Terms of Service
Participating Merchant Agreement
As of 09/01/2020
Section 1: Introductory Provisions
This agreement ("Agreement”) is entered into by Prime, its subsidiaries, and affiliates ("Prime”) and ("Merchant”). The Agreement is effective as of the date it is fully signed or otherwise executed by both parties ("Effective Date”).
Prime offers an electronic gift card service ("Prime Service”) through its website and other hosted technology primarily located at www.Prime.com ("Site”). The Prime Service allows merchants to create, sell to its users, track and market electronic gift cards to be used by the recipient at a specific merchant ("Participating Merchant Gift Card"). Merchant wishes to participate in the Prime service. Accordingly, Prime and Merchant agree as follows:
Section 2: Definitions
For purposes of this Agreement, the terms below shall have the following meanings:
· 2.1 "CONFIDENTIAL INFORMATION”
“Confidential Information” means the terms of this Agreement, User Data, and any other information shared with Merchant by Prime in connection with the Prime Service.
· 2.2 "PRIME CONTENT”
"Prime Content” means any content owned or licensed by Prime, including such content provided by Prime to Merchant for use in connection with the Prime Service, including, but not limited to, trademarks, service marks, logos, domain names, trade names, graphics, images, text, software, and copyrightable material.
· 2.3 "PRIME USER”
"Prime User” means any user of the Prime Service, including the purchaser or recipient of a Prime eGift card.
· 2.4 "MERCHANT CONTENT”
"Merchant Content” means any content owned or licensed by Merchant (other than from Prime), including such content provided by Merchant to Prime for use in connection with the Prime Service, including, but not limited to, trademarks, service marks, logos, domain names, trade names, graphics, images, text, software, and copyrightable material.
· 2.5 "USER DATA”
“User Data” means any and all information relating to a Prime User including, but not limited to, name, address, email address, telephone number, other contact information, financial information, information relating purchases or preferences, and any other identifying information.
Section 3: Merchant Participation in the Prime Service
· 3.1 ACCEPTANCE AS A PARTICIPATING MERCHANT
Subject to Merchant’s execution of this Agreement and Prime’s acceptance thereof, Merchant shall be permitted to participate in the Prime Service during the term of this Agreement. Merchant shall comply with all terms of this Agreement and the Prime Service. Prime shall have no obligation to issue any Participating Merchant Gift Cards until Merchant has been permitted to participate.
· 3.2 PAYMENT TERMS
Upon the purchase of a Participating Merchant Gift Card, successful delivery to the recipient, and receipt of the funds from the Prime User ("Purchase”), Prime will initiate the transfer one hundred (100%) percent of the total value of the Participating Merchant Gift Card less normal payment processing cost and, if applicable, any Prime Convenience Fees two business (2) days ("Payout Period”) after purchase into the Participating Merchant’s designated Momo or bank account, respectively.
As part of the sign-up process Merchants are not required to immediately assign a Bank account for funding. Prime will notify the Merchant by email and/or subsequent phone messages that its first funds are available for deposit and that in order to be funded the Merchant must immediately link a Bank account. Any Merchant that has not designated a linked Bank Account for funding within 60 days after the first funds are available for deposit will be issued a check addressed to the Merchant address on file for a ¢50 processing fee.
To protect against illegal or detrimental activity and to protect merchants and consumers, Prime reserves the right, at its sole discretion, to withhold amounts in certain circumstances including, but not limited to, frequent purchases for a single recipient using a single debit card and/or large amounts outstanding for a Merchant and/or whereby Merchants are not easily identifiable as legal entities with ongoing transparent business operations.
· 3.3 PRIME CONVENIENCE FEES ON PURCHASES OTHER THAN THE PRIME APP
Merchants have the option at any time to either: (i) pass along the Convenience Fee to the buyer's as reflected in the total purchase price paid upon checkout (at no charge to the Merchant) or (ii) accept the Convenience Fee which will be automatically deducted from a Purchase and reflected in net proceeds delivered to the Merchant's designated bank account. The option to determine who pays the Convenience Fee can be found within a Merchant's Dashboard in the Settings section, Payouts tab.
There is no Convenience Fee assessed to merchants creating and distributing promotional gift card on the merchant dashboard. However, any merchant gift card Purchases as a result of a promotional gift card offering on the platform will be assessed a Convenience Fee.
· 3.4 PRIME CONVENIENCE FEES ON PURCHASES USING THE PRIME Gift card APP
e-Gift card purchase on the app attracts
|1||MoMo settlement fees||2%|
|2||Cards settlement fees||2.5%|
|3||Prime Convenience Fee||1%|
Settlement fee shall apply at T+1 i.e transaction time plus one working day.
· 3.5 Card Promotions
Prime may assess an additional fee of 10% of card value for each promotional card per month.
· 3.6 TAXES
Merchant is responsible for determining what, if any, taxes apply to the redemption of Participating Merchant Gift Cards and for collecting, reporting, and remitting the correct tax to the appropriate tax authority, if any. Prime is not responsible for determining whether taxes apply or for collecting, reporting, or remitting any taxes arising from any transaction with or by Merchant.
· 3.7 MODIFICATION OF PRIME SERVICE TERMS
Prime reserves the right, in its sole discretion, to modify the terms of the Prime Service and Merchant’s participation therein. Such modifications shall be binding on Merchant upon written notice from Prime in accordance with the notice provisions in Section 9 below. If Merchant notifies Prime in writing that it rejects such modifications, this Agreement shall automatically terminate. Termination shall be effective on the tenth business day following the date of delivery of the notice as provided in Section 9 below.
· 3.8 LICENSE TO USE PRIME CONTENT
Once accepted into the Prime Service, Merchant shall be permitted access to the Prime application used to process Participating Merchant Gift Cards ("Application”). In addition, Prime may provide other Prime Content to Merchant in connection with the Prime Service. Prime hereby grants Merchant a limited, nonexclusive, nontransferable, nonsublicensable, revocable license to use the Application and other Prime Content solely in connection with the Prime Service during the term of this Agreement.
· 3.9 LICENSE TO USE MERCHANT CONTENT
Merchant may provide Merchant Content to Prime for use in connection with the Prime Service. Merchant hereby grants Prime a nonexclusive, worldwide, royalty free license to use such Merchant Content in connection with the Prime Service.
· 3.10 COMPLIANCE WITH APPLICABLE LAW
Merchant will comply with the Participating Merchant Gift Card terms and conditions, as set forth in Prime’s Terms of Service, available on the Site, and with all state, and other laws applicable to gift cards. Participating Merchant Gift Cards do not expire, do not incur service or maintenance fees to the purchaser or recipient for any reason, are not redeemable for cash unless required by law, and will not be replaced by Prime if lost or stolen unless required by law.
Merchant will allow the recipient of a Participating Merchant Gift Card to redeem the full value of the card. Merchant is responsible for keeping track of the value and any unredeemed balance. Merchant is solely responsible for complying with any applicable escheat or abandoned or unclaimed property laws.
Section 4: Confidentiality; Privacy; and Data Security
· 4.1 CONFIDENTIAL INFORMATION
Confidential Information provided to Merchant pursuant to this Agreement is provided solely for use in connection with the Prime Service. Merchant may not use Confidential Information for any other purpose. Merchant agrees to take reasonable steps to safeguard the confidentiality of all Confidential Information and not to disclose Confidential Information to any other person or entity except as permitted under this Agreement or with Prime’s prior written consent.
· 4.2 PRIVACY AND DATA SECURITY
· 4.3 MATERIAL BREACH; INJUNCTIVE RELIEF
Any breach of this section shall be considered a material breach resulting in irreparable harm to Prime for which there is no adequate remedy at law. In the event of such a breach, Prime shall be entitled to injunctive relief in addition to any other appropriate relief.
Section 5: Merchant Representations and Warranties
Merchant represents and warrants to Prime, now and throughout the term of the Agreement, as set forth below. Merchant will notify Prime immediately if any of Merchant’s representations or warranties becomes inaccurate or untrue in any material respect during the term of the Agreement.
· 5.1 AUTHORITY; QUALIFICATION TO DO BUSINESS
Merchant has the right and authority to enter, and perform its obligations under, the Agreement. Merchant is qualified to do business and is in good standing in each jurisdiction where the conduct of its business requires such qualification.
· 5.2 TAXES
Merchant is registered for sales and other tax collection purposes in each jurisdiction in which Merchant’s goods or services will be provided.
· 5.3 MERCHANT CONTENT
Merchant owns all right, title, and interest in the Merchant Content and has the right to grant the licenses provided in this Agreement. The Merchant Content does not violate any applicable laws or infringe any copyright, trademark, other intellectual property, or any other right of any third party.
Section 6: Disclaimers; Limitation of Liability; Force Majeure
· 6.1 DISCLAIMERS
The Prime service, site, and all related content and materials are provided on an “as is” basis. To the fullest extent permitted by law, they are provided without warranties of any kind, express or implied, including but not limited to warranties of merchantability, fitness for a particular purpose, title and non-infringement, and any warranties arising from course of dealing or usage of trade.
Prime does not warrant that the Prime service, site, or related content and materials is accurate, complete, reliable, current, or error-free, that it will meet your requirements, will be available at any particular time or location or without interruption, that defects or errors will be corrected, or that the site is free of viruses or other harmful components. Use of the Prime service and site is at merchant’s own risk and merchant is solely responsible for any loss or damage to property or data that may result.
Prime does not warrant, endorse, guarantee, or assume responsibility for any product or service purchased using a Prime eGift card, or any product or service advertised or offered by a third party through the site or the Prime service or through any hyperlinked website. Prime is not a party to any transaction between a Prime user and a participating merchant or any third-party provider of products or services.
· 6.2 LIMITATION OF LIABILITY
In no event shall Prime be liable for any direct, indirect, consequential, incidental, special, punitive, or exemplary damages, including but not limited to damages for loss of profits, goodwill, or use of property or data resulting from the use, inability to use, or unavailability of the Prime service, or any damages resulting from hacking, tampering, or other unauthorized access to or use of the site or the Prime service.
In addition, Prime’s total cumulative liability shall be limited to the amount actually paid by merchant to Prime during the three-month period immediately preceding the date on which the claim arose.
This limitation of liability applies to the fullest extent permitted by law regardless of the type of claim, whether based on contract, tort, negligence, strict liability, or on any other basis, and even if Prime has been advised of the possibility of such damage.
If state laws do not allow limitations on implied warranties or the exclusion or limitation of certain damages. If these laws apply, some or all of the above disclaimers, exclusions, or limitations may not be applicable.
· 6.3 FORCE MAJEURE
In addition to, and without limiting, the Limitation of Liability section above, Prime shall not be liable for any damage, loss, delay in performance, or nonperformance resulting from conditions beyond its reasonable control, including but not limited to, government action, acts of terrorism, acts of war, acts of third parties, strikes, riots or other civil disturbances, accidents, fire, floods, earthquakes and other natural disasters, power outages, and communications and other system failures.
Section 7: Remedies for Breach; Indemnification
· 7.1 REMEDIES FOR BREACH
A "Material Breach” includes, but is not limited to, any breach by Merchant of Sections 3, 4, or 5 of this Agreement. In the event of a Material Breach, Merchant shall be obligated to reimburse Prime for any damages suffered by Prime, including any actual, incidental, and consequential damages.
· 7.2 INDEMNIFICATION
Merchant agrees to indemnify and hold harmless Prime, and its officers, directors, employees, representatives, affiliates, successors, and assigns, against any and all claims by a third party relating to Merchant’s participation in the Prime Service including, but not limited to, claims relating to: (a) any actual or alleged breach of this Agreement by Merchant, including breach of the representations and warranties herein; (b) any claim for sales tax or any other tax obligation arising from the issuance or redemption of a Participating Merchant Gift Card or the provision of goods and/or services in connection therewith; (c) any claim by any local, or state government entity for unredeemed Participating Merchant Gift Cards or unredeemed cash values thereof, or any other amounts under any applicable escheat or abandoned or unclaimed property laws; (d) any failure of Merchant to honor a Participating Merchant Gift Card; (e) any infringement of any patent, trademark, copyright, publicity, privacy, trade secret, or other right of any third party by Merchant, including, without limitation, in connection with the Merchant Content or Prime’s use thereof; (f) Merchant’s provision of goods, services, or information in connection with the Prime Service; and (g) Merchant’s use or handling of User Data.
Section 8: Term and Termination; Survival
· 8.1 TERM
This Agreement shall commence on the Effective Date and continue until terminated as provided herein.
· 8.2 TERMINATION
Prime may terminate Merchant’s participation in the Prime Service at any time and for any reason by providing Merchant written notice of such termination. Termination shall be effective on the date of delivery of the notice as provided herein.
Prime may, in its sole discretion, and without liability to Merchant or any third party, terminate the Site or Prime Service at any time, for any reason, and without prior notice. This Agreement shall terminate upon termination of the Prime Service.
Merchant may terminate participation in the Prime Service at any time by providing Prime prior written notice at least ten (10) business days prior to termination. Merchant may separately delete the Prime e-gift card App without any prior written notice to terminate the use of the Prime App only. Termination of the Prime Service shall be effective on the tenth business day following the date of delivery of the notice as provided herein. Termination of the Prime Clover App will be immediate.
A Merchant’s voluntary termination of the Prime Service (either written and/or by deleting the Prime App) or involuntary termination by Prime does not release the Merchant from any liability or obligations as a result of prior gift cards sold and that remain outstanding, prior promotion campaigns and/or fundraiser programs that remain outstanding as a result of using the Prime Service.
This Agreement may terminate automatically as provided in Section 3 above.
· 8.3 RIGHTS AND OBLIGATIONS UPON TERMINATION; SURVIVAL
Except as provided otherwise herein, all rights granted to Merchant under this Agreement shall cease immediately upon termination. Prime shall not be obligated to issue any Participating Merchant Gift Cards on behalf of Merchant after termination. Merchant shall remain obligated to honor all Participating Merchant Gift Cards issued on behalf of Merchant prior to termination and to pay any amounts owed to Prime under this Agreement.
This section and the following additional sections shall survive termination: 2, 3, 4, 5, 6, 7, 9, 10, and 11.
Section 9: Notices
· 9.1 FORM OF NOTICE; METHOD OF DELIVERY
Whenever any notice is permitted or required under this Agreement, it shall be in writing and deemed delivered when: (a) delivered by electronic mail to a party at the email address provided below; or (b) actually received or rejected by a party or, if earlier and regardless of whether actually received or not, when deposited in (i) Ghanapost mail, postage prepaid, certified mail, return receipt requested or (ii) a regional or national overnight courier service, addressed to the party at the address provided below.
· 9.2 NOTICES TO PRIME
Notices to Prime must be sent by email to firstname.lastname@example.org, or by one of the forms of mail delivery service described above to: Prime, P.O.Box AJ 75, Alajo, Accra.
· 9.3 NOTICES TO MERCHANT
Notices to Merchant must be sent by email to email@example.com , or by one of the forms of mail delivery service described above to: Prime, P.O.Box AJ 75, Alajo, Accra, Attn: Legal.
Section 10: Governing Law; Venue
· 10.1 GOVERNING LAW
These Terms shall be governed and construed in accordance with applicable federal law and the laws of the Republic of Ghana, without regard to its conflict of laws provisions or any other principles that may provide for the application of the laws of another jurisdiction.
· 10.2 VENUE
You agree that any action at law or in equity relating to this Agreement shall be filed only in Accra High Court, and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts in any suit, action, or proceeding arising out of these Terms.
Section 11: Miscellaneous
· 11.1 INDEPENDENT CONTRACTORS
The parties are independent contractors. Nothing in this Agreement shall be deemed or construed by the parties, nor by any third party, as creating a joint venture, partnership, franchise, or agency relationship between the parties. Neither party has the authority, without the other party’s prior written approval, to bind or commit the other party in any way.
· 11.2 NO THIRD PARTY BENEFICIARIES
This Agreement is not intended, and shall not be construed, to create any rights or remedies in any other party, and no other party shall assert any rights as a third party beneficiary under this Agreement.
· 11.3 ASSIGNMENT
Merchant may not transfer or assign, by operation of law or otherwise, any rights or obligations under this Agreement without Prime’s prior written consent, and any attempted transfer or assignment without such consent shall be void. Prime may freely transfer or assign its rights and obligations under this Agreement to any third party without notice or consent. Subject to the foregoing, this Agreement shall be binding on and inure to the benefit of the parties and their respective successors and permitted assigns.
· 11.4 WAIVER
The failure of a party to exercise any right under, or to enforce any provision of, this Agreement shall not constitute a waiver of such right or provision. Whenever consent to, or approval of, an act by one party is required from the other party, the grant of such consent or approval shall not be deemed to waive or render unnecessary consent to or approval of any subsequent similar act.
· 11.5 SEVERABILITY
If any provision of this Agreement is declared invalid by a court of competent jurisdiction, the remaining provisions shall not be affected and shall be interpreted and enforced as if the invalid provision had not been included. Upon such declaration of invalidity, the parties will negotiate in good faith to modify the Agreement to effect the original intent of the parties as closely as possible so that the transactions contemplated under the Agreement are fulfilled.
· 11.6 ENTIRE AGREEMENT
Subject to Sections 3.7 and 4.2, this Agreement sets forth the entire agreement between the parties relating to Merchant’s participation in the Prime Service and supersedes any prior or contemporaneous understandings or agreements.
· 11.7 AMENDMENTS
Except as expressly permitted herein, amendments to this Agreement must be in writing and signed by both parties.
· 11.8 INTERPRETATION OF TERMS
Both parties have had the opportunity to consult with their respective attorneys regarding the terms of this Agreement and are entering into the Agreement voluntarily. No presumption of interpretation shall be made against either party as drafter of the Agreement.
· 11.9 COUNTERPARTS
This Agreement may be executed in counterparts with separate signature pages, which together shall constitute a single document.
· 11.10 HEADINGS
Headings are for convenience only and in no way limit or otherwise affect the meaning or scope of any provision. Whenever used herein, the singular shall include the plural and the plural shall include the singular.
· 11.11 ELECTRONIC COMMUNICATIONS
Merchant agrees that business with Prime may be done electronically and that the provision of notices, disclosures, and other information electronically satisfies any legal requirement that such communications be in writing.
The parties may make agreements by electronic means, and this Agreement has the same legal effect as an agreement entered into on paper. By checking the box and providing the electronic identification below, you agree to the terms and conditions in this Agreement.