Amigo Merchant Terms &Conditions

MERCHANT TERMS AND CONDITIONS

Effective date 09/07/23

These Merchant Terms and Conditions (the “Terms and
Conditions”) govern and are incorporated into the Amigo Merchant
Agreement between Amigo and Merchant (collectively, the
“Agreement”). Amigo, 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 Amigo from time to time) will be available: (i) in
Amigo’s Merchant Center, and/or (ii) as part of the Amigo Merchant
Newsletter, and/or (iii) at amigocodes.com/merchant. Merchant
agrees that any one or all of these notification methods constitute
adequate notice to inform Merchant of any amendments to the
Agreement and Merchant further agrees to be bound by any such
amendments to the Agreement upon such notification.

Definitions:

“MERCHANT OFFERING” means the goods and/or services to be
provided by the Merchant, stated on the Deal/Promo as presented
by Amigo. Values determined by Merchant.
“MAXIMUM NUMBER OF PROMO CODES” means the maximum
number of Promo Codes/QR Codes Amigo is authorised to offer for
free download on behalf of the Merchant. The maximum number of
Promo Codes/QR Codes is determined by Prepaid Credit (Prepaid
Service Fee) amount and Service Fee rate per download
“MONTHLY MAXIMUM NUMBER OF PROMO CODES” means
the maximum number of Promo Codes/QR Codes Amigo is
authorized to offer for free download on behalf of the Merchant
each month after the Maximum Number of Promo Codes/QR
Codes has been downloaded.
“FULL OFFER VALUE” means the Discount/Saving/Freegift plus
the Promotional Value.
“PROMOTIONAL VALUE” means the Full Offer Value less the
Discount/Saving/Freegift.

“PROMOTIONAL VALUE EXPIRATION DATE” means the date
stated on the Promo Code when the Promotional Value expires.
“PREPAID CREDIT” means prepayment of Service Fees made by
Merchant to Amigo for marketing, promoting, and advertising the
Merchant Offering and distributing the Promo Codes/QR Codes for
free download on behalf of Merchant.
“SERVICE FEE” means fee collected by Amigo from Merchant for
marketing, promoting, and advertising the Merchant Offering and
distributing the Promo Codes/QR Codes for free download on
behalf of Merchant. Service Fee is collected by Amigo from
Merchant for every Promo Code/QR Code downloaded
(generated), at the Service Fee Rate.
“SERVICE FEE RATE” means the rate at which Service Fee is
collected by Amigo from Merchant for every Promo Code/QR Code
downloaded (generated). Service Fee Rate is determined by
amount of Prepaid Credit made by Merchant during each credit
recharge (top up).
“SITE” means collectively the website, www.amigocodes.com, the
mobile and touch versions, the mobile application and any sites we
have now or in the future
“FINE PRINT” means the conditions and restrictions concerning
Promo Code/QR Code redemption and the Merchant Offering
stated on the Site.

Promo Code/QR Code Program

Amigo is authorised to promote and offer Promo Codes/QR Codes for free download (generate) on Merchant’s behalf subject to the terms of this Agreement and the “Terms of Download” of the Site. The Promo Code/QR Code will evidence the Merchant Offering and will be downloaded (generated) by the purchaser/user electronically. The purchaser/user will then redeem the Promo Code/QR Code with the Merchant by presenting the Promo Code/QR Code in electronic form. Merchant is the issuer of the Promo Codes/QR Codes and seller of the Merchant Offering. If there is a conflict between this Agreement and the Terms of Download, the Agreement controls.
Amigo is authorised to promote and offer Promo Codes/QR Codes for free download (generate) on Merchant’s behalf
through any platform, including its feature deal-of-the-day, affiliates, business partner network, marketplace, or referral network. The Promo Codes/QR Codes may be offered to all or part of Amigo’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 Amigo, its affiliates or business partners. In addition, in connection with Amigo’s promotion of a Merchant Offering, Merchant authorises Amigo to shorten or extend the Promotional Value Expiration Date.
For appointment based Merchant Offerings, Amigo may require that Merchant provide Amigo with a calendar of available appointment times and allow Amigo downloaders to schedule appointments with the Merchant through Amigo and any third party service Amigo may use. Amigo may audit Merchant response times using various methods, including but not limited to, auto-dialers, call forwarding and pre-recorded calls. If Amigo, in its sole discretion, determines Merchant response times or the quality of service provided to downloaders is unsatisfactory, Amigo may terminate the agreement and return any unused portion of Prepaid Service fee, if any, to the Merchant.
Any Merchant who provides a Merchant 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, Merchant shall certify to Amigo annually that it is in compliance with (i) and (ii) above.
If Merchant performs background checks on its employees, agents and/or independent contractors performing services, Merchant shall provide the results of such background checks to Amigo upon request. Merchant shall obtain the necessary consent to share with Amigo the results requested.
Merchant shall promptly notify Amigo 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 an Amigo customer makes the complaint.
Amigo is authorised to promote and offer Promo Codes/QR Codes for free download (generate) up to the Maximum Number of Promo Codes in multiple markets and on dates in its discretion. If Merchant elects to offer recurring month-to month features, then Amigo will promote and offer Promo Codes/QR Codes for free download (generate) up to the Maximum Number of Promo Codes for the initial feature, then promote and offer Promo Codes/QR Codes for free download (generate) up to the Monthly Maximum Number of Promo Codes for subsequent features. Merchant shall specify the Maximum Number of Promo Codes and, if applicable, specify the Monthly Maximum Number of Promo Codes, and may increase either number in its discretion (increasing either number will be dependent on the amount of Prepaid Credit available).
Amigo reserves the continuing right to reject, revise, or discontinue any Merchant Offering, at any time and for any reason in Amigo’s sole discretion, and to terminate the Merchant Offering and to remove all references to the Merchant Offering and Promo Codes/QR Codes from the Site; and redirect or delete any URL used in connection with the Merchant Offering.
Merchant shall honour the Promo Codes/QR Codes for the Merchant Offering of the Promotional Value through the Promotional Value Expiration Date.
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 Offer, including the Fine Print. Unless disclosed in the Fine Print, Merchant further agrees not to impose different terms or a different cancellation policy than what is imposed on its non-Amigo customers.
Merchant agrees that so long as an appointment or reservation is made to redeem a Promo Code/QR Code, or downloader has made an attempt to make an appointment, before the Promotional Value Expiration Date, the Promo Code/QR Code will be honoured for the Full Offer Value without restriction, even though the services may be provided after the Promotional Value Expiration Date.
For any seasonal Merchant Offering(s), following the initial Promotional Value Expiration Date specified in the Amigo Merchant Agreement the: (i) Promotional Value Expiration Date will reset to be the end of the immediately following season specified by Merchant; and (ii) Maximum Number of Promo Codes will reset for the immediately following season. Throughout the Term (as defined herein), the Promotional Value Expiration Date and the Maximum Number of Promo Codes for the seasonal Merchant Offering(s) will continue to reset after each season (dependent on the amount of Prepaid Credit available).
Merchant is responsible for all customer 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 customer loyalty programs associated with the Merchant Offering.
If applicable, Merchant will hold the Merchant Offering for pick-up by each Promo Code/QR Code downloader at the Redemption Site. The “Redemption Site” is the complete and accurate address provided by Merchant to Amigo where Promo Code/QR Code downloaders are able to redeem the Promo Codes/QR Codes to pick-up the Merchant Offering. Merchant also agrees to provide Amigo 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, Merchant agrees to notify Amigo immediately of such change.
Merchant agrees to accept returns of the Merchant Offering in compliance with applicable laws and the Fine Print, but in any event: (i) will accept returns of a defective Merchant Offering or nonconforming items in or a part of any Merchant Offering at all times and pay (or reimburse a purchaser for) any and all costs associated with the return of such Merchant Offering; and (ii) will not impose a more restrictive return policy on purchasers than Merchant’s regular return policy as applied to Merchant’s purchaser in the ordinary course of Merchant’s business.
Merchant is responsible for compliance with all applicable laws, including the warning requirements mandated by California’s Proposition 65 (“Prop 65”). Products containing the chemicals on this list require a disclaimer under Prop 65 (the “Prop 65 Chemicals”). Merchant agrees to include the following disclaimer on any deal page for any product containing, or any service using a product that contains, any Prop 65 Chemical(s): “This product or service can expose you to chemical(s) including [name of one or more chemicals], which are known to the State of California to cause cancer, birth defects and/or other reproductive harm. For more information go to www.P65Warnings.ca.gov/.”
Merchant is responsible for providing the information for, and ensuring the accuracy of all statements on, the Site related to the Merchant Offering. Merchant assumes all liability for inaccuracies or misstatements regarding the Merchant Offering on the Site.
Merchant agrees that the amount represented by Merchant as the Full Offer Value of the Merchant Offering (if any) is the actual, regular value of the goods and/or services to be provided by the Merchant, complies with applicable laws and is, at a minimum, an accurate representation of the price at which Merchant has made substantial sales of the goods and/or services in the last 90 days. Merchant further represents and warrants that Merchant has not inflated or increased the Full Offer Value and agrees that it will not manipulate pricing or advertised values in any way that could be perceived as unfair, deceptive, misleading, and/or outside the ordinary course of business. Merchant takes full responsibility for ensuring that the Full Offer Value remains accurate and is updated whenever necessary to comply with the preceding terms and applicable laws.

Payment

Prepaid Credit are prepayment of Service Fees made by Merchant to Amigo for marketing, promoting, and advertising the Merchant Offering and distributing the Promo Codes/QR Codes for free download (generate) on behalf of Merchant.
Service Fees are amounts paid by Merchant to Amigo for marketing, promoting, and advertising the Merchant Offering and distributing the Promo Codes/QR Codes for free download (generate) on behalf of Merchant. Service Fee is collected by Amigo from Merchant for every Promo Code/QR Code downloaded (generated), at the Service Fee Rate. As a Merchant, you are liable for transaction fees (Service Fees) arising out of all Promo Codes/QR Codes generated or downloaded using some or all Amigo services, even if transactions are finalised outside of Amigo Sites. In particular, if you offer or reference your contact information or ask a customer for their contact information in the context of transacting outside of Amigo Sites, you will be liable to pay a fee applicable to the value of your offer(s) or AUD10 per transaction, whichever is higher.
Service Fee Rate is the rate at which Service Fee is collected by Amigo from Merchant for every Promo Code/QR Code downloaded (generated). Service Fee Rate is determined by amount of Prepaid Credit made by Merchant during each credit recharge (top up).
Unless otherwise stated, all fees are quoted in Australian Dollar. Merchant is responsible for paying all fees and applicable taxes associated with the Amigo app, sites and services in a timely manner with a valid payment method. If your payment method fails or your account is past due, we may collect fees owed using other collection mechanisms (This includes charging other payment methods on file with us, retaining collection agencies and legal counsel).
Amigo is authorised to review Merchant’s credit history, which may include a soft credit check.
Merchant will not attempt to bill or collect reimbursement from any third-party payor, including but not limited to any insurer, health insurance plan, Medicare, or any other federal, state, provincial, territorial or local governmental program or entity (“Third-Party Payor”), for any of Merchant’s services. Merchant will accept the amounts received from Promo Code/QR Code redeemer (Merchant Purchaser) as payment in full for all services provided by Merchant delivered pursuant to the Merchant Offering. Merchant 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 Amigo receives written notice of a validly issued state or federal tax levy relating to past-due taxes owed by Merchant, Amigo may, in accordance with applicable law, deduct any such amounts from prepaid credits made by Merchant.
Taxes Generally. It is Merchant’s responsibility to determine what, if any, taxes apply to the credit prepayments Merchant makes, and it is Merchant’s responsibility to collect, report and remit the correct tax to the appropriate tax authority. Amigo is not responsible for determining whether taxes apply to Merchant’s transaction with either purchasers of their Offering or Amigo, or for collecting, reporting or remitting any taxes arising from any transaction with or by Merchant and purchaser of their Offering. Merchant may be asked to provide Amigo with a valid Tax File Number (TFN) for tax reporting purposes. Notwithstanding anything else in this Agreement, Merchant shall be, and will remain, registered for sales, use and other similar tax collection purposes in all states and localities in which Merchant is required to be so registered in connection with the Merchant Offering and pursuant to the terms and redemption of the Promo Code/QR Code, and shall be responsible for paying any and all sales, use or any other taxes related to the Merchant Offering or the goods and services.
Transaction Taxes. Merchant 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 Amigo and Merchant (“Transaction Taxes”), if any. Amigo shall apply the applicable Transaction Tax to the amounts prepaid credit it receives from Merchant and/or other fees remitted to Amigo pursuant this Agreement. Transaction Taxes are calculated using the Merchant’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 prepayment using the rates in effect under current law. • Withholding Taxes. Amigo may be required by tax authorities to withhold taxes on behalf of Merchant. Amigo reserves the right to deduct any such taxes from prepaid credit amounts made by Merchant and to remit them to the appropriate tax authority. Amigo may also be required to report the withholding tax payments to the tax authorities. Amigo shall provide evidence of payment of withholding taxes to Merchant no later than 60 days after payment of the withholding taxes.
Merchants must meet Amigo App’s minimum performance standards (including fulfilment of offers listed). Failure to meet these standards and/or comply with Merchant obligations under this Agreement may result in Amigo charging you additional fees, and/or limiting, restricting, suspending, or downgrading your Merchant account.
If Amigo reasonably believes that Merchant has breached any provision of this Agreement, Amigo may forfeit prepaid credit by Merchant, in Amigo’s sole discretion. In addition, if Merchant is unwilling to, or in Amigo’s reasonable discretion appears unable to, perform its obligations under this Agreement, Amigo is authorised to forfeit prepaid credit by Merchant in addition to such other remedies as may be available under this Agreement or at law, to secure payment from Merchant for any refunds and/or other amounts payable by Merchant under this Agreement.

Customer Data Restrictions

“Customer Data” means all identifiable information about downloaders/purchasers generated or collected by Amigo or Merchant, including, but not limited to, downloaders/purchasers’ name, shipping addresses, email addresses, phone numbers, downloader/purchaser preferences and tendencies, and financial transaction data.
Merchant shall use Customer Data only to fulfil its redemption obligations in connection with the Merchant Offering as authorised by this Agreement. Merchant expressly agrees that any Customer Data shall be used only for this purpose (including, but not limited to, the redemption of Promo Code/ QR Code and provision of goods and services to purchasers), and not to enhance a file or list owned by Merchant, or any third party. Merchant represents, warrants and covenants that it will not resell, broker or otherwise disclose any Customer Data to any third party, in whole or in part, for any purpose, unless required by applicable law. If Merchant engages any third party to facilitate its redemption obligations hereunder, Merchant shall ensure that such third party implements and complies with reasonable security measures in handling any Customer Data. If any Customer Data is collected directly by Merchant or a third party engaged by Merchant to facilitate its redemption obligations hereunder, Merchant shall ensure that it or such third party adopts, posts and processes the Customer Data in conformity with its posted privacy policy and all applicable laws.
As long as Merchant uses Customer Data in compliance with applicable law and Merchant’s posted privacy policy, restrictions stated in this Agreement on Merchant’s use of Customer Data do not apply to: (i) data from any downloader/ purchaser who is already a customer of Merchant before the Effective Date, if such data was provided to Merchant by such downloader/purchaser independent of this Agreement or any transaction hereunder; or (ii) data supplied by a downloader/purchaser directly to Merchant who becomes a customer of Merchant in connection with such downloader/ purchaser explicitly opting in to receive communications from Merchant.
Merchant shall immediately notify Amigo if Merchant becomes aware of or suspects any unauthorised access to or use of Customer Data or any confidential information of Amigo, and shall cooperate with Amigo in the investigation of such breach and the mitigation of any damages. Merchant will bear all associated expenses incurred by Amigo to comply with applicable laws (including, but not limited to, any data breach laws) or arising from any unauthorised access or acquisition of Customer Data while such data is in Merchant’s reasonable possession or control. Upon termination or expiration of this Agreement, Merchant shall, as directed by Amigo, destroy or return to Amigo all the Customer Data in Merchant’s or any agent of Merchant’s possession.

Mobile Redemption Devices

If Amigo leases or lends Merchant a tablet or mobile redemption device (“Device”), Merchant agrees to be bound by the terms of use, end user license agreements, or other provisions governing its use, unless otherwise authorised by Amigo in writing. Unless otherwise stated in writing, Merchant shall only use the Device for transmitting redemption data to Amigo and processing purchaser payments and shall return a loaned Device fourteen (14) days after the Promotional Value Expiration Date, unless a new feature is planned or if requested by Amigo for any reason. Amigo reserves the right to bill Merchant for the cost of the Device, or offset any prepaid service fees made by Merchant under any contract between the parties if the device is not returned, or for costs related to damage or other misuse.

Term and Termination

This Agreement will continue in effect until terminated by either party in accordance with this Section (“Term”). Amigo is authorised to terminate this Agreement, at any time for any reason, upon written notice to Merchant. Merchant is authorised to terminate this Agreement upon seven (7) business days prior written notice to Amigo. Termination of this Agreement will not in any way affect Merchant’s obligation to redeem any Promo Code/QR Code according to the terms of this Agreement, including the obligation to honour the Promo Codes/QR Codes for the Merchant Offering of the Promotional Value through 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

Merchant agrees to comply with the Promo Code/ QR Code terms and conditions as stated on the Website, including but not limited to the “Terms of Use” of the Site, and to ensure that the Promo Codes/QR Codes comply with all laws that govern vouchers, gift cards, coupons, and gift certificates, including but not limited to the Australian Consumer Law(if applicable), the National Consumer Credit Protection Act 2009 (National Credit Act) (if applicable) and any laws governing the imposition of expiration dates, service charges or dormancy fees and all Fine Print related to the Merchant Offering stated on the Deal page. Merchant is solely responsible for compliance with any applicable escheat or abandoned or unclaimed property laws. Upon written request from Merchant, but only when required, Amigo will provide Merchant with information in Amigo’s possession that the Merchant needs to comply with its obligations under this Agreement. Merchant agrees that, regardless of the Payment terms, Merchant, and not Amigo, maintains any obligation for unredeemed Promo Codes/QR Codes under applicable escheat or abandoned or unclaimed property laws.

Marketing

Amigo and its business partners may communicate with Merchant with regard to products, promotions, and other services that may be of interest to Merchant. This may include email or other communications. Amigo may also solicit Merchant’s opinion for market research purposes.

Intellectual Property Rights

Merchant grants to Amigo 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, authorised 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, authorised or approved for use by Merchant (collectively, “Third Party IP”), in each case in connection with the promotion, sale/resale (as may be applicable) or distribution of the Merchant Offering in all media or formats now known or hereinafter developed (“License”). Any use of the Merchant IP or Third Party IP as contemplated in this Agreement is within Amigo’s sole discretion.
Merchant acknowledges and agrees that, as between the parties, Amigo owns all interest in and to the Site, Customer Data, Amigo trade names, logos, trademarks, service marks, domain names, social media identifiers, all data collected through or from the Site, all audiovisual content, video recordings, audio recordings, photographs, graphics, artwork, text or any other content created by Amigo or at Amigo’s direction, or assigned to Amigo, and any materials, software, technology or tools used or provided by Amigo to promote, sell/resell (as may be applicable) or distribute the Merchant Offering and conduct its business in connection therewith (collectively “Amigo 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 Amigo IP or any portion thereof, or use such Amigo IP as a component of or a base for products or services prepared for commercial use, sale, sublicense, lease, access or distribution, except that Amigo grants Merchant a limited, non-exclusive, revocable, non-transferable, non-sub licensable license during the Term to use one copy of Amigo’s mobile merchant 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. Merchant shall keep the Amigo IP confidential, and shall not prepare any derivative work based on the Amigo IP or translate, reverse engineer, decompile or disassemble the Amigo IP. Merchant shall not take any action to challenge or object to the validity of Amigo’s rights in the Amigo IP or Amigo’s ownership or registration thereof. Except as specifically provided in this Agreement, Merchant and any third party assisting Merchant with its obligations in this Agreement, are not authorised to use Amigo IP in any medium without prior written approval from an authorised representative of Amigo. Merchant shall not include any trade name, trademark, service mark, domain name, social media identifier, of Amigo or its affiliates, or any variant or misspelling thereof, in any trademark, domain name, email address, social network identifier, metadata or search engine keyword. Merchant shall not use or display any Amigo IP in a manner that could reasonably imply an endorsement, relationship, affiliation with, or sponsorship between Merchant or a third party and Amigo. All rights to the Amigo IP not expressly granted in this Agreement are reserved by Amigo.
If Merchant provides Amigo or any of its affiliates with feedback, suggestions, reviews, modifications, data, images, text, or other information or content about a Amigo product or service or otherwise in connection with this Agreement, any Amigo IP, or Merchant’s participation in the Merchant Offering or Promo Code/QR Code, (collectively, “Feedback”), Merchant irrevocably assigns to Amigo all right, title, and interest in and to Feedback. In the event your assignment to Amigo is invalid for any reason, you hereby irrevocably grant Amigo 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) Amigo 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 Amigo such assistance as Amigo might require to document, perfect, or maintain Amigo’s rights in and to Feedback.

Representations and Warranties

Merchant represents and warrants that: (a) Merchant has the right, power and authority to enter into this Agreement; (b) Merchant, if required by applicable law, is registered for sales and use tax collection purposes in all jurisdictions where Merchant’s goods and services will be provided; (c) the Promo Code/QR Code, upon being delivered by Amigo, will be available immediately for redemption and Merchant 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 fulfil its redemption obligations in connection with the applicable Maximum Number of Promo Codes); (d) the terms and conditions of the Promo Code/QR Code, 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 Merchant’s redemption of the Promo Code/QR Code will result in the bona fide provision of goods and/or services by Merchant to the purchaser; (f) Merchant owns all interest in and to the Merchant IP and has licensing rights in (with the right to sublicense to Amigo) the Third Party IP, and has the right to grant the License stated in this Agreement; (g) the Merchant IP and the Third Party IP, the Merchant Offering, Amigo’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; (h) 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 offence, gives rise to civil liability or otherwise violates any law; (i) the Promo Codes/QR Codes 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; (j) Merchant and its employees, contractors and agents have had the proper education and training and hold all required and up-to-date regulatory authorisation, licenses and certifications relating to any Merchant Offering to provide the goods or services described in this Agreement; (k) Merchant’s business information and credit card details (payment details) provided in this Agreement, indicating where Service Fees should be charged to are accurate and Merchant is the authorised entity to make Service Fees payment to Amigo; (l) Merchant is not authorised 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 authorised to copy or otherwise reproduce any Customer Data other than for the purpose of redeeming or verifying the validity of Promo Codes/QR Codes in connection with this Agreement (m) the Merchant Offering is: (i) free from defects in workmanship, materials and design, (ii) merchantable 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, (n) it shall abide by Amigo’s Vendor Code of Conduct, as updated from time to time; and (o) it shall abide by Amigo’s User/Customer Transparency Policy, as updated from time to time.

Indemnification

To the extent allowed under applicable law, Merchant agrees to defend, indemnify and hold Amigo, 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 Merchant of this Agreement, or the representations and warranties made in this Agreement; (b) any claim for state sales, use, or similar tax obligations of Merchant arising from the free download (generate) and redemption of a Promo Code/QR Code; (c) any claim by any local, state, provincial, territorial or federal governmental entity for unredeemed Promo Codes/QR Codes 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 Merchant or governing Merchant’s goods and/ or services; (e) any claim arising out of Merchant’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 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; (g) any claim by a user/purchaser for the Amount Paid directly to the Merchant; (h) any claim arising out of Merchant’s misuse of Customer Data, or any violation of an applicable data privacy or security law; and (i) any claim arising out of Merchant’s negligence, fraud or wilful misconduct. Amigo maintains the right to control its own defence and to choose and appoint its own defence counsel, regardless of the presence or absence of a conflict of interest between Amigo and Merchant. Merchant’s duty to defend and indemnify Amigo includes the duty to pay Amigo’s reasonable attorneys’ fees and costs, including any expert fees.

Confidentiality

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, Amigo 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. AMIGO’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 PROMO CODE/QR CODE IS LIMITED TO THE AMOUNT OF PREPAID SERVICE FEES HELD BY AMIGO HEREUNDER 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. 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 13 Dispute Resolution
Binding Arbitration EXCEPT AS SPECIFICALLY STATED HEREIN, ANY DISPUTE OR CLAIM BETWEEN MERCHANT AND AMIGO 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 13 TO ARBITRATE, MERCHANT AND AMIGO 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 13). The provisions of this Section 13 shall constitute Merchant’s and Amigo’s written agreement to arbitrate Disputes under the International Arbitration Act 1974. The arbitration will be administered by Australian Centre for International Commercial Arbitration (“ACICA”) and conducted before a single arbitrator pursuant to ACICA Arbitration Rules 2021 and ACICA Expedited Arbitration Rules 2021, including those applicable to Commercial Disputes, available at https:// acica.org.au. 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, Merchant or Amigo 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://acica.org.au. If Merchant demands arbitration, it shall simultaneously send a copy of the completed demand to the following address: To be Confirmed. If Amigo demands arbitration, it shall simultaneously send a copy of the completed demand to the Merchant’s address of record. Payment of all filing, administration and arbitrator fees will be governed by the ACICA’s rules. Amigo will reimburse those fees for Disputes totaling less than $200 if Merchant is the prevailing party in such arbitration. Amigo will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines that a Merchant Dispute is frivolous. The arbitration will be conducted based upon written submissions unless Merchant 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 Melbourne, Victoria, unless the arbitrator determines or we agree that the matter should proceed in the districts of Merchant’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) Merchant and Amigo agree that any such Dispute may only be instituted in a Magistrates’ Court in Melbourne, Victoria; (ii) Merchant and Amigo irrevocably consent and submit to the exclusive personal jurisdiction and venue of such courts for resolution of such Disputes; (iii) Merchant and Amigo agree that the International Arbitration Act, the ACICA rules, applicable federal law and the laws of the State of Victoria, without regard to principles of conflicts of law, will govern this Agreement and any Disputes; and (iv) MERCHANT AND AMIGO 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 and/or (ii) individual claims for which applicable law expressly prohibits pre-dispute arbitration agreements, if any, where such law is not preempted by the International Arbitration Act. In the event Amigo is the prevailing party in any Dispute, subject to any exceptions in this Section 13, Merchant shall pay to Amigo all reasonable attorneys’ fees and costs incurred by Amigo in connection with any Dispute.

Other

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.
Merchant is not authorized to transfer or assign its rights or obligations under this Agreement, whether by operation of law or otherwise, without Amigo’s prior written consent. Any waiver must be in writing and signed by an authorized signatory of Amigo. Amigo 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 NOR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. AMIGO DOES NOT WARRANT OR GUARANTEE THAT THE SERVICES OFFERED ON OR THROUGH THE MOBILE APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE PROMO CODES/QR CODES ARE ERROR-FREE, OR THAT ANY MERCHANT OFFERING WILL RESULT IN ANY REVENUE OR PROFIT FOR MERCHANT.
Password Security. You must safeguard your password for, and supervise use of, Amigo’s self-serve platform and tools, including, without limitation, Merchant Center, and all information concerning purchases of the Merchant Offering (together your “Account”). You are solely responsible for maintaining the security of your Account and maintaining settings that reflect your preferences. We will assume that anyone using your Account is you or is authorized by you to do so. You agree that you are solely responsible and liable for any activity that occurs under your Account.