What is GiftKash?
GiftKash is a promotional marketing service that enables our customers to send digital gift cards. When you send GiftKash, the recipients receive a personalized digital gift card with reminders to keep you informed when GiftKash is used or about to expire. Merchants make “same as cash” offers (“GiftKash”) available to us, sometimes at a discount. For participating merchants, we make the GiftKash available on a delayed payment basis, with valid credit card or bank account information, and collect payment if/when the GiftKash is redeemed. For those merchants, when GiftKash is redeemed, we immediately bill the credit card or bank account on file and make an electronic payment to the merchant. For traditional gift cards, the customer's credit card or bank account is billed at the point of purchase.
Eligibility and Account Registration
You hereby authorize Company, directly or through third parties, to make any inquiries we consider necessary to validate your identity and/or authenticate your identity and account information and, for business accounts, your company or employer. This may include asking you for further information and/or documentation about your account usage or identity, or requiring you to take steps to confirm ownership of your email address, telephone number or financial instruments, and verifying your information against third party databases or through other sources. This process would be for internal purposes.
In order to manage risk, Company may limit the funding sources available for your use to fund any particular transaction. For example, we may limit your funding sources for a particular transaction to a preauthorized credit card limit or to debit cards on your checking account.
When you place an order and send GiftKash, we use your credit card and/or bank account as your funding source. When you do so, you are authorizing us, on your behalf, to make an electronic transfer from your credit card and/or bank account. For these transactions, Company will make electronic transfers via Converge in the amount you specify. The payment will show on your statement as GIFTKASH LLC. You agree that redemption of the gift card you ordered and sent constitutes your authorization to Company to make the transfer, and with that authorization, you will not be able to cancel the electronic transfer. Company may resubmit any debit you authorized that is returned for insufficient or uncollected funds, except as otherwise provided by applicable law.
When you place an order and send GiftKash, you are liable to Company for the full amount of the payment, plus any fees if the payment is later invalidated for any reason. This means that, in addition to any other liability, you will be responsible for the amount of the payment, plus applicable fees if the account associated with your GiftKash Account does not have adequate funds to cover the amount of the payment. If Company is unable to recover the funds from your primary funding source, Company may attempt to contact you, Company may recover the funds from your alternate funding sources, or may take other legal actions to collect the amount due, to the extent allowed by applicable law.
To secure your performance of this Agreement, you hereby authorize Company to bill your credit and/or bank account for any payments due immediately and agree to make valid primary and secondary funding sources available as necessary to keep your account balance paid. In the event we determine that you don’t have adequate funds available to pay for GiftKash you’ve sent, we reserve the right to notify any gift recipients who have not redeemed the giftkash you’ve sent, that the giftkash value is suspended and it’s unusable until the buyer provides an adequate funding source. We will normally provide 24 hours to provide an adequate funding source, determined at Company’s sole discretion, however we reserve the right to make these notifications at anytime your funding source is deemed insufficient.
Upon termination of this Agreement for any reason, we have the right to prohibit your access to the GiftKash, including without limitation by deactivating your account, and to refuse future access to the GiftKash by you or your affiliates.
Rules and Restrictions for Personal Accounts
The following Rules and Restrictions for Personal Accounts apply to your use of a Personal Account under this Agreement.
There are limits on how much money you may spend using GiftKash. These limits may change from time to time in the Company's sole discretion.
Loss or Theft of Account Information
If you believe that any of your GiftKash account registration information or other access information has been lost or stolen, or if you suspect orders that you did not make, or fraud of any kind, you must immediately contact Company via any and all means available, including calling us at 402-819-7913 or emailing email@example.com. It is your responsibility to protect your account information. You agree to pay for any GiftKash redeemed from orders placed with your account.
GiftKash is not a Financial Institution or Bank
The Company does not in any way act as or provide the services of a bank or other financial institution; does not move or transmit funds or payment instructions; does not control or have any liability for payments, returns, refunds, chargebacks, declined transactions, or any responsibility with respect to questions or disputes you may have with any GiftKash Merchant.
Third Party Agreements
You acknowledge and agree that this Agreement is between you and Company, not with any third party (including, but not limited to, any device manufacturer, any mobile carrier, or any Participating Merchant), and that Company is solely responsible for the Services. Your use of the Services may be subject to separate agreements you may enter into with your mobile device operating system provider, your mobile device manufacturer, your mobile service carrier, and other parties involved in providing your mobile device service. Participating Merchants as defined below, third party operating system providers, your phone or other mobile device manufacturer, your wireless carrier or other network provider, any other product or service provider related to your mobile device service are collectively referred to as "Third Parties." You agree to comply with all applicable third party terms of agreement when using the Services. Company is not a party to those agreements and has no responsibility for the products and services provided by third parties. Without limiting the rest of this paragraph, you also agree to comply with all agreements between you and your financial institutions, including various terms of service agreements for use of your financial institution's mobile and other products. You recognize that GiftKash is a not a party to your agreement(s) with your financial institution(s).
GENERAL TERMS AND CONDITIONS
Notices to You
You agree that Company may provide notice to you by posting it on our website, or if we have your email address or street address, by emailing it to the email address listed in your account or mailing it to the street address listed in your account. Such notice shall be considered to be received by you within 24 hours of the time it is posted to our website or emailed to you unless we receive notice that the email was not delivered. If the notice is sent by mail, we will consider it to have been received by you three Business Days after it is sent. Company's Business Days include all days on which the New York Federal Reserve Bank is open for business. If we make material changes to our Agreements with you, we will provide 7 days notice to you before the changes become effective.
You acknowledge and agree that we will provide adequate and timely notice to you in accordance via any means you make available to us. If you do not consent or at any time withdraw your consent to receive electronic notices from us, we reserve the right to close your accounts.
Notices to Company
Notice to Company must be sent to firstname.lastname@example.org.
Merchant Cancellation & Refund Policy
Merchant may cancel a subscription at any time. Company will consider refunds, as requested in writing, for any fees that may have been collected for service periods beyond the current service period. Refunds for the current service period will not be considered or issued. There are no fees or penalties associated with a refund or a cancellation.
Calls to You
By Providing Company a telephone number, you consent to receiving messages and calls from Company at that number should the need arise.
The Company websites may feature third party offers and enable product searches. This information is provided for informational and transactional purposes and does not constitute an endorsement by Company of any product, service or vendor.
We do not solicit personal information from anyone under the age of 13. If you are under 13, please do not send any information about yourself to us, including your name, address, telephone number, or email address without parental consent. No one under age 13 is allowed to provide any personal or payment information to us through the Services. If we learn that we have collected personal information from a child under age 13 without verification of parental consent, we will delete that information as quickly as possible. If you believe that we might have any information from or about a child under 13, please contact us at 402-819-7913 or email email@example.com.
You agree you will not use the Services to violate any law, statute, ordinance or regulation.
You are solely responsible for ensuring that your use of the Services is in conformance with applicable federal, state and local laws and regulations. By using the Services, you warrant and represent that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
Your Liability - Actions We May Take
If we have reason to believe that you have engaged in any restricted activities, made excessive or unexplainable transactions, violated any parts of this Agreement or provided any incorrect information, we may take various actions to protect Company, another Services user, a third party, or you from reversals, chargebacks, claims, fees, fines, penalties and any other liability. The actions we may take include but are not limited to the following:
We may close, suspend, or limit your access to your account or the Services (such as limiting access to any credit balance you have with us, and your ability to send giftkash, make withdrawals, or remove financial information); we may contact all recipients to whom you have sent giftkash, contact your bank or credit card issuer, and warn other users, law enforcement, or impacted third parties of your actions; may update inaccurate information you provided us; we may refuse to provide our Services to you in the future; we may hold your funds for up to 180 days if reasonably needed to protect against the risk of liability; and we may take legal action against you.
Company, in its sole discretion, reserves the right to terminate this Agreement, access to its website, or access to the Service for any reason and at any time upon notice to you and payment to you of any unrestricted funds held in custody for you.
Disputes with Company
If a dispute arises between you and Company, our goal is to learn about and address your concerns immediately. If we are unable to do so to your satisfaction, then to provide you with a neutral and cost effective means of resolving the dispute quickly. Disputes between you and Company regarding our services may be reported by emailing or calling us.
Law and Forum for Disputes; Arbitration
This User Agreement shall be governed in all respects by the laws of the State of Nebraska, without regard to conflict of law provisions, except to the extent that federal law applies.
Disclaimers of Warranty; Damages Exclusions
Unless otherwise prohibited by law, you assume all responsibility for your use of any service provided under this agreement and use it at your own risk. To the fullest extent permissible under applicable law, all such representations, warranties, guarantees and conditions are disclaimed, including, but not limited to, any implied warranties of merchantability, fitness for a particular purpose, title, Noninfringement of intellectual property rights, or other terms which might otherwise be implied by statute, common law or in equity. Company does not warrant that the services will be uninterrupted or error-free, that defects will be corrected, or that the services, or the servers that process information for the services, are free of viruses, bugs or other harmful components. On behalf of company, covered third parties, and each of our respective affiliates, vendors, agents and suppliers, company makes the following disclaimers set forth in this section: the services are provided on an "as is", "as available" and "with all faults" basis, without any representations, warranties, guarantees, or conditions of any kind, express, implied or statutory, including, but not limited to, any warranty as to the use or operation of the services, or the information, content or other materials related to the services, whether provided by company or any of the covered third parties. Neither company nor any of the covered third parties warrant nor make any representations regarding the use or the results of neither company, the covered third parties nor any of their respective affiliates, vendors, agents or suppliers will be liable for, and you agree not to seek against any of the foregoing, any damages of any kind arising from the use of the services, including, but not limited to, indirect, special, incidental, punitive, exemplary, consequential damages or damages resulting from the use of service, loss of use of the service, lost data, lost profits, or business interruption arising out of or in any way connected with the use of the services, any delays in the services, or the inability to use the services, or any portion thereof, whether based on contract, tort, negligence, strict liability or otherwise, even if all or any of us have been advised of the possibility of such damages and even if any remedy fails of its essential purpose. Company does not have any control over any products or services that are paid for with our services and company cannot ensure that any party you are dealing with will actually complete the transaction or is authorized to do so. Some states or other jurisdictions do not allow the disclaimer of implied warranties or the exclusion of certain damages, so the above disclaimers and exclusions may not apply to you. You may also have other rights that vary from state to state and jurisdiction to jurisdiction.
Limitations on Liability
Except as otherwise expressly provided in this agreement, and to the extent permissible under applicable law, company's cumulative liability to you for any claims or damages arising out of or related to your use of any of the company's products or service shall not exceed the greater of the fee you paid to company for the use of the service or $1.00 USD. These limitations on liability apply to: anything related to a service or any application or content made available through any such service; and claims for breach of contract, breach of warranty, guarantee or condition, strict liability, negligence, or other tort to the extent permitted by applicable law. These limitations on liability also apply even if: repair, replacement or a refund for the service does not fully compensate you for any losses; or company or a covered third party knew or should have known about the possibility of the damages. These limitations on liability will apply to the maximum extent permitted by applicable law, even if any remedy fails of its essential purpose.
Certain of the Services require the use of software and web applications provided to you by Company (collectively "Software"). Company and its licensors grant you a limited, nonexclusive license to use Company's Software in the United States that we provide to you solely in accordance with this Agreement and any user documentation we may provide, including all updates, upgrades, new versions and replacements of the Software (all of which become part of the "Software") for your personal use only in accordance with this Agreement. You may not rent, lease or otherwise transfer your rights in the Software to a third party. You agree not to alter, reproduce, adapt, distribute, display, publish, reverse engineer, translate, disassemble, decompile or otherwise attempt to create any source code which is derived from the software. You acknowledge that all rights, title and interest to Company's software are owned by Company. Your rights to use the Software cease immediately upon termination of this Agreement and you must delete all of your copies of the Software.
You agree to defend, indemnify and hold harmless Company and its parent, affiliates, officers, directors and employees from any claim or demand (including any damages, losses, expenses and attorneys fees resulting therefrom) made or incurred by any third party due to or arising out of your breach of this Agreement and/or your use of the Services.
Modification of Terms
We may amend this Agreement at any time by posting a revised version on our website. The revised version will be effective at the time we post it unless it contains material changes. If we make material changes to our Agreements with you, we will provide 10 days notice to you before the changes become effective. By using the Services after a new Agreement has been posted, you agree to the revised Agreement.
In the event of termination of this Agreement or the Services, the terms in this Agreement that by their nature are continuing shall survive such termination, including but not limited to the disclaimers and limitations of liabilities.
We shall not be liable for any delay or failure in the performance or in delivery or shipment of materials, or for any damages suffered by you by reason of such delay or failures, directly or indirectly caused by or in any manner arising from or connected with acts of God, acts of public enemies, riots, strikes, acts of governmental agencies, labor difficulties, failure of our power, telecommunications or other suppliers, delays in securing or shortages of raw materials, breakdown or destruction of any system or equipment, or any other cause or causes beyond our control, whether or not similar to those enumerated herein.
All parties agree they are independent contractors to each other in performing their respective obligations hereunder. Nothing in this Agreement or in the working relationship being established and developed hereunder shall be deemed or is intended to be deemed, nor shall it cause, the parties to be treated as partners, joint venturers, or otherwise as joint associates for profit.