The following terms and conditions ("Agreement") applies to the purchase of American Express Business Gift Cards ("Business Gift Cards" or "Cards") by companies, businesses or other corporate entities. The Terms "Amex", "we", "our" or "us" refer to American Express Travel Related Services Company, Inc., on behalf of itself and its licenses (including but not limited to American Express Prepaid Card Management Corporation, the issuer of Business Gift Cards). "You", "your" or Company means the company, business or entity that purchases Business Gift Cards, as defined herein. By either buying and/or accepting the Business Gift Card(s) for delivery, you agree to everything contained in this Agreement. You agree to comply with the purchaser terms and conditions of this Agreement as set forth herein, which may be amended or supplemented by Amex from time to time. The most up to date purchaser terms and conditions may be found online here at www.americanexpress.com/purchaseterms. This Agreement will be effective upon the purchase of Business Gift Cards and will remain in force as may be amended until and unless terminated by Amex upon thirty (30) days prior written notice.
BUSINESS GIFT CARD TERMS & CONDITIONS
The Business Gift Card is a prepaid payment device that, when purchased, 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. You acknowledge and agree that each Business Gift Card and its use are governed by the American Express Business Gift Card Cardholder Agreement ("Cardholder Agreement") distributed with each such Business Gift Card, as amended by us from time to time in accordance therewith.
REFUNDS AND RESALE
ALL SALES OF CARDS FROM US ARE FINAL. COMPANY WILL ENSURE THAT BUSINESS GIFT CARDS WILL NOT BE RESOLD FOR A PURCHASE FEE, These Business Gift Cards shall be distributed by you without a Purchase Fee pursuant to a bona fide award, reward, loyalty, or other promotional program.
Amex will provide customer service for Business Gift Cards, including handling inquiries from recipients of Business Gift Cards ("Recipients"). Recipient refunds will be handled in accordance with the terms and conditions included in all Business Gift Card Packaging. Such packaging shall include a toll-free customer service telephone number at Amex.
PAYMENT/PRICING and EXCHANGE/REPLACEMENTS
Company will pay all order charges prior to the order being delivered. Such order charges shall be remitted to Amex in accordance with Amex's instructions. The pricing effective for Business Gift Card orders are as listed on your order form provided by us, or as listed on the website at the time of your order. ALL SALES ARE FINAL. We reserve the right to change all pricing associated with Business Gift Cards at any time upon notice to you. If the original order included Customized Cards as defined below, the replacement Business Gift Card will be a non-customized classic American Express Business Gift Card design or other non-reloadable prepaid American Express Card, and will not be printed with the Company Mark.
Customer information shall be treated in accordance with the terms in the Cardholder Agreement. Amex will retain all applicable information for purposes of processing orders, handling customer service issues, performing internal analysis and complying with applicable laws and regulations. The retention of such information shall survive termination of this Agreement. Amex will comply with all applicable laws and regulations regarding the use of customer information.
For accepted orders, Business Gift Cards will be delivered directly to Company or to a street address designated by Company during the order process. Amex assumes full liability for shipments until delivered to Company or the address designated by Company unless the address provided by Company was incorrect, the request for delivery was unauthorized, and/or any mailing information received by Amex with regards to the processing of the order was fraudulent or incorrect. ALL SALES ARE FINAL. Upon delivery of the Cards, the full risk of loss shall immediately pass to Company. For deliveries to Company, Company bears full liability for loss from Company's receipt of orders hereunder until delivered to the Recipient. For deliveries to other addresses provided by Company to Amex, Company agrees to inform the addressee that such addressee bears full liability for loss from such addressee's receipt of orders hereunder until delivered to the Recipient. Amex is not liable for losses incurred after the order has been delivered to the address provided to Amex by Company. In addition, Amex reserves the right to refuse to deliver to certain addresses, at its discretion. In the event of suspected fraud, Company and Amex will cooperate in any investigation. Notwithstanding the preceding sentence, you agree that Amex is not responsible for any fraud committed or allegedly committed by any employee, vendor, and/or representative of the Company who in his/her capacity as employee, vendor, or representative has ordered Business Gift Cards for non-company purposes, and notwithstanding anything to the contrary contained herein, Company agrees to indemnify and hold harmless Amex for losses incurred as a result of the employee, vendor or representative's actions.
CHANGES IN LAW
In the event of changes in law which, in Amex's opinion, have a detrimental financial impact to Amex or hinder Amex's ability to reasonably conduct profitable business in a particular state, Amex reserves the right not to ship Business Gift Cards to such state. Amex will provide Company with timely notice of any such decision.
DISTRIBUTING THE BUSINESS GIFT CARDS
You represent that you are (or are acting on behalf of) a company, business or other corporate entity and you agree that the Business Gift Cards purchased shall be used only in connection with bona fide business sponsored programs where individuals are awarded or rewarded with a Business Gift Card for consumer promotions or programs, customer appeasement, customer/employment loyalty, employee giveaways or other similar programs.
In the case that we ship Business Gift Cards directly to Company, you warrant to American Express that you shall distribute all Business Gift Cards purchased hereunder promptly, but in all cases within one year to individuals selected by you, and that each such individual, and not you, shall be the owner of the Business Gift Card distributed to that individual. You shall not advise American Express of the names or addresses of such individuals.
Company also agrees to distribute the Cardholder Agreement associated with the Business Gift Card at the same time that it provides the Business Gift Card to the Recipient ("Cardholder Agreement"). We reserve the right to modify fees (if applicable) that may be associated with the Business Gift Card at any time upon notice to you in accordance with the Cardholder Agreement. Company will indemnify, defend and hold harmless Amex, its parent, subsidiary and affiliated companies from and against any third party claims related to a Recipient's claim that such Recipient never received the Cardholder Agreement.
Neither party shall make reference to the other party or the other party's logo or trademarks without the prior written approval of the other party. In the event Company orders Cards that contain Company's logo and/or trademark ("Customized Cards"), Company shall not submit any name, logo or proprietary mark for printing on Customized Cards to Amex which is not fully owned and controlled by Company. Company agrees that Amex shall review Company's submission and determine if such submission is in compliance with Amex guidelines, rules or policies. Amex has the right to reject any name, logo or proprietary mark submitted for printing on Customized Cards if the submission is not in compliance with Amex guidelines, rules or policies then in effect. Without limiting the generality of the foregoing, Amex may reject: 1) any submission which contains any third party company name, trademark, logo, slogan or brand; 2) any name, trademark, logo, slogan or brand which Amex determines could result in Card acceptance confusion by merchants; or 3) any other name, trademark, logo, slogan or brand which it deems unsuitable for use on Cards.
RELATIONSHIP OF PARTIES
The relationship of the parties hereto is that of independent contracting parties and shall not be deemed to be any other relationship including, without limiting the generality of the foregoing, that of joint ventures, partners, joint employers or principal and agent.
In the event of a material breach by either party in the performance of any of the material terms, covenants, conditions or agreements hereof which breach is not cured within thirty (30) days of receipt of written notice thereof from the non-breaching party, then such non-breaching party may, at its option, then or at any time thereafter and while said default continues, terminate this Agreement and be relieved of all further obligation hereunder, provided that the party in default may defeat such notice by curing the breach complained of within such notice period.
The failure of either party to enforce any provision or condition contained herein at any time shall not be construed as a waiver of that condition or provision nor shall it operate as a forfeiture of any right or future enforcement of such condition or provision.
Each party agrees not to disclose Confidential Information of the other party to any third party other than their respective directors, advisors, parent company, subsidiaries, affiliates, regulators and auditors, as needed, except as and if required by law, resolution or court order nor shall either party use Confidential Information of the other for its own benefit. "Confidential Information" shall include, but not be limited to the specific terms and conditions of this Agreement as well as the past, present and future, plans, ideas, business strategies, marketing programs, activities, software applications, customers and suppliers of the parties and their respective affiliates.
LIMITATION OF LIABILITY
Neither party's cumulative liability to the other party for any claims, liabilities, losses, damages or expenses, direct or indirect, arising out of or related to events under this Agreement shall exceed $100,000. This limitation of liability does not apply to amounts due by Company to Amex for products purchased hereunder. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER, UNDER ANY THEORY, FOR LOST PROFITS, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES. The provisions of this Section shall survive the termination of this Agreement.
Both parties hereto shall indemnify and hold harmless the other from and against all claims, damages, losses and expenses, including reasonable outside attorneys' fees and costs, by reason of any suit, claim, demand, judgment, or cause of action initiated by any person not a party to this Agreement, arising or alleged to have arisen out of the negligent or wrongful performance or failure to perform of their respective obligations under this Agreement; their respective negligent acts, or the negligent, wrongful or criminal acts of their agents, employees or representatives, whether or not related to or arising from this Agreement; or their or their agent's, employee's or representative's respective violations or alleged violations of any federal, state or local laws, regulations or rulings . In addition, Company shall indemnify and hold harmless Amex and its affiliates from and against all claims, damages, losses and expenses, including reasonable outside attorneys' fees and costs, by reason of any third-party action or claim alleging that the use of the Company Mark on the Customized Cards infringes any copyright, trademark or other intellectual property right of a third party. Each party agrees to give prompt notice to the indemnifying party of intention to make a claim under this section and to give the indemnifying party an opportunity to defend such suit, claim, demand, judgment, or cause of action by counsel of its own choice, provided that such counsel are acceptable to the other party.
The parties shall comply with all applicable local, state and federal laws and regulations applicable to the sale of prepaid cards, including but not limited to the USA PATRIOT Act, and other relevant anti-money laundering laws.
ALTERNATIVE DISPUTE RESOLUTION
Procedures: The parties agree that any and all disputes, claims or controversies arising out of or related to this Agreement, including any claims under any statute or regulation ("Disputes"), shall be submitted first to non-binding mediation. If the Disputes are not resolved through mediation, the Disputes then shall be submitted for binding arbitration. Unless the parties agree otherwise, any mediation and/or arbitration shall take place in the State of New York, New York County, and shall be administered by, and pursuant to the Commercial Arbitration Rules and Mediation Procedures of, the American Arbitration Association ("AAA").
Restrictions on Arbitration: Disputes shall be arbitrated on an individual basis. There shall be no right or authority for any Disputes to be arbitrated on a class action basis or in a purported representative capacity on behalf of the general public or other persons or entities similarly situated. The arbitrator's authority to resolve Disputes and to make awards is limited to Disputes between the parties to this Agreement alone, and is subject to the limitations of liability set forth in this Agreement. Furthermore, Disputes brought by either party to this Agreement against the other may not be joined or consolidated in arbitration with Disputes brought by or against any third party, unless agreed to in writing by all parties. No arbitration award or decision on any Disputes shall be given preclusive effect as to issues or claims in any dispute with anyone who is not a party to the arbitration. Should any portion of this Section 2 of this Alternative Dispute Resolution paragraph be stricken from this Agreement or deemed otherwise unenforceable, then this entire Section P shall be stricken from this Agreement.
Enforcement: All offers, promises, conduct and statements, whether written or oral, made in the course of negotiation, mediation or arbitration hereunder, or proceedings by either party to confirm arbitration awards hereunder are confidential, privileged, and inadmissible for any purpose, including, without limitation, impeachment or estoppels, in any other litigation or proceeding involving any of the parties, provided that evidence that is otherwise admissible or discoverable will not be rendered inadmissible or non-discoverable as a result of its use in the negotiation or arbitration. Either party may seek equitable relief in arbitration prior to arbitration on the merits to preserve the status quo. The provisions of this Alternative Dispute Resolution paragraph may be enforced in a court of competent jurisdiction and the party seeking enforcement shall be entitled to an award of all costs, fees and expenses (including attorney fees) incurred in obtaining the enforcement of this provision, to be paid by the party against whom enforcement is ordered.
PUBLICITY AND PUBLIC COMMUNICATION AND WRITTEN MATERIALS
No press release or public announcement concerning this Agreement and/or the Program shall be made without prior written consent of Amex, which consent will not be unreasonably withheld, conditioned or delayed. Company may not amend, supplement these terms and conditions. Company may not supplement or amend any written materials distributed by Amex with regard to the Cards without the prior approval of Amex.
You may not assign this Agreement to any third party, without Amex's prior written consent, and any attempt to do so will be void. Amex may assign this Agreement and its performance hereunder to an affiliated company of Amex without Company's consent upon sixty (60) days prior written notice.
REPRESENTATIONS AND WARRANTIES
Each party represents and warrants that: (1) it has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement, (2) it has not disclosed, and will not disclose any confidential information of the other party, and (3) its obligations under this Agreement do not interfere with any other contractual obligations of such party to any third party. Company further represents and warrants that the Company Mark or other materials that it submits to Amex hereunder does not infringe on any trademark, copyright or other intellectual property rights of any third party.
U.S. Governing Law
This Agreement shall be governed by the substantive laws of the State of New York without regard to conflict of law principles.
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®2009-13 American Express Travel Related Services Company, Inc.