PERFECT GIFT (Corporate) TERMS OF SERVICE
Updated October 2022
Updated October 2022
Perfect Gift, LLC (“Company,” “we,” “us,” “our”) provides the service described below (the “Service”) relating to the purchase and receipt, by duly authorized businesses and associations (“Entities”), for the sole purpose of redistribution and end use, of certain physical and/or digital reward/loyalty/incentive cards (collectively, “Cards”). This agreement provides the terms and conditions governing your use of the Service. By using the Perfect Gift Service, you represent and warrant that, as an authorized representative of the Entity for which you seek to purchase Cards (collectively, “you”), you agree to these Terms of Service. You also agree to our Privacy Statement, which is incorporated herein by this reference and located at www.perfectgift.com/privacy (“Privacy Statement”). You acknowledge that you will regularly visit these Terms of Service and the Privacy Statement to familiarize yourself with any and all updates. These Terms of Service, the Privacy Statement, and any other terms incorporated herein by reference are collectively referred to in this document as “Terms.”
Please read the Terms carefully and keep them for future reference, including but not limited to the following sections: (A) DISPUTE RESOLUTION/ARBITRATION AGREEMENT, (B) LIMITATION OF LIABILITY, AND (C) INDEMNIFICATION.
IF YOU DO NOT AGREE TO THESE TERMS, IMMEDIATELY STOP USING THE PERFECT GIFT SERVICE, PARTICIPATING IN ANY PROGRAM OR PURCHASE, OR RECEIVING ANY GOOD OR SERVICE OFFERED THROUGH THE PERFECT GIFT SERVICE.
1. The Perfect Gift Service
The Perfect Gift Service allows you to purchase and receive, in bulk and for the sole purpose of redistribution and end use (i. e., not for resale), prepaid “closed-loop” and/or “open-loop” Cards. You must tender, and Perfect Gift must receive, full and properly authorized payment for each Card, via methods and procedures specified by Perfect Gift. You must use the Cards at participating merchants, as designated by the Cards (“Merchants”), and/or as otherwise as allowed and contemplated by the Cards’ terms and conditions (collectively, the “Service”).
Cards are purchased when (a) you successfully register with us and a valid account is approved and established, (b) you select Cards to receive for designated use at participating Merchants, (c) you fully pay for the Cards in the manner specified by us in our sole discretion; (d) we receive full payment from you, and (e) we ship/otherwise transfer the Cards as you direct.
Cards are redeemed when (a) through proper use of the Cards, (1) a purchase of goods and/or services is made from the participating Merchant(s) (a “Qualifying Use”), (b) Merchant or financial institution/third party accepts the Cards; and (c) some or all (as applicable) of the value of the Card is applied against the amount of the Qualifying Use from the Merchant or financial institution/third party.
2. Fees and Limitations
The following fees and limitations apply to the Cards:
· Each Card can only be used at the designated Merchant or as otherwise specified.
· Certain fees may apply to Cards. Please see our website and mobile app to identify any/all applicable fees.
· You may use the Cards for the sole purpose of redistribution and end use. You may not resell any Cards.
· Terms and conditions specific to each each Card apply. Pleas contact and/or otherwise refer to the Merchant, or financial institution/third party, for information on such terms and conditions.
· You are not entitled to cancel the purchase of any Card, or to a refund on the purchase of any Card, except as expressly provided for in these Terms of Service or as otherwise provided for by law.
The foregoing fees and limitations are subject to change.
3. Creating Your Perfect Gift Enrollment
To use the Service, you must create a Perfect Gift enrollment (“Enrollment”). You may create one Perfect Gift Enrollment only, which is solely for your use. Your Enrollment is non-transferable, and you cannot sell, combine, or otherwise share it with any other person. Without limiting the foregoing, you may request, and we may grant, written permission for multiple representatives of the Entity for which you seek to purchase Cards to use your Enrollment. If you request and we grant such permission, you agree to comply and to ensure compliance with all of our administrative policies, procedures and requirements. All use of your Perfect Gift Enrollment must be for business use. No personal, family, or household use of your Perfect Gift Enrollment is allowed.
By creating an Enrollment or by using the Service, you represent and warrant to us that you may lawfully create an Enrollment/use the Service, including but not necessarily limited to: (i) you are at least 18 years of age (or older if you reside in a state where the majority age is older); (ii) you are an authorized representive of an Entity (with valid U. S. tax I. D. number) domiciled in the United States or the District of Columbia; (iii) you have provided us, as may be requested, with a verifiable U.S. street address (not a P.O. Box); (iv) the personal and Entity information that you provide to us in connection with your Enrollment is true, correct, and complete; and (v) you received a copy of and agree to be bound by and comply with these Terms and to comply with all applicable law in using the Service or your Perfect Gift Enrollment.
Payment Card Registration
To create a new Enrollment, you must apply to PG for approval. To do so, you must complete a request form via our website. You must create a confidential username and password and provide us with information about you and your business (for example, personal name, Entity name, complete address, email address, phone number, website URL, employer identification/tax identification number, purpose for gift card use, etc.).
We will review your request. Once an account is approved, you will have access to our secure bulk order system, and you may make bulk purchases. All purchases are subject to our review. We reserve the right, in our sole discretion, to deny an application/Enrollment rerquest and/or to cancel an order at any time.
Your use of the Service is subject to you being in good standing and your payment method(s) being valid, in good standing, and up-to-date. You represent and warrant to us that the information you provide about you and your payment method is true and that you are authorized to make and receive purchases and to use the designated payment method(s). You agree to promptly update your Enrollment information with any changes (for example, a change in your billing address), to not use any payment method that is not valid, and to secure our timely approval for any and all updated payment information/method(s). You must be authorized to effect payment via your payment method(s). You acknowledge and agree that we do not and will not have any liability associated with or arising from your use of the Service, or your failure to provide accurate registration information, including but not limited to your failure to receive a Card for a Qualifying Purchase or updates about the Service. If we or any of our partners or vendors suspect that the information you provided is untrue, inaccurate, or incomplete, your Enrollment may be suspended or terminated. You may authorize us to collect and store your payment method(s) information, along with other identifying information in connection with your Enrollment, such as your email address, location, and device information.
4. Using the Perfect Gift Service
Purchasing a Card
To use the Service to purchase a Card (a “Purchase Transaction”), you as Purchaser must have a valid, active Perfect Gift Enrollment linked to a valid payment method. For your initial purchase order, we will contact you to provide payment instructions. All payments must be made and completed in advance via wire transfer, check or money order, or other method as specified by us in our sole discretion.
When you select Cards to purchase, you are agreeing to pay all amounts specified in the Cards, along with any applicable taxes, as well as any service or processing fees to the extent permitted by applicable law. You hereby authorize us to authorize and charge the full order amount to the payment method affiliated with your Enrollment, and you also authorize us to collect and store that payment method information, along with other information related to your Purchase Transaction.
If you dispute any charges related to the Cards you have purchased, you must notify us within sixty (60) days after the date we charge you. You shall be responsible for all taxes associated with the Service other than U.S. taxes based on our net income. Applicable fees for Cards offered via the Service may change at any time. Please review our web site and mobile app for changes. We do not provide price protection or refunds in the event of a fee reduction or promotional offering. Your continued use of the Service after any fee change becomes effective constitutes your agreement to pay the originally charged amount.
No Liability for Cards After Purchase
PG is not responsible for any value lost from a Card after purchase and shipping/other transfer from us, regardless of whether the Card is alleged to (a) not have been delivered; (b) have been mis-delivered; or (c) have been otherwise lost. You as Purchaser is solely responsible for any and all losses due to fraudulent activity on its accounts and/or Card balances.
Redeeming a Card
We are not the issuer of any Cards. All Cards purchased are issued and activated by participating Merchants, retailers and vendors (collectively "Issuers"). After purchasing a Card, you as Purchaser or the recipient of the Card must activate the Card by following the instructions provided by the Issuers. The Card may only function upon activation. Upon activation, the Card will be governed by certain terms and conditions established by the Issuer. Depending on the applicable laws and jurisdiction, and whether the Cards are promotional in nature, Issuers may set expiration dates for such Cards, in addition to other restrictions and requirements that each individual Issuer may have at its sole discretion subject to applicable law. Purchaser (and the recipient of the Card) should review all applicable Issuer terms and conditions. Any questions regarding the applicable Issuer terms should be directed to the Issuer.
Issuers (not us) are fully responsible for all aspects of their Card programs. Issuers are also responsible for all liabilities, damages and costs suffered by Purchaser (or by a recipient of a Card) in possible connection with the purchase and the use of a Card. While we seek to work only with reputable Issuers, we have no liability for (1) the sale of products or services using any Card; and (2) any Issuer's failure to honor a Card.
You as Purchaser have no right to promote or use the name or commercial images of Issuer without express written consent.
The only way a Card can be redeemed is by making a QualifyingUse. Any particular Card you receive may be redeemed only as designated on or by the Card. Even if a Merchant, financial institution or other third party accepts other Cards, your specific Card cannot be redeemed at a Merchant unless the Card is designated for use at that Merchant, financial institution or other third party.
Account and Purchase/Receipt Verification
No Gift Card Purchase Transaction is complete, and we will incur no payment or delivery obligations to you, until we verify the authenticity of your Enrollment. We accept no responsibility for any delays in Gift Card delivery or redemption due to verification requirements.
Fraud and Abuse
We reserve the right to review, postpone, or cancel the purchase of any Gift Card in our sole discretion. If we receive a claim or otherwise suspect that a Gift Card purchased through Perfect Gift was fraudulently purchased or otherwise unauthorized, we reserve the right to immediately cancel the Gift Card and recover any costs associated with the fraud. Without limiting the generality of the foregoing, you assume all risk and liability (including but not necessarily limited to to risk of and liability for counterfeit, charged-back, negative balance transactions, and other fraudulent transactions) associated with any of your Card purchases, your transactions with Card recipients, and recipient transactions. We may, in our sole discretion, require you to establish and maintain a settlement or other account, with a minimum balance determined by us, which we may draw upon to recover any costs, expenses and outlays that we may make and for which you are assume the risk and liability. In addition, you give us express authorization to share information about you, your Enrollment, your purchase, and any of your activity with law enforcement authorities as needed to investigate any claim of fraud. If your Enrollment is determined to be fraudulent, we may suspend your Enrollment immediately and all pending Cards or other transactions may be suspended.
In addition, an Issuer may review, postpone, cancel, and/or take other action with respect to a Gift Card based on its policies, and based on the specific terms and conditions of the Gift Card, regarding fraud and abuse matters.
5. Access and Use of the Service
General Practices Regarding Use and Storage: You agree that we may establish general practices and limits concerning use of the Service, including but not limited to the maximum period of time that data or other content will be retained by the Service and the maximum storage space that will be allotted on our servers on your behalf. You agree that we have no responsibility or liability for the deletion or failure to store any of your information, account data, or other content maintained or uploaded by the Service. You acknowledge that we reserve the right to terminate any Enrollments that are inactive for an extended period of time or that are determined to be fraudulent. You further acknowledge that we reserve the right to change these general practices and limits at any time, in its sole discretion, with or without notice as long as there is no material adverse impact on any of your pending Cards.
Mobile Services: To the extent you access the Service through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. Use of certain features of the Service may be prohibited or restricted by your carrier, and not all features of the Service may work with all carriers or devices. When accessing the Service through a mobile device, unless you allow us access to your location, we may not be able to provide access to certain content if such content has geographic limitations.
By acknowledging these Terms, you consent to our communicating with you on your mobile device, including through the use of an automatic telephone dialing system or a prerecorded or artificial voice, by SMS, MMS, text message or other electronic means and that certain information about your usage of the products and features may be communicated to us. You are not required to enter into this agreement as a condition of using the Service. By providing us with a telephone number, you expressly waive any protections afforded to you under federal, state, or corporate Do Not Call lists for the purpose of receiving telephone calls or text messages from us related to your use of the Service. By providing us with a telephone number, you represent and warrant that you are the authorized subscriber to that telephone number and that you have the authority to provide consent to be contacted at that telephone number. If you would like to revoke this consent at any time, you may do so by contacting us at 495 Mansfield Avenue, Pittsburgh, PA 15205. Even if you revoke this consent, you acknowledge that the remaining sections of the Terms will remain in effect. In the event you change or deactivate your mobile telephone number, you agree to promptly update your Perfect Gift Enrollment information to ensure that your messages are not sent to the person that acquires your old number.
Account Password, Security, and Activity: You are responsible for maintaining the confidentiality of your password and account, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to (i) immediately notify us of any unauthorized use of your password or Enrollment or any other breach of security, and (ii) ensure that you exit from your Enrollment at the end of each session when accessing the Service. If you remain signed into your Enrollment at the end of any session, any user accessing your device may be able to view and manipulate your Enrollment information and other sensitive information. We recommend that you exit from your Enrollment at the end of each session and that you use other security measures (for example, password protecting/”locking” a mobile device when not in use). We will not be liable for any loss or damage arising from your failure to comply with this Section.
Use of Trademarks/Logos: You and we understand and agree that your trademarks, service marks, trade names, designs, logos and/or copyrights (hereinafter “Marks”) will remain your sole property; and that our trademarks, service marks, trade names, designs, logos and/or copyrights (hereinafter “Marks”) will remain our sole property. Notwithstanding the foregoing, you agree that we are permitted without obtaining further consent to use your Marks and/or replications of your Marks on any and/or all of the Cards you may seek to purchase from us. Except to the extent expressly provided for herein, nothing in these Terms of Service will confer in either of us any title to, right of ownership, or interest in the other Party’s Marks.
Ordering/Purchasing Via PG’s API(s) (Application Programming Interface):
Grant of License: PG grants to you, strictly in accordance with the Terms, a non-exclusive, non-transferable, non-sublicensable, worldwide, revocable right and license during the Term to: (a) use and make calls to the API(s) solely to support PG’s provision and your receipt of the Services as authorized by the Terms. Your access to and use of the API(s) is governed by the Terms and any and all restrictions and policies implemented by PG from time to time. You grant to PG a royalty-free, fully paid-up, worldwide, transferable, sub-licensable, irrevocable and perpetual license to implement, use, modify, commercially exploit and/or incorporate into PG’s Services and/or the API(s) any suggestions, enhancement requests, recommendations or other feedback PG receives from you.
PG grants you the license hereunder based upon you complying, thoughout your relationship with PG, with all of PG’s requirements and your responsibilities set forth in the Terms and in any and all restrictions and policies and/or procedures implemented by PG from time to time. If PG believes, in its sole discretion, that you have violated or attempted to violate any term, condition, or the spirit of PG’s Terms, PG may temporarily or permanently revoke, with or without notice to you, any and all licenses afforded to you.
In order to use and access the API(s), you must obtain API credentials as specified by PG. Prior to and as a condition of you obtaining such API credentials, (1) PG has the right to provide you with a test, “sandbox” environment, for the purpose of enabling you to appropriately configure your calls to PG’s API(s); (2) you will configure all calls in such test environment; and (3) PG will determine, in its sole discretion, that you have appropriately configured and tested your calls. You may not share your credentials with any third party; you will keep such credentials and all login information secure; and you will use the credentials as your sole means of accessing the API(s). If your credentials are stolen or if you have reason to believe that someone has accessed the API(s) without authorization or permission, you will notify PG immediately and cooperate fully with PG. You will indemnify PG for any damages, loss, costs and expenses incurred by PG or any third party as a result of such breach or loss of confidentiality.
You are solely responsible for calling PG’s API(s) in accordance with the specifications provided by PG. You will limit calls to PG’s API(s) to necessary calls and will not exceed the number of calls per minute on average specified by PG. In the event that you exceed this call average, PG reserves the right to suspend and/or terminate your right to use PG’s API(s). You will only use the API(s) to develop and distribute web or other software services or content for use, with any of the Services and as specified by the Terms, by you and/or recipients of a Card. You will not distribute, sell, lease, rent, lend, transfer, assign or sublicense any rights under this Agreement to any third party, nor will you use or access the API(s) or the Services in order to monitor the availability, performance, or functionality of the API(s), the Services or any portion thereof or for any similar benchmarking purposes. In addition, you will not engage in any activity that interferes with, disrupts, harms, damages, or accesses in an unauthorized manner the servers, security, networks, data, applications or other properties or Services of PG or any third party, and you will not circumvent technological measures intended to prevent direct database access, or manufacture tools or products to that effect. You also will not modify, translate, reverse engineer, disassemble, reconstruct, decompile, copy, or create derivative works of the API(s), the Services, any data, or any aspect or portion thereof, except to the extent that this restriction is expressly prohibited by applicable law, and you will not bypass API restrictions for any reason. Except as authorized by PG in writing, you will not substantially replicate products or services offered by PG, including the API(s). You will not develop any web or other software services that violate any rate limitations on calling or otherwise utilizing the API(s), or otherwise excessively burden any PG, distribute spyware, adware or other commonly objectionable programs; will not access or use the API(s) to develop or distribute a web or other software service in any way in furtherance of criminal, fraudulent, or other unlawful activity; will not falsify or alter any unique identifier in, or assigned to, your web or other software service, or otherwise obscure or alter the source of queries coming from a web or other software service; will not include code in any web or other software service which performs any operations not related to the services provided by the web or other software service; and will not, in any manner, display any form of advertising within or connected to any user of any of the Services, except as approved in writing by PG.
You are solely responsible, and PG has no responsibility or liability of any kind, for the content, development, operation, support or maintenance of web or other software services or applications developed by you that utilize or interact with the API(s). Without limiting the foregoing, you will be solely responsible for (a) the technical installation and operation of your web and other software services; (b) creating and displaying information and content on, through or within your web and other software services; (c) ensuring that your web and other software services do not violate or infringe the intellectual property rights of any third party; (d) ensuring that your web and other software services are not offensive, profane, obscene, libelous or otherwise illegal; (e) ensuring that your web and other software services do not contain or introduce malicious software into any of the Services, the API(s), or any data stored or transmitted using the Services; and (f) ensuring that your web and other software services are not designed to or utilized for the purpose of spamming any customers or users of any of the Services, or any of PG’s or its affiliates’ web sites or applications.
PG may modify the APIs, the Services and/or applicable policies or procedures, from time to time (a “Modification”). You further acknowledge and agree that such Modifications may be implemented at any time and without any notice to you. You will comply with such Modification(s) by implementing and using the most current version of the API(s), and making any changes to your web or other software services, as PG may require as a result of such Modification(s). You acknowledges that a Modification may have an adverse effect on your web or other software services. PG will have no liability of any kind to you or any of your recipients or other users with respect to such Modifications or any adverse effects resulting from such Modifications. Your continued access to or use of the API(s) and/or Services following the implementation of any Modification(s) will constitute binding acceptance of the Modification(s) at issue.
Neither PG, nor other PG-related entity grants you any license or other rights or privileges regarding any patent owned, applied for, licensed, or used by PG or other PG-related entity.
Ownership; Rights: Title and ownership of the technology utilized to provide the Services including, without limitation, any API(s), mobile application, or mobile web application, and any other services delivered by PG to you or your recipients/users under these Terms, including any modifications or enhancements thereto or derivative works created therefrom (collectively, the “PG Technology”), will remain vested solely in PG or PG-related entities. You will have no ownership rights or other rights in the PGs Technology. During the Term, you are a beneficiary of PG’s proprietary and intellectual property as such relates to the distribution and sale of Services. To the extent that you contribute, in whole or in part, to any improvement(s) or modification(s) to the PG Technology, you hereby assign to PG all right, title and interest in and to such improvement(s) and modification(s).
You acknowledge and agree that the Services, PG Technology, Merchant content, and the products and/or services to which Merchant content relates may contain the trade names, service marks, brands, and trademarks of PG, PG-related entities, or Merchants (collectively, “Marks”). Unless otherwise authorized by PGs in writing, you agree not to display or use any of the Marks and will not permit the same to be displayed or used by any authorized party acting on its behalf or third parties. All ownership rights of PG and the Merchants in their respective Marks are retained and all uses hereunder by you, or any party acting on your behalf, inures to their respective benefits. All such Marks must be used in strict compliance with the owner’s requirements. You may not, and will ensure that any party acting on your behalf does not, remove, alter or obscure any Marks. All merchandising or marketing materials created or used by you in connection with the sale and/or distribution of Services must be approved by PG. You grant to PG the right to display your trade name and any of your logos to identify you to PG’s customers and business associates. Upon termination of this Agreement, any and all rights or privileges of you to use the Marks will immediately expire, and you will immediately discontinue the use thereof.
Proprietary Information; Non-Disclosure: All Proprietary Information (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) will remain the sole property of the disclosing party and its confidentiality will 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 will not use the Proprietary Information of the other party except as necessary to fulfill its obligations under the Terms, 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 will 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 will 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 will: (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 will be effective during the Term and for a period of one (1) year from the expiration or termination of the parties’ relationship. Notwithstanding the foregoing, the parties will maintain the secrecy and confidentiality of any trade secrets of either party indefinitely so long as they remain trade secrets. 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.
We reserve the right, at our sole discretion, to discontinue, change or modify portions of these Terms at any time. If we do this, we will post the changes and will indicate the date these Terms were last revised. Your continued use of the Service after the date any such changes become effective constitutes your acceptance of the new Terms. Any changes to these Terms will be effective upon posting; provided that these changes will be prospective only and not retroactive. If you do not agree to the changes, you may cancel your Enrollment and you should not use the Service after the effective date of the changes. We suggest you revisit our Terms regularly to ensure that you stay informed of any changes. You agree that our posting of any changes on the Terms page is adequate notice to advise you of these changes.
Please contact us at firstname.lastname@example.org to report any violation of these Terms or to pose any questions regarding them.
You agree that we, in our sole discretion, may suspend or terminate your Enrollment (or any part thereof) or use of the Service and remove and discard any content within the Service, for any reason, including, but not limited to, for lack of use or if we believe that you have violated or acted inconsistently with the letter or spirit of these Terms. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of Service, may be referred to appropriate law enforcement authorities. We may also in our sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of these Terms may be effected without prior notice, and acknowledge and agree that we may immediately deactivate or delete your Enrollment and all related information and files in your Enrollment and/or bar any further access to such files or the Service. Further, you agree that we will not be liable to you or any third party for any termination of your access to the Service.
8. User Disputes
You agree that you are solely responsible for your interactions with any other user, Merchant, and/or other Issuer in connection with the Service or any Gift Card, and that we will have no liability or responsibility with respect thereto. We reserve the right, but have no obligation, to become involved in any way with disputes between you and any other user of the Service or Merchant or Issuer, in each case in connection with the Service.
You agree to indemnify and hold us, and our officers, employees, directors, and agents harmless from any and all losses, damages, expenses, including but not limited to reasonable attorneys’ fees, rights, claims, actions of any kind, and injury (including death) arising out of or relating to your use of the Service, your violation of these Terms, or your violation of any rights of another.
10. Disclaimer of Warranties
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. We are not responsible for the quality, safety, legality, or any other aspect of any goods or services you purchase from a Merchant/ISSUER.
WE MAKE NO WARRANTY THAT: (I) THE SERVICE WILL MEET YOUR REQUIREMENTS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.
11. Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT WE, OUR CORPORATE AFFILIATES AND PERSONNEL WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, DAMAGES RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (V) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL PERFECT GIFT’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID PERFECT GIFT IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100). IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU.
At our or your election, all disputes, claims, or controversies arising out of or relating to the Terms or the Service that are not resolved by mutual agreement may be resolved by binding arbitration to be conducted before JAMS, or its successor. Unless otherwise agreed by the parties, arbitration will be held in Pittsburgh, Pennsylvania before a single arbitrator mutually agreed upon by the parties, or if the parties cannot mutually agree, a single arbitrator appointed by JAMS, and will be conducted in accordance with the rules and regulations promulgated by JAMS unless specifically modified. The arbitration must commence within forty-five (45) days of the date on which a written demand for arbitration is filed by either party. The arbitrator’s decision and award will be made and delivered within sixty (60) days of the conclusion of the arbitration and within six (6) months of the selection of the arbitrator. The arbitrator will not have the power to award damages in excess of the limitation on damages set forth in these Terms and may not multiply actual damages or award punitive damages or any other damages that are specifically excluded under these Terms, and each party hereby irrevocably waives any claim to such damages. The arbitrator may, in his or her discretion, assess costs and expenses (including, but not limited to, the reasonable legal fees and expenses of the prevailing party) against any party to a proceeding. Any party refusing to comply with an order of the arbitrators will be liable for costs and expenses, including, but not limited to, attorneys’ fees, incurred by the other party in enforcing the award. Notwithstanding the foregoing, in the case of temporary or preliminary injunctive relief, any party may proceed in court without prior arbitration for the purpose of avoiding immediate and irreparable harm. The provisions of this arbitration section will be enforceable in any court of competent jurisdiction.
We are independent parties to these Terms, and nothing contained herein will be deemed or construed to create the relationship of principal and agent or of partnership or joint venture. This Agreement and the rights and obligations of the Parties hereunder shall be governed by, and construed and interpreted in accordance with, the laws of the Commonwealth of Pennsylvania, without regard to the conflict of laws provisions thereof. We and you hereby submit to the jurisdiction of the courts of Pittsburgh, Pennsylvania for the enforcement of any arbitral award or other action. These Terms set forth the entire agreement between us pertaining to the Service. You agree that we will not be liable for any delay or failure in our performance of any of the acts required by these Terms when such delay or failure arises from circumstances beyond our control and without the fault or negligence of us. Such causes may include, without limitation, acts of God, acts of local, state or national governments or public agencies, acts of public enemies, terrorism, widespread or extended utility or communication failures or delays, earthquakes, fire, flood, epidemics, riots or strikes. If any provision of these Terms (or any portion thereof) is determined to be invalid or unenforceable, it will be stricken and the remaining provisions of these Terms will remain in full force and effect and shall be binding on us and enforceable in accordance with their terms, as though the invalid or unenforceable provision (or portion thereof) was not contained in this Agreement.
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