Corporate Sales Terms and Conditions
1. General. The commercial customer (the “Customer”) named on Virgin Gifts Corporate Sales Account Application (“Application”) attached hereto (collectively referred to herein along with these Corporate Sales Terms and Conditions as the “Agreement”) desires to purchase from time to time Virgin Gifts Experience Vouchers or Virgin Gifts Gift Certificates, or any other product or voucher offered by Virgin Gifts (collectively, the “Vouchers”) from Virgin Gifts Inc. (“Virgin Gifts”).
2. Purpose. Customer desires to make such purchases of Vouchers from Virgin Gifts from time to time using the payment methods set forth on the Application. Customer agrees that (a) under no circumstances shall it be considered the owner of any Vouchers purchased from Virgin Gifts, (b) it shall not use or redeem the Vouchers itself, and (c) it is purchasing the Vouchers strictly for either (i) resale in the ordinary course of Customer’s business or (ii) non-resale redistribution to Customer’s individual customers or employees. Any specific information regarding such resale or subsequent redistribution of Vouchers is proprietary to Customer, and Customer shall not provide it to Virgin Gifts in any form except as otherwise expressly provided in this Agreement. Virgin Gifts agrees that it shall not request such information from Customer unless required by law to do so.
3. Orders. When Customer desires to purchase Vouchers from Virgin Gifts, it must deliver to Virgin Gifts a written and fully executed purchase order in form and substance acceptable to Virgin Gifts (“Order”) specifying, among other things: (a) the number and type of Vouchers and the delivery dates therefor (including details such as Voucher denominations, if a “Gift Certificate,” as defined below, or the specific “Experience,” if an “Experience Voucher,” as defined below); (b) the payment method; (c) the purpose of purchase for such Order (i.e., resale or non-resale distribution); and (d) the method of delivery, including the names and e-mail addresses of individual Voucher recipients if direct electronic delivery is chosen, as detailed below. No Order is binding upon Virgin Gifts unless and until Virgin Gifts accepts the Order as evidenced by delivery to Customer of written confirmation of such acceptance; provided, however, in the event Virgin Gifts does not deliver such written confirmation to Customer within five days of receipt of the Order, such Order will be deemed to be automatically rejected and Virgin Gifts will have no obligation to supply to Customer the Vouchers set forth therein. Each such Order is subject to, and incorporates by reference, the terms and conditions set forth herein. In the event of any conflict between the terms and conditions of any Order and this Agreement, this Agreement will govern.
4. Delivery. Upon accepting an Order, Virgin Gifts shall deliver the requested number of Vouchers via one of the following methods, as per Customer’s designation: (a) electronically by e-mail, either to Customer for subsequent resale or redistribution or to Customer’s individual recipients directly, or (b) other mutually agreed upon delivery method. For electronic delivery directly to individuals, Customer shall provide Virgin Gifts with only such individuals’ names and e-mail addresses. In no case shall Customer provide Virgin Gifts with any other identifying information regarding such individuals, including their mailing addresses, ZIP codes, telephone numbers, or other personal information unless Virgin Gifts is required by law to obtain such information.
5. Product Pricing. The purchase price for each Voucher will be equal to Virgin Gifts’ published retail list price therefor as set forth on the Website (as defined in Section 8 below). The purchase price for each Voucher subject to an Order is referred to herein as the “Purchase Price”. Virgin Gifts will invoice the aggregate Purchase Price for all Vouchers in an Order and Reseller shall pay in accordance with the terms and conditions set forth below.
6. Payment Terms. Upon the delivery of any Order, Virgin Gifts will issue to Customer an invoice (each an “Invoice”) for the aggregate Purchase Price related thereto, plus any applicable delivery charges and sales, use or other applicable taxes, unless Customer delivers to Virgin Gifts valid tax exemption certificates acceptable to the relevant taxing authorities. Customer shall pay to Virgin Gifts in full the balance due pursuant to each Invoice on or before the due date set forth therein, which will be 30 days after the date of such Invoice. Any amount past due under an invoice will accrue interest at the rate of 1 ½% per month, or if such rate exceeds the maximum rate allowed by law, then at such maximum rate. Customer acknowledges and agrees that: (a) Virgin Gifts has the right to suspend or otherwise cancel the redemption codes related to any Order of Vouchers for any past due invoices unless and until Virgin Gifts has received in full the aggregate Purchase Price for such Order; and (b) unless and until Customer pays in full such past due Invoice, recipients of Vouchers from Customer will not be able to redeem any Vouchers in their possession related to such Invoice. Customer is responsible, and shall reimburse Virgin Gifts, for all legal fees and expenses incurred by Virgin Gifts in connection with its efforts to collect any past due amounts under this Agreement or Virgin Gifts’ exercise of any of its other rights or remedies with regard to a default on the part of Customer hereunder.
7. Security. Customer shall implement commercially reasonable security measures to ensure proper safekeeping and issuance of the Vouchers in accordance with this Agreement. Virgin Gifts shall not be responsible for lost, stolen or damaged Vouchers after Customer’s receipt of such Vouchers.
8. Redemption of Vouchers. Vouchers shall be delivered to Customer (or to recipients) fully activated, subject to Virgin Gifts’ right to suspend or cancel the redemption codes related thereto as set forth above. The following terms will apply to the redemption and use of Vouchers. Vouchers will be redeemable for Virgin Gifts’ experiences (“Experiences”) only as found online at Virgin Gifts’ website, www.virginexperiencegifts.com (the “Website”). All sales, use and other taxes applicable to the resale or delivery of the Vouchers will be the responsibility of Customer, and Customer hereby indemnifies and holds Virgin Gifts harmless from and against the same. The Vouchers do not expire, and there are no fees associated with any Voucher. The Vouchers are not redeemable for cash, except as otherwise provided by law. Under limited circumstances, Virgin Gifts may provide Customer a refund of Vouchers purchased pursuant to this Agreement. Customer must contact Virgin Gifts to request such a refund, and such request must be made within 30 days from the date of sale. Refunds will not be provided by Virgin Gifts to individual recipients of Vouchers. A recipient is required to establish an account at the Website prior to redeeming a Voucher. “Experience Vouchers” (e.g., Vouchers issued for a specific Experience such as a hot air balloon ride for 1 person in Del Mar, California) may be redeemed for the specific Experience purchased for nine months from the date of purchase; any Experience Voucher redeemed after such nine-month period will be subject to the current availability of such specific Experience on the Website, and the recipient is responsible for paying for any increase in price for such Experience at the time of redemption. If the specific Experience is no longer available at the Website, the Experience Voucher may be redeemed for an Experience then-available at the Website equal to or less than the original purchase price of the Experience Voucher. “Gift Certificates” are issued in a dollar-denominated amount, and may be redeemed through the Website toward the booking of an Experience of the recipient’s choosing. Full terms and conditions applicable to the Vouchers are available on the Website and apply to all Vouchers purchased by Customer.
9. Redemption Data. Virgin Gifts does not disclose to Customer any data, information, or other details regarding the redemption or use of Vouchers by individual recipients following resale or redistribution by Customer.
10. DISCLAIMER OF WARRANTY. Virgin Gifts makes no representations or warranties of any kind, whether express or implied, regarding the Vouchers or the Experiences redeemed therefor or any other matter, including without limitation, the merchantability, suitability, originality, fitness for a particular use or purpose of the Vouchers or such experiences, and Virgin Gifts hereby specifically disclaims the same. customer shall not rely on any oral or written representations or warranties on the part of any other agent of Virgin Gifts. No trade usage or prior course of dealing will be used in the interpretation or construction of the terms and conditions set forth herein.
11. Release; Covenant Not to Sue. Customer hereby: (a) releases Virgin Gifts from and against, any and all claims, actions, damages, liabilities, costs and expenses, including reasonable legal expenses incurred by Virgin Gifts relating to any alleged injury, death, or property damage to any of Customer’s customers, its personnel or other third parties arising out of or related to the Experiences (collectively, “Claims”), which Customer acknowledges and understands are provided by third parties unrelated to and otherwise unaffiliated with Virgin Gifts; and (b) covenants not to sue or otherwise assert against or attempt to hold Virgin Gifts responsible for any such Claims except to the extent such Claims arise from the gross negligence or willful misconduct of Virgin Gifts.
12. Limitation of Liability. In no event is Virgin Gifts liable for any punitive, special, incidental, indirect or consequential damages of any kind whether foreseeable or not, arising out of, or in connection with, Customer’s resale or distribution of the Vouchers even if Virgin Gifts has been advised of the possibility of such damages. Virgin Gifts’ aggregate liability relating to or arising out of this Agreement, whether such liability is asserted on the basis of contract, tort, or otherwise, is limited to the amounts Customer paid to Virgin Gifts under this Agreement during the consecutive 12-month period preceding the date on which any such claim is asserted.
13. Confidentiality. The parties agree that (a) all information communicated to it by the other party and identified as confidential, whether before or after the date hereof, (b) all information identified as confidential to which it has access, whether before or after the date hereof, and (c) the parties’ rights and obligations hereunder (collectively, the “Confidential Information”), will be deemed to have been received in confidence, and will be used by the other party only in connection with this Agreement. Confidential Information does not include (i) information that is already known or received by the receiving party without an obligation of confidentiality other than under this Agreement; (ii) is publicly known or becomes publicly known through no unauthorized act of the receiving party; (iii) is independently developed without use of the disclosing party’s Confidential Information; or (iv) is disclosed as required by law or an order of court of competent jurisdiction. Each party agrees to use the same standard of care to protect the confidentiality, and prevent the disclosure, of the Confidential Information of the other party that such party uses to protect its own Confidential Information, which in no event will be less than reasonable care. The receiving party shall not disclose to any third party the Confidential Information of the other party without the prior written consent of the other party, except that Virgin Gifts may disclose Customer’s Confidential Information to assignees and subcontractors of Virgin Gifts that need to know such Confidential Information provided that such third parties agree to comply with the confidentiality terms set forth herein.
14. Promotions; Use of Trademarks. As between Virgin Gifts and Customer, Customer is solely responsible for any promotion in which Vouchers are being offered by Customer or its agents (“Promotion”) and all costs associated therewith. Customer acknowledges and agrees that: (a) Virgin Gifts retains all ownership and other rights in and to its trademarks, tradenames, logos and other trade dress elements of Virgin Gifts’ website and marketing materials (collectively, “Marks”); (b) Customer does not acquire any ownership interest or other rights in or to the Marks by virtue of this Agreement; and (c) the goodwill associated with the Marks is the intangible property of Virgin Gifts and inures solely to the benefit of Virgin Gifts. Customer shall not remove any copyright notices, trademarks or other proprietary legends related to the Marks appearing on any Vouchers or other materials of Virgin Gifts distributed to Customer hereunder. Subject to the terms set forth herein, Customer may, at its sole expense and subject to Virgin Gifts’ prior written consent, produce advertising or promotional materials that feature any the Marks in connection with a Promotion. Such promotional materials must contain the statement, “Virgin Gifts is not affiliated with Customer and does not sponsor, endorse, approve or have any responsibility for this promotion.” To obtain such written consent, Customer shall deliver a request to Virgin Gifts prior to the production of such promotional materials. If Customer defaults on the terms and conditions set forth herein, Virgin Gifts will be entitled to injunction relief, without having to post a bond, and such other relief to which it may be entitled to prevent Customer’s misuse of any Marks.
15. Events of Default; Remedies. The occurrence of any of the following constitute an event of default (each an “Event of Default”) hereunder: (a) Customer fails to pay when due any amounts payable under any Invoice; or (b) either party fails to perform or observe any other material obligation, covenant or agreement contained in this Agreement and such failure continues for thirty (30) days (or such longer period as set forth elsewhere herein or by the mutual agreement of the parties) after written notice thereof from the other party. Upon the occurrence of any Event of Default which is then continuing, in addition to any other rights or remedies available at law or in equity, Virgin Gifts may, upon the delivery of written notice to Customer, terminate this Agreement and cancel any Orders that have not yet been delivered to Customer. No remedy referred to in this Section is intended to be exclusive, but each is cumulative and in addition to any other remedy available to the relevant party.
16. Indemnification. Each party shall indemnify, defend and hold the other party harmless from and against any claims, losses, expenses, damages, judgments or other liabilities, including reasonable legal fees, arising from the gross negligence or intentional misconduct of or violation of applicable law in connection with this Agreement. The indemnifying party has sole control of the conduct the defense and settlement of any claim and the indemnified party shall fully cooperate with the indemnifying party in connection with the defense and settlement of any such claims. The indemnifying party shall not, without the prior written consent of the indemnified party, enter into any compromise or settlement or other agreement that might have the effect of impairing any right or interest of the indemnified party. If the indemnified party chooses to represent its own interests in any such action, it may do so at its own expense, but such representation must not prejudice the indemnifying party’s right to control the defense of the claim and negotiate its settlement or compromise.
17. Relationship of Parties. The parties acknowledge and agree that their relationship is that of independent contractors and neither Customer nor its agents, representatives or employees will be considered employees of Virgin Gifts. Nothing set forth herein will be construed to place the parties in the relationship of partners or joint venturers and neither party will have any right or power to obligate or bind the other in any manner whatsoever except as authorized in this Agreement or otherwise specifically authorized in writing.
18. Assignment. Customer may not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Virgin Gifts. Except in connection with (a) any sale of substantially all of Virgin Gifts’ assets or any merger of Virgin Gifts with another entity; (b) Virgin Gifts’ assignment of its right to receive payment hereunder; or (c) Virgin Gifts’ subcontract for all or any portion of such obligations so long as Virgin Gifts shall remain primarily responsible for the performance of all such obligations, Virgin Gifts may not delegate its obligations under this Agreement without the prior written consent of Customer.
19. Notices. All notices, requests, claims, demands and other communications provided for in this Agreement must be in writing and made by delivery in person, by courier service, or by certified mail (postage prepaid, return receipt requested), sent or delivered to the receiving party at the address of such party as set forth on the Application portion of this Agreement, or to such other address as may be designated from time to time by a party in writing to the other party in accordance with this Section of this Agreement.
20. Entire Agreement; Severability; Amendments; Waiver. This Agreement constitutes the entire agreement between the parties hereto concerning the matters covered herein and supersedes all prior agreements and/or understandings, between the parties, whether written or oral, concerning the matters addressed herein, and there are no understandings, agreements, representations or warranties, express or implied, relating to the subject matter hereof which are not specified herein in writing and signed by the parties hereto. If any of the terms of this Agreement are or become illegal or unenforceable, such terms will be null and void and will be deemed deleted from this Agreement, and all the remaining terms of this Agreement will remain in full force and effect. Except as otherwise expressly provided herein, the parties may amend this Agreement, from time to time, in writing signed by duly authorized officers of the parties. No waiver of any provision of this Agreement, nor consent to any departure by either party therefrom, will in any event be effective unless the same will be in writing and signed by a duly authorized officer of the party to be charged with the waiver or consent, and then such waiver or consent will be effective only in the specific instance and for the specific purpose for which given.
21. Governing Law; Venue; Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of Colorado , including all matters of construction, validity and performance. Any suit, claim, cause of action or other action to enforce any term or condition set forth herein or otherwise arising out of this Agreement must be brought in the district court for the City and County of Boulder, Colorado, and both parties hereby irrevocably submit to the venue and jurisdiction of such courts and waive any right to remove any such suit, claim, cause of action or other action to any other venue. If either party institutes any legal action to enforce or construe any provision of this Agreement (including in any arbitration), the non-prevailing party shall pay to the prevailing party the reasonable costs and expenses (including legal fees) incurred by such prevailing party in connection therewith.
22. Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed is deemed to be an original and all of which taken together shall constitute one and the same agreement.
