Merchant Terms of Service
WhutsFree provides a free service to its subscribers (“Subscribers“) through a proprietary iOS or Android mobile application (the “WhutsFree App”). Using the WhutsFree App, WhutsFree subscribers access opportunities to obtain “FREE” items and services (a “Free Offer“) and single use electronic coupons from local merchants (a “Coupon“). The WhutsFree App provides free advertising and drives customer traffic to these merchants as it connects WhutsFree Subscribers to the merchants’ businesses when they view or redeem the merchants’ Free Offers and Coupons.
These Terms of Service govern the business relationship between WhutsFree, Inc., a Delaware corporation having its principal place of business at 14805 South Oak Bluff Pl, Draper, Utah 84020 (“WhutsFree“) and the merchant (“Merchant“) named on the Business Entity Screen completed by Merchant with Merchant’s first order to connect with WhutsFree Subscribers utilizing the WhutsFree App (each, an “Order Confirmation“). The Terms of Service and all Order Confirmations submitted to WhutsFree by Merchant from time to time together constitute the entire agreement (“Agreement“) between WhutsFree and Merchant with respect to Merchant’s access to and use of WhutsFree’s services. In the event of any conflict between the Terms of Service and any Order Confirmation, the most recent Order Confirmation shall take precedence and prevail over the Terms of Service solely with respect to the subject matter of the most recent Order Confirmation. As used herein, “WhutsFree” and “Merchant” includes their respective principals, agents, subsidiaries and affiliates and may be referred to individually as a “Party” and collectively as the “Parties“.
BY UTILIZING THE SERVICES OF WHUTSFREE, MERCHANT AGREES THAT MERCHANT HAS ENTERED INTO A LEGAL AND ENFORCEABLE AGREEMENT BETWEEN WHUTSFREE AND MERCHANT. MERCHANT IS RESPONSIBLE FOR CAREFULLY READING THE AGREEMENT BEFORE ACCESSING OR USING ANY WHUTSFREE SERVICES. BY SUBMITTING AN ORDER CONFIRMATION OR ACCESSING OR USING ANY WHUTSFREE SERVICES, MERCHANT CONFIRMS THAT MERCHANT HAS ACCESSED ONLINE AND/OR BEEN PROVIDED COPIES OF THEALL DOCUMENTS CONSTITUING THE AGREEMENT. AND HAS READ, UNDERSTANDS AND ACCEPTS THE AGREEMENT IN ITS ENTIRETY. NOTWITHSTANDING ANY DIFFERENT OR ADDITIONAL TERMS MERCHANT MAY REFERENCE OR PROVIDE, WHUTSFREE’S AGREEMENT WITH MERCHANT WITH RESPECT TO ANY WHUTSFREE SERVICES IS EXPRESSLY LIMITED TO THE TERMS OF THE AGREEMENT.
Without limiting the generality of the forgoing, WhutsFree and Merchant agree as follows:
- Term. The Agreement will commence on the Effective Date and continue for one (1) year thereafter (the “Term“). The Term automatically renews each year on the anniversary of Merchant’s Order Confirmation (the “Effective Date“) unless Merchant cancels it within thirty (30) days prior to the expiration of the Term. Early termination penalties may apply if Merchant cancels the Agreement prior to the end of the Term.
- Free Offer. During the Term, Merchant will offer WhutsFree Subscribers the Free Offer(s) and Coupon(s) to be honored at the Location(s) described in the applicable Order Confirmation on a “no-purchase-necessary” basis or as otherwise stated on the Coupon(s). Unless otherwise specifically described in the applicable Order Confirmation, each Free Offer will be an item or service comparable in quality and volume as other items or services Merchant currently offers to Merchant’s paying customers.
- Redemption. During the Term, Merchant will honor the Free Offer or Coupon each time a WhutsFree Subscriber presents an electronic coupon displayed on the Subscriber’s mobile device running the WhutsFree App. Merchant and WhutsFree agree that the WhutsFree App will permit a Subscriber to redeem a Free Offer or Coupon as many times as the Merchant has agreed to for the redemption cycle (default is to have the offer redeemable once per month) per unique Subscriber Account and mobile device.
- Modification of Fees Upon Renewal or Extension of an Order Confirmation. WhutsFree reserves the right to modify the Fees for its services under any future Order Confirmation, effective upon the commencement of the Term of such future Order Confirmation.
- Merchant Responsibilities. Merchant agrees that: (a) the Location(s) at all times will be adequately staffed, supplied and equipped to honor and fulfill Free Offers and Coupons redeemed by WhutsFree Subscribers; (b) no purchase shall be required as a condition to honoring a Free Offer; (c) Merchant will honor all Free Offers and Coupons properly presented and treat Subscribers redeeming a Free Offer or Coupon as well as Merchant treats its paying customers, knowing that a Subscriber redeeming a Free Offer or Coupon today could be a happy, paying, repeat customer of Merchant tomorrow; (d) Merchant will not pressure a Subscriber redeeming a Free Offer or Coupon to make an additional purchase at any time, and (e) Merchant will resolve any and all customer complaints quickly and professionally. Merchant agrees that these are material terms of the Agreement and Merchant’s failure to abide by any of them shall give WhutsFree the right to terminate the Agreement without notice or liability to Merchant.
- Sponsors. Merchant understands and agrees that individual businesses sponsor various FREE item and service giveaways and Coupons in the geographic area of the Location(s), and that such sponsorship enables WhutsFree to provide free advertising to merchants as it connects them to WhutsFree Subscribers. Merchant agrees that it will speak well of the WhutsFree sponsors and be appreciative of their sponsorship and support.
- Standard Terms and Conditions.
(a) WhutsFree reserves the right to offer merchants volume discounts and other incentives for providing Free Offers and Coupons to WhutsFree Subscribers using the WhutsFree App. Discounts and other incentives may vary by location and market conditions. The current WhutsFree pricing, discount and early contract termination penalty policy is accessible to Merchant through the Pricing link on the Confirmation Screen.
(b) Except to the extent otherwise provided by law or expressly set forth in the Agreement, all obligations to pay WhutsFree fees are non-cancelable and nonrefundable. Merchant must make all payments without setoffs, withholdings or deductions of any kind. WhutsFree’s fees are exclusive of all taxes, levies or duties imposed by taxing authorities in connection with the Agreement or any Order Confirmation. Merchant is responsible for paying all such taxes, levies or duties, excluding only taxes based on WhutsFree’s income.
(c) Merchant may not assign or transfer the Agreement to any third party without WhutsFree’s prior written consent. Any attempt by Merchant to assign or transfer the Agreement shall be a breach of the Agreement and void.
(d) Merchant has and will continue to have full power and authority to execute, deliver and perform the obligations and carry out the duties imposed upon Merchant by the Agreement. No approvals or consents are required in connection with the execution, delivery and performance of the Agreement by Merchant or pursuant to any other agreement to which Merchant is a party, or if required, such approvals and consents have been obtained. The execution, delivery and performance of the Agreement by Merchant does not and will not conflict with or result or cause a breach of any of the terms or provisions of, or constitute a default under, any contract, agreement or instrument to which Merchant is a party, including, without limitation, any franchise agreement or organizational documents.
(e) Merchant assumes full responsibility concerning the right to use any name, address, trademark, service mark, trade name, digital art or other copy in any Free Offer or Coupon. Merchant assumes full responsibility for determining that each Free Offer and Coupon will conform in all respects to all applicable laws, including, but not limited to, food safety and all licensing requirements of federal, state or local licensing authorities. Notwithstanding any use by Merchant of any WhutsFree services, WhutsFree retains all intellectual property rights it has in those services.
(f) Merchant agrees to indemnify, defend and hold WhutsFree harmless from any and all claims, losses, and damages incurred by WhutsFree which arise out of or is connected with a Free Offer or Coupon, including with respect to the failure to serve any Subscriber or other party, or arises out of or results from a violation of the Agreement by Merchant.
(g) If performance of WhutsFree is delayed by reason of fire, war, civil disturbance, strike, damage by the elements, or other casualty, condemnation, governmental actions, interruptions of power or communication, transportation problems or any other cause beyond WhutsFree reasonable control, such non-performance shall not be a default hereunder and the limit of performance shall be extended for the period which is reasonable in light of such delay.
(h) The Agreement contains the entire agreement of WhutsFree and Merchant in respect of the transactions contemplated hereby, and all prior agreements among or between such parties, whether oral or written between WhutsFree and Merchant are superseded by the terms of the Agreement.
(i) NEITHER WHUTSFREE NOR ANY OFFICER, DIRECTOR, EMPLOYEE, ATTORNEY OR AGENT OF WHUTSFREE (I) MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, STATUTORY OR IMPLIED (IN FACT OR BY OPERATION OF LAW), REGARDING THE WHUTSFREE SERVICES, APP OR ANY MATTER WHATSOEVER, (II) WARRANT THAT THE WHUTSFREE SERVICES AND APP ARE OR WILL BE COMPLETE, ACCURATE, UNINTERRUPTED, SECURE OR ERROR-FREE. WHUTSFREE AND ITS OFFICERS, DIRECTORS, EMPLOYEES, ATTORNEYS AND AGENTS EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT WITH RESPECT TO THE WHUTSFREE SERVICES AND APP. THE WHUTSFREE SERVICES AND APP MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF WI-FI, THE INTERNET OR ELECTRONIC COMMUNICATIONS. WHUTSFREE IS NOT RESPONSIBLE FOR DELAYS, DELIVERY FAILURES OR OTHER DAMAGES, LOSSES OR LIABILITIES RESULTING FROM SUCH PROBLEMS NOT CAUSED BY WHUTSFREE.
(j) Neither WhutsFree nor any officer, director, employee, attorney or agent of WhutsFree will have any liability with respect to, and Merchant hereby waives, releases, and agrees not to sue any of them upon, any claim for any special, indirect, incidental, consequential or punitive damages suffered or incurred by Merchant in connection with, arising out of, or in any way related to, the Agreement or any of the transactions contemplated hereby.
(k) The Agreement is made for the sole benefit of WhutsFree and Merchant, and no other person or persons shall have any benefits, rights or remedies under or by reason of the Agreement or by reason of any actions taken by WhutsFree pursuant to the Agreement. WhutsFree shall not be liable to any party for any claims accruing in favor of any such party against Merchant, whether from a Free Offer, Coupon or otherwise. Merchant is not nor will be an agent of WhutsFree for any purposes. WhutsFree, in entering into the Agreement or taking any action taken pursuant thereto, will not be deemed a partner or fiduciary of Merchant.
(l) The Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which together constitute a fully executed agreement even though all signatures do not appear on the same document. Signatures on the Agreement in electronic or portable document format (PDF) shall for all purposes hereof be deemed to be original signatures of the parties hereto, and each party may rely upon electronic or PDF counterpart of the Agreement signed by each other party with the same effect as if such party had received an original counterpart signed by that party.
(m) Time is hereby declared to be of the essence of the Agreement and of every part hereof.
(n) WhutsFree reserves the right at any time to modify the Agreement and to add new or additional terms or conditions on Merchant’s use of WhutsFree’s services. Such modifications and additional terms and conditions will be effective immediately and incorporated into the Agreement. Merchant’s continued use of WhutsFree’s services will be deemed acceptance thereof.
(o) Merchant agrees that the WhutsFree App and the services offered by WhutsFree under the Agreement, including but not limited to the user interface and the scripts and software used to implement WhutsFree’s services, contain proprietary information and material that is owned by WhutsFree and is protected by applicable intellectual property and other laws, including but not limited to copyright. Merchant agrees that Merchant will not use any such proprietary information or materials in any way whatsoever except in compliance with the Agreement and with the consent of WhutsFree in its sole discretion.
(q) THE AGREEMENT WILL BE GOVERNED BY AND CONSTRUED UNDER THE INTERNAL LAWS (AS OPPOSED TO THE LAWS OF CONFLICTS) OF THE STATE OF UTAH. WITH RESPECT TO ANY SUIT, ACTION OR PROCEEDINGS RELATING TO THE AGREEMENT (EACH, A “PROCEEDING“), MERCHANT IRREVOCABLY (A) SUBMITS TO THE NON EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS HAVING JURISDICTION IN THE CITY AND COUNTY OF SALT LAKE AND THE STATE OF UTAH, AND (B) WAIVES ANY OBJECTION WHICH MERCHANT MAY HAVE AT ANY TIME TO THE LAYING OF VENUE OF ANY PROCEEDING BROUGHT IN ANY SUCH COURT, WAIVES ANY CLAIM THAT ANY PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM AND FURTHER WAIVES THE RIGHT TO OBJECT, WITH RESPECT TO SUCH PROCEEDING, THAT SUCH COURT DOES NOT HAVE JURISDICTION OVER MERCHANT.
Date Last Modified: October 20, 2023