Terms & Conditions For Merchant Partners
Welcome to the Funfull website. By clicking the checkbox on the sign-in page, you are agreeing to these Terms (defined below). Please read them carefully. If you have any questions, you may contact us at email@example.com.
These Terms were last updated on April 25, 2023.
The following definitions apply to certain words used in these Terms:
- “Consumer Services” means services made available to a person by a Merchant Partner by virtue of such person’s having become a Consumer.
- “Merchant Services” means services made available by Funfull to a person or entity by virtue of such person or entity having become a Merchant Partner.
1. About Funfull
- Funfull is a platform that provides instant access for Consumers to multiple local entertainment and activity establishments and businesses. Funfull makes Merchant Services available to Merchant Partners who are deemed eligible by Funfull and who register to obtain a Merchant Partner account with us.
- Funfull runs its Consumer Services to benefit its primary users, which include consumers who pay a subscription fee in order to be able to take advantage of the Consumer Services (“Consumers”) and local entertainment and activity establishments and businesses, whether in prospective or existing agreement with Funfull to provide certain services to Consumers (“Merchant Partners”), and the spirit of the Consumer Services is that “Funfull facilitates the Consumer to a Merchant Partner experience by making the entry process to Member Locations of Merchant Partners more streamlined, flexible, and affordable.” By agreeing with the Terms, you acknowledge and agree that Funfull provides its Merchant Services as a facilitator of the Consumer Services provided by Merchant Partners and not any other service except as specified in the Terms.
Disputes that cannot be resolved directly between you and Funfull under the Terms will be handled via arbitration as described in Section 16 below, which you are expected to review. Should you not agree with Section 16, then as stated in the initial paragraph, you must immediately cease using the Merchant Services.
2. Application of the Terms
- We reserve the right to update, change or replace any part of these Terms by posting updates and/or changes to our Site or other Services, or as applicable by our application hosting provider; in any event, we will execute on whichever requires more action by us for us to be compliant with laws, regulations, and other contractual agreements we may have.
- It is your responsibility to check this page periodically for changes to the Terms.
- Your continued use of or access to the Site or the Merchant Services following the marking of the sign-in box after the posting of any changes constitutes acceptance of those changes to the Terms.
- Merchant Partners are responsible for verifying that Consumers comply with the Merchant Partner’s own policies, rules, guidelines, or any other terms as between the Merchant Partner and the Consumer; the Merchant Partner uses the Merchant Services to facilitate its own legal relationship between itself, Consumers, and the Consumers’ additional guests concerning the Consumer Services.
- A Merchant Partner’s minimum activity offers for Consumer Services are subject to change at Funfull discretion to maximize the Consumer retention and/or keep up with the Consumers’ needs and demands based on the market ask.
- Merchant Partners agree to treat Consumers no differently from their own consumers not using Funfull except as otherwise provided in these Terms; for the avoidance of doubt, the relationship between a Merchant Partner and a Consumer using the Consumer Services does not involve Funfull.
- Merchant Partners agree to behave responsibly when providing the Consumer Services and in such a manner that does not put Funfull in disrepute.
- Merchant Partners shall not at any time make statements or representations, or otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly or indirectly, disparage Funfull, Inc. or any of its subsidiaries or affiliates or their respective officers, directors, employees, advisors, businesses or reputations. Notwithstanding the foregoing, nothing in these Terms shall preclude a Merchant Partner from making truthful statements that are required by applicable law, regulation or legal process.
- Merchant Partners that fail to comply with any of the Terms are subject to either suspension or expulsion from using the Merchant Services, and termination of the partnership with Funfull including possible liability for breach.
- Merchant Partners must not engage in or encourage fraudulent activity or provide the Consumer Services in any harmful way whatsoever.
- Merchant Partners must provide only true, accurate, current, easy-to-understand, and complete information in the course of providing the Consumer Services, and they agree to correct the information in a reasonable amount of time if any of the information changes.
- Merchant Partners must not upload offensive content to their profiles on their account on the Site.
- Merchant Partners must respect the reputation of Funfull, and Merchant Partners cannot appropriate the brand and attempt to represent the brand without Funfull’s express permission.
- Only a Merchant Partner can use their own account, and where applicable, only Merchant Partner sub-users can use their own respective account, and any unauthorized usage of any account may result in Funfull either suspending or expelling the Merchant Partners from using the Merchant Services.
- Merchant Partners must not use the Merchant Services for any illegal or unethical purposes.
- Merchant Partners must not disable or disrupt the Consumer Services in any way.
- Merchant Partners may not upload or use any offensive content while providing the Consumer Services.
- Furthermore, all Merchant Partners agree not to:
- collect personal data about other Consumers, users or entities by using the Merchant Services for commercial or unlawful purposes;
- use automated means, including spiders, robots, crawlers, data mining tools, or the like to download or scrape data from the Merchant Services, except for internet search engines (e.g., Google) and non-commercial public archives (e.g., archive.org) that comply with our robots.txt file;
- attempt to gain unauthorized access to computer systems owned or controlled by Funfull or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of, the Merchant Services; or
- use any automated device or software that enables the submission of automatic postings on Funfull without human intervention or authorship (an “automated posting device”), including without limitation, the use of any such automated posting device in connection with bulk postings, or for automatic submission of postings at certain times or intervals.
- collect personal data about other Consumers, users or entities by using the Merchant Services for commercial or unlawful purposes;
4. Account & Security
- To access the Merchant Services, you must create an account on the Site, where you will have a dashboard (the “Account”). Registration of a prospective Merchant Partner’s Account may be done by Funfull on the Merchant Partner’s behalf, and the separately agreed special terms as between Funfull and the Merchant Partner will apply as discussed in a written agreement between Funfull and the Merchant Partner (the “Special Terms”). Where such Special Terms conflict with any of the Terms, these Terms shall prevail.
- You must protect and secure your Account login credentials, and you are fully responsible for any activity resulting from the use of your credentials.
- Where applicable, you can add sub-users to your account, and accordingly, you are responsible for the activities of your sub-users.
- Any violation of the terms by your sub-users will be considered a violation of the terms by you.
- You represent and warrant that the personal data you provide to Funfull is true, accurate, current, and complete.
- You are required to provide relevant payment details for Funfull to dispense payments as per Section 10 below and/or obtain payments for the Merchant Services if any.
- You acknowledge that any fraudulent activity carried out with your Account may lead to suspension from both the Merchant and Consumer Services along with both the freezing of funds or any other assets held by Funfull on your behalf through the Merchant Services.
- If you believe that your account has been compromised in any way including by unauthorized access from hackers or other individuals, you must promptly notify Funfull by email at firstname.lastname@example.org.
- Funfull shall not be responsible for any cost and/or expenses incurred by the Merchant Partner as a result of an outage or failure of the Site or Merchant Services to be provided by Funfull.
- Each Merchant Partner will have a dashboard on its Account to manage all check-ins, billing, self-checkout options, cancellations and any other data collection required to provide the Consumer Services.
- The Merchant Partner may require the Consumer to sign a waiver prior to entrance to its Member Location, which shall be stored on the Merchant Partner’s Account on the Site for three years and will be accessible for download by the Merchant Partner for one year. Merchant Partner is solely responsible for the content of the waiver, and Funfull retains no responsibility or liability for any actions taken relating to such waiver.
5. Member Locations
- All Merchant Partners must have a physical business address (the “Member Location”) that they will provide when signing up for an account, and this is the address where Consumers will use the Consumer Services. Merchant Partners must notify Funfull within a reasonable time if there is any change or temporary shutdown of a Member Location.
- Where applicable, if your Member Location makes use of dedicated APIs, such as those of eGifter or any other Gift Card (defined below) service provider, you are responsible for ensuring all configurations are correct.
- Funfull displays Merchant Partner’s Member Locations on the Site and App with listings
- Funfull determines at its sole discretion which listings to display to Consumers based on (a) Consumer preferences, which they select once they create an account, (b) Consumer proximity to the Member Location, (c) popularity of the Member Location, and (d) any other reasons to enhance the Consumer experience and help the Funfull business model.
- Member Locations on the Funfull platform are not owned or controlled by Funfull unless otherwise explicitly stated, and accordingly, any issues or questions relating to products or services offered by these Member Locations are the responsibility of the Merchant Partners for these Member Locations.
- Merchant Partner is responsible for providing the information for, and ensuring the accuracy of all statements on, the Site related to the Consumer Services. Merchant Partner assumes all liability for inaccuracies or misstatements regarding the Consumer Services on the Site.
- Funfull will collect the Merchant Partner’s location data to ensure check-ins are made securely.
- The availability of Member Locations is dependent on the associated Merchant Partner and the information the Merchant Partner has provided to Funfull, and Funfull does not take any responsibility as to a Merchant Partner’s availability, benefits, or actions.
- Member Locations may or may not be removed from listing after a Consumer purchases any membership that provides access to the Member Locations.
- Merchant Partners acknowledge that Funfull may use the Merchant Partner’s location, logo, name, address, and other details relevant to allowing Consumers to check-in at the Member Location for purposes related to the promotion of the Consumer Services.
- To remain listed on the Platform and comply with the Terms, Merchant Partners agree to display promotional materials about Funfull such as flyers, brochures, and other marketing materials within the Member Location (“Promotional Materials”) for as long as the Merchant Partners remain listed and as otherwise agreed in the Special Terms.
- Funfull will provide the Promotional Materials to the Merchant Partners, and the Merchant Partners agree to display the Promotional Materials in areas of their Member Locations that enable potential Consumers to view the Promotional Materials.
- Merchant Partners must not unreasonably obstruct potential or actual Consumers’ ability to view the Promotional Materials within any of their Member Locations.
- Funfull is not a Merchant Partner, does not control any Member Location, takes no responsibility, and shall not be held liable under any circumstances concerning the Consumer’s participation at a Member Location via Funfull, and should the Consumer be involved in any injury, accident, or any other issues concerning their participation at a Member Location, the Merchant Partner acknowledges that they, and not Funfull, are liable and must resolve the issue with the Consumer, and if applicable, have insurance coverage for this purpose.
6. Funfull Cash, Gift Cards & Invitations
- “Funfull Cash” is a non-monetary form of credit used within the Consumer Services, and in the course of using the Consumer Services, Consumers may be able to purchase Funfull Cash which can be used to gain permission to use Merchant Services per the Special Terms set out between Funfull and the Merchant Partner.
- Merchant Partners are not directly involved in the process of Consumers acquiring Funfull Cash.
- Merchant Partners may not convert Funfull Cash into a monetary instrument.
- Merchant Partners must allow valid gift cards or tickets associated with their business (the “Gift Cards”) to be redeemable at their participating Member Locations.
- Merchant Partners and Funfull are not responsible for how Consumers choose to use their Gift Cards.
- Merchant Partners can invite individuals who are employees of the Merchant Partner to access the Merchant Services, and Merchant Partners are responsible for granting access to such individuals.
7. Membership & Check-Ins
- Merchant Partners that accept Gift Cards can allow Consumers without a Membership to pay for products or services at a participating Member Location using such Gift Cards.
- Funfull may provide a free trial of the Consumer Services (“Free Trial”) to the Merchant Partners for use by its owners or employees or for charity purposes. The Free Trial may not be used for resale purposes.
- Merchant Partners acknowledge that Consumers may purchase a membership subscription with Funfull (a “Membership”) to obtain further benefits and discounts with the Merchant Partners of Member Locations registered with Funfull.
- Any Membership sign-up fee paid by the Consumer is to be paid solely to Funfull.
- Merchant Partners acknowledge that a Consumer’s completion of the check-in process to enable entry into a Member Location to use its services is called an “Admission,” and that Admission to a Member Location is possible either through a specific number of tickets provided by the Merchant Partner represented by a single entry pass that must be provided by each Consumer (the “Tickets”) or via a generated access code provided by Funfull to each Consumer (the “Unique Code”).
- Merchant Partners are responsible for adding new Tickets on their dashboard when low on availability. If this is not done, the Merchant Partner’s Member Location will not be active on the listing for Consumer Services.
- Merchant Partners can specify that their Member Location has the option of allowing Consumers to subscribe to an unlimited entry plan (“Unlimited Play”).
- Merchant Partners must allow Consumers and Family Members with Unlimited Play to use the Consumer Services available at the Member Location as many times as such Consumers or their Family Members desire provided that this use is consistent with the Merchant Partner’s terms. Payment for Consumer use of Unlimited Play past the Merchant Partner’s limit per its terms is described below in Section 11.
- Merchant Partners agree to notify Funfull before changing any terms that may affect Funfull’s opinion as to whether the Merchant Partner should be eligible to offer Unlimited Play.
- Subject to Consumers being compliant with Funfull’s Terms & Conditions for Consumers and also subject to the Special Terms, Merchant Partners must allow Consumers to complete check-in at a Member Location to gain Admission with a two-factor verification: Firstly, if the Consumer provides the relevant Unique Code or Ticket to the Merchant Partner at the Member Location to validate their check-in, and secondly, the Merchant Partner must check the name and photo identification of the Consumer checking in to the Member Location to verify his or her identity. The Merchant Partner may not use photo identification of a Consumer for any other use aside from this two-factor verification.
- Merchant Partners are not responsible for the security of Consumers’ Tickets or Unique Codes.
- Merchant Partners must ensure the two-factor verification check-in process with Funfull is complete before allowing Consumers to enter Admission-only areas of the Member Location.
- In case of any dispute as to whether privileges under a Membership or Unlimited Play are valid, the Merchant Partner must first attempt to resolve any dispute directly with the Consumer, and if the dispute is not resolved, the Merchant Partner may inform Funfull at email@example.com to follow up if deemed necessary by Funfull.
- Funfull is a facilitator of the Merchant Services and Funfull’s relationship with the Merchant Partner extends to the communication of Funfull purchases, the number of entries granted from the Merchant Partners, and the benefits provided to Consumers through their or their Family Members’ Membership.
8. Data: Sharing, Notifications
- Funfull may send emails, written notices, text messages, or push notifications to the Merchant Partner.
9. Intellectual Property
- All content and information that is present on pages, applications, or other materials via the use of both the Merchant and Consumer Services including without limitation text, graphics, images, and other items that can be viewed or used, is the property of Funfull or the property of their respective owners and is protected under the copyright laws of various jurisdictions. Intellectual Property Rights (defined below) in the Merchant Services belong to Funfull or its licensors as may be the case from time to time.
- The Merchant Services and the materials on or accessible via the Merchant Services and the Intellectual Property Rights associated with them may not be copied, distributed, published, licensed, used, or reproduced in any way (save to the extent strictly necessary for, and for, accessing and using the Merchant Services).
- Any derivative works based on Funfull’s Intellectual Property Rights shall belong to Funfull and you agree to assign, convey, and transfer any Intellectual Property Rights in the derivative works to Funfull.
- None of Funfull’s Intellectual Property Rights may be used by you without Funfull’s permission in writing, which includes that you may not improperly or in any way use Funfull’s brand without permission.
- For these purposes “Intellectual Property Rights” includes the following: any patent, trademark, trade name, service mark, service name, design, design right, copyright, database right, moral rights, know-how, trade secret, and other confidential information, rights like any of these items in any country, rights like unfair competition rights and rights to sue for passing off or another similar intellectual or commercial right (in each case whether or not registered and registrations of and applications to register any of them).
- You grant to Funfull a non-exclusive, royalty-free, worldwide, perpetual, irrevocable, transferable and fully sublicensable license and right to use, modify, reproduce, sublicense, publicly display, distribute, transmit, publish, publicly perform adapt, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner: (a) your name, logo, trademarks, domain names, and any photographs, graphics, artwork, text, and other content provided or specified by you (collectively, “Your IP”); and (b) any third party’s name, logo, trademarks, domain names, photographs, graphics, artwork, text, and other content provided or specified by you (collectively, “Third Party IP”) in any and all media or formats now known or hereinafter developed (the “License”). You acknowledge that any use of Your IP or Third Party IP as contemplated herein is within the sole discretion of Funfull and Funfull may decide not to use Your IP or Third Party IP at all. To the extent that we may have the right to use Your IP or Third Party IP under applicable law without a license from you (i.e., fair use, a valid license from a third party, etc.), nothing in this agreement will prevent or impair such use. In addition, Funfull may use Your IP and/or Third Party IP in general marketing materials related to Funfull services without your prior written consent.
- Infringement Reporting Procedures and Digital Millennium Copyright Act (DMCA) Procedures
A. Infringement Reporting Procedures. If you own copyright, trademark, patent, or other Intellectual Property Rights (“IP Rights Owner”), or if you are an agent authorized to act on the Intellectual Property Rights Owner’s behalf (“Authorized Agent”), and you have a good faith belief that material or products on the Site infringe the IP Rights Owner’s copyright, trademark, or other intellectual property right, and you would like to bring it to Funfull’s attention, you can report your concern(s) by submitting your Infringement complaint.
B. DMCA Procedures. Funfull reserves the right to terminate your, or any third-party’s, right to use the Services if such use infringes the copyrights of another. Funfull may, under appropriate circumstances and at its sole discretion, terminate your, or any third-party’s, right to access to the Merchant Services, if Funfull determines that you are, or a third-party is, a repeat infringer. If you believe that any material has been posted via the Site by any third-party in a way that constitutes copyright infringement, and you would like to bring it to Funfull’s attention, you must provide us the following information (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyrighted work; (b) an identification of the copyrighted work and the location on the Site of the allegedly infringing work; (c) a written statement that you have a good faith belief that the disputed use is not authorized by the owner, its agent, or the law; (d) your name and contact information, including, without limitation, telephone number and email address; and (e) a statement by you that the above information in your notice is accurate and, under penalty of perjury, that you are the copyright owner or authorized to act on the copyright owner’s behalf.
10. Payments & Refunds
- Funfull is entitled to change the below payment model at its discretion with notice to the Merchant Partners.
- Merchant Partners under whose Special Terms are part of the Membership program with Unlimited Play (“Unlimited Partners”) will be paid as follows:
- The revenue from Membership payments (net of additional/applicable fees and any refunds for fraud or chargebacks) will be split monthly between Funfull and Unlimited Partners 40% to Funfull, and 60% paid equally amongst the Unlimited Partners according to Unique Check-Ins at each Member Location.
- The Membership fee structure prior to March 2023 varied from what it is currently. To avoid any underpayments due to a previous lower cost, Funfull will take full responsibility of adjusting the Unlimited Partner revenue pool to guarantee fair payments through the end of the 2023 calendar year.
- Merchant Partners under whose Special Terms grant to Consumers under their Membership a one-time entry at their Member Location (“Special Membership Partners”) will be paid a percentage determined by Funfull for each actual entry ticket redeemed by Consumers via Funfull unless otherwise specified in the Special Terms. Funfull may charge additional fees to the Consumer, which fees shall belong solely to Funfull.
- Funfull will disburse payment for the previous month to each Merchant Partner within 15 business days of the first of each month.
- Merchant Partner Accounts contain transaction history relating to purchases, redeemed Tickets, redeemed Unique Codes, or any other transaction relating to an Admission.
- Merchant Partners are fully responsible with respect to any applicable terms or laws applying to third-party services they use when receiving payments in relation to our Merchant Services.
- At a future time (decided at Funfull’s discretion), each Consumer use under Unlimited Play will be covered by a Merchant Partner’s terms at no extra cost until the Consumer reaches a Merchant Partner’s monthly use limit at a Merchant Partner’s option, whereby the Merchant Partner may charge a fee per use past the monthly limit, and that fee collected will be split between Funfull and Merchant Partner, with Funfull collecting 15% of the overuse fee and Merchant Partner collecting 85% of the overuse fee. Funfull will notify the Unlimited Partners if and when this feature goes into effect.
Funfull offers no refunds for Consumer Services except under circumstances deemed necessary in its opinion. Should Funfull provide a refund for the Consumer Services provided at the Member Location of the Merchant Partner, for an Unlimited Partner, Funfull is entitled to be paid back the cost of the overall payout paid to the Merchant Partner, and for a Special Membership Partner, Funfull is entitled to be paid the cost of the refund. The Unlimited Partners and Special Membership Partners will be responsible for any applicable or associated costs related to such refund.
11. DISCLAIMER, WARRANTIES, LIMITATION OF LIABILITY
THE WEBSITE, MERCHANT SERVICES, AND ALL CONTENT, SERVER, AND NETWORK ELEMENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND FUNFULL EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED. FUNFULL DOES NOT GUARANTEE THAT THE MERCHANT SERVICE CONTENT IS ACCURATE; ERROR-FREE; FREE OF VIRUSES; OR FREE OF ANY OTHER HARMFUL ELEMENTS. AS WITH ANY SERVICE, A MERCHANT PARTNER MAY USE THE MERCHANT SERVICES, YET CAUTION SHOULD BE APPLIED IN THE USE OF ANY CONTENT OR MATERIALS, AND THE MERCHANT PARTNER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO THE MERCHANT PARTNER’S DEVICE OR COMPUTER, OR OTHER HARM. FUNFULL EXCLUDES ALL LIABILITY FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE MERCHANT SERVICES. THIS INCLUDES, WITHOUT LIMITATION, DIRECT LOSS, LOSS OF BUSINESS OR PROFITS (WHETHER OR NOT THE LOSS OF SUCH PROFITS WAS FORESEEABLE, AROSE IN THE NORMAL COURSE OF THINGS OR YOU HAVE ADVISED FUNFULL OF THE POSSIBILITY OF SUCH POTENTIAL LOSS), DAMAGE CAUSED TO YOUR COMPUTER, SYSTEMS, AND PROGRAMS AND THE DATA THEREON OR ANY OTHER DIRECT OR INDIRECT, CONSEQUENTIAL AND INCIDENTAL DAMAGES. IN NO EVENT WILL FUNFULL’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION EXCEED THE LESSER OF EITHER ONE HUNDRED UNITED STATES DOLLARS ($100.00) OR THE COST OF ANY MERCHANT SERVICES PAID BY THE MERCHANT PARTNER. SOME JURISDICTIONS PROVIDE FOR CERTAIN WARRANTIES, LIKE THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. TO THE EXTENT PERMITTED BY LAW, WE EXCLUDE ALL WARRANTIES. OCCASIONALLY THERE MAY BE INFORMATION IN THE MERCHANT SERVICES THAT CONTAINS TYPOGRAPHICAL ERRORS, INACCURACIES, OR OMISSIONS THAT MAY RELATE TO PRODUCT DESCRIPTIONS, PRICING, PROMOTIONS, OFFERS, AND AVAILABILITY. WE RESERVE THE RIGHT TO CORRECT ANY ERRORS, INACCURACIES OR OMISSIONS, AND TO CHANGE OR UPDATE INFORMATION OR CANCEL ORDERS IF ANY INFORMATION IN THE MERCHANT SERVICE OR ON ANY RELATED WEBSITE OR APP IS INACCURATE AT ANY TIME WITHOUT PRIOR NOTICE. FUNFULL UNDERTAKES NO OBLIGATION TO UPDATE, AMEND OR CLARIFY INFORMATION IN THE MERCHANT SERVICES OR ON ANY RELATED WEBSITE, INCLUDING WITHOUT LIMITATION, PRICING INFORMATION, EXCEPT AS REQUIRED BY LAW. NO SPECIFIED UPDATE OR REFRESH DATE APPLIED IN THE SERVICES OR ON ANY RELATED WEBSITE OR APP SHOULD BE TAKEN TO INDICATE THAT ALL INFORMATION IN THE MERCHANT SERVICES OR ON ANY RELATED WEBSITE OR APP HAS BEEN MODIFIED OR UPDATED. ALL THE INFORMATION IN THE MERCHANT SERVICES PROVIDED BY FUNFULL DIRECTLY IS INTENDED FOR GUIDANCE ONLY. FUNFULL RESERVE THE RIGHT AT ANY TIME TO MODIFY OR DISCONTINUE THE MERCHANT SERVICES (OR ANY PART OR CONTENT THEREOF) WITHOUT NOTICE AT ANY TIME. FUNFULL SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY MODIFICATION, PRICE CHANGE, SUSPENSION, OR DISCONTINUANCE OF THE MERCHANT SERVICES.
You represent to Funfull that:
- You have all requisite right, power, and authority to enter into these Terms, perform your obligations, and grant the rights, licenses, and authorizations in these Terms;
- You are duly organized, validly existing, and in good standing under the laws of your jurisdiction of formation; and are duly qualified to do business and are in good standing in each jurisdiction where the conduct of your business, provision of your products or services, or the ownership of your property requires such qualification;
- These Terms are legal, valid, binding and enforceable against you;
- You are not a party to any agreement or instrument, or subject to any charter or other corporate restriction, or any judgment, order, writ, injunction, decree, rule, or regulation which materially and adversely affects, or so far as you can now foresee, may in the future materially and adversely affect, your business operations, prospects, properties, assets, or condition, financial or otherwise, or your ability to legally and properly perform under these Terms;
- If you are unable to fulfill your obligations under these Terms or to any Consumer for any reason, you will immediately notify Funfull and take prompt action to remediate such failure;
- You are registered for the collection of sales, use, amusement and other similar taxes in all states and localities in which you are required to be so registered pursuant to these Terms and in connection with fulfilling your obligations hereunder;
- You and your employees, contractors, agents, and third party service providers have had the proper education and training, and hold all required and up-to-date regulatory authorization, licenses, and certifications relating to any of your products or services and any of your activities related to these Terms;
- You have the full right, power, and authority to offer, promote, and authorize Funfull to offer and promote, the products or services as set forth in these Terms;
- These Terms, your products or services, including any marketing or promotion of the services contemplated hereunder, and any of the information you provide to Funfull, including your name, Your IP, and any Third Party IP, shall not violate any rights of any third party, including any other third party with which you have entered into a prior agreement or any other agreement to which you are a party;
- You and all of your subcontractors, agents, suppliers, and third party service providers shall comply with all applicable law in your performance of your obligations and exercise of your rights under these Terms;
- Any advertising or promotion of your services contemplated hereunder will not constitute false, deceptive, or unfair advertising or disparagement under any applicable law;
- You own all right, title and interest in and to Your IP, have licensing rights in (with the right to sublicense to Funfull) the Third Party IP, and have the right to grant the licenses set forth in these Terms;
- Your IP and the Third Party IP, and Funfull’s use thereof, do not violate any copyright, trademark, service mark, trade name, or other intellectual property right, or right of privacy or publicity, of any third party or any applicable law;
- Neither Your IP nor the Third Party IP includes 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 local, state, provincial, territorial, or federal law, statute, rule, regulation, or order;
- You are the person or entity authorized to receive any payments made to you by Funfull under these Terms.
- By using the Site and the Merchant Services, you agree that Funfull is authorized to report any income received by Funfull pursuant to its relationship to you to the Internal Revenue Service through your employee identification number (EIN).
- You acknowledge that at a future date, Funfull may implement a fee for use of the Site and Merchant Services. You will be given 90 days’ notice in advance of the implementation of such fee.
- Funfull may terminate their agreement to the Terms at any time. Merchant Partners may terminate their agreement to the Terms with 30 days’ notice, and once terminated, Merchant Partners must cease all use of the Site and Merchant Services, however, Merchant Partners may not terminate until the last Gift Card, Unique Code or Ticket issued to a Consumer is used by the Consumer at a Member Location.
- Funfull may, upon termination, immediately remove the Merchant Partner’s details from the Site and Consumer Services, resulting in Consumers being unable to use their Membership benefits at a Member Location of a Merchant Partner, except if a Consumer has an existing Gift Card, Unique Code or Ticket that has not yet been used.
- Funfull has the right to monitor the Merchant Services and to investigate and prosecute violations of any of the Terms to the fullest extent allowed either by the Terms or the law.
- Funfull reserves the right to involve local law enforcement authorities in prosecuting users violating these Terms contrary to local law.
When you use the Site or send emails to Funfull, you are communicating with us electronically and consent to receive electronic communications related to your use of the Site. We will communicate with you by the email address you provide to us or by posting notices on the Site. You agree that all agreements, notices, disclosures, and other communications that are provided to you electronically satisfy any legal requirement that such communications be in writing. Notices from us will be considered delivered to you and effective when sent to the email address you provide on the Site or from which you otherwise email us.
You agree to defend, indemnify and hold harmless Funfull, its subsidiaries, affiliates and their respective directors, officers, employees and agents from and against all claims and expenses, including attorneys’ fees, arising out of or related to any products or services provided by you in connection with the Site, your statements, or any use of the Site in violation of these Terms. You are solely responsible for your interactions with the Consumers. To the extent permitted under applicable laws, you hereby release Funfull from any and all claims or liability related to any product or service you make or offer to the Consumers, your statements, any action or inaction by you, including your failure to comply with applicable law and/or failure to abide by the terms of a Funfull, and any conduct or speech, whether online or offline, of any other user or merchant.
16. Dispute Resolution
- Binding Arbitration. EXCEPT AS SPECIFICALLY STATED HEREIN, ANY DISPUTE OR CLAIM BETWEEN MERCHANT PARTNER AND FUNFULL ARISING OUT OF, OR RELATING IN ANY WAY TO, THESE TERMS (“DISPUTES”) SHALL BE RESOLVED EXCLUSIVELY BY FINAL, BINDING ARBITRATION. BY VIRTUE OF THE AGREEMENT IN THIS SECTION 16 TO ARBITRATE, MERCHANT PARTNER AND FUNFULL 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 16). The provisions of this Section 18 shall constitute Merchant Partner’s and Funfull’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, Merchant Partner or Funfull must comply with the limitations provision set forth in Section 11 and submit the Dispute by making a demand for arbitration as detailed at https://www.adr.org. If Merchant Partner demands arbitration, it shall simultaneously send a copy of the completed demand to the following address:
212 West Main Street, Suite 400
Salisbury, MD 21804
If Funfull demands arbitration, it shall simultaneously send a copy of the completed demand to Merchant Partner’s address of record. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. Funfull will reimburse those fees for Disputes totaling less than $10,000 if Merchant Partner is the prevailing party in such arbitration. Funfull will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines that a Merchant Partner Dispute is frivolous. The arbitration will be conducted based upon written submissions unless Merchant Partner 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 Delaware, United States.
2. No Class Action Matters. 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 and that the arbitrator may award relief (including injunctive relief) only on an individual basis. The arbitrator does not have the power to vary these provisions.
3. Choice of Law/No Jury Trial. If for any reason a Dispute proceeds in court: (i) Merchant Partner and Funfull agree that any such Dispute may only be instituted in a state or federal court in Delaware, United States; (ii) Merchant Partner and Funfull irrevocably consent and submit to the exclusive personal jurisdiction and venue of such courts for resolution of such Disputes; (iii) Merchant Partner and Funfull agree that the Federal Arbitration Act, the AAA rules, applicable federal law and the laws of the State of Delaware, without regard to principles of conflicts of law, will govern this Agreement and any Disputes; and (iv) MERCHANT PARTNER AND FUNFULL AGREE TO WAIVE ANY RIGHT TO A TRIAL BY JURY.
4. Injunctive Relief/Attorney’s Fees. Notwithstanding anything to the contrary in these Terms, 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 Federal Arbitration Act.
In the event Funfull is the prevailing party in any Dispute, subject to any exceptions in this Section 16, Merchant Partner shall pay to Funfull all reasonable attorneys’ fees and costs incurred by Funfull in connection with any Dispute.
- Governing Law. These Terms are governed by the laws of Delaware, United States. The Merchant Partner agrees to resolve any dispute exclusively in Delaware, United States for arbitration of all such disputes.
- Severability. If any provision of these Terms is held to be unlawful, void, or for any reason unenforceable by a court of competent jurisdiction, then that provision will be severable from these Terms and will not affect the validity of any remaining provisions. Funfull’s failure to insist upon or enforce strict performance of any provision of these Terms will not be construed as a waiver of any provision or right.
- Waiver. Any waiver of a provision of these Terms must be in writing, expressly identify the provision to be waived, and be signed by an authorized representative of Funfull. No waiver of any of these Terms will be deemed a further or continuing waiver of such term or condition. This dispute resolution provision will survive the termination of any or all of your transactions with Funfull.
- Relationship of the Parties. The parties are independent contractors. Nothing in these Terms 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.
- Force Majeure. Funfull will not be liable or responsible, nor be deemed to have defaulted under or breached these Terms, for any failure or delay in fulfilling or performing any action pursuant to these Terms, when and to the extent the failure or delay is caused by or results from acts beyond Funfull’s reasonable control, including, without limitation: acts of god; flood, fire, earthquake or explosion; war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, or other civil unrest; pandemics; or laws, rules and regulations.
- Entire Agreement. These Terms constitute the entire agreement between you and Funfull, and any other terms discussed between you and Funfull external to these Terms shall not affect nor shall they form part of these Terms unless otherwise specified in writing in such external agreement.
- Interpretation. The headings preceding the text of the sections and subsections of these Terms are for purposes of reference only and shall not limit or otherwise affect the meaning of these Terms. The singular number shall include the plural, and vice versa. Any use of the word “including” shall be interpreted to mean “including, but not limited to,” unless otherwise indicated. All references to dollars (including via the symbol “$”) shall refer to the currency United States dollars. References to any person (including the parties and any other entities referred to) shall be construed to mean such person and its successors in interest and permitted assigns, as applicable.
- Assignment. You are not authorized to transfer or assign its rights or obligations under these Terms, whether by operation of law or otherwise, without Funfull’s prior written consent. Any waiver must be in writing and signed by an authorized signatory of Funfull. Funfull is authorized to transfer or assign these Terms or any Special Terms 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 you.