Terms and Conditions
IMPORTANT NOTICES:
1. Give this document to the recipient of this gift card for any future questions or issues.
2. Please read carefully. This agreement contains a jury trial waiver and an Arbitration Clause requiring all claims to be resolved by way of binding arbitration.
3. You acknowledge that the card is a “closed loop” limited use gift card that you must load with funds before use. The gift card can be used only at participating merchants, as described below.
4. Always know the exact dollar amount available on your card. Merchants may not have access to determine your card balance. You can find out your balance at any time by going to www.budscard.com and providing your gift card number.
This Cardholder Agreement (“Agreement”) sets forth the terms and conditions under which a Birchmount Network closed-loop, prepaid gift card (“Card”) has been issued to you by Birchmount Network. By accepting and using this Card, activating the Card, or authorizing any person to use the Card, you agree to be bound by the terms and conditions contained in this Agreement. If you do not agree to the provisions of this Agreement, you should not accept, use, or activate the Card and must immediately terminate any use of the Card.
In this Agreement “You” and “your” mean the person or persons who have purchased or received the Card and are authorized to use the Card. “We,” “us,” and “our” mean collectively, Birchmount Network, a company incorporated in Arizona. Please read this Agreement carefully and keep it for future reference. This Agreement applies to both the purchaser and any other user of the Card. It is the purchaser’s obligation to provide these terms and conditions to any user; however, new terms and conditions may be provided, or any other questions or concerns answered, by contacting customer service.
1. ABOUT YOUR CARD & ELIGIBILITY
The Card is a closed-loop, prepaid Card loaded with a specific amount of funds, redeemable to buy goods and services only at the merchants whose logos appear on the Card. The Card may only be used in the United States or Canada at participating merchants. No additional funds may be added to this Card. The Card is NOT a credit Card. The Card is not a checking account or connected in any way to any account. You will not receive any interest on the funds affiliated with the Card and the funds are not FDIC insured.
By using the Card, you represent and warrant that you are (1) a natural person, (2) a resident of the California or Canada (3) are not listed on any U.S. Government list of prohibited or restricted parties, and (4) you are 21 years old or older in the California and are 19 years old in Canada.
2. USING YOUR CARD
a. Accessing Funds and Limitations
You may use your Card at brick-and-mortar locations in United States or Canada of the merchants whose logos appear on the Card. The merchant may require you to provide a valid driver’s license, a valid state-issued medicinal marijuana card, and/or other government-issued photo identification. Online redemption may not be available for all merchants. Each time you use your Card, you authorize us to reduce the value available on your Card by the amount of the transaction. Your Card cannot be: (1) redeemed for cash value or used at an ATM; (2) used to obtain cash or other gift cards in any transaction; (3) used for illegal transactions under law nor used at casinos or for gambling activity; (4) used to make foreign transactions; (5) used to pay credit card, charge card, or similar accounts with the merchants; (6) used for purchases where recurring payments may occur, such as subscriptions, memberships, rentals, etc.; or (7) be loaded with more than $2,000. For security reasons, we may limit the amount or number of transactions you can make on your Card. We may refuse to process any transaction that we believe may violate the terms of this Agreement.
YOU ARE NOT ALLOWED TO EXCEED THE BALANCE OF THE FUNDS AVAILABLE ON YOUR CARD. If you attempt to use the Card when there are insufficient funds associated with it, the transaction will generally be declined. Nevertheless, if a transaction that exceeds the balance of the funds available on your Card occurs due to a systems malfunction or otherwise, you will remain fully liable to us for the amount of the transaction that exceeded the balance of the funds available. If you do not have enough funds available on your Card, you may be able to instruct the merchant perform a “split transaction” by charging, part of the purchase to the Card and pay the remaining amount with another form of payment. Some merchants do not allow accountholders to do split transactions. Some merchants will only allow you to do a split transaction if you pay the remaining amount in cash.
Your card is valid in the State or Province it is issues from only. Cards cannot be used at merchants outside of their issuing State or Province, including internet and mail/telephone order merchants outside of the United States.
b. Obtaining Card Balance Information
You may obtain information about the amount of money you have remaining on your Card at no charge by visiting the website www.budscard.com. You may also obtain information about your Card transactions by contacting customer service at 1888-420-GIFT between the hours of 8:00 am and 6:00 pm Pacific Time or visiting the website www.budscard.com.
c. No Stop Payments
You do not have the right to stop payment on any purchase transaction originated by use of your Card. When you make a purchase, your Card balance will be debited for the amount of the purchase. If you have any dispute about a purchase, see section (d) Returns and Refunds, below.
d. Returns and Refunds
If you are entitled to a refund for any reason for goods or services obtained with your Card, the return and refund will be handled by the merchant. If the merchant credits your Card, the credit may not be immediately available. While merchant refunds post as soon as they are received, please note that we have no control over when a merchant sends a credit transaction, and the refund may not be available for a number of days after the date the refund transaction occurs.
e. Receipts
You may wish to retain receipts as a record of transactions. You may need a receipt in order to verify a transaction with us or the merchant.
f. Fees and Expiration Dates
There are no fees or expiration dates associated with your Card. We will not charge a fee for a replacement card issued in accordance with Section 5 below.
3. COMMUNICATIONS
You agree that we may monitor and record any calls or other communications between us and you. You also consent to our and our service providers communicating with you on your mobile device, including through the use of an automatic telephone dialing system or a prerecorded or artificial voice, by SMS, MMS, text message or other electronic means. You are not required to provide this consent as a condition of using the Card. If you provide us with a telephone number at which to contact you, you expressly waive any protections afforded to you under federal, state, or corporate Do Not Call lists for the purpose of receiving telephone calls or text messages from us related to your use of the Card. By providing us with a telephone number, you represent and warrant that you are the authorized subscriber to that telephone number and that you have the authority to provide consent to be contacted at that telephone number. If you would like to revoke this consent at any time, you may do so by contacting us at info@birchmountnetwork.com. Even if you revoke this consent, you acknowledge that the remaining sections of this Agreement will remain in effect. In the event you change or deactivate your mobile telephone number, you agree to promptly notify us to ensure that your messages are not sent to the person that acquires your old number. You agree to pay any service charges assessed by your plan provider for communications we send or make to you or that you send or make to us.
5. UNAUTHORIZED TRANSACTIONS
Treat this Card like cash. We generally cannot provide refunds for lost or stolen Cards. Fraudulent transactions may result in the loss of your money with no recourse.
6. NO WARRANTIES; RELEASE AND LIMITATION OF LIABILITY; INDEMNIFICATION
We are not responsible for the quality, safety, legality, or any other aspect of any goods or services purchased with a Card. Further, we will not be liable: (1) If, through no fault of ours, you do not have enough funds available on your Card to complete the transaction; (2) If a merchant refuses to accept your Card; (3) If an electronic terminal where you are making a transaction does not operate properly; (4) If access to your Card has been blocked after you reported your Card lost or stolen; (5) If circumstances beyond our control (such as fire, flood or computer or communication failure) prevent the completion of the transaction; or (6) For any other exception stated in our Agreement with you.
If you have a dispute with a merchant regarding goods or services purchased with the Card, you agree not to involve us in that dispute and to resolve that dispute solely with the merchant. You acknowledge that we are only issuing the Card and facilitating the payment transaction between the merchants and you. Accordingly, you hereby release us, our affiliates, and their respective officers, directors, agents, employees and representatives from any and all claims, demands and damages (actual and consequential) of every kind and nature arising out of or in any way connected with such disputes. We reserve the right, but have no obligation, to become involved in any way with disputes between you and a merchant.
EXCEPT AS OTHERWISE PROVIDED BY LAW, IN NO EVENT SHALL WE, OUR DIRECT OR INDIRECT SUBSIDIARIES, AFFILIATES, AGENTS, EMPLOYEES OR REPRESENTATIVES BE LIABLE FOR DEATH, PERSONAL INJURY, PROPERTY DAMAGE, OR ANY INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF OR DAMAGE TO DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL OR FINANCIAL DAMAGES, LOST REVENUES, OR OTHER LOSSES OF ANY KIND, ARISING OUT OF THESE TERMS OF USE OR IN ANY WAY RELATED TO YOUR USE OR INABILITY TO USE THE CARD, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
You agree to defend, indemnify and hold harmless us and our affiliates, and their respective officers, directors, agents, employees, and representatives from any third party claims, actions, proceedings, and suits and related liabilities, damages, settlements, penalties, fines, costs or expenses (including reasonable attorneys’ fees and other litigation expenses) arising from: (1) your violation of this Agreement; (2) your use of the Card; (3) any purchases you make with a Card; (4) your actual or alleged violation of any third party rights, or applicable laws; or (5) the actions or inactions of any third party to whom you grant permission to use the Card.
7. LEGAL NOTICES
a. English Language Controls
Translations of this Agreement that may have been provided are for your convenience only and may not accurately reflect the original English meaning. The meanings of terms, conditions, and representations herein are subject to definitions and interpretations in the English language.
b. Assignability
You may not assign or transfer your Card or your obligations under this Agreement. We may, however, transfer or assign our rights under this Agreement, including any balances in your Card.
c. Other Terms
You will be notified of any change to this Agreement in the manner required by applicable law prior to the effective date of the change. However, if the change is made for security purposes, we can implement such change without prior notice. We do not waive our rights by delaying or failing to exercise them at any time (for example, assessing a fee less than described, or not all, for any reason does not waive our right to begin charging the fee as set forth in this Agreement without notice). If any provision of this Agreement is determined to be invalid or unenforceable under any rule, law, or regulation of any governmental agency, local, state, or federal, the validity or enforceability of any other provision of this Agreement will not be affected. This Agreement will be governed by the law of the state of California for US customers and Ontario for Canadian customers except to the extent governed by federal law. Should your Card have a remaining balance after a certain period of inactivity, we may be required to remit the remaining funds to the appropriate state agency. The Card may be canceled or revoked at any time without prior notice, subject to applicable law.
8. PRIVACY
We may provide information to our employees, auditors, affiliates, service providers, or attorneys as needed, or to any third party if you give us your written permission. We may also collect: (1) Information about purchases made with the Card, such as date of purchase, amount and place of purchase; (2) Information you provide to us when you register a Card, or for replacement Cards, or when you contact us with customer service issues, such as name, address, phone number.
We may also disclose information about your Card or the transactions you make to third parties in order to: (1) complete transactions; (2) verify the existence and condition of your Card for a third party, such as merchant; (3) provide customer services; (4) process claims for lost or stolen Cards; (5) help protect against fraud and to conduct research and analysis; or (5) comply with government agency or court orders, or other legal reporting requirements.
We will not sell any information to third party marketing services.
9. ARBITRATION AND JURY TRIAL WAIVER
a. Jury Trial Waiver: To the extent permitted by law, you and we knowingly and voluntarily waive any right to trial by jury in the event of litigation arising out of or related to this Agreement. This Jury Trial Waiver does not modify in any fashion the Arbitration Clause set forth in the following section, which contains its own jury trial waiver.
b. Arbitration Provisions:
Opt-Out Process. If you do not wish to be subject to this Arbitration Provision, you must notify us in writing within sixty (60) calendar days of registering for the Services at the following address: Birchmount Network, Attn: Customer Service, 4438 Webster Street, Oakland, CA 94609. Your written notice must include your name, address, and a statement that you wish to opt out of the Arbitration Provision of the Agreement.
Initiation of Arbitration Proceeding/Selection of Administrator. Any claim, dispute, or controversy between you and us arising from or relating to your use of the Card or this Agreement (collectively, a “Claim”) shall be resolved, upon the election by you or us, by arbitration pursuant to this Arbitration Provision and the code of procedures of the national arbitration organization to which the Claim is referred in effect at the time the Claim is filed. Claims shall be referred to either the Judicial Arbitration and Mediation Services (“JAMS”), or the American Arbitration Association (“AAA”), as selected by the party electing to use arbitration. If a selection by us of one of these organizations is unacceptable to you, you have the right within 30 days after you receive notice of our election to select either of the other organizations listed to serve as arbitrator administrator. For a copy of the procedures to file a Claim or for other information about these organizations, contact them as follows: (i) JAMS at 1920 Main Street, Suite 300, Los Angeles, CA 92614; website at www.jamsadr.com; (ii) AAA at 335 Madison Avenue, New York, NY 10017; website at www.adr.org.
Significance of Arbitration. IF ARBITRATION IS CHOSEN BY ANY PARTY WITH RESPECT TO A CLAIM, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO LITIGATE THAT CLAIM IN COURT OR HAVE A JURY TRIAL ON THAT CLAIM, OR TO ENGAGE IN DISCOVERY EXCEPT AS PROVIDED FOR IN THE CODE OF PROCEDURES OF THE JAMS, OR AAA, AS APPLICABLE (THE “CODE”). FURTHER, YOU WILL NOT HAVE THE RIGHT TO PARTICIPATE IN A REPRESENTATIVE CAPACITY OR AS A MEMBER OF ANY CLASS OF CLAIMANTS PERTAINING TO ANY CLAIM SUBJECT TO ARBITRATION. EXCEPT AS SET FORTH BELOW, THE ARBITRATOR’S DECISION WILL BE FINAL AND BINDING. NOTE THAT OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT ALSO MAY NOT BE AVAILABLE IN ARBITRATION.
Restrictions on Arbitration. If either party elects to resolve a Claim by arbitration, that Claim shall be arbitrated on an individual basis. There is no right or authority for any Claims to be arbitrated on a class action basis or on bases involving Claims brought in a purported representative capacity on behalf of the general public, other Cardholders or other persons similarly situated. The arbitrator’s authority to resolve Claims is limited to Claims between you and us alone, and the arbitrator’s authority to make awards is limited to you and us alone. Furthermore, Claims brought by you against us or by us against you may not be joined or consolidated in arbitration with Claims brought by or against someone other than you, unless otherwise agreed to in writing by all parties.
Arbitration Procedures. This Arbitration Provision shall be governed by the Federal Arbitration Act, 9 U.S.C. Sections 1-16, as it may be amended (the “FAA”). The arbitration shall be governed by the applicable Code, except that (to the extent enforceable under the FAA) this Arbitration Provision shall control if it is inconsistent with the applicable Code. The arbitrator shall apply applicable substantive law consistent with the FAA and applicable statutes of limitations and shall honor claims of privilege recognized at law and, at the timely request of either party, shall provide a brief written explanation of the basis for the decision. In conducting the arbitration proceeding, the arbitrator shall not apply the Federal or any state rules of civil procedure or rules of evidence. The arbitrator’s decision will be final and binding, except for any right of appeal provided by the FAA. However, any party can appeal that award to a three-arbitrator panel administered by the same arbitration organization, which shall consider anew any aspect of the initial award objected to by the appealing party. The appealing party shall have 30 days from the date of entry of the written arbitration award to notify the arbitration organization that it is exercising the right of appeal. The appeal shall be filed with the arbitration organization in the form of a dated writing. The arbitration organization will then notify the other party that the award has been appealed. The arbitration organization will appoint a three-arbitrator panel which will conduct an arbitration pursuant to its Code and issue its decision within one hundred twenty (120) days of the date of the appellant’s written notice. The decision of the panel shall be by majority vote and shall be final and binding.
Location Of Arbitration/Payments Of Fees. Any arbitration hearing that you attend shall take place in the federal judicial district of your primary residence. At your written request, we will consider in good faith making a temporary advance of all or part of the filing administrative and/or hearing fees for any Claim you initiate as to which you or we seek arbitration. At the conclusion of the arbitration (or any appeal thereof), the arbitrator (or panel) will decide who will ultimately be responsible for paying the filing, administrative and/or hearing fees in connection with the arbitration (or appeal).
Continuation. This Arbitration Provision is binding upon and benefits you, your respective heirs, successors and assigns. This Arbitration Provision is binding upon and benefits us, our successors and assigns, and related third parties. This Arbitration Provision shall survive termination of your use of the Card as well as voluntary payment of any debt in full by you, any legal proceeding by us to collect a debt owed by you, and any bankruptcy by you or us. If any portion of this Arbitration Provision is deemed invalid or unenforceable under any principle or provision of law or equity, consistent with the FAA, it shall not invalidate the remaining portions of this Arbitration Provision, this Agreement or any prior agreement you may have had with us, each of which shall be enforceable regardless of such invalidity.