BY COMPLETING THE MERCHANT AFFILIATE APPLICATION PROCESS, MERCHANT AGREES TO BE BOUND BY THIS AGREEMENT.
PUSHX Standard Merchant Affiliate Terms and Conditions
This PushX Merchant Affiliate Terms and Conditions (“Agreement”) is entered into by and between PushX, Inc. or one of its affiliated companies (“PushX”), and the entity applying to become a Merchant Affiliate of PushX (“Merchant”). The term “Territory” in this Agreement is the United States.
1. Agreement. PushX owns and operates an online reservation system that enables its users (“Users”) to make purchase reservations, services, and orders from Merchant through a downloadable application (the “Application”). Users of the Application can purchase services, orders and reservations at Merchant’s approved venues and locations (“Venues”) through the Application. The Application may also be used by Merchant to promote Merchant Venues and events. The Application, Dashboard (as defined below) and all related mobile websites and applications constitute the “PushX System”. Merchant may place links (“Links”) on the PushX System to Merchant’s website to promote the Merchant Venues and events at those Venues. This Agreement contains the standard terms and conditions applicable to Merchant’s use of the PushX System.
2. Application and Dashboard: Merchant must apply through the Application to become a Merchant under this Agreement. Upon completion of the Application and acceptance of this Merchant Affiliate Agreement, PushX will enable the PushX System to provide a dashboard (“Dashboard”) to Merchant for its use in offering Services (as defined below) to Users of the Application.
3. The Services. “Service” means any service, software, feature, or functionality that enables or facilitates the purchase of reservations, services, or orders by the Application Users at the Merchant’s Venues, including without limitation: Mobile Menu Orders & LineSkip Tickets. The parties may mutually agree in writing on additional types of Services or additional placements of the Links on the Merchant’s website.
4. Merchant agrees:
● to use the PushX system exclusively to promote and sell the Services;
● to honor the Tickets (as defined below) presented by Users at Merchant’s Venues;
5. PushX agrees:
To place Merchant’s offered Services on the Application and enable users to purchase the Services using the in-Application purchase process. That process will utilize Stripe or other third-party payment processors (“Processor”). Merchant is responsible for and will pay all Processor fees.
The Users will be enabled to purchase the Services at the pricing provided by Merchant through the Dashboard, with the payment being authorized by the User and processed through the Processor. The Users will be provided with tickets (“Tickets”) for purchased Services in the Application.
6. Fees: Merchant hereby agrees to pay fees to PushX via two methods depending upon the revenue and/or service provided by PushX. The two fee methods are the Menu Item Fee for mobile menu orders (“Menu Item Fee”) and the Service Fee method (“Service Fee”)
● Menu Item Fee: For any revenue generated through the utilization of the PushX System for mobile menu orders, PushX will charge an amount equal to 5% of the price set by Merchant. PushX will also charge a $0.30 flat fee per menu item purchased on the PushX System. As an example, if Merchant sets the price for a menu item to $10.00, then PushX will charge the user purchasing a menu item $0.50 plus the $0.30 flat fee, totaling a $0.80 Menu Item Fee and a $10.80 total menu item price; and/or
● Service Fee: For any revenue generated through the utilization of the PushX System, PushX will charge an amount equal to 10% of the price set by Merchant. PushX will also charge a $0.99 flat fee per Ticket purchased on the PushX System. As an example, if Merchant sets the price for a ticket to $10.00, then PushX will charge the user purchasing a ticket $1.00 plus the $0.99 flat fee, totaling a $1.99 service fee and a $11.99 total ticket price.
Service Type Fee Method
Mobile Menu Orders Menu Item Fee
All other PushX Services Service Fee
Merchant agrees to cover the payment processing fee from Processors on any ticket or mobile menu order sold on the PushX System.
PushX will cause the Processor to maintain an account for Merchant’s share from each purchase on PushX System and to pay such amounts to Merchant’s account. No payments will be made to Merchant with respect to any event that is canceled or any Ticket that is not honored. Any credit card chargebacks or other transaction reversals ("Chargebacks") initiated against PushX (except to the extent they are caused solely by PushX’s negligence or willful misconduct) with respect to Merchant Services purchased by Users through the Application and all related credit card association, payment processing, re-presentment, penalty and other fees and expenses (together with the amount of Chargebacks, “Chargeback Costs”) incurred by PushX in connection with such Chargebacks will ultimately be the responsibility of Merchant and Merchant agrees to promptly and fully reimburse PushX for such amounts on demand. Merchant hereby agrees to allow PushX to deduct said chargeback costs from any future Merchant revenues.
7. License Grant; Use of Marks and Content. PushX hereby grants to Merchant, during the term of this Agreement, a nonexclusive, non-transferable, revocable license to use, reproduce, publicly display, and publish the trademarks, trade names, service marks, logos and promotional materials of PushX and other content provided by PushX to Merchant for use and display in connection with the Services (“PushX Marks'') are registered and unregistered trademarks or service marks of PushX and may be used solely for the purpose of creating Links on the Merchant website to the Application. Any use of the PushX Marks by Merchant must comply with any reasonable usage guidelines communicated by PushX to Merchant from time to time. To the extent Merchant displays PushX Marks on the Merchant Website, Merchant shall attribute that content to PushX by including the phrase “Powered by PushX '' or mutually agreeable language and will include PushX branding in accordance with PushX branding guidelines provided from time-to-time. Merchant agrees not to use or exploit any of the PushX Marks except in such form as PushX may consent to. Merchant further agrees not to use the PushX Marks Content in a false, competitively adverse, or poor light. Merchant agrees to display PushX’s trademark and copyright notices or legends when using the PushX Marks. PushX reserves all right, title, and interest in and to the PushX Marks along with any intellectual property rights associated with any of the foregoing and no title or ownership of any of the foregoing is transferred to Merchant or any other entity or person under this Agreement.
8. Representations and Warranties. Merchant hereby represents and warrants to PushX that: (a) it has the right, power, and authority to enter into this Agreement and perform its obligations as set forth herein; (b) it is under no obligation or restriction that does or would interfere or conflict with its obligations under this Agreement, nor will it assume any such obligation or restriction; and (c) the information provided by Merchant in connection with the affiliate Merchant application and approval process and this Agreement is true, correct, and complete.
9. Covenants. Merchant hereby covenants and agrees that: (a) Merchant shall comply with PushX’s privacy policy as in effect from time to time; (b) the Merchant Website shall not be operated in violation of any applicable federal, state or local law, rule or regulation; (c) the content included on the Merchant Website, as well as the operation of the Merchant Website, will not violate or infringe the copyright, trademark, trade name, patent, literary, intellectual, artistic or dramatic right, right of publicity or privacy or any other right of any entity or person or contain any material which is libelous, slanderous or obscene; (d) if any of the information provided in the affiliate Merchant application and approval process changes at any time, Merchant will notify PushX; and (e) the Merchant Website shall not publish, display, link to, sell or otherwise distribute any of the Prohibited Content, and Merchant will remove any such Prohibited Content as soon as Merchant becomes aware, or is made aware, of such Prohibited Content. For purposes of this Agreement, “Prohibited Content” means any material, including textual, audio or video material, which contains or promotes the following content: (i) death and tragedy; (ii) juvenile or vulgar content; (iii) nudity, sexual or suggestive content; (iv) violence; (v) use of firearms; (vi) error pages; (vii) parked domains; (viii) offer walls; (ix) “fake news” (x) or other defamatory or libelous content.
10. Term and Termination. The term of this Agreement shall begin on the date PushX accepts Merchant’s application. PushX may terminate this Agreement or modify the permission granted herein at any time upon written notice to Merchant. Merchants may terminate this Agreement at any time upon thirty (30) days prior written notice to PushX. This Agreement shall terminate automatically if, at any time, Merchant is in violation of this Agreement. Immediately upon the termination of the Agreement, Merchant shall remove all Links to the PushX Application and cease all use of the Dashboard, PushX Marks and PushX Content. The provisions of Sections 6 through 18 hereof shall survive termination of this Agreement.
11. Public Announcement. The timing and content of any advertisements, announcements, press releases or other promotional activity relating to this Agreement, and the use of each other's name or trademarks in such activities shall be subject to the prior approval of both parties.
12. Use of Data. Merchant shall not have the right to use, publish, share, sell or otherwise distribute any data collected with respect to Users of the Merchant Website that relates to (i) their clicking on a PushX Link; (ii) their use of PushX Application or System, or (iii) any information deemed proprietary by PushX.
13. Confidentiality. PushX and Merchant hereby acknowledge that in the course of activities under this Agreement each of them may have access to confidential and proprietary information which relates to the other party’s technology, marketing, and business (the “Confidential Information”). Confidential Information shall include the terms of this Agreement including without limitation the Splits. Each party agrees to preserve and protect the confidentiality of the Confidential Information and to not use (except as provided for under the terms of this Agreement) or to disclose, or distribute any Confidential Information to any third party without the prior written consent of the other party; provided, however, that any party hereto may disclose to any other party any information which the receiving party demonstrates: (i) is or becomes generally known or available by publication, commercial use, or otherwise through no fault of a party; (ii) is discovered or created by the receiving party without reference to the Confidential Information, as shown in records of such party; (iii) is lawfully obtained (without restriction on disclosure) from a third party who has the right to make such disclosure; (iv) is released for publication by the disclosing party; or (v) otherwise learned through legitimate means, other than from a third party under confidentiality obligations. Each party may disclose Confidential Information of the other party (a) to its affiliates and its and its affiliates respective directors, officers, employees, authorized representatives, agents or advisors who are directly involved in negotiating or performing this Agreement and who are apprised of their obligations under this Section and directed by the receiving party to treat such information confidentially, or (b) to the extent required by law, regulation, stock exchange rule, subpoena or court order after providing the disclosing party with advance written notice if reasonably possible such that the disclosing party is afforded an opportunity to contest the disclosure or seek an appropriate protective order.
14. Disclaimer of Warranties. PUSHX HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE PUSHX WEBSITE, PUSHX MARKS, PUSHX CONTENT, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF INFRINGEMENT, TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. PushX obtains the content appearing on the PushX System from sources that it considers reliable; however, neither PushX nor any of its vendors, affiliates nor Merchants warrant the accuracy or completeness of such content.
15. Limitation of Liability. IN NO EVENT SHALL PUSHX BE LIABLE FOR ANY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, ANY DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES, OR FOR ANY LOST PROFITS, SAVINGS, DATA OR USE, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE OR STRICT LIABILITY), ARISING OUT OF THIS AGREEMENT, MERCHANT’S PROVISION OF SERVICES OR THE SALE OF ALCOHOL OR INJURIES SUFFERED BY ANY PERSON AT MERCHANT’S VENUES. BOTH PARTIES ACKNOWLEDGE AND AGREE THAT THE LACK OF A REQUIREMENT OF ANY MONETARY PAYMENT HEREUNDER IS BASED IN PART UPON THESE LIMITATIONS, AND FURTHER AGREE THAT THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
16. Indemnity. Merchant shall indemnify and hold harmless PushX, its affiliates, and their respective officers, directors, members, employees and agents (the “PushX Indemnities”) from and against any and all claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) arising out of or accruing from (a) any misrepresentation or breach of Merchant’s representations and warranties set forth in this Agreement; (b) any non-compliance by Merchant with any covenants, agreements or undertakings of Merchant contained in or made pursuant to this Agreement, and (c) Merchant’s provision of Services, or the sale of alcohol or injuries suffered by any person at Merchant’s Venues.
17. Governing Law, Jurisdiction. This Agreement, and any dispute arising out of the subject matter of Agreement, shall be governed by the laws of the State of Florida. Each party hereby irrevocably consents to the jurisdiction and venue of any state or federal court located within Dade County, Florida. Each party hereby irrevocably agrees that process may be served on it in any manner authorized by the Laws of the State of Florida.
18. Miscellaneous. This Agreement constitutes the entire agreement between the parties and supersedes all oral or written agreements and understandings made and entered into by the parties prior to the date hereof. Merchants may not assign this Agreement in whole or in part without the prior written consent of PushX, and any purported assignment in violation of this provision shall be null and void. Subject to the foregoing limitation, this Agreement shall be binding upon and ensure to the benefit of the parties hereto, their respective heirs, personal representatives, successors, and assigns. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions shall remain in full force and effect. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. The Agreement shall not be construed or deemed to create any partnership, joint venture, agency, franchise, or other form of agreement or relationship than as expressly set forth herein. All notices required or permitted to be given under this Agreement will be deemed given upon transmission through the Dashboard or if sent by e-mail during regular business hours (or on the next business day if after regular business hours).