MERCHANT AGREEMENT AND TERMS OF SERVICE
SOCIAL COMMERCE, INC.
Last Updated: 11-23-2011
I. Acceptance of Terms
Please read this MERCHANT AGREEMENT AND TERMS OF SERVICE (“Agreement”)
carefully before using any service provided by Social Commerce, Inc. (“Social Commerce” or
“We”), a Texas corporation. Social Commerce is located at 816 Camaron, Suite 213, San
Antonio, TX 78212.
This Agreement, along with the Social Commerce Privacy Agreement and End User License
Agreement, both of which are are incorporated by reference into this Agreement, outlines the
terms and conditions between You (“Merchant” or “You”) and Social Commerce. This
Agreement concerns Your access to and use of the Qliq Merchant Portal (“Merchant Portal”) as
a mobile marketing platform for Your business.
This Agreement governs all sites, services, features, content, applications, and “widgets” offered
by Social Commerce. Additionally, this Agreement applies to all persons who may manage a
mobile marketing program on behalf of You, the merchant (collectively “Authorized Users”).
This Agreement will be effective as of the date it is accepted by You (the “Effective Date”)
whether by physical signature or electronic acceptance.
(a) “Deal” means a discount or other benefit determined by You and related to Your
goods or services that is available for purchase by users of Qliq (“Qliq Users”)
with Qliq’s virtual currency (“QPoint”). For example, a Deal may be a
percentage discount off Your goods or services, or an additional item at no or
(b) “Amount Due” means the amount of money you agree to pay to Social Commerce
to promote your business through Qliq (“Qliq” or “Application”). In this
Agreement, “Monthly Amount” means the total amount of monies due to Social
Commerce as it relates to “Monthly Redemption Fee(s),” ongoing, monthly
subscriptions to any and all “Benefit Package(s),” storefront activation fees, as
well as any and all other monies due as a result of negotiations and/or agreements
entered into by You and Social Commerce.
(c) “Merchant Portal” means Social Commerce’s interactive web-based software that
allows You to create and maintain Deals, Promotions, and Messaging Campaigns,
as well as monitor Your business’s activity.
(d) “Account Information” means Your information, including Your legal company
or business name, corporate or “home office” address, billing address, the names
of all Authorized Users being granted access to Your Merchant Portal account,
physical address, phone number, email address, a valid credit, charge or debit card
number and/or ACH authorization (including Financial Institution Name, address,
routing number, account number, account type, and the names of those authorized
to conduct transactions on the account).
Social Commerce will provide You monthly twenty-four hour access to the Merchant Portal
during the Term of this Agreement. You are responsible for all telephone, DSL, cable or other
charges related to Your connection to the Merchant Portal.
1. Your Obligations Under This Agreement.
(a) You will be notified of your account Billing Cycle Statement Date. Account
Billing Statements will be issued on the same day of every month
ELECTRONICALLY using the valid e-mail address provided at the time of
Merchant Portal Registration. It is Your sole responsibility to ensure that
Account Information is VALID and ACCURATE. You can review your Amount
Due, as well as current and past Billing Statements, by logging into your Account
on the Merchant Portal or by requesting a Statement from Social Commerce. You
agree to pay the Monthly Amount along with any additional amounts for Services
provided to You at your request to Social Commerce (the Total Amount Due) in
consideration for Services for the invoiced period by the designated due date
indicated on the Billing Statement.
(b) You will maintain Your Account Information with a valid and chargeable credit
card, charge card or debit card (“Authorized Card”), or ACH authorization for a
valid deposit (Checking, Savings, or Money Market) account (“Authorized
Account”) for payment of all amounts due to Social Commerce under this
Agreement. If, at any time during the term of this Agreement, you do not have a
valid and chargeable card or ACH authorization for a current account on file with
Social Commerce, or you rescind authorization for Social Commerce to charge
such card or debit your account, Social Commerce may accelerate all amounts
due under this Agreement such that they become immediately payable. You
agree there will be a $25.00 per occurrence charge for non-sufficient funds in an
Authorized Account or a rejected charge attempt against any Authorized Card.
(c) You authorize Social Commerce to, on the due date itemized on your Billing
Statement, charge the Authorized Card or debit from an Authorized Account the
Total Amount Due. The Authorized Card will be charged, or the Authorized
Account will be debited, automatically for the amounts payable by you to Social
Commerce. Your Acceptance of the terms of this Agreement will serve as Your
absolute authorization for such charge or debit and shall remain in effect unless
otherwise expressly agreed upon in writing by You and Social Commerce.
2. Social Commerce’s Right to Suspend Service. If amounts due under this Agreement by
You to Social Commerce are not paid when due, or if You engage in Prohibited Use as
determined in the sole discretion of Social Commerce, Social Commerce may suspend Your
access and that of all Authorized Users to the Merchant Portal immediately, without notice,
until all amounts owed are paid or the Prohibited Use is remedied. This right to suspend is in
addition to any other remedies or actions against You that Social Commerce may have under
this Agreement or applicable law.
3. Term and Termination.
(a) Term. This is a month-to-month Agreement, with an initial term ending on the last
day of the current calendar month. Except as otherwise set forth in this Agreement,
this Agreement will be automatically extended for additional one-month terms on the
same terms and conditions.
(b) Termination. Either party may terminate this Agreement at any time by written
notice of termination at least thirty (30) days prior to the expiration of the then-
current month. In addition, Social Commerce may terminate this Agreement
immediately upon suspension of service as provided in Section 2 above. Upon
termination, all amounts due from You through the end of the then current month
shall become immediately due and payable.
4. Client Relations, Customer Service, and Consultation. As a registered and active user of
Qliq and the Merchant Portal, You have access to customer service and consultation
services as provided by “Mobile Marketing Consultants” (“MMCs”) employed by Social
Commerce. We provide these services to educate You on the uses and capabilities of the
Merchant Portal and other aspects of your mobile marketing campaign. MMC’s may, at
Social Commerce’s sole discretion, provide guidance and/or assistance to You in
structuring the content of, duration of, and/or “layering” of Deals that you ultimately
extend to Qliq Users. These services are provided at Your sole request and are strictly
provided on an educational and informative basis. At no time does any communication
between You or an Authorized User of Your Account and any MMC or any other
employee of Social Commerce imply endorsement, guarantee of success, guarantee of
revenue expected, industry expertise, or absolute knowledge of any aspect of Your
unique Business situation. Accordingly, Social Commerce is not liable for any negative
outcomes associated with Your mobile marketing campaign regardless of any
communications between you and Social Commerce. At times, Social Commerce may
provide data or analytics to You such as industry trends, user trends, user feedback,
merchant feedback, results of surveys, focus groups, or other marketing data collected
purely as a service. It is Your sole responsibility to use any data offered as a resource to
make decisions on behalf of Your unique business. Social Commerce reserves the right
to reject or otherwise refuse to promote any Deal or other offer at any time, in its sole
5. Content License. You hereby grant Social Commerce a nonexclusive worldwide
license to reproduce, use, display, perform, distribute, and create derivative works
based upon Your content for the purpose of developing, distributing, and otherwise
promoting the Deal as Social Commerce deems appropriate. After termination of
this Agreement, Social Commerce may continue to use and distribute such content
as examples and for general promotional purposes.
6. Compliance with Governing Law; Taxes. You are responsible for all of Your activity in
connection with the Service. At all times, You shall abide by all applicable local, state,
national and international laws and regulations to which Your business may be bound.
Additionally, You will abide by any advertising, marketing, privacy, or other self-
regulatory code(s) applicable to Your industry. You represent and warrant to Social
Commerce that you (i) are registered for the collection of sales, use and other
similar taxes in all states and localities in which goods and/or services will be made
available pursuant to the terms and presentation of any Deal; and (ii) will collect
and remit any and all applicable state or local sales, use, hotel occupancy, and other
similar taxes that may apply to the redemption of the Deal or the supplying of goods
or services via the Merchant Portal;
7. Rules of Conduct and Prohibited Use. As a condition of use, You promise not to use the
Service for any purpose that is prohibited by this Agreement. Neither You, nor any
Authorized User, shall perform any action or upload, download, post, submit or otherwise
distribute, or facilitate distribution, of any content on or through the Merchant Portal that
is prohibited (collectively, “Prohibited Activity”). Prohibited Activity includes, but is in
no way limited to, activity that:
(a) Infringes on any patent, trademark, trade secret, copyright, right of publicity or
other right of any other person or entity or violates any law or contractual duty;
(b) You know to be false, untrue, incomplete, incorrect, or deceptive;
(c) Is illegal, threatening, abusive, harassing, defamatory, libelous, deceptive,
fraudulent, invasive of another's privacy, obscene, vulgar, pornographic,
offensive, profane, contains or depicts nudity, contains or depicts sexual activity,
promotes bigotry, discrimination or violence, or is otherwise inappropriate as
determined by Social Commerce at its sole discretion;
(d) Is considered junk or “spam” e-mail, unauthorized “push notifications” or
unrequested marketing, messaging, or advertising to any Qliq Users without their
express authorization and complies with any and all electronic messaging or
(e) Conduct any business that involves the exchange of monies or items of value
through the Merchant Portal that is not expressly permitted by this Agreement,
documents as provided by Social Commerce;
(f) Upload, download, post, share, submit, or in any other way distribute software,
links, or any other communications to the Merchant Portal that in any way affects,
alters, inhibits, or tampers with the performance or functionality or negatively
affects in any way the daily operations of Qliq or Social Commerce;
(g) Tampers with the performance of Qliq, the Merchant Portal, or Social Commerce;
(h) Creates frustration among Qliq Users when Deals or other Promotions that You
have established for Your business are not honored at Your business according to
the stated terms of the Deal or Promotion;
(i) Infringes on the privacy of Qliq Users, including, but not limited to, activity that
discloses personal information and non-personal information to third parties,
activity that jeopardizes the security of personal and non-personal information, or
any other form of activity that collects, stores, or shares personal and non-
personal information of Qliq Users;
(j) Serves to copy, duplicate, modify, or distribute Qliq or the Merchant Portal for
any purpose; or license, transfer, sub-license, reverse engineer, or create
derivative works that may alter or effect Qliq or the Merchant Portal in any way.
You may not perform any functions that may cause Qliq or the Merchant Portal to
be unavailable to Users or alter the functionality of Qliq or the Merchant Portal.
Social Commerce does not grant You any rights or licenses for use of any of
Social Commerce’s Marks or any other form of Intellectual Property;
established End-User License Agreement as distributed by Social Commerce. All
aforementioned documents and agreements are readily available for review by
accessing the websites for Qliq (www.QliqUp.com) and Social Commerce
8. REPRESENTATIONS AND WARRANTIES. 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. SOCIAL COMMERCE
DOES NOT WARRANT OR GUARANTEE THAT ANY DEAL PRESENTED ON
QLIQ WILL BE ERROR-FREE OR THAT ANY ERRORS, OMISSIONS OR
MISPLACEMENTS WILL BE CORRECTED, OR THAT THE OFFER WILL RESULT
IN ANY REVENUE OR PROFIT FOR YOU. SOCIAL COMMERCE MAKES NO
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING
THE MERCHANT PORTAL OR ANY OTHER PROMOTION OR DISTRIBUTION
METHOD USED BY SOCIAL COMMERCE (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 MERCHANT
PORTAL AND OTHER PROMOTION OR DISTRIBUTION METHODS USED BY
SOCIAL COMMERCE AND ALL RELATED INFORMATION AND MATERIALS
ARE PROVIDED “AS IS”, WITHOUT ANY WARRANTY OF ANY KIND, AND ON
AN “AS AVAILABLE” BASIS.
9. Indemnification. You, at Your sole cost and expense, shall defend, indemnify and hold
Social Commerce, 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, investigations, penalties, damages, losses or expenses
(including but not limited to attorney's fees and costs) arising out of or relating to any of
the following: (a) Your or any Authorized User’s(i) fraud, willful misconduct, or gross
negligence or (ii) breach or alleged breach of this Agreement; (b) any claim for sales, use,
or any other similar tax obligations (including any penalties, interest or other additions to
tax) arising from the sale and subsequent redemption of a Deal; (c) any claim by any
local, state or federal governmental entity for any unclaimed property regarding the
Deals, including but not limited to, any claims for penalties and interest; (d) the goods
and/or services provided by You, including but not limited to, any claims for false
advertising, injuries, illnesses, damages, or death; (e) any Deal, including your provision
of incomplete or inaccurate or information applicable to the Deal; or (f) your content; and
(g) any infringement, misappropriation, or other violation, of any patent, trademark,
copyright, publicity, privacy, trade secret, or other right of any third party by You, or
your use of the Merchant Portal.
10. Indemnification Process. The Party seeking indemnification under this Agreement will
promptly notify the other Party in writing of any claim for which it seeks
indemnification; provided that such indemnified Party’s failure to timely provide such
notice shall not relieve the indemnifying Party of its indemnification obligations unless it
can demonstrate actual prejudice as a result of such failure. In the event Social
Commerce is the indemnifying Party, Social Commerce shall have the right to, upon
written notice to You, elect to assume control of the defense and settlement of any such
claim, and You will have the right to participate and be represented in the defense of such
claim by your own counsel and at your own expense. You will not settle any claim for
which You are to be indemnified hereunder without Social Commerce’s prior written
consent, which consent shall not be unreasonably withheld or delayed.
11. Social Commerce’s Intellectual Property. You acknowledge that Social Commerce owns
all right, title, and interest, including all intellectual property rights, in the Merchant
Portal and the Qliq website, trade name, logos, trademarks, and service marks, and any
content, data, software, technology, tools, or business methods used by Social Commerce
to develop, promote, market, sell, generate, or distribute Deals and otherwise perform
under this Agreement (collectively the "Social Commerce IP"). You will not use or
display the Social Commerce IP in any manner that states or implies that Social
Commerce has endorsed, guaranteed, created, or verified the true value to a consumer of
any Deal, your products or services that You choose to offer to Qliq Users through the
Merchant Portal. Use of Social Commerce trade name, logos, trademarks, and service
marks is permissible so long as usage complies with any of Social Commerce’s
guidelines currently in effect. All goodwill and improved reputation in respect of and
associated with the Social Commerce IP will inure to the sole benefit of Social
Commerce. You have no right, license, title or interest in or to any Social Commerce IP,
and shall not use, distribute, transfer, copy, download, display, modify, perform or create
derivative works of the Social Commerce IP without the express written consent of
Social Commerce. You will not translate, reverse engineer, decompile or disassemble the
Social Commerce IP.
12. Ownership of Customer Data. You acknowledge that Social Commerce owns all data
collected by, or on behalf of, Social Commerce pursuant to this Agreement, including all
information and data of individuals who purchase your goods or services. You will take
commercially reasonable efforts to protect the security of any Customer Data provided to
you and comply with all Laws relating to the security and processing of such Customer
Data. If You become aware of, or suspect, any unauthorized access to or use of
Customer Data, You will immediately notify Social Commerce, and shall cooperate in
the investigation of such breach and the mitigation of any damages.
13. LIMITATIONS OF LIABILITY. SOCIAL COMMERCE'S SOLE AND COMPLETE
LIABILITY TO YOU FOR ANY CLAIMS ARISING OUT OF OR RELATING TO
THIS AGREEMENT, INCLUDING ANY ERRORS, OMISSIONS BY SOCIAL
COMMERCE OR ITS AFFILIATES OR ANY OTHER ACTIVITY RELATED TO
THESE TERMS SHALL BE LIMITED TO THE AGGREGATE NET AMOUNT
ACTUALLY PAID BY YOU TO SOCIAL COMMERCE PURSUANT TO THIS
AGREEMENT DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING
THE COMMENCEMENT OF THE DEAL RESULTING IN ANY SUCH CLAIM. IN
NO EVENT SHALL SOCIAL COMMERCE BE LIABLE TO YOU OR ANY OTHER
THIRD PARTY FOR ANY CLAIMS RELATING TO THE USE OF YOUR GOODS
AND SERVICES, INCLUDING BUT NOT LIMITED TO, CLAIMS RELATING TO
FALSE ADVERTISING, INJURIES, ILLNESSES, DAMAGES, OR DEATH.
14. NO CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL EITHER PARTY BE
LIABLE OR OBLIGATED TO THE OTHER PARTY OR ANY THIRD PARTY IN
ANY MANNER FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY,
CONSEQUENTIAL, PUNITIVE, OR INDIRECT DAMAGES OF ANY KIND,
REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT,
NEGLIGENCE, STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF
INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGES IN ADVANCE.
15. Insurance. You represent and warrant that You have, and shall maintain at your expense
and at all times during the term of this Agreement, all types of liability insurance policies,
with coverage in amounts that are customary for merchants and/or service providers in
your region, consistent with best industry practices and sufficient to fully comply with
applicable law and fulfill your obligations under this Agreement and any other agreement
You have with Social Commerce. At Social Commerce’s request, You will provide
proof of your maintenance of such policies and provide assurances that indicate that
Social Commerce will be covered by your insurance policies in the event of a claim
arising under or in relation to, this Agreement or any Deal You authorize through Social
16. Recovery of Attorney’s Fees for Litigation. In the event it becomes necessary for either
party to institute a suit against the other to secure or protect its rights under this
agreement, the prevailing party shall be entitled to all associated costs of the suit,
including reasonable attorney’s fees, administrative fees, court cost and damages as a part
of any judgment rendered in its favor.
17. Relationship of the Parties. Nothing in this Agreement shall be deemed or construed by
the Parties hereto, nor by any third party, as creating 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 Party in any
way. Social Commerce is not a vendor or co-vendor of your goods and services.
18. No Waiver. Any waiver by either party to this Agreement of a breach of any term or
condition of this Agreement shall not constitute a waiver of any subsequent breach of the
same or any other term or condition of this agreement.
19. Jurisdiction; Venue; Governing Law. This Agreement shall be governed by the
laws of the State of Texas, without reference to principles of conflicts of law, and the
parties further consent to the exclusive jurisdiction and venue of the local and federal
courts located in San Antonio, Texas to resolve any dispute that may arise between the
parties relating to this Agreement, and You consent to the personal jurisdiction thereof.
20. Entire Agreement. This Agreement contains the entire agreement of the parties and
supersedes all prior agreements, representations, and understandings of the parties.
21. Amendment. Social Commerce may change the terms of this Agreement at any time, and
will provide notice to you of a change at the email address associated with your Account.
Changes to this Agreement identified in a notice provided to you in this manner prior to
the fifteenth day of a calendar month will become effective on the first day of the next
calendar month, and your continued use of the Services after that date constitutes your
assent to the changes.
22. Survival. Sections 6, 7, 8, 9, 10, 11, 12, 13 and 14 shall survive expiration or
termination of this Agreement. In addition, following termination or expiration,
Merchant shall continue to honor all Deals, according to their terms, for which
commissions have been remitted by Social Commerce.
23. Severability. If any provision of this Agreement is held to be illegal, invalid or
unenforceable under present or future laws, such provisions shall be fully severable; this
Agreement shall be construed and enforced as if such illegal, invalid of unenforceable
provision had never comprised a part of this Agreement; and , the remaining provisions
of this agreement shall remain in full force and effect and shall not be affected by such
illegal, invalid or unenforceable provision or by its severance from this Agreement.
24. Time to Sue. Any claim one of the Parties has against the other Party must be brought
within one year after the earliest date the claimant knew, or should have known, of the
claim’s existence. This paragraph does not, however, limit a Party’s right to assert any
counterclaims or defenses to offset the underlying claim.
25. Assignment. Social Commerce may assign its rights under this Agreement. You may not
assign or transfer any of your rights, or delegate any of your obligations, under this
Agreement without Social Commerce's prior written consent, and any attempt to do so
will be void from the start and unenforceable.
26. Successors and Assigns. The terms of this Agreement will be binding upon and inure to
the benefit of the parties and their respective heirs, representatives, successors and
permitted assigns, accept as otherwise herein provided. There are no third party
beneficiaries to this Agreement.
27. Electronic Communications. You acknowledge that communications between the parties
often use electronic means. For contractual purposes, you hereby (a) consent to receive
communications from Social Commerce in an electronic form and (b) agree that all terms
and conditions, agreements, notices, disclosures, and other communications that Social
Commerce provides to you electronically satisfy any legal requirement that such
communications would satisfy if it were be in writing. The foregoing does not affect your
28. Notices. Any notice required or permitted hereunder shall be provided in writing, and
shall be deemed delivered when (a) delivered by electronic mail to the then-current e-
mail address in your Merchant Account, or (b) regardless of whether or not actually
received, when deposited in (i) the United States mail, postage prepaid, certified mail,
return receipt requested, or (ii) a regional or national overnight courier service, addressed
to the applicable party at the address set forth in your case, in your Merchant Account,
and in the case of Social Commerce, to : 816 Camaron, Suite 213, San Antonio, TX
78212, attention Chief Executive Officer, or such other address as may be provided by
29. Force Majeure. Neither party shall be liable for any default or delay in the performance of
its obligations under this Agreement due to acts of God, terrorism, natural disasters,
earthquakes, fire, riots, floods, and other similar events, to the extent such event is
beyond the reasonable control of such party and only for the duration of such event.
30. Counterparts. This Agreement may be executed in one or more counterparts, which may
be exchanged by facsimile or other electronic means, each of which shall be deemed an
original and which together shall constitute one and the same agreement.
By registering for the Merchant Portal, this Merchant Agreement and Terms of Service is
hereby executed between You and Social Commerce, Inc.
Social Commerce, Incorporated
816 Camaron, Ste. 213
San Antonio, TX 78212