Terms & Conditions
Effective date 21 January 2022
These terms were last revised and are current as of the effective date set forth above. Giftomatic reserves the right to change these terms from time to time and will notify its partners about the changes.
The following Standard Partner Distribution Terms (“Terms”) govern the implementation and use of the Giftomatic tools made available by Giftomatic to the Partner identified in a Partner Enrollment Form.
Definitions
In this Agreement, the following terms shall have the meaning set forth therein:
A) Agreement: this partnership agreement, including appendices, as amended from time to time in writing by Parties jointly.
B) Commissions: any amounts paid to Giftomatic by the relevant Giftomatic Affiliates as a direct result of traffic and/or sales, which are (i) generated via the use of the Websnippets, (ii) connected to the specific SubID created for Partner and (iii) approved by the relevant Giftomatic Affiliate within three months of the commission generating event.
C) Digital Asset: the list of domains as described in the partner enrollment form.
D) Giftomatic Affiliate: third parties providing Giftomatic tracking links to be used by Giftomatic in order to generate traffic and sales, for example via the Websnippets.
E) Intellectual Property Rights: All intellectual property rights acknowledged by applicable law, and equivalent rights in trade secrets and knowhow, whether or not registered or applied for, including, without limitation, rights in or to any inventions, designs, names and imagery, style guides, domain names, tools, source code, business methods, patents, trademarks, copyrights, computer software and creations.
F) Websnippet(s): Specific software solutions in the form of codes, as further described in clause 11.
G) Partner enrollment form: form with specific agreements between Giftomatic and the partner.
0. Term and termination
0.1) In case no term is mentioned in the agreement, upon expiration of the initial term in the Partner Enrollment form, the Agreement will automatically be renewed for consecutive 12 months renewal terms, unless a Party terminates the Agreement (i) for convenience in writing at least 6 months prior to the expiration of the then current renewal term or (ii) in accordance with clause 0.2.
0.2) In deviation of section 6:265 of the Dutch Civil Code, either Party may solely terminate (ontbinden) this Agreement by notice to the other Party at any time and with immediate effect if one, or more, of the following occurs;
(a) a material breach by the other Party (save for any breach which is caused by the Party seeking to rely on it) of any of its obligations under this Agreement which is not capable of being remedied;
(b) a material breach by the other Party (save for any breach which is caused by the Party seeking to rely on it) of any of its obligations under this Agreement which is capable of being remedied, provided that the other Party has failed to remedy within thirty (30) days after receipt of notice giving particulars of the breach and requiring the other Party to do so;
(c) the other Party is declared bankrupt or if an application is made for that purpose, which has not been rejected within 30 days after the application;
(d) the other Party has applied for a moratorium (suspension of payments) or is placed in receivership or administration, or has its company dissolved or otherwise liquidated; or
(e) the other Party ceases, or threatens to cease or carry on its business, other than within a restructuring of the group of legal persons to which that Party belongs.
(f) In case generated revenue is lower than €500 over 6 consecutive months.
0.3) If this Agreement expires or is terminated, regardless of the ground of termination:
(a) the license referred to in clause 1 shall terminate with immediate effect;
(b) Partner shall remove the Websnippets within 30 business days of the termination or expiry of this Agreement from its Digital Assets;
(c) the provisions of this Agreement which by their nature are intended to remain in force, will remain in effect, including, the provisions relating to intellectual property rights, exclusivity, limitation of liability, confidentiality, governing law and jurisdiction; and
(d) the report and payment of the amounts payable to Partner related to the last month will be provided by Giftomatic within 2 months of the termination or expiry of the Agreement. Only Commissions accepted and paid by the Giftomatic Affiliates will be included on the last invoice to Partner.
1. License
1.1 Giftomatic grants Partner and its subsidiaries a fully paid up, non-transferable, revocable for the implementation and use of the Websnippets in the Digital Assets for the duration of this Agreement. The scope of the license granted may be extended by Parties jointly upon written agreement.
1.2 Partner may not, without prior written permission of Giftomatic:
(a) alter, change, modify, adapt, decompile, compile, translate, or reverse engineer the Websnippets and/or any and all parts thereof, make any copies of the Websnippets or parts thereof;
(b) provide or make the Websnippets or any parts thereof (including any methods or concepts utilized or expressed therein) available to any person except to its employees on a “need to know” basis;
(c) create derivative work using the Websnippets;
(d) remove any trademark, trade-name, proprietary information, copyrights or trade secret from the Websnippets or copies thereof;
(e) use the Websnippets for any other purpose than permitted in this clause 2, including for illegal activities; and
(f) assign, delegate, sublicense, pledge or otherwise transfer this license, or any of its rights or obligations hereunder to any third party.
The above will apply to the maximum extent permitted by applicable law.
2. Websnippets
2.1 Giftomatic will deliver, maintain and optimize the Websnippets to ensure optimum customer journey and revenue potential for both Parties. Giftomatic may release new versions or issue a new release of the Websnippets from time to time, together with any available (user) documentation. Insofar required, Partner shall implement (or assist with the implementation of) such new version or release upon becoming available.
2.2 Giftomatic will use best effort to connect a maximum number of Giftomatic Affiliates to the Websnippets. Partner acknowledges that the number of Giftomatic Affiliates will be subject to change and cannot be guaranteed in any way by Giftomatic.
2.3 If Partner desires specific technical changes, optimizations, or specific modifications of the Websnippets, it may request Giftomatic to prepare a commercial proposal for such changes.
2.4 In the event of implementation of new UX by Partner during the term of this Agreement, Parties will mutually agree on the consequences thereof for the implementation of the Websnippets and / or this Agreement.
3. Commissions and reporting
3.1 Only Commissions that are paid to Giftomatic, will be paid by Giftomatic to Partner.
3.2 After 3 months following the end of a certain calendar month, Giftomatic will perform a final check on all Commissions to check the status of all commissions that were “pending” at the time the first report was created. Giftomatic will add the approved Commissions to the report and the payment of the new month.
3.3 Revenue reports will be provided by Giftomatic monthly in arrears, as from the first month following the Effective Date. The monthly report of a particular month will be sent at the latest on the last day of the following month.
3.4 Revenue reports will be detailing:
(a) Commissions for Partner that have been generated that month;
(b) Total amount that Partner will receive from Giftomatic.
4. Exclusivity
4.1. Partner and its subsidiaries will not (and shall procure that its group companies and/or affiliates will not) directly or indirectly develop, create or implement tools similar to Websnippets or affiliate links on their Digital Assets during the term of this Agreement.
4.2. In case Partner breaches its obligations in clause 4.1, it shall, without further notice of default being required, forfeit a penalty to Giftomatic, compensating 12 months of missed commissions, to be calculated by taking the average revenue of the previous 12 months (or in case of a breach within 12 months, the average revenue for those months), without prejudice to Giftomatic’s right to claim the actual damages suffered instead, should these damages exceed the stipulated penalty. In addition, this penalty is without prejudice to Giftomatic’s right to demand compliance (in accordance with article 6:92 DCC).
5. Intelectual property rights
5.1. This Agreement shall in no way result in a transfer of Intellectual Property Rights from one Party to the other. The Parties agree and acknowledge that all rights, including Intellectual Property Rights, in title to and ownership of the other Party’s hardware, software, documentation, and materials, shall remain with that Party or its licensors. All Websnippets, including the concepts, designs, technology and connected product feeds are the exclusive property of Giftomatic and will not be copied or duplicated by Partner without prior written permission of Giftomatic.
5.2. Partner grants Giftomatic a limited, a non-exclusive, non-transferable, license to use its logos and brand names for marketing purposes only, and to mention Partner and related digital assets as a customer.
6. Personal Data
6.1. Parties shall take the necessary steps to comply with applicable law on the protection of personal data if they process personal data such as entering into a processing agreement if either Party will process personal data on behalf of the other Party.
6.2. Partner shall provide information on the use of Websnippets in its privacy statement, including the involvement of Giftomatic.
7. Confidentiallity
7.1 Each of the Parties will at all times use all reasonable efforts, which shall mean, at a minimum, handling with the same care and degree of confidentiality with which its own comparable documents, this agreement including financials such as revenue share, data and materials are managed, or at least the care customary to the industry to keep Confidential Information confidential.
7.2 None of the Parties will disclose Confidential Information without specific prior written consent of the other Party, except to the extent expressly permitted in this Agreement or to the extent necessary for the exercise of that Party’s rights or obligations under this Agreement.
7.3 This clause will not prevent the disclosure of any Confidential Information relating to the Agreement if such Confidential Information:
(a) is reasonably disclosed to a Party’s affiliates, employees, agents, advisors or consultants with a need to know such information for the furtherance of this Agreement provided that the Party disclosing the information takes all steps that are commercially practicable to preserve the confidentiality of the information (including ensuring that the recipient is bound by similar obligations with respect to the Confidential Information); or
(b) was in the possession of, or was known, to such Party prior to its receipt from the other Party without breach of any obligation of confidentiality by a third party, and which can be demonstrated by such Party; or
(c) is independently developed by such Party without utilizing the Confidential Information, and which can be demonstrated by such Party; or
(d) is in or comes into the public domain otherwise than as a result of its wrongful disclosure by such Party.
This clause supplements and does not supersede any existing non-disclosure or confidentiality agreements between the Parties and will survive the termination of the Agreement of the Partner enrollment form. For the avoidance of doubt, Giftomatic does not have access to any gift card data during the use of the Websnippets.
7.4 Partner has the right to request an audit to validate the content of the Giftomatic reports.
(a) The audit will be performed by an external party;
(b) Partner will bear costs for the audit;
(c) The audit refers to click-, user-, and commission data that are directly related to the partnership;
(d) Partner shall notify Giftomatic 20 days in advance before an audit takes place;
(e) In case an underpayment is determined, Giftomatic will pay the difference including 5% compensation and the costs for the audit, within 60 days.
8. Compliance
Each Party shall be responsible for obtaining and maintaining all licenses, permits and approvals which are necessary to perform its obligations or enjoy its rights under this Agreement.
9. Liability
9.1 Without prejudice to clause 4.1, the total aggregate contractual and non-contractual liability of each Party under, or in connection, with this Agreement, shall be limited to the sum of €10,000 (ten thousand euros).
9.2 Neither Party shall be liable to the other Party for any indirect or consequential loss, expense or damage (including indirect loss of profit, loss of data, loss of business, contracts, anticipated savings, goodwill or reputation).
9.3 Nothing in this clause shall operate to limit or exclude either Party’s liability to the other for:
(a) damage resulting of intentional or deliberate recklessness on the part of a Party;
(b) damage resulting from an infringement of Giftomatic’s Intellectual Property Rights by Partner, or a violation by Partner of the license granted to it under this Agreement
9.4 Any liability which cannot be limited or excluded by the applicable law.
9.5 No limitation is applied in case of an underpayment as described in 7.4 (e)
10. Governing law and Jurisdiction
10.1 The Agreement between the partner and giftomatic is governed by, and construed in all respects in accordance with, the laws of the Netherlands and any Proceedings are subject to the exclusive jurisdiction of the courts of Amsterdam.
10.2 Parties irrevocably submits to the jurisdiction of the same and waives any objection to any Proceedings in such courts on the grounds of venue or on the grounds that the Proceedings have been brought in an inconvenient forum.
11. Websnippets
The Websnippets are functional, responsive and will work in all modern and common web browsers. The highest possible coverage is in the interest of both Giftomatic and Partner.
The Websnippets consist of the following tools:
| Product Search Engine | The Giftomatic product search engine includes products from Giftomatic Affiliates. Product information is updated every 24 hours. The Product search engine is hosted by Giftomatic and included (iframe/embedded) in the Digital Asset(s). The product search engine includes products of Giftomatic Affiliates. A click on one of the products will lead the visitor to the webshop of the Giftomatic Affiliate. |
| Link Optimizer | The Giftomatic link optimizer automatically redirects outgoing clicks on the Digital Asset(s) via the Giftomatic tracking link. The link optimizer automatically detects new outgoing clicks and Giftomatic updates tracking links as soon as commercially reasonably possible. Partner confirms to not change outgoing links into other affiliate links, unless Giftomatic cannot provide a working tracking link for a specific Giftomatic Affiliate for 30 consecutive days. Giftomatic has the first right to provide tracking links for existing, former and new redemption partners of Partner and will be used by Partner. |
| Recommender | The Giftomatic recommender shows one or more products from the webshop of a Giftomatic Affiliate. A click on one of the products will lead the visitor to the webshop of the Giftomatic Affiliate. |
| Unwrap pages | A service page for every specific gift card that enhances the customer experience and helps the card holder finding a product and shows the relevant gift card terms |
During the partnership, Giftomatic will make suggestions to optimize the use of each of the Websnippet tools on the Digital Assets such as new positions, design changes, further touchpoints to drive traffic to the Giftomatic tools that are implemented on the Digital Asset(s).
Design, menu item names, URLs and content is subject to change and to be determined by the Parties jointly during the partnership.
Position Product Search Engine on digital assets: The Product Search Engine will get a dedicated webpage plus a main menu item as a touchpoint.
Position Link Optimizer on digital assets: The Link optimizer will be integrated in the digital assets of Partner in the <head> of every page.
Position Recommender on digital assets: The Recommender will be integrated in all qualified redemption partner pages to show retailer specific products and in emails that are sent to card holders.
Position unwrap pages: The unwrap pages will be shown at various clickout touchpoints, for instance in emails and pageviews that are shown after a gift card swap.
12. Service Level Agreement (SLA)
The Websnippets will be provided on an “as is” and “as available” basis, without any warranties that the Websnippets are free of errors, fit for a particular purpose, non-infringing or are provided without interruptions. Partner will remain the main point of contact to its (potential) customers, including visitors of the relevant Digital Asset(s).
Giftomatic will deliver:
- 24/7 monitoring of Websnippet functionalities
- 99.5% uptime
- 2nd line customer service to Partner (by email) in case of customer queries with regards to issues or queries directly relating to or resulting from the Websnippets, provided that Partner has implemented the latest update or release of the Websnippets.
Giftomatic will use best effort to resolve issues with the Websnippets, within the target resolution times stated in this SLA. A workaround is deemed to be resolution. Upon written notification (including by email) of issues to Giftomatic, issues will be classified as low, medium or high priority by Giftomatic.
High priority
Target resolution time: maximum of 3 business days after the day of receipt of the issue.
Examples of high priority issues:
– Downtime of the product or website (resulting from the Websnippets, not including scheduled downtime)
– high impact issues or errors that are experienced by > 50% of website visitors
– Interface issues that are experienced by > 50% of website visitors
Medium priority
Target resolution time: within 10 business days after the day of receipt of the issue.
Examples of medium issues:
– Material issues with product, webshop and/or links or the product feed
– Material issues that are experienced by 10% – 49% of website visitors
– Interface issues that are experienced by 10% – 49% of website visitors
Low priority
Target resolution time: within 30 business days after the date of receipt of the issue and only if reasonable and commercially acceptable. Examples of low priority issues:
– Material issues that are experienced by 10% or less of website visitors (with a minimum of 1%).
– Browser or addon specific issues that are experienced by less than 5% of website visitors (with a minimum of 1%).
