Global African Third Party Contractor Terms & Conditions
Third Party Contractor TERMS AND CONDITIONS
Effective date 08/09/18
These Third Party Contractor Terms and Conditions (the “Terms and Conditions”) govern and are incorporated into the Global African Third Party Contractor Agreement between Global African and Third Party Contractor (collectively, the “Agreement”). Global African, subject to the provisions of this paragraph, may amend the Terms and Conditions in its sole discretion and at any time. The most recent version of the Terms and Conditions (as may be amended by Global African from time to time) will be available: (i) in Global African’s Third Party Contractor Center, and/or (ii) as part of the Global African Third Party Contractor Newsletter. Third Party Contractor agrees that either or both of these notification methods constitute adequate notice to inform Third Party Contractor of any amendments to the Agreement and Third Party Contractor further agrees to be bound by any such amendments to the Agreement upon such notification.
“Third Party Contractor OFFERING” means the goods and/or services to be provided by the Third Party Contractor, stated on the Voucher as presented by Global African. Values determined by Third Party Contractor.
“MAXIMUM NUMBER OF VOUCHERS” means the maximum number of Vouchers Global African is authorized to administer the sale of on behalf of the Third Party Contractor.
“MONTHLY MAXIMUM NUMBER OF VOUCHERS” means the maximum number of Vouchers Global African is authorized to administer the sale of on behalf of Third Party Contractor each month after the Maximum Number of Vouchers has been sold.
“FULL OFFER VALUE” means the Amount Paid plus the Promotional Value.
“AMOUNT PAID” means the amount a purchaser pays for each Voucher.
“PROMOTIONAL VALUE” means the Full Offer Value less the Amount Paid.
“PROMOTIONAL VALUE EXPIRATION DATE” means the date stated on the Voucher when the Promotional Value expires.
“REMITTANCE AMOUNT” means the amount Global African shall remit to Third Party Contractor for each Voucher, subject to the payment terms.
“FINE PRINT” means the conditions and restrictions concerning Voucher redemption and the Third Party Contractor Offering stated on the Website and Voucher.
- Voucher Program
- Global African is authorized to promote and sell Vouchers on Third Party Contractor’s behalf subject to the terms of this Agreement and the “Terms of Sale” of the Website. The Voucher will evidence the Third Party Contractor Offering and will be sent to the purchaser electronically once payment is received. The purchaser will then redeem the Voucher with the Third Party Contractor by presenting the Voucher in paper or electronic form. Third Party Contractor is the issuer of the Vouchers and seller of the Third Party Contractor Offering. If there is a conflict between this Agreement and the Terms of Sale, the Agreement controls.
- Global African is authorized to promote and sell Vouchers on Third Party Contractor’s behalf through any platform, including its feature deal-of-the-day, affiliates, business partner network, marketplace, or referral network. The Vouchers may be offered to all or part of Global African’s subscriber base or its affiliate subscriber base or referral network and segmented by various variables including gender, age, location, and consumer preferences. The features may be offered through a variety of distribution channels, including, the Internet, the Website, affiliate websites, business partner network, email, mobile applications, other types of electronic offerings and other platforms or distribution channels owned, controlled, or operated by Global African, its affiliates or business partners. In addition, in connection with Global African’s promotion of a Third Party Contractor Offering, Third Party Contractor authorizes Global African to shorten or extend the Promotional Value Expiration Date.
- For appointment based Third Party Contractor Offerings, Global African may require that Third Party Contractor provide Global African with a calendar of available appointment times and allow Global African purchasers to schedule appointments with the Third Party Contractor through Global African and any third party service Global African may use. Global African may audit Third Party Contractor response times using various methods, including but not limited to, auto-dialers, call forwarding and pre-recorded calls. If Global African, in its sole discretion, determines Third Party Contractor response times or the quality of service provided to purchasers is unsatisfactory, Global African may terminate the Agreement and return the Amount Paid to purchasers for unredeemed Voucher.
- Any Third Party Contractor who provides a Third Party Contractor Offering that includes massage services shall: (i) conduct social media searches for all of its employees, agents and/or independent contractors performing any massage service to ensure that they maintain a good reputation; and (ii) confirm that its employees, agents and/or independent contractors providing massage services have the required licenses and/or certifications, as well as meet other applicable state law requirements, for performing the services. Further, Third Party Contractor shall certify to Global African annually that it is in compliance with (i) and (ii) above.
- If Third Party Contractor performs background checks on its employees, agents and/or independent contractors performing services, Third Party Contractor shall provide the results of such background checks to Global African upon request. Third Party Contractor shall obtain the necessary consent to share with Global African the results requested.
- Third Party Contractor shall promptly notify Global African any time it receives a complaint related to potentially criminal conduct, including allegations of sexual assault, allegedly engaged in by any of its employees, agents or independent contractors, regardless of whether a Global African customer makes the complaint.
- Global African is authorized to promote and sell up to the Maximum Number of Vouchers in multiple markets and on dates in its discretion. If Third Party Contractor elects to offer recurring month-to-month features, then Global African will promote and sell up to the Maximum Number of Vouchers for the initial feature, then promote and sell up to the Monthly Maximum Number of Vouchers for subsequent features. Third Party Contractor shall specify the Maximum Number of Vouchers and, if applicable, specify the Monthly Maximum Number of Vouchers, and may increase either number in its discretion.
- Global African reserves the continuing right to reject, revise, or discontinue any Third Party Contractor Offering, at any time and for any reason in Global African’s sole discretion, and to terminate the Third Party Contractor Offering and to remove all references to the Third Party Contractor Offering and Voucher from the Website; and redirect or delete any URL used in connection with the Third Party Contractor Offering.
- Third Party Contractor shall honor the Vouchers for the Third Party Contractor Offering through the Promotional Value Expiration Date. After the Promotional Value Expiration Date, Third Party Contractor AGREES TO REDEEM THE VOUCHER FOR THE AMOUNT PAID INDEFINITELY.
- After the Promotional Value Expiration Date, Third Party Contractor must always allow the purchaser to redeem the Voucher for the Amount Paid toward the Third Party Contractor Offering. If the goods and services constituting the Third Party Contractor Offering and stated on the Voucher are no longer available, the Third Party Contractor must always allow the purchaser to redeem the Voucher toward any goods or services then offered by the Third Party Contractor equivalent to at least the Amount Paid.
- Partial redemptions: If applicable, and if a purchaser redeems a Voucher for less than the Amount Paid, the Third Party Contractor is responsible for handling any unredeemed value as required by applicable law.
- Third Party Contractor agrees that in providing the Third Party Contractor Offering, Third Party Contractor will not inflate prices or impose any additional fees, charges, conditions or restrictions that contradict or are inconsistent with the terms stated on the Voucher, including the Fine Print. Unless disclosed in the Fine Print, Third Party Contractor further agrees not to impose different terms or a different cancellation policy than what is imposed on its non-Global African customers.
- Third Party Contractor agrees that so long as an appointment or reservation is made to redeem a Voucher, or purchaser has made an attempt to make an appointment, before the Voucher’s Promotional Value Expiration Date, the Voucher will be honored for the Full Offer Value without restriction, even though the services may be provided after the Promotional Value Expiration Date.
- For any seasonal Third Party Contractor Offering(s), following the initial Promotional Value Expiration Date specified in the Global African Third Party Contractor Agreement the: (i) Promotional Value Expiration Date will reset to be the end of the immediately following season specified by Third Party Contractor; and (ii) Maximum Number of Vouchers will reset for the immediately following season. Throughout the Term (as defined herein), the Promotional Value Expiration Date and the Maximum Number of Vouchers for the seasonal Third Party Contractor Offering(s) will continue to reset after each season.
- Third Party Contractor is responsible for all customer service in connection with the Third Party Contractor Offering and for supplying all goods and services stated in the Third Party Contractor Offering. Third Party Contractor is also responsible for any customer loyalty programs associated with the Third Party Contractor Offering.
- If applicable, Third Party Contractor will hold the Third Party Contractor Offering for pick-up by each purchaser at the Redemption Site. The “Redemption Site” is the complete and accurate address provided by Third Party Contractor to Global African where purchasers are able to redeem the Voucher to pick-up the Third Party Contractor Offering. Third Party Contractor also agrees to provide Global African with the hours and dates of operation, complete with any exceptions, and a valid phone number for the Redemption Site. If any of the information related to a Redemption Site changes, Third Party Contractor agrees to notify Global African immediately of such change.
- Third Party Contractor agrees to accept returns of the Third Party Contractor Offering in compliance with applicable laws and the Fine Print, but in any event: (i) will accept returns of a defective Third Party Contractor Offering or nonconforming items in or a part of any Third Party Contractor Offering at all times and pay (or reimburse a purchaser for) any and all costs associated with the return of such Third Party Contractor Offering; and (ii) will not impose a more restrictive return policy on purchasers than Third Party Contractor’s regular return policy as applied to Third Party Contractor’s purchaser in the ordinary course of Third Party Contractor’s business.
- Amounts retained by Global African from the proceeds of the Third Party Contractor Offering are compensation to Global African for marketing, promoting, and advertising the Third Party Contractor Offering and distributing the Vouchers on behalf of Third Party Contractor. Third Party Contractor shall retain the Remittance Amount in trust for the benefit of purchasers holding unredeemed Vouchers until Third Party Contractor delivers the Third Party Contractor Offering, refunds the holder of any unredeemed Voucher or escheats the amount required to a taxing authority, if applicable. The funds held in trust shall be returned to Global African upon demand for refunds to purchasers. Global African is authorized to review Third Party Contractor’s credit history, which may include a soft credit check.
- Global African is authorized to initiate ACH credit transaction entries to Third Party Contractor’s depository account at the depository financial institution named in this Agreement or as otherwise provided to Global African by Third Party Contractor in writing (“Third Party Contractor Bank Account”). Only in the event of an error, Global African is authorized to initiate debit entry adjustments to the Third Party Contractor Bank Account to correct any error. Third Party Contractor hereby acknowledges that Global African’s origination of all ACH transactions to Third Party Contractor Bank Account must comply with provisions of U.S. law. ACH payments take up to five (5) business days to become available in the Third Party Contractor Bank Account after processing.
- Third Party Contractor will not attempt to bill or collect reimbursement from any third-party payor, including but not limited to any insurer, health insurance plan, Medicare, Medicaid, or any other federal, state, provincial, territorial or local governmental program or entity (“Third-Party Payor”), for any of Third Party Contractor’s services. Third Party Contractor will accept the amounts received from Global African as payment in full for all services provided by Third Party Contractor delivered pursuant to the Third Party Contractor Offering. Third Party Contractor is solely responsible for complying with any contractual requirements imposed by its contracts with Third-Party Payors, including but not limited to requirements related to offering discounted services.
- Tax Levy. In the event Global African receives written notice of a validly issued state or federal tax levy relating to past-due taxes owed by Third Party Contractor, Global African may, in accordance with applicable law, deduct any such amounts from payments due to Third Party Contractor.
- Taxes Generally. It is Third Party Contractor’s responsibility to determine what, if any, taxes apply to the payments Third Party Contractor makes or receives, and it is Third Party Contractor’s responsibility to collect, report and remit the correct tax to the appropriate tax authority. Global African is not responsible for determining whether taxes apply to Third Party Contractor’s transaction with either purchasers or Global African, or for collecting, reporting or remitting any taxes arising from any transaction with or by Third Party Contractor and purchaser. Third Party Contractor may be asked to provide Global African with a valid Tax Identification Number for tax reporting purposes. An IRS Form 1099 may be issued in Third Party Contractor’s name for the value of payments made. Notwithstanding anything else in this Agreement, Third Party Contractor shall be, and will remain, registered for sales, use and other similar tax collection purposes in all states and localities in which Third Party Contractor is required to be so registered in connection with the Third Party Contractor Offering and pursuant to the terms and redemption of the Voucher, and shall be responsible for paying any and all sales, use or any other taxes related to the Third Party Contractor Offering or the goods and services.
- Transaction Taxes. Third Party Contractor bears sole financial responsibility for any and all sales, use, excise, general, GST, or other similar taxes, including any interest penalties and additions related thereto, imposed on or arising from the transactions contemplated by this Agreement between Global African and Third Party Contractor (“Transaction Taxes”), if any. Global African shall apply the applicable Transaction Tax to the amounts it retains and/or other fees remitted to Global African pursuant this Agreement. Transaction Taxes are calculated using the Third Party Contractor’s billing address and will be included on invoices. Tax rates are subject to change. If applied, Transaction Taxes will be calculated at the time of each payment using the rates in effect under current law.
- Withholding Taxes. Global African may be required by tax authorities to withhold taxes on behalf of Third Party Contractor. Global African reserves the right to deduct any such taxes from amounts due to Third Party Contractor and to remit them to the appropriate tax authority. Global African may also be required to report the withholding tax payments to the tax authorities. Global African shall provide evidence of payment of withholding taxes to Third Party Contractor no later than 60 days after payment of the withholding taxes.
- Notwithstanding anything to the contrary, Global African will have no obligation to advance amounts that have been paid to Global African by a purchaser until Third Party Contractor has complied with Third Party Contractor’s obligations under this Agreement. If Global African reasonably believes that Third Party Contractor has breached any provision of this Agreement, Global African may offset, delay, withhold, or suspend future payments to Third Party Contractor, in Global African’s sole discretion. In addition, if Third Party Contractor is unwilling to, or in Global African’s reasonable discretion appears unable to, perform its obligations under this Agreement, Global African is authorized to offset, delay, withhold, or suspend future payments to Third Party Contractor in addition to such other remedies as may be available under this Agreement or at law, to secure payment from Third Party Contractor for any refunds and/or other amounts payable by Third Party Contractor under this Agreement.
- Customer Data Restrictions
- “Customer Data” means all identifiable information about purchasers generated or collected by Global African or Third Party Contractor, including, but not limited to, purchasers’ name, shipping addresses, email addresses, phone numbers, purchaser preferences and tendencies, and financial transaction data.
- Third Party Contractor shall immediately notify Global African if Third Party Contractor becomes aware of or suspects any unauthorized access to or use of Customer Data or any confidential information of Global African, and shall cooperate with Global African in the investigation of such breach and the mitigation of any damages. Third Party Contractor will bear all associated expenses incurred by Global African to comply with applicable laws (including, but not limited to, any data breach laws) or arising from any unauthorized access or acquisition of Customer Data while such data is in Third Party Contractor’s reasonable possession or control. Upon termination or expiration of this Agreement, Third Party Contractor shall, as directed by Global African, destroy or return to Global African all the Customer Data in Third Party Contractor’s or any agent of Third Party Contractor’s possession.
- Mobile Redemption Devices
- Promotional Programs
In an effort to incentivize Voucher sales, Third Party Contractor authorizes Global African, at any time and in Global African’s sole discretion, to increase or decrease the Amount Paid for the Third Party Contractor Offering (any such effort, “Promotional Program(s)”). For each Voucher sold as part of a Promotional Program, the Net Remittance Amount may be adjusted in an amount equal to the percentage increase or decrease in the Amount Paid (“Promotional Adjustment”), provided that, any decrease of the Net Remittance Amount will not exceed: (i) twenty percent (20%) of the Net Remittance Amount, or (ii) if applicable, the maximum Promotional Adjustment specified in the “Payment Terms” section of the Global African Third Party Contractor Agreement. Promotional Programs include the following:
- Promotional Codes – A “Promotional Code” is a code that purchasers may use, in Global African’s sole discretion, to receive a discount on the Amount Paid for a Third Party Contractor Offering.
- Price Optimization – “Price Optimization” is any change (excluding Promotional Codes) to the Amount Paid for a Third Party Contractor Offering.
- Term and Termination
This Agreement will continue in effect until terminated by either party in accordance with this Section (“Term”). Global African is authorized to terminate this Agreement, at any time for any reason, upon written notice to Third Party Contractor. Third Party Contractor is authorized to terminate this Agreement upon seven (7) business days prior written notice to Global African. Termination of this Agreement will not in any way affect Third Party Contractor’s obligation to redeem any Voucher according to the terms of this Agreement, including the obligation to honor the Voucher for the Amount Paid after the Promotional Value Expiration Date. Provisions in this Agreement that are intended to survive termination will continue in full force and effect after the Term.
- Compliance with Gift Card, Gift Certificate and Abandoned Property Laws
Global African and its business partners may communicate with Third Party Contractor with regard to products, promotions, and other services that may be of interest to Third Party Contractor. This may include email or other communications. Global African may also solicit Third Party Contractor’s opinion for market research purposes.
- Third Party Contractor must take pictures of the start of the job and the job completion, then submit them to email@example.com . This is used for litigation protection, Third Party Contractor insurance, marketing, and customer retention.
- Intellectual Property Rights
- Third Party Contractor grants to Global African a non-exclusive, worldwide, royalty free, paid-up, perpetual, irrevocable, transferable and sub-licensable license and right to use, modify, reproduce, sublicense, publicly display, distribute, broadcast, transmit, stream, publish and publicly perform: (a) Third Party Contractor’s name, logos, trademarks, service marks, domain names, and any audiovisual content, video recordings, audio recordings, photographs, graphics, artwork, text and any other content provided, specified, recommended, directed, authorized or approved to use by Third Party Contractor (collectively, “Third Party Contractor IP”); and (b) any third party’s name, logos, trademarks, service marks, domain names, audiovisual recordings, video recordings, audio recordings, photographs, graphics, artwork, text and any other content provided, specified, recommended, directed, authorized or approved for use by Third Party Contractor (collectively, “Third Party IP”), in each case in connection with the promotion, sale/resale (as may be applicable) or distribution of the Third Party Contractor Offering in all media or formats now known or hereinafter developed (“License”). Any use of the Third Party Contractor IP or Third Party IP as contemplated in this Agreement is within Global African’s sole discretion.
- Third Party Contractor acknowledges and agrees that, as between the parties, Global African owns all interest in and to the Website, Customer Data, Global African trade names, logos, trademarks, service marks, domain names, social media identifiers, all data collected through or from the Website, all audiovisual content, video recordings, audio recordings, photographs, graphics, artwork, text or any other content created by Global African or at Global African’s direction, or assigned to Global African, and any materials, software, technology or tools used or provided by Global African to promote, sell/resell (as may be applicable) or distribute the Third Party Contractor Offering and conduct its business in connection therewith (collectively “Global African IP”). Third Party Contractor shall not use, sell, rent, lease, sublicense, distribute, broadcast, transmit, stream, place shift, transfer, copy, reproduce, download, time shift, display, perform, modify or timeshare the Global African IP or any portion thereof, or use such Global African IP as a component of or a base for products or services prepared for commercial use, sale, sublicense, lease, access or distribution, except that Global African grants Third Party Contractor a limited, non-exclusive, revocable, non-transferable, non-sub licensable license during the Term to use one copy of Global African’s mobile Third Party Contractor software application on a single mobile computer, tablet computer, or other device, solely for the purposes permitted by that software, and to make one copy of the software for back-up purposes. Third Party Contractor shall keep the Global African IP confidential, and shall not prepare any derivative work based on the Global African IP or translate, reverse engineer, decompile or disassemble the Global African IP. Third Party Contractor shall not take any action to challenge or object to the validity of Global African’s rights in the Global African IP or Global African’s ownership or registration thereof. Except as specifically provided in this Agreement, Third Party Contractor and any third party assisting Third Party Contractor with its obligations in this Agreement, are not authorized to use Global African IP in any medium without prior written approval from an authorized representative of Global African. Third Party Contractor shall not include any trade name, trademark, service mark, domain name, social media identifier, of Global African or its affiliates, or any variant or misspelling thereof, in any trademark, domain name, email address, social network identifier, metadata or search engine keyword. Third Party Contractor shall not use or display any Global African IP in a manner that could reasonably imply an endorsement, relationship, affiliation with, or sponsorship between Third Party Contractor or a third party and Global African. All rights to the Global African IP not expressly granted in this Agreement are reserved by Global African.
- If Third Party Contractor provides Global African or any of its affiliates with feedback, suggestions, reviews, modifications, data, images, text, or other information or content about a Global African product or service or otherwise in connection with this Agreement, any Global African IP, or Third Party Contractor’s participation in the Third Party Contractor Offering or Voucher, (collectively, “Feedback”), Third Party Contractor irrevocably assigns to Global African all right, title, and interest in and to Feedback. In the event your assignment to Global African is invalid for any reason, you hereby irrevocably grant Global African and its affiliates a perpetual, paid-up, royalty-free, nonexclusive, worldwide, irrevocable, freely transferable right and license to (i) use, reproduce, perform, display, and distribute Feedback; (ii) adapt, modify, re-format, and create derivative works of Feedback for any purpose and sublicense the foregoing rights to any other person or entity. Third Party Contractor warrants that: (A) Feedback is Third Party Contractor’s original work, or Third Party Contractor obtained Feedback in a lawful manner; and (B) Global African and its sublicensees’ exercise of rights under the license above will not violate any person’s or entity’s rights, including any copyright rights. Third Party Contractor agrees to provide Global African such assistance as Global African might require to document, perfect, or maintain Global African’s rights in and to Feedback.
- Representations and Warranties
Third Party Contractor represents and warrants that: (a) Third Party Contractor has the right, power and authority to enter into this Agreement; (b) Third Party Contractor, if required by applicable law, is registered for sales and use tax collection purposes in all jurisdictions where Third Party Contractor’s goods and services will be provided; (c) the Voucher, upon being delivered by Global African, will be available immediately for redemption and Third Party Contractor will have sufficient goods and/or services available for redemption through the Promotional Value Expiration Date (i.e., a number of goods and/or services sufficient to fulfill its redemption obligations in connection with the applicable Maximum Number of Vouchers); (d) the terms and conditions of the Voucher, including any discounts or goods and services offered thereunder do not and will not violate any, local, state, provincial, territorial or federal law, statute, rule, regulation, or order, including but not limited to, any law or regulation governing the use, sale, and distribution of alcohol and any laws governing vouchers, gift cards, coupons, and gift certificates; (e) the Third Party Contractor’s redemption of the Voucher will result in the bona fide provision of goods and/or services by Third Party Contractor to the purchaser; (f) Third Party Contractor owns all interest in and to the Third Party Contractor IP and has licensing rights in (with the right to sublicense to Global African) the Third Party IP, and has the right to grant the License stated in this Agreement; (g) the Third Party Contractor IP and the Third Party IP, the Third Party Contractor Offering, Global African’s use and promotion thereof, and the results of such Third Party Contractor Offerings, will not infringe, dilute, misappropriate, or otherwise violate, anywhere in the world, any patent, copyright, logo, trademark, service mark, trade name, rights in designs, or other intellectual property right or right of privacy or publicity of any third party or any applicable law, and does not and will not result from the misappropriation of any trade secret or the breach of any confidentiality obligations to any person or entity; (h) the Third Party Contractor IP and Third Party IP does not include any material that is unlawful, threatening, abusive, defamatory, vulgar, obscene, profane or otherwise objectionable, or that encourages conduct that constitutes a criminal offense, gives rise to civil liability or otherwise violates any law; (i) the Vouchers and any advertising or promotion of Third Party Contractor’s goods and services relating thereto will not constitute false, deceptive or unfair advertising or disparagement under any applicable law; (j) Third Party Contractor and its employees, contractors and agents have had the proper education and training and hold all required and up-to-date regulatory authorization, licenses and certifications relating to any Third Party Contractor Offering to provide the goods or services described in this Agreement; (k) Third Party Contractor’s business information and direct deposit details as provided in this Agreement, indicating where payments should be forwarded are accurate and Third Party Contractor is the authorized entity to receive the funds forwarded by Global African; (l) Third Party Contractor is not authorized to resell, broker or otherwise disclose any Customer Data (as defined in this Agreement) to any third party, in whole or in part, for any purpose, and Third Party Contractor is not authorized to copy or otherwise reproduce any Customer Data other than for the purpose of redeeming or verifying the validity of Vouchers in connection with this Agreement and (m) the Third Party Contractor Offering is: (i) free from defects in workmanship, materials and design, (ii) Third Party Contractor able and suitable for the purposes, if any, stated in the Agreement, and (iii) genuine, bona fide products, as described herein and does not violate the rights of any third party.
To the extent allowed under applicable law, Third Party Contractor agrees to defend, indemnify and hold Global African, its affiliated and related entities, and any of its respective officers, directors, agents and employees, harmless from and against any claims, lawsuits, investigations, penalties, damages, losses or expenses (including but not limited to reasonable attorneys’ fees and costs) arising out of or relating to any of the following: (a) any breach or alleged breach by Third Party Contractor of this Agreement, or the representations and warranties made in this Agreement; (b) any claim for state sales, use, or similar tax obligations of Third Party Contractor arising from the sale and redemption of a Voucher; (c) any claim by any local, state, provincial, territorial or federal governmental entity for unredeemed Vouchers or unredeemed cash values of Vouchers or any other amounts under any applicable abandoned or unclaimed property or escheat law, including but not limited to any claims for penalties and interest; (d) any claim arising out of a violation of any law or regulation by Third Party Contractor or governing Third Party Contractor’s goods and/or services; (e) any claim arising out of Third Party Contractor’s violation of law or regulation governing the use, sale, and distribution of alcohol; (f) any claim by a purchaser or anyone else arising out of or relating to the goods and services provided by Third Party Contractor and/or pick up of the goods and services at the Redemption Site, including but not limited to, any claims for false advertising, product defects, personal injury, death, or property damages; (g) any claim by a purchaser for the Amount Paid; (h) any claim arising out of Third Party Contractor’s misuse of Customer Data, or any violation of an applicable data privacy or security law; and (i) any claim arising out of Third Party Contractor’s negligence, fraud or willful misconduct. Global African maintains the right to control its own defense and to choose and appoint its own defense counsel, regardless of the presence or absence of a conflict of interest between Global African and Third Party Contractor. Third Party Contractor’s duty to defend and indemnify Global African includes the duty to pay Global African’s reasonable attorneys’ fees and costs, including any expert fees.
The terms for the Third Party Contractor Offering described in this Agreement are confidential, and Third Party Contractor agrees not to disclose the terms described in this Agreement to any party (other than to its employees, parent companies, shareholders, lawyers and accountants on a strict need-to-know basis or as required by applicable public records and other law, if Third Party Contractor has taken the necessary precautions of the kind generally taken with confidential information to preserve the confidentiality of the information made available to such parties). In the event of a breach, Global African is entitled to injunctive relief and a decree for specific performance, and any other relief allowed under applicable law (including monetary damages if appropriate).
- Limitation of Liability
EXCEPT FOR Third Party Contractor’S INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT IS EITHER PARTY LIABLE OR OBLIGATED TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST BUSINESS, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE, OR INDIRECT DAMAGES REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGES IN ADVANCE. Global African’S SOLE AND COMPLETE LIABILITY TO Third Party Contractor FOR ANY CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR ANY ERRORS, OMISSIONS OR MISPLACEMENTS OF ANY VOUCHER IS LIMITED TO THE AMOUNT OF FEES RETAINED BY Global African HEREUNDER FOR THE PRECEDING SIX(6) MONTHS AFTER FINAL CALCULATION AND RECONCILIATION OF ALL REFUNDS. THIS LIMITATION OF LIABILITY APPLIES TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF ANY LIMITED REMEDY. IN ADDITION, ANY CLAIM BY OR ON BEHALF OF A Third Party Contractor IN CONNECTION WITH ANY PAYMENT MADE BY Global African, INCLUDING, BUT NOT LIMITED TO, CLAIMS ALLEGING THAT A Third Party Contractor WAS UNDERPAID, MUST BE MADE IN WRITING TO Global African WITHIN NINETY (90) DAYS FROM THE DATE Global African REMITS THE PAYMENT AT ISSUE. ALL CLAIMS NOT MADE IN ACCORDANCE WITH THE FOREGOING SHALL BE DEEMED WAIVED, RELEASED AND DISCHARGED BY Third Party Contractor.
- Dispute Resolution
All disputes arising out of, or relating in any way to this Agreement, shall be resolved pursuant to this Section 14 Dispute Resolution.
- Binding Arbitration
EXCEPT AS SPECIFICALLY STATED HEREIN, ANY DISPUTE OR CLAIM BETWEEN Third Party Contractor AND Global African ARISING OUT OF, OR RELATING IN ANY WAY TO, THIS AGREEMENT (“DISPUTES”) SHALL BE RESOLVED EXCLUSIVELY BY FINAL, BINDING ARBITRATION. BY VIRTUE OF THE AGREEMENT IN THIS SECTION 14 TO ARBITRATE, Third Party Contractor AND Global African ARE EACH GIVING UP THE RIGHT TO GO TO COURT AND HAVE A DISPUTE HEARD BY A JUDGE OR JURY (EXCEPT AS OTHERWISE SET FORTH IN THIS SECTION 14). The provisions of this Section 14 shall constitute Third Party Contractor’s and Global African’s written agreement to arbitrate Disputes under the Federal Arbitration Act. The arbitration will be administered by the American Arbitration Association (“AAA”) and conducted before a single arbitrator pursuant to its applicable rules, including those applicable to Commercial Disputes, available at https://www.adr.org or by calling 800-778-7879. The arbitrator will apply and be bound by this Agreement, apply applicable law and the facts, and issue a reasoned award.
To begin an arbitration proceeding, Third Party Contractor or Global African must comply with the limitations provision set forth in Section 13 and submit the Dispute by making a demand for arbitration as detailed at https://www.adr.org. If a Third Party Contractor demands arbitration, it shall simultaneously send a copy of the completed demand to the following address: Global African Community Education Development, 2428 Beaumont Avenue, No. 15, New York, NY 10458. If Global African demands arbitration, it shall simultaneously send a copy of the completed demand to the Third Party Contractor’s address of record. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. Global African will reimburse those fees for Disputes totaling less than $10,000 if Third Party Contractor is the prevailing party in such arbitration. Global African will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines that a Third Party Contractor Dispute is frivolous. The arbitration will be conducted based upon written submissions unless Third Party Contractor requests and/or the arbitrator determines that a telephone or in-person hearing is necessary. If the arbitrator grants the request or determines an in-person hearing is necessary, the hearing will proceed in Chicago, Illinois, unless the arbitrator determines or we agree that the matter should proceed in the county of Third Party Contractor’s principal place of business.
- Class Action Waiver
WE EACH AGREE THAT WE SHALL BRING ANY DISPUTE AGAINST THE OTHER IN OUR RESPECTIVE INDIVIDUAL CAPACITIES AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE PROCEEDING OR AS AN ASSOCIATION. IN ADDITION, WE EACH AGREE THAT DISPUTES SHALL BE ARBITRATED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. THE ARBITRATOR DOES NOT HAVE THE POWER TO VARY THESE PROVISIONS.
- Choice of Law/No Jury Trial
If for any reason a Dispute proceeds in court: (i) Third Party Contractor and Global African agree that any such Dispute may only be instituted in a state or federal court in Cook County, Illinois; (ii) Third Party Contractor and Global African irrevocably consent and submit to the exclusive personal jurisdiction and venue of such courts for resolution of such Disputes; (iii) Third Party Contractor and Global African agree that the Federal Arbitration Act, the AAA rules, applicable federal law and the laws of the State of Illinois, without regard to principles of conflicts of law, will govern this Agreement and any Disputes; and (iv) Third Party Contractor AND Global African AGREE TO WAIVE ANY RIGHT TO A TRIAL BY JURY.
- Injunctive Relief/Attorneys’ Fees
Notwithstanding anything to the contrary in this Agreement, either party may bring suit in court seeking an injunction or other equitable relief arising out of or relating to claims that the other party’s conduct may cause the other irreparable injury.
In the event Global African is the prevailing party in any Dispute, subject to any exceptions in this Section 14, Third Party Contractor shall pay to Global African all reasonable attorneys’ fees and costs incurred by Global African in connection with any Dispute.
- Binding Arbitration
- The parties are independent contractors. Nothing in this Agreement is to be construed to create a joint venture, partnership, franchise, or an agency relationship between the parties. Neither party has the authority, without the other party’s prior written approval, to bind or commit the other in any way.
- This Agreement constitutes the entire agreement between the parties relating to its subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter.
- Third Party Contractor is not authorized to transfer or assign its rights or obligations under this Agreement, whether by operation of law or otherwise, without Global African’s prior written consent. Any waiver must be in writing and signed by an authorized signatory of Global African. Global African is authorized to transfer or assign this Agreement to a present or future affiliate or pursuant to a merger, consolidation, reorganization or sale of all or substantially all of the assets or business, or by operation of law, without notice to Third Party Contractor.
- If any provision of this Agreement should be held to be invalid or unenforceable, the validity and enforceability of the remaining provisions of this Agreement are not affected.
- EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS NOR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF Third Party ContractorABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. Global African DOES NOT WARRANT OR GUARANTEE THAT THE SERVICES OFFERED ON OR THROUGH THE WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE VOUCHERS ARE ERROR-FREE, OR THAT ANY Third Party Contractor OFFERING WILL RESULT IN ANY REVENUE OR PROFIT FOR Third Party Contractor.