WyGO Merchant Terms of Service
Revised October 2020
IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS, IN WHICH CASE THE TERM “MERCHANT” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
YOUR USE OF THE SITE, THE SERVICE, CLICKING A BOX INDICATING ACCEPTANCE OR EXECUTING AN ORDER FORM OR ADDENDUM THAT REFERENCES THESE TERMS CONSTITUTES YOUR AGREEMENT TO FOLLOW AND BE BOUND BY THESE TERMS AND ARE A LEGALLY BINDING AGREEMENT BETWEEN YOU AND WYGO.
In these Terms of Service:
“WyGO,” means WyGO, LLC and its, subsidiaries, affiliates, directors, officers, employees and agents. We also refer to WyGO as “we,” “us” and “our.”
“You” or “your” means any user of the Service or the company identified within the WyGO sign-up process.
“Terms” means these Terms of Service and all other terms and policies posted by WyGO on the site being www.wygoshop.com (the “Site”) and any updates by WyGO to these Terms of service and those terms and policies.
“Content,” means merchandise information, product descriptions, reviews, comments, messages, reviews, communications, feedback, submissions, suggestions, questions, and other information, data, content, and materials (including page headers, images, text, illustrations, formats, logos, hashtags, designs, icons, photographs, software programs, music clips or downloads, video clips, and written and other materials.)
“Customer(s)” means the retail purchaser of Your Products and/or Merchant Services via the Marketplace or WyGO App.
“Marketplace” means the Customer facing website or mobile application through which You offer Products and Merchant Service for retail sale being www.wygoshop.com or the WyGO App.
“WyGO App” means the WyGO created and managed mobile application through which You offer Products and Merchant Services known as WyGO Marketplace.
“Products” means any products offered by You to Customers through the Marketplace and includes alcoholic products.
“Merchant Services” means any services offered by You to Customers through the Marketplace.
“Services” means the technology and transportation services that we make available to You to the facilitate the marketing, sale and fulfillment of orders for Products and Merchant Services.
Upon acceptance of these Terms, You may request access to the Marketplace, WyGO App or other technology interface for You to access and use the Services.
You may access the Site to sell and deliver Products and Merchant Service via the Marketplace and WyGO App with the following delivery options:
DELIVERY: Customers access and request on-demand delivery services provided by us.
CUSTOMER PICKUP: Customers pick-up the ordered Product or Merchant Service at Your Location (i.e., without the use of a Delivery Person).
MERCHANT DELIVERY: Your Products and Merchant Services are presented to Customers on the Marketplace where You provide the delivery services.
WyGO may provide You with a separate and additional electronic storefront within the WyGO App or Marketplace through which You may sell Products and Merchant Services.
Subject to these Terms, WyGO will provide Services to You which provide access to the Site in order for You to offer Products and Merchant Services for sale on the Marketplace. Services are provided strictly for Your use. You agree, authorize and acknowledge that WyGO may respond to Customer complaints about Products and Marketplace Services. WyGO will, at all times, retain sole and absolute control over the Marketplace and WyGO App, including with respect to: Customer personalization or customization of the Marketplace and WyGO App, including, display, prioritization, Customer experience, the search capability and search results, fees charged to Customers for the delivery services, and modifying any feature or functionality made available through the Marketplace and WyGO App.
You will make Products and Merchant Services available for purchase through the Marketplace and WyGO App during its normal business hours and ensure the Products and Merchant Services offerings are accurate. You will prepare, handle , store, label and package all Products and Merchant Services in accordance with applicable laws and regulations, including without limitation all laws, rules and regulations governing time or temperature controls required for food safety (“Food Safety Standards”) and, if applicable, all applicable laws, rules, and regulations for the handling and labeling of Alcohol Products and Merchant Services (“Alcohol Safety Standards”). You will determine any quality, portion, size, ingredient or other criteria that apply to Products and Merchant Services (“Criteria”) and You are responsible for ensuring that all Products and Merchant Services meet the applicable Criteria. If You fail to prepare or supply Products and Merchant Services in accordance with Food or Alcohol Safety Standards or if any Product or Merchant Service fails to meet the Criteria (each, a “Substandard Product”), WyGO may, in its sole discretion, remove such Product from the Marketplace and WyGO App. You represent and warrant that all nutritional information for Products, including calorie count or allergen information, that is made available through the Marketplace and WyGO App is, and at all times will remain, accurate. In addition, You will ensure that the contents of its menu includes each Products Criteria (including any notifications about ingredients, nutritional information, allergen information, alcoholic content (if applicable), etc.) are accurate and comply with all applicable laws and regulations.
You acknowledge and agree that at no time does WyGO take title to any Product and You are solely responsible for all Customer refunds for Substandard Products and Merchant Services or other related issues, including any costs associated with retrieving any such Substandard Products or otherwise unsatisfactory Product(s). WyGO may, in its sole discretion, deduct reimbursement costs from the payment WyGO remits to You in accordance with this Section. To the extent required by applicable law, and only for the purpose of the expedited provision of Products and Merchant Services, Products and Merchant Services are sold to Customers under Your retail and food delivery license privileges.
In connection with the access to and use of the Marketplace and WyGO App, You will not, directly or indirectly: (a) reverse engineer or attempt to discover any source code or underlying ideas or algorithms used to provide the Marketplace and WyGO App (except to the extent applicable law prohibits reverse engineering restrictions); (b) provide, lease, lend, disclose, or otherwise use or allow others to use, in each case, for the direct benefit of any third party, the Marketplace and WyGO App (except as otherwise authorized by WyGO); or (c) possess or use, or allow the transfer, transmission, export, or re-export of any software or portion thereof in violation of any export control laws or regulations administered by the U.S. Commerce Department, U.S. Treasury Department’s Office of Foreign Assets Control, or any other government agency. You will not (and will not allow any third party to) use the Marketplace and WyGO App or any other transactional, operational, performance or other data or information that is related to the sale of Products and Merchant Services to Customers through the Marketplace and WyGO App to directly or indirectly compete with WyGO or the Marketplace and WyGO App.
The following restricted Products and Merchant Services may not be featured or sold via the Marketplace and WyGO App: animals, illegal goods or services, dangerous goods, e.g., weapons. Explosive, etc., stolen goods, goods containing endangered species or any goods or service that You do not have permission to offer. WyGO may, for any reason, remove from or otherwise restrict or limit your ability to post goods and service on the Marketplace or WyGO App.
You shall provide WyGO current and accurate Location information throughout the Term of this Agreement.
For the sale of Products via Customer Pickup and Merchant Delivery, unless otherwise selected by You, You agree to allow Customers to provide gratuities through the WyGO App. WyGO shall remit to You the full value of any gratuities provided by Customers. It is the sole responsibility of the You to comply with all applicable laws (including tax, gratuity, social security and employment laws where applicable) regarding the distribution of any gratuities.
Fees and Taxes
For each Product sold by You via the Marketplace and WyGO App, You will pay WyGO as follows: the Price (as defined below) of all Products and Merchant Services that You sell via the Marketplace and WyGO App (excluding any Sales Tax collected on Your behalf) multiplied by the applicable fee percentage for the Delivery Method used to deliver each such Product or Service Rate (“Fee”). The Fee does not include any applicable taxes. WyGO will remit to You the total Price collected for all Products and Merchant Services You sell via the Marketplace and WyGO App (including any taxes collected on its behalf) less: (a) the applicable retained Fee; and (b) any refunds given to Customers (such final remitted amount being “Marketplace Revenue”). All Marketplace Revenue that is duly owed You will be remitted within fourteen (14) business days of the sale of the Product or Member Service. Subject to the foregoing, WyGO will typically make such payment on a weekly basis.
Unless otherwise agreed to by the parties or modified by requirement of applicable laws or regulations, the Fee is calculated as follows:
DELIVERY: For each Product sold via the Marketplace or WyGO App, which WyGO delivers to the Customer WyGO will charge You a fee percentage of 17%;
CUSTOMER PICKUP: For each Product sold via the Marketplace or WyGO App, which the Customer picks up at your store WyGO will charge You a fee percentage of 17%;
MERCHANT DELIVERY: For each Product sold via the Marketplace or WyGO App, which You deliver to the Customer, WyGO will charge You a fee percentage of ___%;
SERVICE RATE: For each Merchant Service sold via the Marketplace or WyGO App, WyGO will charge You a fee of ____%.
If required by applicable law or regulation, WyGO may adjust the Fee. All Fees will be paid in U.S. Dollars. You authorize WyGO to deduct the Fee from the payment WyGO collects on Your behalf or from other Merchant Revenue. If Your account fall into arrears, WyGO may suspend Your ability to make Products and Merchant Services available for purchase by Customers through the Marketplace and WyGO App. If you are paid for a Product or Member Service, you are responsible for the Fee even if a WyGO is unable to complete the delivery.
You will pay to WyGO a fee of $7500 per location one time (“Activation Fee”) to activate Your use of the Site, the Marketplace and WyGO App. WyGO may deduct the Activation Fee from Your Product and Merchant Service revenue.
The Marketplace and WyGO App connect you with Customers who wish to purchase your Products and Merchant Services. You alone are responsible for determining and setting the retail price for each Product or Merchant Service (the “Price”), and you alone are responsible for collecting and remitting of all applicable taxes required by law.
You authorize WyGO, on your behalf, to collect applicable taxes based on information You provide.
You shall promptly notify WyGO if You believe any charges (or lack of charges) for taxes are erroneous or inaccurate.
Marketplace facilitator laws may require WyGO to collect and remit taxes directly to the taxing authority. If marketplace facilitator laws are applicable to WyGO, the amount of applicable sales tax which WyGO will collect and remit to the taxing authority based on Product or Merchant Service descriptions and other information You provided. A list of jurisdictions in which WyGO will collect and remit taxes to taxing authorities may be found at www.wygoshop.com, as updated from time to time.
Notwithstanding anything to the contrary in this Section, Pricing of Products and Merchant Services available on the Marketplace and WyGO App shall be the same as the pricing You charge in-store or through any platform comparable to the Marketplace or WyGO App.
You are solely responsible for providing WyGO with, and maintaining, accurate bank account information. You appoint WyGO, as the case may be, as Your limited payment collection agent solely for the purpose of: (a) accepting payment of the Retail Price of Products and Merchant Services sold by You via the Marketplace and WyGO App plus any applicable Sales Tax collected on Your behalf, via the payment processing functionality, and (b) remitting the Retail Price plus Sales Tax collected on Your behalf less the retained Fee and, if applicable, any refunds given to Customers on behalf of You (“Merchant Revenue”). Further, You agree that payment collected on its behalf by WyGO will be considered the same as payment made directly to You. You agree that if You do not receive payment from WyGO, Your only recourse will be against WyGO. WyGO may, from time to time, request information from You to confirm Your identity as may be necessary under any applicable compliance obligations before remitting any amounts to You and may refuse to process amounts owed to You if there exists a legal or regulatory risk or potential breach of law or regulation associated with such remittance to You. You agree that WyGO may describe or otherwise reflect the terms of this Section, and any related portions of the applicable Addendum or this MFA, in any terms of service, receipts, disclosures, or notices that may be deemed necessary or prudent. If reasonable, WyGO may adjust the remittance of Merchant Revenue collected on Your behalf for reasons including failure to fulfill an order or making a correction on an Product or Merchant Service. You may identify any disagreements in connection with such adjustments through the Site. WyGO reserve the right to collect any amounts in connection with such adjustments via a deduction from the remittance of Merchant Revenue collected on Your behalf, by debiting the payment method or Your bank account on record, or otherwise seeking reimbursement from You by any lawful collection methods available. You authorize WyGO to use any or all of the above methods to seek such adjustments and reimbursements. In more serious situations, such as fraud (including any charges for Products and Merchant Services that Customers did not place) or Customer complaints, WyGO reserve the right to cancel a payment entirely. By agreeing to these terms, You gives WyGO express consent to adjust payments collected on Your behalf as set forth in this Section.
WyGO may, from time to time, require You to provide certain additional information pertaining to particular Products and Merchant Services or particular sales of Products and Merchant Services for the proper determination, calculation, collection, and remittance of taxes, or to comply with other applicable laws or regulations. You are solely responsible for providing requested additional information to WyGO in a timely manner. If You fail to timely provide additional information, WyGO may temporarily remove affected Products and Merchant Services from the Marketplace and WyGO App.
WyGO may provide You Products and Merchant Services metrics. WyGO will also provide reasonable information regarding any refunds given to Customers, including the date of the transaction, the Product or Merchant Service ordered, the reason for the refund and any other information WyGO is permitted to provide under applicable privacy laws and terms with Customers. WyGO may, if applicable, share Your transactional data, including sales metrics, with Your parent company or franchisor.
Intellectual Property; Marketing and Promotional Activities
Each party, except as limited herein, grants to the other party a limited, non-exclusive and non-transferable license during the Term to use such party’s respective trademarks, service marks, trade names, copyrights, logos, slogans, content, media, materials, identifying symbols and indicia of the applicable party (“Marks”) its website, storefront, the Marketplace and the WyGO App, on a royalty-free basis, in connection with the activities related to this Agreement or any other activities relating to the Marketplace and WyGO App. The owner of the Mark will approve the other party’s use and the form and format of the Mark, except as specifically set forth in this Agreement, neither party will use the other party’s Marks without the prior, express, written consent of the other party. For the avoidance of doubt, however, any use or display of Your Marks by WyGO in connection with making Products and Merchant Services available through the Marketplace and WyGO App in the ordinary course of business will not require any such prior, express, written consent. All goodwill related to the use of a party’s Marks by the other party will inure to the benefit of the owner of such Marks. Except as expressly set forth herein, neither party will be deemed to grant the other party any license or rights under any intellectual property or other proprietary rights. All rights not granted are expressly reserved. You represent and warrant that Your Marks do not infringe, misappropriate, or otherwise violate any third party’s intellectual property or other proprietary rights. WyGO may, for any reason, remove Your Marks from the Marketplace and WyGO App.
WyGO may advertise Your Products and Merchant Services through various promotional activities (e.g., through social media channels, websites, advertisements, or blogs). WyGO (or a party designated by WyGO acting on WyGO’s behalf) may take video and still images for marketing and other efforts related to the Marketplace and WyGO App (“Product Photographs”). You agree that Product Photographs (including all intellectual property rights therein) are and will remain the sole and exclusive property of WyGO. Additionally, You may provide videos, still image or other materials to WyGO (“Merchant Marketing Materials”) for use in connection with the display of Your Products and Merchant Services on the Marketplace and WyGO App or the marketing and promotion of WyGO and the availability of your Products and Merchant Services via the Marketplace and WyGO App. You grant WyGO a non-exclusive, perpetual, fully paid-up and royalty free license to use and display Merchant Marketing Materials in connection with Your Products and Merchant Services and other promotional activities relating to the Marketplace and WyGO App. Without limiting anything in the Agreement, You represent and warrant that the Merchant Marketing Materials do not infringe, misappropriate, or otherwise violate any third party’s intellectual property or other proprietary rights. To the extent that the Merchant Marketing Materials contain any third party materials, You are solely responsible for and will secure any and all rights, licenses, consents and permissions necessary for WyGO to be able to use the Merchant Marketing Materials in accordance with this Section. You agree that WyGO may remove Merchant Marketing Materials from the Marketplace and WyGO App if WyGO receive notice or otherwise reasonably believe that such Merchant Marketing Materials may infringe, misappropriate, or otherwise violate any intellectual property or other proprietary rights.
“Promotion(s)” are discounts available through the Marketplace and WyGO App on Products and Merchant Services. WyGO is authorized to charge Customers for the post-Promotional value of a Product or Merchant Service (not including taxes and applicable fees). WyGO may, at its sole discretion and subject to Marketplace and WyGO App functionality, provide enhanced promotional placement for a Promotion.
Subject to any other guidelines or eligibility criteria for Promotions that WyGO may make available from time to time, WyGO hereby authorizes You to create Promotions that are designed and fulfilled by You (“Merchant Promotion(s)”). Unless otherwise specified by WyGO, You will be solely responsible for defining each Merchant Promotion (within the scope of functionality provided by WyGO) either through the use of the Promotion Tool (as defined below) or through the Promotion Schedule (as defined below).
(1) WyGO authorizes You to use WyGO’s proprietary, automated, self-service tool located within the wygo merchant portal to create Promotions (“Promotion Tool”), subject to such Promotion Tool’s functionality and technical capability. If provided access to the Promotion Tool, You agree to only use and access such Promotion Tool within its functionality and technical capability and shall not circumvent or otherwise exploit the tool in such a way that is not intended.
(2) You may create a Merchant Promotion by completing and providing WyGO with a verbal or written promotion schedule (“Promotion Schedule”). If a verbal Promotion Schedule is provided to WyGO by You, You will have a specified time period to confirm such Promotion Schedule prior to the Promotion being offered and such confirmation will constitute an agreement with WyGO under the terms of this Agreement. To request a form Promotion Schedule, You should contact its customer support representative.
From time to time, WyGO may agree to fund a portion of Your Promotion (each, a “Joint Promotion”). For each such Joint Promotion, the parties shall agree to an applicable written Promotion Schedule setting forth: (a) a description of the Joint Promotion; (b) the obligations of each party in relation to such Joint Promotion, including funding obligations; and (c) any other details regarding the Joint Promotion. Merchant Revenue may be adjusted for Joint Promotion cost sharing as WyGO and You agree.
The parties’ obligations for each Promotion will include the following, but may be expanded upon in an applicable Promotion Schedule.
You will: (a) honor and fulfill the terms of Promotions offered by You (solely or jointly with WyGO) to Customers who have successfully completed their order through the Marketplace and WyGO App; (b) be responsible for the fees associated with the Promotion up to the amount You has agreed to fund for such Promotion; and (c) upon reasonable request, supply WyGO with marketing materials, including but not limited to, photographs, graphics, audio, video, and copy, which WyGO may opt to use in its sole discretion, without payment of any license or other fees and which do not violate the rights of any third party. Notwithstanding anything to the contrary in this Agreement, You acknowledge and agree that You will not be able to terminate the Agreement while a Promotion is live.
WyGO will: (a) honor and fulfill the terms of Promotions offered by WyGO (solely or jointly with You) to Customers who have successfully completed their order through the Marketplace and WyGO App; (b) be responsible for the fees associated with the Promotion up to the amount WyGO has agreed to fund such Promotion; (c) upon reasonable request, supply You with marketing materials, including but not limited to, photographs, graphics, audio, video, and copy, which You shall use to market such Promotion, provided that a Promotion Schedule authorizes You to market such Promotion out of the Marketplace and WyGO App; and (d) use good faith efforts to provide You with reasonable information regarding Promotions, which may include, without limitation, the amount You spent on Promotions and the number of Products and Merchant Services sold in connection with Promotions.
Notwithstanding anything to the contrary in this Agreement, if a Customer successfully applies a Merchant Promotion or Joint Promotion to an order through the Marketplace and WyGO App, Fee is calculated based on the total Retail Value of the order minus the Your funded portion of such Promotion applied to that order.
Unless otherwise agreed, You may not market or otherwise advertise a Promotion outside the Marketplace and WyGO App.
Except as may be expressly set forth in this Agreement or otherwise agreed by the parties in writing, neither party may issue a press release or otherwise refer to the other party in any manner with respect to this Agreement or otherwise, without the prior written consent of such other party.
Proprietary Information; Personal Data; Feedback
“Proprietary Information” means any confidential, proprietary or other non-public information disclosed by or on behalf of one party (“Discloser”) to the other (“Recipient”), whether disclosed verbally, in writing, or by inspection of tangible objects, and includes transactional, operational, performance and other data or information that is related to the sale of Your Products and Merchant Services to Customers through the Marketplace and WyGO App and the terms and conditions of this Agreement. Proprietary Information will not include information that: (a) was previously known to the Recipient without an obligation of confidentiality; (b) was acquired by the Recipient without any obligation of confidentiality from a third party with the right to make such disclosure; or (c) is or becomes publicly available through no fault of the Recipient. Each Recipient agrees that it will not disclose to any third parties other than Representatives, or use in any way other than as necessary to perform this Agreement, the Discloser’s Proprietary Information. Each Recipient will ensure that Proprietary Information will only be made available to Recipient’s affiliates and Recipient’s and Recipient’s affiliates officers, directors, employees and agents who have a need to know such Proprietary Information and who, prior to any disclosure of such Proprietary Information, are bound by written obligations of confidentiality with respect to such Proprietary Information that are no less stringent than those set forth in this Agreement (each, a “Representative”). Recipient will cause its Representatives to comply with the terms of this Agreement and will be solely responsible for any breach of this Agreement by any of its Representatives. Each Recipient will not, and will not authorize others to, remove or deface any notice of copyright, trademark, logo, legend, or other notices of ownership from any originals or copies of the Discloser’s Proprietary Information. The foregoing prohibition on use and disclosure of Proprietary Information will not apply to the extent: (i) the Discloser has authorized such use or disclosure (and You authorize WyGO to disclose the terms of this Agreement to Your franchisees and/or franchisor as applicable in connection with executing contracts that reference this Agreement) and (ii) a Recipient is required to disclose certain Proprietary Information of the Discloser as a matter of law or by order of a court, provided that the Recipient gives the Discloser prior written notice of such obligation to disclose and reasonably assist in obtaining a protective order prior to making such disclosure. Upon expiration or termination of this Agreement and as requested by Discloser, each Recipient will deliver to the Discloser (or destroy at the Discloser’s election) any and all materials or documents containing the Discloser’s Proprietary Information, together with all copies thereof in whatever form.
You agree to use, disclose, store, retain or otherwise process Personal Data solely for the purpose of providing Products and Merchant Services under this Agreement. You will maintain the accuracy and integrity of any Personal Data provided by WyGO and in Your possession, custody or control. You agree to retain Personal Data provided to You by WyGO solely by using the software and tools provided by WyGO. “Personal Data” means any information obtained in connection with this Agreement (a) relating to an identified or identifiable natural person; (b) that can reasonably be used to identify or authenticate an individual, including name, contact information, precise location information, persistent identifiers; and (c) any information that may otherwise be considered “personal data” or “personal information” under the applicable law.
You are responsible for maintaining the integrity of information related to Your access and use of the Site, including any password, login or key information. You represent and warrant that You will not share such information with any third party.
Without limiting any other provision of this Agreement, including any provision in this Section, You will not merge any of the data collected or otherwise obtained in connection with this Agreement, including any Personal Data, with other data collected from any source or otherwise use any of the data collected or otherwise obtained in connection with this Agreement, including any Personal Data, for the purpose of re-identification, targeted marketing, or any other similar purpose.
You acknowledge and agree that, after receiving Product(s) and Merchant Service(s), a Customer may be prompted by the Marketplace and WyGO App to rate such Product(s) and Merchant Service(s) and, at such Customer’s option, to provide comments or feedback related to the Customer’s experience with You and the relevant Product(s) and Merchant Service(s) on the Marketplace and WyGO App (“Customer Feedback”). WyGO reserve the right to use, share, and display Customer Feedback in any manner in connection with the business of WyGO without attribution to or approval of You. You acknowledge that WyGO are distributors (without any obligation to verify) and not publishers of Customer Feedback, provided that WyGO reserve the right to edit or remove comments in the event that such comments include obscenities or other objectionable content, include an individual’s name or other Personal Data, violate any privacy or other applicable laws, or WyGO’s content policies.
Representations and Warranties; Disclaimer
Each party hereby represents and warrants that: (a) it has full power and authority to enter into this Agreement and perform its obligations hereunder; (b) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its origin; (c) it has not entered into, and during the Term will not enter into, any agreement that would prevent it from complying with or performing under this Agreement; (d) it will comply with all applicable laws and regulations in the performance of this Agreement and any activities hereunder (including all applicable consumer protection, data protection and privacy laws and, in the case of You, all applicable Food Safety Standards); and (e) the Marks used or provided by one party to the other pursuant to this Agreement shall not infringe or otherwise violate the intellectual property rights, rights of publicity, or other proprietary rights of any third party. In addition, You further represent and warrant that to the extent You have franchisees who participate in any activities under this Agreement, You will ensure that such franchisees will comply with, and be subject to, the applicable provisions of this Agreement when participating in such activities.
EXCEPT AS SET FORTH HEREIN, EACH PARTY MAKES NO REPRESENTATIONS, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING ITS SERVICES OR PRODUCTS OR ANY PORTION THEREOF, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
Each Party (“Indemnifying Party”) will indemnify, defend and hold harmless the other, its affiliates and respective directors, officers, employees and agents (the “Indemnified Party”) from and against any and all claims, damages, liabilities, causes of action, and losses (including reasonable attorney’s fees) (collectively, “Losses”) with respect to any third party claim arising out of or related to: (a) the negligence or willful misconduct of the Indemnifying Party or its employees or agents in their performance of this Agreement; (b) any claims that, if true, would be a breach of any of the Indemnifying Party’s representations, warranties or covenants in this Agreement; or (c) any claims that the Marks provided by the Indemnifying Party infringe a third party’s intellectual property rights, to the extent the Indemnified Party used such Marks in accordance with the manner approved by the Indemnifying Party. In addition, you will indemnify, defend and hold harmless the WyGO Indemnified Parties from and against any and all Losses with respect to any third party claim arising out of or related to: (i) Your violation or alleged violation of any applicable retail food or other health and safety code, rule or regulation; (ii) Sales Tax applicable to sales of Restaurant Products and Merchant Services in non-Marketplace Facilitator Jurisdictions; (iii) Your failure to provide accurate and complete descriptions or additional information for Restaurant Products and Merchant Services in Marketplace Facilitator Jurisdictions; (iv) Sales Tax applicable to all sales of non-Restaurant Products and Merchant Services (regardless of whether such Products and Merchant Services are sold through a separate Additional Products and Merchant Services Storefront); or (v) any claim related to Your failure to perform obligations contained in these Terms of Service for Alcohol Sales, if applicable, except in the case of each of (i)-(v) above, to the extent such harm was directly caused by the gross negligence or willful misconduct of WyGO or its employees, agents or Delivery People.
We will provide You prompt written notice of any potential claim subject to indemnification hereunder. You will assume the defense of the claim through counsel you designate, however, such counsel must be reasonably acceptable to the Indemnified Party. You will not settle or compromise any claim, or consent to the entry of any judgment, without written consent of the Indemnified Party, which will not be unreasonably withheld. The Indemnified Party will reasonably cooperate with the Indemnifying Party in the defense of a claim, at Indemnifying Party’s expense.
Limits of Liability
EXCEPT FOR LIABILITY ARISING FROM A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, INDEMNIFICATION OBLIGATIONS OR A BREACH OF CONFIDENTIALITY OBLIGATIONS: (A) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CLAIM FOR ANY INDIRECT, WILLFUL, PUNITIVE, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, FOR LOSS OF BUSINESS PROFITS, OR DAMAGES FOR LOSS OF BUSINESS OF MERCHANT OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT, OR LOSS OR INACCURACY OF DATA OF ANY KIND, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) EACH PARTY’S TOTAL CUMULATIVE LIABILITY OF EACH AND EVERY KIND UNDER THIS AGREEMENT WILL NOT EXCEED $100,000. THE FOREGOING LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES WILL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF OTHER REMEDIES.
During the Term and for one (1) year thereafter, each party will maintain Commercial General Liability and, if required by law, Worker’s Compensation insurance. The Commercial General Liability insurance policy limits will be One Million Dollars ($1,000,000) combined single limit per occurrence for bodily injury, death and property damage liability, and Two Million Dollars ($2,000,000) in aggregate. In addition, WyGO agrees to maintain Commercial Automobile Liability insurance with limits of One Million Dollars ($1,000,000) per accident for bodily injury or property damage arising out of the ownership, maintenance or use of owned, hired, and non-owned vehicles. All policies will be written by reputable insurance companies with a Best’s policyholder rating of not less than A-. Such insurance will not be cancelled or materially reduced without thirty (30) days’ prior written notice to the other party. Upon a party’s request, the other party will provide evidence of the insurance required herein. In no event will the limits of any policy be considered as limiting the liability of a party under this Agreement.
Term and Termination
This Agreement will commence on the Effective Date and, unless earlier terminated as provided below, will continue for a period of one (1) year from the Effective Date (“Initial Term”) and will automatically renew for successive one (1) year periods (each, a “Renewal Term” and together with the Initial Term, the “Term”). Either party may terminate this Agreement, in whole or in part, in the event of a material breach by the other party with two (2) days’ prior written notice thereof by the non-breaching party. Either party may terminate this Agreement, in whole or in part, at any time without cause by giving sixty (60) days’ prior written notice of termination to the other party, with the exception being that should either party attempt to terminate this Agreement during an active Promotion period, such termination will not take effect until such Promotion period has ended. Notwithstanding the foregoing, the termination of this Agreement will not relieve either party of its obligations to fulfill any promotional offer that has been redeemed by Customers in accordance with its terms. In addition, WyGO may suspend or otherwise terminate this Agreement as provide herein.
Any and all notices permitted or required to be given hereunder will be sent to the address listed below, or such other address as may be provided, and deemed duly given: (a) upon actual delivery, if delivery is by hand; or (b) one (1) day after being sent by overnight courier, charges prepaid; or (c) by electronic mail to the designated recipient. Notices to WyGO should be provided to WyGO, LLC, Attn: Customer Service 655 W. 13 Mile Road, Madison Heights, MI, 48071, 1-877-WOW-WyGO (877-969-9946), email@example.com. Notices to You should be provided to the address provided by You. The parties agree that all legal documents (including complaints and subpoenas) directed to WyGO will be served on WyGO’s registered agent for service of process. The name and current contact information for the registered agent in each state are available online at www.wygoshop.com
Dispute Resolution and Arbitration
Both You and WyGO agree that this dispute resolution procedure is a condition precedent which must be satisfied prior to initiating any arbitration or filing any claim against the other party.
Any dispute concerning the Products, including quality, expiration date, etc., must be addressed with the pertinent Marketplace Partner.
To the extent you cannot resolve any Dispute through the informal dispute resolution procedure described above, a Dispute shall be resolved through binding individual arbitration. You agree to give up your right to go to court to assert or defend your rights under these Terms and with respect to any Dispute.
You agree that the arbitration shall be conducted by the American Arbitration Association (“AAA”) pursuant to its Consumer Arbitration Rules (“AAA Rules”), as modified by the Arbitration terms. The AAA Rules are available on the AAA’s website www.adr.org, or by calling the AAA at (800) 778-7879. In the event the AAA is unavailable or unwilling to hear the Dispute, the parties shall agree to another arbitration provider. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s applicable rules. If your claim is deemed by the arbitrator to be frivolous or brought in bad faith or with an improper purpose, as measured by the standards of Federal Rule of Civil Procedure 11, then the arbitrator may award WyGO the reimbursement of its costs and arbitration fees against you and/or your counsel.
All arbitrations shall proceed on an individual basis. The arbitrator is empowered to resolve the Dispute with the same remedies available in court, however, any relief must be individualized to you and shall not affect any other customer. You and WyGO waive the right to a trial by jury, to assert or participate in a class action lawsuit or class action arbitration (either as a named-plaintiff or class member), and to assert or participate in any joint or consolidated lawsuit or joint or consolidated arbitration of any kind. If a court decides that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular cause of action, then that cause of action (and only that cause of action) must remain in court and be severed from any arbitration.
With the exception of the Arbitration terms, which shall survive the termination of these Terms, these Terms are effective unless and until terminated by either you or WyGO at any time without notice, and accordingly we may deny you access to the Site, if in our sole judgment you fail to comply with any term or provision of these Terms. The obligations and liabilities of the parties incurred prior to the termination date shall survive the termination of these Terms for all purposes.
In addition to any other remedies available to it, WyGO may in its sole discretion restrict or terminate your account, or cancel or refuse orders for violations of, or abuse of the WyGO returns policy.
These Terms shall be governed by the laws of the State of Michigan without regard to choice of law principles, except for the Arbitration terms above, which shall be governed by the Federal Arbitration Act. The waiver of any provision of these Terms shall not be considered a waiver of any other provision or of WyGO’s right to require strict observance of each of the terms herein. These Terms constitutes the entire agreement between us relating to your use of the Site.
If any portion of these Terms is found to be unenforceable or unlawful for any reason, (a) the unenforceable or unlawful provision shall be severed from these Terms; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of the Terms or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration terms; and (c) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.
Diversity and Inclusion
You will not, in its use of the Marketplace and WyGO App under this Agreement, discriminate against any customer, employee, contractor or other person or individual on the basis of race, color, gender, pregnancy, marital status, familial status, sexual orientation, gender identity or expression, religion, ancestry, national origin, disability, or age except that programs may target beneficial services for specific participant groups, as agreed upon between WyGO and You. You acknowledge and agree that upon WyGO’s receipt of evidence of Your discrimination under any of these categories, WyGO will have the right to immediately terminate this Agreement following notice to You.