This Master Terms & Conditions for commissioned-only sales representatives (the “Terms & Conditions”), together with The Services Summary incorporated by reference hereto, set forth the complete terms and conditions governing the relationship between GyftHint, Inc. (the “Company” or “GyftHint”) and the Representative (collectively, the “Agreement”).
This Terms & Conditions was last updated on May 13, 2025 and may be updated from time to time.
The parties therefore agree as follows:
1. ENGAGEMENT; THE SERVICES.
(a) The Services. The Company retains the Representative to provide, and the Representative shall provide The Services as set forth in The Services Summary therein, or as otherwise set forth in this Terms & Conditions. The Representative understands that the Company provides multiple products and services to Merchants and consumers. These products and services generally include the GyftHint Hybrid Wishlist Application, (available through the Shopify App Store), the Gifting Retail Interface Platform (GRIP), the GyftHint Mobile and Web applications, the GyftHint Chrome Extension, and any other services, products, reports, and applications that may be created, sold or distributed by the Company (the “GyftHint Services”).
(b) The Services General Provisions. The Representative shall:
(i) perform The Services. However, if a conflict exists between this Terms & Conditions and The Services Summary, the Terms & Conditions will control;
(ii) devote as much productive time, energy, and ability to the performance of its duties under this Terms & Conditions as may be necessary to provide The Services in a timely and productive manner;
(iii) grow new Merchant relationships as a critical requirement of the Company’s ongoing success;
(iv) perform The Services in good faith in a manner satisfactory and acceptable to the Company and generally acceptable for any SaaS sales representative position;
(v) communicate at regular intervals with the Company about progress the Representative has made in performing The Services, the frequency of which is at the sole discretion of Company;
(vi) perform The Services at Representative’s sole and exclusive expense, except if provided as a convenience of the Company such as Company systems access;
(vii) comply with all applicable laws and Company policies while conducting business on behalf of the Company; and
(viii) correct all or any portion of The Services, work or end products found unsuitable, without additional cost or risk to Company.
(c) Legal Compliance. The Representative shall perform The Services in accordance with applicable laws, rules, or regulations.
(d) Company’s Obligations. The Company shall make timely payments of amounts earned by the Representative under this Agreement in the time proscribed by The Services Summary.
2. TERM AND TERMINATION.
(a) Term. This Terms & Conditions will become effective on the Effective Date set forth in The Services Summary and as further described in Section 23. Unless earlier terminated in accordance with subsection 2(b), this Agreement shall continue until terminated (the “Term”).
(b) Termination. This Agreement may be terminated:
(i) by either party with thirty (30) days’ written notice;
(ii) by the Company for “Cause”;
(iii) by either party for a material breach of any provision of this Agreement by the other party, if the other party’s material breach is not cured within ten (10) business days of receipt of written notice of the breach; or
(iv) on the death, disability or serious illness of the Representative, if the Company decides, in its sole and exclusive discretion, that Representative, as a result of such death, disability or illness, is unable to perform its obligations under this Agreement.
(c) Cause shall be defined as the:
(i) Representative’s failure, in the sole and exclusive but reasonable judgment of the Company, to perform The Services (other than a failure resulting from the Representative’s Death or Disability), after written notice thereof from the Company to the Representative detailing such failure to perform, and the Representative having had the opportunity to cure such failure to perform within thirty (30) days of receiving written notice;
(ii) Representative knowingly and intentionally engaging in illegal conduct, slander, or other malfeasance that was or is materially injurious to the Company or its affiliates;
(iii) Representative’s knowing violation of a federal or state law or regulation directly or indirectly applicable to the business of the Company or its affiliates, which violation was or is reasonably likely to be injurious to the Company or its affiliates;
(iv) Representative’s material breach of the terms of any confidentiality agreement or invention assignment agreement between the Representative and the Company (or any affiliate of the Company); or
(v) Representative being convicted of, or entering a plea of nolo contendere to, a felony or committing any act of moral turpitude, dishonesty or fraud against, or the misappropriation of material property belonging to, the Company or its affiliates.
(d) Effect of Termination. After the termination of this Agreement for any reason, the Company shall pay the Representative in accordance with and in the time proscribed by The Services Summary for The Services rendered by Representative prior to the effective date of the termination.
3. COMPENSATION.
(a) Conditions. The Company shall pay the Representative in accordance with The Services Summary, provided:
(i) the Merchant remains continuously under contract with the Company during the time period set forth for payment for The Services; and
(ii) the Company has received payment from the Merchant. Commissions shall be calculated only on actual cash collections received for the period, regardless of fees owed or due from Merchant. This does not affect Bounty payments.
(b) No Payments in Certain Circumstances. No payment will be payable to the Representative under any of the following circumstances:
(i) if prohibited under applicable government law, regulation, or policy;
(ii) if the Representative did not directly perform or complete The Services to the reasonable satisfaction of the Company;
(iii) in the case of a Bounty payment, if a Merchant averages less than 5,000 unique monthly site visitors, as measured using SimilarWeb.com or other reputable website traffic monitoring providers; or
(iv) if terminated for Cause, Representative will not be eligible for ongoing commission payments.
(c) Special Definitions and Provisions.
(i) Net Revenue. Defined as the cash received by the Company from such Merchants during the previous month from one or more of the following revenue sources: affiliate commissions on referred sales, SaaS license fees, and promotions fees, less any refunds, chargebacks, taxes, and third-party fees to support referred sales.
(ii) Merchant. Defined as an entity that uses Shopify’s eCommerce platform, or other eCommerce platforms, to present and sell their products to the public via their eCommerce website.
(iii) Payment of Commissions.
1. Company reserves the right to adjust commission payments in case of refunds, cancellations, or chargebacks received after the commission payment is made.
2. Cumulative commissions will be paid once they equal at least $50 net of any Bounty.
3. Company reserves the right to modify commission attribution by Representative due to unforeseen actions, such as Merchant merger & acquisition activity or channel conflicts.
(d) No Other Compensation. The compensation set forth above and in The Services Summary will be the Representative’s sole compensation under this Agreement.
(e) Expenses. Any expenses incurred by the Representative or its staff in the performance of this Agreement will be the Representative’s sole responsibility, unless otherwise agreed to in writing in The Services Summary.
(f) Taxes. The Representative is solely responsible for the payment of all income, social security, payroll, employment-related, or other taxes incurred by Representative or otherwise as a result of the performance of The Services by the Representative under this Agreement, and for all obligations, reports, and timely notifications relating to those taxes and other listed obligations. The Company has no obligation to pay or withhold any sums for those taxes.
(g) Wages; Other Benefits. Representative acknowledges that it may not hire any individual or entity to perform The Services on its behalf and that Representative is solely responsible for the payment of all wages, salaries and benefits to Representative or its employees, agents, or subcontractors if Representative employs or contracts same. Representative acknowledges that it and its employees, agents and representatives have no claim against the Company under this Agreement or otherwise for vacation pay, sick leave, retirement benefits, social security, worker’s compensation, health or disability benefits, unemployment insurance benefits, or employee benefits of any kind and that Representative is solely responsible for same.
4. INDEPENDENT CONTRACTOR STATUS.
(a) Relationship. The relationship of the parties under this Agreement is one of independent contractors, and no joint venture, partnership, agency, employer-employee, or similar relationship is created in or by this Agreement. Except for the duties and obligations set forth by this Agreement, neither party may assume or create obligations on the other party’s behalf and neither party may take any action that creates the appearance of such authority.
(b) Means, Manner, & Method. The Representative has the sole right to control and direct the means, details, manner, and method by which The Services will be performed, and the right to perform The Services at any time, place, or location. The Representative shall solely perform The Services, and the Company is not required to hire, supervise, or pay any assistants to help the Representative perform The Services. In no event shall Company be considered a joint employer of Representative’s employees, agents, or contractors.
5. USE OF TRADEMARKS; INVENTIONS.
(a) Company Trademarks. The Representative may use, reproduce, and distribute the Company’s service marks, trademarks, and trade names (if any) (collectively, the “Company Marks”) in connection with the performance of The Services. Any goodwill received from this use will accrue to the Company, which will remain the sole owner of the Company Marks. The Representative may not engage in activities or commit acts, directly or indirectly, that may contest, dispute, or otherwise impair the Company’s interest in the Company Marks. The Representative may not cause diminishment of value of the Company Marks through any act or representation. The Representative may not apply for, acquire, or claim any interest in any Company Marks, or others that may be confusingly similar to any of them, through advertising or otherwise. At the expiration or earlier termination of this Agreement, the Representative will have no further right to use the Company Marks, unless the Company provides written approval for each such use.
(b) Company Inventions. The Representative has no right or interest in any work or product resulting from The Services the Representative performs for the Company, or any of the documents, photographs, reports, or other materials the Representative creates in connection with The Services (collectively, the “Company Inventions”), and has no right to or interest in any copyright to the Company Inventions. The Company Inventions have been specially commissioned or ordered by the Company as “works made-for-hire,” as that term is defined in the United States Copyright Act, and the Company is therefore the author and owner of all copyrights in the Company Inventions.
6. CONFIDENTIAL INFORMATION; NON-DISPARAGEMENT; BREACH OF AGREEMENT.
(a) Confidentiality. During the Term, Representative may have access to or receive certain information of or about the Company that the Company designates as confidential or that, under the circumstances surrounding disclosure, must be treated as confidential by the Representative (“Confidential Information”). Confidential Information includes information relating to the Company or its current or proposed business, financial statements, supplier pricing, budgets and projections, customer identifying information, past, potential and intended customers, partners, partner business relationship details, employers, products, computer programs, specifications, manuals, software, analyses, strategies, marketing plans, business plans, and other confidential information, provided orally, in writing, by drawings, or by any other media. The Representative will treat the Confidential Information as confidential and will not disclose it to any third party or use it for any purpose but to fulfill its obligations in this Agreement. In addition, the Representative shall use due care and diligence to prevent the unauthorized use or disclosure of such information.
(b) Exceptions. “Confidential Information” will not include information that: (a) is in or enters the public domain without breach of this Agreement; (b) is lawfully received by Recipient from a third party without restriction on disclosure and without breach of a nondisclosure obligation; or (c) is already known to the Recipient at the time of disclosure and the Recipient can substantiate such prior knowledge with written documentation.
(c) Non-disparagement. Representative agrees that neither it nor any of its officers, directors, agents, employees and representatives, will, and it will cause each of its officers, directors, agents, employees and representatives, not to, directly or indirectly, in any capacity or manner, make, express, transmit, speak, write, verbalize or otherwise communicate in any way (or cause, further, assist, solicit, encourage, support or participate in any of the foregoing), any remark, comment, message, information, declaration, communication or other statement of any kind, whether verbal, in writing, electronically transferred or otherwise, that might reasonably be construed to be derogatory or critical of, or negative toward, the Company, its products and services, or any of its directors, officers, affiliates, affiliate partners, subsidiaries, employees, agents or representatives (collectively, the “Company Representatives“), or that reveals, discloses, incorporates, is based upon, discusses, includes or otherwise involves any confidential or proprietary information of the Company or its subsidiaries or affiliates, or to malign, harm, disparage, defame or damage the reputation or good name of the Company, its business or any of the Company representatives. Representative shall not in any way, directly or indirectly, at any time during Term of this Agreement, endorse any competitive business or competing service or product, promote or speak on behalf of any competitive business or competing service or product.
(d) Remedy. Money damages may not be a sufficient remedy for any breach of the Agreement by the Representative and/or its officers, directors, agents, employees and representatives. In addition to all other remedies, the Company may seek (and may be entitled to) as a result of such breach, specific performance and injunctive or other equitable relief as a remedy. Waiver of any breach shall not constitute waiver of any other breach of the same or other provision. Each party’s remedies shall be cumulative and remedies specified herein do not exclude any remedies allowed by law other than IN NO EVENT WILL EITHER PARTY BE LIABLE FOR, NOR WILL THE MEASURE OF DAMAGES INCLUDE, AN INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR AMOUNTS FOR LOSS OF INCOME, PROFITS OR SAVINGS ARISING OUT OF OR RELATING TO ITS PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY FOR ANY AND ALL CLAIMS UNDER THIS AGREEMENT EXCEED THE FEES PAYABLE UNDER THIS AGREEMENT, WITH THE EXCEPTION OF THE INDEMNIFICATION, NON-DISPARAGEMENT, AND CONFIDENTIALITY PROVISIONS HEREUNDER, ANY VIOLATION OF LAW OR REGULATION, GROSS NEGLIGENCE AND WILLFUL MISCONDUCT.
7.REPORTING. The Representative shall report to the Chief Customer Officer or such other officer or employee as may be designated by the Company at least once monthly if not otherwise specified in The Services Summary. The Representative shall provide documentation of its efforts in performing The Services at intervals in a manner satisfactory to the Company.
8. OTHER ACTIVITIES; NON-COMPETE. During the Term, the Representative is free to engage in other independent contracting activities, except that the Representative may neither accept work, enter into contracts, or accept obligations inconsistent or incompatible with the Representative’s obligations or the scope of The Services to be rendered for the Company under this Agreement nor accept work, enter into contracts, or accept obligations from past or current Merchant clients of Company without the express written consent of Company. Representative shall not directly or indirectly, for the duration of this Agreement and for eighteen (18) months from the date of its termination, perform, assist in or facilitate sales activities for any direct competitor of Company which includes but is not limited to entities providing Wishlist Applications (either directly or available through eCommerce platform providers’ App Stores) to Merchants.
9. RETURN OF PROPERTY. Within five (5) business days of the expiration or earlier termination of this Agreement, the Representative shall return to the Company or destroy, retaining no copies or notes, all Company products, samples, models, property, and documents relating to the Company’s business including reports, abstracts, lists, correspondence, information, computer files, computer disks, and other materials and copies of those materials obtained by the Representative during and in connection with its work with the Company. All files, records, documents, blueprints, specifications, information, letters, notes, media lists, original artwork or creative work, notebooks, and similar items relating to the Company’s business, whether prepared by the Representative or by others, remain the Company’s exclusive property and title to the same shall remain with Company.
10. INDEMNIFICATION.
(a) Of Company by Representative. To the fullest extent permitted by law, Representative will indemnify and hold harmless Company, its officers, directors, partners, representatives, agents, affiliates, members and employees and shareholders from and against any and all claims, suits, liens, judgments, damages, losses and expenses, including cost of claims if denied by Representative’s insurance carrier for coverage, legal fees and all court costs and liability (including statutory liability) arising in whole or in part and in any manner from injury and/or death of person or damage to or loss of any property resulting from negligence, willful misconduct, acts, omissions, breach or default of Representative, its officers, directors, agents, employees and representatives, in connection with the performance of any work by or for Representative pursuant to any contract or purchase order, except those claims, suits, liens, judgments, damages, losses and expenses caused by the gross negligence of Company. Representative will defend and bear all costs of defending any actions or proceedings brought against Company, its officers, directors, agents, affiliates, members and employees and shareholders, arising in whole or in part out of any such acts, omission, breach or default by Representative.
Further, the Representative’s breach of its express representation that it is an independent contractor and in compliance with all applicable laws related to work as an independent contractor shall not relieve it of any such indemnification. If a regulatory body or court of competent jurisdiction finds that the Representative is not an independent contractor or is not in compliance with applicable laws related to work as an independent contractor, based on the Representative’s own actions, the Representative will assume full responsibility and liability for all taxes, assessments, and penalties imposed against the Representative or the Company resulting from that contrary interpretation, including taxes, assessments, and penalties that would have been deducted from the Representative’s earnings if the Representative had been on the Company’s payroll and employed as a Company employee.
(b) Of Representative by Company. At all times after the Effective Date of this Agreement, the Company shall indemnify the Representative and its officers, members, managers, employees, agents, Representatives, sublicensees, affiliates, subsidiaries, successors, and assigns (collectively, the “Representative Indemnitees”) from all Claims that the Representative Indemnitees may incur arising from: the Company’s breach or alleged breach of, or its failure or alleged failure to perform under, any agreement to which it is a party; or the Company’s breach of any of its obligations or representations under this Agreement. However, the Company is not obligated to indemnify the Representative if any of these Claims result from the Representative’s own actions or inactions.
11. FORCE MAJEURE. A party will be not be considered in breach of or in default because of, and will not be liable to the other party for, any delay or failure to perform its obligations under this Agreement by reason of fire, earthquake, flood, explosion, strike, riot, war, terrorism, or similar event beyond that party’s reasonable control (each a “Force Majeure Event”). However, if a Force Majeure Event occurs, the affected party shall, as soon as practicable: notify the other party of the Force Majeure Event and its impact on performance under this Agreement; and use reasonable efforts to resolve any issues resulting from the Force Majeure Event and perform its obligations under this Agreement.
12. GOVERNING LAW.
(a) Choice of Law. The laws of the state of Florida govern this Agreement (without giving effect to its conflicts of law principles). REPRESENTATIVE AND COMPANY HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER IN CONTRACT, STATUTE, TORT (SUCH AS NEGLIGENCE), OR OTHERWISE) RELATING TO THIS AGREEMENT AND THE SERVICES PROVIDED HEREUNDER.
(b) Choice of Forum. Both parties consent to the personal jurisdiction of the state and Federal courts in Collier County, Florida, USA.
(c) Attorneys’ Fees. If either party employs attorneys to enforce any rights arising out of or relating to this Agreement, the losing party shall reimburse the prevailing party for its reasonable attorneys’ fees.
13. AMENDMENTS. No amendment to Agreement will be effective unless it is in writing and signed by the parties or their authorized representative(s); provided, however, this Terms & Conditions may be amended by Company at any time without notice and will indicate the date of the most recent update on its website.
14. ASSIGNMENT AND DELEGATION.
(a) No Assignment. Neither party may assign any of its rights under this Agreement, except with the prior written consent of the other party, which consent shall not be unreasonably withheld. All voluntary assignments of rights are limited by this subsection. Such consent will not be necessary in the event of a change of control by merger, reorganization, asset sale, similar transaction of the Company or operation of law.
(b) No Delegation. Neither party may delegate any performance under this Agreement, except with the prior written consent of the other party, which consent shall not be unreasonably withheld.
(c) Enforceability of an Assignment or Delegation. If a purported assignment or purported delegation is made in violation of this Section 14, it is void.
15. COUNTERPARTS; ELECTRONIC SIGNATURES. The parties may execute The Services Summary and this Terms & Conditions in any number of counterparts, each of which is an original but all of which constitute one and the same instrument. This Terms & Conditions, The Services Summary, agreements ancillary to this Terms & Conditions, and related documents entered into in connection with this Terms & Conditions are signed when a party’s signature, wet or electronic, on The Services Summary is delivered by facsimile, email, or other electronic medium. These signatures must be treated in all respects as having the same force and effect as original signatures.
16. SEVERABILITY. In the event that one or more of the provisions of this Agreement are found to be unenforceable, illegal, or contrary to public policy by any court of competent jurisdiction, the remainder of this Agreement shall remain in full force and effect except for the unenforceable, illegal, or contrary to public policy provision or provisions.
17. NOTICES. Any instrument, payment, or notice required or permitted to be delivered hereunder shall be deemed to be delivered, whether or not actually received, upon actual delivery or when sent via electronic mail or deposited in an official depository of the United States Mail and sent postage prepaid, certified or registered mail, return receipt requested, addressed to the parties, as the case may be at the addresses set forth in The Services Summary or at such other address as the parties may notify each other in accordance with the terms hereof.
18. WAIVER. No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this Agreement will be effective unless it is in writing and signed by the party waiving the breach, failure, right, or remedy. No waiver of any breach, failure, right, or remedy will be deemed a waiver of any other breach, failure, right, or remedy, whether or not similar, and no waiver will constitute a continuing waiver, unless the writing so specifies.
19. SURVIVAL. The terms of this Agreement that by their nature are reasonably intended by the parties to survive termination, including, without limitation, the terms of Sections 2, 3, 4, 5, 6, 8, 10, 12 through 23, shall survive the expiration or termination of this Agreement.
20. ENTIRE AGREEMENT. The Services Summary and this Terms & Conditions constitute the complete and exclusive expression of the parties’ agreement about the subject matter of this Agreement. All prior and contemporaneous communications, negotiations, and agreements between the parties relating to the subject matter of this Agreement are expressly merged into and superseded by this Agreement. The provisions of this Agreement may not be explained, supplemented, or qualified by evidence of trade usage or a prior course of dealings. Neither party was induced to enter this Agreement by, and neither party is relying on, any statement, representation, warranty, or agreement of the other party except those set forth expressly in this Agreement.
21. HEADINGS. The descriptive headings of the sections and subsections of this Terms & Conditions are for convenience only, and do not affect this Terms & Conditions’ construction or interpretation.
22. EFFECTIVENESS. This Agreement will become effective on the Effective Date set forth in The Services Summary when all parties have signed The Services Summary. The signatories to The Services Summary verify that they have read both The Services Summary and this complete Terms & Conditions, understand its contents, and have full authority to bind their respective parties.
23. NECESSARY ACTS; FURTHER ASSURANCES. Each party and its officers and directors shall use all reasonable efforts to take, or cause to be taken, all actions necessary or desirable to consummate and make effective the transactions this Agreement contemplates or to evidence or carry out the intent and purposes of this Agreement.
BY EXECUTING THE SERVICES SUMMARY, INCORPORATED BY REFERENCE HERETO, THE REPRESENTATIVE AGREES TO THE TERMS OF THESE MASTER TERMS & CONDITIONS, COLLECTIVELY, THE AGREEMENT BETWEEN THE PARTIES GOVERNING THE RELATIONSHIP BETWEEN GYFTHINT, INC. AND THE REPRESENTATIVE.