CREAM MERCHANT AGREEMENT

 

CREAM MERCHANT AGREEMENT

 

These Merchant Terms and Conditions (the “Terms and Conditions”) govern and are incorporated into the Cream Merchant Agreement between Cream and Merchant (collectively, the “Agreement”). We may amend the terms of the Agreement from time to time. By continuing to access the Agreement after those revisions become effective, Merchant agrees to be bound by any such amendments. This Agreement prevails over the Terms of Sale.

 

Definitions

 

“PERK” means the deal, offer, or voucher.

“MERCHANT OFFERING” means the goods and/or services to be provided by the Merchant, stated on the Perk as presented by Cream. Values determined by Merchant.

“FULL OFFER VALUE” means the Amount Paid plus the Promotional Value.

“AMOUNT PAID” means the amount a purchaser pays for each Perk.

“PROMOTIONAL VALUE” means the Full Offer Value less the Amount Paid.

“PROMOTIONAL VALUE EXPIRATION DATE” means the date the Perk will no longer be offered on the Cream App (“Expiration Date”). 

“FINE PRINT” means the conditions and restrictions concerning Perk redemption and the Merchant Offering stated on the Cream App and Perk.

  • Perk Program
  1. Cream shall promote and sell Perks on Merchant’s behalf through any platform. 
  2. Cream may audit Merchant response times and the quality of Merchant’s services. 
  3. Merchants who provide massage services shall ensure that its staff and/or contractors meet all applicable licensing requirements.
  4. Merchant shall honor the Perks for the Merchant Offering through the Expiration Date. 
  5. If applicable, and if a purchaser redeems a Perk for less than the Amount Paid, the Merchant shall handle any unredeemed value as required by applicable law.
  6. Merchant agrees to strictly adhere to the terms on the Perk, including the Fine Print. Unless otherwise disclosed. Merchant shall impose the same terms that it imposes on its non-Cream customers.

 

  1. Merchant shall fully honor the Perk for Full Offer so long as an appointment or a reservation is made to redeem a Perk before the Expiration Date. 
  2. Merchant is responsible for all customer service and loyalty programs in connection with the Merchant Offering.  

  • Payment
  1. Cream shall be compensated from the amount retained from the proceeds of the Merchant Offering. 
  2. Merchant will only offer Perk value through the Cream app and shall comply with any of its obligations to Third-Party Payors.
  3. It is Merchant’s responsibility to determine, collect, report and remit the correct tax to the appropriate tax authority. 
  4. Cream shall apply the applicable Transaction Tax to its income pursuant this Agreement.

 

  1. Term and Termination

This Agreement will be effective until terminated by either party (“Term”). Cream may terminate this Agreement, at any time for any reason, upon written notice to Merchant. Merchant may terminate this Agreement upon seven (7) business days prior written notice to Cream. Termination of this Agreement will not affect Merchant’s obligation to redeem any Perk. 

  • Marketing

Cream may communicate with Merchant about products, promotions, and other services that may be of interest to Merchant. Cream may also solicit Merchant’s opinion for market research purposes.

  • Intellectual Property Rights
  1. Merchant grants to Cream a non-exclusive, royalty free, license and right to Merchant’s and any Third Party’s intellectual property and related material, including any moral rights, and rights in any patent, copyright, trademark (the “Intellectual Property”). Any use of the Merchant or Third-Party IP as contemplated in this Agreement is within Cream’s sole discretion.

 

  1. All Intellectual Property that is owned by either party under this Agreement, shall and will be the sole property of the Party. 
  2. Either Party SHALL NOT use the Intellectual Property of the other Party for any purpose other than that contracted for in this Agreement except with the written consent of the other Party. Either Party will be responsible for all damages resulting from the unauthorized use of the Intellectual Property of the other Party.

  • Representations and Warranties

Merchant represents and warrants that: 

  • Merchant has the right, power and authority to enter into this Agreement; 
  • Merchant, if required by applicable law, is registered for sales in all jurisdictions where Merchant’s goods will be provided;
  • the Perk will be available immediately for redemption through the Expiration Date (i.e., a number of goods and/or services sufficient to fulfill its redemption obligations); 
  • the Perk, the terms and conditions of the Perk, any discounts and promotions thereunder do not and will not violate any law; 
  •  the Merchant’s redemption of the Perk will result in the bona fide provision of goods and/or services by Merchant to the purchaser;
  • Merchant owns all interest in and to the Merchant IP and has licensing rights in (with the right to sublicense to Cream) the Third Party IP, and has the right to grant the License stated in this Agreement; 
  • the Merchant IP and Third Party IP does not include any material that violates any law; and 
  • the Merchant Offering is: (i) free from defects in workmanship, materials and design, (ii) merchantable and suitable for the purposes, and (iii) genuine, bona fide products, as described herein and does not violate the rights of any third party.


  • Indemnification

To the extent allowed under applicable law, Merchant agrees to indemnify and hold harmless Cream, and its respective affiliates, officers, agents, employees, and permitted successors and assigns against any and all claims, losses, damages, liabilities, penalties, punitive damages, expenses, reasonable legal fees and costs of any kind or amount whatsoever, which result from or arise out of any act or omission of the indemnifying party, its respective affiliates, officers, agents, employees, and permitted successors and assigns that occurs in connection with this Agreement. This indemnification will survive the termination of this Agreement.

  • Confidentiality

Merchant agrees not to disclose, divulge, reveal, report for any purpose, the terms of this Agreement, unless required by law.

  • Limitation of Liability

EXCEPT FOR MERCHANT’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. THIS LIMITATION OF LIABILITY APPLIES TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF ANY LIMITED REMEDY. 

  • Dispute Resolution
  • All disputes arising under this agreement shall be governed by and interpreted in accordance with the laws of Wyoming, without regard to principles of conflict of laws. The parties to this agreement will submit all disputes arising under this agreement to arbitration in Casper, Wyoming, before a single arbitrator of the American Arbitration Association (“AAA”). The arbitrator shall be selected by application of the rules of the AAA, or by mutual agreement of the parties. No party to this agreement will challenge the jurisdiction or venue provisions as provided in this section. Nothing contained herein shall prevent the party from obtaining an injunction. 
  • Class Action Waiver

 EACH PARTY WAIVES THE RIGHT TO PARTICIPATE IN A CLASS, COLLECTIVE, OR OTHER JOINT ACTION WITH RESPECT TO ANY CLAIMS UNDER THIS AGREEMENT. 

  • No Jury Trial

MERCHANT AND Cream AGREE TO WAIVE ANY RIGHT TO A TRIAL BY JURY.

  • Attorneys’ Fees

In the event Cream is the prevailing party in any Dispute, subject to any exceptions in this Section 10, Merchant shall pay to Cream all reasonable attorneys’ fees and costs incurred by Cream in connection with any Dispute.

  • Miscellaneous
  1. The parties are independent contractors. Nothing in this Agreement is to be construed to create a joint venture, partnership, franchise, or an agency relationship between the parties. Neither party has the authority, without the other party’s prior written approval, to bind or commit the other in any way.
  2. This Agreement constitutes the entire agreement between the parties relating to its subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter.
  3. If any provision of this Agreement should be held to be invalid or unenforceable, the validity and enforceability of the remaining provisions of this Agreement are not affected.
  4. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS NOR IMPLIED. INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. CREAM DOES NOT WARRANT OR GUARANTEE THAT THE SERVICES OFFERED ON OR THROUGH THE CREAM APP WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE Perks ARE ERROR-FREE, OR THAT ANY MERCHANT OFFERING WILL RESULT IN ANY REVENUE OR PROFIT FOR MERCHANT.

 

IN WITNESS WHEREOF, the undersigned have executed this Subscription Agreement as of the date first written above.

 

COMPANY:

 

_______________________________________

Signature

 

_______________________________________

Name

 

_______________________________________

Dated

 

MERCHANT:

 

_______________________________________

Signature

 

_______________________________________

Name

 

_______________________________________

Title

 

_______________________________________

Company

 

_______________________________________

Promotional Value Expiration Date

 

______________________________________________________

Merchant Offering

 

__________________________________________________________________________

Perk Description:

 

___________________________________________________________________________Fine Print

 

_______________________________________

Dated

 

 

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