Gift Cards Agreement
20050308USCA
IMPORTANT — PLEASE READ: This Gift Cardholder Agreement
(“Agreement”) describes the terms and conditions that
govern the use of your pre-paid Store Financial Shopping Center
Gift Card (the “Gift Card”). This Agreement is made
between Store Financial Services, LLC (“SFS”) and
you, the “Cardholder.” BY PURCHASING OR USING THE
GIFT CARD, EACH CARDHOLDER AGREES TO BE BOUND BY THE TERMS AND
CONDITIONS STATED IN THIS AGREEMENT. THIS AGREEMENT CONTAINS
A MUTUAL AGREEMENT TO EXCLUSIVELY ARBITRATE DISPUTES IN SECTION
17 BELOW. PLEASE KEEP A COPY OF THIS AGREEMENT FOR YOUR RECORDS.
1. Definitions. As used herein, “Cardholder” refers
to the purchaser of the Gift Card and all subsequent holders
who have received the Gift Card by gift or otherwise. “Bank”
means SFS’s sponsoring financial institution that holds
the associated prepaid funds for the Gift Card. “Mall”
means the shopping center or mall named on the Gift Card that
distributes and markets the Gift Cards. “Merchant”
means a retail outlet located within or associated with the
Mall that has agreed to accept the Gift Card for purchases of
the Merchant’s goods and/or services. “You” means
the Cardholder.
2. Administration. SFS administers the Gift Card program in
cooperation with the Bank and Mall. The prepaid funds for the
Gift Card are collected by the Mall and are deposited with and
held by the Bank. Gift Card transactions are settled by and
through the Bank with the participating Merchant.
3. Use of the Gift Card. You may load a dollar value onto your
Gift Card to be used only for future purchases of goods or services
at participating Merchants in the Mall. The Gift Card is not
reloadable. The Gift Card may be used up to, but not above,
the available balance of the Gift Card. When the Gift Card is
purchased, the available balance of the Gift Card will be the
activated value of the Gift Card. This available balance will
be reduced by each purchase, assessment of any applicable fees
(as further described below in this Agreement), and other deductions
(if any) required by law until the Gift Card balance reaches
zero. The Gift Card will automatically terminate when it has
a zero balance. After the Gift Card is terminated, transactions
on the Gift Card will be declined. If the purchase amount exceeds
the available balance of the Gift Card, you must combine the
use of the Gift Card with another acceptable form of payment.
Some merchants may refuse to facilitate such split transactions.
SFS is not responsible for any refusal of a Merchant to accept
the Gift Card, whether partially or in full.
4. Use Limitations. To the extent permitted by and except where
prohibited by applicable law, your Gift Card is non-refundable
and may not be redeemed for cash unless otherwise provided in
this Agreement. The Gift Card may not be used to pay for tips
or other gratuities. Your Gift Card is not a credit card, credit
line, overdraft protection, generally accepted debit card or
deposit account, so you will not be permitted to make purchases
that exceed your card balance. Your Gift Card cannot be used
or applied as payment to any account or loan. You may not use
the Gift Card at any non-participating retail location or to
make preauthorized or recurring payments. No interest, dividends,
or any other earnings on funds associated with your Gift Card
will accrue or be paid or credited to you by SFS or the Bank.
The funds associated with the Gift Card are maintained in a
pooled account by the Bank and the value associated with the
Gift Card may not be insured by the Federal Deposit Insurance
Corporation (FDIC).
5. Fees and Charges. The following fees apply to the Gift Cards:
a. Purchase Fee. A fee may be charged to the purchaser of the
Gift Card for the purchase and activation of the Gift Card.
If applicable, this fee will be in an amount disclosed to the
purchaser at the time of the purchase.
b. Card Replacement Fee. If a replacement card is issued as
a result of a lost, stolen or damaged card under this Agreement,
the Card Replacement Fee (if any) stated on the back of the
Gift Card will be assessed.
c. Maintenance Fees. To the extent permitted by and except where
prohibited by applicable law, a nonrefundable monthly maintenance
fee will be assessed in the amount stated on the back of the
Gift Card. This monthly fee will be automatically deducted each
month from the Gift Card balance. This monthly fee will be waived
and not charged for the period of time stated on the back of
the Gift Card. Except for New York, such period of time shall
commence and run from the initial activation date of the Gift
Card. For New York, the monthly fee will commence on the thirteenth
month of dormancy. Dormancy shall mean non-use of the Gift Card.
6. Receipts, Statements and Balance Inquires. When you use the
Gift Card, the Merchant should provide you with a receipt similar
to that used with a credit or debit card. Please check your
receipt to verify the transaction amount. If the amount is incorrect,
you should notify the Merchant to correct the error. You may
inquire about the amount of the available balance and transactions
history of the Gift Card by telephone at 800-755-0085 or online
at www.getmybalance.com. You will not be sent periodic statements
associated with the use of the Gift Card.
7. Merchant Disputes, Returned or Exchanged Merchandise. If
you have a problem with a purchase or a dispute with a Merchant,
you should deal directly with the Merchant. SFS is not responsible
for the quality, return or exchange of merchandise or service
purchased in whole or in part with the Gift Card. Any returns
or exchanges will be governed by the policies and procedures
of the participating Merchants and applicable law. You may be
required by a Merchant to present the merchant receipt and the
Gift Card when returning merchandise. Any credit issued by the
Merchant as a result of a return or exchange will not be available
for use by you for ten (10) business days. A credit to a zero
balance Gift Card will reinstate such card. The reinstated Gift
Card will be subject to the terms and conditions of this Agreement.
8. No Card Expiration. Funds associated with the Gift Card do
not expire and will be available until the card reaches a zero
balance. For fraud management purposes, the physical Gift Card
may be rendered unusable after 18 months. If the Gift Card becomes
unusable with an available balance, you may present and exchange
the unusable card at no charge for a new Gift Card which will
be activated in the amount of the available balance at the time
of the exchange. To exchange your card, please contact the Mall
or our customer service department at 800-755-8713.
9. Billing Errors, Corrections. SFS reserves the right to correct
the balance of your Gift Card if we believe that a clerical,
billing or accounting error occurred. If you have questions
regarding your transaction history or any correction, please
call our customer service department at 800-755-8713.
10. Lost or Stolen Cards; Liability for Unauthorized Transactions.
You are responsible for all transactions associated with the
Gift Card, including potentially any unauthorized transactions
that may result if your card is lost or stolen or if you authorize
another person to use the Gift Card. Lost, stolen or damaged
Gift Cards will not be canceled or replaced without adequate
proof of purchase and the corresponding Gift Card number. For
fraud management purposes, the entire Gift Card number is not
printed on receipts. If your Gift Card becomes lost, stolen
or damaged, you should contact SFS immediately at 800-755-8713.
Your Gift Card balance is only protected from the point in time
you notify SFS that your Gift Card is missing. SFS will freeze
the remaining balance on your Gift Card at the time you notify
SFS. The request for a replacement Gift Card may be denied at
the sole discretion of the Mall or SFS without adequate proof
of purchase or in the event of suspicious or fraudulent activity.
If approved, the Mall personnel will load any remaining balance
on a replacement Gift Card which may be subject to a Card Replacement
Fee.
11. Retention of Agreement and Card Number. This Agreement was
provided to the purchaser of the Gift Card. The purchaser and
all other Cardholders agree to retain this Agreement and to
provide or otherwise make this Agreement available to subsequent
Cardholders. A copy of this Agreement is available online at
www.getmybalance.com. The original receipt for the purchase
of the Gift Card and the Gift Card number should be kept in
a safe location in case the Gift Card is lost, stolen or damaged
or for customer service purposes.
12. Privacy. Gift Cards are held on an anonymous basis and may
be used without identification by the bearer. You acknowledge
that SFS may disclose information about the Gift Card to its
affiliates, service providers, the Bank, the Malls and Merchants.
SFS will not otherwise disclose information that is identifiable
with the Gift Card to any third party except (a) as necessary
to complete a transaction or to comply with applicable law (including
government agency or court orders), (b) as part of our analysis
for internal purposes, (c) protection of SFS, the Bank, Mall
or others, (d) in conjunction with the sale to a third party
of our company or a portion of our assets; or (e) with your
consent. We may disclose information to any third party about
the Gift Card when such information is aggregated with other
information and is not identifiable with the Gift Card.
13. Termination of Program. If the Gift Card program is terminated
under circumstances in which the Gift Card is no longer redeemable
at a Merchant, you may surrender the Gift Card and redeem the
available balance of the Gift Card for cash. Until the Gift
Card is surrendered, all fees (if any) will continue to apply.
Inquiries concerning surrenders and redemptions should be made
by calling SFS at 800-755-8713.
14. DISCLAIMERS. SFS AND ITS AFFILIATES MAKE NO REPRESENTATIONS,
WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, WITH
RESPECT TO THE GIFT CARD OR ANY PURCHASES MADE WITH THE GIFT
CARD, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR
NON-INFRINGEMENT, OR ANY WARRANTY ARISING BY USAGE OF TRADE,
COURSE OF DEALING OR COURSE OF PERFORMANCE. SFS DOES NOT REPRESENT
OR WARRANT THAT YOUR GIFT CARD WILL ALWAYS BE ACCESSIBLE OR
ACCEPTED.
IN THE EVENT THAT SFS, ITS AFFILIATES, AND SUPPLIERS ARE FOUND
LIABLE TO YOU, YOU SHALL ONLY BE ENTITLED TO RECOVER ACTUAL
AND DIRECT DAMAGES IN AN AMOUNT NOT TO EXCEED YOUR THEN CURRENT
CARD BALANCE. SFS AND ITS AFFILIATES SHALL HAVE NO LIABILITY
FOR ANY INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING
OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, WHETHER
IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT
LIABILITY, STRICT LIABILITY OR OTHER THEORY, EVEN IF WE OR OUR
AUTHORIZED REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES.
IN NO EVENT SHALL SFS OR ITS AFFILIATES HAVE ANY LIABILITY FOR
UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION
OF A GIFT CARD THROUGH ACCIDENT, MISUSE, OR FRAUDULENT MEANS
OR DEVICES BY YOU OR ANY THIRD PARTY, OR AS A RESULT OF ANY
DELAY OR MISTAKE RESULTING FROM ANY CIRCUMSTANCES BEYOND OUR
CONTROL (INCLUDING ANY ACT OR OMISSION OF A MERCHANT) OR IF
THE USE OF THE GIFT CARD IS SUSPENDED OR PROHIBITED BECAUSE
IT HAS BEEN REPORTED LOST OR STOLEN, OR IS BEING USED FRAUDULENTLY.
The laws of certain states or other jurisdiction do not allow
limitations on implied warranties, or the exclusion or limitation
of certain damages. If these laws apply, some or all of the
above disclaimers, exclusions, or limitations may not apply
to you, and you may have rights in addition to those contained
in this Agreement. In such jurisdiction, our liability is limited
to the greatest extent permitted by law.
15. Void Where Prohibited by Law. All provisions of this Agreement
are void where expressly and to the extent prohibited by law.
In the event that any provision of this Agreement shall be determined
to be illegal or unenforceable, that provision will be eliminated
or adjusted to the minimum extent necessary so that this Agreement
shall otherwise remain in full force and effect and enforceable.
16. Governing Law; Venue. This Agreement shall be governed by
and construed in accordance with the laws of the State of Kansas
notwithstanding any conflict of law rules. With respect to any
dispute related to this Agreement or the Gift Card and subject
to Section 17, you and SFS agree to submit to the exclusive
jurisdiction of the state or federal courts located in Kansas.
17. Arbitration Rights. PLEASE READ THIS SECTION CAREFULLY.
IT AFFECTS RIGHTS THAT YOU MAY OTHERWISE HAVE. IT PROVIDES FOR
RESOLUTION OF MOST DISPUTES THROUGH ARBITRATION INSTEAD OF COURT
TRIALS AND CLASS ACTIONS. ARBITRATION IS FINAL AND BINDING AND
SUBJECT TO ONLY VERY LIMITED REVIEW BY A COURT. THIS ARBITRATION
CLAUSE SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
17.1. Binding Arbitration. This provision is intended to be
interpreted broadly to encompass all disputes or claims arising
out of our relationship. Any dispute or claim made by you against
us (or against any of our subsidiary, parent or affiliate companies)
arising out of or relating to this Agreement or your use of
the Gift Card (whether based in contract, tort, statute, fraud,
misrepresentation or any other legal theory) will be resolved
by binding arbitration except that (a) you may take claims to
small claims court if they qualify for hearing by such a court,
or (b) you or we may choose to pursue claims in court if the
claims relate solely to the collection of any debts you owe
to us. However, even for those claims that may be taken to court,
you and we both waive any claims for punitive damages and any
right to pursue claims on a class or representative basis.
17.2. Arbitration Procedures; Venue. You must first present
any claim or dispute to us by contacting our Customer Service
Department at 800-755-8713 to allow us an opportunity to resolve
the dispute. You may request arbitration if your claim or dispute
cannot be resolved within sixty (60) days. The arbitration of
any dispute or claim shall be conducted in accordance with the
American Arbitration Association (“AAA”) as modified
by this Agreement. The AAA Rules and information about arbitration
and fees are available upon request from the AAA (call 800-778-7879)
or online at www.adr.org. You and we agree that this Agreement
evidences a transaction in interstate commerce and this arbitration
provision will be interpreted and enforced in accordance with
the U.S. Federal Arbitration Act and federal arbitration law.
Unless you and we agree otherwise, any arbitration will be conducted
by telephone, on-line, and/or based solely upon written submissions
where no in-person appearance is required and if so required,
arbitration will take place in Kansas. The arbitration will
be conducted in the English language. An arbitrator may not
award relief in excess of or contrary to what this Agreement
provides, order consolidation or arbitration on a class wide
or representative basis, or award punitive damages or any other
damages aside from the prevailing party’s actual damages,
except that the arbitrator may award on an individual basis
damages required by statute and may order injunctive or declaratory
relief pursuant to an applicable consumer protection statute.
In any arbitration applying the AAA Rules applicable to large/complex
cases, the Arbitrators must also apply the Federal Rules of
Evidence, and the losing party may have the award reviewed in
accordance with the review procedures set forth in the AAA Rules.
Any arbitration shall be confidential, and neither you nor we
may disclose the existence, content or results of any arbitration,
except as may be required by law or for purposes of enforcement
of the arbitration award. Judgment on any arbitration award
may be entered in any court having proper jurisdiction. If any
portion of this arbitration clause is determined by a court
to be inapplicable or invalid, than the remainder shall still
be given full force and effect.
17.3. Costs of Arbitration. All administrative fees and expenses
of an arbitration will be divided equally between you and us,
except that for claims of less than $1,000, you will be obligated
to pay $25 and we will pay all other administrative costs and
fees. In all arbitrations, each party will bear the expense
of its own counsel, experts, witnesses and preparation and presentation
of evidence at the arbitration.
17.4. Waiver of Punitive Damage Claims and Class Actions. You
and we waive all rights to pursue any claims on a class or consolidated
basis or in a representative capacity. Neither you nor we will
join any claim with the claim of any other person or entity.
Furthermore, the arbitrators shall have no power to certify
a class or to proceed with class arbitration. By this Agreement,
both you and we are waiving certain rights to litigate disputes
in court. If for any reason this arbitration clause is deemed
inapplicable or invalid, you and we both waive, to the fullest
extent allowed by law, any claims to recover punitive or exemplary
damages and any right to pursue any claims on a class or consolidated
basis or in a representative capacity.
18. Entire Agreement. This Agreement, in addition to any terms
on the back of the Gift Card, is the complete and exclusive
statement of agreement between you and SFS regarding the Gift
Card.
19. Additional Information. If you have questions about this
Agreement or need information about your Gift Card, the Mall,
and participating Merchants, please visit www.getmybalance.com
or call 800-755-8713. To access information about your Gift
Card, you are required to know the Gift Card number.
20050308USCA |
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