Last updated June 24th, 2018
Welcome to GivePay Commerce. These Terms of Service set forth Terms and Conditions that apply to all devices, websites, mobile sites, services, applications, mobile applications, platforms, and tools that enable a Purchaser or Distributor to purchase, send, receive, and manage digital Gift Cards, Wireless Top-Ups, and Donations.
PLEASE READ THE FOLLOWING CAREFULLY, AS IT AFFECTS YOUR LEGAL RIGHTS. THESE TERMS ARE A BINDING LEGAL CONTRACT BETWEEN YOU AND GIVEPAY COMMERCE, LLC. BY ACCESSING OR OTHERWISE USING GIVEPAY SITES OR SERVICES, YOU AGREE TO THE TERMS AND CONDITIONS. THESE TERMS AND CONDITIONS CONTAIN AN AGREEMENT TO ARBITRATE, ON AN INDIVIDUAL BASIS, TO RESOLVE ANY DISPUTES INSTEAD OF USING A JURY, CLASS ACTION, OR ANY OTHER COURT PROCEEDINGS. GIVEPAY COMMERCE RESERVES THE RIGHT TO MODIFY, CHANGE, OR DELETE PORTIONS OF THESE TERMS OF SERVICES AT THEIR SOLE DISCRETION. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE OR ANY SUBSEQUENT MODIFICATIONS, YOU MUST CEASE USING THE SITE OR SERVICE. THESE TERMS OF SERVICES, COMBINED WITH DISTRIBUTOR AGREEMENT, IF APPLICABLE, CREATES THE TOTAL, BINDING AGREEMENT. IN ADDITION TO THE TERMS OF SERVICE HERIN, PURCHASER OR DISTRIBUTOR AGREES TO THE TERMS OF SERVICE AS REQUIRED BY CARD BRANDS AND WIRELESS CARRIER BRANDS PRESENTED AT THE TIME OF PURCHASE VIA THE GIVEPAY SITE OR SERVICE. BY USING A GIFT CARD, WIRELESS TOP-UP, OR DONATION, YOU AGREE TO THESE TERMS OF SERVICE. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY CREDIT CARD(S) OR OTHER PAYMENT METHOD(S) UTILIZED IN CONNECTION WITH ANY TRANSACTION.
Table of Contents
GivePay Commerce is a Financial Technology Company, headquartered in Fort Worth, Texas, to be referred to as “GivePay” (or “we”, “us”, “The Company”, and “our”) for the remainder of this agreement. GivePay has contracts which include, but not are not limited to, Distributors, Third-Party Companies, Payment Processing Companies, Gift Card Providers, and Wireless Providers.
The Services include, but are not limited to, GivePay Gift Card Mall, participating GivePay ATM locations, participating GivePay point-of-sale locations, mobile applications, partnered software, and any website owned and/or operated by GivePay.
The Distributor is defined as an individual or group that has operational control over one or more ATM machines, point-of-sale devices, mobile applications, and/or websites for the use of selling Gift Cards, Wireless Top-Up, and/or Donations.
The Purchaser is defined as an individual that uses an ATM, point-of-sale device, Mobile Application, or Website for the purchase of a Gift Card, Wireless Top-Up, and/or Donation. The Purchaser provides express prior written consent from Recipient to receive the gift via text message.
The Recipient is defined as the individual that receives a Gift Card, Wireless Top-Up, and/or Donation from Purchaser. Recipient gives approval for the electronic delivery from prior express consent to the Purchaser and receives the Gift Card, Wireless Top-Up, or Donation.
A Customer is defined as an individual or legal entity that is a Distributor, Purchaser, and/or Recipient.
Gift Card is defined as a stored-value instrument from a participating business, where the Gift Card’s stored value can be exchanged for goods or services. Gift Cards are not open looped. GivePay provides digital Gift Cards, electronically delivered, for informational use only. The risk of loss and title to Gift Cards transfers to the Recipient upon electronic transmission of the Gift Card.
Wireless Top-Up is defined as a value transfer to a participating wireless Carrier with which a Purchaser exchanges the value for an increase in cellular phone usage allowance, as specified by the wireless Carrier’s terms. Wireless payments shall be provided by GivePay as a real-time replenishment. The risk of loss and title to the Wireless Top-Up transfers are not acquired or maintained by GivePay.
Donations are gifts between a Purchaser and an organization, utilizing a Distributor, point-of-sale system, mobile application, or website. The risk of loss and title to a Donation transfers to the Recipient upon electronic transmission.
Content may include images, logos, data, graphics, text, music, updates, software, and applications. Content included on all websites, ATMs, mobile applications, and point-of-sale systems is owned or licensed property of GivePay, its licensors, its suppliers, its processors, and/or ATM owners. Content may be protected by trademark and/or copyright. GivePay expressly reserves all intellectual property rights and protections afforded by international copyright laws.
Carrier is defined as a telecommunications provider that owns or controls some or all of the elements to provide wireless communications or data to Customers.
Manufacturer is defined as the company that designs software for ATMs, kiosks, mobile devices, and/or point-of-sale devices that utilize GivePay Services.
When the Distributor Agreement and these Terms of Service are accepted, the Distributor is granted a limited, non-sublicensable, non-exclusive license to add the GivePay Services to their ATMs, point-of-sale devices, mobile applications, and/or websites.
The GivePay Services utilize electronic delivery in order to deliver Gift Cards, Wireless Top-Ups, and/or Donations. The Purchaser’s standard text message rates, taxes, and any other charges are the sole responsibility of the Purchaser. GivePay is not liable for any charges to the Recipient from the use of text messages. GivePay will not be liable for any delays in the receipt of any text messages. Such delays are the responsibility of the cellular network provider.
The Purchaser is responsible for all applicable taxes on the fees and charges paid the Purchaser, including, without limitation, any and all federal, state, local, ad-valorem, sales, use, and value-added taxes but not any taxes imposed on GivePay’s income from the sale of Gift Cards, Wireless Top-Ups, or Donations.
All sales are final. The risk of loss for Gift Cards, Wireless Top-Up, or Donations transfer to the Recipient upon the transmission of value to the Recipient, who is responsible for safeguarding the value. GivePay is not responsible for Gift Cards, Wireless Top-Ups, or Donations lost, stolen, destroyed, balances used without permission, hacking, fraud, or scams. GivePay may, at its discretion, re-issue a Gift Card, Wireless Top-Up, or Donation legitimately purchased, to the original Recipient or a replacement Recipient.
Gift Cards may only be used at the participating businesses that accept the card. GivePay utilizes a digital delivery system. Therefore, a plastic card will not be issued. Gift Cards can only be used for the purchase of goods and services.
In addition to the Terms of Service herein, Purchaser, Recipient, Distributor, and Manufacturer agree to the Terms of Service as provided by GivePay at time of purchase via the GivePay Services.
GivePay may permit access to third-party products, services, websites, advertisements, and content, which may have their own terms of service, and you acknowledge that GivePay is not responsible or liable for any loss, harm, or damage resulting from using a third-party service, except as agreed to between GivePay and such third-party service. On the ATM, point-of-sale device, mobile application, or website, we may display names, logos, marks, products, advertisements, services of third parties, pop-up texts, or links to third-party sites. YOUR USE OF THIRD-PARTY CONTENT AND SERVICES IS AT YOUR SOLE RISK AND DISCRETION. GivePay does not endorse, monitor, investigate, or represent the third-parties’ content or services and shall have no liability for the use or misuse of those services.
Gift Cards may not be used in the following manner:
- Returned for cash value
- Transferred out of the United States
- Purchase of other Gift Cards
- Used for sweepstakes
- Redeemed for cash value
- Reloaded with additional value
- Resold to another party
- Redeemed for more than face value
As a condition of the use of GivePay’s sites and the GivePay Services, you agree, at your sole expense, to defend, indemnify, and hold GivePay, respective employees, officers, directors, manager, members, suppliers, agents, service providers, consultants, and third-party providers harmless from and against any and all actual or threatened suits, actions, proceedings, direct or indirect (at law or in equity), claims, damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorneys’ fees, penalties, costs, interest and disbursements) caused by, arising out of, resulting from, attributable to or in any way incidental to: (i) your use of the Services; (ii) loss of data, income, or profits (iii); your violation of these Terms or the rights of any third-party; (iv) any improper use of Gift Cards, Wireless Top-Up, and/or Donations.
GivePay reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting GivePay’s defense of such matter.
YOU CONSENT TO ACCEPT AND RECEIVE COMMUNICATIONS FROM US, INCLUDING E-MAIL, TEXT MESSAGES, TELEPHONE CALLS, AND PUSH NOTIFICATIONS. THE PURCHASER IS PROVIDING A “CONSENT TO RECEIVE” FROM THE RECIPIENT TO RECEIVE AN ELECTRONIC DELIVERY THAT CONTAINS THE REQUESTED INFORMATION. THE PURCHASER ALSO CONSENTS TO RECEIVE TRANSACTION RECEIPTS, CORRESPONDENCE, AND NOTIFICATIONS IN ANY MANNER THAT GIVEPAY DEEMS NECESSARY. THE PURCHASER INDEMNIFIES GIVEPAY AGAINST ACTUAL OR THREATENED SUITS, ACTIONS, PROCEEDINGS, DIRECT OR INDIRECT (AT LAW OR IN EQUITY), CLAIMS, DAMAGES, PAYMENTS, DEFICIENCIES, FINES, JUDGMENTS, SETTLEMENTS, LIABILITIES, LOSSES, COSTS AND EXPENSES FROM THE RECIPIENT. PURCHASER GRANTS GIVEPAY, ON BEHALF OF THE RECIPIENT, PRIOR EXPRESS WRITTEN CONSENT AND AUTHORIZATION TO SEND ELECTRONICALLY DELIVERED MESSAGES TO THE RECIPIENT. PURCHASER ALSO GRANTS GIVEPAY AUTHORIZATION TO SEND ELECTRONICALLY DELIVERED MESSAGES TO THE PURCHASER. IF CUSTOMER ELECTS TO PRESS ANY LINK DELIVERED BY THE SERVICE, THEY CONSENT TO ANY DATA USAGE THAT MAY BE INCURRED.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE YOUR USE OF OUR SERVICE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK, AS TO PERFORMANCE ACCURACY, SAFETY, QUALITY, AND EFFORT, IS WITH YOU. GIVEPAY DOES NOT WARRANTY FUNCTIONS CONTAINED IN OUR SERVICE WILL BE ACCURATE OR MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE DEFECTS IN THE SERVICE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION, GUIDELINES, OR ADVICE GIVEN BY GIVEPAY OR OUR AUTHORIZED REPRESENTATIVE WILL CREATE A WARRANTY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR SERVICES ARE PROVIDED ON AN “AS AVAILABLE” AND “AS-IS” BASIS. GIVEPAY DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS (WRITTEN, ORAL, IMPLIED, OR EXPRESS) WITH RESPECT TO THE SERVICES AND THE CONTENT CONTAINED THEREIN, INCLUDING ANY AND ALL: (1) WARRANTIES OF MERCHANTABILITY; (2) WARRANTIES OF SUITABILITY OR FITNESS FOR ANY PURPOSE (WHETHER OR NOT GIVEPAY KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE AWARE OF ANY PURPOSE); AND (3) WARRANTIES OF NON-INFRINGEMENT OR CONDITION OF TITLE. SOME JURISDICTIONS DO NOT ALLOW DISCAIMER OF IMPLIED TERMS IN CONTRACTS WITH CONSUMERS, THEREFORE, SOME OR ALL OF THE DISCAIMERS MAY NOT APPLY TO YOU.
Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. The AAA’s rules are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration, and arbitrator fees will be governed by the AAA’s rules. We will reimburse those fees for claims totaling less than $10,000, unless the arbitrator determines the claims are frivolous. The number of arbitrators shall be three. The place of arbitration shall be Fort Worth, Texas. Texas law shall apply. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The demand for arbitration shall be made within a reasonable time after the claim, dispute, or other matter in question has arisen, and in no event shall it be made after two years from when the aggrieved party knew or should have known of the controversy, claim, dispute, or breach. Except as may be required by law, neither a party nor its representatives may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of [all/both] parties. The Parties shall be entitled to discovery in the arbitration no more than 1000 pages of documents and to take three depositions not to exceed eight hours for each such deposition. Any Party shall be entitled to depose any expert who will testify in the arbitration proceeding but shall pay the regular hourly rate of such expert during such deposition. In addition to the foregoing, any Party shall be entitled to take the deposition of a witness who will testify at the arbitration but who is unavailable to testify at the hearing to preserve such witness’ testimony for the arbitration hearing. The arbitrator[s] shall have no authority to award punitive/consequential/special/ indirect damages. The arbitrators shall not be entitled to issue injunctive and other equitable relief. The cost of the arbitration proceeding and any proceeding in court to confirm or to vacate any arbitration award, as applicable (including, without limitation, reasonable attorneys’ fees and costs), shall be borne by the unsuccessful party, as determined by the arbitrators, and shall be awarded as part of the arbitrator’s award. It is specifically understood and agreed that any party may enforce any award rendered pursuant to the arbitration provisions of this Section by bringing suit in any court of competent jurisdiction. This Section shall survive the termination or cancellation of this Agreement. GivePay and you agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated, or representative action. If for any reason a claim proceeds in court rather than in arbitration, we each waive any right to a jury trial. We and you also agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
All Terms of Service are binding upon GivePay’s Purchasers, successors, and assignees. GivePay has the sole right to delegate its obligations without consent.
GivePay may assign this Agreement and its rights and obligations hereunder to any corporation or other entity with or into which GivePay may hereafter merge or consolidate or to which GivePay may transfer all or substantially all of its assets, if in any such case said corporation or other entity shall, by operation of law or expressly in writing, assume all obligations of GivePay hereunder as fully as if it had been originally made a party hereto.
GivePay retains the right to selectively enforce provisions of the agreement without waiving its rights to enforce the provisions in the future.
GivePay retains the right to terminate these terms of service without notice.
GivePay retains the right to disable, discontinue, change, remove, or upgrade any portion of these terms of service.
Should any part of the terms of service for any reason be deemed unenforceable, void, or unlawful, the remaining provisions shall be enforceable.
All provisions of GivePay’s Terms of Service will survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity, and limitations of liability.
Communications made through email or GivePay Support’s messaging system will not constitute legal notice to GivePay or any of its officers, employees, agents, legal counsel, or representatives in any situation where notice to GivePay is required by contract or any law or regulation. Legal notice to GivePay must be in writing.
GivePay Commerce, LLC
2912 West 6th Street, LL 150
Fort Worth, TX 76107
In order for GivePay to provide services to Distributors, we may require access to location information, including precise geolocation information collected from participating ATMs. If you do not consent to collection of this information, certain services will not function properly, and you will not be able to use those services.
Agreement to these terms of service augments the original Distributor Agreement.
You expressely authorize GivePay’s Service provider, Dwolla, Inc. to originate credit transfers to your financial institution account.
GivePay owns all rights, titles and interests in all software delivered to the ATM, mobile application, websites, and/or all other related services all related software and technology, and all of our content provided in connection with the Services, including all intellectual property rights in the foregoing. Nothing contained in these Terms of Services should be construed as granting any license or right to use any trademark without our prior written permission.
GivePay claims exclusive and sole rights to all Customer information collected. This information is the property of GivePay and will only be shared as needed to complete a transaction.