Merchant Agreement
This Merchant Agreement (“Merchant Agreement”) contains the terms under which Peek Travel, Inc. (“Peek”) agrees to grant the merchant identified on the applicable Service Order (“Merchant”) access to and use of Peek’s online platform and services. By executing a Service Order that references this Merchant Agreement, the parties agree as follows:
1. DEFINITIONS
1.1. “Affiliate” means any entity that, directly or indirectly, controls, is controlled by or is under common control with such entity (but only for so long as such control exists), where “control” means the ownership of more than 50% of the outstanding shares or securities representing the right to vote in the election of directors or other managing authority of such entity.
1.2. “Agreement” means this Merchant Agreement together with each applicable Platform Addendum and the Service Order.
1.3. “Chargeback” means a request to invalidate a payment that a Customer files directly with (a) his or her debit or credit card company; (b) his or her debit or credit card-issuing bank; or (c) any other entity that provides payment services.
1.4. “Confidential Information” means information in any form, whether oral or written, of a business, financial or technical nature which is disclosed by a party (“Disclosing Party”) during the Term and which the recipient (“Receiving Party”) reasonably should know is confidential, but excluding the information listed in Section 12.2. The terms of this Agreement (including pricing) are each party’s Confidential Information.
1.5. “Customer(s)” means one or more of any person or entity that reserves or purchases a Merchant Service from Merchant’s business, where the purchase is made through or entered into the Peek Platform. “Customer(s)” may be defined differently in the applicable Platform Addendum for that specific addendum.
1.6. “Effective Date” means the date set forth in the Service Order.
1.7.“Fraudulent Charge” means a credit or debit card charge by a Customer that is determined by the card company or payment processor to be fraudulent.
1.8 “Merchant” means the entity identified as such in the Service Order.
1.9.“Merchant Content” means (a) each and all of the text, graphics, logos, video, audio, information, data, software, and other content and materials relating to the Merchant Services which are produced or provided by or for Merchant, and (b) any and all copyrights, trademarks and other intellectual property and proprietary rights related thereto, as now or hereafter constituted and in any form or media.
1.10. “Merchant Service(s)” means one or more of Merchant’s activities, rentals, or other goods or services that the Merchant offers to Customers or otherwise manages using the Peek Platform. “Merchant Services” may be defined differently in the applicable Platform Addendum for that specific addendum.
1.11.“Peek Content” means all information, data, products, materials, and all other content, software and services made available on or through the Peek Platform or otherwise generally provided to Merchant by Peek. “Peek Content” does not include Merchant Content.
1.12. “Peek Fees” means the Commissions, Flat Fees, and other amounts payable to Peek, as set forth in the Service Order. “Peek Fees” specifically exclude any credit card processing fees or charges.
1.13 “Peek Payments” means the payment processing solutions operated by Peek.
1.14. “Peek Platform” means the Peek services purchased by Merchant as set forth in the Service Order.
1.15. “Platform Addendum” means an addendum attached to this Agreement, which contains terms specific to a purchased Peek Platform offering.
1.16. “Service Order” means the Peek Service Order executed by Peek and Merchant referencing this Merchant Agreement.
1.17. “Voucher” means a confirmation of purchase provided by Peek to a Customer after processing the Customer’s purchase.
2. THE SERVICES
2.1 Service Order, Product Schedules, Precedence. By executing a Service Order, Merchant orders the subscriptions to use one or more Peek Platform offerings pursuant to the Service Order. Each Peek Platform offering is also subject to the applicable Platform Addendum. If there is any conflict among any provisions of this Agreement, the descending order of precedence will be (unless expressly stated otherwise for any particular terms): Service Order, Platform Addendum, Merchant Agreement.
2.2 Merchant Account. Merchant must set up an account with Peek in connection with Merchant’s use of the Peek Platform ("Merchant Account"). Merchant will designate one or more of its employees to be the point of contact with Peek for the management and support of the Peek Platform, and who will be responsible for establishing and managing Merchant’s use of the Peek Platform, including the creation of authentication credentials to access the Merchant Account. Merchant will safeguard all Merchant Account user authentication credentials in its possession or under its control and is responsible for acts and omissions of its Merchant Account users relating to this Agreement as though they were Merchant’s own. Merchant is responsible for all activities that occur under the Merchant Account and for the accuracy, quality and integrity of the Merchant Content that Merchant or its users input into the Peek Platform. Merchant shall keep all Merchant Account information accurate, up-to-date, and current.
2.3 License; Use of the Peek Platform. Subject to Merchant’s full compliance with this Agreement (including the applicable Platform Addendum) at all times, Peek grants to Merchant a limited non-exclusive, non-sublicensable, non-transferable, non-assignable and revocable right and license during the Term to access and use the applicable Peek Platform offering solely for its internal business purposes. The use of the Peek Platform for any purpose not expressly permitted by this Agreement (including in an applicable Platform Addendum) is prohibited and will be deemed to be a material breach of this Agreement. The rights granted to Merchant to use each Peek Platform offering are set forth in the applicable Platform Addendum and are subject to any use limitations that may be set forth in the applicable Platform Addendum and the Service Order.
2.3.1. Peek Pro. If Merchant has purchased Peek’s Peek Pro offering, the Peek Professional Software Addendum attached hereto will apply. Merchant acknowledges and consents that by purchasing the Peek Pro offering, Peek may, in its sole discretion, enroll Merchant and any Merchant Service in Peek’s Peek.com marketplace which includes Peek Pals (as defined in the Peek Activity Marketplace Addendum). Merchant further acknowledges that enrollment in the Peek.com marketplace may result in increased Commission rates to Peek solely related to the Peek Activity Marketplace Addendum and Merchant shall pay any such increased Commission rates. Merchant may at any time opt out of enrollment in the Peek.com marketplace by giving Peek written notice of such decision to opt out.
2.3.2. Peek.com. If Merchant has enrolled in Peek’s Peek.com marketplace offering, the Peek Activity Marketplace Addendum attached hereto will apply.
2.3.3 Reseller Hub. If Merchant has enrolled in Peek’s Reseller Hub offering, the Peek Reseller Hub Addendum attached hereto will apply.
2.4 Changes to Agreement. From time to time Peek may change the terms of this Merchant Agreement or a Platform Addendum. Peek reserves the right to make any and all such changes. Peek will strive to provide advance notice of any change that materially alters the terms of this Merchant Agreement or a Platform Addendum.
2.5 Electronic Messaging. Peek may include the ability within the Peek Platform to communicate with Customers using SMS, other text message mechanisms, email, or other electronic messaging platforms (each an “Electronic Message”). To the extent Customers opt-in to Electronic Messages, the following terms apply:
2.5.1 Merchant expressly authorizes Peek, through its vendors or agents, to communicate with Customers through Electronic Messages.
2.5.2 Merchant shall ensure that all Electronic Messages comply with applicable law.
2.5.3 Merchant shall include the following or substantially similar language prominently in Merchant’s applicable terms and conditions or similar agreement with Customers:
“By opting into text or other electronic messages, you: (i) expressly consent to be contacted by [MERCHANT NAME] or our agents for all purposes arising out of or relating to your relationship with us at the telephone number(s) you provide, including for marketing or promotional messages; (ii) agree we may contact you in any way, including SMS messages, and calls, if applicable, and messages delivered using auto telephone dialing system or an automatic texting system; and (iii) represent and warrant that you have read, or had the opportunity to read, and agree to our terms and conditions or similar agreement and privacy policy, located at: [insert hyperlinks]. While variable based on your purchase behavior, marketing-based text messages will not exceed 5 per month. You understand that consent is not a condition of purchase. You can unsubscribe from further text messages by replying STOP. Message and data rates may apply.”
2.5.4 Merchant shall abide by all restrictions imposed by Peek regarding the use of Electronic Messages.
2.5.5 Merchant hereby grants to Peek a limited, non-exclusive license to use Merchant’s name, marks, logos, and other identifiers as necessary to carry out the foregoing and as otherwise needed to send Electronic Messages.
2.5.6 Merchant acknowledges that Peek is not responsible for any Electronic Messages or other communications that occur between Merchant and Customers outside of the Peek Platform.
2.5.7 Merchant represents and warrants that all Customers expressly consent to providing their phone numbers, email addresses, or other identifiable electronic contact information for the purpose of receiving Electronic Messages. Merchant shall notify all such Customers of their right to unsubscribe from further Electronic Messages by providing the notice above. Merchant shall indemnify and hold the Peek Indemnified Parties harmless arising out of related in any way related to your breach of the foregoing.
3. SALE AND PERFORMANCE OF MERCHANT SERVICES
3.1 Seller of Record. Merchant expressly acknowledges that it is the sole seller of record of all Merchant Services, and that Peek’s activities are undertaken solely to assist Merchant in facilitating the sale of such Services. Except for the limited purpose described in Section 3.3, Merchant acknowledges that Peek is not Merchant’s agent and nothing in this Agreement can be construed to the contrary. Peek will not be a party to any agreement between Merchant and any Customer and Merchant is directly responsible for any and all breaches or other liabilities occurring in connection with the Merchant Services.
3.2 Accuracy of Merchant Content. Merchant is solely responsible for the accuracy of all Merchant Content, including pricing and availability details, whether or not such information is communicated to Peek or whether Peek installs such Merchant Content. Merchant acknowledges it maintains final approval of all Merchant Content posted anywhere within the Peek Platform and will hold Peek harmless for any errors or inaccurate information contained in the Merchant Content.
3.3 Collection of Payment from Customers. Merchant appoints Peek as its agent solely to collect credit and debit card payments on its behalf from Customers for purchases of Merchant Services made through or entered into the Peek Platform. Peek will use third party payment processors for all credit and debit card transactions as determined solely by Peek, and this Agreement will be subject to the requirements of such processors and of applicable law.
3.4 Vouchers. Peek will provide each purchasing Customer with a Voucher and directions on how to use a Voucher to redeem the purchased Merchant Service. Merchant shall fully and faithfully accept and honor all Vouchers sold to Customers and to perform all Merchant Services in accordance with the terms and conditions as stated in the Voucher at the time of purchase. Merchant will accept Vouchers presented on mobile devices unless otherwise agreed upon in writing.
4. FEES; COLLECTION AND REMITTANCE; CHARGEBACKS; REFUNDS
4.1 Fees. Peek is entitled to a commission (“Commission”), a flat fee (“Flat Fee”) on all of the Merchant Services purchased through or entered into the Peek Platform, and all other Peek Fees, as set forth in the Service Order. Peek will withhold and retain the Peek Fees for its own account from Customer Payments (defined below) and remit any net Merchant Payment (defined below) to Merchant as described below. Peek may recoup any currency conversion fees from Customers. Peek also reserves the right to invoice Merchant for Peek Fees in Peek’s sole discretion. Merchant acknowledges that if Merchant uses a third-party processor rather than Peek Payments for payment processing, Merchant is solely responsible for such credit card fees. Merchant shall make payment of each invoice within thirty (30) days of the invoice date. Merchant shall reimburse any reasonable costs and expenses (including, but not limited to, reasonable attorney fees) incurred by Peek to collect any amount that is not paid by Merchant when due. If Merchant fails to pay such invoice when due, Merchant acknowledges that Peek may seek to collect on the unpaid amounts, including by referral of Merchant’s unpaid invoice to a collection agency. Merchant is responsible for any costs incurred in connection with the recovery of the unpaid amounts (including the agency’s fees and any legal fees).
4.2 Collection and Remittance. Except as otherwise provided in the Agreement, Peek will remit to Merchant, the total amount of the payments collected by Peek from Customers for the Merchant Services (“Customer Payments”) minus all Commissions, Flat Fees, other Peek Fees and amounts due to Peek, all Customer refunds, Chargebacks, credit or debit card processing fees and charges, and Fraudulent Charges. All such payments by Peek are collectively referred to as “Merchant Payments.” Unless otherwise provided in a Platform Addendum or the Service Order, Merchant Payments will be made each business day that is not a bank holiday. All Merchant Payments will be converted into and made in U.S. Dollars, unless otherwise agreed upon by the parties in the Service Order. Peek is not responsible for the collection or payment of any incidentals from Customers. Peek may recoup through invoice or withholding of any wire fees due to incorrect or incomplete bank information provided by the Merchant.
4.3. Taxes With respect to payments collected by Peek for purchases of Merchant Services through the Peek Platform, Peek will collect and withhold from Customers all applicable Transaction Taxes and will remit such Transaction Taxes to Merchant as part of the Merchant Payments. “Transaction Taxes” means all applicable sales, use taxes, value added taxes (VAT), and other transactional taxes for purchases of Merchant Services. Merchant shall comply with all applicable laws and timely file all returns and remit all taxes and other governmental charges in connection with the sale or performance of the Merchant Services (including all Transaction Taxes, whether Peek collected the Customer Payment or Merchant collected the Customer Payment directly) and any payments accrued or received by Merchant for the Merchant Services. Merchant shall fully indemnify, hold harmless, and defend Peek and its Affiliates and contractors from all liabilities related to taxes and other governmental charges, including Transaction Taxes. Merchant acknowledges that Peek may be legally required to report the Merchant Payments and other payments made to Merchant to tax or other governmental authorities under applicable law.
4.4. Chargebacks and Fraudulent Charges.
4.4.1. Handling of Chargebacks. In the event a Customer who purchased the Merchant Services initiates a Chargeback, Merchant acknowledges and consents for Peek to deduct the full amount of the Chargeback, as well as any associated fees, fines, or penalties, received from Customer Payments from the next Merchant Payment due to Merchant. If Merchant’s next Merchant Payment is insufficient, Merchant shall pay Peek the full Chargeback balance upon invoicing as set forth in Section 4.1. Peek will use reasonable efforts to investigate and, if appropriate, challenge suspect Chargebacks. Merchant shall use reasonable efforts, at Merchant’s sole expense, to assist Peek, at Peek’s request, in the investigation of any such suspect Chargebacks. If Peek, in its sole judgment, determines that a separate agreement sufficiently protects it from a particular Chargeback, Peek may, in its sole discretion, waive Merchant’s obligation to compensate Peek directly.
4.4.2. Excessive Chargebacks. If Peek determines, in its sole discretion, that Merchant is incurring or may incur excessive Chargebacks, Peek may establish controls or conditions governing Merchant’s account, such as: (a) establishing new processing fees and charging Merchant for excessive dispute charges or chargeback fees imposed by a payment processor or credit card company, (b) delaying Merchant Payments, including imposing an indefinite delay or modifying Merchant’s payout plan, (c) refusing the award of Chargebacks, (d) terminating or suspending Merchant’s access to the Peek Platform, or (e) creating a reserve fund of a reasonable amount, determined solely by Peek, from Customer Payments to use for Chargebacks. After the maximum time period for a dispute window has closed following termination of a Service Order or the Agreement, Peek will remit to Merchant any remaining balance in the reserve fund as part of the final Merchant Payment to Merchant.
4.4.3. Fraudulent Charges. In the event of a Fraudulent Charge, Merchant acknowledges and consents for Peek to deduct the full amount of the Fraudulent Charge, as well as any associated fees, fines, or penalties, received from Customer Payments from the next Merchant Payment due to Merchant. If Merchant’s next Merchant Payment is insufficient, Merchant shall pay Peek the full balance upon invoicing as set forth in Section 4.1.
4.5 Refunds. In the event of a Fraudulent Charge or a payment of any refund to a Customer, (a) Peek will not charge or retain any applicable Commission on the applicable transaction, and (b) Peek will not be responsible for paying any amount to the Merchant for such transaction, except to the extent otherwise expressly provided in a Platform Addendum.
5. PROPRIETARY RIGHTS
5.1 Peek Property and Rights. Merchant acknowledges that Peek and its successors and assignees are and will remain the exclusive owners in all jurisdictions of the Peek Platform and Peek Content, including all patents, copyrights, trademarks, trade secrets, moral rights and other intellectual property rights and proprietary rights related thereto, excluding only the Merchant Content (together, “Peek Property and Rights”). All rights not expressly granted to Merchant under this Agreement are hereby reserved by Peek, and no license or other rights are being granted by Peek by implication, estoppel, or otherwise.
5.2 Merchant Content. Peek acknowledges that, as between Peek and Merchant, Merchant is and will remain the exclusive owner in all jurisdictions of the Merchant Content, including all patents, copyrights, trademarks, trade secrets, moral rights and other intellectual property rights and proprietary rights related thereto. Merchant hereby grants to Peek a worldwide, nonexclusive, fully-paid up, royalty-free, transferable right and license (with right to sublicense through multiple tiers) during the Term to copy, reproduce, distribute, disclose, publish, broadcast, communicate, display, perform (whether publicly or otherwise), host, store, prepare derivative works from, translate, modify, or combine with other data or information or content, or otherwise use any and all of the Merchant Content and to have others exercise such rights and license on behalf of Peek in connection with the Merchant Services.
5.3. Merchant Input. Peek welcomes any feedback or other input that Merchant may provide Peek concerning improvements to the Peek Platform (“Input”). Input excludes Merchant’s Confidential Information. By providing Input to Peek, Merchant acknowledges that all Input becomes Peek’s exclusive property, and Merchant hereby assigns to Peek all its rights to Input, including all intellectual property rights in Input. At Peek’s request and expense, Merchant shall execute documents and take such further action as Peek may reasonably request to assist it in acquiring, perfecting, or maintaining intellectual property rights in Input.
6. RESTRICTED ACTIVITIES. Merchant shall not directly or indirectly:
(a) infringe upon or misappropriate any Peek Property and Rights, or remove or alter any proprietary notices or labels;
(b) take any act which undermines the integrity or functionality of, or interferes with, or transmits or uploads any content or code which contains a virus, Trojan horse, worm or other harmful component, or circumvents or disables any security or data protection measures for any part of the Peek Platform;
(c) reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer, or create derivative works of the Peek Property and Rights;
(d) circumvent or disable any technological or security features or measures in the Peek Platform;
(e) rent, lease, or sublicense the Peek Platform or otherwise provide unauthorized access thereto;
(f) reproduce, distribute, transmit, publish, display, perform, disclose, prepare derivative works from, translate, modify or combine or use any of the Peek Property and Rights, excepting only uses expressly permitted by this Agreement;
(g) upload, submit, or transmit any Merchant Content or other material which (i) infringes upon or misappropriates the intellectual property rights or other legal rights of any third party, (ii) constitutes unlawful, obscene, harassing or offensive content or activity or (iii) breaches or violates any privacy or confidentiality or other legal obligations; or
(h) frame, mirror, or link to any of the Peek Platform without the express written consent of Peek in its sole discretion.
7. INDEMNIFICATION
7.1. Indemnification by Peek.
7.1.1. Indemnification. Peek will fully indemnify, defend, and hold harmless Merchant and its officers, directors, employees, representatives and agents (collectively, “Merchant Indemnified Parties”) from and against any and all liabilities, losses, judgments, damages or expenses, including but not limited to reasonable attorney fees and expenses (collectively, “Losses”), incurred by any Merchant Indemnified Party arising out of or related to any third party claim, proceeding or suit (each, “Claim”) that alleges that the use of the Peek Platform by the Merchant Indemnified Parties infringes or misappropriates any United States, patent, copyright, trademark, or other proprietary rights of such third party; provided, that: (a) the applicable Merchant Indemnified Party gives Peek written notice of the Claim no later than seven (7) days after Merchant receives notice of a Claim; (b) Peek has full and complete control over the defense and settlement of the Claim; (c) the applicable Merchant Indemnified Party provides all necessary assistance in connection with the defense and settlement of the Claim as Peek may reasonably request; and (d) the applicable Merchant Indemnified Party complies with any settlement or court order made in connection with the Claim (e.g., relating to the future use of any infringing materials).
7.1.2. Mitigation. If Merchant’s or their respective agents’ use of the Peek Platform is, or in Peek’s reasonable opinion is likely to become, enjoined or materially diminished as a result of a Claim under Section 7.1, then Peek may either: (a) procure the continuing right of Merchant to use the Peek Platform; (b) replace or modify the Peek Platform in a functionally equivalent manner so that it no longer infringes; or if, despite its commercially reasonable efforts, Peek is unable to do either (a) or (b), Peek may (c) terminate Merchant’s rights to the Peek Platform under this Agreement and provide Merchant with a prorated refund of prepaid fees, if applicable, covering the remainder of the Term.
7.1.3. Exceptions. Peek will have no obligation under this Section 7.1 for any Claim or Losses to the extent that such arise out of or is related to: (a) the combination, operation, or use of the Peek Platform with any software, services, tools, hardware, equipment, supplies, accessories, or any other materials or services not furnished by Peek or recommended in writing by Peek if such infringement would have been avoided but for such combination, operation, or use; (b) designs, requirements, or specifications for the Peek Platform that Merchant required or provided, if the alleged infringement would not have occurred but for such designs, requirements, or specifications; (c) use of the Peek Platform outside of the scope of the license granted to Merchant; (d) any modification of the Peek Platform not made or authorized in writing by Peek where such infringement would not have occurred absent such modification; or (e) the Merchant Content.
7.2. Indemnification by Merchant. Merchant shall fully indemnify, defend, and hold harmless Peek and its officers, directors, employees, representatives, agents, distribution partners and their respective successors and assigns (collectively, “Peek Indemnified Parties”), from and against any and all Losses incurred by any Peek Indemnified Party arising out of or related to any Claim arising out of or related to: (a) any of the Merchant Services; (b) Merchant’s breach of any provision, warranty, or representation in this Agreement; (c) Merchant’s intentional acts or omissions or any form of negligence or other similar wrongdoing; (d) any infringement or misappropriation of intellectual property, privacy, or other rights by any Merchant Content; or (e) Merchant’s failure to comply with any applicable laws; provided, however that: (i) the applicable Peek Indemnified Party gives Merchant prompt written notice of the Claim; (ii) Merchant has full and complete control over the defense and settlement of the Claim; provided, however, that Merchant shall not settle any Claim that admits liability or places any obligation on a Peek Indemnified Party without the applicable Peek Indemnified Party’s prior written consent; (iii) the applicable Peek Indemnified Party provides assistance in connection with the defense and settlement of the Claim as Merchant may reasonably request; and (iv) the applicable Peek Indemnified Party complies with any settlement or court order made in connection with the Claim (e.g., relating to the future use of any infringing materials).
7.3. Disclaimer. Neither Peek nor Merchant will be liable for any form of equitable or implied indemnification to the other with respect to this Agreement, the subject matter of this Agreement, or otherwise.
8. WARRANTIES AND DISCLAIMERS
8.1. Mutual Warranties. Each party represents and warrants that it has power and authority to enter this Agreement, the person or entity executing this Agreement has the power and authority to bind the party to this Agreement, and its entry into and performance of this Agreement will not breach any contractual obligations with third parties.
8.2. Merchant Information. Peek may request at any time or times documentation and related evidence of Merchant’s organization, operations, existence, and good standing. Such information may include the authorization of Merchant to enter this Agreement in form and substance satisfactory to Peek.
8.3 Disclaimer. NOTWITHSTANDING ANY CONTRARY PROVISION, AND TO THE FULLEST EXTENT NOT PROHIBITED BY APPLICABLE LAW:
8.3.1.THE PEEK PLATFORM AND ALL COMPONENTS THEREOF, AND ALL ADVICE, INFORMATION, AND MATERIALS, ARE BEING PROVIDED TO MERCHANT AND ANY RELATED PERSON OR ENTITY “AS IS” AND “AS AVAILABLE” WITH ALL FAULTS. ANY AND ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND (WHETHER EXPRESS OR IMPLIED OR STATUTORY) OF PEEK OR ANY AFFILIATE ARE HEREBY EXCLUDED AND DISCLAIMED, INCLUDING BUT NOT LIMITED TO (a) ANY AND ALL IMPLIED OR OTHER WARRANTIES OF TITLE OR NON-INFRINGEMENT, (b) ANY AND ALL IMPLIED OR OTHER WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, USEFULNESS OR SUITABILITY, AND (c) ANY REPRESENTATION OR WARRANTY THAT THE PEEK PLATFORM OR ANY PART THEREOF WILL BE SECURE, RELIABLE, TIMELY, UNINTERRUPTED, ERROR-FREE OR VIRUS-FREE, OR IN COMPLIANCE WITH APPLICABLE LAW; OR THE RESULTS THAT MAY BE OBTAINED FROM ANY OF THE FOREGOING.
8.3.2.ANY ACCESS TO OR USE OF THE PEEK PLATFORM IS AT MERCHANT’S SOLE RISK AND MERCHANT IS RESPONSIBLE FOR EVALUATING AND BEARING ALL RISKS ASSOCIATED WITH SUCH ACCESS AND USE.
9. LIMITATIONS OF LIABILITY. NOTWITHSTANDING ANY CONTRARY PROVISION OR ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY OF ANY KIND, TO THE FULLEST EXTENT NOT PROHIBITED BY APPLICABLE LAW, PEEK WILL NOT BE LIABLE TO MERCHANT, ANY MERCHANT INDEMNIFIED PARTY, OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR FOR ANY LOSS OF PROFIT, REVENUE, DATA, BUSINESS, OR USE ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY OF THE SUBJECT MATTER OF THIS AGREEMENT. IN NO EVENT WILL PEEK’S CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY OF THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING ANY RELATED CLAIMS, ACTIONS, OR CAUSES OF ACTION, AND ANY CLAIMS FOR INDEMNIFICATION, EXCEED IN THE AGGREGATE THE TOTAL AMOUNT OF PEEK FEES PAID TO OR RECEIVED BY PEEK FOR THE MERCHANT SERVICES DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE OF THE EVENT FIRST GIVING RISE TO THE RELEVANT CLAIM, ACTION, OR CAUSE OF ACTION. MERCHANT UNDERSTANDS AND ACKNOWLEDGES THAT THE FOREGOING LIMITATIONS ARE AN ESSENTIAL ELEMENT OF THIS AGREEMENT, ARE REASONABLE, AND THAT IN THE ABSENCE OF SUCH LIMITATIONS THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT. THE FOREGOING LIMITATIONS SHALL NOT BE INCREASED BY MULTIPLE CLAIMS, ACTIONS, OR CAUSES OF ACTION, WHETHER SIMILAR OR NOT.
10. INSURANCE. Merchant shall maintain in full force and effect adequate liability insurance coverage in connection with the Merchant Services at all times during the Term and for a period of two (2) years following the end of the Term. Merchant shall at the request of Peek name Peek and its Affiliates as additional insureds on such insurance policies. This can generally be done easily and without additional cost by contacting the insurance broker or insurance company. Merchant’s compliance with this Section 10 does not limit its indemnification or other obligations under this Agreement.
11. TERM AND TERMINATION
11.1. Term. The term of this Agreement commences on the Effective Date and ends on the date specified in the Service Order (“Initial Term”). Following the Initial Term, this Agreement automatically renews for successive terms in length equal to the Initial Term (each, a “Renewal Term”). Either party may terminate a Renewal Term for convenience by providing written notice of non-renewal to the other party at least thirty (30) days prior to the end of the applicable Renewal Term. The Initial Term and each Renewal Term are referred to in this Agreement as the “Term.”
11.2. Termination. Either party can terminate this Agreement for cause (including any material breach of this Agreement by the other party) by immediate written notice to the other party.
11.3. Effects of Termination. Upon termination of this Agreement for any reason: (a) each license to a Peek Platform offering granted by Peek to Merchant will immediately terminate; (b) Merchant shall purge all copies of all Peek Content from any computer, server, or other hardware, and each party will return the other party’s Confidential Information; (c) each party’s respective rights and obligations under Sections 3, 4, 5, 7, 8, 9, 10, 11.3, 12, and 13 of this Merchant Agreement and relevant portions of each Platform Addendum, including the payment to Peek of all compensation obligations incurred prior to the effective date of termination, survive and remain in full force and effect; (d) Merchant shall continue to fulfill all unused Vouchers, and all terms of this Agreement with respect to the fulfillment of unused Vouchers (except all licenses granted by Peek) survive termination until their applicable expiration; and (e) all claims or causes of action in existence as of the date of termination survive. If Peek elects to terminate this Agreement because Peek, in its sole discretion, determines an excessive number of disputes or Chargebacks may occur, Peek may refund any and all amounts collected to Customer as Peek determines necessary to avoid or prevent disputes or Chargebacks.
12. CONFIDENTIALITY
12.1. Non-disclosure. The Receiving Party shall take reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, but not less than reasonable care, to prevent the unauthorized duplication or use of the Disclosing Party’s Confidential Information and the disclosure of the Disclosing Party’s Confidential Information to third parties without the Disclosing Party’s prior written consent. The Receiving Party may disclose the Disclosing Party’s Confidential Information to the Receiving Party’s Affiliates, consultants, contractors, representatives, and agents (including financial advisors, accountants and attorneys) (collectively, “Representatives”) who are acting on behalf of the Receiving Party and are bound by, or are otherwise protected by legal privilege or confidentiality and non-disclosure commitments on terms no less protective of the Confidential Information than the terms of this Agreement. If a Receiving Party is legally compelled to disclose the Disclosing Party’s Confidential Information, the Receiving Party shall (a) provide prompt written notice (if legally permissible) to the Disclosing Party so that the Disclosing Party can seek a protective order or other appropriate remedy, and (b) limit any such disclosure to the extent of the legal requirement, and the disclosed information will remain Confidential Information despite such disclosure.
12.2. Exceptions. Confidential Information excludes information which: (a) is or becomes (through no act or omission of the Receiving Party in breach of this Agreement), generally available to the public; (b) becomes known to the Receiving Party or any of its Affiliates on a non-confidential basis through a third party who is not subject to an obligation of confidentiality with respect to that information; (c) was lawfully in the possession of the Receiving Party or any of its Affiliates prior to such disclosure; (d) is independently developed by the Receiving Party or any of its Affiliates without reference to or use of the Disclosing Party’s Confidential Information; or (e) the Disclosing Party agrees in writing is not confidential or may be disclosed, to the extent of that consent.
13. GENERAL
13.1. Merchant Additional Covenants and Warranties. Without limiting Merchant’s other obligations, Merchant shall (a) provide the Merchant Services in a professional and safe manner at all times; and (b) not infringe upon or misappropriate the intellectual property or other rights of any other person or entity with respect to the subject matter of this Agreement. Merchant represents and warrants that: (x) Merchant has all necessary rights to grant the licenses granted by it to Peek, including the right to use the name, likeness, and identifying information of any identifiable person in the Merchant Content; and (y) Merchant possesses all licenses and registrations necessary to conduct its business and to provide all Merchant Services to be offered herein.
13.2. Governing Law. This Agreement and all matters relating to or in connection with this Agreement are governed by the laws of the State of California, United States of America, without regard to any conflict of laws principles that require the application of the laws of a different jurisdiction.
13.3. Arbitration. Notwithstanding any contrary provision hereof, all disputes, claims, controversies, and matters relating to or in connection with this Agreement (or the breach thereof) or any transactions hereunder must be settled by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules (“AAA Rules”), and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration must take place in San Francisco, California, USA before a single neutral arbitrator appointed in accordance with the AAA Rules and conducted in the English language. All arbitrations must be conducted and resolved on an individual basis and not a class-wide, multiple plaintiff or similar basis. No arbitration can be consolidated with any other arbitration proceeding involving any other person or entity.
13.4. Venue. Subject to Section 13.3, any other actions (if any) arising out of or related to this Agreement must be brought exclusively in the federal or state courts located in the County of San Francisco, California USA, and each of the parties consents to exclusive jurisdiction and venue in such courts for any such actions. Peek also may seek injunctive or other equitable relief for breach of this Agreement in any court of competent jurisdiction wherever located. The non-prevailing party in any suit, action, or proceeding, including any arbitration proceeding, shall pay the prevailing party’s reasonable attorney fees and costs.
13.5. Assignment. Merchant may not assign, transfer, delegate or sublicense this Agreement or any rights or obligations hereunder, either voluntarily or by operation of law or means of a merger, consolidation, or sale of stock or other ownership interest or other change of control or ownership, and any such purported act is null and void. Subject to the foregoing restrictions this Agreement benefits and is binding upon each of the parties and their respective successors and permitted assignees. Other than in the case of indemnified parties, there are no third-party beneficiaries of this Agreement.
13.6 Notices. All notices and other communications (collectively “Notices”) required to be given or delivered to a party must be in writing and addressed to the party at its principal corporate offices or as otherwise designated by notice hereunder. All Notices are deemed to have been given or delivered upon: (a) personal delivery; (b) three (3) days after deposit in the United States mail by certified or registered mail (return receipt requested); (c) two (2) business days after deposit with an internationally recognized overnight courier; or (d) one (1) business day after transmission by electronic mail. All Notices and other communications required or permitted under this Agreement must be made in the English language.
13.7. Miscellaneous. This Agreement (including each Platform Addendum and the Service Order) constitutes the entire understanding and agreement with respect to its subject matter and supersedes all prior and other current agreements and discussions between the parties, provided that any confidential or proprietary information disclosed previously to Merchant constitute Peek’s Confidential Information. The waiver by either party of any default or breach of this Agreement does not constitute a waiver of any other or subsequent default or breach. In the event that any of the provisions of this Agreement are held to be invalid or unenforceable by a competent court or arbitrator, the remaining portions hereof remain in full force and effect and such provision must be enforced to the maximum extent possible so as to effect the intent of the parties and reformed to the extent necessary to make such provision valid and enforceable. When the context requires, the plural includes the singular and the singular the plural, and any gender includes any other gender. No provision of this Agreement may be interpreted or construed against any party because such party or its counsel was the drafter thereof. Notwithstanding any contrary provision of this Agreement, whenever the words “include,” “includes” or “including” or any other variation are used in this Agreement, such words are deemed, unless the context otherwise requires, to be followed by the words “without limitation.” Section headings are only for convenience and are not a material part of this Agreement.
13.8. Counterparts. The Agreement, including any Service Order, may be executed in counterparts, each of which will be deemed to be an original and together will constitute one and the same agreement. The Agreement and any Service Order may also be executed and delivered by electronic mail and such execution and delivery will have the same force and effect of an original document with original signatures.
13.9 Force Majeure. Peek is excused from performance of the Agreement to the extent that performance is prevented, delayed, or obstructed by causes beyond its reasonable control.
13.10 Independent Contractors. The relationship between Peek and Merchant is one of independent contractors and nothing contained in the Agreement may be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and, unless specifically provided for herein, neither party has authority to contract for or bind the other party in any manner whatsoever.
Peek Professional Software Addendum
This document is a Platform Addendum to the Merchant Agreement between Peek and Merchant. Any capitalized terms not otherwise defined in this Platform Addendum have the meaning given in such Merchant Agreement. The parties agree as follows:
1. DEFINITIONS
1.1. "Customer(s)" means, with respect to this Platform Addendum, one or more of any person or entity that reserves or purchases a Merchant Service from Merchant’s business, where the purchase is made through or entered into the Peek Professional Software.
1.2. "Merchant Online Channel(s)" means one or more of any website, mobile application, or other online platform of Merchant or its Affiliates which offer Merchant Services.
1.3. "Merchant Service(s)" means, with respect to this Platform Addendum, one or more of Merchant’s activities or other goods or services that the Merchant offers to Customers using the Peek Professional Software, or otherwise manages using the Peek Professional Software.
1.4. "Peek Professional Software" means the Peek Platform offering that consists of (a) an online service to enable online bookings (referred to as "Peek Booking Flow"), (b) a comprehensive product suite, including any Peek mobile or similar application for use in connection with such online service and related Peek Content, and (c) all services to enable connectivity with other third parties (referred to as "Peek APIs").
2. PEEK PROFESSIONAL SOFTWARE
2.1. License. Subject to Merchant’s full compliance with this Agreement (including this Platform Addendum) at all times, Peek grants to Merchant a limited non-exclusive, non-sublicensable, non-transferable, non-assignable and revocable right and license during the Term to access and use the Peek Professional Software solely for its internal business operations and for purposes of (a) processing sales made directly from Merchant and (b) using web and mobile tools to assist Merchant in managing its business ("Peek Professional Software License"). The use of the Peek Professional Software for any purpose not expressly permitted by this Agreement (including this Platform Addendum) is prohibited and will be deemed to be a material breach of this Agreement (including this Platform Addendum).
2.2. Setup and Support. Peek may provide assistance with setup and activation with on-site resources, as well as support for the Peek Professional Software, according to Peek’s standard policies as made available or provided to Merchant if specified in a Service Order. If applicable, Peek will provide dedicated success, support, and onboarding representatives to Merchant to ensure success.
2.3. Modifications. Peek may modify or update the Peek Professional Software at any time without prior notice.
2.4. Restrictions. In addition to any restrictions set forth in the Merchant Agreement:
2.4.1. During the Term, Peek will be the exclusive provider to Merchant, its Affiliates and other agents of all items listed in the Service Order. Merchant shall refrain from using the Peek Professional Software to circumvent any obligation to pay Fees to Peek, e.g., locating a Customer or potential purchaser, but completing the transaction using means other than Peek Professional Software.
2.4.2. Merchant shall not make the Peek Professional Software or any such use or access available in any manner to or for any third party at any time.
2.4.3. All Merchant Services powered by the Peek Professional Software shall include all widgets and related notices and statements, which Merchant may not modify or disable. No part of the privacy policy or other terms of service or use of any Merchant Online Channel shall contradict the provisions set forth in this Agreement.
2.4.4. Merchant shall not store any Customer credit card information or other information prohibited by applicable law in or by use of the Peek Professional Software or any other part of the Peek Platform, whether or not the Customer has purchased tickets through the Peek Professional Software.
2.4.5. Upon termination of this Agreement for any reason, Merchant shall purge all copies of all Peek Professional Software from any computer, server, or other hardware.
3. FEES
3.1. Fees. Peek is entitled to receive compensation for all Merchant Services purchased through or entered into the Peek Professional Software pursuant to the procedures set forth in the Merchant Agreement. Merchant shall pay Peek twenty percent (20%) of all Merchant Services ordered by Customers through the Peek Activity Marketplace, Peek Online Sites, Peek Pals, or Third Party Channels (“Marketplace Fees”). Peek may collect these Marketplace Fees through Merchant’s account with Peek or as otherwise detailed in the Merchant Agreement.
3.2. Refunds. Merchant may provide refunds or adjustments to Customers for their purchases of Merchant Services made through the Peek Professional Software using refund functionality enabled by Peek and accessible through the Peek Platform. Funds to cover refunds will be deducted from Merchant’s payout balance during each remittance of Merchant Payments as described in the Merchant Agreement. In the event of insufficient funds to cover the amount of the refund, Peek may charge Merchant’s credit card on file. Peek may retain from Merchant or Customers any Peek Fees and applicable processing fees on refunded transactions.
4. DATA. Merchant and Peek each own and are entitled to reproduce and otherwise use, independently of each other, all individual Customer and sales information and Stored Files collected or uploaded by Merchant in connection with the Merchant Services sold through Merchant Online Channels. Merchant also understands that Peek processes the foregoing information with a database through the Peek Professional Software. Merchant acknowledges Peek may (a) reproduce, and otherwise use such information in connection with providing the Peek Platform and performing this Agreement, and (b) contact Customers that book or otherwise interact with Peek’s Services through booking widgets hosted on Merchant’s website or any third-party website, and reproduce, and otherwise use such information on an anonymized or aggregated basis in connection with Peek’s business. For clarity, Peek will not sell or disclose identifiable information about Merchant or Merchant’s Customers to a competitor of Merchant.
5. Stored Files.
5.1 The Peek “Attach a File” feature allows Merchants to store documents and photos in the Peek Platform Software ("Stored Files"). Merchant may only use the Peek “Attach a File” feature for operational and liability purposes. Merchant shall not use, or encourage, promote, facilitate, or instruct others to use the Peek file storage system for any illegal, harmful, fraudulent, infringing, or offensive use, or to transmit, store, display, distribute or otherwise make available content that is illegal, harmful, fraudulent, infringing, or offensive. Prohibited activities or content include:
5.1.1 Illegal, Harmful or Fraudulent Activities. Any activities that are illegal, that violate the rights of others, or that may be harmful to others, Peek’s operations or reputation, including disseminating, offering, promoting or facilitating illegal or fraudulent photos, materials, goods, services, schemes, or promotions;
5.1.2 Infringing Content. Content that infringes or misappropriates the intellectual property or proprietary rights of others;
5.1.3 Offensive Content. Content that is defamatory, obscene, abusive, invasive of privacy, or otherwise objectionable; and
5.1.4 Harmful Content. Content or other computer technology that may damage, interfere with, surreptitiously intercept, or expropriate any system, program, or data, including viruses, Trojan horses, worms, time bombs, or cancelbots.
5.2 Peek will store the Stored Files for up to one year. Peek reserves the right to revoke storage if Merchant violates the Agreement or this Platform Addendum.
5.3 Peek reserves the right, but does not assume any obligation, to monitor Stored Files that Merchant uploads. If Merchant violates this Section 5 or authorizes or helps others to do so, Peek may suspend or terminate Merchant’s use of the Peek Professional Software.
5.4 Peek may delete any Stored Files at any time, at its sole discretion.
5.5 Peek may report any activity that is suspected to violate any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. This reporting may include disclosing appropriate Merchant and Customer information. Peek also may cooperate with appropriate law enforcement agencies, regulators, or other appropriate third parties to help with the investigation and prosecution of illegal conduct by providing network and systems information related to alleged violations of this Section 5.
Peek Activity Marketplace Addendum
This document is a Platform Addendum to the Merchant Agreement between Peek and Merchant. Any capitalized terms not otherwise defined in this Platform Addendum have the meaning given in such Merchant Agreement. The parties agree as follows:
1. DEFINITIONS
1.1. "Customer(s)" means, with respect to this Platform Addendum, one or more of any person or entity that (a) reserves or purchases a Merchant Service on the Peek Activity Marketplace, or (b) is otherwise a registered user of any Peek Online Sites or any Third Party Channels.
1.2. "Merchant Service(s)" means, with respect to this Platform Addendum, one or more of Merchant’s activities or other goods or services listed on any part of the Peek Activity Marketplace.
1.3. "Peek Activity Marketplace" means one or more of (a) Peek Online Sites and (b) Third Party Channels.
1.4. “Peek Online Sites” means the Peek Platform offering that consists of the www.peek.com website, the Peek Customer mobile application, Peek Pals, or any other Peek online platforms for Customers. The Peek Online Sites include related Peek Content.
1.5 “Peek Pals” means Peek’s program to highlight additional, non-competitive bookings or activities from other merchants to a Customer on the Customer’s confirmation page after a Customer books a Merchant Service. For clarity, while Peek strives to only show non-competitive bookings, the definition of what is competitive is subjective. Thus, any showing of competitive bookings is accidental and does not constitute a breach of the Agreement.
1.6. "Third Party Channels" means any third party website, mobile application, or other online or offline platform that resells Merchant Services from the Peek Online Sites. Third Party Channels are not considered part of the Peek Platform except as expressly set forth in Section 2.3 of this Platform Addendum.
2. PEEK ONLINE SITES
2.1. License. Subject to Merchant’s full compliance with this Agreement (including this Platform Addendum) at all times, Peek grants to Merchant a limited non-exclusive, non-sublicensable, non-transferable, non-assignable and revocable right and license during the Term to access and use the Peek Online Sites solely for its internal business purposes to manage and update the listing of the Merchant Services on the Peek Activity Marketplace and to access information about the Customers who have purchased the Merchant Services ("Peek Online Sites License"). The use of the Peek Online Sites for any purpose not expressly permitted by this Agreement (including this Platform Addendum) is prohibited and will be deemed to be a material breach of this Agreement (including this Platform Addendum).
2.2. Customer Support. Peek will provide commercially reasonable customer support to Customers. However, in the event that Customers contact Merchant directly, Merchant’s own employees will respond to requests for support to the extent Merchant is qualified to do so, and otherwise such requests must be immediately referred to Peek.
2.3. Third Party Channels. The Third Party Channels are deemed to be part of the Peek Platform for purposes of Section 6 of the Merchant Agreement.
2.4. Third Party Channels. Peek does not control and is not responsible for any Third Party Channels and any content, products, services, and information accessible from or provided through any of them.
3. FEES
3.1. Fees. Peek is entitled to receive compensation for all Merchant Services purchased through any of the Peek Online Sites and Peek Activity Marketplace Merchant sites pursuant to the procedures set forth in the Merchant Agreement.
3.2. Additional Compensation. Peek may also receive additional commissions or other compensation from third parties in connection with the sale of Merchant Services through the Peek Activity Marketplace or otherwise. Merchant acknowledges it is not entitled to, and that Peek may retain, any such additional commissions or other compensation.
4. LISTING OF MERCHANT SERVICES
4.1. Listing. Peek may list or have listed at its sole option one or more of the Merchant Services on any part of the Peek Activity Marketplace, and Merchant will allow Customers to purchase the listed Merchant Services. However, Peek may reject or discontinue the listing or sale of any of the Merchant Services in its sole discretion without prior notice.
4.2. Access and Support. Merchant shall provide Peek with the same access and support necessary to market, promote, and distribute the Merchant Services that Merchant makes available to other resellers.
4.3. Listing Content. Merchant shall fully and accurately describe the Merchant Services being offered on the Peek Activity Marketplace at all times, including pricing and availability, provided that Peek reserves the right to exercise final editorial control. Listings may include Merchant Content that is pre-approved by Peek in its sole discretion, however Merchant is solely responsible for the accuracy of all Merchant Content, including information communicated to Peek. Merchant shall immediately notify Peek in writing if any of the Merchant Content or Merchant Services do not comply with all applicable laws.
4.4. Listing Changes.
4.4.1. Merchant shall continuously update the scheduling and pricing for the Merchant Services through its Merchant Account. Peek may, but is not obligated to, access Merchant’s Merchant Account to update or revise the same. Merchant will promptly provide updated Merchant Content for Merchant’s listing from time to time when requested by Peek.
4.4.2. If Merchant wants to change a Merchant Service on the Peek Activity Marketplace (other than the scheduling and pricing of such Merchant Service), Merchant must provide Peek with prior written notice of the proposed change at least thirty (30) business days in advance. No changes to the Merchant Services will become effective on the Peek Activity Marketplace without Peek’s approval in its sole discretion.
4.4.3. If Merchant wants to stop offering a Merchant Service on the Peek Activity Marketplace, Merchant must provide Peek with prior written notice of the proposed discontinuance at least ten (10) business days in advance.
5. PROMOTION, MARKETING AND PRICING OF MERCHANT SERVICES
5.1. Promotion by Peek. Peek has the unlimited right and option to promote the Merchant Services through the Peek Activity Marketplace, email marketing, and any other online or offline third party marketing channel as determined by Peek in its sole discretion. Peek also may identify the Merchant as a merchant of Peek, and Merchant consents in advance to all such uses. The manner and method by which the Merchant Services are displayed on the Peek Activity Marketplace, and to what extent and duration, also will be determined by Peek in its sole discretion from time to time.
5.2. Lowest Retail Price. Merchant is solely responsible for setting its own prices for the Merchant Services and must promptly update all prices through the Merchant Account, provided that Peek and its sublicensees will have the right to offer the Merchant Services to Customers at the lowest retail prices and best terms offered by Merchant for such Merchant Services in the same or similar market ("Lowest Retail Price"). If Peek determines that Merchant’s listed pricing report is not the Lowest Retail Price for the relevant Merchant Service, Peek may use the lower price on the Peek Activity Marketplace.
5.3. Promotional Offers. Merchant may sell Merchant Services with better terms using time-limited promotional vouchers under contract exclusively to third-party daily deal sites such as Groupon, LivingSocial, and Amazon Deals, provided that Merchant gives Peek notice in writing of each proposed promotional offer at least ten (10) business days before commencing such offer.
5.4 Peek Online Sites. Peek may, in its sole discretion, enroll any Merchant, and list any Merchant Service, in the Peek Online Sites. Merchant acknowledges that enrollment in the Peek Online Sites may result in increased Commission rates solely related to this Peek Activity Marketplace Addendum to Peek and Merchant shall pay any such increased Commission rates. If a Merchant is enrolled in any Peek Online Site, the Merchant may opt out at any time by giving Peek written notice of such decisions to opt out.
5.5 Legal Compliance. Merchant is solely responsible for compliance with applicable law arising out of or related to advertising and marketing of the Merchant Services through the Peek Activity Marketplace. Merchant shall indemnify and hold harmless the Peek Indemnified Parties for any actual or alleged violations of applicable law related to Merchant’s use of the Peek Activity Marketplace.
6. SALE AND PERFORMANCE OF MERCHANT SERVICES
6.1. Sale and Vouchers. Peek will sell the Merchant Service on Merchant’s behalf to the Customer through the Peek Activity Marketplace, provide each purchasing Customer with a Voucher as described in the Merchant Agreement, and inform Merchant in a timely manner that a Merchant Service has been purchased. The retail price of each Voucher will be the "all inclusive" and total charge made to the Customer for the Merchant Service, unless otherwise expressly noted in the Peek Activity Marketplace listing.
6.2. Honoring Vouchers. Merchant will use its best efforts to accommodate Customers arriving after the cut-off time for any Merchant Service. If the Merchant Service is not available when the Customer seeks to redeem the Voucher, then subject to applicable law, (a) Merchant shall offer the Customer a similar service of equal or greater value, and (b) if the Customer refuses the alternative offer, then Peek reserves the right to issue a full refund to the Customer and deduct the same from any current or future payments due to Merchant.
6.3. Legal Compliance. Merchant shall comply with all applicable laws with respect to the Merchant Services and the other subject matter of these Terms. Merchant’s obligations under these Terms include compliance with laws prohibiting the provision of alcohol or tobacco or other restricted products to minors. If Merchant refuses to accept a Voucher because Merchant believes it is unlawful to do so, Merchant will notify Peek immediately in writing and Peek shall be relieved of any obligation to pay Merchant for the Merchant Services represented by the Voucher.
7. FEEDBACK AND REVIEWS. Merchant (a) acknowledges that the Peek Activity Marketplace may implement mechanisms that rate, and allow Customers to rate, and provide photos, videos, reviews and commentary regarding Merchant and the Merchant Services (together "Feedback"); (b) consents to Feedback being made publicly available and distributed; (c) acknowledges that all Feedback is (as between the parties) owned by Peek or the relevant third party provider, except for any Merchant Content included therein; (d) acknowledges that neither Peek nor any third party provider have any responsibility or liability to Merchant or an Affiliate in the case of negative or disputed Feedback, and all such responsibility or liabilities are hereby disclaimed; and (e) acknowledges that Peek or the third party provider may limit Merchant’s activities on the Peek Activity Marketplace based upon Feedback. Merchant shall not upload any feedback from any other third party websites to the Peek Activity Marketplace without the prior written consent of Peek (which may be withheld in its sole discretion), and to not self-generate positive Feedback regarding the Merchant Services or upload any negative Feedback for other merchants on the Peek Activity Marketplace, either directly or by persons under Merchant’s direction.
8. DATA. As between Peek and Merchant, Peek owns all individual Customer and sales information processed by Peek in connection with the Merchant Services sold through the Peek Activity Marketplace. Any such information about a Customer provided by Peek to Merchant shall be used by Merchant solely to honor the Customer’s Voucher and provide the Merchant Service to the Customer.
Peek Reseller Hub Addendum
This document is a Platform Addendum to the Merchant Agreement between Peek and Merchant. Any capitalized terms not otherwise defined in this Platform Addendum have the meaning given in such Merchant Agreement and the other Platform Addendums. The parties agree as follows:
- DEFINITIONS
1.1 "Customer(s)" means, with respect to this Platform Addendum, one or more of any person or entity that reserves or purchases a Merchant Service through the Peek Online Sites.
1.2 "Merchant Service(s)" means, with respect to this Platform Addendum, one or more of Merchant’s activities or other goods or services listed on any part of the Peek Activity Marketplace.
1.3 "Reseller" means any online travel agency, e-commerce website, platform, company, or other provider of travel-related services that uses an open API to connect to the Reseller Hub.
1.4 "Reseller Hub" means the online marketplace provided by Peek in which Merchant may identify Resellers with which Merchant wants to engage to promote, market, and offer the Merchant Services.
2. RESELLER HUB
2.1 License. Subject to Merchant’s full compliance with this Agreement (including this Platform Addendum) at all times, Peek grants to Merchant a limited non-exclusive, non-sublicensable, non-transferable, non-assignable and revocable right and license during the Term to access and use the Reseller Hub solely for its internal business purposes to identify and further engage with Resellers to leverage Resellers’ user base to market and promote the Merchant Services ("Reseller Hub License"). The use of the Reseller Hub for any purpose not expressly permitted by this Agreement (including this Platform Addendum) is prohibited and will be deemed to be a material breach of this Agreement (including this Platform Addendum).
2.2 Engagement with Resellers. Merchants are solely responsible to engage, agree, contract, or otherwise develop a business relationship with Resellers. Peek is not engaged or contracted with any of the Resellers to the extent the Resellers are participating in the Reseller Hub.
2.3 Payment to Resellers. Merchant is solely responsible to pay any Reseller for any services provided by a Reseller to Merchant. Peek is not responsible for payment to Reseller and is not a third-party beneficiary of any contract or agreement between a Reseller and Merchant; Merchant shall not include Peek as a third-party beneficiary or agent of Merchant in any contract or agreement with any Reseller.
2.4 Resellers. Peek does not control and is not responsible for any Resellers and any content, products, services, and information accessible from or provided through any Resellers. Each Reseller may have its own terms and conditions, privacy policy, or other legal documents. Peek does not endorse, support, or approve of any legal documents, terms, or conditions presented by any Reseller due to Reseller’s participation in the Reseller Hub.
2.5 Reporting. Merchant shall have access to Peek’s reporting tools that will give Merchant access to sales volume, metrics, analytics, and other information related to Merchant’s relationship with each Reseller. Peek owns all such information and all such information and reporting is provided to Merchant subject to the Reseller Hub License.
- FEES
3.1 Fees. Merchant shall pay Peek three percent (3%) of all Merchant Services ordered by Customers through any Peek Platform (“Reseller Hub Fee”). Peek may collect the Reseller Hub Fee through Merchant’s account with Peek or as otherwise detailed in the Merchant Agreement.
3.2 Independent Fee. The Reseller Hub Fee is exclusive and separate from all other fees owed by Merchant to Peek through the Merchant Agreement and all Platform Addendums.
4. DATA. As between Peek and Merchant, Peek owns all individual Customer and sales information collected by Peek in connection with the Merchant Services sold through the Reseller Hub or any other part of any Peek Platform. Any such information about a Customer provided by Peek to Merchant shall be used by Merchant solely to provide the Merchant Service to the Customer.
Pricing
If you have questions surrounding your current pricing, please refer to your signed contract upon start of partnership or contact Peek Support at support@peek.com.
