Merchant Agreement

These Blazin 10 Merchant Service Agreement Standard Terms & Conditions together with a Merchant Service Agreement Order Form are collectively referred to herein as the “Agreement.”

1. Nature of Services

This Agreement relates to the placement of marketing and promotion services by Merchant with Blazin 10. Blazin 10 will promote a Certificate for the Merchant product or service with the particular Experience characteristics identified in the Order Form, in accordance with this Agreement. The Merchant is the “issuer” of the Certificate for its Experience, and Blazin 10 acts as the marketing agent for the Experience.

2. Blazin 10 Responsibilities

a. Promotional Experience. Blazin 10 may use Merchant Content to prepare one or more promotional experiences for the particular Experience (“Promotional Experience”), in its discretion, which may include an Experience page hosted on the website or other websites offered with our distribution partners, an email promotion to be distributed to potential purchasers of the Experience certificate, or other similar experiences for online promotion of the Experience. The Promotional Experience will be subject to Merchant’s prior approval (which may be made by email), not to be unreasonably withheld or delayed. Once a Promotional Experience has been approved, Blazin 10 is deemed to have approval to use and promote other Promotional Experiences that are substantially similar to the approved Promotional Experience.

b. Blazin 10 is authorized to promote and sell Certificate on Merchant’s behalf through any platform, including its feature Experience-of-the-day, affiliates, business partner network, marketplace, or referral network and be made available to all or part of Blazin 10’s subscriber base or its affiliate subscriber base or referral network and segmented by various variables including gender, age, location, and consumer preferences. The experiences may be offered through a variety of distribution channels, including, the Internet, the Website, affiliate websites, business partner network, email, mobile applications, other types of electronic offerings and other platforms or distribution channels owned, controlled, or operated by Blazin 10, its affiliates or business partners.

c. The scheduled time period that each Experience is marketed and offered (the “Offer
Period”) will be designated solely by Blazin 10. Without limiting the foregoing, an Offer Period is typically 24 hours for Experiences made available on Monday through Thursday or 72 hours for Experiences offered over a weekend. Offer Periods are subject to scheduling change or cancellation in the sole discretion of Blazin 10. Blazin 10 will endeavor to notify Merchant in advance of the Offer Period, however, Blazin 10 provides no guarantee that it will provide advance notice of Offer Periods or changes to a planned Offer Period.

d. Certificate. Blazin 10 will issue each purchaser of the Merchant Product (each a “Purchaser”) a numbered Certificate for each purchase (each a “Certificate”). Within one business day following the end of the Offer Period, Blazin 10 will provide Merchant with the names of all persons having the right to redeem the Certificate and the corresponding Certificate numbers.

e. Blazin 10 reserves the continuing right to reject, revise, or discontinue any Merchant Offering, at any time and for any reason, and to terminate the Merchant Offering and to remove all references to the Merchant Offering and Certificate from the Website; and redirect or delete any URL used in connection with the Merchant Offering.

3. Merchant Responsibilities

a. Issuer. Merchant agrees and acknowledges that Blazin 10 markets and facilitates the purchase of the Experience, but that Merchant remains the issuer of the Certificate. Accordingly Merchant agrees that it, and not Blazin 10, is solely responsible to fulfill the Experience and provide the Merchant Product to the individual redeeming each Certificate in accordance with this Agreement.

b. Merchant shall honor the Certificate for their Full Offer Value through the Promotional Value Expiration Date. After the Promotional Value Expiration Date, Merchant agrees to honor the Certificate for at least the Amount Paid or for the Full Offer Value if required by law. NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT OR PERMITTED BY APPLICABLE LAW, MERCHANT AGREES TO REDEEM THE CERTIFICATE FOR THE AMOUNT PAID INDEFINITELY.
Merchant agrees to accept Certificate in any form presented for redemption
that has been approved by Blazin 10, including, without limitation, a physical printout of the Certificate or by displaying the Certificate on a mobile device such as an iPhone at the point of service. Merchant shall not treat Certificate holders differently from other paying customers in the scheduling (e.g., use of blackout dates and times) or delivery of services, except as expressly set forth in the Experience. For Experiences that require advance scheduling, Merchant shall use its best efforts to accommodate the scheduling request of the Certificate holder. Except as expressly set forth in the Experience, Merchant shall permit Certificate holders to redeem Certificate after the Expiration Date for Certificate that require advance scheduling if the Certificate holder contacts Merchant prior to the Expiration Date for the purpose of scheduling service.

c. After the Promotional Value Expiration Date, Merchant must allow the customer to redeem the Certificate for the Amount Paid toward the Merchant Offering. If the goods and services constituting the Merchant Offering and stated on the Certificate are no longer available, the Merchant must allow the customer to redeem the Certificate toward any goods or services then offered by the Merchant equivalent to at least the Amount Paid.

d. Merchant Content. Merchant may be asked to provide a logo, photograph, or other marketing materials (“Merchant Content”) to be used in developing the Promotional Experiences. Merchant hereby grants Blazin 10 a nonexclusive worldwide license to reproduce, use, display, perform, distribute, and create derivative works based upon the Merchant Content for the purpose of developing, distributing, and otherwise promoting the Promotional Experiences as Blazin 10 deems appropriate. After the term of this Agreement, Blazin 10 may continue to use and distribute the Promotional Experiences as exemplars and for general promotional purposes.

e. Partial redemptions: If applicable, and if a customer redeems a Certificate for less than the Amount Paid, the Merchant is responsible for handling any unredeemed value as required by applicable law.

f. Redemption Data. Merchant shall collect and provide to Blazin 10 on a regular basis, no less frequently than monthly, a list of the serial numbers of redeemed Certificate. Merchant may provide this information in paper or digital form.

g. Merchant agrees that in providing the Merchant Offering, Merchant will not impose any extra or additional fees, charges, conditions or restrictions that contradict or are inconsistent with the terms stated on the Certificate, including the Fine Print.

h. Merchant agrees that so long as an appointment or reservation is made to redeem a Certificate, or customer has made an attempt to make an appointment, before the Certificate’s Promotional Value Expiration Date, the Certificate will be honored for the Full Offer Value without restriction, even though the services may be provided after the Promotional Value Expiration Date.

i. In the event a Customer seeks to schedule use of a Certificate prior to the Promotional Value Expiration Date and is denied by Merchant, or is unable to use the Certificate for any other reason prior to the Promotional Value Expiration Date, Blazin 10 may, upon Customer request, extend the Promotional Value Expiration Date by sixty (60) days.

j. Merchant is responsible for all customer service in connection with the Merchant Offering and for supplying all goods and services stated in the Merchant Offering. Merchant is also responsible for any customer loyalty programs associated with the Merchant Offering.

4. Fees and Payment

a. Amounts retained by Blazin 10 from the proceeds of the Merchant Offering are compensation to Blazin 10 for marketing, promoting, and advertising the Merchant Offering and distributing the Certificate on behalf of Merchant. Blazin 10 will have no obligation to advance amounts that have been paid to Blazin 10 by the purchaser until Merchant has complied with its obligations under this Agreement. Merchant shall retain the Remittance Amount in trust for the benefit of Blazin 10’s customers holding unredeemed Certificate until Merchant delivers the Merchant Offering, refunds the holder of any unredeemed Certificate or escheats the amount required to a taxing authority, if applicable. The funds held in trust shall be returned to Blazin 10 upon demand for refunds to customers. Blazin 10 is authorized to review Merchant’s credit history before advancing funds. If Merchant is unwilling or cannot perform its obligations under this Agreement, Blazin 10 is authorized to offset or withhold future payment and secure reimbursement from Merchant for any refunds.

b. Merchant Payment. Subject to Merchant’s performance of its obligations under this Agreement, Blazin 10 shall remit to Merchant all payments received from Purchasers of Certificate, minus the Commission Fee (the “Merchant Payment”). Unless otherwise agreed by the Parties, the amounts due Merchant will be paid by check. (i) Short Term Experiences: 70% of the Merchant Payment will be mailed to Merchant within five (5) business days after the end of the Offer Period and the final 30% 15 business days after the end of the offer period. (ii) All Other Experiences: The first 50% of the Merchant Payment will be mailed to Merchant within fifteen (15) business days after the end of the Offer Period, and the final 50% will be mailed within 30 business days after the end of the offer period. In the event Blazin 10 has received a substantial number of customer complaints or requests for refunds, as determined in its discretion, Blazin 10 may hold-back up to a third of the Merchant Payment until the parties have reached a mutually acceptable plan for resolving the complaints.

c. Taxes. Merchant will be solely responsible for collecting and remitting any value added, use or sales taxes owed to federal, state, or local taxing authorities in connection with the sale or redemption of Certificate.

d. 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 services.

5. Refunds

Merchant agrees that Blazin 10 shall have the right to refund the Experience Price to any Purchaser who is dissatisfied with the experience of scheduling and using the Merchant Product, provided that Blazin 10 also refunds the Commission Fee associated with such purchase. In such cases, if the refund occurs before payment in full of the Merchant Payment has been made to Merchant, the refunded fees (not including any refunded Commission Fees) will be set-off against amounts owed to the Merchant. If the Merchant has already been paid the Merchant Payment in full, it agrees promptly to repay to Blazin 10 the amount of refunded fees (not including any refunded Commission Fees).

6. Representations and Warranties

Merchant represents and warrants that: (a) Merchant has the right, power and authority to enter into this Agreement; (b) Merchant, if required by applicable law, is registered for sales and use tax collection purposes in all jurisdictions where Merchant’s goods and services will be provided; (c) the Certificate, upon being delivered by Blazin 10, will be available immediately for redemption; (d) the terms and conditions of the Certificate, including any discounts or goods and 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 Certificate, gift cards, coupons, and gift certificates; (e) Merchant owns all interest in and to the Merchant IP and has licensing rights in (with the right to sublicense to Blazin 10) the Third Party IP, and has the right to grant the License stated in this Agreement; (f) the Merchant IP and the Third Party IP, the goods or services, Blazin 10’s use and promotion thereof, and the results of such goods or services, 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; (g) 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; (h) the Certificate and any advertising or promotion of Merchant’s goods and services relating thereto will not constitute false, deceptive or unfair advertising or disparagement under any applicable law; (i) 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 goods or services described in this Agreement; (j) Merchant’s business information as provided in the Order Form Agreement, indicating where payments should be mailed are accurate and Merchant is the authorized entity to receive the funds mailed by Blazin 10; (k) 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 Certificate in connection with this Agreement.

7. Customer Data Restrictions

a. “Customer Data” means all identifiable information about purchasers generated or collected by Blazin 10 or Merchant, including, but not limited to, purchasers’ name, shipping addresses, email addresses, phone numbers, purchaser preferences and tendencies, and financial transaction data.

b. 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 Certificate and provision of goods and 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.

c. 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 customer who is already a customer of Merchant before the Effective Date, if such data was provided to Merchant by such customer independent of this Agreement or any transaction hereunder; or (ii) data supplied by a customer directly to Merchant who becomes a customer of Merchant in connection with such customer explicitly opting in to receive communications from Merchant.

d. Merchant shall immediately notify Blazin 10 if Merchant becomes aware of or suspects any unauthorized access to or use of Customer Data or any confidential information of Blazin 10, and shall cooperate with Blazin 10 in the investigation of such breach and the mitigation of any damages. Merchant will bear all associated expenses incurred by Blazin 10 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 Blazin 10, destroy or return to Blazin 10 all the Customer Data in Merchant’s or any agent of Merchant’s possession.

8. Indemnification

a. Indemnity. Merchant shall indemnify, defend, and hold harmless Blazin 10, its directors, officers, employees, and agents from and against any and all claims, demands, causes of action, or liabilities, and expenses, including reasonable attorney’s fees, to the extent arising out of the Experience, the Certificate, the Merchant Product and the fulfillment thereof, and/or any breach or alleged breach of any Merchant obligation, representation, or warranty under this Agreement.

b. Process. Blazin 10 must notify Merchant promptly in writing of any claim for indemnification hereunder, and provide, at Merchant’s expense (to the extent of out-of pocket expenses only), all reasonably necessary assistance, information and authority to allow Merchant to control the defense and settlement of such claim, provided that the failure of Blazin 10 to promptly inform Merchant of any claim shall not excuse Merchant of its obligations under this Section except to the extent such failure materially prejudices Merchant. Notwithstanding the foregoing, Merchant shall not enter into any settlement of the defense of such action, other than with respect to the payment of monies, without Blazin 10’s prior written consent, which consent shall not be unreasonably withheld or delayed. Blazin 10 may participate at its expense in the defense and/or settlement of any such action with counsel of its choosing and at its sole expense

9. Limitation of Liability


10. Term

a. Term. This Agreement shall commence on the Effective Date and end on the Expiration Date as noted on the Order Form.

b. Termination. Either party may terminate this Agreement upon breach by the other party. Blazin 10 may cancel this Agreement, in its discretion, upon notice to Merchant at any time prior to the Offer Period.

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

Merchant agrees to comply with the Certificate terms and conditions as stated on the Website, including but not limited to the “Terms of Use” http://www.Blazin, and to ensure that the Certificate comply with all laws that govern Certificate, 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 Fine Print related to the Merchant Offering stated on the Certificate. 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, Blazin 10 will provide Merchant with information in Blazin 10’s possession that the Merchant needs to comply with its obligations under this Agreement.

12. Intellectual Property Rights

a. Merchant grants to Blazin 10 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: (a) 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 (b) 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 use by Merchant (collectively, “Third Party IP”), in each case in connection with the promotion and resale of the goods 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 Blazin 10’s sole discretion.

b. Merchant acknowledges and agrees that, as between the parties, Blazin 10 owns all interest in and to the Website, Customer Data, Blazin 10 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 Blazin 10 or at Blazin 10’s direction, or assigned to Blazin 10, and any materials, software, technology or tools used or provided by Blazin 10 to promote, resell or distribute the goods and services and conduct its business in connection therewith (collectively “Blazin 10 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 Blazin 10 IP or any portion thereof, or use such Blazin 10 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 Blazin 10 IP confidential, and shall not prepare any derivative work based on the Blazin 10 IP or translate, reverse engineer, decompile or disassemble the Blazin 10 IP. Merchant shall not take any action to challenge or object to the validity of Blazin 10’s rights in the Blazin 10 IP or Blazin 10’s 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 Blazin 10 IP in any medium without prior written approval from an authorized representative of Blazin 10. Merchant shall not include any trade name, trademark, service mark, domain name, social media identifier, of Blazin 10 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 Blazin 10 IP in a manner that could reasonably imply an endorsement, relationship, affiliation with, or sponsorship between Merchant or a third party and Blazin 10. All rights to the Blazin 10 IP not expressly granted in this Agreement are reserved by Blazin 10.

c. If Merchant provides Blazin 10 or any of its affiliates with feedback, suggestions, reviews, modifications, data, images, text, or other information or content about a Blazin 10 product or service or otherwise in connection with this Agreement, any Blazin 10 IP, or Merchant’s participation in the Merchant Offering or Certificate, (collectively, “Feedback”), Merchant irrevocably assigns to Blazin 10 all right, title, and interest in and to Feedback and grants Blazin 10 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: (A) Feedback is Merchant’s original work, or Merchant obtained Feedback in a lawful manner; and (B) Blazin 10 and its sub licensees’ 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 Blazin 10 such assistance as Blazin 10 might require to document, perfect, or maintain Blazin 10’s rights in and to Feedback.

14. Confidentiality

a. 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, Blazin 10 is entitled to injunctive relief and a decree for specific performance, and any other relief allowed under applicable law (including monetary damages if appropriate).

b. Entire Agreement. This Agreement is the entire agreement of the Parties with respect to the subject matter hereof, and supersedes any and all prior agreements
and/or understandings, whether written or oral. Their duly authorized representatives shall not modify this Agreement except by a written agreement dated subsequent hereto signed on behalf of each Party.

c. Notices. All notices and requests in connection with this Agreement will be deemed given as of the day they are received either by facsimile, messenger, delivery service, or in the Mail, postage prepaid, certified or registered, return receipt requested, and addressed to a Party at the address specified in the Order Form or such other address as a Party may designate pursuant to this notice provision.

d. Waiver. No waiver of any term or condition hereof shall be effective unless in writing and signed by the authorized representative of the Party against whom such waiver is asserted. Any waiver shall be specifically limited to its terms, and shall not be deemed applicable to subsequent like circumstances.

e. Governing Law. This Agreement shall be governed by the laws of the State of Louisiana, without reference to principles of conflicts of law, and the Parties further consent to the exclusive jurisdiction of the local and federal courts located in New Orleans, Louisiana to resolve any dispute that may arise between the Parties relating to this Agreement.

f. Counterparts. This Agreement may be executed in one or more counterparts, which may be exchanged by facsimile or other electronic means, each of which shall be deemed an original and which together shall constitute one and the same agreement.

15. Other

a. 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.

b. 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. This Agreement may be amended or modified only by mutual agreement of authorized representatives of the parties in writing.

c. Merchant is not authorized to transfer or assign its rights or obligations under this Agreement, whether by operation of law or otherwise, without Blazin 10’s prior written consent. Any waiver must be in writing and signed by an authorized signatory of Blazin 10. Blazin 10 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.

d. 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.


16. Authorization & E-Signing

I represent that I am a duly authorized representative of Merchant and that my act of e-Signing this document shall be a binding commitment of Merchant under the terms of this Blazin 10 Merchant Service Agreement Order Form and Standard Terms & Conditions