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American Express® Gift Cardholder Agreement

Important Notice of Contractual Changes
We are notifying you of important changes to the American Express Gift Card Cardholder Agreement which are being provided to you via website posting, which you have agreed is the designated information system for this notice.

The Changes are effective May 31 2011. It is important for you to read this notice and retain a copy for your records.

Highlights of Changes

For Available Balance & Customer Service visit us online at http://www.americanexpress.ca/gift
or call 1-800-505-6849.
Avoid Card Declines. Always Know Your Balance and Tell Cashier. Record your Card number and store in a safe place.

This agreement governs your use of the American Express® Gift Card (“Agreement”). By purchasing and/or using the American Express Gift Card (“Gift Card”), you are agreeing to the terms and conditions of this Agreement. The terms “you” and “your” refer to the person who purchased the Gift Card and/or the person who uses the Gift Card. The terms “we,” “our” and “us” refer to Amex Bank of Canada.

ABOUT YOUR GIFT CARD:
The Gift Card is a prepaid payment device that has a set dollar value that is either printed on the front of the card or, selected by the purchaser at the time of purchase. The Gift Card is not an American Express credit or charge card. To find out the value of the funds available for use on your Gift Card at any given time (“Available Balance”) or to request information about previous transactions, visit www.americanexpress.ca/gift or call toll free within North America 1-800-505-6849 (“Customer Service Number”). Neither your Gift Card nor your Available Balance is insured by the Canadian Deposit Insurance Corporation.

Gift Cards can be used for purchases up to the Available Balance at merchants in Canada and the United States that accept American Express Cards, including mail order and online establishments (each a "Merchant"). Restrictions may apply, for example some Gift Cards are only accepted at certain American Express merchants or at American Express merchants in a particular location, such as a mall. We will tell you of any restrictions on where you may use your Gift Card. The Gift Card cannot be used for recurring billing, such as utilities and subscriptions, at casinos, for cash or cash equivalents or for transactions requiring a preauthorization for less than the full value of the transaction (such as some car rental and cruise line transactions), or for any other transactions, Merchants and/or Merchant industries that we may determine.

HOW TO USE YOUR GIFT CARD:
Before using the Gift Card: 1. Sign the back of the Gift Card where indicated. 2. Write down the Gift Card number and Customer Service Number (1‑800‑505‑6849) on a separate piece of paper as you will need this information to assist with replacing your Gift Card if it is lost or stolen. We retain the right to require a receipt in order to issue a refund or replacement. You may experience a delay in activation and use of the Gift Card for up to four (4) hours after purchase.

Available Balance: As you use your Gift Card, the Available Balance will be reduced by the full amount of each purchase, including taxes. Once the Available Balance is depleted, your Gift Card is no longer valid and you agree not to use the Gift Card. It is your responsibility to keep track of your Available Balance as Merchants do not know your Available Balance. You may obtain information about the Available Balance on your Gift Card at any time by calling the Customer Service Number (1‑800‑505‑6849) or visiting www.americanexpress.ca/gift. Your Available Balance will reflect all authorization requests that have been submitted by Merchants.

Transactions In U.S. Dollars: If you use your Gift Card for U.S. dollar transactions, the transaction will be converted into Canadian dollars. The conversion to reflect the final amount of the transaction will take place on the date the purchase or credit is processed by us, which may not be the same date on which we authorize the transaction as it depends on when the purchase or credit was submitted to us for processing. Unless a specific conversion rate is required by applicable law, you understand and agree that the American Express treasury system will use a conversion rate based on the interbank rate that it selects from customary industry sources on the business prior to the processing date. If a transaction is converted by a third party prior to being submitted to us, any conversions made by those third parties will be at rates selected by them.

Pending Transaction: A pending transaction is a transaction authorized by us but not submitted by the Merchant for processing (“Pending Transaction”). The value of a Pending Transaction will be reflected in the Available Balance until processed. Merchants like gas stations and restaurants obtain pre-authorizations for more than the purchase amount to ensure a sufficient Available Balance. Pre-authorizations will be reflected as Pending Transactions until the final transaction is submitted for processing. A Pending Transaction in U.S. dollars reflects the converted Canadian dollar value on the date it is authorized by us. A Pending Transaction amount may be different from the final amount of the transaction reflected in your Available Balance if the conversion rate on the date we authorize the transaction is different than the conversion rate on the day we process the transaction.

“Valid Thru” Date: The Available Balance does not expire. The “valid thru” date indicated on the Gift Card is required to process transactions at Merchants that need an expiration date. Although the Available Balance does not expire, you must not use the Gift Card after the “valid thru” date. If an Available Balance remains on the Gift Card after the “valid thru” date, call the Customer Service Number (1‑800‑505‑6849) to obtain a free replacement Gift Card at no additional cost or for instructions on how to redeem the Available Balance. We may place a hold on the Available Balance for up to ten business days to ensure all outstanding transactions have posted to our system.

Lost or Stolen Gift Cards: If your Gift Card is lost or stolen, contact us immediately at the Customer Service Number (1-800-505-6849). You will need to provide the Gift Card number and other information we request in order to replace a lost or stolen Gift Card. Subject to our approval if there is an Available Balance remaining on the Gift Card, we will cancel the Gift Card and send you a replacement Gift Card with the Available Balance that was on your Gift Card at the time you notified us that it was lost/stolen. We retain the right to require a receipt in order to issue a refund or replacement. NO REFUNDS OR REPLACEMENTS WILL BE PROVIDED TO COVER AMOUNTS DEBITED FROM YOUR LOST/STOLEN GIFT CARD PRIOR TO THE TIME YOU NOTIFIED US. We reserve the right to decline to issue a replacement Gift Card for lost or stolen Gift Cards.

Use of Gift Card at Merchants: Present the Gift Card to the Merchant at the time of purchase and sign the receipt as requested by the Merchant. Retain the receipt as a record of the transaction. You agree to use the Gift Card only for lawful purposes. You authorize us to deduct the full amount of each purchase (including taxes) from the Available Balance whenever your Gift Card is used to make a purchase. The Gift Card is not transferable once used. You acknowledge that purchases made with the Gift Card are similar to those made with cash. You cannot “stop payment” or lodge a “billing dispute” on such transactions. Any problems or disputes you may have regarding a purchase with your Gift Card should be addressed directly with the Merchant. If you have a question about a transaction that has been posted to your Gift Card, notify us immediately by calling the Customer Service Number, no later than sixty (60) days from the date of the transaction.

Returning Merchandise: The return of merchandise purchased with the Gift Card will be subject to the Merchant’s return policies. If the Merchant agrees to issue a credit to the Gift Card, such funds may not be available for 3 to 7 days. If a credit is processed in U.S. dollars, the terms under “Transactions in U.S. Dollars” will apply.

OTHER IMPORTANT PROVISIONS:
Problems with Purchases: If you have a complaint, problem or dispute with a Merchant including any goods or services purchased with your Gift Card, you agree to settle the dispute directly with the Merchant. If a Merchant fails to honour the Gift Card, please call the Customer Service Number to report the incident.

Changing the Agreement/Notices: We have the right to change this Agreement at any time and will communicate changes by posting them at www.americanexpress.ca/gift which you designate as the information system through which you will receive such information. We will generally communicate changes within 30 days of the effective date, unless changes are required to comply with applicable law or necessary to protect the security of our network or our customers. You agree to accept any changes as a condition of your maintaining or continuing to use the Gift Card, if you do not agree with the changes, you can cancel this Agreement by calling us at the Customer Service Number. We may also suspend, cancel, add or modify any feature or benefit offered in connection with the Gift Card at any time and will post notice of any relevant information at www.americanexpress.ca/gift.You can call the Customer Service Number to request a paper.

Limitation of Our Liability: We are not responsible or liable to you for: any delay or failure of a Merchant to accept a Gift Card; goods or services purchased with your Gift Card; any dispute with a Merchant; any costs, damages or expenses arising out of our failure to carry out our obligations if the failure is caused by a third party, a system or data processing failure or any other act or omission outside of our control; and any loss of profits or incidental, indirect, consequential, punitive or special damages regardless of how they arise.

Assignment and Waiver: We may assign this Agreement to a third party at any time without notice to you. If we reimburse you for a lost or stolen Gift Card, or if we otherwise provide you with a credit or payment in respect to any transaction made with the Gift Card, you are automatically deemed to assign and transfer to us any rights and claims that you have, had or may have against any third party for an amount equal to the amount we have paid to you or credited to your Gift Card. You agree that you will not pursue any claim against, or reimbursement from, such third party for the amount that we paid or credited to your Gift Card, and you will cooperate with us if we pursue the third party for the amount paid or credited. Neither our failure to exercise any of our rights under these Terms and Conditions, nor our delay in enforcing or exercising any of our rights, shall constitute a waiver of such rights.

Notice of Use of Personal Information: In this notice, the words “we,” “our” and “us” mean Amex Bank of Canada, its affiliates (including Amex Canada Inc), and their agents and service providers (acting on their behalf). “Personal information” is any information which relates to an individual and allows that individual to be identified. We collect, disclose, use and process Personal Information to enable us to provide you with refunds or replacements in respect of your Gift Card, to facilitate a resolution to complaints that you have initiated with us about your Gift Card as permitted by or to comply with legal and regulatory requirements and for any other purposes that we may disclose to you. To obtain more information about our policies and procedures in protecting your privacy, you can visit our website at www.americanexpress.ca/privacy or call us at 1‑800‑869‑3016 to request a copy of our Privacy Code.

Complaints Procedure: We process many customer account transactions each day and we try very hard to ensure that your business is handled in an efficient and courteous manner. We have set up procedures for customers that wish to bring a concern to our attention and encourage you to follow the complaint procedures outlined here. Step One: If you should have any complaint, please contact the Canada Gift Card Customer Service Department can be reached at 1‑800‑505‑6849. You may also write to our Canada Gift Card Customer Service Department: Amex Bank of Canada, Canada Gift Card Department: 1211 Denison Street Unit # 18, Markham, Ontario L3R 4B3. Step Two: If the issue remains unresolved, you may contact the internal Amex Bank of Canada Ombudsman. Please see the “Timelines” section below. Toll‑free Telephone: 1‑888‑301‑5312 – Local: 905‑943‑1197 /Toll‑free Fax: 1‑866‑849‑9660 – Local: 905‑940‑7670 / TTY: 1‑866‑529‑1344 – Local: 905‑940‑7701 – Website: www.americanexpress.ca/ombudsman / By writing: Amex Bank of Canada, 101 McNabb Street, Markham, Ontario, L3R 4H8 – Attn: Amex Bank of Canada Ombudsman. Step Three: If the Internal Amex Bank of Canada Ombudsman’s Office cannot resolve the issue, you may contact the Ombudsman for Banking Services and Investments (OBSI) as outlined below. Please note that you may contact OBSI earlier than Step Three as set out in the “Timelines” section below. The Ombudsman for Banking Services and Investments can be reached at: 401 Bay Street, Suite 1505, P.O. Box 5, Toronto, Ontario, M5H 2Y4 / Toll‑free Telephone: 1‑888‑451‑4519 – Local: 416‑287‑2877 / Toll‑free Fax: 1‑888‑422‑2865 – Local: 416‑225‑4722 / Email: ombudsman@obsi.ca / Website: www.obsi.ca.

Timelines: We work hard to ensure that your complaint is acknowledged and investigated in a timely manner. If you have not followed the complaint escalation steps as outlined above, we may forward your concern to the appropriate complaint handling level for investigation and response. Once your complaint reaches Step Three, we will do our best to provide a response detailing your concern and the appropriate resolution or explanation within 90 days. In the event that we are unable to respond within that time period, a notice will be provided to you estimating the completion date of the investigation. We encourage you to use our internal complaints handling process first. However, 90 days after reaching Step Three, you have the right to contact the Ombudsman for Banking Services and investments (OBSI). OBSI may contact the Amex Bank of Canada’s Ombudsman’s Office to facilitate the earliest possible resolution of your complaint.

ARBITRATION:
Definitions: As used in this Arbitration Provision, the words “we,” “our” and “us” mean Amex Bank of Canada and its affiliates (including Amex Canada Inc.); and the term “Claim” means any claim, dispute or controversy between you and us, whether contractual, extra-contractual, tortious or statutory, arising from or relating to your Gift Card, this Agreement, and any other agreement that you have or may have had with us, or the relationships resulting from any of the above agreements (“Agreements”), including the validity, enforceability or scope of this Arbitration Provision or the Agreements. The term “Claim” also includes any claim, dispute or controversy that arises from or relates to (a) the purchase and/or use of the Gift Card, (b) advertisements, promotions or oral or written statements related to the Gift Card, (c) the benefits and services related to your Gift Card.

Initiation of Arbitration Proceeding/Selection of Administrator: Any Claim will only be resolved by arbitration pursuant to this Arbitration Provision and the National Arbitration Rules (the “Rules”) of ADR Institute of Canada, Inc. (the “Administrator”) or its successors or a replacement Administrator. For a copy of the Rules, to file a Claim or for other information about the Administrator, contact them at: ADR Institute, 234 Eglinton Avenue East, Suite 500, Toronto, Ontario M4P 1K5; e-mail: admin@adrcanada.ca. Prior to the initiation of any Claim we have the right to change or replace the Administrator and the Rules at our sole discretion.

Small Claims Court Proceedings and Complaint Procedures: Notwithstanding anything to the contrary in this Arbitration Provision, you will have the right to pursue any Claim without resort to arbitration in a small claims court of your province or territory so long as the Claim is individual, within the jurisdiction of and pending only in that court. You may also access our complaint escalation procedures. Please refer to the “COMPLAINTS PROCEDURE” section of this Agreement. However, please note that our Bank Ombudsman and the Ombudsman for Banking Services and Investments (OBSI) do not deal with complaints that are the subject of arbitration or small claims court proceedings.

Consolidation: All Claims will be arbitrated on an individual basis. The parties agree that individual arbitration provides a more efficient and cost effective method of resolving Claims than court litigation. However, Claims brought by you against us, or by us against you, may be joined, heard one after the other or consolidated, as the arbitrator will direct, in arbitration with Claims brought by or against someone other than you, if agreed to in writing by all other parties. The parties further agree that the arbitrator will have no jurisdiction or authority to consider any Claim brought on a class action or representative party basis.

Arbitration Procedures and Appeal: The arbitrator will take reasonable steps to preserve the privacy of individuals and of business matters. Where the Claim being arbitrated is for an amount less than $10,000.00 there will be no oral discoveries subject to the discretion of the arbitrator to direct otherwise. The arbitrator’s decision will be final and binding. However, where an appeal is not prohibited by statute, any party can appeal the award to an appeal panel administered by the Administrator, which will consider anew any aspect of the initial award objected to by the appealing party. Where the award under appeal is for $10,000.00 or less, the appeal will be to a single appeal arbitrator and where the award under appeal is for more than $10,000.00 the appeal will be to a three-member appeal panel. The appealing party will have thirty (30) days from the date of entry of the written arbitration award to notify the Administrator that it is exercising the right of appeal. The Administrator will then notify the other party that the award has been appealed. The Administrator will appoint the appeal panel that will conduct an arbitration pursuant to the Rules and issue its decision within one hundred and twenty (120) days of the date of the appealing party’s written notice. The decision of the three-member appeal panel will be by majority vote. The appeal decision will be final and binding and there will be no further appeal. The appeal decision will be considered as a final award.

Location of Arbitration/Payment of Fees: Any arbitration hearing that you attend will take place in the province or territory of your residence. We will be responsible for paying the arbitrator and arbitration administration fees (including filing, administrative, hearing and/or other fees) unless the arbitrator or appeal panel determines that your Claim was frivolous or vexatious, in which case, the fees will be in the discretion of the arbitrator or appeal panel. Awards of legal costs will be in the discretion of the arbitrator or appeal panel but in the event you are unsuccessful in the arbitration, or appeal where applicable, you will not be responsible for our legal costs unless the arbitrator or appeal panel determines that your Claim was frivolous or vexatious.

®: Used by Amex Bank of Canada under license from American Express.