Bigfish.ae Terms of Service – Merchant Services
Last updated February 28, 2017
The company (“Merchant”) has agreed to allow BigFish and its parent company The Big Fish Online Services DMCC (“The Big Fish Online Services DMCC”) to sell specified goods or services on its behalf for vouchers (each a “Voucher”) through daily deals (each a “Deal”) to our registered members (“Users”) through the Bigfish.ae website located at www.bigfish.ae and our related partner websites (“Site”). The Merchant has agreed to allow The Big Fish Online Services DMCC to collect a commission in respect of sales of Vouchers redeemable by the Merchant for those specified goods or services. The Merchant and The Big Fish Online Services DMCC have agreed to keep information relating to this agreement (“Agreement”) confidential.
2.1. Voucher Price: The full amount collected by The Big Fish Online Services DMCC from the User for the sale of each Voucher.
2.2. Deal: An offer by The Big Fish Online Services DMCC to Users for the Merchants’ goods or services at an agreed Voucher Price for an agreed timescale (“Deal Duration”) and with an agreed minimum number of sales to trigger a payment obligation (“Tipping Point”).
2.3. Base Amount: The total amount collected by The Big Fish Online Services DMCC during the Deal Duration for the sale of Vouchers.
2.4. Commission: An amount equal to an agreed proportion of the Base Amount.
2.5. Revenue Share: Base Amount less the Commission.
2.6. Tipping Point: An event giving rise to a payment obligation under the Agreement, this event being the sale of sufficient Vouchers within the Deal Duration to reach the agreed minimum number of sales.
2.7. Voucher List: The list of Voucher identification numbers that is sent to the Merchant after the Deal closes for tracking purposes. The Merchant will use this list to track Voucher redemptions.
2.8. Voucher Validity: The period of time during which Vouchers are redeemable by Users of a deal. After the period ends, Vouchers are no longer valid.
2.9. Cash-on-delivery: The transaction process through which the User orders the Voucher and pays for it at a later date upon delivery of the Voucher.
3. Term and Termination:
3.1. The Merchant may terminate this agreement at any time by giving at least 20 days written notice in advance of the then applicable day the Merchant’s Deal is to feature on the Site (“Deal Date”) without penalty.
3.2. The Big Fish Online Services DMCC reserves the right to change the Deal Date subject to prior agreement with the Merchant. Such agreement should not be unreasonably denied by the Merchant. The Merchant will be informed of any change to the Deal Date forthwith.
3.3. The Big Fish Online Services DMCC may terminate the Agreement by giving written notice if the Merchant: (i) Is dissolved; (ii) Ceases to conduct all of its business; (iii) Is or becomes unable to pay its debts as they fall due; (iv) Is or becomes insolvent or is declared insolvent.
3.4. If the agreement is terminated in a manner that contravenes Clause 3.1 or 3.3 then the Merchant will pay a sum equal to the Voucher Price multiplied by the Tipping Point as outlined in the Deal Configuration, but which in any event will not be less than 2,000 USD. The Merchant agrees that this amount of 2,000 USD or higher amount determined by The Big Fish Online Services DMCC would be fair compensation for the loss caused by the Merchant for its termination. The Big Fish Online Services DMCC will invoice the Merchant within 2 Business Days of receiving written termination notice. The Merchant must pay the invoice within 14 business days of receipt of the The Big Fish Online Services DMCC invoice. Failure to pay will constitute a breach of the agreement and subject the Merchant to legal action.
4. Commission to BigFish and The Big Fish Online Services DMCC and Payment to Merchant:
4.1. In respect of the Deal achieving the Tipping Pont, the Merchant will pay the Commission to The Big Fish Online Services DMCC in accordance with Clause 4.
4.2. Within 5 business days following the end of the Deal Duration, The Big Fish Online Services DMCC will notify the Merchant whether the Tipping Point was reached and will confirm the Revenue Share owed to the Merchant and the amount of Commission due to The Big Fish Online Services DMCC in respect of the Deal.
4.3. The Big Fish Online Services DMCC will pay the Merchant its Revenue Share in two installments: 70% after the Deal closes and 30% after the Voucher Validity expires.
4.4. The 70% of the Revenue Share is based on the total number of Vouchers for which payment has been received to date. The 30% of the Revenue Share is based on the total number of Vouchers for which payment has been received. The 30% of the Revenue Share is subject to change based on final number of vouchers purchased through cash-on-delivery for which payment has been received. The Merchant cannot invoice for Vouchers for which The Big Fish Online Services DMCC has not received payment and therefore have not been delivered to Users.
4.5. The Merchant may invoice The Big Fish Online Services DMCC for the 70% of the Revenue Share immediately after The Big Fish Online Services DMCC has confirmed the Revenue Share owed to the Merchant. The Merchant may invoice The Big Fish Online Services DMCC for the 30% of the Revenue Share after the Voucher Validity expires.
4.6. The Big Fish Online Services DMCC will pay the Merchant within 14 days following the date of receipt of the Merchant’s invoice.
4.7. The Merchant must invoice The Big Fish Online Services DMCC for the 30% of the Revenue Share within 90 days of the Voucher Validity expiration, after which full and final payment will have deemed to have been made, and no further obligations will be due by The Big Fish Online Services DMCC to the Merchant.
5.1. In consideration for BigFish and The Big Fish Online Services DMCC offering the Deal to its Users, the Merchant will ensure that the Deal is not marketed through any other group buying partners or any partners that sell the merchant’s goods or services in a similar way to the Deal prior to and for a period of 1 month after the Deal Date or at a price that is lower than the BigFish Voucher Price.
5.2. If the Merchant signs a distribution agreement as outlined in 5.1 the Merchant will pay a sum equal to the Base Amount to The Big Fish Online Services DMCC. This amount will be deemed fair compensation for the damages caused by the Merchant but shall not be less than $2000. The amount shall be more if BigFish is believed to have lost more than this amount.
5.3. If the same Deal appears on another site but with better price, or with the same price but better conditions, BigFish shall without notice to the merchant change the offer to match. Under no circumstances shall BigFish take down the Deal because the Merchant placed the deal on another site
6. Confidentiality Obligations:
6.1. The Big Fish Online Services DMCC and the Merchant agree and undertake: (i) That it will keep all Confidential Information strictly confidential and will not disclose any part of it to any other person without the other’s prior written consent; (ii) That it will act in good faith at all times in relation to the Confidential Information, and will not use any of the Confidential Information for any purpose other than the permitted purpose; (iii) That it will only disclose the Partner Confidential Information to its professional advisors, its officers and employees who have a need to have access to the Confidential Information for the performance of their work with respect to the Permitted Purpose, and who are bound by a written agreement or professional obligation to protect the confidentiality of the Confidential Information.
6.2. Clause 5 imposes no obligations with respect to Confidential Information which: (i) Is known before disclosure and is not subject to any obligation of confidentiality; (ii) Is or becomes publicly known through no act or default, or; (iii) Is obtained by a third party in circumstances where there is no reason to believe that there has been a breach of a duty of confidence.
6.3. Confidential Information remains the property of The Big Fish Online Services DMCC or the Merchant.
Subject to the next sentence, the content of the Site (including without limitation all images and text), and all elements which are a part of the foregoing, and all intellectual and other proprietary rights therein, are the property of The Big Fish Online Services DMCC. Notwithstanding the foregoing sentence, as between The Big Fish Online Services DMCC and the Merchant, any images placed on the Site by the Merchant hereunder and all elements which are a part of the foregoing, and all intellectual and other proprietary rights therein, are and will at all times remain the Merchant’s property.
8. Merchant Content:
8.1. The Big Fish Online Services DMCC shall have the right to reject any Deal at any time.
8.2. The Merchant represents and warrants that: (i) It possesses all consents, licenses and other rights necessary to market, promote, offer or sell the products or services and any other products or services available through the Site; (ii) Neither the products or services, the Deal, the Merchant website nor any data processing in relation thereto shall breach any applicable law, regulation, code of conduct or any third-party right (including without limitation by being obscene, defamatory or infringing any copyright trademark or other proprietary right).
9. NO WARRANTIES:
BIGFISH AND The Big Fish Online Services DMCC MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANT ABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT WITH RESPECT TO ITS SERVICES OR THE SITE, OR THE FUNCTIONALITY, PERFORMANCE OR RESULTS OF USE THEREOF.
The Merchant agrees to indemnify The Big Fish Online Services DMCC, its officers, directors, employees and agents, from and against any claims, actions or demands, including without limitation reasonable legal and accounting fees, arising or resulting from the Merchant’s breach of the Agreement or from the Merchant’s provision of any material to the Site, including but not limited to claims of breach of third party intellectual property rights. If the Merchant lists an address on this agreement, The Big Fish Online Services DMCC will provide notice to the Merchant promptly of any such claim and shall assist the Merchant, at their expense, in defending any such claim, action or demand.
11. LIMITATION OF LIABILITY:
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, BUT WITHOUT IN ANY WAY LIMITING USERS’ PAYMENT OBLIGATIONS UNDER THIS AGREEMENT: (I) NO PARTY WILL BE LIABLE TO ANY OTHER PARTY (NOR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM THE OTHER PARTY’S RIGHTS) FOR INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND – INCLUDING LOST REVENUES OR PROFITS, LOSS OF BUSINESS OR LOSS OF DATA – ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES PROVIDED HEREUNDER (INCLUDING WITHOUT LIMITATION AS A RESULT OF ANY BREACH HEREOF), REGARDLESS OF WHETHER THE PARTY LIABLE OR ALLEGEDLY LIABLE WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF; AND, (II) The Big Fish Online Services DMCC’S MAXIMUM LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES PROVIDED HEREUNDER, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY OR OTHERWISE), WILL NOT EXCEED THE AMOUNT PAID BY USERS TO The Big Fish Online Services DMCC HEREUNDER.
The Agreement: (i) Constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes any previous oral or written arrangements or understandings relating thereto as well as any purchase orders not supplied by The Big Fish Online Services DMCC that have been or may from time to time be submitted by the Merchant; (ii) May be signed in counterparts; (iii) Will be governed by the laws of the United Arab Emirates (other than the conflicts of laws provisions thereof); (iv) May not be amended, terminated or waived orally; and, (v) May not be assigned or resold, in whole or in part, directly or indirectly, by operation of law or otherwise, by the Merchant. Any terms of the Agreement that may be invalid will not affect the validity of enforcement of the remaining valid terms of the Agreement. The terms and conditions of the Agreement may not be amended without the affirmative written consent of The Big Fish Online Services DMCC and the Merchant. The headings used herein are for ease of reference only and will not be used to construe or interpret the provisions of the Agreement.
The merchant shall be entirely reponsible for being licensed, both to operate and to advertise the service offered. Any fines or punishment incurred through not being licensed correctly (whether by the DED, the MOH or any other regulatory body) shall be entirely the responsibility of the merchant.
15. Merchant commission loss in situations where BigFish is not at fault:
If a refund is issued where the merchant is at fault, then BigFish shall be entitled to keep the commission earned on that voucher or vouchers