PARTNER TERMS AND CONDITIONS
These Partner Terms and Conditions are between Gainly Limited, registered in England and Wales with company number 08599213 with registered office at 36 King Street, Bristol BS1 4DZ, trading as Wriggle (“Wriggle”), and any individual business listing their products and/or services on the Wriggle or mobile-app (the “Merchant”).
"EFFECTIVE DATE" means the date from which the Merchants agrees to be bound by these terms & conditions.
"FULL OFFER VALUE" means the price generally on offer for the goods or services which are the subject of the Voucher, and which comply with the Pricing Practices Guide and the Consumer Protection from Unfair Trading Regulations 2008.
"MAXIMUM NUMBER OF VOUCHERS" means the maximum number of Vouchers Wriggle is authorised by the Merchant to sell on any given day.
"MERCHANT OFFERING" means the goods and/or services to be provided by the Merchant as stated on the Voucher. Payment to be determined by the Merchant.
“MERCHANT’S ACCOUNT” means the account opened with the Payment Provider in the name of the Merchant at the request of Wriggle.
"PAYMENT" means the amount a Purchaser pays for each Voucher, which shall be at least a 30% reduction from the Full Offer Value.
"PAYMENT DATES" means the dates for payment of the Subscription agreed between Wriggle and the Merchant.
“PAYMENT PROVIDER” means Stripe or such other 3rd party payment provider as Wriggle may choose to use.
"PROMOTIONAL VALUE" means the Full Offer Value less the Payment.
“PURCHASER” means any person who purchases, or, to the extent that a product is listed for free, reserves, a Voucher through Wriggle.
"REDEMPTION SITE" means the Merchant’s address at which a Voucher may be redeemed.
"REDEMPTION WINDOW" means the date and time stated on the Voucher within which the Promotional Value is available.
"REMITTANCE AMOUNT" means the amount Wriggle shall remit to Merchant for each Voucher, subject to the payment terms.
“SUBSCRIPTION” means the annual or monthly subscription payable by the Merchant to Wriggle as from the Effective Date.
“VOUCHER” means [the terms offered by the Merchant to the Purchasers via Wriggle as specified in Wriggle’s standard form of voucher]
- Voucher Program
- Wriggle is authorized to promote and sell Vouchers as a disclosed agent on Merchant's behalf subject to the terms of this Agreement. The Voucher will evidence the Merchant Offering and will be sent to the Purchaser electronically once payment is received. The Purchaser will then redeem the Voucher with the Merchant by presenting the Voucher in paper or electronic form.
- Wriggle is authorized to promote and sell Vouchers on Merchant's behalf through any platform, including its mobile-app, website, social-media accounts, emails or business partner network. The Vouchers may be offered to all or part of Wriggle's subscriber base 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 Wriggle, its affiliates or business partners.
- Wriggle is authorized to promote and sell up to the Maximum Number of Vouchers in multiple markets. Merchant shall specify the Maximum Number of Vouchers. In the event that no Maximum Number of Vouchers is specified by the Merchant, Wriggle shall be entitled to promote and sell an unlimited quantity.
- Wriggle reserves the continuing right to reject, revise, or discontinue any Merchant Offering, at any time and for any reason in Wriggle's sole discretion, and to terminate the Merchant Offering and to remove all references to the Merchant Offering and Voucher from the Website; and redirect or delete any URL used in connection with the Merchant Offering.
- Merchant shall honour the Vouchers for the Merchant Offering during the Redemption Window.
- During the Redemption Window, Merchant must always allow the Purchaser to redeem the Voucher for the Payment toward the Merchant Offering. If the goods and/or services constituting the Merchant Offering and stated on the Voucher are no longer available, the Merchant must always allow the Purchaser to redeem the Voucher toward any goods and/or services then offered by the Merchant with a reduction in the price equivalent to at least the Promotional Value.
- Partial redemptions: If applicable, and if a Purchaser redeems a Voucher in exchange for products and/or services worth less than the Payment, the Merchant is responsible for handling any unredeemed value as required by applicable law. To the extent not fully resolved by the Merchant, Wriggle reserves the right to act as a mediator between the Merchant and the Purchaser.
- Merchant agrees that in providing the Merchant Offering, Merchant 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. Merchant further agrees not to impose different terms or a different cancellation policy than what is imposed on its non-Wriggle customers.
- Merchant agrees that so long as a Purchaser attempts to redeem the Voucher during the Redemption Window (and, to the extent required in the terms stated on the Voucher, an appointment or reservation is made to redeem a Voucher), the Voucher will be honoured for the Full Offer Value without restriction.
- In the event a Purchaser seeks to redeem a Voucher during the Redemption Window and is denied by Merchant, or is unable to use the Voucher for any other reason not caused by the Purchaser during the Redemption Window, Wriggle may, upon Purchaser request, extend the Redemption Window by up to thirty (30) days or request the Merchant to reimburse the Purchaser subject to Clause 7.2 (Purchaser Reimbursement) below.
- Merchant is responsible for all Purchaser service in connection with the Merchant Offering and for supplying all goods and services stated in the Merchant Offering. Merchant is also responsible for any Purchaser loyalty programs associated with the Merchant Offering.
- If applicable, Merchant will hold the Merchant Offering for take-away by each Purchaser at the Redemption Site. The Merchant shall ensure that the Redemption Site stated in the Voucher is the complete and accurate address where Purchasers are able to redeem the Voucher to take-away the Merchant Offering.
- Voucher Payment
- The Payment Provider will distribute the Remittance Amount directly to the Merchant. The Remittance Amount shall be deemed to be paid when it is paid into the Merchant’s Account - viewing access to which account will be provided to the Merchant by Wriggle.
- Once the Remittance Amount has been received by the Merchant into the Merchant’s Account, the Payment Provider will distribute funds into the Merchant’s bank account.
- The Payment Provider is responsible for the payment from the Merchant’s Account to the Merchant’s bank account - and Wriggle accepts no responsibility for this payment.
- Amounts retained by Wriggle from the proceeds of the Merchant Offering are compensation to Wriggle for marketing, promoting, and advertising the Merchant Offering and distributing the Vouchers on behalf of Merchant.
- Taxes Generally. It is Merchant's responsibility to determine what, if any, taxes apply to the payments Merchant makes or receives, and it is Merchant’s responsibility to collect, report and remit the correct tax to the appropriate tax authority. Wriggle is not responsible for determining whether taxes apply to Merchant’s transaction with either Purchasers or Wriggle, or for collecting, reporting or remitting any taxes arising from any transaction with or by Merchant and Purchaser.
- In addition to amounts referred to in Clause 2 which are retained by Wriggle in relation to Voucher payments, the Merchant agrees to pay Wriggle the Subscription at the rate notified to the Merchant on the Effective Date, and thereafter on the Payment Dates. Wriggle may modify the price of any Subscription, remove and/or offer certain other subscription services from time to time. Wriggle will always notify the Merchant in advance of any increase in the price of the Subscription and offer an opportunity to cancel if the Merchant does not wish to renew at the increased Subscription as from any Payment Date.
- In consideration of the Subscription price, Wriggle will provide a minimum level of marketing support to the Merchant as agreed with the Merchant at the time the Merchant starts their Subscription.
- Customer Data Restrictions
- "Customer Data" means all identifiable information about Purchasers generated or collected by Wriggle or Merchant, including, but not limited to, Purchasers' name, post-code, email addresses, phone numbers, Purchaser preferences and tendencies, and financial transaction data.
- Promotional Programs
- In an effort to increase Voucher sales, Merchant authorizes Wriggle, at any time and in Wriggle’s sole discretion, to increase or decrease the Payment for the Merchant Offering (any such effort, “Promotional Program(s)”). For each Voucher sold as part of a Promotional Program, the Net Remittance Amount will be adjusted in an amount equal to the percentage increase or decrease in the Payment (“Promotional Adjustment”), provided that there will be no decrease of the Remittance Amount. Promotional Programs include the following:
- Promotional Codes - A “Promotional Code” is a code that Purchasers may use, in Wriggle’s sole discretion, to receive a discount on the Amount Paid for a Merchant Offering.
- Price Optimization – “Price Optimization” is any change (excluding Promotional Codes) to the Amount Paid for a Merchant Offering.
- Term and Termination
- This Agreement commences on the Effective Date and will continue in effect until terminated by either party in accordance with this Section ("Term"). Wriggle is authorized to terminate this Agreement, at any time for any reason, forthwith upon written notice to Merchant. Merchant is authorized to terminate this Agreement upon thirty (30) business days prior written notice to Wriggle. Termination of this Agreement will not in any way affect Merchant's obligation to redeem any Voucher which has already been purchased according to the terms of this Agreement, including the obligation to honour any Voucher for the Payment during the Redemption Window. Provisions in this Agreement that are intended to survive termination will continue in full force and effect after the Term.
- Intellectual Property Rights
- Merchant grants to Wriggle 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) Merchant'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 Merchant (collectively, "Merchant 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 Merchant (collectively, "Third Party IP"), in each case in connection with the promotion and resale of the goods and services in all media or formats now known or hereinafter developed ("Licence"). Any use of the Merchant IP or Third Party IP as contemplated in this Agreement is within Wriggle's sole discretion.
- Merchant acknowledges and agrees that, as between the parties, Wriggle owns all interest in and to the Website, Customer Data, Wriggle trade name, 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 Wriggle or at Wriggle's direction, or assigned to Wriggle, and any materials, software, technology or tools used or provided by Wriggle to promote, resell or distribute the goods and services and conduct its business in connection therewith (collectively "Wriggle IP"). Merchant 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 Wriggle IP or any portion thereof, or use such Wriggle IP as a component of or a base for products or services prepared for commercial use, sale, sublicense, lease, access or distribution, except that Wriggle grants Merchant a limited, non-exclusive, revocable, non-transferable, non-sublicensable license during the Term to use one copy of Wriggle's mobile merchant software application on a single mobile computer, tablet computer, or other device, solely for the purposes permitted by that software. Merchant shall keep the Wriggle IP confidential, and shall not prepare any derivative work based on the Wriggle IP or translate, reverse engineer, decompile or disassemble the Wriggle IP.
- If Merchant provides Wriggle or any of its affiliates with feedback, suggestions, reviews, modifications, data, images, text, or other information or content about a Wriggle product or service or otherwise in connection with this Agreement, any Wriggle IP, or Merchant's participation in the Merchant Offering or Voucher, (collectively, "Feedback"), Merchant irrevocably assigns to Wriggle all right, title, and interest in and to Feedback. In the event your assignment to Wriggle is invalid for any reason, you hereby irrevocably grant Wriggle 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. Merchant warrants that: (A) Feedback is Merchant's original work, or Merchant obtained Feedback in a lawful manner; and (B) Wriggle and its sublicensees' exercise of rights under the license above will not violate any person's or entity's rights, including any copyright rights. Merchant agrees to provide Wriggle such assistance as Wriggle might require to document, perfect, or maintain Wriggle's rights in and to Feedback.
- REPRESENTATIONS AND WARRANTIES
- PURCHASER-FACING REPRESENTATIONS AND WARRANTIES
- Merchant represents and warrants that:
- The Voucher will be available for redemption during the Redemption Window and that the Merchant will have sufficient stock and staff during the Redemption Window to fulfill its redemption obligations;
- it will provide to Purchasers any products or services specified in the purchased Vouchers at a standard that it typically provides for such products and/or services to non-Wriggle customers
- Its staff are aware of Wriggle, the Voucher redemption-process and the Merchant redemption obligations – and are ready to receive Purchasers during the relevant Redemption Window;
- the Payment shall be at least 30% below the Full Offer Value.
- the Merchant is providing genuine, bona fide products and/or services, as described herein and that the Full Offer Value represented on the Voucher and on Wriggle’s website and mobile-app is a genuine price for the products and/or services being sold and is fully compliant with all Consumer Protection From Unfair Trading regulations, and does not violate the rights of any third party; and
- the Merchant Offering is merchantable and suitable for the purposes for which it is expressly intended (if any).
- PURCHASER REIMBURSEMENT
- Merchant agrees that, to the extent that it has failed to comply with the Purchaser-Facing Representations and Warranties in Clause 7.1 above, (a) the Merchant will, in good faith, invite any Purchaser whose experience has been negatively affected by such failure by the Merchant, back to their establishment to enjoy complimentary products or services at no cost to such Purchaser, and (b) Wriggle is entitled to refund all or part of the Payment for the Voucher in question.
- OTHER REPRESENTATIONS AND WARRANTIES
- Merchant represents and warrants that: (a) Merchant has the right, power and authority to enter into this Agreement; (b) the Merchant Offering will not be advertised or generally available during the Redemption Window to customers other than Purchasers; (c) the terms and conditions of the Voucher, including any discounts or goods and services offered thereunder do not and will not violate any 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; (d) Merchant owns all interest in and to the Merchant IP and has licensing rights in (with the right to sublicense to Wriggle) the Third Party IP, and has the right to grant the License stated in this Agreement; (e) the Merchant IP and the Third Party IP, the Merchant Offering, Wriggle's use and promotion thereof, and the results of such Merchant 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; (i) the Merchant 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; (j) the Vouchers and any advertising or promotion of Merchant's goods and services relating thereto will not constitute false, deceptive or unfair advertising or disparagement under any applicable law; (k) Merchant 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 Merchant Offering to provide the goods or services described in this Agreement; (l) Merchant's business information and direct deposit details as provided in this Agreement, indicating where payments should be forwarded are accurate and Merchant is the authorized entity to receive the funds forwarded by Wriggle; (m) Merchant 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 Merchant 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
- To the extent allowed under applicable law, Merchant agrees to defend, indemnify and hold Wriggle, 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 legal fees and costs) arising out of or relating to any of the following: (a) any breach or alleged breach by Merchant of this Agreement, or the representations and warranties made in this Agreement; (b) any claim arising out of a violation of any law or regulation by Merchant or governing Merchant's goods and/or services; (c) any claim arising out of Merchant's violation of law or regulation governing the use, sale, and distribution of alcohol; (d) any claim by a Purchaser or anyone else arising out of or relating to the goods and services provided by Merchant 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; (e) any claim by a Purchaser for the Amount Paid; (f) any claim arising out of Merchant's misuse of Customer Data, or any violation of an applicable data privacy or security law.
- The terms for the Merchant Offering described in this Agreement are confidential, and Merchant 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 Merchant 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, Wriggle 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 MERCHANT'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. WRIGGLE'S SOLE AND COMPLETE LIABILITY TO MERCHANT 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 WRIGGLE HEREUNDER FOR THE PRECEDING SIX (6) MONTHS UP TO THE DATE OF TERMINATION. THIS LIMITATION OF LIABILITY APPLIES TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. IN ADDITION, ANY CLAIM BY OR ON BEHALF OF A MERCHANT IN CONNECTION WITH ANY PAYMENT MADE BY WRIGGLE, INCLUDING, BUT NOT LIMITED TO, CLAIMS ALLEGING THAT A MERCHANT WAS UNDERPAID, MUST BE MADE IN WRITING TO WRIGGLE WITHIN NINETY (90) DAYS FROM THE DATE WRIGGLE REMITS THE PAYMENT IN QUESTION. ALL CLAIMS NOT MADE IN ACCORDANCE WITH THE FOREGOING SHALL BE DEEMED WAIVED, RELEASED AND DISCHARGED BY MERCHANT.
- DISPUTE RESOLUTION
- All disputes arising out of, or relating in any way to this Agreement, shall be resolved pursuant to this Section 11.1 Dispute Resolution. Any dispute arising hereunder shall be referred at the request of either party to a single arbitrator to be appointed (in the absence of agreement between the Parties) by the President for the time-being of the Law Society, and the determination of such arbitrator, including the costs of the arbitration, shall be final and binding.
- The parties are independent contractors and Wriggle will act as disclosed agent of the Merchant. Nothing in this Agreement is to be construed to create a joint venture, partnership or franchise 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.
- Merchant is not authorized to transfer or assign its rights or obligations under this Agreement, whether by operation of law or otherwise, without Wriggle's prior written consent. Any waiver must be in writing and signed by an authorized signatory of Wriggle. Wriggle 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 Merchant.
- 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 OR IMPLIED. WRIGGLE 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 MERCHANT OFFERING WILL RESULT IN ANY REVENUE OR PROFIT FOR MERCHANT.
- This Agreement is subject to the laws of England and Wales.