Check Cherry Merchant Agreement
PLEASE READ THIS MERCHANT AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE USING THE SERVICE (AS DEFINED BELOW) OFFERED BY CHECK CHERRY, INC. (“CHECK CHERRY”). BY ACCESSING OR USING THE SERVICE IN ANY MANNER, YOU (“MERCHANT”) AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY AND A PARTY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS. IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF AN ORGANIZATION, YOU REPRESENT THAT YOU HAVE AUTHORITY TO DO SO.
- Subject to the terms and conditions of this Agreement, Check Cherry will feature one (1) or more specific service packages and add-ons from Merchant (“Packaged Services”) on the Check Cherry website and the Check Cherry mobile applications (such website and applications together, the “Services”), and allow Check Cherry’s users (collectively, “Users”) to reserve such Packaged Services. For the avoidant of doubt, Merchant (and not Check Cherry) is the provider of the Packaged Services and is fully responsible for services rendered relating to Packaged Services.
- Check Cherry will display on the Services the Packaged Services that have been approved by Check Cherry through Merchant’s completion and Check Cherry’s approval of the Merchant sign-up form(s) (such completion and approval, “Registration”) at its discretion. Through the Registration process, the parties will agree to, among other terms, Packaged Services details to be displayed on the Services, and the price and balance of services rendered through the Services. Check Cherry may also promote the Packaged Services in Check Cherry’s discretion, such as email marketing and displaying content on third-party sites and services.
- Merchant will provide Check Cherry, on a timely basis, with all reasonably requested information regarding Packaged Services, so that Check Cherry may provide such information to a User before he or she decides to reserve such Packaged Services.
- Check Cherry will keep track the remaining balance of each Packaged Service, on a timely basis, and Merchant may check such balance through Services.
- Check Cherry will not collect and not be responsible for collection of payment from Users who purchase Packaged Services (“Payment”). The Payments from any User shall be made”), via check, cash or to your Stripe Connect (https://stripe.com/connect) account (“Stripe Account”). If you choose to accept credit and debit cards for Payment, you must maintain a valid Stripe Account. Accordingly, Check Cherry will not have the responsibility to make or ensure any payment to Merchant.
Compliance with Laws.
- Merchant shall comply with all applicable laws with respect to the subject matter of this Agreement, including, without limitation, laws prohibiting Merchant from providing alcohol or tobacco products to those under the legal age to purchase or consume such items and laws relating to gift cards or privacy or abandoned properties.
Term and Termination.
- This Agreement will be in effect from the date agreed to by Merchant and continue until terminated by either party, in accordance with the provisions of this Section. This Agreement may be terminated: (i) by either party, upon 10 days’ notice, if the other party is in material breach of any provision of this Agreement and such breach is not cured by the breaching party within the 30 day notice period; (ii) by either party, immediately if the other party is judicially declared to be insolvent or commences any bankruptcy, reorganization, debt arrangement or other case or proceeding under any bankruptcy or insolvency law that is not dismissed within 90 days, or commences any dissolution or liquidation proceeding; (iii) by Check Cherry, at any time and in Check Cherry’s sole discretion, upon 10 days’ notice to Merchant; or (iv) by mutual agreement of the parties, upon the cancelation of all outstanding Packaged Services. For avoidance of doubt, Check Cherry will not market or sell any Packaged Services on the Services as of the effective date of termination.
- The following provisions shall survive termination of this Agreement: Sections 2-5 (inclusive), 7-11 (inclusive); all terms of this Agreement (except Check Cherry’s obligations in Section 1) will survive termination during the Post-Termination Period.
Use of Marks.
- Except as otherwise provided herein, neither party shall use the other party’s names, trademarks, service marks or logos (collectively, “Marks”) without the prior written consent of the other party. Check Cherry may use Merchant’s Marks on the Services and any Services partnered or affiliated with Check Cherry in connection with the provision or promotion of any Packaged Services or in Check Cherry’s marketing and publicity materials.
- If Merchant has provided Check Cherry photos, images, text, data, or other materials or content (collectively, “Content”), Merchant hereby grants Check Cherry a royalty-free, nonexclusive, worldwide, perpetual, irrevocable license to display, reproduce, distribute, modify, prepare derivative works of, perform, and otherwise use and exploit all Content in connection with the promotion and marketing of the Packaged Services and the Services.
Representations and Warranties.
- Each party represents and warrants that (i) it has power and authority to enter this Agreement; (ii) the person executing this Agreement on behalf of a party has power and authority to bind such party to this Agreement; and (iii) its entry into and performance of this Agreement will not breach any contractual obligations with third parties.
- Merchant represents and warrants: (i) it will honor the terms of all Packaged Services; (ii) it shall provide all customer support in connection with all Packaged Services in a professional manner; (iii) it shall not infringe the intellectual property or other right of any other person or entity with respect to the subject matter of this Agreement; and (iv) if applicable, it has all necessary rights to grant the license in Section 5 above, including the right to use the name, likeness, and identifying information of any identifiable person in the Content; and (v) it shall be solely responsible for all the claims and disputes raised by Users in connection with payment, use and services regarding the Packaged Services.
- Check Cherry represents and warrants that it shall perform its obligations hereunder in a professional manner.
- EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, CHECK CHERRY MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WITH RESPECT TO THE SERVICES OR ANY OF THE SERVICES AVAILABLE FROM CHECK CHERRY IN CONNECTION THEREWITH, INCLUDING WITHOUT LIMITATION THE MANNER IN WHICH THE PACKAGED SERVICE IS DISPLAYED ON THE SERVICES, AND CHECK CHERRY HEREBY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SUBJECT MATTER UNDER THIS AGREEMENT, EXPRESS AND IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
- Merchant may receive business, technical, financial, or other information, materials, and/or ideas from Check Cherry during the term of this Agreement, including without limitation personal information about Users and details about Packaged Services such as, number of Packaged Services sold, and revenue generated by any Packaged Service (“Confidential Information”). Merchant agrees to hold in confidence and not use or disclose (except as specifically allowed hereunder) the Confidential Information.
- Merchant will indemnify and hold Check Cherry, its parents, subsidiaries, affiliates, officers, and employees harmless (including, without limitation, from all damages, liabilities, settlements, costs and attorneys’ fees) from any claim or demand made by any third party (including without limitation any User) due to or arising out of (a) any Packaged Service; (b) Merchant’s breach of any of its warranties under this Agreement; and (c) Merchant’s breach of this Agreement.
Limitation of Liability.
- IN NO EVENT SHALL CHECK CHERRY OR ITS SUPPLIERS, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE WITH RESPECT TO THE SERVICES OR ANY SERVICES PROVIDED BY CHECK CHERRY OR THE SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY AMOUNT IN THE AGGREGATE IN EXCESS OF THE GREATER OF $100 FOR THE TWELVE MONTH PERIOD PRECEDING THE APPLICABLE CLAIM; (II) FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER; (III) FOR DATA LOSS OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; OR (IV) FOR ANY MATTER BEYOND CHECK CHERRY’S REASONABLE CONTROL.
- The failure of either party to exercise, in any respect, any right provided for herein shall not be deemed a waiver of any further rights hereunder. Check Cherry shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Check Cherry reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including “line-noise” interference). If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Merchant except with Check Cherry’s prior written consent. Check Cherry may transfer, assign or delegate this Agreement and its rights and obligations without consent. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflict of laws provisions thereof. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by arbitration in Riverside County, California, using the English language in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Streamlined Arbitration Rules and Procedures of JAMS. Judgment upon the award so rendered may be entered in a court having jurisdiction, or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts located in the Southern District of California. Both parties agree that, except as otherwise provided herein, this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement and that all modifications must be in a writing signed by both parties. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Merchant does not have any authority of any kind to bind Check Cherry in any respect whatsoever.