Terms and conditions

1.1    Products and Services Offered.  Menagiftcards - FZCO agrees to sell to Customer those Prepaid, Stored Value Products and Services as described in the Schedule(s), subject to prior Provider (as defined below) approval and the terms and conditions set forth herein.  Customer agrees to pay all charges associated with Menagiftcards - FZCO’s provision of such Prepaid, Stored Value Products and Services in accordance with the payment provisions contained herein.  To the extent that any provision in any Schedule conflicts with this Agreement, the Schedule shall control.  The parties agree to negotiate in good faith to add other products and services offered by Menagiftcards - FZCO to this Agreement from time-to-time upon terms and conditions as are mutuallgreed by the parties.  The availability of any and all Prepaid, Stored Value Products and Services and the terms and conditions applicable thereto is subject to change upon notice by Menagiftcards - FZCO or the issuing bank or provider of such Prepaid, Stored Value Products and Services (together, the “Provider”), as applicable.  Customer acknowledges and agrees that each applicable discount, pricing or fee amount is subject to change upon the lesser of five (5) days prior written notice by Menagiftcards - FZCO or as much notice as provided by the Provider, as applicable.  All purchases of Prepaid, Stored Value Products and Services hereunder and subsequent sale and/or distribution thereof are subject to the terms and conditions and policies and procedures as set forth from time to time by the relevant Provider.  All products and services for which a Prepaid, Stored Value Products and Services may be redeemed are provided or otherwise made available by the relevant Provider, and the provision thereof is subject to the prior approval and terms and conditions as set forth by such Provider. Customer shall be prohibited from accepting the return of any Prepaid, Stored Value Products and Services from a consumer, or providing a refund for any purchase of a Prepaid, Stored Value Products and Services to a consumer.  Customer will be solely responsible for all unauthorized returns and refunds.

1.2    Term.  The term of this Agreement shall commence on the Registration Date, and shall continue for a period of three (3) years thereafter (the “Initial Term”).  This Agreement shall be automatically extended after the Initial Term for successive consecutive terms of two (2) years (a “Renewal Term”) unless either party gives written notice of non-renewal at least ninety (90) days prior to the expiration of the term in effect or unless otherwise terminated in accordance with the termination provisions hereof.  The Initial Term and any Renewal Terms are sometimes collectively referred to herein as the "Term".  Each twelve month period immediately following the Effective Date and any anniversary of the Effective Date thereafter, shall be considered a “Contract Year”.

1.3    Marketing/Merchandising of Products and Services.  Customer shall use its commercially reasonable efforts to market, promote and sell the Prepaid, Stored Value Products and Services available hereunder to the same degree it would any of its other major products and services.  Customer will post in its Customer Websites or otherwise all materials as required by Menagiftcards - FZCO to ensure compliance with Applicable Law or Providers.  

1.4    Product Sourcing.  Except as set forth in subsection (a), Customer shall not, directly or indirectly, distribute, market, process, sell, load, reload, and/or provide balance inquiry, transaction history and other related Prepaid, Stored Value Products and Services or related services other than those purchased by Customer from Menagiftcards - FZCO (the “Menagiftcards - FZCO Products”).

(a)              Additional Products.  In the event Customer desires to offer to its consumers Prepaid, Stored Value Products and Services for which Menagiftcards - FZCO does not have distribution rights (each, an “Additional Product”), Customer shall provide Menagiftcards - FZCO with written notice identifying the desired Additional Product, and Menagiftcards - FZCO shall have ninety (90) days from receipt of such written notice to obtain distribution rights for the desired Additional Product. If Menagiftcards - FZCO obtains distribution rights for the desired Additional Product within such ninety (90) day period, Customer shall not, directly or indirectly, distribute, market, process, purchase, load, reload or otherwise promote such Additional Product other than as purchased by Customer from Menagiftcards - FZCO.  If  Menagiftcards - FZCO is unable to obtain distribution rights for the desired Additional Product within such ninety (90) day period, Customer may then purchase such Additional Product directly from the underlying provider of such Additional Product  and such activity shall not be a violation of this Section 1.4.

2.    ORDERS/PAYMENT

2.1    Orders/Access Information.

(a)    POS / FTP Orders.  Customer shall place orders for Prepaid, Stored Value Products and Services to be activated, sold, and/or distributed by Customer in a manner mutually agreed upon by the parties.  Customer hereby agrees to purchase Prepaid, Stored Value Products and Services from Menagiftcards - FZCO or its Affiliates in such number and denomination, with such customization, if any, as described in any order submitted through the Menagiftcards - FZCO POS, Menagiftcards - FZCO file transfer protocol (“FTP”), or such other method designated by Menagiftcards - FZCO, in each case as permitted by Menagiftcards - FZCO from time to time (each such order, an “Order”).  Customer acknowledges and agrees that (i) the terms of this Agreement apply to each Order and purchase of Prepaid, Stored Value Products and Services from Menagiftcards - FZCO, (ii) each Order constitutes a binding, unconditional contract for the purchase and sale of the Prepaid, Stored Value Products and Services that may not be cancelled by Customer, and (iii) each submission of an Order to Menagiftcards - FZCO shall constitute a restatement and renewal of each and every representation and warranty made by Customer hereunder as fully as if made on the date such Order is submitted to Menagiftcards - FZCO. Notwithstanding anything to the contrary contained herein, Customer acknowledges and agrees that acceptance and fulfillment of each Order shall be at Menagiftcards - FZCO’s sole discretion. Menagiftcards - FZCO may choose to reject any Order or decline to fulfill any Order upon notice to Customer, subject to Menagiftcards - FZCO’s refund of any related unearned funds previously tendered by Customer, and that neither Menagiftcards - FZCO nor any of its Affiliates shall have any liability arising as a result of any such action.  Customer acknowledges that any agreed-upon delivery date for such Prepaid, Stored Value Products and Services is subject to change for any cause that interferes with Menagiftcards - FZCO’s suppliers’ production, supply, or transportation of the Prepaid, Stored Value Products and Services, including, but not limited to, any event of Force Majeure (as defined below).

            (b)    Access Information.  Customer authorizes Menagiftcards - FZCO to accept and process Orders from anyone using the information necessary to access Customer’s account and pay for Orders including the user identification number and password provided to Customer by Menagiftcards - FZCO in connection with Customer’s registration with Menagiftcards - FZCO, and Customer’s payment information (collectively “Information”).  Customer agrees to be fully liable for any purchase using the Customer’s Information.  Menagiftcards - FZCO will have no obligation, liability or responsibility for verifying the identity of anyone using Customer’s Information, nor will Menagiftcards - FZCO have any obligation, liability or responsibility to Customer for any losses incurred by Customer as a result of the unauthorized use of Customer’s Information.  Customer has the responsibility for safeguarding its Information and shall not reveal its Information to anyone not intended to place Orders on its behalf.  If Customer suspects that an unauthorized user may have had access to its Information, Customer must immediately notify Menagiftcards - FZCO.

Payment.  Customer will remit payment to Menagiftcards - FZCO for the face or load value of Prepaid, Stored Value Products and Services sold to Customer, less any applicable discount(s), plus any applicable fees, set forth on the Schedules as set forth below.  

(a)    POS / FTP Order Payment.  Upon execution of this Agreement, Customer will deposit an amount equal to one Thousand Dollars ($1,000) (the “Deposit”) into an Menagiftcards - FZCO bank account at a financial institution designated by Menagiftcards - FZCO (the “Deposit Account”).  Menagiftcards - FZCO will use the Deposit to satisfy any and all amounts owed for the Prepaid, Stored Value Products and Services purchased by Customer by Orders placed via the Menagiftcards - FZCO POS, Menagiftcards - FZCO file transfer protocol (“FTP”), or such other method designated by Menagiftcards - FZCO, in each case as permitted by Menagiftcards - FZCO from time to time pursuant to this Agreement.  Menagiftcards - FZCO may, in its sole discretion, immediately suspend the ability for Customer Websites to order and/or sell any Prepaid, Stored Value Products and Services if amounts owed to Menagiftcards - FZCO by Customer exceed the available Deposit until Customer replenishes the Deposit Account.  All amounts due by Customer to Menagiftcards - FZCO shall be paid without any deduction, revision or set-off whatsoever.  The Deposit amount is intended to equal the forecasted amount of gross sales of Prepaid, Stored Value Products and Services to Customer for a two (2) week period.  In the event that amounts owed to Menagiftcards - FZCO by Customer begin to regularly exceed the available Deposit, Customer agrees that it will increase the amount of the Deposit to cover the greater anticipated amounts owed.  After Menagiftcards - FZCO draws on the Deposit Account to satisfy amounts owed by Customer, Customer agrees to fully replenish the Deposit such that the Deposit amount does not remain below Five Hundred Dollars ($500).  Menagiftcards - FZCO shall reevaluate such Deposit amount during each holiday season and may require Customer, at Menagiftcards - FZCO’s sole discretion, to increase such Deposit amount as necessary to cover any and all amounts owed for the Prepaid, Stored Value Products and Services sold via Customer’s Websites during each holiday season.  In the event Menagiftcards - FZCO requires such Deposit amount to increase during each holiday season, Menagiftcards - FZCO shall lower the Deposit amount after the holiday season, but in no event shall such Deposit amount ever fall below Five Thousand Dollars ($5,000) unless otherwise agreed upon in writing by the parties.

2.3    Intentionally Omitted.

2.4     Billing Disputes.  Customer shall have the right to reasonably dispute any of the charges contained in a reconciliation or an invoice for a period of thirty (30) days after the date of the reconciliation or invoice (the “Reconciliation Date”), provided that: (a) Menagiftcards - FZCO receives payment in full for all charges on or before the date such payment is due, (b) Customer presents a written statement of the purported billing discrepancies to Menagiftcards - FZCO in reasonable detail on or before the thirtieth (30th) day after the Reconciliation Date, and (c) Customer negotiates in good faith with Menagiftcards - FZCO for the purpose of resolving such dispute.  In the event such dispute is mutually agreed upon and resolved in favor of Customer, Customer will receive a credit for the disputed charges.  Menagiftcards - FZCO shall not be obligated to consider any Customer notice of any billing discrepancies which are received by Menagiftcards - FZCO more than thirty (30) days after the Reconciliation Date.

2.5    Taxes.  

    (a)         Taxable prepaid content cards, services and any other taxable product: Customer shall be responsible for the collection of applicable Local Taxes from Customer’s patrons for the sale of taxable prepaid content cards, services and any other taxable product.  Where applicable, Customer shall collect and remit tax/ VAT and provincial tax on the face value of the taxable prepaid content cards, services, and any other taxable product to the appropriate taxing authority.

(b)   Other prepaid stored value products and services: Customer acknowledges and agrees that it will be responsible for the proper determination of which products and services are subject to other provincial taxes and which products and services are not subject to other provincial taxes.

(c)           In the event there is any claim against Menagiftcards - FZCO for any applicable taxes regarding which Customer has the responsibility to collect or remit pursuant to this Agreement, Customer shall hold Menagiftcards - FZCO harmless from and against all liabilities incurred in connection with Customer's failure to collect or remit such taxes; provided, however, that Menagiftcards - FZCO shall actively object any assessment by the tax authorities for uncollected and/or unremitted sales tax or any similar claim, provide Customer with the opportunity to object to any sales tax assessment or reassessment, fully involve Customer in any tax related audits by tax authorities, and provide Customer with any and all documentation pertaining to any tax issues in which Customer is involved. In the event that Menagiftcards - FZCO fails to comply with its obligations pursuant to this paragraph in respect of any uncollected and/or unremitted taxes, Customer shall be released from its obligation to indemnify or hold harmless Menagiftcards - FZCO in respect of such uncollected and/or unremitted taxes. For greater certainty, in the event that any claim is made against Menagiftcards - FZCO for any applicable taxes regarding which Customer has no responsibility to collect or remit pursuant to this Agreement, Customer shall not be required to indemnity or hold harmless Menagiftcards - FZCO from and against liabilities incurred in connection with the failure to collect or remit such taxes.

2.6    Risk of Loss.  Upon Menagiftcards - FZCO’s transmission of Prepaid, Stored Value Products and Services to Customer or its designated recipient(s), title to and risk of loss of each such Prepaid, Stored Value Product and Service will pass to Customer.  Menagiftcards - FZCO will have no liability to Customer or to any third party for any loss, theft or misuse of any Prepaid, Stored Value Products and Services that Menagiftcards - FZCO has transmitted to Customer (or its designated recipient(s)).  Neither Menagiftcards - FZCO nor any of its Affiliates has any obligation to monitor or investigate the use of any Prepaid, Stored Value Products and Services transmitted to Customer or Customer’s designated recipient(s). Customer shall pay Menagiftcards - FZCO for all Prepaid, Stored Value Products and Services ordered from Menagiftcards - FZCO, notwithstanding any inability of Customer to collect payment from any of its customers. Menagiftcards - FZCO reserves the right to reject any Order or the fulfillment of any Order or any part thereof, in the event Menagiftcards - FZCO reasonably believes such Order to (a) be fraudulent, unauthorized, incomplete or false, or subject to any other dishonest or illegal conduct, or (b) violate Applicable Law.

3.    Menagiftcards - FZCO TECHNOLOGY.  

    3.1    Title and Ownership.  Title and ownership of the technology utilized to provide the services hereunder, including without limitation, any prepaid products or the underlying services, any terminals provided by Menagiftcards - FZCO, any communications specifications supplied by Menagiftcards - FZCO for use in connection with the products and services hereunder, Menagiftcards - FZCO’s Virtual Terminal System, Menagiftcards - FZCO POS System, Menagiftcards - FZCO Electronic PIN Delivery System, any application program interface (“API”), mobile application, or mobile web application, and any other services delivered by Menagiftcards - FZCO to Customer or consumers under this Agreement, including any modifications or enhancements thereto or derivative works created therefrom (collectively, the “Menagiftcards - FZCO Technology”), shall remain vested solely in Menagiftcards - FZCO or its Affiliates.  Customer shall have no ownership rights or other rights in the Menagiftcards - FZCO Technology.  During the Term and when Customer is distributing and/or reselling those products and services which are described in the Schedules and purchased from Menagiftcards - FZCO, Customer is a beneficiary of Menagiftcards - FZCO’s proprietary and intellectual property as such relates to the distribution and sale of such products and services.  To the extent that Customer contributes, in whole or in part, to any improvement(s) or modification(s) to the Menagiftcards - FZCO Technology, Customer hereby assigns to Menagiftcards - FZCO all right, title and interest in and to such improvement(s) and modification(s).

4.    ACTIVATION.

    4.1    Activation. Customer acknowledges the Prepaid Physical Cards, Stored Value Products and Services must be Activated (as defined below) prior to use, and, if applicable, Menagiftcards - FZCO will Activate all Prepaid, Stored Value Products and Services when in transit to Customer, Customer’s designated recipient, or at such time or through such other method as designated by Menagiftcards - FZCO from time to time.  CUSTOMER FURTHER ACKNOWLEDGES THAT THE ACTIVATED PREPAID, STORED VALUE PRODUCTS AND SERVICES SHOULD BE TREATED LIKE CASH AND STORED IN A SECURE MANNER UNTIL DISTRIBUTED TO THE RECIPIENTS.  “Activate(d)” means enabled for purchases and capable of being used for purchases.

5.    TERMINATION; SUSPENSION.

    5.1    Termination for Cause.  Except for Customer’s obligations set forth in Section 5.2, 5.3, and 5.5, either party may terminate this Agreement upon a material or repeated defaults in the performance of any of its duties or obligations under this Agreement, which default is not cured within thirty (30) days after receiving written notice thereof from the other party.

5.2    Failure to Pay.  Menagiftcards - FZCO shall have the right to terminate this Agreement if Customer fails to pay Menagiftcards - FZCO any and all amounts due hereunder; provided however, that Menagiftcards - FZCO provides Customer with written notice of its failure to pay and Customer fails to cure such failure within five (5) days after its receipt of Menagiftcards - FZCO’s written notice.  

    5.3    Failure to Integrate and Place Orders.  Menagiftcards - FZCO shall have the right to terminate this Agreement if, within three (3) months from the Effective Date, Customer fails to integrate to the Menagiftcards - FZCO POS or FTP and place Orders with Menagiftcards - FZCO for Prepaid, Stored Value Products and Services (an “Integration Failure”); provided however, that Menagiftcards - FZCO provides Customer with written notice of Customer’s Integration Failure and Customer fails to cure such Integration Failure within five (5) days after its receipt of Menagiftcards - FZCO’s written notice.

5.4    Termination for Insolvency.  If a party files or has filed against it a petition in bankruptcy not dismissed within thirty (30) days, becomes insolvent, or makes an assignment for the benefit of all or substantially all of its creditors, the other party may terminate this Agreement upon written notice.  Customer's obligation to pay all amounts when due hereunder shall survive termination of this Agreement for any reason.

    5.5    Suspension.  Without limiting anything in this Agreement, if at any time Menagiftcards - FZCO reasonably believes that (a) the Prepaid, Stored Value Products and Services are being used for fraudulent, illegal or unauthorized activities (including but limited to unusual sales numbers or timing or other indications of potential fraud, illegal or unauthorized activities), (b) any material deterioration in Customer’s financial condition or business reputation, (c) in the event a Provider requires cessation of sales of Prepaid, Stored Value Products and Services, or (d) Customer, or any person or entity acting on its behalf, is violating Applicable Law related to its performance of this Agreement, Menagiftcards - FZCO may immediately suspend the ability for Customer to sell or order products and services  upon written notice to Customer (which may include electronic mail), until such time as the alleged violation is cured or it is determined that no such violation has occurred.

    5.6    Regulatory Authorities.  If any regulatory authority, including provincial or federal public service commissions, or other authority having jurisdiction over any of the products and services provided hereunder (a) determines, at any time, that the distribution of any of the products or services hereunder, or any other programs or services provided by Menagiftcards - FZCO, are unlawful, or (b) changes any regulation or law which materially affects the products, programs and services distributed or provided by Menagiftcards - FZCO (collectively, a “Regulatory Determination”), then Menagiftcards - FZCO shall have the right to modify the affected product,  program or service as Menagiftcards - FZCO determines may be necessary to overcome or respond to such Regulatory Determination, and Customer will work in good faith with Menagiftcards - FZCO in such regard.  In the event that any such Regulatory Determination cannot be overcome or resolved, Menagiftcards - FZCO may terminate any applicable program or portions of this Agreement and any Schedule affected thereby, and/or discontinue the distribution of any affected products or services with no impact to the remaining portions of the Agreement or Schedule.  In such event, neither party shall be subject to any termination liability in accordance with the applicable authority’s order.

    5.7    Accrued Rights.  No termination of this Agreement shall affect any accrued rights or obligations of either party as of the effective date of such termination, nor shall it affect any rights or obligations of either party, which are intended by the parties to survive any such termination.

6.    PROPRIETARY INFORMATION/SECURITY.  

    6.1    Proprietary Information.  Except as expressly set forth below in this Section 6, Menagiftcards - FZCO and Customer shall maintain in confidence the terms of this Agreement.  It is expected that pursuant to discussions which have taken place prior to and following the Effective Date of this Agreement, the parties may disclose to one another certain information, which is considered by the disclosing party to be Proprietary Information (as hereinafter defined).  “Proprietary Information” is defined as any information, communication or data, in any form, including, but not limited to oral, written, graphic or electronic forms, models or samples, which the disclosing party identifies as confidential or which is of such a nature that the receiving party should reasonably understand that the disclosing party desires to protect such information, communication or data against unrestricted disclosure or use, including without limitation, business and pricing information, financial data and marketing data.  If requested in writing by the disclosing party, upon termination or expiration of this Agreement, the receiving party will promptly return or destroy all documents and other tangible materials provided by disclosing party containing any Proprietary Information.

    6.2    Non-Disclosure.  All Proprietary Information shall remain the sole property of the disclosing party and its confidentiality shall be maintained and protected by the receiving party with the same degree of care as the receiving party uses for its own confidential and proprietary information, but in no event, less than a reasonable degree of care. The receiving party shall not use the Proprietary Information of the other party except as necessary to fulfill its obligations under this Agreement, limit access to any Proprietary Information to its Affiliates, employees, independent contractors, and agents who are under a contractual obligation to maintain the confidentiality of such information, and shall not disclose such Proprietary Information to any third party without the prior written consent of the disclosing party. The restrictions on the use or disclosure of any Proprietary Information shall not apply to any Proprietary Information: (a) after it has become generally available to the public without breach of this Agreement by the receiving party; (b) is rightfully in the receiving party's possession prior to disclosure as evidenced by competent written proof; (c) is independently developed by the receiving party without reliance on the Proprietary Information; (d) is rightfully received by the receiving party from a third party without a duty of confidentiality; or (e) is disclosed under operation of law.  In the event the receiving party is required to disclose any Proprietary Information under operation of law, the receiving party shall: (i) give prior written notice of such disclosure to the disclosing party; (ii) limit such disclosure to the extent practicable; and (iii) make such disclosure only to the extent so required.  The confidentiality obligations of the parties herein shall be effective during the Term and for a period of three (3) years from the expiration or termination of this Agreement.  Notwithstanding the foregoing, the parties shall maintain the secrecy and confidentiality of any trade secrets of either party indefinitely so long as they remain trade secrets.

    6.3    Access to the Menagiftcards - FZCO Technology.  Customer agrees that it shall only permit authorized personnel utilizing the security credentials provided by Menagiftcards - FZCO to access the Menagiftcards - FZCO Technology and such authorized personnel shall only access the Menagiftcards - FZCO Technology using authorized workstations at Customer-operated locations. Customer shall be responsible for any costs involved in setting up its own properly authorized computer or broadband connections or other equipment suitable for accessing and using the Menagiftcards - FZCO Technology.  Customer shall not undertake any action which would restrict or limit Menagiftcards - FZCO’s access to the Menagiftcards - FZCO Technology records for purposes of collecting information to support Menagiftcards - FZCO’s reporting system or otherwise. Customer shall immediately discontinue use of the Menagiftcards - FZCO Technology and remove any related software from its respective systems immediately upon expiration or any termination of this Agreement.  Customer shall safeguard the security credentials and prevent unauthorized access of the Menagiftcards - FZCO Technology.

    6.4    Relief.  Notwithstanding any provision of this Agreement to the contrary, the parties acknowledge and agree that any breach or attempted breach of its obligations in this Section 6 may cause the other party to suffer irreparable injury, including, but not limited to, harm to goodwill, diminishment of competitive positions in the marketplace, and lost opportunities to distribute unique products, the dollar value of which will be difficult, if not impossible, to determine, and for which money damages will not provide complete relief.  Therefore, in the event of any such breach or attempted breach of Section 6 of this Agreement, the affected party shall be entitled to the entry of temporary and/or permanent injunctions and orders of specific performance enforcing its rights and the other party’s obligations under Section 6 of this Agreement.  To the extent permitted by Applicable Law, such relief shall be available without the necessity of posting a bond, cash or otherwise.  Such equitable relief shall be in addition to, and in no way shall limit, any other rights or remedies which such affected party may have at law or in equity.

7.    MARKS.  

    7.1    Use of Marks.  Customer acknowledges and agrees that the Prepaid, Stored Value Products and Services marketed, distributed, serviced or otherwise covered under or contemplated by this Agreement may contain the trade names, service marks, brands, and trademarks of  Menagiftcards - FZCO or Providers (collectively, “Marks”).  Unless otherwise authorized by Menagiftcards - FZCO in writing, Customer agrees not to display or use any of the Marks and shall not permit the same to be displayed or used by any authorized party acting on its behalf or third parties, other than in connection with the sale, marketing, distribution or promotion of the Prepaid, Stored Value Products and Services.  All ownership rights of Menagiftcards - FZCO and the Providers in their respective Marks are retained and all uses hereunder by Customer, or any party acting on its behalf, inures to their respective benefits.  All such Marks must be used in strict compliance with the owner’s requirements. Customer may not, and shall ensure that any party acting on its behalf does not, remove, alter or obscure any Marks on or in the Prepaid, Stored Value Products and Services, and shall not place any other trademark, trade name, logo or copyright notice on the Prepaid, Stored Value Products and Services, without prior written permission from Menagiftcards - FZCO.  All merchandising or marketing materials created or used by Customer in connection with the sale and/or distribution of the Prepaid, Stored Value Products and Services must be approved by Menagiftcards - FZCO. Customer grants Menagiftcards - FZCO the right to display the trade name and any logos of Customer to identify Customer to Menagiftcards - FZCO’s customers and business associates.  Upon termination of this Agreement, any and all rights or privileges of Customer to use the Marks shall immediately expire, and Customer shall immediately discontinue the use thereof.  

8.    REPRESENTATIONS, WARRANTIES AND COVENANTS.  

    8.1    Customer.  Customer represents, warrants, covenants and agrees that (a) it is authorized to enter into this Agreement, and its entry into and performance of its obligations under this Agreement do not violate, and will not cause a default under, any other agreement to which Customer is or becomes a party; (b) it will perform its obligations under this Agreement in compliance with Applicable Law; (c) its intellectual property will not infringe upon, misappropriate or violate any other party’s intellectual property rights, including, without limitation, any patent, trademark or copyright; (d) it has and shall maintain all necessary federal, provincial, and local licenses, permits, approvals, registrations or other authorizations from all applicable provincial and federal regulatory and governmental authorities necessary to perform its obligations under the Agreement; (e) it shall implement appropriate administrative, technical, and physical safeguards designed to ensure the security of its connection to the Menagiftcards - FZCO Technology, protect against any anticipated threats or hazards to the security or integrity of the Menagiftcards - FZCO Technology and protect against unauthorized access to or use of the Menagiftcards - FZCO Technology that could result in substantial harm or inconvenience to Menagiftcards - FZCO; (f) to the extent it handles consumer data, it will comply with all applicable consumer privacy laws, data security laws and obligations and rules or regulations related to the safeguarding of consumer information; (g) it shall be solely responsible for any and all its acts, errors, or omissions and the acts, errors, and omissions of Customer’s third party contractors (or any other person or entity acting on behalf of Customer) utilized to satisfy Customer’s obligations associated with this Agreement; and (h) it shall be solely responsible for any fraud occurring or originating on Customer’s technology network or systems.

    8.2    Menagiftcards - FZCO.  Menagiftcards - FZCO represents, warrants, covenants and agrees that (a) it is authorized to enter into this Agreement, and its entry into and performance of its obligations under this Agreement do not violate, and will not cause a default under, any other agreement to which Menagiftcards - FZCO is or becomes a party; (b) it will perform its obligations under this Agreement in compliance with Applicable Law; (c) the Menagiftcards - FZCO Technology will not infringe upon, misappropriate or violate any other party’s intellectual property rights, including, without limitation, any patent, trademark or copyright; (d) it has and shall maintain all necessary federal, provincial, and local licenses, permits, approvals, registrations or other authorizations from all applicable provincial and federal regulatory and governmental authorities necessary to perform its obligations under the Agreement; and (e) it shall be solely responsible for any fraud occurring or originating on Menagiftcards - FZCO’s technology network or systems.

9.    DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY.  

    9.1    EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, Menagiftcards - FZCO MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, TO CUSTOMER, ANY THIRD-PARTY CONTRACTORS OF CUSTOMER, OR TO ANY OTHER PARTY, AND HEREBY DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, OR MERCHANTABILITY, SUITABILITY, ORIGINALITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT AS TO ALL INCOMM SERVICES, TRANSACTIONS, TERMINALS, AND THE PREPAID, STORED VALUE PRODUCTS AND SERVICES.  THE Menagiftcards - FZCO TECHNOLOGY (INCLUDING WITHOUT LIMITATION, THE Menagiftcards - FZCO POS) IS PROVIDED “AS-IS” ON AN “AS AVAILABLE” BASIS.  Menagiftcards - FZCO MAKES NO WARRANTIES THAT Menagiftcards - FZCO WILL PROVIDE ERROR-FREE OR UNINTERRUPTED OPERATION OF THE Menagiftcards - FZCO TECHNOLOGY.  

    9.2    NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT TO THE CONTRARY, Menagiftcards - FZCO SHALL NOT BE LIABLE TO CUSTOMER FOR ANY AND ALL INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION, ANY DAMAGES CLAIMED FOR LOSS OF INCOME, REVENUE, OR PROFITS OR FOR LOSS OF GOODWILL) ARISING FROM OR RELATED TO THIS AGREEMENT.  UNLESS OTHERWISE EXPRESSLY INDICATED, NONE OF THE UNDERLYING PRODUCTS ARE PROVIDED BY Menagiftcards - FZCO UNDER NO CIRCUMSTANCES SHALL Menagiftcards - FZCO BE LIABLE TO CUSTOMER OR ANY OTHER PERSON OR ENTITY FOR ANY LOSS, INJURY OR DAMAGE, OF WHATEVER KIND OR NATURE, RESULTING FROM OR ARISING OUT OF ANY MISTAKES, ERRORS, OMISSIONS OR DELAYS ARISING OUT OF OR IN CONNECTION WITH THE PRODUCTS AND SERVICES OR USE OF ANY PRODUCT OR SERVICES.

10.    MISCELLANEOUS.

    10.1    Force Majeure.  Menagiftcards - FZCO shall be excused from performance of this Agreement, or any obligation hereunder, if and to the extent its performance or obligation is either directly or indirectly prevented, restricted, or interfered with by reason of fire, flood, earthquake or like acts of God, wars, revolution, civil commotion, explosion, fiber cuts, acts of public enemy, embargo, acts of the government in its sovereign capacity, labor difficulties, including without limitation, strikes, slowdowns, picketing, or boycotts, unavailability of equipment from vendor, failure of equipment, delays or non-performance of suppliers or carriers, changes requested by Customer, or any other circumstances beyond the reasonable control and without the fault or negligence of Menagiftcards - FZCO.  Menagiftcards - FZCO shall provide Customer verbal notification of any "force majeure" event which may affect Menagiftcards - FZCO's ability to perform its obligations under this Agreement.

    10.2    No Assignment.  Customer may not assign this Agreement without the prior written consent of Menagiftcards - FZCO.  Any change of control of Customer or sale, transfer, or disposition of a controlling interest in all or substantially all of the assets of Customer, whether by merger, sale of stock, sale of assets or similar transaction, shall be deemed an assignment of this Agreement that requires the prior written consent of Menagiftcards - FZCO.

    10.3    Independent Contractors; No Third Party Beneficiaries.  Menagiftcards - FZCO and Customer are independent contractors, and this Agreement does not create an agency, joint venture, partnership, employment relationship or franchise between them.  Except as expressly set forth herein, neither Menagiftcards - FZCO nor Customer shall have the authority to bind the other in any manner.  By its entry into this Agreement, Menagiftcards - FZCO does not undertake any obligation of Customer to any third party.  The parties do not intend any third party to be a beneficiary of this Agreement or to have any rights hereunder.

    10.4    Governing Law; Jurisdiction.  This Agreement shall be construed in accordance with and governed by the laws of Dubai and the laws of United Arab Emirates, regardless of conflict of law principals.  The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of Dubai, the Federal Court of United Arab Emirates, and all courts competent to hear appeals therefrom.

    10.5    Notices.  Every notice, consent, approval, or other communications required or contemplated by this Agreement (except for routine business communications that do not affect the validity or enforceability of this Agreement) will be in writing and will be deemed given: (i) on the same day if delivered personally; (ii) on the date of receipt if sent by a reputable and recognized receipted overnight delivery service (such as FedEx); or (iii) on the date of transmission if transmitted by electronic email, to the party to be notified at the addresses set forth below.  A party may change its address for such purpose by giving a similar notice specifying the new address.

10.6    Legal Fees.  If any legal action is necessary in order to enforce any of the terms of the Agreement, the prevailing party shall be entitled to recover its reasonable legal fees and costs from the non-prevailing party.

10.7    Affiliates.  For purposes of this Agreement, the term “Affiliate,” wherever it shall be used, shall mean, with respect to a party, any person, firm, corporation, partnership (including, without limitation, general partnerships, limited partnerships, and limited liability partnerships), limited liability company, or other entity that now or in the future, directly Controls, is Controlled with or by or is under common Control with a party.  “Control” shall mean the possession, direct or indirect, of the power to vote more than fifty percent (50%) of the securities that have ordinary voting power for the election of directors of any entity, or to direct or cause the direction of the management and policies of such entity, whether through ownership of voting securities or by contract or otherwise.  Customer and Menagiftcards - FZCO agree that any reference to Menagiftcards - FZCO in this Agreement (including any Schedules or Exhibits hereto) may include Menagiftcards - FZCO’s Affiliates.  During the Term, products and services provided to Customer hereunder may be provided by Menagiftcards - FZCO or its Affiliates at  Menagiftcards - FZCO’s discretion.  All terms and conditions of the Agreement will apply as equally to Menagiftcards - FZCO’s Affiliates as to Menagiftcards - FZCO.    

10.8    Corporate Authority.  Each of the parties represents and warrants that the individual executing this Agreement on its behalf has the full corporate power, authority and right to enter into this Agreement and to perform the acts contemplated herein.

10.9    Press Release.  Any press releases or public announcements regarding the subject matter hereof must have prior written approval of both parties prior to distribution, which approval shall not be unreasonably withheld or delayed.

10.10    Customer’s Representations.  Customer shall not make any representation to any person or entity with respect to the Prepaid, Stored Value Products and Services provided hereunder that goes beyond the representations made by Menagiftcards - FZCO herein or in any marketing materials that Menagiftcards - FZCO may provide to Customer.

10.11    Applicable Law.  For the purposes of this Agreement, “Applicable Law” means any and all applicable provincial or federal laws, rules or regulations in effect during the Term of this Agreement, as may be enacted or amended from time to time, including, without limitation, laws relating to data protection and privacy, and laws relating to the issuance, display, marketing, promotion, sale, authorization or usage of the products and services.

    10.12    Entire Agreement; Amendment.  This Agreement (including the exhibits hereto) constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements and understandings, whether written or oral.  This Agreement may not be modified or amended except by a written instrument executed by each of the parties.

    10.13    No Waiver.  The failure of either party to give notice of default or to enforce compliance with any of the terms or conditions of this Agreement, or its granting of an extension of time for performance, shall not constitute a permanent waiver by such party of such term, condition or performance.  Any waiver by either party of any breach of any provision hereof shall not be construed as a waiver of any continuing or succeeding breach of such provision, a waiver or modification of the provision itself, or a waiver of modification of any right under this Agreement.

    10.14    Headings/Counterparts.  The headings of the items and paragraphs contained in this Agreement are for reference purposes only, and shall not in any way affect the meaning or interpretation of this Agreement.   This Agreement may be executed in two or more counterparts, and each of which shall be considered an original and all of which taken together shall constitute one agreement.

    10.15    Severability.  In the event any portion of this Agreement may be determined by any governmental body having jurisdiction hereover, or by any court of competent jurisdiction, to be unenforceable, the balance of the Agreement shall be severed therefrom and shall remain in full force and effect unless a failure of consideration would thereby result.

    10.16    Construction and Interpretation.  No rule of construction shall apply to this Agreement which construes ambiguous or unclear language in favor of or against a party by reason of that party’s role in drafting this Agreement.  No provision hereof shall be construed as a limitation or modification of any other provision hereof.

    10.17    Language. The parties confirm that it is their wish that this Agreement, as well as any other documents relating to this Agreement, including appendices, authorizations, notices and amendments, have been and shall be drawn up in the English language only.

IN WITNESS WHEREOF, the duly authorized representatives of each party have executed this Master Services Agreement as of the Effective Date.

11. Compliance with Sanctions

Customers and Menagiftcards - FZCO are required to act in accordance with the laws and regulations operating in various countries around the world relating to international sanctions. Under these sanctions’ requirements, customers are prohibited from engaging in certain transactions. These limitations include, but are not limited to, selling our products, giving access to our portal, logging in our mobile application from sanctioned countries and etc. Menagiftcards - FZCO products should not to be sold in Iran, Syria, Cuba, Sudan, Libya and any other sanctioned country by US and customers are obliged to do all precautionary actions in order to avoid Menagiftcards - FZCO products getting sold in sanction countries. We may have to reject transactions or carry out other activities, such as the blocking or freezing of accounts, as required under the applicable sanctions.

SCHEDULE 1 to MASTER SERVICES AGREEMENT

THIRD PARTY DIGITAL CODES PROGRAM - RESELLER

(FOR RESALE TO CONSUMERS BY MERCHANTS)

(1)    Definitions.  Defined terms applicable to this Schedule are set forth below.  Any other defined terms contained herein have the meanings ascribed to them in the Agreement.

“Digital Code(s)” means the Prepaid, Stored Value Products and Services that are codes, PINs, virtual closed-loop gift cards or other similar mechanism that (i) are issued by a Provider in exchange for payment and are redeemable at such Provider’s store locations or ecommerce platforms and/or other Internet-based sales websites for goods or services, (ii) are delivered to consumers electronically (e.g., via e-mail, PIN-on-receipt, etc.), and (iii) which may be purchased by Customer from Menagiftcards - FZCO as set forth herein.

“Digital Codes Program” means the program in which Customer desires to participate wherein Digital Codes may be purchased by Merchants from Customer.

“Fees” means the program fees charged to Customer by Menagiftcards - FZCO for the products and services hereunder as set forth in Section 4 below.  

“Merchant(s)” means the third-party retail merchants that Customer has agreements with for the sale of Prepaid, Stored Value or Money Transmission Products and Services.

“Provider” means the relevant merchant or product or service provider issuing the Digital Code.

(2)    Appointment as Reseller.  Menagiftcards - FZCO hereby appoints Customer as an authorized reseller of Menagiftcards - FZCO to promote, market, and sell the Digital Codes in at the discounts (set forth on Exhibit A to this Schedule, attached hereto), and Fees (set forth below), and based on the terms set forth herein.  Menagiftcards - FZCO will sell such Digital Codes to Customer for further resale to its Merchants under such Merchant’s agreement with Customer.  Customer shall use commercially reasonable efforts to actively promote, market, and sell the Digital Codes to its Merchants.  

Customer Duties.  Customer shall: (i) conduct its business and activities in a professional, ethical, legal, and business-like manner that promotes a positive image for itself and Menagiftcards - FZCO; (ii) not make any false, misleading or disparaging representations or statements about the Digital Codes or Menagiftcards - FZCO; (iii) cooperate with Menagiftcards - FZCO in any promotions or other marketing and advertising programs as Menagiftcards - FZCO may reasonably request; (iv) promptly report any complaints regarding the Digital Codes to Menagiftcards - FZCO ; (v) not sell or distribute the Digital Codes to any other resellers or sub-distributors; and (vi) be solely responsible for any contracts or commitments it enters into, or costs or expenses it incurs, in connection with the Agreement or its performance hereunder.

    (b)    Authorized Merchants; Responsibility for Merchants.  Prior to Customer reselling the Digital Codes to any Merchant, Customer must: (i) provide Menagiftcards - FZCO with such information as Menagiftcards - FZCO may request regarding such Merchant; and (ii) obtain Menagiftcards - FZCO’s written approval prior to selling any Digital Codes to such Merchant.  Notwithstanding any provision to the contrary in this Schedule or the Agreement, Customer may not sell the Digital Codes to those Merchants that Menagiftcards - FZCO, in its reasonable discretion, determines would reflect poorly on Menagiftcards - FZCO or the Providers.

    (c)    Responsibility for Merchants.  Customer shall be fully responsible for all Merchant activities relating to the sale of Digital Codes including each Merchant’s compliance with Applicable Law and with all Provider terms and conditions, policies, and procedures associated with the Digital Codes, and Customer shall ensure that the Merchants adhere to the terms and conditions of this Schedule and the Agreement.  Any breach by a Merchant of the terms of this Schedule and the Agreement shall be considered a breach by Customer.  Customer shall be responsible for all loss or theft of, or any fraud involving, the Digital Codes sold to Customer pursuant to this Schedule and the Agreement, other than that which is caused by Menagiftcards - FZCO or its employees.  Customer assumes all risks of nonpayment or delay in payment by the Merchants, and acknowledges Customer’s absolute, unconditional obligation to pay Menagiftcards - FZCO for all amounts due with respect to sales of the Digital Codes hereunder.

(3)    Digital Code Program – Reseller.  Customer may purchase from Menagiftcards - FZCO for sale directly to Merchants the Digital Codes at the discounts (set forth on Exhibit A), and Fees (set forth below), and based on the terms set forth herein.  Discounts apply to the face or load value of products and are subject to change upon five (5) days prior written notice by Menagiftcards - FZCO as determined by the Provider or by Menagiftcards - FZCO, as applicable.  Available denominations are determined by the Providers and subject to change upon notice.  All purchases are subject to the terms and conditions and policies and procedures as set forth from time-to-time by the Providers.  All products and services are provided by the applicable Provider and provision thereof is subject to the prior approval by the Provider.  Availability of all products and services and program terms and conditions subject to change upon notice by Menagiftcards - FZCO.  Additional products may be added from time-to-time by mutual agreement between Menagiftcards - FZCO and Customer by way of e-mail approval. Upon expiration or termination of the Digital Codes Program, the parties will cooperate in good faith to ensure that any partially fulfilled Orders of Digital Codes are completed.  Customer will be responsible for accepting, processing and validating payments from Merchants.  In no event may the Digital Codes in either Exhibit A be distributed or sold in connection with a loyalty, award, or promotional program.

(4)    Fees.  In addition to and not in lieu of any other payment terms set forth in the Agreement, Customer will be liable to Menagiftcards - FZCO for the Fee amounts set forth in the table below.  

(5)    Representations, Warranties and Covenants; Indemnification.  

(a)    Representations, Warranties and Covenants. In addition to Customer’s representations, warranties, and covenants set forth elsewhere in the Agreement, Customer further represents, warrants and covenants that: (i) all information regarding Customer and/or its Merchants, if any, provided to Menagiftcards - FZCO by Customer in connection with the purchase of the Digital Codes is true and accurate in all respects; (ii) to the extent that any Merchant handles consumer data, Customer ensure that its Merchants comply with all applicable consumer privacy laws, data security laws and obligations and rules or regulations related to the safeguarding of consumer information; (iii) it shall ensure its Merchants have and maintain all necessary federal, provincial, and local licenses, permits, approvals, registration or other authorizations from all applicable provincial and federal regulatory and governmental  authorities necessary to perform its obligations hereunder; and (iv) it will ensure that its Merchants comply with all Applicable Law as it relates to the sale and distribution of Digital Codes.  

    (b)    Indemnification.  In addition to Customer’s indemnification obligations in the Agreement, Customer agrees to indemnify, defend, and hold harmless, Menagiftcards - FZCO and each Provider and their respective affiliates, directors, officers and employees (“Menagiftcards - FZCO Indemnified Parties”) harmless from and against all third-party claims, actions, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) (“Third Party Claims”) relating to or arising in connection with Customer’s and each Merchant’s: (a) acts or omissions; (b) breach of its representations, warranties, covenants or obligations contained within the Agreement and this Schedule; (c) non-compliance with terms and conditions, policies, and procedures associated with the Digital Codes; or (d) fraud, gross negligence or willful misconduct.  Each agreement between Customer and its Merchants shall require such Merchant to waive all Third Party Claims against ____________ and any Provider, distributor, or processor of the Digital Codes, and Customer shall indemnify the Menagiftcards - FZCO Indemnified Parties against any and all Third Party Claims by Customer’s Merchants with respect to the Digital Codes and related services provided in this Schedule and the Agreement.

(6)    Payment.  The discounts, dollar amounts, and Fees set forth in this Schedule are in addition to and not in lieu of any other payment terms set forth in the Agreement.  Customer will pay to Menagiftcards - FZCO all amounts owed for Digital Codes and Digital Code Fees in the same manner and on the same schedule as set forth in Section 2.2 (Payment) of the Agreement.

The parties hereto acknowledge that they have read this Schedule 1 and understand and agree to be bound by its terms and conditions.