Last Updated: April 15, 2012
ALL MERCHANTS MUST READ THESE TERMS
Viva Hub, Inc. ("VivaHub," "VivaHub.com," "Website," "us," or "we") sells Vouchers for Merchant goods and services, through the VivaHub website subject to this Merchant Agreement (also "Agreement") which fully incorporates all of the VivaHub Terms and Conditions applicable to all users of VivaHub), which allows Merchant to create and schedule an Offer for its goods and/or services. By creating and accessing your specific online Merchant Account(s) on VivaHub, you represent and warrant that you are a duly authorized representative to create an Offer using our Website, VivaHub.com, for each business you register or access.
By registering for a Merchant Account, you are also registering (or are already registered) for a User account, and you agree to follow and be bound by this Merchant Agreement, and the general VivaHub Terms and Conditions of the VivaHub.com site as a whole, which apply to all users of the site.
Merchant creates Offers for its goods or services, which when sold, will be delivered to Users by VivaHub, in the form of Vouchers, redeemable for the the goods or services specified by the Merchant. Merchant agrees that by creating an Offer, it will accept those Vouchers that are sold in exchange for its goods or services. Merchant agrees to offer their goods and services, typically at a discount to the public, through VivaHub's online website, www.VivaHub.com, as well as through other VivaHub partnership sites and portals. VivaHub wishes to sell Merchant's Offers, subject to the limitations expressed in this Merchant Agreement, which will be purchased by users on VivaHub's websites. Merchant creates Offers for their goods and services and remains solely responsible for the redemption of any Voucher sold pursuant to this Merchant Agreement, and VivaHub is the seller of the set of intangible rights represented by a Voucher, based on the Merchant's Offer.
"Active Open Offer" means an Open Offer that is currently visible and live on VivaHub, making it one that can be selected or chosen by a Fundraising Group, thereby creating and scheduling it as a Partnered Offer on the date that the Fundraiser specifies.
"Campaign" means a Fundraiser Organization's Fundraising Campaign which exists during a particular range of dates, and may include a name or title, a goal, and other functions and features.
"Charity Account" means a VivaHub User Account which has also been registered with the required Charity, thereby creating access to the Charity Portal, and authorized to establish Charity Partnerships with Merchants through the VivaHub Website.
"Confidential Information" means any information contained in the Merchant account and that is generated, or provided to you by the VivaHub system, including, but not limited to, information relating to the services that VivaHub.com provides, transaction information, or customer information necessary to in order to aid with redemption of purchased VivaHub Vouchers.
"Customer Information" means information collected by VivaHub, or on behalf of VivaHub, including information and data regarding customers that may or have purchased VivaHub Vouchers.
"Donation Amount" means the portion of a sold Voucher (in the case of a Partnered Offer), that is donated to a fundraising organization.
"Donation Percentage" means the percentage of the proceeds from Voucher sales that Merchant has agreed to donate to the non-profits, charities, individuals, cause, or group.
"Dormant Voucher Fees" are fees that are charged against a Voucher's face value, for Vouchers that have not had any activity, and have gone unredeemed, for long periods of time.
"Face Value" means the amount User paid for the Voucher and does not include the Promotional Value, nor the Donation Amount provided to the Fundraising organization in the case of a Partnered Offer.
"Full Promotional Amount" or "Full Voucher Promotional Amount" means the total amount/value for which a Voucher may be redeemed during the Voucher Promotional Period, prior to the Promotional Value Expiration, subject to any applicable Laws.
"Fundraiser-partnered offer" are Offers where Merchants partner with non-profits, charities, individuals or any cause or group, and where a percentage of the proceeds from the sale of Vouchers are given to the non-profit, charity, individual, or cause.
"Fundraiser Request" (also "Fundraiser Partnership Request" "Fundraiser "Request for Partnership" and "Fundraiser Request to Merchant") means the request, sent using the VivaHub website on behalf of the fundraising group, to partner with a particular Merchant, in exchange for a percentage of the revenue of Voucher's sold, to raise money for their cause.
"Fundraiser" (also "Fundraising Group," "Fundraising Organization," "Fundraisers," "Charity," "Cause") means an individual, group, or organization that accesses the Fundraiser Portal on VivaHub.com.
"Intellectual Property Rights" or "Intellectual Property" means any patent, trademark, copyright, publicity, privacy, trade secret.
"Issuer" means the corporation, entity, or individual responsible for the publication of the Vouchers. VivaHub, in North Carolina, is the issuer of the Vouchers. Merchant is not the Issuer, but is the provider of goods and services redeemable through the Vouchers.
"Laws" means collectively any and all state, federal, and local laws, rules, regulations, and orders, and also includes the Credit Card Accountability, Responsibility, and Disclosure Act of 2009, and all laws that govern vouchers, gift cards, coupons, and/or gift certificates, as well as any relevant law regarding false, unfair, and deceptive practices.
"Merchant" (also "you") is both a registered User, subject to the VivaHub Terms and Conditions and a Merchant User subject to this Merchant Agreement. Merchant is promoting their business by providing offers for goods and services through VivaHub.com.
"Merchant Account" means a VivaHub User Account which has also been registered with the required Merchant information and agrees to this Merchant Agreement, thereby creating access to the Merchant Portal.
"Merchant Portal" means the password-protected pages accessible via your User Login which allow access to the Merchant Account pages including the Offer Creation and Edit Pages, Voucher Redemption Pages, Request Payment Page and other Merchant pages only accessible upon registering a Merchant Account.
"Merchant Voucher Redemption & Validation" (also "Voucher Validation," "Merchant Voucher Validation," and "Merchant Voucher Redemption") is the process in which a Merchant enters the Voucher Redemption Code inside the Merchant Portal allowing merchant to receive credit for a Voucher, while verifying the Voucher's validity, authenticity, availability of funds, and confirming that the voucher has not previously been redeemed by the Merchant.
"Offer" (also sometimes referred to on the website as "Deal") refers to both Public Offers and Fundraiser-Partnered Offers, collectively that are marketed as available to purchase using the VivaHub platform. Any purchased Offers will then cause a Voucher to be created. The term "Offer" alone does not mean it has been purchased, or that it is available for redemption.
"Offer Creation" is the process when your Offer is created, and ultimately presented to VivaHub. The Offer will not be active, and the associated contractual obligations between Merchant and VivaHub specifying the terms of the offer are not deemed Accepted until VivaHub takes the final step of approving your Offer.
"Offer Date" or "Initial Offer Date" means the date the Voucher will first be offered for sale on VivaHub's website at VivaHub's sole discretion.
"Open Offer" means an Offer by the Merchant which allows one or more fundraisers to select the Merchant's business as a fundraising partner based on the specific terms set by the Merchant.
"Promotional Period" means the period of time after the Merchant Offer has ended and during which any purchased Vouchers are available for redemption for the Full Promotional Amount, subject to any applicable laws and/or special instructions listed on the Voucher.
"Promotional Value Expiration" means, unless otherwise required by law, the date on which the promotional portion of the Voucher may no longer be redeemed by User and after which User can only redeem for the paid portion.
"Promotional Value" means the unpaid portion of the Voucher, in excess of the amount paid by User for the Voucher at the time of purchase. Where applicable on Partnered Offers, the Donation Amount is not considered a part paid by the user for the Voucher.
"Public Offer" means an offer made by a Merchant through VivaHub, which after approved by VivaHub, may be scheduled and become an Active Offer available for purchase by Users.
"Publication" means when the Offer is active and can be purchased by a customer through VivaHub.com.
"Sales Period" means the time period during which a Merchant's Offer is available for purchase after being published on VivaHub.com's website.
"Special Instructions" or "Fine Print" are additional terms, conditions, restrictions, or limitations on the way(s) in which a customer may redeem a Voucher, and which may be added to or modified by Merchant during your Offer Creation.
"User" means anyone that accesses the VivaHub website.
"User Account" means a basic, registered VivaHub account along with the associated registration information (such as name, e-mail address, and password), account information, password-protected pages and account control options accessible through the VivaHub Website. This is the portion of your account on VivaHub.com (currently labeled "My Account" on the drop down menu in the upper right corner of all pages), specifies the e-mail address used for all electronic communications with VivaHub. For access, Merchant Accounts require a corresponding VivaHub User Account.
"User Login" is the e-mail and password information required to gain access to all areas of VivaHub.com that you have successfully created, such as your User Account, Merchant Account, and Fundraiser Account.
"VivaHub" is the seller of the Merchant's Offers and includes VivaHub.com, VivaHub trademarks, and any software or tools used by VivaHub to promote and sell Merchant Offers.
"VivaHub Fees" means those fees relating to VivaHub's sale of a Voucher, based on Merchant's Offer, which may include a percentage of the Voucher Selling Price and or a fixed amount. VivaHub Fees include any applicable credit card fees. This amount will be presented to the Merchant when Merchant creates an Offer.
"Voucher" (also "VivaHub Voucher" is a pdf printable form that specifies the details of a Merchant's Offer that was purchased by a User, owing the prescribed set of rights to redeem to the customer. A Purchased Offer, will generate a corresponding Voucher, when it is purchased by a user.
"Voucher Redemption Code" is the unique code printed on the Voucher which the Merchant enters inside the Merchant Portal in order to simultaneously redeem and receive credit for the Voucher, while verifying the Voucher's validity, authenticity, availability of funds, and confirming that the Voucher has not previously been redeemed by the Merchant.
You accept this Agreement as soon as you first access your Merchant Portal or otherwise accept the Merchant Terms. In certain situations, the Merchant may receive this Merchant Agreement by e-mail, and be asked to respond with the word Accept in the body of an e-mail reply. Such a response shall also be considered Merchant's binding acceptance of this Merchant Agreement. Unless earlier terminated pursuant to the terms below, this Agreement shall continue to be in full force as long as any of the following conditions are met: 1) Merchant has created an Offer which has not yet been approved or rejected by VivaHub, 2) Merchant has an active Open Offer, 3) Merchant has an upcoming scheduled Offer (be it a Public Offer or a Partnered Offer), 4) Merchant has an Active Offer, 5) Vouchers to the Merchant have been sold but have not been redeemed, where at least some of the value Face Value of the Voucher remains valid and is not expired. Notwithstanding anything in this Merchant Agreement to the contrary, VivaHub may terminate any active Offer or Open Offer, with or without a reason.
VivaHub may terminate this Agreement, and block access to your Merchant Account with twenty-four (24) hours written notice (for Merchant convenience) for any reason in VivaHub's sole discretion. VivaHub may terminate this Agreement, and block access to your Merchant account without notice for reasons for cause, should VivaHub determine in its sole discretion that Merchant in any way a) materially violated any of the terms of this Merchant Agreement, or any other Agreement you have with VivaHub, including the Terms and Conditions; b) Failed to provide complete and accurate information in your account, or failed to keep your account information up to date at all times; c) Failed to meet your redemption obligations with respect to any Offer (whether it be a Public Offer or a Partnered Offer sold through the VivaHub platform; d) Misused the account, failed to abide by standards provided to you by VivaHub in advance, engaged in any conduct which VivaHub believed to be misleading, unfair, deceptive or otherwise in bad faith, or lacked regard for whether the conduct negatively impacted the interests of VivaHub's customers or VivaHub's business.
You and VivaHub have continuing obligations that survive the termination of this Merchant Agreement to honor the terms of a valid Voucher and to comply with all applicable Laws. Neither the expiration, nor termination of these terms in any way shall impact the rights of any person holding a valid VivaHub Voucher. The Merchant must continue to satisfy the terms of redemption on any valid Voucher, and VivaHub must continue to pay Merchant for validly redeemed Vouchers consistent with that section of this Agreement. Any terms of this Agreement which are logically intended and required to survive the termination of these Merchant Terms in order to achieve their purposes and intent shall survive without limitation.
In order to be a Merchant with VivaHub, a Merchant must create a Merchant Account, and accurately and completely provide all required information prompted by each registration form. By creating a Merchant Account with VivaHub and agreeing to this Merchant Agreement, Merchant shall gain access to the Merchant Portal, which is a portion of the website not available to all users of VivaHub.com. A Merchant is bound and agrees to the VivaHub Terms & Conditions, which are applicable to all users, as well as this Merchant Agreement. Even if an account is created by a third-party acting on behalf of the Merchant, Merchant agrees to be bound by the VivaHub Terms & Conditions and this Merchant Agreement. When using your Merchant Account and VivaHub.com directly, or indirectly via an authorized agent, to submit and manage other Offers, you accept and comply with the terms of this Merchant Agreement. If the account is created by a VivaHub sales or support representative, as described below, Merchant is bound and agrees to the VivaHub Terms & Conditions applicable to all users, as well as the Merchant Agreement, upon accessing the Merchant Portal on VivaHub.com. All VivaHub Website users, whether they also have a Merchant Account, or Fundraiser Account, are automatically assigned a VivaHub User Account upon initiating any of the following actions on VivaHub.com, including account signup, making a donation, and purchasing of a Voucher. A VivaHub User Account is a required element of accessing VivaHub.com as a Merchant, or a Fundraiser.
With respect to the creation of both the User Account and the Merchant Account, and any related Offers, Merchant represents and warrants that: 1) All required information was submitted completely and accurately; 2) Merchant will maintain the completeness and accuracy of all submitted information at all times; 3) Merchant must maintain the security, confidentiality of your Merchant account password, and accepts full responsibility of any activity that occurs under his account; 4) Merchant is a duly authorized representative of the business identified in his Merchant Account, and is fully authorized to create Offers under this Merchant Agreement on behalf of the business; 5) Merchant Agrees to notify VivaHub immediately following any known or suspected unauthorized access or use of Merchant's account, or any other breach of security regarding the VivaHub.com website; 6) Merchant will not violate any Laws with respect to third party rights, 7) Merchant will not violate any of VivaHub's policies except where they are in conflict with Law; 8) VivaHub will not violate any Laws by promoting Merchants' Offers or selling Vouchers to Merchant's business, nor will Merchant violate any Laws by creating, promoting, selling, or otherwise participating in any VivaHub Merchant Offer or Voucher Redemption; 9) You are of legal age to form a binding contract and have full power, capacity and authority to accept this Merchant Agreement. If you are accepting this Merchant Agreement on behalf of your employer or another entity, you represent that you have the full legal authority to bind your employer or such entity to this Agreement. If you don't have the legal authority to bind your entity, you represent and warrant that an authorized person from your organization consents to, and accepts the terms of this Merchant Agreement; 10) Merchant agrees that VivaHub will not be held liable for any damage or loss arising from Merchant's failure to adhere to the above representations and warranties, including without limitation, Merchant's responsibility to regularly review this Merchant Agreement and the VivaHub Terms & Conditions, Merchant's responsibility to regularly review the accuracy of information and Offers inside their Merchant Portal, as well as information created on Merchant's behalf by authorized VivaHub personnel, as discussed below.
In addition to the other rights set forth in this Agreement, VivaHub reserves the right to refuse service and/or access to VivaHub.com to you, or any other merchant or User, at any time, without notice, for any reason whatsoever.
In some cases, account creation, Offer creation, or other activities in the Merchant Account, may be assisted by a VivaHub sales, or support representative, who may be making entries on behalf of the Merchant through the telephone or other communication, rather than the Merchant making the entries directly into the Website itself. In such a case, Merchant may not be making the initial entries into the registration system. Nonetheless, Merchant maintains all of the above representations and warranties concerning Merchant Account Creation, and agrees to be bound by all terms of this Merchant Agreement. Merchant is responsible for ensuring all information is accurate in his User Account and Merchant Account, and must do so upon his first log-in with the site. The site may or may not prompt the Merchant to do so, and it is the Merchant's sole responsibility to verify that all information submitted on the Merchant's behalf by a VivaHub Sales or Support Representative is accurate, and it is the Merchant's sole ongoing responsibility to keep this information up-to-date and error free. Irrespective of the fact that the User Account, or Merchant Account may have been created by a VivaHub representative, all of the above representations and warranties are made by the Merchant with respect to his accounts, and Merchant ensures the accuracy of all information provided to the VivaHub representative, and all information contained in Merchant's Merchant Portal on VivaHub.com. Merchant remains solely liable for all of these representations and warranties and all terms in this Merchant Agreement, including the accuracy of all information contained in Merchant's VivaHub User Account and Merchant Account, including any errors or omissions of any kind committed by the VivaHub representative, and shall indemnify VivaHub in the event of a dispute arising out of any entries made by VivaHub inside the Merchant's Account.
Merchant shall define the conditions of, and may supply the content and images to describe and illustrate, Merchant's Offer and its particular terms, by completing and submitting, or authorizing an agent to complete and submit, an Offer inside your Merchant Portal.
The creation and submission of an Offer does not obligate VivaHub to accept it or any of its contents, nor promote it, nor does it entitle the Offer to be made available for sale on VivaHub.com unless the Offer has been approved by a VivaHub administrator. VivaHub shall make the final determination as to whether an Offer is appropriate for the VivaHub platform, and reserves the right to choose not to make an Offer available for sale for any or no reason, or to terminate an Active Offer at any time for any or no reason, in their sole discretion.
When VivaHub determines that the Offer is appropriate, the Offer will become scheduled to appear during the Offer's designated Sales Period, during which point the Offer will be an Active Offer that is available for purchase on VivaHub.com, unless VivaHub terminates the Offer early.
You are responsible and liable for all contents and terms, as well as VivaHub's or any purchaser's use or reliance on any and all contents and terms contained in an Offer. You may not create any Offer that 1) includes any content (text, image, or otherwise) that infringes or violates in any way the rights of others, 2) offer to sell goods or services in any manner, or using any term or condition of sale, whether or not the term was created by you or is generated by the VivaHub Terms & Conditions, where the offer is prohibited by law from being offered, advertised, or sold, or 3) include any content (text, image, or otherwise) that is unlawful, abusive, defamatory, invasive of privacy or publicity rights of others, vulgar, obscene, profane, threatening, or is otherwise objectionable, which encourages potentially criminal conduct, could give rise to any civil liability, or otherwise violates any Law. At the time that you create an Offer in your Merchant Portal, you must specify all general policies that apply to all customers redemptions (such as reservation requirements, or cancellation policies), restrictions and contractual arrangements (such as a requirement that liability waivers are required for all customers) applicable to your Offer ("Fine Print"), and VivaHub shall have no liability for the nature of your Fine Print or your failure to specify appropriate Fine Print.
There are three different ways that Merchant may generate an Offer on VivaHub: (i) by creating a "Public Offer," (ii) by creating an "Open Offer to Fundraisers" which allows Partnered Offers to be created automatically, whenever a Fundraiser selects and schedules one of your Open Offers for their Campaign, or (iii) by Creating a Partnered-Offer with a fundraiser by responding to a Fundraiser Request for Partnership.
By you utilizing, or having an agent acting on your behalf access, the "Add a New Offer" feature inside the Merchant Portal, and then "Create Public Offer" on VivaHub.com, a Merchant may create a Public Offer. At the time of Merchant's "Public Offer Creation" the VivaHub Fees (charged only at the time that each Voucher is redeemed, pursuant to the Voucher redemption process outlined below), will be clearly disclosed to Merchant. While a Merchant may choose to save a draft of an Offer to return to later, once a Merchant schedules an Offer, the Offer is considered an offer to VivaHub, providing VivaHub the right and option to publish it on VivaHub.com by making the Offer available for purchase on the VivaHub.com website during a specified Sales Period during which the Offer will be available for sale, and therefore will be an Active Offer. Should VivaHub decide to publish the Offer, in its sole discretion, Merchant will be bound by the terms it provides during the Public Offer Creation, as well as both these Merchant Terms and the User Terms & Conditions.
By utilizing VivaHub's "Create Open Offer" feature inside the Merchant Portal on VivaHub.com, a Merchant may create an Open Offer. VivaHub, at its sole discretion, will choose whether or not to publish Merchant's Open Offer on VivaHub.com. If published, the Open Offer will be made available for any and all Fundraisers to select the Merchant's Open Offer for their organization. Merchant will not have control over which Fundraisers will have access to see and, at their option, select Merchant's Open Offer. An Open Offer is not an Active Offer, and does not activate (by becoming a Fundraiser-Partnered Offer) unless the Open Offer is selected and scheduled by a Fundraising Organization.
Should a Fundraiser select and schedule a Merchant's Open Offer, it then becomes a Fundraiser-Partnered Offer, subject to the terms of this Merchant Agreement, and the terms selected and entered by you in the particular Open Offer. The Fundraiser-Partnered Offer will be an Active Offer, available for sale on VivaHub.com during the Sales Period specified by the Fundraising Organization that selected the Offer. Your Open Offer may be selected by one or more organizations during the period of time that it is an Active Open Offer on VivaHub.com. If your Open Offer is selected, Merchant agrees that the Fundraiser has the right to schedule the Partnered-Offer to be Active, during any Sales Period that the Fundraiser sees fit, regardless of when the Open Offer is Active.
VivaHub waives any and all liability associated with those Fundraisers that may use VivaHub and access or select the Active Open Offers on VivaHub.com, and with which the Merchant may or may not wish to be associated with. VivaHub makes not representations, warranties, or other claims regarding the validity of the claims made by Fundraising Organizations, and Merchant expressly indemnifies and holds VivaHub harmless against any damage that may be caused to the Merchant or Third Parties, even if such damages were foreseeable, and even if VivaHub was warned of the likelihood of damages, due to the Fundraiser's selection of a Merchant's Open Offer, and any and all Fundraiser activities surrounding Fundraiser's promotion, sale, or presentation of the Merchant's Offer online, in print, in person, or otherwise.
A Merchant may receive a "Request" from a Fundraising Organization that wants you to create a Partnered-Offer, specifically for them. Merchant may be notified of partnership requests originating from VivaHub Fundraising Organizations. Requests may come via e-mail, or may appear in the Merchant Portal in a designated area, assuming that the Fundraiser has Merchant's correct e-mail address. Upon accessing these requests, a Merchant may choose to reject the request (a reason for rejection will be required), or accept the request by creating a Fundraiser-Partnered Offer with that particular Fundraiser. Should Merchant choose to accept the Fundraiser Request, it will do so by proceeding with Fundraiser-Partnered Offer Creation. Merchant will be bound by the terms it provides during the Fundraiser-Partnered Offer Creation, as well as these Merchant Terms, when the Offer is published on VivaHub.com.
Despite the language above (including but not limited to language such as partnership, request, acceptance) no contract formed directly between the Fundraising Organization when a Merchant creates a Fundraiser-partnered Offer by responding to a Fundraiser Request for Partnership. In such a situation, Merchant's contract governing these arrangements is exclusively with VivaHub, pursuant to this Merchant Agreement.
This Merchant Agreement is solely between the Merchant and VivaHub, and no additional agreement with the Fundraising Organization is express or implied by this Merchant Agreement. Agreements outside of this contract between Merchants and Fundraising Organizations that contradict this Merchant Agreement are expressly forbidden, and Merchant's reliance on information provided by Fundraising Organizations in communications made between Merchant and any Fundraiser, whether through the VivaHub system or otherwise, is at Merchant's sole risk. Merchant agrees to indemnify and hold harmless VivaHub, based on any communications, promises (whether express or implied), or contracts made between Merchant and Fundraiser. Further, Merchant agrees that nothing stated in this Merchant Agreement or on the VivaHub platform creates any direct contractual relationship between Merchant and any Fundraiser on VivaHub, despite any site functions, mechanics, or language which may suggest otherwise.
Following any Offer Creation, an Offer is not considered accepted by VivaHub until VivaHub actually accepts the Offer. Acceptance of the contractual obligations regarding your Offer is not formed until VivaHub, approves and schedules your Offer. When your Offer goes Active during its scheduled Sales Period, VivaHub may promote it using any method or medium that in its sole and exclusive discretion it believes is appropriate. In order to promote Merchant's Offers , VivaHub and any Fundraiser with which you have a Partnered Offer may utilize e-mail, internet, mobile applications, or other electronic means that it controls or operates, and reserves the right, but has no obligation, to promote the Offer through its affiliates and third party business partners. VivaHub will exclusively determine how, and to whom, it will promote your Offers. In its sole discretion, it may utilize a variety of information to determine which customers (and potential customers) to promote your Offers to, including location and geo-locational customer data, customer preferences or interests, and any other methods it deems appropriate.
Merchant grants both VivaHub and any Fundraiser with which you have a Partnered Offer non-exclusive, worldwide, transferable, irrevocable, perpetual and sub-licensable license to use, copy, distribute, display and perform any trademarks, photographs, graphics, artwork, videos, sound clips, text, and any other copyrighted materials or content that you provide to VivaHub in your Merchant Portal or otherwise use to describe your Offer in any and all media or formats in connection with a Fundraiser's promotion of a Partnered Offer with you, and VivaHub's fulfillment of its rights and obligations under this Merchant Agreement, including the promotion of any Offers, distribution of any Merchant's VivaHub Vouchers, and any marketing or instructional materials, in whatever form of media VivaHub chooses, to promote or explain the VivaHub platform, in general, even when such explanations do not serve the purpose to directly promote or otherwise benefit you. VivaHub and any Fundraiser that has a Partnered Offer with you (in each of their independent and sole discretions), may include you in any press release, regarding your Offers or that identify you as a past or present VivaHub Merchant.
Merchant Agrees that VivaHub reserves the right to modify the date your Offer first goes Active on VivaHub.com ("Offer Start Date") that you specify during Offer Creation, in VivaHub's sole discretion. However, if VivaHub moves your Offer Start Date, Merchant will be notified at least 24 hours prior to the new and modified Offer Start Date, so that Merchant has the opportunity to object to the move, or delete the Offer at Merchant's discretion, prior to the Offer becoming an Active Offer.
Merchant may terminate any Offer by making a request to terminate in the Merchant Portal. Fundraiser may terminate a Partnered Offer by making a request to terminate by sending such a request using the Contact Us form. Whether it is a Scheduled or Active Offer (including Public Offers, Open Offers, a Scheduled Partnered-Offer, or an Active Partnered-Offer during the Sales Period), termination may require the assistance of a VivaHub administrator. Merchant acknowledges that access to a VivaHub administrator is not guaranteed, and may lead to delays in ending these Offers. Merchant agrees to indemnify and hold harmless VivaHub due to any delays relating to VivaHub's termination of an Active Offer, whether or not the delays in terminating the Offer were VivaHub's fault, and whether or not the delays could have been avoided. Merchant bears complete and total risk of damage related to delays, or even failures, to terminate Merchant's Offers on VivaHub.com, regardless of the reason for termination.
When your Offer is purchased and VivaHub has received full payment for purchase price of the Voucher, as well as any additional Donation Amount that may be applicable on certain Partnered Deals, VivaHub will generate, make available, and authorize for use a VivaHub Offer Voucher that entitles the purchaser the right to redeem the Voucher with the Merchant, pursuant to the terms specified on the Voucher itself, as well as those additional terms contained in the User Terms & Conditions.
In the redemption of Vouchers, Merchant shall comply at all times with the Terms of this Agreement, the User Terms & Conditions, and all applicable Laws.
Customers redeem Vouchers with Merchant directly. Purchasers of VivaHub Offer Vouchers, or their authorized transferees, may redeem the Voucher by providing you the unique voucher redemption code, by presenting their Vouchers to you as printed certificates, or by showing you the Voucher or code on their mobile devices, or by providing any other media that VivaHub may adopt for the redemption of Vouchers. Depending on the terms that you specify, redemption may occur via physical Merchant business location(s), online, over the telephone, or at customer's home for in home service businesses.
Merchants represent and warrant they will honor the terms specified on the voucher, and to whatever additional extent may be required by Law, including but not limited to, the redemption of Vouchers beyond their printed expiration dates.
Merchant is solely responsible for the risks associated with fraudulent Voucher use or presentation, including but not limited to the redemption or attempted redemption of Vouchers that are not authorized, have already been redeemed, are altered or fabricated, or situations where Merchant accepted the Voucher more than once.
You acknowledge that VivaHub Inc., in North Carolina, is the issuer of the Vouchers, which are authorized for issuance solely for promotional purposes toward your business. You are the exclusive seller of the goods and services that are represented on your Voucher. You are solely responsible and liable for your decision to make your Offer available through VivaHub, fulfilling all terms of any authorized Voucher (and any additional terms that may be required by Law), and supplying all goods and/or services specified on the Voucher.
To receive credit in your Merchant Portal, Merchant must redeem a valid Voucher inside Merchant's Portal on VivaHub, by entering the Voucher Redemption Code. Each Voucher can only be redeemed one time, and in order to redeem a Voucher, the unique Voucher Redemption Code must be entered correctly. Upon successful Merchant Voucher Redemption, your Merchant Account will be instantly credited with the Merchant's negotiated amount from when the Offer was created; the amount will be equal to the customer's Purchased Price, less applicable VivaHub fees (which may include Merchant Credit card fees), less the original Donation Amount in the case of a Partnered Offer, and less any Dormant Voucher Fees. VivaHub bears no responsibility and Merchant assumes all risk, when accepting any voucher presented to Merchant, if Merchant does note first validate the voucher's authenticity by entering the Voucher Redemption Code inside the Merchant Portal on VivaHub.
Merchant shall not enter any Voucher Redemption Code without providing the customer the Goods and Services pursuant to the Voucher terms, the terms of this Merchant Agreement, the User Terms & Conditions, and all applicable Laws for which the specific Voucher Redemption Code was entered. By entering in the Voucher Redemption Code, Merchant represents and warrants to VivaHub that the customer has been satisfied in full with respect to all Merchants obligations set forth on the Voucher, and pursuant to this Agreement. When redeeming Vouchers from customers, Merchant shall honor the Vouchers during the time period specified on the Voucher, and as required under applicable Law, handle all customer service related to customer use and redemption of Vouchers, comply with all terms and conditions stated on the Voucher without modification and without imposing any additional limitations, restrictions, charges, or penalties that are not clearly stated on the Voucher. You shall honor any valid and authorized Voucher presented by an individual, even if that individual was not the purchaser, unless otherwise clearly stated on the Voucher or, you reasonably believe that the Voucher was obtained by the individual in an illegal or unauthorized way, and in such a circumstance you shall immediately contact VivaHub and explain the situation.
Dormant Voucher Fees may be charged against unused Vouchers that have gone unredeemed, without any activity, for certain periods of time, typically at least one full year. If these fees are to be imposed, they will be printed on the face of the Voucher, and will further reduce the amount your Merchant Account will be credited following successful Merchant Voucher Redemption & Validation inside your Merchant Portal. The amount credited to the Merchant's Account when Dormant Voucher Fees have taken effect will be the Purchase Price the User Paid, less VivaHub Fees (including any Merchant Credit Card Fees), less any Donation Amount (on applicable Partnered Deals), and then less any applicable Dormant Voucher fees that have taken effect at that point in time until the point at which there is no redemption value remaining. Merchant Voucher Redemption & Validation is possible for all Vouchers, however, for Expired Vouchers, or for Vouchers that have no remaining Voucher Balance due to Dormant Voucher Fees no credit to the Merchant Account can be given without the help of an administrator, and providing credit in these circumstances is at the sole discretion of VivaHub. Nothing in the foregoing paragraph shall modify or limit Merchant's absolute responsibility for complying with all Laws when accepting Vouchers from customers in exchange for Merchant's Goods and Services, including but not limited to Merchant's responsibility to honor the Voucher for the time specified on the Voucher, and whatever additional time may be necessary to comply with applicable Laws.
Merchant may delegate certain aspects of the performance of this Agreement pertaining to the redemption obligations of any particular VivaHub Voucher, but Merchant remains solely liable and responsible for all obligations, including financial obligations, and for any acts or omissions committed by any third party that you delegate for this purpose. You are solely responsible for any contractual obligations you have with any third party.
For Fundraiser-Partnered Offers, VivaHub will credit the Fundraising Organization at the moment each purchase is made, the specified Donation Amount for each Voucher. Donation Amounts are typically not refundable to the User, outside of the brief cancellation period we provide users following their initial purchase. However in certain cases, in VivaHub's sole discretion, the User's Donation Amount may be refunded to a customer, along with the Purchase Price of the VivaHub Voucher. In such a case, VivaHub will attempt to reclaim the Donation first from the Fundraising Organization.
Customers shall be provided a limited time during which they may cancel their purchase and receive a full refund, for any reason, and thereby relieving you of any redemption obligations associated with the particular cancelled Voucher. Customers may only cancel their purchase of Vouchers and receive a refund if they have not yet been redeemed inside your Merchant Portal. It is Merchant's sole responsibility to redeem each Voucher in a timely manner, by entering each Voucher Redemption Code, and Merchant bears the risk associated with Merchant's failure or delay to enter the Voucher Redemption Code inside your Merchant Portal. No credit will be issued to Merchant for any Voucher that is cancelled prior to Merchant entering the Voucher Redemption Code.
VivaHub reserves the right, for any reason in its sole discretion, to terminate your Offer prior to its scheduled ending time/date, or to cancel any purchased Vouchers, thereby relieving you have your redemption Obligations.
If Merchant fails to honor the customer Voucher as required by the terms of this Agreement, and VivaHub determines that a Customer Refund is required, due to reasons that it determines in its sole discretion, Merchant shall be liable to VivaHub for the VivaHub Fees (including any credit card fees), any amount previously credited to the Merchant upon successful Merchant Voucher Redemption & Validation inside your Merchant Portal (and associated with a previously redeemed but otherwise refundable Voucher), and any Donation Amount that is not recoverable from a Fundraising Organization in the case of a Partnered Offer for which a customer requests a Refund. The balance inside your Merchant Account may be reduced by the required amounts to effectuate Merchant's obligation in the case that such a refund may be required, and Merchant is required to rectify any negative balance in Merchant's account within 30 days.
In certain cases, credit cardholders may initiate a credit card chargeback dispute, typically if they are denied a refund by VivaHub, and otherwise unsatisfied with their purchase or donation, or in the case of alleged fraudulent or unauthorized use of their credit card. If the cardholder initiates such a dispute, VivaHub will comply with the requests required by the dispute process, and attempt to resolve the dispute favorable. However, if for reasons outside of VivaHub's control, the cardholder successfully wins a chargeback dispute, the cardholder will force a refund. At this time, such a chargeback will be treated as a refund to that customer, and such funds may be debited from your Merchant Account as described above. Merchant is further liable to VivaHub, and VivaHub may deduct such amount from Merchant's Account, any chargeback fees that VivaHub is assessed that are related to Merchant's failure to fulfill their obligations with regard to any Voucher or this Merchant Agreement.
To Request a Payment of your Account Balance, simply select the "request a payment" (or similar feature) inside your Merchant Portal. VivaHub will mail your check using within the time specified inside your Merchant Portal. A check-writing fee of $2.50 is charged for each check written, if your Account Balance is less than $100.00. For the foregoing reasons, it is not possible to request a check from VivaHub until your account balance is greater than $2.50. Your account will be credited and debited pursuant to this Merchant Agreement, and will be further debited based on the check amount at the time of remittance. You must complete VivaHub's substitute W-9 form, located inside your Merchant Portal, prior to requesting your first check. VivaHub will not issue you a 1099 unless we believe it is required by law, and when applicable you consent to receive your 1099 form via electronic delivery.
Merchant may, but is not required to, provide their own customer e-mail list to VivaHub, in order for VivaHub to communicate the Merchant's Offers. Merchant's mailing list will not be used for any purpose other than promoting that particular Merchant's Offer. Mailing lists will not be used to market any other business, or any other VivaHub promotion. Merchant represents and warrants that he has the authority to e-mail all names on the e-mail list(s) that Merchant provides, and Merchant's use of each e-mail address on the list complies with all applicable Laws.
Each party represents and warrants to the other that: (a) it has the authority, power, and right to enter into this Merchant Agreement and perform its obligations under these terms; (b) it is an entity duly organized, validly existing and in good standing under the Laws of its jurisdiction of incorporation, or formation; and it is duly qualified to do business and is in good standing in each jurisdiction where the conduct of its business, provision of its goods and/or services, or the ownership of its property requires such qualification; (c) these Terms reflect its legal, valid and binding obligation, enforceable against it; and (d) it shall comply with all Laws applicable to its obligations under the Merchant Agreement.
You represent and warrant to VivaHub that: (a) you and/or any third party merchant or service provider who you contract with for the fulfillment of any of the obligations contained under this agreement (i) are properly registered for the collection of sales, use, convenience, tourism, and any other required taxes in all states and localities in which goods and/or services will be made available pursuant to the terms and presentation of the voucher; and (ii) will properly and timely collect and remit any and all applicable state or local sales, use, convenience, tourism, and any other required taxes that may apply to the redemption of the vouchers or the supplying of goods or services as is now, or may be in the future, required by Law; (b) information you provide to VivaHub including your representations about your business, and your redemption process for Vouchers, do not and will not infringe, misappropriate, or otherwise violate any intellectual property right or right of privacy or publicity of any third party; (c) you hold all necessary regulatory and authorization documents, if any are required, to make Offers for sale on VivaHub and provide the goods or services described therein; (d) you will provide the goods and services made available through any Offer in a manner consistent with the appropriate industry's best practices; (e) you have all rights necessary to grant the licenses set forth in these Terms; and (f) your entry into this Agreement or the creation of any Offers on the VivaHub platform does not violate any outside contract.
VivaHub.com, including, any services, promotion, distribution, redemption and/or other information made available through the Vouchers and/or related to VivaHub.com are provided "as is" without a warranty of any kind and on an "as available" basis. You use VivaHub.com at your own and sole risk.
To the fullest extent possible under the Law, VivaHub expressly waives any and all representations and warranties, whether express, or implied, including but not limited to, implied warranties of merchantability, fitness for a particular purpose, non-infringement, implied warranties out of course of dealing, performance, usage and trade, obligations, liabilities, rights, claims, remedies in tort, whether or not arising from negligence, except as otherwise prohibited under the Law. VivaHub expressly disclaims and waives any liability for any claims related to the use of VivaHub.com, including but not limited to, waiver of any liability that the functions on VivaHub.com will meet your requirements, or be available, timely, secure, without omissions, or other defects, uninterrupted, and/or error-free. VivaHub expressly disclaims any liability for service interruptions, system failures that may affect acceptance, completion, and settlement of any transactions, delay, interruption in use and any claims or losses thereof, and/or any claims for lost profits thereof. VivaHub does not make any representation or warranty that use of VivaHub.com will result in increased revenues or profits for Merchants. VivaHub disclaims any and all responsibility and/or liability to you, third party merchants for third party claims, including but not limited to, claims for false advertising, injuries, illnesses, death. Merchants are solely responsible for knowing and complying with any applicable Laws, whenever they access VivaHub.com for any reason. VivaHub hereby waives any responsibility to inform Merchants of any applicable Laws.
VivaHub's disclaimer of liability applies to damages, including but not limited to, damages for injury caused by reliance on VivaHub.com, failure of performance, inability to use VivaHub.com, errors, omissions, interruptions, deletions, defects, delay in operation or transmission, viruses, scripts, Trojan horses, line failures, lost data, loss of goodwill, work stoppage, computer failure, malfunction, or any other commercial damages, or losses, even if VivaHub knew, or should have known, of the possibility of damages.
Neither party shall be liable or obligated to the other party or any third party for any punitive, indirect, incidental, special, exemplary or consequential damages of any kind (whether in Contract, Tort, Negligence, Strict Product Liability or other legal or equitable theory) even if it had been advised or should have known of the possibility of such damages in advance. This limitation shall not apply, as to both VivaHub and Merchant, to the terms stated in the sections of this Merchant Agreement regarding each party's Indemnification Obligations to the other party. Furthermore, this limitation shall not apply, as to you and any third parties you delegate, for your failure to comply with all Laws and Authorizations, your failure to maintain your Confidentiality obligations, your failure to protect VivaHub's Intellectual Property Rights and the Intellectual Property Rights of others, and your failure to protect Customer Data provided to you.
In no event will VivaHub's liability for claims arising out of or relating to anything under this Agreement and VivaHub's obligations to Merchant via this Agreement exceed an amount equal to the amount paid by Merchant to VivaHub for the services rendered (VivaHub fees) over the last six months. That amount shall never be greater than the amount charged to customers for VivaHub Vouchers bearing the Merchant's name, reduced by VivaHub's Fee, and further reduced by the amount of the associated Fundraiser Donation AMOUNT (if and when applicable, ON A PARTNERED DEAL). VivaHub shall have no liability for any failure or delay due to matters beyond their reasonable control. Neither party shall be liable in damages to the other for any delay or default in performing hereunder, for the duration of such event, if such delay or default is caused by Acts of God, terrorism, wars, fire, riots, insurrections and/or and other similar events beyond the reasonable control of the party whose performance is affected.
VivaHub makes no representation, nor warranty, nor guarantee, of any kind, express or implied (i) that the Deals or Deal Vouchers will be error-free; (iI) that any errors, omissions or misplacements in the Deals, Deal Vouchers, or elsewhere on the website will be corrected at any point in time; (III) that our Website, its servers, or e-mails sent from or on behalf of VivaHub.com are free of viruses, scripts, trojan horses, worms or other harmful components; (IV) that Deals or Voucher Sales will result in any revenue or profit for the Merchant; or (v) that VivaHub bears any responsibility to inform Merchants of applicable state or local Laws governing these types of transactions.
VivaHub's rights under this Agreement shall survive any termination of this Agreement. Any claim arising out of, or related to any Offer must be made within one (1) year from the first publication of the Offer, or the claim is deemed forever waived. If Merchant fails to bring any cause of action arising out of or related to any error or omission in an Offer, or on a sold Voucher based on that Offer, within one year of the first publication of the Offer, said action is forever waived. The foregoing shall not apply to the extent prohibited by applicable law.
VivaHub shall not be responsible for the content posted by Users and Merchants. However, VivaHub shall have full authority to remove any content posted that VivaHub deems unsafe and/or unsuitable for VivaHub.com, at VivaHub's sole discretion. VivaHub shall have the authority, and Merchant waives any right to contest, VivaHub's right to edit and/or delete any objectionable content as determined by VivaHub. VivaHub shall not be liable for any defamatory, offensive, and/or illegal conduct of other Users, or Merchants on VivaHub.com.
MERCHANT, at its sole expense, will indemnify, defend, and hold VivaHub (including our affiliates, partners, officers, directors, employees, and agents) harmless from any claim, loss, damage, settlement, cost, expense or any other liability (including, without limitation, attorneys' fees) arising from, or in any way related to the following: a) your breach of any provision of this Merchant Agreement; (b) your negligence, fraud, or willful misconduct, including the entry of incomplete or inaccurate information in your Merchant Portal, or as it pertains to the terms of an Offer (c) any sales channels or activities owned, operated, delegated by, or affiliated with you and your products, services, assets, or materials (including, but not limited to, the offer, sale, fulfillment, refund,†return or adjustments of any product or service contained in an Offer, or Voucher), including, but not limited to, any actual or alleged infringement of any Intellectual Property Rights by any of the foregoing, and any personal injury, death or property damage related thereto; (d) Any taxes or governmental liabilities, including, but not limited to (i) any claim for state sales, use, tourism (such as hotel occupancy), or any other similar tax obligations (including any penalties, interest or other additions to tax) arising from the sale and subsequent redemption of a Voucher, and (ii) any claim (including but not limited to claims for penalties and interest) by any local, state or federal governmental entity for any unclaimed property whether claim is directed to VivaHub, to Merchant, or to a third party.
Merchant must hire and use Counsel reasonably satisfactory to VivaHub to defend each indemnified claim, at Merchant's expense. If at any time, however, we reasonably determine that any indemnified claim might adversely affect us, VivaHub reserves the right to take control of the defense at VivaHub's own expense. Merchant may not consent to the entry of any judgment or enter into any settlement of a claim without the prior written consent of VivaHub, which VivaHub may not unreasonably withhold.
During your use of the VivaHub platform, you may come into contact with information which VivaHub considers to be confidential. Any information contained in the Merchant account and that is generated, or provided to you by the VivaHub system, is considered confidential. For example, you may receive certain information relating to the services that VivaHub.com provides, including transaction information, or customer information we feel necessary to provide to you in order to aid with redemption of purchased VivaHub Vouchers. This information is not known to the general public. You agree as follows: (a) all Confidential Information will remain VivaHub's exclusive property; (b) you will use Confidential Information only as is reasonably necessary for your fulfillment of your duties under this Agreement, including Voucher redemption, and you will only disclose Confidential information to your employees on a need-to-know basis; (c) you will not otherwise disclose Confidential Information to any individual, company, or other third party for any reason not contained herein, and (d) you will take all reasonable measures to protect the Confidential Information against any use or disclosure that is not expressly permitted in this Merchant Agreement. Upon actual, alleged or threatened breach of the confidentiality obligations by either party, both party's agree the other party is likely to suffer immediate and irreparable harm, and that other party, without the posting of any security or bond, may seek an injunction, temporary restraining order, or other form of equitable relief. If either party to this Merchant Agreement is required by law to disclose the other party's confidential information, it shall promptly notify and cooperate with the other party to obtain a protective order, or otherwise limit disclosure of any confidential information. You agree that any communications between you and VivaHub, such as email, telephone conversations, or other correspondence, in which you offer recommendations or comments for improving or modifying our website, offerings, and services, will be considered non-confidential and non-proprietary, and you further agree that such information may be used freely by VivaHub, without any limitation whatsoever.
Merchant acknowledges nothing contained in this Agreement establishes an employer-employee relationship between Merchant and VivaHub. Merchant and VivaHub agree they are independent contractors, and nothing in this Merchant Agreement shall be deemed or construed by the Merchant, VivaHub, nor by any third party, to create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between us. VivaHub is NOT a vendor or co-vendor of your goods and services. VivaHub is solely the issuer of the Vouchers. Merchant is the sole provider of goods and services associated with each Offer, and the sole responsible party for redeeming each Voucher sold. Merchant further represents and warrants it will not make any statement on its website, or otherwise, that would contradict anything in this section. Because VivaHub is not the agent of either you or any customer that purchases any Voucher, for any purpose, VivaHub will not act as either party's agent in connection with resolving any disputes between participants related to, or arising out of any transaction, or the fulfillment of the obligations of that transaction. This Agreement will not create an exclusive relationship between the Merchant and VivaHub.
Merchant acknowledges that it is not possible for VivaHub to stay up on the local laws of the many jurisdictions where this platform may reach, and that it is Merchant's sole responsibility to ensure the marketing of any Offer, the sale of any Vouchers, and the Terms stated on the Voucher themselves comply with all Laws, as defined broadly above. Merchant agrees to indemnify and hold harmless VivaHub, in any situation where the expiration date, voucher fees, or other consumer protection laws conflict with the use of VivaHub and the terms of this Merchant Agreement. Merchants may not utilize the platform, if and when the VivaHub Terms & Conditions, this Merchant Agreement, or any additional terms specified on VivaHub Vouchers, or added by the Merchant in its Offers, are in violation or at odds with any Law.
You represent and warrant that all goods and services provided by your VivaHub Offers, are safe, and comply with all Laws and local standards for health and safety, fire, and hygiene. At each location that you authorize for redemption in any of your Offers (including cases in which you Redeem Online or Redeem at Home), you represent and warrant you are both duly authorized with the rights and permissions and fully compliant with all Laws (including possession of any requisite documentation such as licenses or certifications) with Laws and regulations for the sale and redemption of the goods and services contained in any Offer, as well as for any other goods and services sold by you at that particular location. If at any point during the term of this Agreement, you no longer meet the terms of this section, you shall immediately notify VivaHub.
VivaHub retains the right to immediately halt any transaction, reverse a transaction, prevent, or restrict access, or availability to certain VivaHub.com features or areas, to any Merchant, at any time, and for any reason.
Merchant represents and warrants that Merchant shall maintain at its sole expense throughout the entire duration of this Merchant Agreement sufficient and comprehensive types and amounts of liability insurance coverage, that is considered to be consistent with best industry practices, compliant with any and all applicable Law, and sufficient to fulfill all obligations under this Agreement. Upon VivaHub's request, Merchant shall provide proof of your maintenance of such liability policies and provide VivaHub with adequate assurances indicating that VivaHub will be covered by Merchant's insurance in the event of a claim related to, or arising out of this Agreement, or any Offer, or Voucher.
Merchant acknowledges that VivaHub is the owner of VivaHub intellectual property, including all right, title, and interest in the VivaHub.com site include but not limited to VivaHub software, logos, graphics, trade name, trademarks, service marks, and illustrations. Merchant agrees all software, content, data, technology and tools to (a.) create Offers and Partnered Offers, including that used to create Open Offers and Fundraiser Requests to Merchants, (b.) to market, promote, and to sell Offers of all kind, and to redeem Vouchers are the property of VivaHub and protected by United States and international copyright and trademark laws and Merchant shall not, including but not limited to, copy, reproduce, sell, or prepare any derivative work of VivaHub. You may use VivaHub's name, trademarks, logos only from the start of any Offer period for which the Offer is published or otherwise available for sale, through the Promotional Value Expiration of a VivaHub Voucher, solely for the purpose of marketing and promoting your Offer to your customers and potential customers. Outside of this limited duration permissible use, you may not issue any public statement of any kind (electronically, verbally, in print, or other media) related to anything arising out of this Merchant Agreement, including the use of our name, trademarks or logo, in any other way (including in promotional material), without VivaHub's advance written permission. You may not misrepresent or embellish the relationship between VivaHub and you, in any way, nor shall you use or display the above mentioned trademarks, logo, name, or website in any manner that suggests or states that VivaHub endorses or approves of your products or services.
Merchant warrants and represents it has the authority to grant VivaHub and does grant VivaHub through this Agreement a non-exclusive license to use, display and transmit Merchant's trademarks and other intellectual property, including but not limited to, graphics, images, text and other content to promote their business on VivaHub.com.
Communications between Merchant and VivaHub use electronic means, whether Merchant visits VivaHub.com or send us emails, or whether VivaHub posts notices on the VivaHub.com website, or communicates with Merchant via email.
Merchant consents to receiving electronically all notices, agreements, terms and conditions, and other communications provided to you from VivaHub. Such communications from VivaHub shall satisfy the requirement, anywhere in this Agreement and to the extent required and permissible by law, that notices from VivaHub be in writing. The foregoing does not affect your non-waivable statutory rights.
We will send all notices and other communications regarding this Agreement to you at the e-mail address you specify at the time you sign up. You may change this e-mail address inside your User Account on VivaHub.com. You must update this e-mail address, as well as all other account information (both in your User Account and in your Merchant Portal) that you provide to VivaHub, to ensure that it remains up to date at all times.
Any notice that is sent to you, that is required or permitted by this Merchant Agreement, shall be provided to you in writing, and shall be deemed delivered either when (a) delivered by e-mail to the latest e-mail address then contained inside your VivaHub User Account, or (b) regardless of whether or not actually received, when deposited with UPS, FedEx, or the US Mail (certified with return receipt), addressed to the you at the address specified by you, in your Merchant Portal. You agree that your failure to keep both your e-mail address and physical address up to date at all times is a material breach of your obligations under this Merchant Agreement.
Merchant must send all notices and other communications, legal or otherwise, relating to VivaHub and this Merchant Agreement to our Merchant Team by using the VivaHub Contact Us form.
Dispute Resolution. You and We agree to be bound to resolve any dispute under this Agreement through arbitration under the Federal Arbitration Act and waive the right to proceed with any lawsuit in Federal or State court. There is no judge or jury in arbitration and the rules are different than in a court of law. The review of any award is limited. Arbitrators can award the same damages and relief as a court of law. Any arbitrator of any dispute under this Agreement must follow this Agreement as a court would be bound to do.
Binding Arbitration. Any controversy(ies) or claim(s) arising out of, or relating to, this Agreement, contract therein, performance, breach thereof, and/or termination, including disputes regarding the Terms of VivaHub.com, Merchant Agreement, Fundraiser Agreement, use of VivaHub.com and/or the purchase of Vouchers through VivaHub.com shall be settled by final and binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules by a single arbitrator.
Location of Arbitration. You and We agree any arbitration under this Agreement shall be held in Durham, North Carolina.
Applicable Law. You and We agree the applicable law for any arbitration held under this Agreement shall be North Carolina law and the arbitrator shall apply North Carolina law consistent with the Federal Arbitration Act, and applicable statutes and limitations and shall honor claims of privilege recognized at law.
Enforcement of Arbitration Award. The parties shall be entitled to enforce any arbitration award under this Agreement in State Courts in the State of North Carolina, hereby consent to jurisdiction of State Courts in the State of North Carolina, and hereby irrevocably waive the right to contest jurisdiction of State Courts in the State of North Carolina, as well as, venue.
Waiver of Class and Representative Actions. You and We agree all arbitrations shall be individual arbitrations and there shall be no consolidation of claims, persons, parties, or actions similarly situated. The parties agree no class actions or representative actions shall be permitted under this Agreement. You and We agree the right to any such class and/or representative actions under this Agreement are forever waived.
Costs of Arbitration. Upon request to VivaHub.com and upon valid and sufficient proof of an inability due to cost to arbitrate a dispute under this Agreement, rather than litigate a dispute under this Agreement, VivaHub.com agrees to pay portions of arbitration filing, administrative and hearing fees until the arbitration cost is no longer prohibitive as opposed to litigation as determined by the arbitrator. The parties agree each shall pay his or her own attorney fees for any dispute under this Agreement; however, they agree attorney fees, if permissible under any claim under this Agreement, may be awarded in arbitration by the arbitrator.
Severability. If any part of this Agreement, except the section titled "Waiver of Class and Representative actions", is determined invalid or unenforceable through arbitration, or a court of law, that provision shall be severed and the remaining parts shall remain valid, enforceable, and binding upon the parties. In the event the provision titled, "Waiver of Class and Representative Actions" is determined invalid and unenforceable, the entirety of this section regarding "Dispute Resolution" requiring final and binding arbitration shall no longer be in effect or valid, and any claims there under shall be litigated in the State Courts of the State of North Carolina, and under North Carolina Law. The parties hereby waive the right to a jury trial in the event the claims proceed in court.
Section Headings and Interpretations. The section headings used herein are for convenience only and shall be of no legal force or effect. References to a section include references to all subsections of that section.
Invalidity of a Provision. Should any statement made in this Agreement be held invalid, unlawful, or for any reason unenforceable by a court of competent jurisdiction, the remaining portions of the Agreement shall be deemed severable from these terms, and remain in full force and effect. To the extent permissible by law, the parties shall negotiate an equitable adjustment in the provisions in order to affect, to the maximum extent permitted by Law, the purpose and effect of this Agreement, and the term held to be invalid or unenforceable. Otherwise the portion will be construed consistent with applicable law, by the court of competent jurisdiction, to the greatest extent possible to affect the intentions of the parties contained in this Agreement.
No waiver by either party of any breach or default of any term of this Merchant Agreement is a waiver of any preceding or subsequent breach or default. Furthermore, the failure of either party to exercise any of its rights under this Agreement shall not be deemed a waiver or forfeiture of such rights or any other rights provided hereunder. VivaHub's failure to enforce Merchant's strict performance of any provision of this Agreement will not constitute a waiver of VivaHub's right to enforce such provision or any other provision of this Merchant Agreement at any time subsequently. VivaHub's rights under this Agreement will survive any termination of this Agreement.
VivaHub.com reserves the right to make any change or modification to this Merchant Agreement, without prior notification to you, at any time and at our sole discretion. We recommend you re-review this Merchant Agreement regularly, as well as make note of the date, so that you stay informed of changes that we may make. Any modification or deletion to any terms contained in this Merchant Agreement shall be effective immediately upon VivaHub's posting of those modifications or deletions. No part of this Merchant Agreement may be otherwise amended or modified (other than set forth in this paragraph), except by mutual written agreement signed by both the Merchant and VivaHub bearing the physical signature of an officer of VivaHub. No Waiver of VivaHub's rights hereunder shall be valid or effective except by mutual written agreement signed by both the Merchant and VivaHub bearing the physical signature of an officer of VivaHub. No purported waiver or modification of this Agreement by VivaHub can be made nor can it be valid, via telephonic or email communications. YOUR CONTINUED ACCESS OF THE MERCHANT PORTAL AFTER VIVAHUB'S POSTING OF ANY MODIFICATIONS OR DELETIONS TO THIS MERCHANT AGREEMENT, WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH MODIFICATIONS OR DELETIONS. IF YOU DO NOT AGREE TO ANY CHANGES TO THIS MERCHANT AGREEMENT, YOU MUST TERMINATE THIS MERCHANT AGREEMENT AS PROVIDED BELOW.
You may not assign or transfer any of your rights under this Agreement, or delegate any of your obligations pursuant to this Agreement, by operation of law or otherwise, without VivaHub's prior written consent, and any attempt by you to do so will be invalid. Subject to that restriction, this Agreement will be binding on, inure to, and be enforceable against VivaHub and the Merchant, and each of their respective successors and assigns. VivaHub may perform any of our obligations or exercise any of our rights under this Agreement through one or more vendor, affiliate, contractor, or similar.
Nothing expressed, mentioned in, or implied from this Merchant Agreement is intended or shall be construed to give to any third-party other than the parties expressly contemplated in this Agreement any legal or equitable right, benefit, remedy, or claim under or in respect to 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 VivaHub, the Merchant, and relying VivaHub customers and/or Fundraisers. These Terms shall be binding upon and inure to the benefit of, the Parties and their respective permitted successors and assigns.
The terms of this Merchant Agreement constitute the entire agreement of the parties with respect to the subject matter that it contains, and supersedes all prior or contemporaneous oral or written agreements and understandings.
Viva Hub, Inc. is headquartered in Durham, North Carolina. This Merchant Agreement shall be exclusively governed by the Laws of the State of North Carolina.Merchant and VivaHub agree that any and all disputes arising out of or related to this Merchant Agreement (including the performance, breach, or termination of this Agreement), Merchant's use of the Website, and/or Your purchase or use of anything available through VivaHub.com shall be governed by and in accordance with the laws of the State of North Carolina (exclusive of its rules regarding conflict of laws).