Merchant Terms and Conditions

Effective Date: October 5, 2017

These Merchant Terms and Conditions (the “Terms and Conditions”) govern and are incorporated into the Yesway Lessons LLC (“Yesway Lessons” “us”, “we”, or “our”) Merchant Agreement between Yesway Lessons and Merchant (collectively, the “Agreement”).

These Terms and Conditions include

  1. Modification
  2. Definitions
  3. Voucher Program
  4. Payment
  5. Customer Data Restrictions
  6. Termination
  7. Compliance with Gift Card, Gift Certificate and Abandoned Property Laws
  8. Marketing
  9. Intellectual Property Rights
  10. Representations and Warranties
  11. Indemnification
  12. Confidentiality
  13. Limitation of Liability
  14. Dispute Resolution
  15. Others

 

1. Modification

We may, at our sole discretion, to modify these Terms and Conditions at any time and without prior notice. The most recent version of the Terms and Conditions with our changes will be posted on our Website and notification of changes may be sent to Merchant via emails. Merchant agrees that either or both of these notification methods constitute adequate notice to inform Merchant of any changes to the Agreement and Merchant further agrees to be bound by any such changes to the Agreement upon such notification.

 

2. Definitions

“Merchant Offering” means the lessons, goods, and/or services to be provided by Merchant. Values of the offering are determined by Merchant.

“Maximum Number of Vouchers” means the maximum number of Vouchers Yesway Lessons is authorized to administer the sale of on behalf of Merchant.

“Monthly Maximum Number of Vouchers” means the maximum number of Vouchers Yesway Lessons is authorized to administer the sale of on behalf of Merchant each month.

“Full Voucher Value” means the full value of each Voucher that will be redeemed by Merchant.

“Amount to Be Paid” means the amount a purchaser pays for each Voucher, which equals Full Voucher Value less Promotional Discount.

“Promotional Discount” means the discount that Merchant offers a purchaser for each Voucher.

“Promotional Discount Expiration Date” means the date when the Promotional Discount expires.

“Redeem & Restrictions” means the conditions and restrictions concerning Voucher redemption.

 

3. Voucher Program

  1. Yesway Lessons is authorized to promote and sell Vouchers on behalf of Merchant subject to the terms of this Agreement and “Terms of Use” of the Website. The Voucher will evidence the Merchant Offering and will be sent to the purchaser electronically once payment is received. The purchaser will then redeem the Voucher with Merchant by presenting the Voucher in paper or electronic form. Merchant is the issuer of the Vouchers and seller of the Merchant Offering. If there is a conflict between this Agreement and the Terms of Use, this Agreement controls.
  2. Yesway Lessons is authorized to promote and sell Vouchers on behalf of Merchant through any platform, including but not limited to, the Website, email, mobile applications, affiliate websites, business partner network, marketplace, or referral network, other types of electronic offerings and other platforms or distribution channels owned, controlled, or operated by Yesway Lessons, its affiliates or business partners. In addition, in connection with Yesway Lessons’ promotion of a Merchant Offering, Merchant authorizes Yesway Lessons to shorten or extend the Promotion Value Expiration Date.
  3. For appointment based Merchant Offerings, Yesway Lessons may require that Merchant provide Yesway Lessons with a calendar of available slots and allow Yesway Lessons purchasers to schedule appointments with the Merchant through Yesway Lessons and any third party service Yesway Lessons may use. Yesway Lessons may audit Merchant response times using various methods, including but not limited to, auto-dialers, call for forwarding and pre-recorded calls. If Yesway Lessons, in its sole discretion, determines Merchant response times or the quality of service provided to purchasers is unsatisfactory, Yesway Lessons may terminate the Agreement and return the amount paid to purchasers for unredeemed Vouchers.
  4. Yesway Lessons is authorized to promote and sell up to the Maximum Number of Vouchers in multiple markets and on dates in its discretion. If Merchant elects to offer recurring month-to-month features, then Yesway Lessons will promote and sell up to the Maximum Number of Vouchers for the initial feature, then promote and sell up to the Monthly Maximum Number of Vouchers for subsequent features. Merchant shall specify the Maximum Number of Vouchers and, if applicable, specify the Monthly Maximum Number of Vouchers, and may increase either number in its discretion.
  5. Yesway Lessons reserves the continuing right to reject, revise, or discontinue any Merchant Offering, at any time and for any reason in Yesway Lessons’ sole discretion, and to terminate the Merchant Offering and to remove all references to the Merchant Offering and Voucher from the Website; and redirect or delete any URL used in connection with the Merchant Offering.
  6. Merchant shall honor the Vouchers for the Merchant Offering through the Promotional Discount Expiration Date. After the Promotional Discount Expiration Date, MERCHANT AGREES TO REDEEM THE VOUCHER FOR THE AMOUNT PAID INDEFINITELY.
  7. After the Promotional Discount Expiration Date, Merchant must always allow the purchaser to redeem the Voucher for the amount paid toward the Merchant Offering. If the lessons, good and/or services constituting the Merchant Offering and stated on the Voucher are no longer available, the Merchant must always allow the purchaser to redeem the Voucher toward any lessons, goods and/or services then offered by the Merchant equivalent to at least the amount paid.
  8. Partial redemptions: if applicable, and if a purchaser redeems a Voucher for less than the amount paid, the Merchant is responsible for handling any unredeemed value as required by applicable law.
  9. Merchant agrees that in proving the Merchant Offering, Merchant will not inflate prices or impose any additional fees, charges, conditions or restrictions that contradict or are inconsistent with the terms stated on the Voucher, including the Redeem & Restrictions. Unless disclosed in the Redeem & Restrictions, Merchant further agrees not to impose different terms or different cancellation policy than what is imposed on its non-Yesway Lessons customers.
  10. Merchant agrees that so long as an appointment or reservation is made to redeem a Voucher, or purchaser has made an attempt to make an appointment, before the Voucher’s Promotional Discount Expiration Date, the Voucher will be honored for the Full Voucher Value without restriction, even though the lessons, goods and/or services may be provided after the Promotional Discount Expiration Date.
  11. For any seasonal Merchant Offering(s), following the initial Promotional Discount Expiration Date specified in the Yesway Lessons Merchant Agreement, (i) the Promotional Discount Expiration Date will reset to be the end of the immediately following season specified by Merchant; and (ii) the Maximum Number of Vouchers will reset to the immediately following season. Throughout the term of the Merchant Agreement, the Promotional Discount Expiration Date and the Maximum Number of Vouchers for the seasonal Merchant Offering(s) will continue to reset after each season.
  12. Merchant is responsible for all customer service in connection with the Merchant Offering and for providing all lessons, goods and/or services stated in the Merchant Offering. Merchant is also responsible for any customer loyalty programs associated with the Merchant offering.
  13. If applicable, Merchant will hold the Merchant Offering for pick-up by each purchaser at the Redemption Site. The “Redemption Site” is the complete and accurate address provided by Merchant to Yesway Lessons where purchasers are able to redeem the Voucher to pick-up the Merchant Offering. Merchant also agrees to provide Yesway Lessons with the hours and dates of operation, complete with any exceptions, and a valid phone number for the Redemption Site. If any of the information related to a Redemption Site changes, Merchant agrees to notify Yesway Lessons immediately of such change.
  14. Merchant agrees to accept returns of the Merchant Offering in compliance with applicable laws and the Redeem & Restrictions, but in any event, (i) will accept returns of a defective Merchant Offering or nonconforming items in or a part of any Merchant Offering at all times and pay (or reimburse a purchaser for) any and all costs associated with the return of such Merchant offering; and (ii) will not impose a more restrictive return policy on purchasers than Merchant’s regular return policy as applied to Merchant’s purchaser in the ordinary course of Merchant’s business.

 

4. Payment

  1. After deductions for fees charged by Yesway Lessons and the bank (if any), the amounts received by Yesway Lessons from the proceeds of the Merchant Offering will be paid to Merchant.
  2. In order for Merchant to get payment from Yesway Lessons for the proceeds of Merchant Offering, Merchant must redeem the Voucher for such Merchant Offering and provide Yesway Lessons the Yesway Code that the purchaser uses to redeem such Voucher.
  3. Merchant will not attempt to bill or collect reimbursement from any third party payor, including but not limited to any insurer, health insurance plan, Medicare, Medicaid, or any other federal, state, provincial, territorial or local governmental program or entity (“Third Party Payor”), for any of Merchant’s lessons, goods and/or services. Merchant will accept the amounts received from Yesway Lessons as payment in full for all lessons, goods and/or services provided by Merchant delivered pursuant to the Merchant Offering. Merchant is solely responsible for complying with any contractual requirements imposed by its contracts with Third Party Payors, including but not limited to requirements related to offering discounted lessons, goods and/or services.
  4. Tax Levy. In the event Yesway Lessons receives written notice of a validly issued state or federal tax levy relating to past-due taxes owed by Merchant, Yesway Lessons may, in accordance with applicable law, deduct any such amounts from payments due to Merchant.
  5. Taxes Generally. It is Merchant’s responsibility to determine what, if any, taxes apply to the payments Merchant makes or receives, and it is Merchant’s responsibility to collet, report and remit the correct tax to the appropriate tax authority. Yesway Lessons is not responsible for determining whether taxes apply to Merchant’s transaction with either purchasers or Yesway Lessons, or for collecting, reporting or remitting any taxes arising from any transaction with or by Merchant and purchaser. Merchant may be asked to provide Yesway Lessons with a valid Tax Identification Number for tax reporting purpose. An IRS Form 1099 may be issued in Merchant’s name for the value of payments made. Notwithstanding anything else in this Agreement, Merchant shall be, and will remain, registered for sales, use and other similar tax collection purposes in all states and localities in which Merchant is required to be so registered in connection with the Merchant Offering and pursuant to the terms and redemption of the Voucher, and shall be responsible for paying any and all sales, use or any other taxes related to the Merchant Offering or the lessons, goods and/or services.
  6. Transaction Taxes. Merchant bears sole financial responsibility for any and all sales, use, excise, general, GST, or other similar taxes, including any interest penalties and additions related thereto, imposed on or arising from the transactions contemplated by this Agreement between Yesway Lessons and Merchant (“Transaction Taxes”), if any. Yesway Lessons shall apply the applicable Transaction Tax to the fees it charges pursuant this Agreement. Transaction Taxes are calculated using the Merchant’s billing address and will be included on invoices. Tax rates are subject to change. If applied, Transaction Taxes will be calculated at the time of each payment using the rates in effect under current applicable law.
  7. Withholding Taxes. Yesway Lessons may be required by tax authorities to withhold taxes on behalf of Merchant. Yesway Lessons reserves the right to deduct any such taxes from amounts due to Merchant and to remit them to appropriate tax authority. Yesway Lessons may also be required to report the withholding tax payments to the tax authorities. Yesway Lessons shall provide evidence of payment of withholding taxes to Merchant no later than 60 days after payment of withholding taxes.
  8. Notwithstanding anything to the contrary, Yesway Lessons will have no obligation to advance amounts that have been paid to Yesway Lessons by a purchaser until Merchant has complied with Merchant’s obligations under this Agreement. If Yesway Lessons reasonably believes that Merchant has breached any provision of this Agreement, Yesway Lessons may offset, delay, withhold, or suspend future payments to Merchant, in Yesway Lessons’ sole discretion. In addition, if Merchant is unwilling to, or in Yesway Lessons’ reasonable discretion appears unable to, perform its obligations under this Agreement, Yesway Lessons is authorized to offset, delay, withhold, or suspend future payments to Merchant in addition to such other remedies as may be available under this Agreement or at law, to secure payment from Merchant for any refunds and/or other amounts payable by Merchant under this Agreement.

 

5. Customer Data Restrictions

  1. “Customer Data” means all identifiable information about purchasers generated or collected by Yesway Lessons or Merchant, including but not limited to, purchasers’ name, shipping addresses, email addresses, phone number, purchaser preferences and tendencies, and financial transaction data.
  2. Merchant shall use Customer Data only to fulfill its redemption obligations in connection with the Merchant Offering as authorized by this Agreement. Merchant expressly agrees that any Customer Data shall be used only for this purpose (including but not limited to, the redemption of Vouchers and provision of lessons, goods and/or services to purchasers), and not to enhance a file or list owned by Merchant, or any third party. Merchant represents, warrants and covenants that it will not resell, broker or otherwise disclose any Customer Data to any third party, in whole or in part, for any purpose, unless required by applicable law. If Merchant engages any third party to facilitate its redemption obligations hereunder, Merchant shall ensure that such third party implements and complies with reasonable security measures in handling any Customer Data. If any Customer Data is collected directly by Merchant or a third party engaged by Merchant to facilitate its redemption obligations hereunder, Merchant shall ensure that it or such third party adopts, posts and processes the Customer Data in conformity with its posted privacy policy and all applicable laws.
  3. As long as Merchant uses Customer Data in compliance with applicable law and Merchant's posted privacy policy, restrictions stated in this Agreement on Merchant's use of Customer Data do not apply to: (i) data from any purchaser who is already a customer of Merchant before the Effective Date, if such data was provided to Merchant by such purchaser independent of this Agreement or any transaction hereunder; or (ii) data supplied by a purchaser directly to Merchant who becomes a customer of Merchant in connection with such purchaser explicitly opting in to receive communications from Merchant.
  4. Merchant shall immediately notify Yesway Lessons if Merchant becomes aware of or suspects any unauthorized access to or use of Customer Data or any confidential information of Yesway Lessons, and shall cooperate with Yesway Lessons in the investigation of such breach and the mitigation of any damages. Merchant will bear all associated expenses incurred by Yesway Lessons to comply with applicable laws (including but not limited to, any data breach laws) or arising from any unauthorized access or acquisition of Customer Data while such data is in Merchant’s reasonable possession or control. Upon termination or expiration of this Agreement, Merchant shall, as directed by Yesway Lessons, destroy or return to Yesway Lessons all the Customer Data in Merchant’s or any agent of Merchant’s possession.

 

6. Termination

This Agreement will continue in effect until terminated by either party in accordance with the “Term” section of the Yesway Lessons Merchant Agreement between Yesway Lessons and Merchant.

Yesway Lessons may immediately, without notice terminate this Agreement if (i) Merchant has breached these Terms or our policies, including but not limited to any breach of Merchant’s warranties outlined in this Agreement, (ii) Merchant has provided inaccurate, fraudulent, outdated or incomplete information for Merchant Offering, (iii) Merchant has violated applicable laws, regulations or third party rights, or (iv) Yesway Lessons believes in good faith, and in our sole discretion, that such action is reasonably necessary to protect the safety or property of purchasers, Yesway Lessons or third parties, for fraud prevention, risk assessment, security or investigation purposes.

Termination of this Agreement will not in any way affect Merchant’s obligation to redeem any Voucher according to the terms of this Agreement, including the obligation to honor the Voucher which may have been purchased by the purchaser. Provisions in this Agreement that are intended to survive termination will continue in full force and effect after the termination.

 

7. Compliance with Gift Card, Gift Certificate and Abandoned Property Laws

Merchant agrees to comply with the Voucher terms and conditions as stated on the Website including but not limited to the “Terms of Use” of the Website, and to ensure that the Vouchers comply with all laws that govern vouchers, gift cards, coupons, and gift certificates, including but not limited to the United States Credit CARD Act of 2009 (if applicable) and any laws governing the imposition of expiration dates, service charges or dormancy fees and all Redeem & Restrictions related to the Merchant Offering stated on the Voucher. Merchant is solely responsible for compliance with any applicable escheat or abandoned or unclaimed property laws. Upon written request from Merchant, but only when required, Yesway Lessons will provide Merchant with information in Yesway Lessons’ possession that the Merchant needs to comply with its obligations under this Agreement.

 

8. Marketing

Yesway Lessons and its business partners may communicate with Merchant with regard to products, promotions, and other services that may be of interest to Merchant. This may include email or other communications. Yesway Lessons may also solicit Merchant’s opinion for market research purposes.

 

9. Intellectual Property Rights

  1. Merchant grants to Yesway Lessons a non-exclusive, worldwide, royalty free, paid-up perpetual, irrevocable, transferable, and sub-licensable license and right to use, modify, reproduce, sublicense, publicly display, distribute, broadcast, transmit stream, publish and publicly perform: (i) Merchant’s name, logos, trademarks, service marks, domain names, and any audiovisual content, video recordings, audio recordings, photographs, graphics, artwork, text and any other content provided specified, recommended, directed, authorized or approved to use by Merchant (collectively “Merchant IP”); and (ii) any third party’s name, logos, trademarks, service marks, domain names, audiovisual recordings, video recordings, audio recordings, photographs, graphics, artwork, text and any other content provided specified recommended, directed, authorized or approved for the use by Merchant (collectively “Third Party IP”), in each case in connection with the promotion and resale of the lessons, goods/or and services in all media or formats now known or hereinafter developed (“License”). Any use of the Merchant IP or Third Party IP as contemplated in this Agreement is within Yesway Lessons’ sole discretion.
  2. Merchant acknowledges and agrees that, as between the parties, Yesway Lessons owns all interest in and to the Website, Customer Data, Yesway Lessons trade names, logos, trademarks, service marks, domain names, social media identifiers, all data collected through or from the Website, all audiovisual content, video recordings, audio recordings, photographs, graphics, artwork, text or any other content created by Yesway Lessons or at Yesway Lessons’ direction, or assigned to Yesway Lessons, and any materials, software, technology or tools used or provided by Yesway lessons to promote, resell or distribute the lessons, goods and/or services and conduct its business in connection therewith (collectively “Yesway Lessons IP”). Merchant shall not use, sell, rent, lease, sublicense, distribute, broadcast, transmit, stream, place shift, transfer, copy, reproduce, download, time shift, display, perform, modify or timeshare the Yesway Lessons IP or any portion thereof, or use such Yesway Lessons IP as a component of or a base for products or services prepared for commercial use, sale, sublicense, lease, access or distribution. Merchant shall keep the Yesway Lessons IP confidential, and shall not prepare any derivative work based on the Yesway Lessons IP or translate, reverse engineer, decompile or disassemble the Yesway Lessons IP. Merchant shall not take any action to challenge or object to the validity of Yesway lessons’ rights in the Yesway Lessons IP or Yesway Lessons ownership or registration thereof. Except as specifically provided in this Agreement, Merchant and any third party assisting Merchant with its obligations in this Agreement, are not authorized to use Yesway Lessons IP in any medium without prior written approval from an authorized representative of Yesway Lessons. Merchant shall not include any trade name, trademark, service mark, domain name, social media identifier, or Yesway Lessons or its affiliates, or any variant or misspelling thereof, in any trademark, domain name, email address, social network identifier, metadata or search engine keyword. Merchant shall not use or display any Yesway Lessons IP in a manner that could reasonably imply an endorsement, relationship, affiliation with, or sponsorship between Merchant or a third party and Yesway Lessons. All rights to the Yesway Lessons IP not expressly granted in this Agreement are reserved by Yesway Lessons.
  3. If merchant provides Yesway Lessons or any of its affiliates with feedback, suggestions, reviews, modifications, data, images, text, or other information or content about a Yesway Lessons product or service or otherwise in connection with this Agreement, any Yesway Lessons IP, or Merchant’s participation in the Merchant Offering or Voucher (collectively “Feedback”), Merchant irrevocably assigns to Yesway Lessons all right, title, and interest in and to Feedback. In the event Merchant’s assignment to Yesway Lessons is invalid for any reason, Merchant hereby irrevocably grant Yesway Lessons and its affiliates a perpetual, paid-up, royalty-free, nonexclusive, worldwide, irrevocable, freely transferable right and license to (i) use, reproduce, perform, display, and distribute Feedback; (ii) adapt, modify, re-format, and create derivative works of Feedback for any purpose and sublicense the foregoing rights to any other person or entity. Merchant warrants that, (i) Feedback is Merchant’s original work, or Merchant obtained Feedback in a lawful manner; and (ii) Yesway Lessons and its sublicensees’ exercise of rights under the license above will not violate any person’s or entity’s rights, including any copyright rights. Merchant agrees to provide Yesway Lessons such assistance as Yesway Lessons might require to document perfect or maintain Yesway Lessons’ right in and to Feedback.

 

10. Representations and Warranties

Merchant represents and warrants that: (i) Merchant has the right, power and authority to enter into this Agreement; (ii) Merchant, if required by applicable law, is registered for sales and use tax collection purposes in all jurisdictions where Merchant's lessons, goods and/or services will be provided; (iii) the Voucher, upon being delivered by Yesway Lessons, will be available immediately for redemption and Merchant will have sufficient lessons, goods and/or services available for redemption through the Promotional Discount Expiration Date (i.e., a number of lessons, goods and/or services sufficient to fulfill its redemption obligations in connection with the applicable Maximum Number of Vouchers); (iv) the terms and conditions of the Voucher, including any discounts or lessons, goods and/or services offered thereunder do not and will not violate any, local, state, provincial, territorial or federal law, statute, rule, regulation, or order, including but not limited to, any law or regulation governing the use, sale, and distribution of alcohol and any laws governing vouchers, gift cards, coupons, and gift certificates; (v) the Merchant’s redemption of the Voucher will result in the bona fide provision of lessons, goods and/or services by Merchant to the purchaser; (vi) Merchant owns all interest in and to the Merchant IP and has licensing rights in (with the right to sublicense to Yesway Lessons) the Third Party IP, and has the right to grant the License stated in this Agreement; (vii) the Merchant IP and the Third Party IP, the Merchant Offering, Yesway Lessons’ use and promotion thereof, and the results of such Merchant Offerings, will not infringe, dilute, misappropriate, or otherwise violate, anywhere in the world, any patent, copyright, logo, trademark, service mark, trade name, rights in designs, or other intellectual property right or right of privacy or publicity of any third party or any applicable law, and does not and will not result from the misappropriation of any trade secret or the breach of any confidentiality obligations to any person or entity; (viii) the Merchant IP and Third Party IP does not include any material that is unlawful, threatening, abusive, defamatory, vulgar, obscene, profane or otherwise objectionable, or that encourages conduct that constitutes a criminal offense, gives rise to civil liability or otherwise violates any law; (ix) the Vouchers and any advertising or promotion of Merchant's lessons, goods and/or services relating thereto will not constitute false, deceptive or unfair advertising or disparagement under any applicable law; (x) Merchant and its employees, contractors and agents have had the proper education and training and hold all required and up-to-date regulatory authorization, licenses and certifications relating to any Merchant Offering to provide the lessons, goods and/or services described in this Agreement; (xi) Merchant's business information and direct deposit details as provided in this Agreement, indicating where payments should be forwarded are accurate and Merchant is the authorized entity to receive the funds forwarded by Yesway Lessons; (xii) Merchant is not authorized to resell, broker or otherwise disclose any Customer Data (as defined in this Agreement) to any third party, in whole or in part, for any purpose, and Merchant is not authorized to copy or otherwise reproduce any Customer Data other than for the purpose of redeeming or verifying the validity of Vouchers in connection with this Agreement and (xiii) the Merchant Offering is: (a) free from defects in workmanship, materials and design, (b) merchantable and suitable for the purposes, if any, stated in the Agreement, and (c) genuine, bona fide products, as described herein and does not violate the rights of any third party.

 

11. Indemnification

To the extent allowed under applicable law, Merchant agrees to defend, indemnify and hold Yesway Lessons, its affiliated and related entities, and any of its respective officers, directors, agents and employees, harmless from and against any claims, lawsuits, investigations, penalties, damages, losses or expenses (including but not limited to reasonable attorneys' fees and costs) arising out of or relating to any of the following: (a) any breach or alleged breach by Merchant of this Agreement, or the representations and warranties made in this Agreement; (b) any claim for state sales, use, or similar tax obligations of Merchant arising from the sale and redemption of a Voucher; (c) any claim by any local, state, provincial, territorial or federal governmental entity for unredeemed Vouchers or unredeemed cash values of Vouchers or any other amounts under any applicable abandoned or unclaimed property or escheat law, including but not limited to any claims for penalties and interest; (d) any claim arising out of a violation of any law or regulation by Merchant or governing Merchant's lessons, goods and/or services; (e) any claim arising out of Merchant's violation of law or regulation governing the use, sale, and distribution of alcohol; (f) any claim by a purchaser or anyone else arising out of or relating to the lessons, goods and/or services provided by Merchant and/or pick up of the lessons, goods and/or services at the Redemption Site, including but not limited to, any claims for false advertising, product defects, personal injury, death, or property damages; (g) any claim by a purchaser for the amount paid; (h) any claim arising out of Merchant's misuse of Customer Data, or any violation of an applicable data privacy or security law; and (i) any claim arising out of Merchant’s negligence, fraud or willful misconduct. Yesway Lessons maintains the right to control its own defense and to choose and appoint its own defense counsel, regardless of the presence or absence of a conflict of interest between Yesway Lessons and Merchant. Merchant's duty to defend and indemnify Yesway Lessons includes the duty to pay Yesway Lessons’ reasonable attorneys' fees and costs, including any expert fees.

 

12. Confidentiality

The terms for the Merchant Offering described in this Agreement are confidential, and Merchant agrees not to disclose the terms described in this Agreement to any party (other than to its employees, parent companies, shareholders, lawyers and accountants on a strict need-to-know basis or as required by applicable public records and other law, if Merchant has taken the necessary precautions of the kind generally taken with confidential information to preserve the confidentiality of the information made available to such parties). In the event of a breach, Yesway Lessons is entitled to injunctive relief and a decree for specific performance, and any other relief allowed under applicable law (including monetary damages if appropriate).

 

13. Limitation of Liability

EXCEPT FOR MERCHANT'S INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT IS EITHER PARTY LIABLE OR OBLIGATED TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST BUSINESS, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE, OR INDIRECT DAMAGES REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGES IN ADVANCE. YESWAY LESSONS’ SOLE AND COMPLETE LIABILITY TO MERCHANT FOR ANY CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR ANY ERRORS, OMISSIONS OR MISPLACEMENTS OF ANY VOUCHER IS LIMITED TO THE AMOUNT OF FEES CHARGED BY YESWAY LESSONS HEREUNDER FOR THE PRECEDING SIX (6) MONTHS AFTER FINAL CALCULATION AND RECONCILIATION OF ALL REFUNDS. THIS LIMITATION OF LIABILITY APPLIES TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF ANY LIMITED REMEDY. IN ADDITION, ANY CLAIM BY OR ON BEHALF OF A MERCHANT IN CONNECTION WITH ANY PAYMENT MADE BY YESWAY LESSONS, INCLUDING BUT NOT LIMITED TO, CLAIMS ALLEGING THAT A MERCHANT WAS UNDERPAID, MUST BE MADE IN WRITING TO YESWAY LESSONS WITHIN NINETY (90) DAYS FROM THE DATE YESWAY LESSONS MADE THE PAYMENT. ALL CLAIMS NOT MADE IN ACCORDANCE WITH THE FOREGOING SHALL BE DEEMED WAIVED, RELEASED AND DISCHARGED BY MERCHANT.

 

14. Dispute Resolution

Any dispute or claim between Merchant and Yesway Lessons arising out of, or relating in any way to, this Agreement shall be resolved by binding arbitration, rather than in court. The Federal Arbitration Act and federal arbitration law apply to this Agreement.

There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damage and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms for these Terms of Use as a court would.

To begin an arbitration proceeding, Merchant must send a letter requesting arbitration and describing Merchant’s claim to Yesway Lessons’ registered agent Agents and Corporations, Inc., 1201 Orange Street, Suite 600, Wilmington, DE 19801. The arbitration will be conducted by the American Association (AAA) under its rules, including the AAA’s Supplementary Procedures for Consumer-Related Disputes. The AAA’s rules are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitration fees will be governed by the AAA’s rules. Yesway Lessons will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, Yesway Lessons will not seek attorney’s fees and costs in arbitration unless the arbitrator determines the claims are frivolous. Merchant may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where Merchant locates or at another mutually agreed location.

Both parties each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration both parties each waive any right to a jury trial. Both parties also agree that Merchant or Yesway Lessons may bring suit in court to enjoin infringement or other misuse of intellectual property rights.

 

15. Others

  1. The parties are independent contractors. Nothing in this Agreement is to be construed to create a joint venture, partnership, franchise, or an agency relationship between the parties. Neither party has the authority, without the other party's prior written approval, to bind or commit the other in any way.
  2. This Agreement constitutes the entire agreement between the parties relating to its subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter.
  3. Merchant is not authorized to transfer or assign its rights or obligations under this Agreement, whether by operation of law or otherwise, without Yesway Lessons’ prior written consent. Any waiver must be in writing and signed by an authorized signatory of Yesway Lessons. Yesway Lessons is authorized to transfer or assign this Agreement to a present or future affiliate or pursuant to a merger, consolidation, reorganization or sale of all or substantially all of the assets or business, or by operation of law, without notice to Merchant.
  4. If any provision of this Agreement should be held to be invalid or unenforceable, the validity and enforceability of the remaining provisions of this Agreement are not affected.
  5. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS NOR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. YESWAY LESSONS DOES NOT WARRANT OR GUARANTEE THAT THE SERVICES OFFERED ON OR THROUGH THE WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE VOUCHERS ARE ERROR-FREE, OR THAT ANY MERCHANT OFFERING WILL RESULT IN ANY REVENUE OR PROFIT FOR MERCHANT.

Yesway Lessons™ 2018