(Last Updated June 26, 2020)
THESE CARDHOLDER TERMS INCLUDE, AMONG OTHER THINGS, A BINDING ARBITRATION PROVISION THAT CONTAINS A CLASS ACTION WAIVER. PLEASE REFER TO SECTION 28 BELOW FOR MORE INFORMATION.
- Acceptance of Cardholder Terms. By checking the relevant box and registering for an Account, downloading a myGini mobile application, or accessing, browsing, or otherwise using the Application, you acknowledge that you have read, understood, and agree to be bound by the following terms and conditions (the “Cardholder Terms”). If you do not agree with these terms and conditions please do not access or use the Application.
- Additional Terms. Your use of the Application may be subject to additional terms, rules, or guidelines applicable to certain services and features which we may post from time to time (the “Additional Terms”). All such Additional Terms are hereby incorporated by reference into, and made a part of, the Cardholder Terms.
- Overview of the Application. The Application allows you to earn cashback (“myGini Cashback”) when you make a Qualified Purchase at participating merchants as further described below. A “Qualified Purchase” is a purchase from a participating merchant using your registered Payment Card (defined below) in accordance with the terms of the Offer and these Cardholder Terms. An “Offer” is the cashback percentage or amount offered by the merchant, which may include, but not limited to, a minimum transaction amount, expiration date, and other additional terms or limitations associated with the offer. Once earned as further set forth below, you will receive your myGini Cashback automatically in the form of credits issued to your registered payment card.
- Eligibility. You must be at least eighteen (18) years old to use the Application. By agreeing to the Cardholder Terms, you represent and warrant to us: (i) that you are at least eighteen (18) years old; (ii) that you have not previously been suspended, removed or deactivated from the Application; (iii) that you are a legal resident of the United States; and (iv) that your registration and your use of the Application is in compliance with any and all applicable laws and regulations.
- myGini Accounts.
- Account Creation. In order to use the Application, you must create an account (an “Account”) with myGini and you must enroll a valid, eligible credit or debit card by submitting your card information that myGini requests. You agree that the information you provide to myGini on registration and at all other times, will be true, accurate, current, and complete, and that you will keep this information accurate and up-to-date at all times and you represent and warrant that you are authorized to use the payment card that you submitted. We also request that you create a password for your Account. You agree not to disclose your password to anyone else, and you also agree you will be solely responsible for any activities or actions take under your Account, whether or not authorized by you. Please notify us immediately of any unauthorized use of your password or Account. We are not liable for any loss or damage from your failure to comply with these requirements.
- Limitations on User Accounts. A user may not create more than one (1) myGini Account and you cannot access your Account from multiple mobile devices at one time. Accordingly, to access your Account from a new mobile device, you must log out of your existing session on your previous mobile device.
- Use of Enrolled Cards and Transaction Information.
- Transaction Monitoring. In order to receive myGini Cashback for Qualified Purchases, you must link at least one eligible debit or credit card (a “Payment Card”) to your Account. By registering a Payment Card to your Account in connection with transaction monitoring, you authorize: (i) myGini to share your Payment Card information with the third parties that enable us to provide the Application, such as Empyr, Inc. (“Third-Party Service Providers”) and your payment card network so it knows you enrolled for the Application; and (ii) the payment card network to (A) monitor transactions on your Payment Card(s) to identify Qualified Purchases in order to determine whether you qualify for or earn an Offer linked to your Payment Card(s) in connection with the Application; and (B) share such transaction details with myGini to provide the Application to you.
You may opt-out of such transaction monitoring on the Payment Card(s) you have registered by de-linking them through the Application or by terminating your Account. Please note that if you opt-out of transaction monitoring, certain features of the Application may not be available to you or the performance of certain features of the Application may be limited or not work at all.
- Spend Parameters. The Application may also enable you to establish spend control parameters to view and track the amounts you spend on Qualified Purchases. myGini will notify you in the event you exceed one of your set thresholds. Please note, however, that myGini can only monitor your spend based on transaction information received from Visa, Mastercard, Discover, American Express, and other third party data providers (including Plaid and Sentral) and this transaction information may not include all transactions made with your Payment Card. myGini’s spend parameters are for informational purposes only. You are solely responsible for all spend that occurs on your Payment Card. myGini is not responsible or liable for any fees, costs or other losses that you may incur as a result of the spend associated with your Payment Card.
- Payment Card Restrictions.
- Not all Visa, Mastercard, Discover and American Express cards are eligible for registration, and not all transactions with your registered Visa, Mastercard Discover and American Express card are tracked by Visa, Mastercard Discover or American Express. All determinations as to whether a card is eligible to be a Payment Card are at our sole discretion. For example, certain Visa and Mastercard cards are not eligible to be linked to your Account, including, but not limited to, the following: prepaid cards, corporate cards, purchasing cards, government-administered prepaid cards (including Electronic Benefit (EBT) cards), or healthcare cards (including Health Savings Account (HSA) or Flexible Spending Account (FSA) cards, and insurance prepaid cards). In order to be eligible as a Payment Card, it must be issued by a U.S. bank. In addition, you may not be able to link a debit or credit card to your Account if the card is already linked to certain other third-party card-linked offer programs.
- Further, purchases made with your Payment Card may not be eligible for myGini Cashback if we are unable to obtain certain transaction information from the payment card network associated with your Payment Card. For example, we may be unable to obtain certain transaction information from the payment card network (and you may therefore be unable to receive cash back) for the following transactions made with your Payment Card: (i) purchases that require you to enter your Personal Identification Number (“PIN”) for your Payment Card, (ii) purchases you initiate through identification technology that substitutes for a PIN, (iii) payments made through other payment methods (such as a digital wallet or a third-party payment application, where you may choose your Payment Card as a funding source but you do not present your Payment Card directly to the merchant), (iv) payments of existing balances, balance transfers, cash advances, ATM transactions, convenience checks, payments made for pre-paid and re-loadable cards such as certain gift cards, Visa Buxx and similar cards, payments made for payment instruments that can readily be converted to cash (for example, travelers cheques, money orders, wire transfers, and similar products or services); or (v) transactions that are not processed or submitted through the payment card network.
- Earning myGini Cashback.
- Subject to these Cardholder Terms, we will provide myGini Cashback to you when you engage in a Qualified Purchase with your Payment Card or perform other qualifying actions identified by us. While merchants set the terms and conditions of each Offer in their sole discretion, myGini, in its sole discretion, establishes the terms and conditions for each Qualified Purchase or action and determines whether you have satisfied such terms and conditions to receive myGini Cashback. Such terms and conditions are set forth in the Application and may be updated, modified, suspended, or cancelled by myGini at any time in its sole discretion. At any time and in myGini’s sole discretion, myGini may: (i) determine whether or not you are eligible to receive myGini Cashback in relation to an Offer; (ii) determine whether or not you have earned myGini Cashback; or (iii) adjust your myGini Cashback total.
- Your registered Payment Card will be charged the full purchase price at the time of purchase and myGini Cashback will not be included in your receipt from the merchant. Your myGini Cashback will generally be reflected on your designated Payment Card statement in the following month. In some circumstances, you may choose to receive myGini Cashback to a bank account or stored value account owned by you. You must comply with all Offer requirements and these Cardholder Terms to receive the myGini Cashback.
- Without limiting any of the other terms of these Cardholder Terms, if you return, charge back, cancel, dispute, or otherwise request a refund for a Qualified Purchase for which you have already received myGini Cashback, or if we otherwise awarded myGini Cashback to you in error (e.g., we later determine that you did not comply with the terms and conditions of a Qualified Purchase), we may offset the amount of myGini Cashback already credited to your Payment Card account from the amount of myGini Cashback you would otherwise receive for future qualifying actions.
- You are responsible for making sure the myGini Cashback balance reflected in your Account and your Payment Card statement or other account statement are correct. If you believe that your Account, your Payment Card statement or other account statement does not accurately reflect myGini Cashback that you are eligible to receive, please contact us at firstname.lastname@example.org.
- Receiving Cashback.
- myGini may set required minimum amounts to be accumulated before which your Payment Card account or other bank account or stored value account will not be credited. Once you have accumulated the required minimum amount of myGini Cashback in your Account (as posted, and subject to change), myGini will automatically send a credit to one of your linked Payment Cards in your Account. In certain cases, we may send you your myGini Cashback available to you via other payment methods, such as ACH, PayPal, Zelle, Venmo and other third-party payment services. Available payment methods will be visible to you in the Application. In such cases, your myGini Cashback will be sent as a credit to your designated bank account or stored value account. MyGini will also display within the Application the minimum amounts required to receive credit for myGini Cashback at any given time. These minimum amounts are subject to change. If you elect to close your MyGini Account and you have accumulated myGini Cashback that has not yet been credited to your Payment Card or other designated account that meets or exceeds the minimum myGini Cashback threshold, your Payment Card account or other designated account will be credited after you close your Account. If your Account is terminated by MyGini, or if at the time of closing you have less than the minimum myGini Cashback threshold in your Account, any rights you have to the myGini Cashback in your Account will terminate and you will no longer be eligible to receive such myGini Cashback.
- By making a Qualified Transaction or engaging in other qualifying action identified by myGini, you authorize us to electronically credit your Payment Card or other bank account or stored value account you have provided for the applicable myGini Cashback amount. This authorization will remain in full force and effect until the termination of your Account or until you otherwise notify us by emailing us at email@example.com.
- You are solely responsible for verifying the accuracy and completeness of any credits to your Payment Card, bank account or stored value account performed by us hereunder. You must notify us of any errors within 15 days of such information being made available to you. If you do not notify us of any such errors within such 15 days, you will forfeit the right to contest a transaction, except to the extent such forfeiture is prohibited by applicable law.
- Taxes. All amounts paid to you hereunder are exclusive of any applicable withholding, sales, use, excise, value added, or other taxes. You acknowledge and agree that you are responsible for determining, paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Application. We are not responsible for determining whether you owe taxes in connection with your access to or use of the Application or for collecting, reporting, or remitting taxes arising from your access to or use of the Application, except for our own income taxes. You agree to promptly and fully reimburse and indemnify us for any taxes, penalties, and interest assessed by any taxing authority regarding amounts owed by you in connection with these Cardholder Terms.
- Payment Terms. By providing your Payment Card, bank account, or stored value account information, to us, you represent, warrant, and covenant that: (a) you are legally authorized to provide such information to us; (b) you are legally authorized to perform payments from, and accept payments to, the Payment Card, bank account or stored value account, as applicable; and (c) such action does not violate the terms and conditions applicable to your use of such Payment Card, bank account or stored value account or applicable law.
- Modification of the Cardholder Terms. We reserve the right, at our discretion, to change the Cardholder Terms on a going forward basis at any time. Please check the Cardholder Terms periodically for changes. Your continued use of the Application after the changes become effective constitutes your binding acceptance of such changes. In the event that a change to the Cardholder Terms materially modifies your rights or obligations, we will make an effort to notify you of the change, such as by sending you an email to the address we have on file for you, or presenting a pop-up window or other notification to you through the Application when you log in, and we may require that you accept the modified Cardholder Terms in order to continue to use the Application. Immaterial modifications are effective upon publication, and material changes will be effective upon the earlier of (a) continued use of the Application with actual knowledge of the modification, or (b) thirty (30) days following the change. For the avoidance of doubt, disputes arising hereunder will be resolved in accordance with the Cardholder Terms in effect at the time the dispute arose.
- Location Data. Some features of the Application enable us to tailor your experience on the Application based on your location. If you decline to provide location information, or in our judgment, we cannot verify your location, you may be unable to utilize some or all features of the Application.
- Consent to Electronic Communications
- Agreement to Receive Electronic Communications. By using the Application, you agree and consent to receive electronically all records, notices, documents, disclosures, agreements or other communications (collectively, “Communications”) that we provide in connection with your use of the Application. Your consent to Communications electronically will remain in effect until you withdraw it. We will provide these Communications to you by posting them in the Application and/or by emailing them to you at the primary email address associated with your Account.
- Hardware and Software Requirements. In order to access and retain electronic Communications, you will need the following computer hardware and software:
- a computer with an Internet connection;
- a current web browser that includes 128-bit encryption (e.g. Internet Explorer version 6.0 and above, Firefox version 2.0 and above, Chrome version 3.0 and above, or Safari 3.0 and above) with cookies enabled;
- Adobe Acrobat Reader version 8.0 and above to open documents in .pdf format;
- a valid email address (your primary email address on file with myGini); and
- sufficient storage space to save past Communications or an installed printer to print them.
- Changes to Hardware and Software Requirements. We will notify you if there are any material changes to the hardware or software needed to receive electronic Communications from myGini. By giving your consent you are confirming that you have access to the necessary equipment and are able to receive, open, and print or download a copy of any Communications for your records. You may print or save a copy of these Communications for your records as they may not be accessible online at a later date.
- Withdrawal of Consent. You may withdraw your consent to receive Communications electronically by writing to us at “Attn: Legal, 402 Jackson Street, Floor 2, San Francisco, CA 94111”, or by emailing us at firstname.lastname@example.org. If you fail to provide or if you withdraw your consent to receive Communications electronically, myGini reserves the right to refuse to open an Account for you, restrict or deactivate your Account, close your Account, or charge you additional fees for paper copies.
- Paper Copies of Electronic Communications. If, after you consent to receive Communications electronically, you would like a paper copy of a Communication we previously sent you, you may request a copy within 180 days of the date we provided the Communication to you by contacting us as described above and providing your name, street address and paying the relevant fee for copies . We will send your paper copy to you by U.S. mail. In order for us to send you paper copies, you must have a current street address on file in your myGini Account. If you request paper copies, you understand and agree that myGini may charge you a Records Request Fee for each Communication.
- Updating your Contact Information. It is your responsibility to keep your primary email address up to date so that myGini can communicate with you electronically. You understand and agree that if myGini sends you an electronic Communication but you do not receive it because your primary email address on file is incorrect, out of date, blocked by your service provider, or you are otherwise unable to receive electronic Communications, myGini will be deemed to have provided the Communication to you. You can update your primary email address at any time by logging into your Account.
- Text Messages. You consent to receive SMS messages (including text messages), and telephone calls (including prerecorded and artificial voice and autodialed) from us, our agents, representatives, affiliates or anyone calling on our behalf at the specific number(s) you have provided to us, with service-related information about the Application or your Account. You certify, warrant, and represent that the telephone number you have provided to us is your contact number and not someone else’s. You represent that you are permitted to receive calls and text messages at the telephone number you have provided to us. You agree to promptly alert us whenever you stop using a telephone number. myGini, our agents, representatives, affiliates, and anyone calling on our behalf may use such means of communication described in this section even if you will incur costs to receive such phone messages, text messages, e-mails or other means. Standard message and data rates may apply to all SMS messages (including text messages). We may modify or terminate our SMS messaging services from time to time, for any reason, and without notice, including the right to terminate SMS messaging with or without notice, without liability to you.
- Push Notifications. By agreeing to these Cardholder Terms, you agree to receive push notifications from us. You can opt out of receiving push notifications through your device settings. Please note that opting out of receiving push notifications may impact your use of the Application .
- Third Party Websites. The Application may contain links to third-party applications or websites. The linked sites are not under our control, and we are not responsible for the contents of any linked site. We provide these links as a convenience only, and a link does not imply our endorsement of, sponsorship of, or affiliation with the linked site. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any of these third parties services, applications or websites.
- Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Application (“Feedback”), then you hereby grant myGini an unrestricted, perpetual, irrevocable, non-exclusive, fully paid, royalty free right to exploit the Feedback in any manner and for any purpose, including to improve the Application, and to create other products and services.
- Prohibited Conduct. BY USING THE APPLICATION YOU AGREE NOT TO:
- access or use any part of the Application for any non-personal, commercial purpose;
- receive or attempt to receive myGini Cashback on Offers for products that have not actually been purchased and retained, or for products that have been purchased but returned to a store or online vendor, following purchase;
- access or use the Application for any illegal purpose;
- attempt to gain unauthorized access to any other user’s Account;
- modify or attempt to modify or in any way tamper with, circumvent, disable, damage or otherwise interfere with the Application;
- access or use the Application in a way that may infringe upon the intellectual property or other rights of any third party, including, without limitation, trademark, copyright, privacy, or publicity rights; or
- reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Application or any part thereof (including any App), except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
- modify, adapt, translate or create derivative works based upon the Application or any part thereof, except and only to the extent the foregoing restriction is expressly prohibited by applicable law; or
- intentionally interfere with or damage operation of the Application or any user’s enjoyment of it, by any means, including uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code.
- interfere with or disrupt networks connected to the Application or violate the regulations, policies, or procedures of such networks.
- Term. These Cardholder Terms are effective beginning when you accept the Cardholder Terms or first download, install, access, or use the Application, and ending when terminated as described in Section 22.
- Termination of Use; Discontinuation and Modification of the Application. If you engage in prohibited conduct or otherwise violate any of the the Cardholder Terms, your permission to use the Application will automatically terminate and any rights you have to the myGini Cashback in your Account will terminate and you will no longer be eligible to receive a distribution of such myGini Cashback. You also agree that we may, at any time and without notice to you, suspend or revoke your access to and use of the Application, and any Account you may have in connection with the Application including: (i) where we determine in our sole discretion that such action is reasonable in order to comply with legal requirements or to protect the rights or interests of myGini or any third party; or (ii) in connection with any general discontinuation of the Application. We also reserve the right to modify the Application at any time without notice to you. We will have no liability whatsoever on account of any change to the Application or any suspension or revocation of your access to or use of the Application. You may terminate your Account at any time by de-linking all your linked cards and deleting the myGini Application from your mobile device. Please note that it may take myGini up to ten (10) business days to process termination of your Account.
- Effect of Termination. Upon termination of these Cardholder Terms: (a) your license rights will terminate and you must immediately cease use of the Application; and (b) you will no longer be authorized to access your Account or the Application. Sections 22 through 30 and any other Section which, by its nature or express terms should survive will survive.
- Ownership; Proprietary Rights. The Application is owned and operated by myGini. The visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), products, software, services, look-and-feel, and all other elements of the Application provided by myGini (the “Materials”) are protected by United States copyright, trade dress, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. All Materials contained in the Application are the property of myGini or its subsidiaries or affiliated companies and/or third-party licensors. All trademarks, service marks, and trade names are proprietary to myGini or its affiliates and/or third-party licensors. Except as expressly authorized by myGini, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials. myGini reserves all rights to the Materials not expressly granted in the Cardholder Terms.
- Indemnification. To the fullest extent permitted by law, you agree to indemnify, defend and hold myGini and all of its successors, parents, subsidiaries, affiliates, officers, directors, stockholders, investors, employees, agents, representatives and attorneys and their respective heirs, successors and assigns (collectively, the “Indemnified Parties”), harmless from and against any and all claims, liabilities, losses, damages, costs and expenses, including, without limitation, reasonable attorneys’ fees, incurred by the Indemnified Parties arising out of or relating to (i) your access to, use of or alleged use of the Application; (ii) the marketing of the Application; (iii) your violation of the T Cardholder erms or any representation, warranty, or agreements referenced herein, or any applicable law or regulation; (iv) your violation of any third party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (v) any disputes or issues between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with our defense of such claim. You shall cooperate as fully as reasonably required in the defense of any such claim. myGini reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you. You agree not to settle any matter without the prior written consent of myGini. This indemnification, defense and hold harmless obligation will survive these Cardholder Terms and the termination of your use of the Application.
- Disclaimers; No Warranties. THE APPLICATION IS PROVIDED “AS IS” AND “AS AVAILABLE”. EXCEPT AS REQUIRED BY LAW, MYGINI DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS REGARDING THE APPLICATION OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, QUIET ENJOYMENT, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, FREEDOM FROM VIRUSES OR OTHER HARMFUL CODE, FITNESS FOR ANY PARTICULAR PURPOSE, OR ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE. SPECIFICALLY, BUT WITHOUT LIMITATION, MYGINI DOES NOT WARRANT THAT: (1) THE INFORMATION PROVIDED IN, OR THAT MAY BE OBTAINED FROM USE OF, THE APPLICATION WILL MEET YOUR REQUIREMENTS OR BE CORRECT, ACCURATE, UP-TO-DATE, OR RELIABLE; (2) THE APPLICATION BE UNINTERRUPTED OR ERROR-FREE. YOU ASSUME ALL RISK FOR ALL DAMAGES, INCLUDING DAMAGE TO YOUR COMPUTER SYSTEM, MOBILE DEVICE OR LOSS OF DATA THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE. YOU HEREBY ACKNOWLEDGE THAT USE OF THE APPLICATION IS AT YOUR SOLE RISK. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 WHICH PROVIDES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, AN THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
- Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER THE INDEMNIFIED PARTIES NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OPERATING OR DELIVERING THE APPLICATION WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT THE INDEMNIFIED PARTIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES WHERE SUCH DAMAGES RESULT FROM: (i) YOUR ACCESS TO OR USE OF, OR INABILITY TO ACCESS OR USE, THE APPLICATION; (ii) DELAYS OR DISRUPTIONS IN OUR SYSTEMS OPERATED BY US OR ON OUR BEHALF; (iii) VIRUSES OR OTHER MALICIOUS SOFTWARE OBTAINED BY ACCESSING THE APPLICATION; (iv) THE ACTIONS OR INACTIONS OF THIRD PARTIES; (v) THE MARKETING OF THE APPLICATION; OR (vi) ANY PURCHASE OF A THIRD PARTY PRODUCT OR SERVICE BASED ON INFORMATION CONTAINED IN THE APPLICATION, INCLUDING THE AVAILABILITY OF AN OFFER. YOU SPECIFICALLY ACKNOWLEDGE THAT THE INDEMNIFIED PARTIES ARE NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. FURTHER, THE INDEMNIFIED PARTIES WILL HAVE NO LIABILITY TO YOU OR TO ANY THIRD PARTY FOR ANY THIRD-PARTY CONTENT UPLOADED ONTO OR DOWNLOADED THROUGH THE APPLICATION.
EXCEPT AS PROVIDED IN SECTION 28(j). AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE INDEMNIFIED PARTIES TO YOU FOR ANY AND ALL CLAIMS ARISING FROM OR RELATED TO THE USE OF THE APPLICATION IS LIMITED TO $100.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
EACH PROVISION OF THESE CARDHOLDER TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE CARDHOLDER TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE CARDHOLDER TERMS. THE LIMITATIONS IN THIS SECTION 27 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- Dispute Resolution.
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH US AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
You agree that any dispute between you and myGini arising out of or relating to these Cardholder Terms or the Application (collectively, “Disputes”) will be governed by the arbitration procedure outlined below.
- Governing Law. Except as otherwise required by applicable law, the Cardholder Terms and the resolution of any Disputes shall be governed by and construed in accordance with the laws of the State of California without regard to its conflict of laws principles.
- Informal Dispute Resolution. We want to address your concerns without needing a formal legal case. Before filing a claim against myGini, you agree to try to resolve the Dispute informally by contacting email@example.com. We will try to resolve the Dispute informally by contacting you through email. If a dispute is not resolved within 15 days after submission, you or myGini may bring a formal proceeding.
- We Both Agree To Arbitrate. You and myGini agree to resolve any Disputes through final and binding arbitration, except as set forth under Exceptions to Agreement to Arbitrate below.
- Opt-out of Agreement to Arbitrate. You can decline this agreement to arbitrate by contacting firstname.lastname@example.org within 30 days of first accepting these Cardholder Terms and stating that you (include your first and last name) decline this arbitration agreement.
- Arbitration Procedures. The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes then in effect, except as modified by this “Dispute Resolution by Binding Arbitration” section. In the case of a conflict between the rules and policies of the administrator and this “Dispute Resolution by Binding Arbitration” section, this “Dispute Resolution by Binding Arbitration” section shall control, subject to countervailing law, unless all parties to the arbitration consent to have the rules and policies of the administrator apply. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this “Dispute Resolution by Binding Arbitration” section. Arbitration will be handled by a sole arbitrator in accordance with those rules. The arbitration will be held in the United States county where you live or work, or any other location we agree to.
- Exceptions to Agreement to Arbitrate. Either you or myGini may assert claims, if they qualify, in small claims court in San Francisco, California, or any United States county where you live or work. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Application, or infringement of intellectual property rights (for example, trademark, trade secret, copyright or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above.
- Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a general Demand for Arbitration and a separate Affidavit For Waiver of Fees for qualifying California residents.) The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules
- Arbitration Location and Procedure. Unless you and myGini otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and myGini submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
- Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim.
- Fees. If we elect arbitration, we shall pay all the administrator’s filing costs and administrative fees (other than hearing fees). If you elect arbitration, filing costs and administrative fees (other than hearing fees) shall be paid in accordance with the AAA Rules, or in accordance with countervailing law if contrary to the AAA Rules. However, if the value of the relief sought is $10,000 or less, at your request, we will pay all filing, administration, and arbitrator fees associated with the arbitration, unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). In such circumstances, fees will be determined in accordance with the AAA Rules. Each party shall bear the expense of its own attorneys’ fees, except as otherwise provided by law. If a statute gives you the right to recover any of these fees, these statutory rights shall apply in the arbitration notwithstanding anything to the contrary herein.
- NO CLASS ACTIONS. NO ARBITRATION SHALL PROCEED ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS EVEN IF THE DISPUTE OR DISPUTES THAT ARE THE SUBJECT OF THE ARBITRATION HAD PREVIOUSLY BEEN ASSERTED (OR COULD HAVE BEEN ASSERTED) IN A COURT AS CLASS REPRESENTATIVE, OR COLLECTIVE ACTIONS IN A COURT. Unless consented to in writing by all parties to the arbitration, no party to the arbitration may join, consolidate, or otherwise bring claims for or on behalf of two or more individuals or unrelated corporate entities in the same arbitration unless those persons are parties to a single transaction. Unless consented to in writing by all parties to the arbitration, an award in arbitration shall determine the rights and obligations of such parties only, and only with respect to the claims in arbitration, and shall not (a) determine the rights, obligations, or interests of anyone other than all parties to the arbitration, or resolve any Dispute of anyone other than any such party; nor (b) make an award for the benefit of, or against, anyone other than any such party. No administrator or arbitrator shall have the power or authority to waive, modify, or fail to enforce this specific paragraph, and any attempt to do so, whether by rule, policy, arbitration decision or otherwise, shall be invalid and unenforceable. If this specific paragraph is held unenforceable in its entirety, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Cardholder Terms.
- Judicial Forum for Disputes. Except as otherwise required by applicable law, in the event that the agreement to arbitrate is found not to apply to you or your claim, you and myGini agree that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts of San Francisco County, California. Both you and myGini consent to venue and personal jurisdiction there. We both agree to waive our right to a jury trial.
- Limitation on Claims. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to these Cardholder Terms or the Application must be filed within one (1) year after such claim or cause of action arose, or else that claim or cause of action will be barred forever.
- Contact Information. If you have any questions regarding myGini, the Application, or the Cardholder Terms please contact myGini at:
402 Jackson Street
San Francisco, CA 94111
Telephone: (415) 234-4464
- Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Application or to receive further information regarding use of the Application.