Effective date 5/25/17
These Provider Terms and Conditions (the
Terms and Conditions) govern and are incorporated into the Jabo Provider Agreement between Jabo and Provider (collectively, the
Agreement). Jabo, 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 Jabo from time to time) will be available: (i) in Jabo's Advertiser Area, and/or (ii) as part of the Jabo Newsletter. Provider agrees that either or both of these notification methods constitute adequate notice to inform Provider of any amendments to the Agreement and Provider further agrees to be bound by any such amendments to the Agreement upon such notification.
PROVIDER OFFERING means the goods and/or services to be provided by the Provider, stated on the Voucher as presented by Jabo. Values determined by Provider.
MAXIMUM NUMBER OF VOUCHERS means the maximum number of Vouchers Jabo is authorized to administer the sale of on behalf of the Provider.
AMOUNT PAID means the amount a purchaser pays for each Voucher.
EXPIRATION DATE means the date stated on the Voucher when the Provider Offering expires.
REMITTANCE AMOUNT means the amount Jabo shall remit to Provider for each Voucher, subject to the payment terms.
Redemption Siteis the complete and accurate address provided by Provider to Jabo where purchasers are able to redeem the Voucher to pick-up the Provider Offering. Provider also agrees to provide Jabo 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, Provider agrees to notify Jabo immediately of such change.
Provider Bank Account). Only in the event of an error, Jabo is authorized to initiate debit entry adjustments to the Provider Bank Account to correct any error. Provider hereby acknowledges that Jabo’s origination of all ACH transactions to Provider Bank Account must comply with provisions of U.S. law. ACH payments take up to five (5) business days to become available in the Provider Bank Account after processing.
Third-Party Payor), for any of Provider’s services. Provider will accept the amounts received from Jabo as payment in full for all services provided by Provider delivered pursuant to the Provider Offering. Provider 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.
Transaction Taxes), if any. Jabo shall apply the applicable Transaction Tax to the amounts it retains and/or other fees remitted to Jabo pursuant this Agreement. Transaction Taxes are calculated using the Provider'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 payment using the rates in effect under current law.
Customer Datameans all identifiable information about purchasers generated or collected by Jabo or Provider, including, but not limited to, purchasers’ name, shipping addresses, email addresses, phone numbers, purchaser preferences and tendencies, and financial transaction data.
If Jabo leases or lends Provider a tablet or mobile redemption device (
In an effort to incentivize Voucher sales, Provider authorizes Jabo, at any time and in Jabo’s sole discretion, to increase or decrease the Amount Paid for the Provider Offering (any such effort,
Promotional Program(s)). For each Voucher sold as part of a Promotional Program, the Net Remittance Amount will be adjusted in an amount equal to the percentage increase or decrease in the Amount Paid (
Promotional Adjustment), provided that, any decrease of the Net Remittance Amount will not exceed: (i) twenty percent (20%) of the Net Remittance Amount, or (ii) if applicable, the maximum Promotional Adjustment specified in the
Payment Terms section of the Jabo Provider Agreement. Promotional Programs include the following:
a. Promotional Codes - A
Promotional Code is a code that purchasers may use, in Jabo's sole discretion, to receive a discount on the Amount Paid for a Provider Offering.
b. Amount Paid Optimization –
Amount Paid Optimization is any change (excluding Promotional Codes) to the Amount Paid for a Provider Offering.
Term). Jabo is authorized to terminate this Agreement, at any time for any reason, upon written notice to Provider. Provider is authorized to terminate this Agreement upon seven (7) business days prior written notice to Jabo. Termination of this Agreement will not in any way affect Provider’s obligation to redeem any Voucher according to the terms of this Agreement, including the obligation to honor the Voucher for the Amount Paid after the Expiration Date. Provisions in this Agreement that are intended to survive termination will continue in full force and effect after the Term.
Provider agrees to comply with the Voucher terms and conditions as stated on the Website, including but not limited to the
Jabo and its business partners may communicate with Provider with regard to products, promotions, and other services that may be of interest to Provider. This may include email or other communications. Jabo may also solicit Provider’s opinion for market research purposes.
Provider IP); and (b) any third party’s name, logos, trademarks, service marks, domain names, audiovisual recordings, video recordings, audio recordings, photographs, graphics, artwork, text and any other content provided, specified, recommended, directed, authorized or approved for use by Provider (collectively,
Third Party IP), in each case in connection with the promotion and resale of the goods and services in all media or formats now known or hereinafter developed (
License). Any use of the Provider IP or Third Party IP as contemplated in this Agreement is within Jabo’s sole discretion.
Jabo IP). Provider 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 Jabo IP or any portion thereof, or use such Jabo IP as a component of or a base for products or services prepared for commercial use, sale, sublicense, lease, access or distribution, except that Jabo grants Provider a limited, non-exclusive, revocable, non-transferable, non-sub licensable license during the Term to use one copy of Jabo's mobile provider 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. Provider shall keep the Jabo IP confidential, and shall not prepare any derivative work based on the Jabo IP or translate, reverse engineer, decompile or disassemble the Jabo IP. Provider shall not take any action to challenge or object to the validity of Jabo's rights in the Jabo IP or Jabo's ownership or registration thereof. Except as specifically provided in this Agreement, Provider and any third party assisting Provider with its obligations in this Agreement, are not authorized to use Jabo IP in any medium without prior written approval from an authorized representative of Jabo. Provider shall not include any trade name, trademark, service mark, domain name, social media identifier, of Jabo or its affiliates, or any variant or misspelling thereof, in any trademark, domain name, email address, social network identifier, metadata or search engine keyword. Provider shall not use or display any Jabo IP in a manner that could reasonably imply an endorsement, relationship, affiliation with, or sponsorship between Provider or a third party and Jabo. All rights to the Jabo IP not expressly granted in this Agreement are reserved by Jabo.
Feedback), Provider irrevocably assigns to Jabo all right, title, and interest in and to Feedback. In the event your assignment to Jabo is invalid for any reason, you hereby irrevocably grant Jabo 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. Provider warrants that: (A) Feedback is Provider's original work, or Provider obtained Feedback in a lawful manner; and (B) Jabo and its sublicensees' exercise of rights under the license above will not violate any person's or entity's rights, including any copyright rights. Provider agrees to provide Jabo such assistance as Jabo might require to document, perfect, or maintain Jabo's rights in and to Feedback.
Provider represents and warrants that: (a) Provider has the right, power and authority to enter into this Agreement; (b) Provider, if required by applicable law, is registered for sales and use tax collection purposes in all jurisdictions where Provider's goods and services will be provided; (c) the Voucher, upon being delivered by Jabo, will be available immediately for redemption and Provider will have sufficient goods and/or services available for redemption through the Expiration Date (i.e., a number of goods and/or services sufficient to fulfill its redemption obligations in connection with the applicable Maximum Number of Vouchers); (d) the terms and conditions of the Voucher, 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 Provider's redemption of the Voucher will result in the bona fide provision of goods and/or services by Provider to the purchaser; (f) Provider owns all interest in and to the Provider IP and has licensing rights in (with the right to sublicense to Jabo) the Third Party IP, and has the right to grant the License stated in this Agreement; (g) the Provider IP and the Third Party IP, the Provider Offering, Jabo's use and promotion thereof, and the results of such Provider 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 Provider IP and Third Party IP does not include any material that is unlawful, threatening, abusive, defamatory, vulgar, obscene, profane or otherwise objectionable, or that encourages conduct that constitutes a criminal offense, gives rise to civil liability or otherwise violates any law; (i) the Vouchers and any advertising or promotion of Provider's goods and services relating thereto will not constitute false, deceptive or unfair advertising or disparagement under any applicable law; (j) Provider and its employees, contractors and agents have had the proper education and training and hold all required and up-to-date regulatory authorization, licenses and certifications relating to any Provider Offering to provide the goods or services described in this Agreement; (k) Provider's business information and direct deposit details as provided in this Agreement, indicating where payments should be forwarded are accurate and Provider is the authorized entity to receive the funds forwarded by Jabo; (l) Provider is not authorized to resell, broker or otherwise disclose any Customer Data (as defined in this Agreement) to any third party, in whole or in part, for any purpose, and Provider is not authorized to copy or otherwise reproduce any Customer Data other than for the purpose of redeeming or verifying the validity of Vouchers in connection with this Agreement and (m) the Provider Offering is: (i) free from defects in workmanship, materials and design, (ii) marketable 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.
To the extent allowed under applicable law, Provider agrees to defend, indemnify and hold Jabo, 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 Provider of this Agreement, or the representations and warranties made in this Agreement; (b) any claim for state sales, use, or similar tax obligations of Provider arising from the sale and redemption of a Voucher; (c) any claim by any local, state, provincial, territorial or federal governmental entity for unredeemed Vouchers or unredeemed cash values of Vouchers or any other amounts 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 Provider or governing Provider's goods and/or services; (e) any claim arising out of Provider’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 Provider 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 purchaser for the Amount Paid; (h) any claim arising out of Provider's misuse of Customer Data, or any violation of an applicable data privacy or security law; and (i) any claim arising out of Provider's negligence, fraud or willful misconduct. Jabo maintains the right to control its own defense and to choose and appoint its own defense counsel, regardless of the presence or absence of a conflict of interest between Jabo and Provider. Provider's duty to defend and indemnify Jabo includes the duty to pay Jabo's reasonable attorneys’ fees and costs, including any expert fees.
The terms for the Provider Offering described in this Agreement are confidential, and Provider 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 Provider 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, Jabo is entitled to injunctive relief and a decree for specific performance, and any other relief allowed under applicable law (including monetary damages if appropriate).
EXCEPT FOR PROVIDER'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. JABO'S SOLE AND COMPLETE LIABILITY TO PROVIDER FOR ANY CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR ANY ERRORS, OMISSIONS OR MISPLACEMENTS OF ANY VOUCHER IS LIMITED TO THE AMOUNT OF FEES RETAINED BY JABO HEREUNDER FOR THE PRECEDING SIX (6) MONTHS 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. IN ADDITION, ANY CLAIM BY OR ON BEHALF OF A PROVIDER IN CONNECTION WITH ANY PAYMENT MADE BY JABO, INCLUDING, BUT NOT LIMITED TO, CLAIMS ALLEGING THAT A PROVIDER WAS UNDERPAID, MUST BE MADE IN WRITING TO JABO WITHIN NINETY (90) DAYS FROM THE DATE JABO REMITS THE PAYMENT AT ISSUE. ALL CLAIMS NOT MADE IN ACCORDANCE WITH THE FOREGOING SHALL BE DEEMED WAIVED, RELEASED AND DISCHARGED BY PROVIDER.
All disputes arising out of, or relating in any way to this Agreement, shall be resolved pursuant to this Section 14 Dispute Resolution.
EXCEPT AS SPECIFICALLY STATED HEREIN, ANY DISPUTE OR CLAIM BETWEEN PROVIDER AND JABO 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 14 TO ARBITRATE, PROVIDER AND JABO 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 14). The provisions of this Section 14 shall constitute Provider’s and Jabo’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 http://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, Provider or Jabo must comply with the limitations provision set forth in Section 13 and submit the Dispute by making a demand for arbitration as detailed at http://www.adr.org. If Provider demands arbitration, it shall simultaneously send a copy of the completed demand to the following address: GR Marketing, LLC, 401 Fairway Drive, #201, Deerfield Beach, FL 33441. If Jabo demands arbitration, it shall simultaneously send a copy of the completed demand to the Provider’s address of record. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. Jabo will reimburse those fees for Disputes totaling less than $10,000 if Provider is the prevailing party in such arbitration. Jabo will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines that a Provider Dispute is frivolous. The arbitration will be conducted based upon written submissions unless Provider 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 Palm Beach County, Florida, unless the arbitrator determines or we agree that the matter should proceed in the county of Provider’s principal place of business.
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.
If for any reason a Dispute proceeds in court: (i) Provider and Jabo agree that any such Dispute may only be instituted in a state or federal court in Palm Beach County, Florida; (ii) Provider and Jabo irrevocably consent and submit to the exclusive personal jurisdiction and venue of such courts for resolution of such Disputes; (iii) Provider and Jabo agree that the Federal Arbitration Act, the AAA rules, applicable federal law and the laws of the State of Florida, without regard to principles of conflicts of law, will govern this Agreement and any Disputes; and (iv) PROVIDER AND JABO AGREE TO WAIVE ANY RIGHT TO A TRIAL BY JURY.
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.
In the event Jabo is the prevailing party in any Dispute, subject to any exceptions in this Section 14, Provider shall pay to Jabo all reasonable attorneys' fees and costs incurred by Jabo in connection with any Dispute.