Business to Business Prepaid Product Purchase Agreement
THIS BUSINESS TO BUSINESS PREPAID PRODUCT PURCHASE AGREEMENT (this "Agreement"), is by and between INCOMM, LLC, a Delaware limited liability company doing business as InComm Digital Solutions, a Delaware limited liability company, with its principal place of business at 111 SW 5th Avenue, Suite 900, Portland, OR 97204 ("InComm"), and the entity registering to purchase Prepaid Items and electronically agreeing to the terms of this Agreement ("Buyer") (each of InComm and Buyer, a "Party", collectively, the "Parties").
Purchase of Prepaid Items.
Purchase Price; Orders. Buyer hereby agrees to purchase
physical prepaid closed-loop third party merchant gift cards, content cards, gaming download and subscription cards, and music download cards (collectively "Merchant Cards"),
prepaid digital closed-loop third party merchant gift codes, content codes, gaming download and subscription codes, and music download codes (collectively, "Digital Codes"), and/or
physical prepaid open-loop stored value cards ("SVC Cards") (Merchant Cards, Digital Codes, and SVC Cards are hereinafter collectively referred to as "Prepaid Items") from InComm or its Affiliates in such number and denomination, with such customization, if any, for the total purchase price ("Purchase Price") as described in any order submitted through www.incommincentives.com (together with any successor websites, the "Website"), or by telephone, e-mail or such other method designated by InComm, in each case as permitted by InComm from time to time (each such order, an "Order"). Buyer acknowledges and agrees that
the terms of this Agreement apply to each Order and purchase of Prepaid Items from InComm, and
each Order constitutes a binding, unconditional contract for the purchase and sale of the Prepaid Items that may not be cancelled by Buyer. Notwithstanding anything to the contrary contained herein, Buyer acknowledges and agrees that acceptance and fulfillment of each Order shall be at InComm's sole discretion. InComm may choose to reject any Order or decline to fulfill any Order upon notice to Buyer, subject to InComm's refund of any related unearned funds previously tendered by Buyer, and that neither InComm nor any of its Affiliates shall have any liability arising as a result of any such action.
Access Information. Buyer authorizes InComm to accept and process Orders from anyone using the information necessary to access Buyer's account and pay for Orders including the user identification number and password provided to Buyer by InComm in connection with Buyer's registration with InComm, and Buyer's payment information (collectively "Information"). Buyer agrees to be fully liable for any purchase using the Buyer's Information. InComm will have no obligation, liability or responsibility for verifying the identity of anyone using Buyer's Information, nor will InComm have any obligation, liability or responsibility to Buyer for any losses incurred by Buyer as a result of the unauthorized use of Buyer's Information. Buyer has the responsibility for safeguarding its Information and shall not reveal its Information to anyone not intended to place orders on its behalf. If Buyer suspects that an unauthorized user may have had access to its Information, Buyer must immediately notify InComm. Buyer shall
safeguard the Information and prevent unauthorized access of Buyer's account,
be responsible for any transaction which is attempted or initiated using the Information, and
indemnify and hold harmless InComm, its Affiliates, sureties, officers, directors, agents, employees, parents and subsidiaries, from any and all Third Party Claims (as defined below) arising out of or in connection with any access or use of Buyer's account utilizing any such Information.
Restatement of Representations and Warranties. Buyer acknowledges and agrees that each submission of an Order to InComm shall constitute a restatement and renewal of each and every representation and warranty made by Buyer hereunder as fully as if made on the date such Order is submitted to InComm.
Disclosures. InComm shall provide to Buyer all disclosures, terms and conditions, redemption instructions and any other such materials relating to the Prepaid Items (the "Terms") that have been supplied to InComm by the Prepaid Item provider for distribution to Cardholders. Buyer shall ensure that the Terms are provided to each person to whom Buyer, its agent or representative delivers a Prepaid Item ("Recipient") at the time a Prepaid Item is delivered to such Cardholder.
Payment of Purchase Price and Taxes; Shipment.
Purchase Price. Buyer shall tender the entire Purchase Price for each Order in U.S. Dollars to Company within thirty (30) days immediately following submission of the Order to Company. The Purchase Price does not include Taxes (as defined below). InComm will not ship Buyer's Order until it receives the entire Purchase Price and any applicable Taxes. All payments are final and non-refundable.
Taxes. Buyer agrees to pay all applicable federal, state, and local taxes as well as any sales or use taxes applicable to the purchase and sale of the Merchant Products (collectively, "Taxes"), and will remit to InComm all Taxes that InComm is required to collect in connection with the sale of Prepaid Items under Applicable Law.
Delivery of Physical or Digital Prepaid Items. Following InComm's receipt of the Purchase Price, InComm will promptly deliver any physical or digital Prepaid Items described in each Order to Buyer to the physical or digital address designated by Buyer in connection with the submission of such Order ("Delivery Address"). Buyer acknowledges that
InComm's obligation to deliver such Prepaid Items to Buyer is expressly conditioned upon receipt of the Purchase Price in good funds, and
any agreed-upon delivery date for such Prepaid Items is subject to change for any cause that interferes with InComm's suppliers' production, supply, or transportation of the Prepaid Items, including, but not limited to, any event of Force Majeure (as defined below). Title to physical and digital Prepaid Items, and the risk of loss associated with such Prepaid Items, shall pass to Buyer upon delivery of the Prepaid Items to the Delivery Address. Failure of Buyer to receive and accept any Prepaid Items when delivered constitutes a breach by Buyer of this Agreement.
Cardholder Agreements; Product Activation.
Cardholder Agreements. InComm shall provide to Buyer the same number of Cardholder Agreements as SVC Cards purchased by Buyer hereunder. Buyer shall ensure that a Cardholder Agreement is provided to each person to whom Buyer delivers a SVC Card at the time a SVC Card is delivered to such Cardholder. "Cardholder Agreement" means the agreement governing the terms and use of a SVC Card between the financial institution issuing the SVC Card ("Issuing Bank") and a Cardholder.
Activation. Buyer acknowledges the Prepaid Items must be Activated (as defined below) prior to use, and that InComm will Activate all Prepaid Items when in transit to Buyer or at such time or through such other method as designated by InComm from time to time. BUYER FURTHER ACKNOWLEDGES THAT THE PREPAID ITEMS SHOULD BE TREATED LIKE CASH AND STORED IN A SECURE MANNER UNTIL DISTRIBUTED TO THE CARDHOLDERS. "Activate(d)" means enabled for purchases and capable of being used for purchases.
Loss Prevention; Fraudulent Activity.
Promptly upon a Party having actual knowledge of any loss, theft or damage related to, or arising out of, the Prepaid Items, the Activation or redemption of the Prepaid Items, the unauthorized issuance or attempted issuance of the Prepaid Items, or any fraudulently Activated Products or attempts to fraudulently Activate Products, it shall notify the other Party thereof, along with any related pertinent information. In connection with receipt of such notice, the Parties shall use commercially reasonable efforts to investigate the foregoing and to mitigate any harm therefrom (such as by de-Activating the related Product(s) as to any unused balance on the affected Product(s)). As between InComm and Buyer, the Parties acknowledge that liability for losses, including damage or destruction, with respect to the Prepaid Items shall be as follows:
Any losses related to or arising out of the Prepaid Items prior to the shipment of the Prepaid Items to the Delivery Address shall be the sole responsibility of InComm, except to the extent related to Buyer's breach of this Agreement or Buyer's fraud, willful misconduct or gross negligence; and
Any losses related to or arising out of the Prepaid Items following shipment of the Prepaid Items to the Delivery Address shall be the sole responsibility of Buyer, except to the extent related to InComm's breach of this Agreement or InComm's fraud, willful misconduct or gross negligence.
Prohibition on Re-Sale; Use of Prepaid Items.
BUYER REPRESENTS, WARRANTS AND COVENANTS THAT IT SHALL NOT RE-SELL, NOR PERMIT THE RE-SALE OF, ANY OF THE PREPAID ITEMS, AND ACKNOWLEDGES THAT RESALE OF PREPAID ITEMS MAY CONSTITUTE A VIOLATION OF LAW AND SUBJECT BUYER TO CIVIL AND/OR CRIMINAL PENALTIES.
BUYER REPRESENTS, WARRANTS AND COVENANTS THAT IT SHALL ONLY USE OR DISTRIBUTE THE PREPAID ITEMS PURCHASED HEREUNDER FOR LOYALTY, AWARD OR PROMOTIONAL PURPOSES.
Certain Representations and Warranties.
Mutual. Each Party represents and warrants to the other that:
it has full power and authority to enter into this Agreement and perform its obligations hereunder;
this Agreement has been duly authorized, executed, and delivered by it;
this Agreement constitutes its valid and binding obligation, enforceable in accordance with its terms; and
it shall comply at all times with all Applicable Law (as defined below) in performing its obligations and exercising its rights under this Agreement.
Buyer. Buyer further represents and warrants to InComm that:
its entry into and performance of its obligations under this Agreement do not violate and will not cause a default under, any contracts, agreements, or instruments to which Buyer is a party or its properties bound;
it will fully perform its obligations under this Agreement in compliance with Applicable Law; and
all information regarding Buyer, if any, provided to InComm by Buyer in connection with the purchase of the Prepaid Items is true and accurate in all respects.
InComm shall provide Buyer with designated InComm contacts, who will provide Buyer with customer support in connection with the Orders. Buyer shall be responsible for any direct customer service support for Cardholders; however, Buyer shall promptly notify InComm of any inquiries or complaints it receives from Cardholders arising out of any distribution of Prepaid Items and Buyer shall not, and shall not permit any third party to, make any representations on behalf of or concerning any Prepaid Item provider.
Certain Limitations; Disclaimers; Exclusions.
Except for the warranties of InComm set forth in Section 6 (a) above, INCOMM IS SELLING TO BUYER THE PREPAID ITEMS AND PROVIDING THE SERVICES HEREUNDER "AS IS" TO THE MAXIMUM EXTENT PERMITTED BY LAW AND EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES (EXPRESS AND IMPLIED), INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATIONS OR WARRANTIES RELATING TO QUALITY, PERFORMANCE, SUITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL INCOMM BE LIABLE TO BUYER OR ANY OTHER PARTY, WHETHER BY WAY OF INDEMNIFICATION, CONTRIBUTION, OR OTHERWISE, FOR ANY INDIRECT, CONSEQUENTIAL (INCLUDING LOST PROFITS OR SAVINGS), INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY (E.G., CONTRACTS, TORTS, STRICT LIABILITY, NEGLIGENCE, OR OTHERWISE), HEREUNDER, OR ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE PURCHASE OF THE PREPAID ITEMS OR THE PROVISION OF SERVICES HEREUNDER EVEN IF BUYER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. NOTHING IN THIS SECTION LIMITS BUYER'S RESPONSIBILITY FOR THE PAYMENT OF THE PURCHASE PRICE. BUYER AGREES THAT THE AGGREGATE LIABILITY OF INCOMM HEREUNDER SHALL NOT EXCEED THE PURCHASE PRICE.
Buyer agrees to indemnify and hold InComm, each Licensee, Issuing Bank, and each Provider and their respective Affiliates, directors, officers and employees ("InComm Indemnified Parties") harmless from and against all third-party claims, actions, damages, liabilities, costs, and expenses (including reasonable attorneys' fees) ("Third Party Claims") relating to or arising in connection with Buyer's:
acts or omissions;
breach of its representations, warranties, covenants or obligations contained within this Agreement;
non-compliance with Provider Requirements; or
fraud, gross negligence or willful misconduct.
Buyer represents and warrants that all information it has provided to InComm and each Issuing Bank (which may include, without limitation, information regarding Buyer or its employees), is true, complete and accurate in all respects.
Buyer agrees to cooperate fully and otherwise promptly provide to InComm any and all relevant information with respect to Buyer, or its employees, as InComm may deem necessary to comply with Applicable Law (as defined below). "Applicable Law" means any and all foreign, state or local laws, treaties, rules, regulations, regulatory guidance, directives, policies, orders or determinations of (or agreements with) an arbitrator or governmental authority and mandatory written direction from (or agreements with) any arbitrator or governmental authority that are applicable to the issuance, sale, authorization or usage of the Prepaid Items, or otherwise applicable to any of the Parties.
Buyer acknowledges and agrees that InComm may verify all information provided to InComm by Buyer and screen such information against government databases as required by Applicable Law.
Buyer acknowledges that the Cards purchased hereunder are anonymous cards and that Company has no knowledge as to whom Buyer will distribute the Cards or where such individuals reside. Therefore, each of Buyer and Company acknowledge and agree that the unclaimed property and gift card laws of the jurisdiction where the Cards are shipped shall apply to the Cards. Buyer represents and warrants to Company that Buyer not distribute any Card to any employee and other third party that Buyer has a reasonable basis to believe is engaged in illegal conduct. Buyer acknowledges and agrees that Company reserves the right to deactivate all Cards purchased hereunder in the event Company reasonably suspects that one or more of such Cards are being used or are likely to be used in connection with any fraudulent or other illegal activity. Buyer agrees that Company shall not be liable for any losses or damages which may result from such action by Company.
When required by Applicable Law, InComm reserves the right to modify or discontinue, either temporarily or permanently, the services provided hereunder, including the distribution of Prepaid Items, as necessary to comply with Applicable Law. Buyer agrees that InComm shall not be liable to Buyer or to any third party for any necessary modification, suspension or discontinuance of this Agreement due to the change in Applicable Law.
Provider Requirements; Marketing/Merchandising of Prepaid Items.
Buyer acknowledges that the providers of the Prepaid Items ("Providers") may impose on Buyer certain requirements for the purchase, use and/or marketing or merchandising of the Prepaid Items, such as providing to Cardholders terms and conditions and disclosures relating to the Prepaid Items ("Provider Requirements"). Buyer acknowledges that the Provider Requirements may be modified from time to time. Buyer will provide to each Cardholder, materials provided by InComm and/or Provider to ensure compliance with Applicable Law and Provider Requirements. All merchandising or marketing materials created or used by Buyer in connection with the Prepaid Items must be approved by InComm and/or Provider. Buyer acknowledges that it may be required to complete and execute specific marketing agreements or other agreements as required by certain Providers in order to be eligible to purchase certain Prepaid Items.
Credit Check Authorization.
Buyer hereby authorizes InComm and its agents to access all credit and other financial information relating to Buyer, and authorizes any third party possessing such information, including, without limitation, any credit reporting agency, to release the same to InComm or its agents.
This Agreement shall be governed by, construed and enforced in accordance with the laws of the State of Florida, without regard to that state's conflict of laws principles, and the Parties hereby irrevocably and unconditionally consent and submit to the personal jurisdiction of the United States District Court in the Southern District of Florida over all matters relating to this Agreement. Each Party agrees that service of process in any action or proceeding hereunder may be made upon such Party by certified mail, return receipt requested, to the address for notice set forth herein.
Limitation of Time Period for Claims.
No action, claim, or proceeding by Buyer arising under or by reason of this Agreement or the purchase of the Prepaid Items pursuant to an Order shall be commenced or made by Buyer against InComm after the expiration of twelve (12) months from the date upon which the Prepaid Items described in such Order are first delivered to the Delivery Address.
Each Party agrees that it may have access to confidential or proprietary, technical or business information of the other Party and/or its suppliers (collectively, "Confidential Information"). All Confidential Information will remain the sole property of the disclosing Party. Each Party will maintain the strict confidentiality of the Confidential Information of the other Party and will not disclose the Confidential Information to any third party and shall exercise at least the same degree of care in safeguarding the Confidential Information as it would with its own Confidential Information (in no event less than reasonable care). Furthermore, neither Party will use the Confidential Information for any purpose except those contemplated by the parties herein relating to this Agreement, and neither Party will disclose Confidential Information to any third party without the prior written consent of the disclosing Party. The following shall not be deemed Confidential Information:
information rightfully received from a third party without accompanying confidentiality markings or disclosure restrictions provided that to such Party's knowledge such third Party is not prohibited from disclosing such information to the receiving Party by a contractual, legal or fiduciary obligation to the other Party, its representatives or another Party;
information that is or becomes publicly available through no wrongful act of the receiving Party;
information that is already known by the receiving Party as evidenced by documentation bearing a date prior to the date of disclosure;
information that is approved for release in writing by an authorized representative of the disclosing Party; and
information disclosed pursuant to a valid court order or subpoena issued by a court of competent jurisdiction, provided that, to the extent not legally prohibited, the disclosing Party:
provides adequate notice to the other Party to appropriately object to such disclosure;
limits such disclosure to the extent practicable; and
makes such disclosure only to the extent required.
Except for any payment obligations set forth herein, neither Party shall be liable for any failure or delay on its part to perform, and shall be excused from performing any of its non-monetary obligations hereunder if such failure, delay or non-performance results in whole or in part from Force Majeure. The term "Force Majeure" shall mean an event causing, or reasonably expected to cause an imminent delay in performance or failure to perform which is due to an event beyond the reasonable anticipation and control of a Party, and shall include, without limitation,
acts of God, explosion, flood, hurricane, lightning, earthquake, or fire;
war or threat of war, sabotaging, riot, revolution, terrorist acts, civil disturbance or requisition;
acts, restrictions, regulations, prohibitions or measures of any kind on the part of any governmental authority not currently in effect upon the Effective Date of this Agreement;
import and export regulations or embargoes;
strikes, lockouts, or other industrial actions or trade disputes, or
explosion, blackouts or brownouts; any interruption or shortage of, or failure or delay in, transportation, utilities, material, supplies, equipment, machinery, or electrical power.
Either Party desiring to rely upon Force Majeure as an excuse for failure, default or delay in performance shall, when the cause arises, give to the other Party prompt notice in writing of the facts which constitute such cause; and, when the cause ceases to exist, give prompt notice thereof to the other Party. Notwithstanding the foregoing, a Party seeking relief under this Section shall take all reasonable steps to mitigate the effects of such Force Majeure event and shall, as soon as practicable upon the cessation of such Force Majeure, resume its obligations hereunder.
Any reference to InComm in this Agreement shall hereinafter be deemed to also refer to InComm's Affiliates. During the Term, products and service provided to Buyer as set forth in this Agreement shall be provided by InComm or its Affiliates at InComm's discretion. All terms and conditions of the Agreement shall apply as equally to InComm's Affiliates as to InComm. For purposes of this Agreement, the term "Affiliate," wherever it shall be used, shall mean, with respect to a party, any person, firm, corporation, partnership (including, without limitation, general partnerships, limited partnerships, and limited liability partnerships), limited liability company, or other entity that now or in the future, directly Controls, is Controlled with or by or is under common Control with a party. "Control" shall mean the possession, direct or indirect, of the power to vote more than fifty percent (50%) of the securities that have ordinary voting power for the election of directors of any entity, or to direct or cause the direction of the management and policies of such entity, whether through ownership of voting securities or by contract or otherwise.
Any terms stated, whether orally or in writing, by Buyer in any acknowledgment, purchase order, acceptance, instrument, etc., that are in addition to or in conflict with this Agreement shall not be binding on InComm and are expressly rejected.
Buyer agrees that InComm's sale of the Prepaid Items does not convey to Buyer any rights or licenses whatsoever, expressly or by implication, estoppel, or otherwise, with respect to any trademarks, trade names or other intellectual property rights related to the Prepaid Items. For the avoidance of doubt, Buyer acknowledges and agrees that it shall not use any trade name, trademark or other intellectual property of any merchant that may issue a Prepaid Item without the prior written consent of such merchant.
InComm may cure any default under this Agreement that InComm has been notified of upon receiving written notice from the Buyer within a reasonable period of time.
Buyer acknowledges and agrees that InComm may terminate this Agreement without penalty or further obligation in order to comply with Applicable Law or if required to do so by any governmental authority.
In the event that any part of this Agreement is deemed by a court of competent jurisdiction or governmental authority to be invalid or unenforceable, such provision shall be deemed to have been omitted from this Agreement. The remainder of this Agreement shall remain in full force and effect, and shall be modified to any extent necessary to give such force and effect to the remaining provisions, but only to such extent.
All provisions of this Agreement which by their nature extend beyond the expiration or termination of this Agreement shall survive termination or expiration of this Agreement.
Except as limited by subsection (j) below, this Agreement and the rights and obligations hereunder shall bind, and inure to the benefit of the Parties and their successors and permitted assigns. Nothing in the Agreement will create or be deemed to create any third-party beneficiary rights.
The rights and obligations of each Party under this Agreement are personal and may not be assigned either voluntarily or by operation of law, without prior written consent from the other Party; provided that InComm may assign this Agreement to any entity that controls such Party, that is controlled by such Party or that is under common control with such Party, or that is a successor to substantially all of the operations of such Party without the consent of Buyer if the entity to which this Agreement is assigned is fully capable of performing the obligations hereunder of InComm to the same extent as InComm itself, and such entity agrees in writing to be bound by the terms hereof.
Neither Party shall be deemed to have waived any of its rights, power, or remedies hereunder except in writing signed by an authorized agent or representative of the Party to be charged. Either Party may, by an instrument in writing, waive compliance by the other Party with any term or provision of this Agreement. The waiver by a Party of a breach of any term or provision of this Agreement shall not be construed as a waiver of any subsequent breach.
This Agreement, together with all exhibits and schedules attached hereto, if any, constitutes the entire Agreement between the Parties and supersedes all prior agreements, understandings, and arrangements, oral or written, between the Parties with respect to the subject matter hereof. Notwithstanding any contrary provision contained herein, this Agreement may not be modified or amended except by an instrument or instruments in writing signed by the Party against whom enforcement of any such modification or amendment is sought.
The headings, captions, headers, footers and version numbers contained in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement.
Captions contained in this Agreement are for convenience only and do not constitute a limitation of the terms hereof. The singular includes the plural, and the plural includes the singular. All references to "herein," "hereunder," "hereinabove," or like words shall refer to this Agreement as a whole and not to any particular section, subsection, or clause contained in this Agreement. The terms "include" and "including" are not limiting. Reference to any agreement or other contract includes any permitted modifications, supplements, amendments, and replacements.
Under the Electronic Signatures in Global and National Commerce Act ("E-Sign"), this Agreement is legally binding in the same manner as are hard copy documents executed by hand signature. This Card Purchase Agreement shall be governed by the provisions of E-Sign. You agree:
that the Agreement shall be effective by electronic means,
to be bound by the terms and conditions of this Agreement, and
that you have the ability to print or otherwise store the Agreement.