Cardholder
Agreement
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. |
