.
Merchant acknowledges that the Services and Applications and their structure, organization, and source code constitute valuable intellectual property of Wowulous. Accordingly, Merchant will not, either directly or through a third party, (a) modify, adapt, alter, translate, or create derivative works from the Site, Applications or Services; or (b) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Site, Applications or Services.
7) Merchant Registration
In order to sell Merchandise on the site, Merchant must register Merchant’s merchant information on the site. Merchant must provide Wowulous with true and accurate information when registering and must maintain and update that information as applicable. Merchant will not impersonate any person or use a name he or she is not legally authorized to use, or otherwise operate under a pseudonym, assumed alias, avatar or alter ego. Merchant hereby authorizes Wowulous to verify his/her information (including any updated information), to obtain credit reports respecting Merchant in order to approve Merchant for use of the Site, and to obtain an initial credit authorization from Merchant's bank account at the time of registration.
- Wowulous and any third party agents designated by Wowulous shall act to facilitate the purchase of Merchandise listed on the Site. A Buyer's authorized credit card or other form of payment (“Payment Transaction”) shall be credited to a registered Merchant's account, and Wowulous will periodically transfer funds to the Merchant's designated checking account (“Merchant's Account”) in accordance with schedules and methods devised by Wowulous in response to developing business needs and practices and other relevant legal, regulatory and commercial factors, although Wowulous pledges in each case to act in good faith to ensure the transfer of said funds with all possible expediency and celerity. The Buyer may authorize a Payment Transaction with any major credit card accepted by Wowulous, or a voucher code issued by Wowulous. Receipt of Payment Transaction funds by Wowulous on a Merchant's behalf will be deemed receipt of funds by Merchant, and will satisfy the obligations owed to Merchant by the Buyer in the amount of the applicable Payment Transaction. Upon completion of a Payment Transaction, a receipt indicating that payment has been made will be furnished to the Buyer. Wowulous’ obligation to remit funds collected by Wowulous on Merchant’s behalf will be limited to funds that Wowulous has actually received and that are not subject to chargeback or reversal. Wowulous and any third party agents designed by Wowulous help facilitate Payment Transactions and are not the purchasers of Merchant's goods. Merchant will resolve any dispute directly with Buyer or with the assistance of Wowulous.
- Payment Transactions can be credited only to bank checking accounts in Belgium or any other country shown as supported by Wowulous’ standard functionality and enabled for Merchant’s account (which functionality may be modified or discontinued by Wowulous at any time without prior notice).
- The Site is generally available seven (7) days per week, twenty-four (24) hours per day, except for scheduled downtime due to system maintenance. Wowulous can initiate Payment Transaction credits to Merchant's Account only on a Business Day when the automated clearinghouses are open for business. For purposes of this Agreement, a Business Day is a Monday through Friday, excluding Belgium federal banking holidays. Wowulous will inform Merchant of each completed transaction using Wowulous’ standard procedures.
- Merchant may provide refunds or adjustments to Buyers for their purchases through the Site using functionality Wowulous enables for Merchant’s account. This functionality may be modified, suspended or discontinued by Wowulous at any time without prior notice and is subject to the terms of this Agreement. Merchant may only use functionality provided by the Site to create invoices for sales processed through the Site or Applications.
- Wowulous will initiate a transfer to the Merchant on a monthly basis for the total amount of Payment Transactions received from Buyer's authorized credit card transactions during the previous month, less any refunds, adjustments, or other amounts paid to Buyers in connection with purchases as well as applicable Merchant fees. In the event that a Buyer tenders payment, or partial payment, to the Merchant via a Wowulous-issued gift card, voucher code or user earned referral credit, Wowulous shall be responsible for transferring the value of such portion of the Buyer’s transaction to the Merchant upon deposit of payment.
- Transfers to the Merchant's Account will generally be credited within five Business Days of the date Wowulous initiates the transfer. Amounts under US$100 will be transferred by paypal, unless the merchant chooses to pay for the transaction fee.
- As a security measure, Wowulous may, but is not required to, impose transaction limits on some or all Buyers and Merchants relating to the value of any transaction, disbursement, or adjustment, the cumulative value of all transactions, disbursements, or adjustments during a period of time, or the number of transactions per day or other period of time. Wowulous will not be liable to Merchant: (i) if Wowulous does not proceed with a transaction, disbursement, or adjustment that would exceed any limit established by Wowulous for a security reason, or (ii) if Wowulous permits a Buyer to withdraw from a transaction because the Site or Applications are unavailable following the commencement of a transaction.
- If Wowulous reasonably concludes based on information available to Wowulous that Merchant's actions and/or performance in connection with the Services may result in Buyer disputes, chargebacks or other claims, then Wowulous may, in Wowulous’ sole discretion, delay initiating any remittances and withhold any payments to be made or that are otherwise due to Merchant in connection with the Services or this Agreement for the shorter of: (a) a period of 90 days following the initial date of suspension; or (b) completion of any investigation(s) regarding any Merchant actions and/or performance in connection with this Agreement. Wowulous will not be liable to Merchant if Wowulous reasonably acts in accordance with the provisions of this Section.
- All notices will be sent by e-mail or will be posted on the Site. Wowulous will transmit notices to Merchant at the e-mail address maintained in Wowulous’ records for Merchant. Merchant will monitor Merchant’s e-mail messages frequently to ensure awareness of any notices sent by Wowulous. Merchant will send notices to Wowulous using the functionality for contacting Wowulous as provided on the Site.
- There is no fee for registering to sell on the Site or Applications. The fees for sales processed via the Site or Applications are deducted from any final payments transferred to Merchants. Wowulous may, in its sole discretion, waive, reduce, or reverse charges or fees for a specific transaction as circumstances may require.
- Wowulous may refuse service to anyone for any reason. Wowulous may earn interest or other compensation from the balances in Wowulous’ bank accounts that result from the timing difference between Wowulous being paid by Buyer and Wowulous’ bank account being debited to pay Payment Transaction credits to Merchant. Merchant will assume all risk of credit card fraud (i.e. fraudulent purchase arising from the theft and unauthorized use of a third party's credit card, debit card or other bank information) or loss in connection with Payment Transactions. Wowulous will not assume the risk of credit card or other fraud in connection with any of Merchant's Merchandise that is not fulfilled strictly in accordance with the order information and shipping information that Wowulous provides Merchant. Wowulous reserves the right to seek reimbursement from Merchant if Wowulous, in its sole discretion, decides to reimburse Buyer, provide a refund to Buyer if Merchant is unable to promptly deliver Merchandise, if Wowulous discovers erroneous or duplicate transactions, or receives a chargeback from Buyer's credit card issuer for the amount of Buyer's purchase from Merchant. Wowulous may obtain reimbursement of any amounts owed by Merchant to Wowulous by deducting these from future payments by Wowulous to Merchant, reversing any credits to Merchant's Account, or seeking such reimbursement from Merchant by any other lawful means. Merchant authorizes Wowulous to use any or all of the foregoing methods to seek reimbursement, including the debiting of Merchant’s checking account.
- Merchant may terminate his or her participation in the Site or Applications at any time by informing Wowulous using the standard method provided by Wowulous for such termination, and Wowulous may suspend and terminate Merchant's participation in the Site or Applications at any time, Merchant must pay Wowulous whatever fees that were incurred prior to the effective date of the termination. Also upon termination, any pending transactions will be canceled.
Wowulous reserves the right, upon termination, to set off against any payments to be made to Merchant, in an amount determined by Wowulous to be adequate to cover chargebacks, refunds, adjustments or other amounts paid to Buyers in connection with purchases from Merchant's Account for a prospective three-month period. At the end of such three-month period following termination, Wowulous will disburse to Merchant any amount not used to offset chargebacks, refunds, adjustments, or such other amounts paid to Buyers, or seek reimbursement from Merchant via any of the means authorized in Section 5.k. above for any additional amount required to offset chargebacks, refunds, adjustments, or other amounts paid to Buyers, as applicable.
8) Reservation of Rights
Wowulous retains the right to determine the content, appearance, design, functionality and all other aspects of the Site and the Services (including the right to re-design, modify, remove and alter the content, appearance, design, functionality, and other aspects of the Site, Application and the Service and any element, aspect, portion or feature thereof, from time to time), and to delay or suspend listing of, or to refuse to list, or to de-list, or to require Merchant not to list, any or all Merchandise in Wowulous’ sole discretion. Wowulous may in its sole discretion withhold for investigation, refuse to process, restrict shipping destinations for, stop and/or cancel any of Merchant’s transactions. Merchant will stop and/or cancel orders of Merchant’s Merchandise if Wowulous requires that Merchant do so (provided that if Merchant has transferred Merchant’s Merchandise to an applicable carrier or shipper, Merchant will use commercially reasonable efforts to stop and/or cancel delivery by such carrier or shipper). Merchant will refund payment to any Buyer (in accordance with this Agreement) that has been charged for an order that Wowulous stops or cancels.
9) Employee Participation
Employees of Wowulous and its affiliates are permitted to participate in their personal capacity in the transactions conducted through the Site and Applications (unless they have confidential information about a particular item unknown to other participants). Employees of Wowulous and its affiliates, when participating in any transaction in their personal capacity, are subject to this Agreement and the same procedures and guidelines contained in Wowulous’ Terms of Service as any other Buyer or Merchant on this Site.
10) Merchant Transactions
- Fees and Pricing. For each purchase completed through the Site or Applications, Wowulous shall collect the amount paid by the Buyer, including the item price or other charges and any applicable taxes. Wowulous shall deduct, as a referral fee, a percentage of the item price excluding any taxes collected through Wowulous or its tax collection services or agents. The amount of such fees are 5% of the final sale price (introduction fee valid until June 2015, 10% until December 2015) of the designated retail price for the Merchandise vended through the Website and applications. This percentage may vary from time to time subject to the same conditions as referenced herein above, and be subject to the same notice provisions of posting on the Back office page of the merchant on the website.
- Pricing. Merchant may list items of Merchandise at any price Merchant feels is fair. Wowulous shall recommend that the item price and total price of an item Merchant lists on the Site and Applications are at or below the item price and total price at which Merchant offers and/or sells the item via any other online & offline sales channel. The item price is the amount payable by a Buyer, excluding shipping and handling, as it appears when Merchant lists an item. Except where noted otherwise, the price or suggested price displayed for products on the Site or Applications represents the full retail price listed on the product itself including value-added tax applicable in the country where the items are offered for sale.
- Total Price. The total price is the amount payable by a Buyer as well as all terms of offer/sale. This includes discounts, rebates, voucher codes, or special sales/promotions Merchant offers/makes with respect to purchases.
- Sale Price. The Merchant is obligated to sell Merchandise at the listed price to Buyers who meet the Merchant's terms. By listing an item of Merchandise on the Site and Applications, Merchant represents and warrants to prospective Buyers that Merchant has the right and ability to sell, and that the listing is accurate, current, and complete and is not misleading or otherwise deceptive. All price offers shall be absolute unilateral offers not subject to further negotiation, and Merchant agrees not to engage in bait-and-switch and other deceptive practices.
- Order Fulfillment. The Merchant is solely responsible for processing and fulfilling customer orders generated through the Merchant’s listing, and handling any customer inquiries, complaints, or disputes arising from orders or sales generated through Merchant’s listing. Merchant agrees that Wowulous has no obligation to back-up any data related to Merchant’s listing, and that Merchant shall independently take appropriate steps to maintain such data in accordance with Merchant’s needs and requirements.
- Purchase Price. Merchant will determine the purchase price for each item of Merchandise Merchant lists on the Site, subject to Wowulous’ standard functionality for listing the purchase price, provided that the Merchant must abide by any procedures and guidelines Wowulous may indicate with respect to pricing.
- Other Services. Wowulous may undertake certain order fulfillment services, such as payment verification and processing, available through third-party vendors (“Vendor(s)”), which may be pursuant to a separate agreement between Merchant and the applicable Vendor. Merchant understands and agrees that Wowulous is not responsible for the availability or provision of such services or for such Vendor’s non-performance or breach(es). Wowulous does not guarantee the availability, security or delivery of such services or that Merchant will be eligible for any Vendor’s services.
11) Merchant’s Obligations
By entering into this Agreement and posting a listing for sale, Merchant agrees to complete the transaction as described by this Agreement. Merchant acknowledges that its failure to fulfill these obligations may render Merchant’s action or inaction legally actionable.
Merchant covenants that any Merchandise published and listed shall not violate Wowulous’ Terms of Service as these may be amended from time to time, or any of the following:
- Be false, inaccurate or misleading;
- Be fraudulent or involve the sale of counterfeit, stolen or infringing items;
- Infringe or misappropriate any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy;
- Violate any law, statute, ordinance or regulation (including those governing privacy, publicity, export controls, consumer protection, intellectual property, gambling, unfair competition, anti-discrimination, criminal activities or false advertising);
- Be defamatory, libelous, offensive, unlawfully threatening or harassing, or advocating, promoting or providing assistance involving violence, significant risk of death or injury, or other unlawful activities;
- Be obscene or contain adult items, nudity or child pornography;
- Contain any viruses, Trojan horses, worms, time bombs, spiders, bots or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept, capture or expropriate any system, data or personal information;
- Involve the transmission of any unsolicited commercial or bulk email (“spamming”), nor shall Merchant’s Account be used as a return address for unsolicited commercial mail originating elsewhere or participate in any activities related to so-called pyramid or Ponzi schemes or the like;
- Involve the collection, sale or transmission of, or attempt to collect personally identifiable information of any person or entity, except with the express written consent of that person or entity, and of which consent Merchant shall maintain a written record for a period of three (3) years after any termination of this Agreement;
- Be harmful or potentially harmful to Wowulous’ Server structure as determined in Wowulous’ sole discretion, including without limitation overloading Wowulous’ technical infrastructure;
- Create liability for Wowulous and its subcontractors or expose them to undue risk or otherwise engage in activities that Wowulous, in its sole discretion, determines to be harmful to Wowulous, its affiliates, operations, reputation, or goodwill; or
Link directly or indirectly to or include descriptions of goods or services that violate any applicable law, statute, ordinance or regulation, or that violate this Agreement; and
Merchant agrees not to publish, offer for sale, sell or otherwise distribute any of the following items on, through or connected with Merchant’s sale:
Merchant further agrees not to publish, offer for sale, sell or otherwise distribute any of the following items, except as permitted by, and in full compliance with, all applicable laws:
- Blood, bodily fluids or body parts;
- Burglary tools;
- Counterfeit items;
- Illegal drugs and drug paraphernalia;
- Fireworks, destructive devices and explosives;
- Identity documents, government documents, personal financial records or personal information (in any form, including mailing lists);
- Lottery tickets, sweepstakes entries or slot machines;
- Obscene material or child pornography;
- Offensive material or hate speech;
- Police badges or uniforms;
- Prescription drugs or devices;
- Recalled items;
- Prohibited services;
- Stocks or other securities;
- Stolen property; or
- Alcohol to minors, following applicable laws in the country where alcoholic goods will be consummed
- Any Merchandise that is illegal or marketed or sold in such a way as to expose Wowulous to liability.
- Digital files that Merchant does not own or lacks all necessary rights or license to store, display, perform, copy and distribute;
- Tobacco products;
- Hazardous, toxic, restricted or perishable items;
- Animals, animal products, plants and seeds;
- Charitable services or goods and fundraising;
- Prohibited antiquities, fossils, cultural artifacts, and cultural heritage items;
- Currency and stamps;
- Used items, such as clothing or, bedding and cosmetics;
- Adult items or pornography;
- Content or material that infringes or otherwise violates the law, including: music; movies; e-books; games; videos; photographs and software; or
- Weapons and other related items, including, without limitation, firearms, firearm plans, parts and magazines, slingshots, wrist-rockets, ammunition and other ordnance, BB and pellet guns, tear gas, stun guns, hunting bows and arrows, swords, switchblade knives, nunchaku (nunchuks), shurikens (throwing stars) and other martial arts weapons.
12) Merchant Taxes
Merchant hereby agrees that it is the Merchant's obligation to determine whether Merchant Taxes apply to the transactions and to collect, report, and remit the correct Merchant Taxes to the appropriate tax authority, and Merchant acknowledges that Wowulous is not obligated to determine whether Merchant Taxes apply and is not responsible for collecting, reporting, or remitting any sales, use, or similar taxes arising from any transaction, except to the extent Wowulous expressly agrees to collect taxes or other transaction-based charges in connection with a collection service made available by Wowulous and used by Merchant. “Merchant Taxes” means any and all sales, goods and services, use, excise, import, export, value added, sales, consumption and other taxes and duties levied, assessed, incurred or required to be collected or paid for any reason in connection with any advertisement, offer or sale of Merchandise by Merchant on or through the Site, or otherwise in connection with any action, inaction or omission by Merchant or any of Merchant’s affiliates, or any of Merchant’s or their respective employees, agents, contractors, brokers or representatives.
13) Returns and Refunds
Merchant will accept and process returns, refunds and adjustments in accordance with this Agreement and the Wowulous’ return policies that published on the Site and Applications at the time of the applicable order, and Wowulous may inform customers that these policies apply to Merchant’s Merchandise. Merchant will determine and calculate the amount of all refunds and adjustments (including any taxes, shipping and handling or other charges) or other amounts to be paid by Merchant to Buyers in connection with purchases, using functionality Wowulous enables for Merchant’s account, and will route all such payments through Wowulous and any third party agents designated by Wowulous. Wowulous will provide any such payments to the Buyers (which may be in the same payment form originally used to purchase Merchant’s Merchandise), and Merchant will reimburse Wowulous for all amounts so paid. Wowulous may offset such payments against any amounts to be remitted or paid by Wowulous to Merchant under this Agreement or seek reimbursement from Merchant via any of the means authorized in Section 7.k. Merchant will promptly provide refunds and adjustments that Merchant is obligated to provide under the applicable Wowulous return policies and as required by law, and in no event later than thirty (30) days after the obligation arises.
14) Password Security
Merchant’s password may be used only to access the Site and Application, use the Services, electronically sign Merchant’s transactions, and review Merchant’s completed transactions. Merchant is solely responsible for maintaining the security of Merchant’s password. Merchant may not disclose Merchant’s password to any third party (other than third parties authorized by Merchant to use Merchant’s account) and are solely responsible for any use of or action taken under Merchant’s password on this Site. If Merchant’s password becomes compromised, Merchant must change it.
15) Illegal Activity
- Compliance with Laws; Fraud. The Site and Services may be used only for lawful purposes and in a lawful manner. Merchant hereby agrees to comply with all applicable laws, statutes, and regulations. Merchant may not register under a false name, business entity, tax identification number or use an invalid or unauthorized bank account. Merchant may not impersonate any participant or use another participant's password(s). Such fraudulent conduct is a violation of applicable laws. Fraudulent conduct may be reported to law enforcement authorities, and Wowulous will cooperate to ensure that violators are prosecuted to the fullest extent of the law.
- Investigation. Wowulous has the right, but not the obligation, to monitor any activity and content associated with the Site and Applications and investigate these as Wowulous deems appropriate. Wowulous may also investigate any reported violation(s) of its policies or complaints and take any action that it deems appropriate. Such action may include, but is not limited to, issuing warnings, suspension(s) or termination(s) of service, denying access, and/or removing any materials on the Site or Applications, including listings. Wowulous reserves the right and has the absolute discretion to remove, screen, or edit any content that violates these provisions or is otherwise objectionable in Wowulous’ exclusive view.
- Disclosure of Information. Wowulous also reserves the right to report any activity that it reasonably suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other third parties. In order to cooperate with governmental requests, to protect Wowulous’ systems and customers, or to ensure the integrity and operation of Wowulous’ business and systems, Wowulous may access and disclose any information it considers necessary or appropriate, including but not limited to user contact details, IP addressing and traffic information, usage history, and posted content.
16) Privacy; Use of Wowulous’ Transaction Information.
- Confidentiality. Merchant will not, and will cause Merchant’s affiliates not to, directly or indirectly disclose, convey or use any order or Buyer information or other data or information acquired by Merchant or Merchant’s affiliates from Wowulous or its affiliates (or otherwise) as a result of this Agreement, the transactions contemplated herein or the Parties' performance hereunder, except that Merchant may disclose this information as necessary for Merchant to perform Merchant’s obligations under this Agreement, provided that Merchant ensures that every recipient uses the information only for that purpose and complies with the other restrictions applicable to Merchant relating to that information.
17) Warranty Disclaimer
The Site and the Services are provided on an “as is” basis. Wowulous hereby expressly disclaims any other representations or warranties of any kind, express or implied, including without limitation:
- the implied warranties of merchantability, fitness for a particular purpose or use, title, and non-infringement;
- that the site or the services will conform to Merchant’s requirements, will always be available, accessible, uninterrupted, timely, secure, or operate without error;
- that Merchant will sell any Merchandise advertised through the site or applications or that buyers will perform as promised;
- any implied warranty arising from course of dealing or usage of trade; and
- any obligation, liability, right, claim, or remedy in tort, whether or not arising from the negligence of Wowulous.
To the full extent permissible under applicable law, Wowulous hereby expressly disclaims any and all such warranties.
18) General release
Because Wowulous is not a direct party to transactions between buyers and merchants or other participant in merchant dealings, if a dispute arises between one or more parties, Merchant hereby agrees to release Wowulous (and its agents and employees) from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
19) Indemnity/Limitation of Liability
Indemnity and Defense. Merchant will defend, indemnify and hold harmless Wowulous and its affiliates (and their respective employees, directors, officers agents and representatives) from and against any and all claims, costs, losses, damages, judgments, penalties, interest and expenses (including reasonable attorneys' fees) arising out of any Claim that arises out of or relates to: (i) any actual or alleged breach of Merchant’s representations, warranties, or obligations set forth in this Agreement; or (ii) Merchant’s own website or other sales channels, the Merchandise Merchant sells, any content Merchant provides, the advertisement, offer, sale or return of any Merchandise Merchant sell, any actual or alleged infringement of any intellectual property or proprietary rights by
any Merchandise Merchant sells or content Merchant provides, or Merchant Taxes or the collection, payment or failure to collect or pay Merchant Taxes. For purposes hereof, “Claim” means any claim, action, audit, investigation, inquiry or other proceeding instituted by a person or entity.
Limitation of Liability. Wowulous will not be liable for any damages of any kind, including without limitation direct, indirect, incidental, punitive and/or consequential damages, arising out of or in connection with this Agreement, the Site, the Services, the inability to use the Services, or those resulting from any Merchandise purchased or obtained or messages received or transactions entered into through aegis of the Services.
20) Applicable Law
The laws of the Hong Kong SAR shall govern this Agreement and all of its terms and conditions, without giving effect to any principles of conflicts of laws or the Convention on Contracts for the International Sale of Goods. Any dispute with Wowulous or its affiliates relating in any way to these terms and conditions or Merchant’s use of the Services in which the aggregate total claim for relief sought on behalf of one or more parties exceeds US$5,000 shall be adjudicated in any court of competent jurisdiction in the Hong Kong SAR, and Merchant hereby consents to exclusive jurisdiction and venue in such courts.
Merchant shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding Merchant’s use of the Services, and Merchant’s listing, sale and fulfillment of Merchandise through the Site or Applications.
Because Wowulous is not the agent of Merchant except for the limited purpose of processing payments and is not the agent of Buyer for any purpose whatsoever, Wowulous will not act as either party's agent in connection with resolving any disputes between participants related to or arising out of any transaction. Wowulous urges Merchants and Buyers to cooperate with each other to resolve such disputes.
22) Merchant’s Grant
By entering into this Agreement and listing an item of Merchandise, Merchant grants Wowulous a royalty-free, non-exclusive, worldwide, perpetual, irrevocable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all of the content Merchant submits to Wowulous, the Site, Applications and its affiliates, and to sublicense the foregoing rights to Wowulous’ affiliates and operators of any website or other online or mobile point of presence (other than the Site or Applications) through which the Site, Applications and/or Merchandise available thereon are syndicated, offered, merchandised, advertised or described; provided, however, that Wowulous will not alter any of Merchant’s trademarks (i.e., trademarks of Merchant’s s that Merchant provides to Wowulous in non-text format for branding purposes that are separate from and not embedded or otherwise incorporated into any product specific information or materials) from the form provided by Merchant (except to re-size trademarks to the extent necessary for presentation, so long as the relative proportions of such trademarks remain the same) and will comply with Merchant’s removal requests as to specific uses of Merchant’s trademarks (provided Merchants are unable to do so using standard functionality made available via the Site, Applications or Services); provided further, however, that nothing in this Agreement will prevent or impair Wowulous’ right to use without Merchant’s consent the content and any other materials provided by Merchant, to the extent that such use is allowable without a license from Merchant or Merchant’s affiliates under applicable law (e.g., fair use under copyright law, referential use under trademark law, or valid license from a third party). Merchant represents and warrants that Merchant owns or otherwise controls all of the rights to the content Merchant transmits to Wowulous, the Site, Applications and its affiliates, and that the use of such materials by Wowulous, the Site, Applications and its affiliates will not infringe upon or violate the rights of any third party.
Wowulous, in its sole discretion, may suspend or terminate this Agreement, Merchant’s access to the Site, Applications or the Services, or any current sales immediately without notice for any reason.
24) Rights upon Termination
In the event of expiration or termination for any reason, any rights granted under this Agreement shall automatically and immediately cease and Merchant shall stop using the Site, Services and Applications. Termination shall not affect the right of Wowulous to recover from Merchant losses, damages, indemnity, defense costs, expert costs, collection costs and/or attorney’s fees or expert witnesses’ cost or other costs of any kind under this Agreement. The provisions of this Agreement that by their nature are ongoing, or that expressly so provide, will survive termination or expiration of this Agreement for any reason.
25) General Provisions
- No Agency; Third-Party Beneficiary. Merchant hereby appoints Wowulous or in the alternative any third party designated by Wowulous as Merchant’s payment processing agent for the limited purpose of receiving Payment Transaction funds on Merchant’s behalf. Except as provided in the preceding sentence, Wowulous is not the agent, fiduciary, trustee, or other representative of Merchant. Nothing expressed or mentioned in or implied from this Agreement is intended or shall be construed to give to any person other than the Parties hereto any legal or equitable right, remedy, or claim under or in respect of this Agreement. This Agreement and all of the representations, warranties, covenants, conditions, and provisions hereof are intended to be and are for the sole and exclusive benefit of Wowulous, Merchant, and relying Buyers or Merchants.
- Severability. If any provision of this Agreement shall be deemed unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these terms and conditions and shall not affect the validity and enforceability of any remaining provisions.
- No Waiver. Wowulous shall not be deemed to have waived any of Wowulous’ rights or remedies set forth in this Agreement unless a corresponding waiver is in writing and signed by Wowulous. No delay or omission by Wowulous in exercising its rights or remedies will impair them or be construed as a waiver. Any single or partial exercise of a right or remedy will not preclude further exercise of any other right or remedy. Wowulous’ failure to enforce the strict performance of any provision of this Agreement will not constitute a waiver of Wowulous’ right to subsequently enforce such provision or any other provisions of this Agreement.
26) Force Majeure
Neither Giftvibes nor Wowulous shall be liable in the event of their inability to provide the Services or Applications or due to an inability to access the Website arising as a consequence of circumstances not reasonably within their control, e.g. failure of the power grid, failure of infrastructure, severe weather or geological event, government regulatory or law enforcement action, hacker or virus attack, war, comet/asteroid/meteor strike, epidemic, insurrection, etc.
27) Wowulous Contact Information
Wowulous welcomes and encourages Merchant to provide feedback, comments and suggestions for improving the Site, Applications and Services. If Merchant has any questions, complaints or claims, Merchant shall please contact Wowulous at email@example.com .