MERCHANT TERMS AND CONDITIONS (the "Agreement")
A. Mighty Deals Limited, trading as Mighty Deals, whose registered address is 3000 Cathedral Hill, Guildford, GU2 7YB (hereinafter referred to as the "Company", "we", "us", "our")
B. The company or individual looking to promote, advertise and sell goods and/or services though the Mighty Deals website (hereinafter referred to as the "Merchant", "you", "your")
(i) The Company offers the websites www.mightydeals.co.uk, www.mightydeal.co.uk, its related domains and other distribution channels controlled or operated by the Company to enable the Merchant to promote, advertise and sell goods and/or services (the Site")
(ii) The Parties have agreed that the Merchant shall promote, advertise and sell goods and/or services via the Site in accordance with and subject to the terms and conditions set out herein.
It is agreed:
1. The Company as web publisher will publish information received by it from the Merchant with respect to discounted goods and/or services, or discount coupons exchangeable for goods and/or services (the "Deal").
2. The Merchant understands and acknowledges that the Company shall merely assist to facilitate the sale and purchase of the Deal, and shall not be party to any commercial transaction. Accordingly the Merchant under its sole liability shall engage with the Site users (hereinafter "Customers" or "Users") to offer for sale and transact any Deal and shall accordingly assume all obligations resulting from a Deal.
3. Company shall maintain and manage the Site and shall promote the Deal on the Site in accordance with the text, materials, sale conditions, terms, restrictions, limitations, cancellation policies, product information and any other terms provided by the Merchant ("Deal Information"). For the avoidance of doubt, Deal Information shall include any taxes, postage and packaging, service charges and any other costs that are associated with fulfilment of the Deal and not included in overall cost of the Deal. Prior to the Deal being offered to the public, the Company will use reasonable endeavours to ensure that any Promotional Materials (as defined in section 4) relating to the Deal includes the relevant Deal Information.
4. The Company will create a draft version of the artwork to be used to market and promote the Deal, and will include the Deal Information, the Voucher Code (where appropriate) and other specifications ("Promotional Material"). The Company will submit such draft to the Merchant for written approval. The Merchant shall be solely responsible for checking the details and the accuracy of the Promotional Material. The Merchant shall use best efforts to provide responses within 2 business days and shall not unreasonably delay or deny approvals. In the event any Promotional Materials need amending, the Merchant shall use best efforts to suggest appropriate modifications. Upon Merchant’s written approval of the Promotional Materials the Deal will be offered to the public.
5. Company will promote and market the Deal as it deems appropriate, including through e-mail marketing and posting the Promotional Materials on the Site or any other distribution or promotional channel owned, controlled or operated by Company. Company shall also request its subsidiaries, and carefully selected affiliates and third party business partners promote the Deal.
6. Prior to the Deal being offered to the public the Company shall provide to Merchant a document setting out the commercial terms and details, as between the parties with respect to the Deal ("Particular Conditions") for countersignature by Merchant.
7. The Company shall provide an on-line merchant payment facility ("World Pay") to enable the Customers’ bank and credit card details to be accessed in a secure on-line web transaction. The Company shall be responsible for communicating to the Customer that a transaction has been processed by World Pay and shall make available to the Customer a unique redemption code or ID and other evidence or information to be used to redeem the Deal ("Redemption Code or ID").
8. Company shall provide a secure web account interface to facilitate the Merchant’s use of various services relating to the Deal and to access an online reporting system of Deal sales and redemptions ("Account"). The Account may also report when a Deal has been processed and Customer payment has been received by World Pay and provide Merchant with relevant customer information, including but not limited to, full name, postal address, contact phone number and Redemption Codes or ID.
9. You are responsible for maintaining the confidentiality of your password, and are responsible for all activities that occur under your Account. You agree to immediately notify us of any unauthorised use of your password or account or any other breach of security related to the Site. We will not be liable for any loss or damage arising from your failure to comply with this Section 9. When using the Account you may be required to accept and comply with certain additional terms, policies and procedures.
10. Merchant’s responsibilities: You shall:
a) reserve and make available to Customers the goods and/or services according to the quantity, price, sale conditions and other terms published in the Promotional Materials.
b) perform delivery of all goods sold through the Site with the greatest care, speed and efficiency, and in all cases, in accordance with the terms indicated in the Promotional Materials;
c) render the Services in accordance with the term indicated in the Promotions Materials;
d) d) You shall correctly account to HMRC for any VAT due upon redemption of the voucher as provided for by the terms of Schedule 10A, VAT Act 1994.Please see appendix1 for more details; and
e) comply with all applicable laws, regulations or orders in relation to performing its duties or exercising its rights, including laws specific to the market, data protection and privacy laws, as well as any laws regarding distance selling, advertising, consumer protection, unfair trading regulations and competition and any other applicable laws at any time.
11. You warrant the merchantable condition of the goods and/or services, the lawfulness of their saleability and the discounted prices at which they are offered.
12. You are responsible and liable for all Deal Information, Promotional Material and any other applicable Deal terms and for the Company's or any Customer's use or reliance on the foregoing.
13. You may not: (a) offer to sell any goods and/or services on terms or in a manner that is prohibited by law from being offered or advertised; (b) include any content that violates or infringes in any way upon the rights of others; or (c) include any material that is unlawful, threatening, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane or otherwise objectionable, which encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law.
14. When redeeming Redemption Code or ID, you shall: (a) honor the Redemption Code or ID during the time period specified in the Promotional Material and as required under applicable law; (b) handle all customer service enquiries in connection with the redemption and use of the Redemption Code or ID; (c) honor any Redemption Code or ID presented by an individual, even if that individual was not the Customer, unless (i) otherwise specified in the Promotional Material, or (ii) you reasonably believe that individual obtained the Redemption Code or ID in an unauthorised or illegal manner, in which case you shall immediately contact us; and (d) comply with the terms stated on the Promotional Material without modification and without imposing any restrictions or additional charges or penalties that are not expressly stated. You shall ensure all restrictions, limitations, cancellation policies and contractual arrangements applicable to the Deal are stated in the Promotional Materials; the Company shall have no liability for your failure to do so.
18. Payment: The Company will for each redeemed Deal collect the fee agreed between the Parties from Customers. The Merchant will be paid the balance of the redeemed sale, less the Company’s fee, which shall be invoiced by the Company to the Merchant together with the addition of any applicable VAT. The invoice should be issued no sooner than 10 days after the sale to allow time for the customer to request a refund in accordance with our refund policy. Merchant shall be obligated to provide evidence of all Deal`s redeemed by Customers in the month(s) pertaining to the invoice.
19. Payments will be made by BACs transfer direct to the Merchant’s nominated Bank Account.
20. The Merchant acknowledges that the Company retains the right, in its sole discretion, to immediately halt any transaction, or prevent or restrict the Merchant or Users to access to the Site, or take any other action to restrict access to or availability of or remove any objectionable or unlawful material, inaccurate listings, inappropriately categorised items, unlawful goods or services, or goods or services prohibited for listing on the Site. The Company reserves the right in its absolute discretion, but is under no obligation, to remove, screen or edit any content on Site that may breach these provisions or is otherwise objectionable.
21. The Merchant shall notify the Company immediately if for any reason it becomes aware that it is no longer able to fulfil the Deal.
22. The Merchant shall take diligent steps to ensure the Deals are not made available to, or redeemed by persons under 18 years of age.
23. In coordination with Company, the Merchant is obliged to assist and, where practical to do so, manage any requests for information or claims submitted to the Company by Customers with regard to the Merchant’s Deal or its goods and/or services.
24. The Merchant will comply at all times with all rules, policies and procedures created by Company with respect to the Site, including all website terms; and such forms, policies and procedures shall form part of this Agreement (although in the event of any contradiction, the terms of this Agreement shall take precedence).
25. The Merchant grants Company permission and all necessary rights to reproduce, copy, translate, publish, publicly display and distribute any content, trademark, service marks, copyright material and any other material submitted and/or required for the promotion, advertising, distribution and sale of the goods and/or services on the Site.
26. Customer Data: You acknowledge that we own all data collected by, or on behalf of the Company on the Site, including all information, (including personal information) and data of individuals who may or do purchase Redemption Codes or ID ("Customer Data"). Subject to applicable laws and in accordance with the Company’s policies and procedures, we shall not provide you with access to Customer Data, except: (i) to the extent such specific Customer Data is necessary for you to redeem and/or verify the validity of the Redemption Codes or ID, and, (ii) to the extent that any potential purchaser is advised is advance, that providing or sharing certain information is required to redeem the Redemption Code or ID. You may not use Customer Data for any purpose other than to enable to Customer to redeem the Redemption Code or ID, and receive the goods and/or services.
27. The Merchant shall implement any and all appropriate technical and organisational measures to protect Customer Data against accidental or unlawful destruction or accidental loss, or alteration.
28. Warranty: Merchant represents and warrants (a) its Deal Information,(b) the representations about its goods and/or services, and the redemption process, do not and will not infringe, misappropriate, or otherwise violate any intellectual property right or right of privacy or publicity of any third party; (c) to provide the goods and/or services made available through any Deal in a manner consistent with industry best practices; and (e) it has all rights necessary to grant the licenses set forth in this Agreement.
29. Except as expressly set forth in this Agreement, neither party makes any representations or warranties, express or implied, including without limitation any implied warranty of merchantability, fitness for a particular purpose or non-infringement. Company does not warrant or guarantee that (a) any aspect of the Deal will be error-free; (b) any errors, omissions or misplacements will be corrected, or (c) the Deal will result in any revenue or profit for you. Company makes no representations or warranties, express or implied, regarding the Site, including with respect to its uninterrupted or error-free operation, and/or the accuracy, adequacy, reliability, availability, timeliness, completeness, suitability or other characteristics of the information and materials contained on or presented therein. The Site and other promotion, distribution or redemption methods used or provided and all related information and materials are provided "as is", without any warranty of any kind, and on an "as available" basis.
30. Indemnity: Merchant shall at its sole cost and expense, defend, indemnify and hold Company, its affiliated and related entities, and any of their respective officers, directors, agents and employees, harmless from and against any third party claims, lawsuits, actions, proceedings or investigations (collectively, "Claims") from and against any fees, costs, penalties, damages, losses or expenses (including but not limited to legal fees and costs) (collectively, "Losses") arising out of or relating to any of the following: (a) (i) fraud, willful misconduct, or gross negligence or (ii) breach or alleged breach of this Agreement; (b) any claim relating to tax obligations (including any fines, interest or other additions) arising from the sale and subsequent redemption of a Redemption Code or ID; (c) the goods and/or services provided by you, including but not limited to, any claims for false advertising, injuries, illnesses, damages, or death; (d) any promotional offer pertaining to your goods or services, including your provision of incomplete or inaccurate or information applicable to such good or services; or (e) your Deal Information; and (f) any infringement, misappropriation, or other violation, of any patent, trademark, copyright, publicity, privacy, trade secret, or other right of any third party by you, Deal Information, or the use thereof.
31. Limitation of Liability: Company’s sole and complete liability to you shall be limited to the amount actually paid to you by us pursuant to this Agreement prior to the date the claim arose per Deal. In no event shall Company be liable to you or any third party for any claims relating to the use of your goods and/or services. Any claim arising out of or relating to any Deal must be made within one (1) year of first publication of the Deal and all claims not so made shall be deemed waived by you.
32. To the fullest extent permitted at law, Company shall not be liable to the Merchant for any damages whatsoever, whether direct or indirect, general, special, consequential or incidental loss, loss of revenue or profit irrespective of the theory upon which any claim can be based, including without limitation, breach of contract, breach of warranty, tort (including negligence) or under any statutory implied term arising out of or in connection with this Agreement, the Site, the inability to use the Site or resulting from the goods and/or services offered or transactions entered into through the Site whether or not such damages could be reasonably foreseen.
33. Nothing in this agreement shall exclude or restrict either party’s liability for death or personal injury resulting from its negligence, or for fraud.
34. Confidentiality: Neither party shall without the prior consent of the other disclose, publish or make use for its own purposes any confidential information concerning the other which may come to its knowledge as a result of the discussions leading to this Agreement or anything done pursuant to it, including the terms of this Agreement and any commercial arrangement between the parties PROVIDED THAT this provision shall not apply to the disclosure or publication of any confidential information to any person having a legal right or duty to obtain or require such confidential information in or for the purpose of any legal proceedings or arbitration to which Company or Merchant may be a party or where such confidential information has been disclosed or published to the general public (other than as a result of a previous unauthorised disclosure) and for the avoidance of doubt this Section 33 shall remain in full force and effect notwithstanding the termination if this Agreement howsoever caused.
35. This Agreement, together with any annex incorporated hereto, will enter into force on the day on the Effective Date, and will continue to be in force (i) up to the day on which all the goods are sold and in the case of services, when all services are rendered as detailed in the Particular Conditions or, (ii) in for a period of twelve months ("Term"). Either party may freely terminate this Agreement without reason, by providing to the other party at least one (1) months notice in writing or such time, greater than one (1) month, as agreed between the parties to ensure all existing orders for sale are completed.
36. Company may terminate this Agreement with five days advance written notice for convenience, or immediately for cause if: (a) you fail to redeem or cause the redemption of any Redemption Code or ID to fail for any reason, including but not limited to the sale or dissolution of your business, a violation of or a higher than expected number of purchasers, or (c) you violate any of the material terms of this Agreement or any other terms you have with Company.
37. Survival of Relevant Provisions. Neither the expiration nor termination of this Agreement, nor your suspension or cancellation of any Deal shall in any way affect the rights of a Customer or result in any loss or damage to the Customer. Any sections of this Agreement that are logically intended and required to survive expiration or termination to achieve their intent, shall survive without limitation.
38. Unless expressly provided in this Agreement, no express or implied term of it is enforceable by any third party pursuant to the Contracts (Rights of Third Parties) Act 1999.
39. The parties expressly agree that this agreement will be governed and interpreted in accordance with the Laws of England and Wales. The parties exclusively submit to the Jurisdiction of the Courts of England and Wales, for the resolution of any matter arising from the interpretation, compliance or execution of this agreement and/or its annexes.
40. Confirmation of contract; to avoid customer disappointment and PR issues, Mighty Deals procurement will purchase one voucher which will show as two sold on the website and will refund ourselves within the seven day period.
FACE VALUE VOUCHERS – VAT ACCOUNTING
1) The Company is advised that it is involved here in the issue and supply of Face Value Vouchers, specifically ‘Credit Vouchers’. VAT accounting for businesses involved with vouchers is non-standard and is specifically dealt with at Schedule 10A of the VAT Act 1994. In summary, the law says that the supply of a credit voucher by the Company can be disregarded for VAT purposes provided the voucher is not sold for more than its face value. It then goes on to say that the VAT liability arises only at the time such a voucher is redeemed, at which point the Merchant who is actually supplying the Product becomes accountable for VAT on the full face value of the voucher (always assuming the Product being supplied is actually liable to VAT). Please refer to clause 2 of the Terms and Conditions.
2) For its part, the Company’s role in these matters is restricted to that of a promoter of each Merchant’s goods and services and the subsequent collection and distribution of funds received for each successful Deal (please refer here to clauses (i), (ii) and 3 of the Terms and Conditions). The Company is advised that this activity is subject to standard rated UK VAT where the Merchant in question belongs in the UK. The Company is further advised that there is no ‘supply’ for VAT purposes by the Merchant to the Company and consequently no VAT invoices should be issued by the former to the latter.
3) The above being the case, the Company anticipates that the accounting between the respective parties will be as follows:-
Once a sale is confirmed in the Lead Expert system, you can request settlement from us weekly on a Friday for orders redeemed so far. Based on our statutory refund policy, you can request settlement after 10 days from order of a sale when offers have been redeemed at your end.
On your request for payment document (which should not be a VAT invoice), we require from you a list of:
1. Name of customer
2. Date & time of order
3. Our Unique Deal Reference number
4. Deal order amount, including any postage and packing
For example: If the Deal is for a £20 voucher and the revenue is shared 50/50 then:
1. You would issue us with a £10 request for payment document
2. We then issue you with a service charge invoice, marked ‘paid’, for £8.33 plus £1.67 VAT (£10 total) for the work we have put into selling your product
3. We remit the balance of £10 to you in settlement of your request for payment
4. Assuming the goods or services are liable to full standard rate VAT, you should then record the sale as £20 - £16.66 net and VAT of £3.34
5. You can then offset the £1.67 VAT paid by us against the £3.34 you are accounting for on your VAT return.
So basically we both end up with a net revenue of £8.33 and VAT of £1.67.
We do a weekly payment run on Monday, (next business day if it is a Bank Holiday), where we pay you direct to your bank account using BACS. Please allow 3 working days for your payment to be processed through the banking system. If your bank uses Fast Pay, as we do then payment will be same business day.