TERMS & CONDITIONS
Updated Apr 30, 2017
This Merchant User License Agreement (the “Agreement”) dated as of the date of acceptance by means of a click-through, is made by and among Loyalty Engine Inc., an Alberta Corporation operating under the name “Giftab” (“Giftab”) and the entity designated by the registration data provided herewith (“Licensee”) and applies to Licensee’s use of services provided by Giftab (the “Giftab Service”).
READ THIS LICENSE CAREFULLY BEFORE USING THE GIFTAB SERVICE. BY USING THE GIFTAB SERVICE, LICENSEE ACCEPTS AND AGREES TO BECOME BOUND BY THE TERMS OF THIS LICENSE.
GIFTAB RESERVES THE RIGHT TO MODIFY THE TERMS OF THIS AGREEMENT BY PROVIDING NOTICE OF CHANGES ON THE GIFTAB.IO WEBSITE. LICENSEE AGREES TO PERIODICALLY INSPECT THE GIFTAB.IO WEBSITE TO STAY INFORMED ABOUT SUCH CHANGES. LICENSEE AGREES THAT LICENSEE’S CONTINUED USE OF THE GIFTAB SERVICE AFTER SUCH CHANGES ARE ANNOUNCED CONSTITUTES ACCEPTANCE OF SUCH CHANGES.
Giftab shall retain the ownership of the Giftab Service, the Giftab.io web site, its software and the documentation provided therewith (referred to as a single entity, or as components, as “the Licensed Software”) which is licensed on a non-exclusive basis for use under the following conditions.
Subject to the terms hereunder, Giftab hereby grants to Licensee a limited, non-exclusive, non-transferrable, revocable license, without the right to sub-license, to operate an account on the Giftab.io website and related applications solely for the benefit of Licensee and not for any third party, until the termination of this Agreement. Any rights not expressly granted hereunder are reserved. There are no implied rights of any kind. To the extent that the Licensed Software includes intellectual property rights of any third party (“Third Party Rights”), the license granted is to the extent that Giftab is able to license such Third Party Rights.
Licensee shall not (a) make copies of or further distribute the Licensed Software, including copying onto any other medium, (b) distribute, rent, sublicense, lease, resell, or assign the Licensed Software, (c) alter, modify or adapt the Giftab Service, including but not limited to, translating, decompiling, disassembling, reverse engineering, or creating derivative works, (d) export the Licensed Software without the appropriate foreign government licenses and without Giftab’s prior written approval, (e) resell, rent or otherwise provide access to the Giftab service to a third party or (f) take any action in an attempt to obtain any other Giftab user’s data, cause malfunction, crash, tamper with or otherwise impair the Giftab.io website and related applications, and their services. Any rights not expressly granted hereunder are reserved by Giftab.
No rights in the Giftab Services are granted, whether expressly or by implication, including, without limitation, any rights in any patents, copyrights, trademarks or trade secrets embodied therein, except in connection with the permitted uses expressly described herein.
Licensee agrees to timely pay the monthly fee set out in the order form, otherwise agreed by written agreement. Licensee agrees to the Billing Policy, incorporated herein, and located here. Failure to comply with or otherwise pay fees due is a material breach of this agreement.
End Customer Personal Information
NOTHING IN THIS AGREEMENT EXCLUDES OR LIMITS ANY LIABILITY TO THE EXTENT THAT THE SAME MAY NOT BE EXCLUDED OR LIMITED UNDER GOVERNING LAW.
LICENSEE AGREES THAT THE GIFTAB SERVICE IS PROVIDED “AS IS.” WITHOUT ANY WARRANTY EXPRESS OR IMPLIED AND WHETHER AS TO MERCHANTABILITY, FITNESS FOR PURPOSE OR INFRINGEMENT. NO WARRANTY OR REPRESENTATION IS GIVEN, AND/OR ANY LIABILITY IS ACCEPTED, BY GIFTAB IN RELATION TO THIRD PARTY RIGHTS. ANY USE OF THE GUFTAB SERVICE IS AT LICENSEE’S SOLE AND ABSOLUTE RISK. IN NO EVENT, WILL GIFTAB OR ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS OR CONSULTANTS (“GIFTAB PARTIES”) BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE GIFTAB SERVICE, ERRORS IN OR LOSS OF ANY DATA. SPECIFICALLY, GIFTAB IS NOT RESPONSIBLE FOR ANY COSTS INCLUDING, BUT NOT LIMITED TO, THOSE INCURRED AS A RESULT OF LOST PROFITS OR REVENUE, LOSS OF USE OF THE LICENSED SOFTWARE OR GIFTAB SERVICE, LOSS OF DATA, THE COSTS OF RECOVERING DATA, ANY LOSSES INCURRED ARISING IN ANY WAY FROM USE OF THE OFFLINE CREDIT PAYMENTS FEATURE, ANY CLAIMS BY THIRD PARTIES, OR FOR ANY OTHER SIMILAR COSTS, LOSSES, OR DAMAGES YOU MIGHT INCUR. GIFTAB MAKES NO WARRANTY OF ANY KIND AS TO THE SUITABILITY OR ADEQUACY OF THE LICENSED SOFTWARE OR GIFTAB SERVICE FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. GIVEN THAT LICENSEE IS IN A BETTER POSITION THAN GIFTAB TO FORESEE AND EVALUATE ANY POTENTIAL DAMAGE OR LOSS WHICH LICENSEE MAY SUFFER IN CONNECTION WITH THE USE OF THE LICENSED SOFTWARE AND/OR THE GIFTAB SERVICE AND THAT GIFTAB CANNOT ADEQUATELY INSURE ITS POTENTIAL LIABILITY TO LICENSEE, LICENSEE ACKNOWLEDGES AND AGREES THAT THE EXCLUSIONS AND LIMITATIONS CONTAINED HEREIN ARE REASONABLE. TO THE EXTENT THAT THE FOREGOING LIMITATION OF LIABILITY IS DETERMINED BY A COURT WITH JURISDICTION TO BE UNREASONABLE, GIFTAB’S AGGREGATE LIABILITY SHALL NOT EXCEED $99. LICENSEE SHALL ACT AT ALL TIMES TO MITIGATE ANY LIABILITY.
LICENSEE ACKNOWLEDGES AND AGREES THAT SHARING OF ITS ACCOUNT INFORMATION, LOGIN INFORMATION OR PASSWORDS SHALL BE AT ITS SOLE AND ABSOLUTE RISK AND THAT GIFTAB SHALL NOT BE LIABLE FOR ANY DAMAGE ARISING AS A RESULT OF SUCH SHARING.
Some countries do not allow the exclusion or limitation of implied warranties or limitation of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you.
Licensee may terminate this license at any time unless you have agreed to a longer purchase commitment period. Giftab, in its sole discretion, has the right to suspend or terminate this license and your account and refuse any and all current or future use of the Giftab Services for any reason at any time. Licensee’s duties to (i) pay amounts due and payable, (ii) refrain from any kind of reverse engineering or other act in violation of this agreement or (iii) indemnify Giftab and the Giftab Parties shall survive termination of this Agreement. Upon termination Licensee will destroy all copies of the Licensed Software and documentation onto which the Licensed Software or documentation has been installed. Upon termination Giftab shall terminate the Licensee’s access to their Giftab account, the account itself and the data residing therein. LICENSEE MUST EXPORT THEIR ACCOUNT DATA PRIOR TO TERMINATION OF THE GIFTAB SERVICE. GIFTAB SHALL NOT BE RESPONSIBLE FOR LICENSEE ACCOUNT DATA AFTER TERMINATION. In addition, Giftab reserves the right and Licensee acknowledges such right for Giftab to terminate service of Licensee’s account on 30 days’ notice if Giftab determines in its sole discretion that it is not capable of fully meeting the apparent requirements of Licensee.
Licensee agrees that the Licensed Software and the operation of the Giftab Services and its processes are the confidential information of Giftab and agrees not to disclose such software or such operation and processes to any third party. Licensee agrees that breach of this duty of confidentiality shall cause irreparable harm for which monetary damages would be difficult to quantify or insufficient and therefore Giftab shall be entitled to immediate injunctive relief in the event of breach without an obligation of posting bond.
Credit Card Processing Terms And Conditions
If Licensee has selected that credit card transaction processing will be provided automatically with the Giftab Service, Licensee agrees to the following contractual provisions:
Licensee hereby authorizes Giftab to bind Licensee to the end-user license agreement proffered by its payment gateway provider(s) for the purpose of establishing Licensee as a customer of its payment gateway provider(s).
Licensee shall be responsible for the operation and connection of their point of sale equipment with the payment gateway provider(s)’s systems and services.
Licensee is liable for all fees charged to Giftab by its payment gateway provider(s) for Licensee’s use of the payment gateway provider(s)’s systems and services.
Licensee shall: (i) make reasonable efforts to secure any credit card transaction data residing on the equipment owned, controlled or operated by Licensee from intrusion or unauthorized access, (ii) comply with all state and federal laws governing the disclosure and use of retail customer information, (iii) not use, disclose, store, sell or disseminate any credit/debit card-holder information obtained in a credit/debit card transaction processed through Giftab or its payment gateway provider(s), including but not limited to storing private cardholder credit/debit card information such as card numbers, expiration dates and CVV numbers, outside of the payment gateway, except as permitted by the card-holder, (iv) comply with the requirements of any debit/credit card or other payment brand rules, including those related to data security and customer data.
Licensee agrees that neither Giftab nor its payment gateway provider(s) shall be liable for any improperly processed transactions, illicit access to Licensee’s account with its payment gateway provider(s) or any of Licensee’s transaction data or unauthorized disclosure and use of passwords or its payment gateway provider(s)’s account access information.
Licensee agrees to immediately notify Giftab in the event of any security breach of Licensee’s systems or unauthorized access to Licensee’s transaction data.
YOU HEREBY INDEMNIFY AND AGREE TO HOLD GIFTAB HARMLESS FROM ANY CLAIM, (INCLUDING ANY ASSOCIATED DAMAGES, COSTS AND REASONABLE ATTORNEYS FEES INCURRED BY GIFTAB OR ITS AFFILIATES) BROUGHT AGAINST GIFTAB OR ITS AFFILIATES BY ANY THIRD PARTY ARISING FROM OR IN CONNECTION WITH ANY LOSS OR DAMAGE WHOLLY OR PARTIALLY CAUSED BY YOUR USE OF THE OFFLINE CREDIT PAYMENTS FEATURE IN ORDER TO ACCEPT CREDIT CARD TRANSACTIONS WITHOUT AUTHORIZATION WHERE SUCH TRANSACTIONS ARE SUBSEQUENTLY DENIED BY THE TRANSACTION PROCESSOR FOR ANY REASON.
LICENSEE AGREES THAT USE OF THE PAYMENT GATEWAY PROVIDER(S)’S SYSTEMS OR SERVICES IS AT LICENSEE’S SOLE AND ABSOLUTE RISK AND THAT NEITHER GIFTAB, NOR ANY GIFTAB PARTY SHALL BE LIABLE IN ANY WAY OR UNDER ANY THEORY IN THE EVENT OF ANY CLAIM, DAMAGE OR EXPENSE INCURRED BY LICENSEE ARISING FROM USE OF THE PAYMENT GATEWAY PROVIDER(S)’S SYSTEMS OR SERVICES. LICENSEE ACKNOWLEDGES THAT GIFTAB IS NOT RESPONSIBLE FOR ITS PAYMENT GATEWAY PROVIDER(S)’S SYSTEMS AND THAT NO WARRANTY FOR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, EXPRESS OR IMPLIED, ARISES ON THE PART OF GIFTAB. LICENSEE AGREES THAT LICENSEE’S SOLE RECOURSE IN THE EVENT OF ANY CLAIM IS AGAINST ITS PAYMENT GATEWAY PROVIDER(S) AND LICENSEE HEREBY IRREVOCABLY RELEASES AND WAIVES ANY CLAIM IT HAS OR MAY HAVE, WHETHER OR NOT INCHOATE, AGAINST GIFTAB AND THE GIFTAB PARTIES ARISING FROM USE OF ITS PAYMENT GATEWAY PROVIDER(S)’S SYSTEMS.
Giftab EMV Liability Promise
• Merchant Qualification
All Giftab merchants that subscribe for Giftab point of sale services:
Subscribed for Giftab point of sale services before January 24, 2017, use Giftab Payments for processing and have ordered an EMV-capable iCMP or iPP320 credit card reader from Giftab; OR
Do not use Giftab Payments for processing and have ordered an EMV-capable iCMP or iPP320 credit card reader from Giftab;
Are customers in good standing at the time of presentation to Giftab of the EMV related liability shift chargeback in question.
• Duration of the Liability Shift Protection Offer
Giftab’s EMV related liability shift protection is in place for eligible EMV related charged back transactions that occur on or after October 1, 2015 and are presented to Giftab before June 30, 2017 (which date may be extended by Giftab in Giftab’s sole discretion) for Giftab merchants that meet Giftab’s Merchant Qualification.
• Types of Transactions that May Qualify
EMV related chargeback transactions that a Giftab merchant verifies were processed using a chip enabled card on an EMV-capable iCMP or iPP320 credit card reader provided by Giftab that contained a counterfeit magstripe that was swiped to process the transaction, and a signature was captured by the merchant in connection with processing the transaction.
• Types of Transactions that Do Not Qualify
Other non-EMV related liability shift chargeback transactions, including those charged by a Giftab merchant’s customers and charged back in connection with a failure to perform services, delivery of defective products, credit cards that have been stolen, card-not–present transactions or for lack of authorization, do not qualify.
• Process Requirements to Request Protection
A merchant must contest their liability for the EMV related chargeback transaction with their processor within the time period and on the terms required by their processor and in accordance with the requirements set by their processor. If the merchant does not prevail on the appeal and the processor concludes that the merchant should remain liable for the chargeback solely due to the EMV related liability shift, and the merchant believes that the chargeback may qualify for Giftab’s EMV Liability Shift Protection, then the merchant must submit the notice that it received from its processor and all materials related to the appeal to Giftab. Giftab will notify the merchant if additional information is required. If Giftab determines that the merchant’s chargeback is covered by Giftab’s EMV Liability Shift Protection, Giftab will refund the amount of the EMV related transaction that was charged back.
• Covered Limitation Amounts
A maximum total of up to $500 of Giftab approved EMV related chargebacks for each Giftab merchant will be eligible for refund by Giftab. In no event will any Giftab merchant be eligible for more than a total of $500 for all EMV related chargebacks incurred by any Giftab merchant pursuant to Giftab’s EMV Liability Promise.
Giftab reserves the right to amend these Terms and Conditions at any time in Giftab’s sole discretion.
The Licensee represents and warrants that it has the due right and power to enter into this Agreement, entering into this Agreement will not cause the breach of any agreement Licensee has with a third party and that all of the registration information provided to Giftab is accurate in all respects.
Choice of Law and Forum
This Agreement shall be construed under the laws of the Province of Alberta, Canada. as applied to contracts performed entirely within the state. Any dispute arising under this Agreement shall be exclusively heard in the provincial or federal courts residing in Calgary, AB Canada. Each party hereto consents to the jurisdiction of such courts with regard to matters arising in connection with this Agreement and waives any claim it has that such a forum is inconvenient.