1. Welcome to the Amobilepay Platform
Mobileun (“we” or “Amobilepay” or “Company”), provides a mobile payment and customer rewards platform and related services (“Services” or “Mobileun Services”), and provides and/or enables related mobile applications, software applications, websites, and microsites (“Apps” or “Amobilepay Apps”), for use by you (“User”) to make payments for goods and/or services and participate in merchant incentive and rewards programs (“Campaigns”) at physical and/or online points-of-sale (“POS”), among other available functions. Amobilepay provides access to these Services and Apps, including this App, subject to your acceptance of all of the following Terms and Conditions (“User Terms” or “Agreement”).
By accessing, downloading, copying, and/or using a Amobilepay App, including this App, and/or the Services, you agree to these User Terms. THESE USER TERMS CREATE A BINDING LEGAL AGREEMENT BETWEEN YOU AND Amobilepay, AND INCLUDE AN ARBITRATION CLAUSE UNDER WHICH CERTAIN CLAIMS MAY NOT BE BROUGHT IN COURT OR DECIDED BY A JURY. PLEASE READ THEM CAREFULLY.
2. Amobilepay User Account
In order to use an App to make payments, and/or engage in any merchant reward Campaigns, you must first register with Amobilepay, create a Amobilepay User Account, and associate a valid debit and/or credit card. Your registration and use of a Amobilepay User Account is subject to these User Terms.
By registering for a Amobilepay User Account, you agree, represent, and warrant to Amobilepay, that:
- All information provided to Amobilepay is accurate, current and complete, and that you will maintain and update such information as it changes;
- You will maintain the security of your User Account, take responsibility for all activities that occur using your User Account, and accept all risks of unauthorized access resulting from your acts or omissions;
- You are of legal age to form a binding contract, or you are over the age of 13 and will use the User Account under the supervision of a parent or guardian who agrees to be bound by these User Terms. The Amobilepay platform and Apps are not intended for or targeted to, anyone under the age of 13;
- You are either a citizen or a legal resident of the United States and that you will use Amobilepay solely within the United States;
- You do not and have never used or maintained any other Amobilepay User Account under a different email address (the creation of additional User Account(s) shall be considered a violation of this Agreement); and,
- Your registration and your use of Amobilepay and any App is not prohibited by law, and will not be used to engage in, commit, or facilitate any illegal activity.
Your registration and your User Account, including any User Credit or Loyalty Credit associated with such User Account, and your rights under this Agreement, are personal to you and are not transferable by you to any party.
Payment Methods. Amobilepay enables you to make card-based purchases at participating merchants by linking to your User Account debit, credit, and/or prepaid credit cards issued in the United States bearing the trademarks of MasterCard International Inc. and Visa Inc. (the “Networks”), as well as American Express and Discover (“payment instrument(s)”). You may not associate a Health Savings Account card with your Amobilepay User Account. Your User Account is not a bank account. Amobilepay is not a bank, and does not offer banking or money service business (“MSB”) services as those terms are defined by the United States Department of Treasury.
Primary and Secondary Payment Instruments. By linking a payment instrument(s) to your User Account, you represent to Amobilepay that you are an authorized user of the payment instrument(s). If multiple payment instruments are linked to your User Account, you must designate one linked payment instrument as a primary payment instrument. You may change the designated primary payment instrument associated with your User Account at any time. All payment instruments other than the designated primary payment instrument will be deemed “secondary” payment instruments. You are responsible for ensuring that all payment instruments are at all times current, non-expired, and valid for payments.
Test Authorizations. By associating a payment instrument(s) with your Amobilepay User Account, you consent to Amobilepay’s temporarily authorizing a charge on that payment instrument, typically for $1.00 or less, as part of our verification process. You will not be required to pay this charge, and it will disappear from your payment instrument statement within a few days.
Termination of User Account. Amobilepay reserves the right to reject, suspend, or terminate your registration and/or use of a Amobilepay User Account, and/or your access to the Amobilepay platform, in the event that you breach any of the Amobilepay User Terms or any of the representations and warranties made herein.
Use of Amobilepay User Accounts for Development Purposes. All uses of a Amobilepay User Account for the purpose of developing software, applications, or programs that will interface to the Amobilepay Platform, including without limitation to access any Amobilepay SDK and/or associated APIs, and the use of the Amobilepay Developer Sandbox, are additionally subject to Amobilepay’s Developer Terms (https://www.Amobilepay.com/developer-terms), which are incorporated herein by reference. By using your Amobilepay User Account to access Amobilepay’s development tools, you agree to all of the Developer Terms.
3. License to Use the Amobilepay Apps and Websites
Limited License. Amobilepay grants you a limited, non-exclusive, non-transferrable license, to access, view, download, install, and use this Amobilepay App(s), and/or any Amobilepay website content, for the purpose of using the Amobilepay Services, including the initiation of payment for goods and/or services and for participating in merchant reward Campaigns.Except as expressly permitted by these User Terms, you may not modify, reproduce, distribute, publish, reverse-engineer, create derivative works out of, decompile, deep link, publicly display, or otherwise exploit for any purpose, the Amobilepay Property, or any portion thereof. You may not remove or alter, or reuse in any manner or for any other purpose, any copyright, trademark or other proprietary notices that have been placed on the Amobilepay Property. You may not collect and use the product listing, pictures, or descriptions within the Amobilepay Property for any commercial purpose. All rights not expressly granted to you by this Agreement remain the property of Amobilepay and its licensors.
No Rights to Amobilepay Property. The Amobilepay App(s) and website content downloaded or accessed by you pursuant to these User Terms, including without limitation all of the text, images, sound, music, marks, logos, compilations (meaning the collection, arrangement and assembly of information) and other content, other than User Content, as defined below, and all software embodied in the Amobilepay website or Apps, or otherwise used by Amobilepay to deliver the Amobilepay Services (collectively, the “Amobilepay Property”),is the sole property of Amobilepay and/or of third parties provided under license to Amobilepay. Amobilepay reserves all rights in the Amobilepay Property, including without limitation copyright, trademark, patent, and trade secret rights.
Trademarks. The marks “Amobilepay among other marks, the Amobilepay logo, and the Amobilepay scanner, are registered or unregistered trademarks of Amobilepay and may not be used in connection with any service or products other than those provided by Amobilepay, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits Amobilepay. The Amobilepay platform and Apps, also feature the trademarks, service marks, and logos of third parties, and each owner retains all rights in such marks. Any use of such marks, or any others displayed in any App, inures solely to the benefit of their respective owners.
Patents. The systems and methods used by Amobilepay to provide the Amobilepay Services are protected by patents including U.S. Pat. Nos. 8,620,790, 8,639,619, and other pending applications, and no rights are hereby granted to such patents or applications.
No Illegal Uses. The Amobilepay Property licensed hereunder shall not be used for any purpose not contemplated by these User Terms, or for any illegal purpose, or to commit or facilitate any act by any person in violation of any law or regulation, and/or any fraud against any person. The Amobilepay Platform and/or associated Amobilepay Apps shall not be used for the purpose of accepting or transferring security or payment for loans, providing cash advances, check cashing, or otherwise distributing cash to any person or entity, or in connection with any lottery or gambling activity.
4. Authorization of Payments on the Amobilepay Platform
Authorization for Amobilepay to Charge Payment Instrument(s). By linking a payment instrument(s) to your Amobilepay User Account, including by tapping the “Link Card” authorization button within a Amobilepay App, and using an App to initiate a payment for a purchase at a participating merchant POS, you authorize Amobilepay to charge your linked payment instrument(s), including the primary and/or any secondary instrument(s), as necessary to complete payment to Amobilepay for the purchase. Amobilepay will first submit authorized charges to your designated primary payment instrument. If such charge is rejected or fails, Amobilepay may charge any secondary payment instrument(s) without advance notice to you.
In the event you are entitled to a reversal, refund, chargeback, or other adjustment associated with a purchase you made using your Amobilepay User Account, you also authorize a credit to your payment instrument(s) to accomplish that transaction.
All purchases and charges authorized using an App and/or the Amobilepay Services are also subject to the terms and conditions set forth by the entities that issue your payment instrument(s). You are responsible for complying with those terms and conditions, and you are responsible for payment of all charges and related fees imposed by such entities pursuant to those terms and conditions.
There is no limit on the frequency of transactions you may make using your Amobilepay User Account. Amobilepay does not charge any fees to its Users in connection with such transactions.
Transaction Grouping. Amobilepay may in its discretion charge your authorized payment instrument(s) for your authorized transaction charges by grouping the amounts of such individual transactions in a single bundled charge. Amobilepay typically charges your primary payment instrument in a recurring charge once per month, on the same day each month. You will be notified in advance of the date of your recurring charge. Amobilepay may group transactions for up to thirty-one (31) days following a transaction before submission of an grouped charge to your payment instrument. If activity within a period exceeds a threshold amount determined by Amobilepay, Amobilepay may submit a grouped transaction to your primary payment instrument prior to the date of your regular recurring monthly charge. When we submit a grouped transaction, we will provide an email notification to you detailing the individual transactions making up the grouped total charge. The status and amount of any authorized but uncharged transactions will be displayed at all times in the transaction history of your User Account, accessible by logging into the Amobilepay website at https://www.Amobilepay.com/. By accepting these terms, you agree that Amobilepay may submit your previously authorized charges totaling less than $750.00 as a grouped single transaction charge on a recurring monthly basis without further advance notice to you. You may request that Amobilepay cease any authorized grouped transaction by mailing a written notice to Amobilepay at the address below at least three (3) days prior to the submission of such charge by Amobilepay, or by orally notifying Amobilepay at 1-855-538-3542, if followed by a written notice within fourteen (14) days. You may also request that Amobilepay cease grouping your future authorized transactions for submission, or that Amobilepay provide advance notice of certain grouped transactions, by mailing a letter request to Support Team, Amobilepay, 101 Arch Street, Suite 400, Boston, MA 02110.
Failed Transactions. In the event that Amobilepay is unable to successfully charge any linked payment instrument, Amobilepay will notify you via email and/or in-App notification, and you will be unable to initiate further payments with your User Account. Upon Amobilepay’s notification to you of such failure, you agree to link a new, valid payment instrument within three (3) business days. Your Amobilepay User Account will be disabled until a valid payment instrument is provided and the outstanding uncharged balance is resolved by Amobilepay. Amobilepay is not responsible for any charges imposed by the issuer of your payment instrument(s) as a result of any failed charge by Amobilepay. To the extent that Amobilepay is unable to successfully charge any payment instrument linked to your User Account as payment for authorized transactions for more than thirty (30) days, you understand and agree that Amobilepay may employ a collection agency or other business in an effort to collect any outstanding debts and fees associated with your User Account, and you will not contest the use of a third party to collect the debt and fees owed to Amobilepay. You agree that you will be responsible for any legal, court, arbitration or collection agency fees associated with rectifying your account and all monies owed thereunder. You agree that Amobilepay, or any agency or business employed by Amobilepay, has the right to contact you and your heirs via telephone, email or in-person using the information you provided upon registration or during any contact with Amobilepay, in an effort to collect any monies and fees owed under your account, whether specifically referenced in these User Terms or not, and such contact may be made in a manual or automated fashion.
Prohibited Transactions. The Amobilepay Service may be used only for the bona fide purchase and exchange of goods and/or services offered in the ordinary course of a merchant’s business, and may not be used to process a payment or otherwise transfer money between two parties that is unrelated to a purchase of a product or services. The Amobilepay Service may not be used for transactions in which you request cash back from the merchant. Amobilepay reserves the right to decline any attempted transaction if it appears that any of these User Terms have been violated.
Debit/Credit Card Statements. Amobilepay charges to your authorized payment instrument(s) may appear on your statement from the card issuing institution as “Amobilepay*” followed by an identifier related to the Amobilepay merchant partner at which the transaction occurred, and as explained above, may appear as a single charge for the aggregate amount of multiple individual transactions. You agree not to knowingly falsely report such charges as fraudulent or unauthorized claims to your payment instrument issuing institution. A knowingly false report of a fraudulent or unauthorized charge shall be grounds for Amobilepay, in its discretion, to cancel your User Account, and seek any other remedies available to Amobilepay.
5. Consent to Electronic Disclosures and Notices; Paper Copies
Your electronic signature on this Agreement, and any other agreements and documents, has the same effect as if you signed them in ink. You agree that electronic Disclosures and notices have the same meaning and effect as if Amobilepay had provided you with paper copies, whether or not you choose to view the Disclosures. Such Disclosures and notices are considered received by you within 24 hours of the time posted to our website, or emailed or messaged to you.
In order to access and retain the electronic Disclosures you will need, and represent that you have, the following: (i) a computer or mobile device with an Internet connection; (ii) a current web browser that includes 128-bit encryption, and has cookies enabled; (iii) a valid email address associated with your User Account (if you use a spam filter that blocks or re- routes emails from senders not listed in your email address book, you agree to white-list all emails from the @Amobilepay.com domain to your email address book); and (iv) sufficient storage space to save past Disclosures and/or an installed printer to print them.
You have a right to receive Disclosures in paper form. If you wish to receive a paper copy of any Disclosure, or any transaction receipt, you may request a copy of the Disclosure or receipt within 180 days of the date of the Disclosure or receipt. Amobilepay will provide paper copies free of charge. Requests to receive any paper copy, or to withdraw your consent to future electronic Disclosures, may be made by mailing a written request to Support Team, 101 Arch Street, Suite 400, Boston, MA 02110. We will provide a replacement copy of your receipt within ten (10) business days. Requests to cancel your consent to future electronic Disclosures will be completed in a reasonable time. Amobilepay reserves the right to terminate your Amobilepay User Account if you withdraw consent to future electronic Disclosures. You may update the information required to contact you electronically by logging into a Amobilepay App or to the Amobilepay website.
6. Fraudulent or Unauthorized Transactions; Lost Devices
If any transaction Disclosure received by you appears incorrect, or was unauthorized or fraudulent, you shall notify Amobilepay immediately, including by clicking on a link included in the email transaction receipt, thereby flagging the transaction, or by contacting Amobilepay directly (24/7) at:
Amobilepay Support Team
Please click here for additional information and requirements on how to report any suspected fraudulent or incorrect activity.
Lost Devices. In the event that you lose any mobile device on which a Amobilepay App linked to your User Account is installed, or otherwise learn that your User Account password is compromised (“Lost Device”), you shall notify Amobilepay immediately by contacting support@Amobilepay.com OR Amobilepay Support Team.
Amobilepay Security; Reporting Requirements. Amobilepay implements a variety of methods, and proprietary protocols, to protect you from bad actors who may attempt to access and make fraudulent charges using your Amobilepay User Account, including an optional PIN lock feature. Because we are confident in these measures, we generally will not seek to recover from you reimbursement for any fraudulent charges made using your User Account. There are, of course, limits to this policy, which depend upon how quickly you notify us of a fraudulent activity:
- If Amobilepay confirms that a transaction(s) reported by you was an unauthorized or fraudulent use of your User Account, and if: (i) the first such unauthorized transaction was reported to Amobilepay within two (2) business days of a transaction receipt; or (ii) in the case of a Lost Device, the Lost Device was reported within two (2) business days of the loss; Amobilepay will reimburse you for the amount of any fraudulent or unauthorized transactions charged to your payment instrument.
- If you fail to notify Amobilepay of a fraudulent or unauthorized transaction using your Amobilepay User Account within two (2) business days of a transaction receipt, or in the case of a Lost Device, within two (2) business days of the Lost Device, you will be responsible for the fraudulent or unauthorized charges in an amount limited to the lesser of: (i) $500; OR (ii) the sum of either $50 or the amount of the fraudulent use during the initial two (2) days (whichever is less), AND the sum of all fraudulent or unauthorized activity after the initial two (2) days prior to your notification to Amobilepay. You authorize Amobilepay to submit to your payment instrument(s) such charges up to that limited amount.
- If you fail to notify Amobilepay of a fraudulent or unauthorized transaction using your User Account within sixty (60) business days of a transaction receipt, or in the case of a Lost Device, within sixty (60) business days of the Lost Device, you will be responsible for all fraudulent or unauthorized charges after the sixty (60) day period, and authorize Amobilepay to submit such charges to your payment instrument(s).
- In the event that the state in which you established your User Account provides for lower limitations on liability for fraudulent use, such limitation shall apply in place of these provisions.
Issuing Institutions. To the extent that the security of your payment instrument(s) is compromised in an event having no relation to the Amobilepay platform (for example, your wallet is stolen), and your payment instrument is linked to another User Account, your liability for any fraudulent transactions will be determined by your agreement with the institution that issued your payment instrument.
User Fraud. If Amobilepay determines that you have engaged in any fraudulent use of the Amobilepay platform, or use in violation of these User Terms, in addition to its rights to recover of any monies required to remedy such fraudulent use, Amobilepay shall impose a fee of one hundred ($100.00) dollars for each investigation by Amobilepay that results in a confirmation of such violation of these User Terms. By registering for a Amobilepay User Account, you agree to all additional fees and penalties that Amobilepay may impose in the event Amobilepay deems your use of the Amobilepay platform to be in breach of these User Terms, including without limitation the immediate termination of your Amobilepay User Account.
7. Merchant Incentive and Reward Campaigns; Campaign Credit
When you pay with your Amobilepay User Account at a merchant POS, you participate automatically in any promotional campaigns offered by Amobilepay’s merchant partners, and/or third-party partners, such as loyalty reward programs, refer-a-friend programs, product incentive programs, etc. (“Campaigns”), and earn automatically any merchant-offered rewards, incentives, or discounts (“Merchant Credit”) and/or third-party-offered incentives, rewards, or discounts (“3rd Party Credit”) associated with your transaction. Amobilepay will also automatically redeem any Merchant or 3rd Party Credit previously awarded at the time of purchase at the participating merchant’s POS in accordance with the terms of such Campaign. Merchant or 3rd Party Credit applied to the purchase will be deducted from the transaction amount charged by Amobilepay as part of the authorized charge to the payment instrument(s) associated with your User Account.
Promotional Campaigns, and Merchant or 3rd Party Credit associated with such Campaigns, are offered by the merchant or funding third party alone (and not by Amobilepay) and the offering parties are responsible for setting applicable rules, including the expiration of any Merchant or 3rd Party Credit, and compliance with such rules. Any complaints concerning any merchant’s or third party’s failure to award or redeem Merchant or 3rd Party Credit according to any Campaign may be sent to Amobilepay at:support@theAmobilepay.com, or by calling 1-855-538-3542. While Amobilepay may, in its discretion, attempt to resolve any complaints concerning a person’s failure to award or redeem Merchant or 3rd Party Credit, Amobilepay is not responsible for such person’s failure to award or redeem Credit for any reason.
The merchant shall be solely responsible for the goods and/or service provided by such merchant, including the quality of the goods and services, and, any claims, liabilities, injuries, losses or damages you may suffer in connection with the goods or services, your participation in any Campaign, and/or any unclaimed property liability arising from unredeemed Merchant Credit, or any portion thereof. Merchants may choose to discontinue a Campaign at any time. Amobilepay also reserves the right to terminate a merchant’s Campaign at any time.
Merchant or Third Party Credit associated with any merchant loyalty programs has no cash value. You have no property interest in any Merchant or Third Party Credit. If a Campaign is terminated for any reason, or if your User Account is suspended or terminated for any reason, any existing Merchant or 3rd Party Credit will expire immediately.
Redemption or application of Merchant or 3rd Party Credit for alcoholic beverages is at the sole discretion of the merchant, and is subject to (and may be limited by) merchant’s compliance with applicable federal, state, and local laws and regulations. Merchants may refuse to apply Merchant or 3rd Party Credit to delivery, processing or handling fees, or taxes or gratuities.
8. Privacy, Security, and User Data
Payment Instrument Security. Amobilepay is 100% compliant with the Payment Card Industry Data Security Standards (“PCI- DSS”). Amobilepay will never share your payment instrument information with any person other than as necessary to process the payments you authorize. Amobilepay does not store your payment instrument information on Amobilepay’s servers. Rather, we partner with Braintree Payment Services, LLC (“Braintree”), a globally respected payment gateway, to leverage its secure vault solutions for all payment instrument storage. All data sent to Amobilepay’s servers is encrypted and our servers are protected by industry standard measures. By leveraging Braintree for storage, we are able to add another powerful layer of security to Amobilepay. If you have any further questions about Amobilepay’s security measures, we provide our Security Policy at https://www.theAmobilepay.com/security.
No Access to Financial Information. Amobilepay Apps, and any software applications or websites that you may authorize to access your User Account, are not able, or authorized, to capture or store your financial account information provided to Amobilepay, or details of your linked payment instruments, including on your mobile device, without your expressly granted permission. You should never be asked by any merchant to disclose your financial account information, or your payment instrument information, or to provide any other sensitive information such as your Social Security number, in connection with any Amobilepay transaction. If you are asked for such information, you should report the incident to Amobilepay immediately.
No Sharing of Email Address. Except as specifically authorized by you pursuant to these User Terms, Amobilepay will never share your email address with any third party, other than the partners we use to contact you concerning the Amobilepay Services.
Revocation or Permissions. You may revoke permissions granted to a Amobilepay App or any software application or website at any time by logging in to the Amobilepay website at https://www.theAmobilepay.com/.
9. Merchant Gift Cards
Amobilepay enables you to give and receive digital merchant gift cards, online or through certain Amobilepay Apps, and plastic merchant gift cards. Plastic merchant gift cards can be used to make a purchase at a merchant location by scanning the QR code on the card, or they can be linked to your Amobilepay User Account by simply using your phone to scan the Amobilepay QR code on the plastic card or entering the card information in a form online at https://www.theAmobilepay.com/login.
Amobilepay merchant gift cards may only be used to purchase goods or services from the specific merchant identified on the digital or plastic gift card (the “Gift Card Merchant”). The Gift Card Merchant may limit the Merchant’s participating locations, either physical or online, where the gift card may be used.
Amobilepay merchant gift cards are issued by the Merchant identified on the gift card. Merchant gift cards are not issued by, or financial obligations of, Amobilepay.
Neither Amobilepay nor the Gift Card Merchant charges you any fee related to your merchant gift card, including for the purchase, issuance, activation or use of the card. Your gift card and the funds associated with your gift card have no expiration date.
Except where required by law, the balance of a merchant gift card is nonrefundable and may not be resold or redeemed for cash or other gift cards. Merchant gift cards are not reloadable.
Any refund related to a purchase made with the gift card will be credited back to the gift card used for the initial payment.
Once linked to a Amobilepay User Account, a plastic Merchant gift card is not transferrable to another user, and the code on the plastic card may no longer be useable for purchases.
You may purchase a digital merchant gift card for a designated recipient by entering email address of the recipient via the Amobilepay website at https://www.theAmobilepay.com/ or through certain merchant Amobilepay Apps. The recipient will be notified of the gift card by email and/or through an in-app notification, and may claim the gift card: (i) in certain Amobilepay Apps; (ii) by clicking a link in the email and entering their Amobilepay User Account credentials to associate the gift card with their account; or (iii) by clicking a link in an email to activate the card and by printing the email displaying the email’s QR code at a merchant point-of-sale scanner. Your Amobilepay User Account will be charged when you purchase the digital merchant gift card.
Amobilepay merchant gift cards may be purchased in any amount up to $500.00 dollars. No more than $1,000.00 of merchant gift card value may be associated with a Amobilepay User Account at any time.
Merchant or Amobilepay credit may not be redeemed for the purchase of gift cards, and the purchase of a gift card will not count toward any Merchant campaign unless specified otherwise. Other limits may apply to card redemption and use.
Amobilepay is not responsible for lost, stolen, damaged or destroyed cards or for unauthorized use. Risk of loss and title for the card pass to purchaser. To help secure your plastic gift card, please link it to your Amobilepay User Account. Do not share your Amobilepay login information with others.
Amobilepay disclaims all express or implied warranties, including warranties of merchantability or fitness for a particular purpose, as to the merchant gift cards, to the extent permitted by law. In the event a gift card does not work, your sole remedy and the Gift Card Merchant’s and our sole liability will be the replacement of such gift card, subject to applicable law. Gift card terms are subject to change in Gift Card Merchant’s sole discretion, in accordance with applicable law.
Amobilepay and Gift Card Merchant reserve the right to adjust the balance of your merchant gift card in the event of a clerical, billing or accounting error. Transactions or corrections concerning your merchant gift card may be disputed by contacting Amobilepay Support within 60 days of the disputed transaction or correction.
A merchant gift card balance can be viewed within a Amobilepay App, by logging into your Amobilepay User Account at https://www.theAmobilepay.com/login, or by contacting Amobilepay Support at 1-855-538-3542 orsupport@theAmobilepay.com.
10. Amobilepay Gift Cards
In addition to gift cards issued by participating Gift Card Merchants, Amobilepay also enables you to give and receive digital gift cards, online or through certain Amobilepay Apps, that are customized for a specific recipient, or usable anywhere on the Amobilepay platform (“Amobilepay Digital Gift Cards”). Amobilepay Digital Gift Cards are subject to the same terms and restrictions as physical Merchant Gift Cards. Amobilepay Digital Gift Cards are issued by Amobilepay and are usable only as prepayment to Amobilepay for goods and services purchased using the Amobilepay Service. Amobilepay Digital Gift Cards may not be redeemed at locations within Texas or Kansas. Amobilepay Digital Gift Cards may not be purchased by residents of New York. Residents of New York purchasing gift cards via the Amobilepay Service must select from available individual Merchant Gift Cards.
11. Third Party Websites and Amobilepay Apps
The Amobilepay Apps and/or Amobilepay website may contain links to third party apps or websites. In some cases, Amobilepay Apps (meaning applications, sites, or software that you may use or download that have the ability to access the Amobilepay platform on your behalf, with your permission) are provided and maintained by third parties. You may also be offered services, products and promotions provided by third parties as part of your use of any Amobilepay App.
A Amobilepay App’s access to the Amobilepay platform, or link to a third party site or App within a Amobilepay App, does not imply endorsement of, sponsorship of, or affiliation with the linked site or third party Amobilepay App by Amobilepay. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any of these third parties or granting permissions for any Amobilepay App to access any of your User Data, or otherwise act on your behalf, within the Amobilepay platform. Amobilepay is not responsible for any claims, liabilities, losses, or damages suffered by you in connection with your use of a third party Amobilepay App, site, or service, in connection with the Amobilepay platform.
12. Ideas Submitted to Amobilepay; User Content
User Ideas. Amobilepay is pleased to hear from you and welcomes your comments about the Amobilepay platform. If you submit ideas or suggestions for the Amobilepay platform (“Comments”), you agree that all Comments will be deemed, and will remain, non-confidential and the sole property of Amobilepay, without compensation to you. None of the Comments will be subject to any fiduciary obligation or obligation of confidence on the part of Amobilepay, and Amobilepay will not be liable for any use or disclosure of any Comments. Without limiting the foregoing, Amobilepay will be entitled to unrestricted use and other exploitation of the Comments for any purpose whatsoever, commercial or otherwise, by any means, by any media, without compensation to the provider, author, creator or inventor of the Comments.
User Content. Amobilepay Apps and/or Amobilepay’s websites may include areas in which you or other registered Users can create, post, send or store messages, materials, data, information, text, music, sound, photos, video, graphics, applications, tags, code, links or other items or materials (“User Content”). By using Amobilepay Apps and/or websites, you agree not to post, upload, transmit, distribute, store, create or otherwise publish any of the following:
- User Content that personally identifies sensitive information about yourself or another person (including, but not limited to, information that relates to health or medical conditions, Social Security numbers, credit cards, bank accounts or other financial information, Amobilepay User Account credentials, other information concerning trade union membership, sex life, political opinions, criminal charges or convictions, religious beliefs, racial or ethnic origin, or other sensitive matters);
- User Content that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent, otherwise objectionable or that threatens our relationships with our employees, partners, customers or suppliers;
- User Content that infringes any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party. By posting any User Content, you represent and warrant that you have the lawful right to distribute and reproduce such User Content;
- User Content that impersonates any person or entity or otherwise misrepresents your identity or affiliation with another person or entity;
- Spam, direct marketing communications or any unsolicited advertising, promotional materials or other forms of solicitation or commercial content;
- User Content that constitutes, encourages or provides instructions for a criminal offense, violates the rights of any party or that creates liability or violates any applicable local, state, national or international law;
- Viruses, spyware, Trojan horses, Easter eggs or any other harmful, disruptive or destructive files; and
- User Content that, in the sole judgment of Amobilepay, is objectionable, restricts or inhibits any other person from using or enjoying the Services or that damages the image or rights of Amobilepay, other users or third parties.
Amobilepay does not control, take responsibility for or assume liability for any User Content, nor is Amobilepay liable for any User conduct or any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity that you may encounter.
If you become aware of User Content that you believe violates these User Terms (with the exception of copyright infringement which is addressed in the Digital Millennium Copyright Act Notice section), you may report it by contacting Amobilepay at support@theAmobilepay.com. Enforcement of these User Terms pertaining to User Content is in Amobilepay’s sole discretion and absence of enforcement in some instances does not constitute a waiver of our right to enforce the User Terms in other instances.These User Terms shall not create a third-party right of action or any reasonable expectation or promise that the Apps or websites will not contain any content that is prohibited by these User Terms. Amobilepay reserves the right, and has absolute discretion, to remove, screen or edit any User Content at any time and for any reason without notice. You are solely responsible for creating backup copies and replacing any User Content you post or store at your sole cost and expense.
License to User Content. You represent and warrant to Amobilepay that your User Content is not subject to any confidentiality obligations and that you own and control all of the rights to the User Content or otherwise have the right to grant the rights to Amobilepay that you grant herein. Amobilepay claims no ownership or control over any User Content, except as otherwise provided herein. By submitting or posting User Content, you grant Amobilepay and its designees a worldwide, perpetual, irrevocable, non-exclusive, fully-paid up and royalty free license to use, sell, reproduce, prepare derivative works, combine with other works, alter, translate, distribute copies, display, perform, publish, license or sub-license the User Content and your name and likeness in connection with such use of your User Content. By posting User Content, you hereby release Amobilepay and its agents and employees from any claims that such use, as authorized above, violates any of your rights and you understand that you will not be entitled to any compensation for any use of your User Content.
Recommendations. The Amobilepay App enables you to submit recommendations to Amobilepay for a business or businesses that you would like to see start accepting Amobilepay. Amobilepay appreciates your referrals and recommendations, and offers $10.00 in Amobilepay credit for recommendations made through the App that lead to a new business launching on Amobilepay (“Referral Bonus”). Amobilepay limits the Referral Bonus to the first twenty-five (25) Users to recommend each new business. Each Amobilepay User is limited to a total of ten (10) Referral Bonuses (or a total of $100 in Amobilepay credit).
13. Copyright Infringement; Digital Millennium Copyright Act
Amobilepay complies with the provisions of the Digital Millennium Copyright Act (“DMCA”). If you believe that any material contained in a Amobilepay App or on a Amobilepay website infringes a copyright that you control, you may contact our Designated Agent with a notification of such infringement at the following address:
Amobilepay requests that any notice alleging that materials hosted by or distributed through the Services infringe intellectual property rights include the following information (17 U.S.C. § 512(c)(3)): (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right allegedly infringed; (b) a description of the copyrighted work or other intellectual property that you claim has been infringed; (c) a description of the material that you claim is infringing and where it is located on the Services; (d) your address, telephone number, and email address; (e) a statement by you that you have a good faith belief that the use of the materials on the Services of which you are complaining is not authorized by the copyright owner, its agent, or the law; and (f) a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
Counter Notices. If material that you have posted to the Services has been removed or disabled, you may file a counter notice pursuant to 17 U.S.C. § 512(g). To be effective, the counter notice must be a written communication sent to the designated agent address listed above that includes the following: (a) a physical or electronic signature of the subscriber; (b) identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled; (c) a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; (d) your name, address, and telephone number; and (e) a statement that you consent to the jurisdiction of United States District Court for the judicial district in which the address is located or, if your address is outside of the United States, for any judicial district in which Amobilepay may be found, and that you will accept service of process from the person who provided notification under subsection 17 U.S.C. §512 (c)(1)(C) or an agent of such person.
14. Suspension; Modifications and Termination
Termination by User. You may terminate this Agreement at any time by closing your Amobilepay User Account and ceasing to use the Amobilepay Services, and all Amobilepay Apps.
Termination by Amobilepay. Amobilepay reserves the right to suspend or terminate your User Account and/or your access to the Amobilepay Services at any time, without notice to you, if it believes you are in breach of this Agreement, or if it believes that you are using the Amobilepay Services or any Amobilepay App in a manner harmful to Amobilepay, its merchants, users, or any other third party. Any such termination, suspension, or modification will terminate any Merchant or 3rd Party Credit that you rightfully earned prior to termination.
Modification of Services and Terms. Amobilepay reserves the right to modify the Services and Amobilepay Apps, any features or aspects of the Services or Apps at any time, without notice to you. Amobilepay may also from time to time amend, update, or change these User Terms. If Amobilepay does so, it will notify you by posting the amended terms on our website. You are under a continuing obligation to review the current version of these User Terms and other published Amobilepay policies when using the Amobilepay Apps and/or Services. You agree that your continued use of your Amobilepay User Account, the Amobilepay Services, or the Amobilepay Apps shall constitute your agreement to the User Terms as so amended. If you do not agree to the amended Terms, you must terminate your User Account and cease using the Amobilepay Services and Amobilepay Apps.
Obligations in the Event of Termination. If your Amobilepay User Account is terminated for any reason or no reason, you agree: (a) to continue to be bound by this Agreement, (b) to immediately stop using the Amobilepay Services and all Amobilepay Apps, (c) that the license provided by Amobilepay under this Agreement shall end, (d) that we reserve the right (but have no obligation) to delete all of the User Data stored by Amobilepay, and (e) that Amobilepay shall not be liable to you, or any third party, for compensation, reimbursement, or damages in connection with your use of Amobilepay or for termination of access to your Amobilepay User Account.
Sections 4, 8, 9, and 13-17, any accrued rights and remedies hereunder, including specifically Amobilepay’s rights to retain and use User Data and complete any authorized transactions, and any other provisions that by their nature require survival in order to be effective, shall survive the termination or expiration of this Agreement.
15. No Warranties
The Amobilepay Services and Amobilepay Apps are provided on an “as-is” basis. Amobilepay does not warrant that the Services or Amobilepay Apps will operate error-free or without downtime. Amobilepay may pause or interrupt the Services at any time, and users should expect periodic downtime for updates to the Service.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, Amobilepay DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT, AND ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING AND USAGE OF TRADE. Amobilepay DOES NOT WARRANT THAT THE Amobilepay SERVICES AND/OR ANY LEVEL UP APP: (i) WILL PROVIDE RESULTS OR INCLUDE CONTENT THAT IS ACCURATE, RELIABLE OR CORRECT; (ii) WILL MEET YOUR REQUIREMENTS; (iii) WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; OR (iv) WILL BE FREE OF DEFECTS, VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF Amobilepay IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD. NO ADVICE OR INFORMATION, ORAL OR WRITTEN, OBTAINED BY YOU FROM Amobilepay OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
You are solely responsible for obtaining and maintaining the computer, smartphone and other equipment you use to access the Amobilepay Services, and for paying for such equipment and any telecommunications charges. We are not liable for any third-party charges, or loss or damage you suffer arising from damage to equipment used in connection with use of the Amobilepay Services.
Amobilepay is not responsible for the goods and services that you purchase using the Amobilepay Services or any Amobilepay App. The providing merchant is responsible for all customer service related to those goods and services, including order fulfillment, order cancellation, returns, refunds and adjustments, rebates, functionality and warranty, technical support, and issues concerning experiences with a merchant’s personnel, policies, or processes. Amobilepay is also not responsible for any customer service related to your payment instrument(s).
Because we do not control the security of the Internet, or other networks you use to access the Amobilepay Services, Amobilepay is not responsible for the security of information that you choose to communicate with Amobilepay while it is being transmitted. Amobilepay is not responsible for any data lost during transmission.
16. Limitations of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL Amobilepay, OR ANY OF Amobilepay’S MERCHANTS, PROCESSORS, SUPPLIERS, OR LICENSORS (OR ANY OF THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, OR EMPLOYEES) BE LIABLE TO YOU FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF BUSINESS, PROFITS, USE, GOODWILL, DATA, OR OTHER INTANGIBLE LOSSES), ARISING FROM OR RELATING TO THE USE OF, OR INABILITY TO USE, THE Amobilepay SERVICES OR ANY Amobilepay APP, OR ANY LOYALTY CREDIT OFFERED OR AWARDED, OR ANY GOODS AND SERVICES PURCHASED WITH THE Amobilepay SERVICES OR ANY Amobilepay APP. Amobilepay SHALL NOT BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE Amobilepay SERVICES, YOUR Amobilepay USER ACCOUNT, ANY Amobilepay APP, OR THE INFORMATION CONTAINED THEREIN. Amobilepay SHALL NOT BE RESPONSIBLE FOR ANY DAMAGES FOR PERSONAL INJURY OR PROPERTY DAMAGE RESULTING FROM YOUR ACCESS TO OR USE OF THE Amobilepay SERVICES OR ANY GOODS OR SERVICES PURCHASED USING THE SERVICES.
THIS LIMITATION OF LIABILITY APPLIES WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND EVEN IF Amobilepay OR A MERCHANT HAD BEEN INFORMED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF WARRANTIES OR OF LIABILITY FOR CERTAIN TYPES OF DAMAGES, SO SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
With respect to any unauthorized, fraudulent transaction conducted using your User Account, absent any violation of these User Terms by you, your right to reimbursement for any direct losses (i.e., losses not refunded by your payment instrument issuing entity) as set forth herein shall be your sole and exclusive right and remedy for any loss or damages incurred by you arising out of, in connection with, or relating to any fraudulent or unauthorized use of your Amobilepay User Account, and Amobilepay may condition its payment of any fraud or unauthorized use reimbursement upon your releasing Amobilepay from any further claims with respect thereto.
An action or proceeding relating to any claim arising out of the Amobilepay Services or any Amobilepay App must commence within the shorter of the applicable statute of limitations or one year after the cause of action has accrued.
17. Release of Claims; Indemnity
You hereby release, and agree to defend, indemnify and hold harmless Amobilepay against any and all claims, actions, proceedings, suits, liabilities, losses, damages, costs, expenses and attorneys’ fees arising in connection with or relating to: (i) your improper or illegal use of the Amobilepay Service or any Amobilepay App; (ii) your breach of any provision of this Agreement; (iii) your violation of any federal, state, or local law or regulation; (iv) any goods and services purchased with the Amobilepay Service; (v) any act or omission of any merchant; and/or (vi) your participation in any merchant loyalty campaign or Loyalty Credit awarded or redeemed with the Amobilepay Services or any Amobilepay App (“Damages”). Amobilepay reserves the right to assume the sole control of the defense and settlement of any claim, action, suit or proceeding for which you are obliged to provide indemnification hereunder. You agree to cooperate with Amobilepay with respect to such defense and settlement.
18. Disputes; Arbitration
Amobilepay seeks reasonably to attempt to resolve disputes with Users to their satisfaction. If, however, a matter arises that cannot be resolved promptly between you and Amobilepay, you agree that any disputes arising out of or relating to the Amobilepay Services, any Amobilepay App, or this Agreement (including, without limitation, the validity, applicability, or enforceability and scope of the agreement to arbitrate and any disputes with Amobilepay’s third-party licensors or merchants) shall be resolved exclusively by final and binding arbitration administered by the American Arbitration Association (“AAA”) under the Federal Arbitration Act and shall be conducted before a single arbiter pursuant to the applicable Rules and Procedures established by the AAA (for information on the AAA and its rules, see adr.org). You agree that the arbitration shall be held in Boston, Massachusetts, unless the AAA or the arbitrator shall determine that venue in Boston is unreasonably burdensome, in which case the AAA or the arbitrator shall select a venue that is not unreasonably burdensome to both you and us. You agree that, if the AAA shall be unavailable or decline to administer the arbitration, and the parties do not agree on a substitute, a substitute administrator or arbitrator shall be appointed by the court. This provision shall not apply to claims of patent, trademark, copyright infringement, or misappropriation of trade secrets. In addition, you or we may elect to bring an individual claim in a small claims court, but Amobilepay does not hereby agree to any personal jurisdiction that is otherwise lacking.
You agree that any arbitration shall not permit claims on a class, mass, representative, or private attorney general basis. You further agree that no claims of other parties may be consolidated with your or our claims in the arbitration without both your and our consent. YOU ARE WAIVING YOUR RIGHTS TO HAVE YOUR CASE DECIDED BY A JURY AND TO PARTICIPATE IN A CLASS, MASS, REPRESENTATIVE, PRIVATE ATTORNEY GENERAL, OR CONSOLIDATED ACTION AGAINST Amobilepay.
If any part of this Arbitration clause is later deemed invalid as a matter of law, then it shall be severed and the remaining portions of this section shall remain in effect, with the exception that if the preceding paragraph is deemed invalid, then this entire section shall be deemed invalid and the arbitration clause shall be void.
19. Miscellaneous Provisions
This Agreement represents the entire agreement of the parties as to its subject matter, and supersedes all prior written and oral representations and discussions between the parties.
This Agreement shall be governed by the laws of the Commonwealth of Massachusetts without reference to principles of conflicts of laws.
No delay or omission by Amobilepay in exercising any of its rights occurring upon any noncompliance or default by you with respect to this Agreement will impair any such right or be construed to be a waiver thereof, and a waiver by Amobilepay of any of the covenants, conditions or agreements to be performed by you will not be construed to be a waiver of any succeeding breach thereof or of any other covenant, condition or agreement hereof contained.
Except as provided in §16 above, if any provision of this Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement will remain in full force and effect and will be reformed to be valid and enforceable while reflecting the intent of the parties to the greatest extent permitted by law.
In no event shall Amobilepay be liable for any failure to comply with this Agreement to the extent that such failure arises from factors outside Amobilepay’s reasonable control.
The provisions of this Agreement are entered into for the benefit of Amobilepay, its third party licensors, and the merchants and each of them shall have the right to enforce such provisions of this Agreement, including the arbitration clause, directly against you to protect their interests. Except as stated in the preceding sentence, there shall be no third party beneficiaries to this Agreement.
Amobilepay reserves the right to change or add to these User Terms at any time. When we do so, we shall provide notice on our website by posting the updated User Terms. You agree that if you do not agree to any such amendment, you shall immediately terminate this agreement. Your failure to do so, or continued use of any Amobilepay App or Service, shall constitute agreement to User Terms as so amended.
In the event of a conflict between this Agreement and any other Amobilepay agreement or policy provided to you, directly or indirectly, this Agreement shall prevail on the subject matter of this Agreement