Updated January 2020
Please read the Terms carefully and keep them for future reference, including but not limited to the following sections: (A) DISPUTE RESOLUTION/ARBITRATION AGREEMENT, (B) LIMITATION OF LIABILITY, AND (C) INDEMNIFICATION.
IF YOU DO NOT AGREE TO THESE TERMS, IMMEDIATELY STOP USING THE GIFTYA SERVICE, PARTICIPATING IN ANY PROGRAM OR PURCHASE, OR RECEIVING ANY GOOD OR SERVICE OFFERED THROUGH THE GIFTYA SERVICE.
The GiftYa Service
The GiftYa Service allows a purchasing party (“Purchaser”) to purchase, and for a receiving party (“Recipient”) to receive, a prepaid “closed-loop” GiftYa usable only at a specified merchant. In order to receive the benefits of the GiftYa, the Recipient must register a valid payment method and use the registered method at the designated merchant participating in the GiftYa program (“Merchant”) (collectively, the “Service”). A valid payment method is one that is accepted by GiftYa in its sole discretion and may include, but is not necessarily limited to, a credit card, a debit card, and a financial institution account. GiftYa can only be purchased and redeemed through the GiftYa app, or via the GiftYa website or email.
GiftYas are activated when (a) the Purchaser registers an eligible payment card or financial institution account with us, (b) the Purchaser selects or offers one or more GiftYas for the Recipient to receive at a participating Merchant, (c) the Purchaser pays for the GiftYa by authorizing the debiting from the Purchaser’s registered card or financial institution account the amount of the GiftYa; (d) we provide notice to Recipient that Purchaser has selected and procured one or more GiftYas usable at a designated Merchant for the Recipient, and (e) in order to receive the GiftYa, the Recipient registers an eligible payment card or financial institution account with us.
GiftYas are redeemed when (a) the Recipient, using Recipient’s registered card or financial institution account, makes a purchase of goods and/or services from the participating Merchant(s) (“Qualifying Purchase”), (b) we are notified of the Qualifying Purchase; and (c) Recipient’s registered card or financial institution account is credited up to the applicable amount of the GiftYa.
Fees and Limitations
The following fees and limitations apply to the GiftYa:
Creating Your GiftYa Enrollment
To use the Service either as a Purchaser or a Recipient, you must create a GiftYa enrollment (“Enrollment”). You may create one GiftYa Enrollment only, which is solely for your personal use. Your Enrollment is non-transferable, and you cannot sell, combine, or otherwise share it with any other person. All use of your GiftYa Enrollment must be for personal, family or household purposes. No business use of your GiftYa Enrollment is allowed.
By creating an Enrollment or by using the Service, you represent and warrant to us that: (i) you are at least 18 years of age (or older if you reside in a state where the majority age is older); (ii) you are a U.S. citizen or legal alien (with valid U. S. tax ID number) residing in the United States or the District of Columbia; (iii) you have provided us with a verifiable U.S. street address (not a P.O. Box); (iv) the personal information that you provide to us in connection with your Enrollment is true, correct, and complete; and (v) you received a copy of and agree to be bound by and comply with these Terms and to comply with all applicable law in using the Service or your GiftYa Enrollment.
Payment Card/Account Registration
Whether you are a Purchaser or a Recipient, you are required to register a valid, eligible payment card or financial institution account with your GiftYa Enrollment in order to access and use the Service. A valid payment card or financial institution account is one that is accepted by GiftYa in its sole discretion and may include, but is not necessarily limited to, a credit card, a debit card, and a financial institution account.
Purchasers and Recipients may be able to register more than one payment card or financial institution account. GiftYa will inform Purchasers and Recipients of any limitations at or prior to the time of actual registration.
Disclosures to Purchasers and Recipients:
Your use of the Service is subject to your payment card or financial institution account being valid and your payment card or financial institution account being in good standing. You represent and warrant to us that the information you provide about your payment card or financial institution account is true and that you are authorized to use the payment card or financial institution account. You agree to promptly update your Enrollment information with any changes (for example, a change in your billing address) and to register a new card or financial institution account with us if your registered card or financial institution account is no longer valid or if your registered card or financial institution account is (as applicable) lost, stolen, suspended, breached, compromised, or replaced. You must be the cardholder or financial institution accountholder or an authorized user of the registered card or financial institution account. You acknowledge and agree that we, Merchants, payment processors, payment facilitators, payment card networks, financial institutions, and platforms with which we integrate in order to provide you with the GiftYa services, will have no liability associated with or arising from your use of the Service, or your failure to provide accurate registration information, including but not limited to your failure to receive a GiftYa for a Qualifying Purchase or updates about the Service. If we or any of the business entities we partner with in order to provide you with the GiftYa services have reasonable grounds to suspect that the information you provided is untrue, inaccurate, or incomplete, your Enrollment may be suspended or terminated. You authorize us to collect and store your payment card or financial institution account information, along with other identifying information in connection with your Enrollment, such as your email address, location, and device information.
Special Disclosures to Recipients – Card/Account Monitoring & Data Provision; Issuance of Credits; Opt-Out: By enrolling for the Service, accepting the GiftYa, and registering a connected payment card or financial institution account, you agree the payment card networks to monitor and share your transactions on your payment card or financial institution account (including purchases and returns, and including transaction unrelated to GiftYa) with GiftYa, service providers and participating merchants to: (a) identify Qualifying Purchases and share transaction data with us for the purposes of determining whether a transaction is a Qualifying Purchase; (b) allow us to determine the amount of purchase in order to (i) enable redemption of your GiftYas and (ii) provide appropriate notifications; and (c) initiate and process statement credits as requested by us in connection with the GiftYa.
In addition, you hereby authorize the issuance of credits for GiftYas directly to your registered payment card(s) or financial institution account(s) when applicable. Regarding financial institution accounts, you expressly authorize GiftYa’s third party service providers, for example Dwolla, Inc. and Visa Direct, to originate credit transfers to your financial institution account.
You understand and agree that the Service is not sponsored or endorsed by the business entities (including payment card networks) we partner with in order to provide you with the GiftYa services and that they make no warranties with respect to, and have no liability in connection with, the Service or these Terms.
If you believe you have made a Qualifying Purchase with your registered payment card or financial institution account and you have not received credit within 2 business days, please contact us at support@GiftYa.com. To the extent that transactions are made involving a registered payment card, please note that not all such transactions can be monitored by the applicable payment network for purposes of the Service. You acknowledge that Visa, MasterCard, and American Express may be unable to monitor every transaction made with your enrolled Visa, MasterCard, or American Express card, including PIN-based purchases, purchases you initiate through identification technology that substitutes for a PIN, payments made through other payment methods (such as a digital wallet or a third party payment app, where you may choose your Visa, MasterCard, or American Express card as a funding source but you do not present your card directly to the merchant), payments of existing balances, balance transfers, or transactions that are not processed or submitted through the Visa U.S.A., MasterCard, and American Express payment systems, and that these transactions are not eligible.
Not all Visa, MasterCard, and American Express cards are eligible for registration. Visa, MasterCard, and American Express Corporate cards, Visa, MasterCard, and American Express Purchasing cards, non-reloadable prepaid cards, government-administered prepaid cards (including EBT cards), healthcare (including Health Savings Account (HSA) or Flexible Spending Account (FSA) or insurance prepaid cards, Visa Buxx, and Visa-, MasterCard-, and American Express-branded cards whose transactions are not processed through the Visa U.S.A payment system, MasterCard payment system, and/or American Express payment system are not eligible to participate.
You may opt out of transaction monitoring on the payment card or financial institution account(s) you have registered by deleting your connected payment card or financial institution account from the GiftYa website or by contacting us at support@GiftYa.com with a request to un-enroll your payment card or financial institution account. However, if you disconnect your payment card or financial institution account, you will not be able to make Qualifying Purchases. You give us the right to use the transaction data from your payment card or financial institution account until you redeem your GiftYa or until you un-enroll your payment card or financial institution account. When you un-enroll a connected payment card or financial institution account, we will no longer capture transaction data, however we will retain the data associated with your connected payment card or financial institution account for historical transactions as long as necessary to fulfill your GiftYa, but no longer than permitted by law.
Using the GiftYa Service
Purchasing a GiftYa for a Recipient
To use the Service to purchase a GiftYa (a “Purchase Transaction”) for a Recipient, you as Purchaser must have a valid, active GiftYa Enrollment connected to a payment card or financial institution account. When you select a GiftYa to provide to a Recipient, you are agreeing to pay all amounts specified in the GiftYa, along with any applicable taxes, as well as any service or processing fees to the extent permitted by applicable law. You hereby authorize us (and our designated payment processor or payment facilitator), to authorize and charge the full order amount to the payment card or financial institution account affiliated with your Enrollment once you purchase any GiftYa, and you also authorize us to collect and store that payment card or financial institution account, along with other information related to your Purchase Transaction.
If you dispute any charges related to the GiftYas you have purchased, you must notify us within sixty (60) days after the date we charge you. You shall be responsible for all taxes associated with the Service other than U.S. taxes based on our net income. Applicable fees for GiftYas offered via the Service may change at any time. We do not provide price protection or refunds in the event of a fee reduction or promotional offering. Your continued use of the Service after any fee change becomes effective constitutes your agreement to pay the originally charged amount.
Once you as Purchaser select and provide a GiftYa, the amount of the GiftYa will be charged to your payment card or financial institution account and transferred to an account at an FDIC insured bank where such funds are held until the Recipient’s Qualifying Purchase at the designated Merchant is confirmed. Upon confirmation, the GiftYa funds up to the amount of the Qualifying Purchase will be credited to the Recipient’s registered payment card or financial institution account.
Following the issuance of the GiftYa that you as Purchaser select and provide, and until the GiftYa is (1) connected to a valid and active Recipient GiftYa Enrollment and (2) redeemed by the intended Recipient, the GiftYa will be available to be connected to and received by the Recipient.
Redeeming a GiftYa Received from a Purchaser
To redeem a GiftYa that you receive as a Recipient, you must have or open a valid, active GiftYa Enrollment connected to one or more valid payment cards or financial institution accounts. The only way you can redeem a GiftYa is by making a Qualifying Purchase at the designated Merchant with the payment card or financial institution account connected to your Enrollment. Any particular GiftYa you receive may be redeemed only at the Merchant designated on the GiftYa. Even if a Merchant accepts other GiftYas, you cannot redeem your specific GiftYa at a Merchant unless the GiftYa is designated for use at that Merchant. A GiftYa may not be redeemed for cash. When you make a Qualifying Purchase with a participating Merchant using your registered payment card or financial institution account at the Merchant for which the GiftYa is designated, you pay the full purchase price at the time of your transaction and, after your purchase is confirmed as a Qualifying Purchase, your GiftYa will be provided to you automatically when we submit a credit on the registered payment card or financial institution account you used to make the purchase. In order to redeem a GiftYa, we may require you to provide a receipt for the Qualifying Purchase. Please note that your GiftYa will not be reflected on your transaction receipt from the Merchant at the time of purchase. Instead, once it is confirmed, it will appear on your registered payment card’s or financial institution account’s statement. If you have more than one GiftYa connected to the same designated Merchant, the GiftYas will be redeemed in the order they were purchased by a Purchaser.
You may not receive the value associated with the GiftYa if the applicable card issuer or financial institution does not post your Qualifying Purchase to your registered payment card or financial institution account for any reason. We and the payment network will not have liability for the failure of a Qualifying Purchase to be posted. If you believe a Qualifying Purchase was not property posted to your registered payment card or financial institution account, please notify us at email@example.com. Neither we nor the business entities (including payment card networks) we partner with in order to provide you with the GiftYa services is responsible for any finance or other charge, or impact on any rewards, feature, or term of your registered payment card or financial institution account resulting from a posting error involving the GiftYa Service or the acceptance of a GiftYa credit to make a payment to the Merchant.
Following a Purchaser’s selection, and the issuance to you, of a GiftYa, the GiftYa will be available to be connected to and received by you until you connect the GiftYa to a valid and active Recipient GiftYa Enrollment. Following the connecting of a Giftya to your valid and active GiftYa Enrollment, the GiftYa will be available to be redeemed by you as Recipient. If, within ninety (90) days following the connecting of a GiftYa to your GiftYa Enrollment, you do not redeem the GiftYa, the GiftYa will be disconnected to your GiftYa Enrollment. The GiftYa will remain available to you to be redeemed, once you reconnect it to a valid and active GiftYa Enrollment.
We reserve the right to deny any GiftYa redemption requests we receive that we deem to be illegitimate or in violation of these Terms. You may not redeem a GiftYa with the intent to immediately cancel or return the applicable product from the Merchant. A "quick cancellation" is considered to be fraudulent and may void your transaction. We may, in our sole discretion, suspend or revoke your right to use the Service, terminate your GiftYa Enrollment, and/or report your activity to the Merchant, website, and/or service that has referred you to GiftYa, who each may terminate your Enrollment or take other punitive action if you are found to have engaged in such activity.
Control of Funds
The GiftYa Service provides you as Recipient the ability to receive deposits to your payment card or financial institution account consistent with your valid and active GiftYa Enrollment. Prior to the disbursement of funds to your card or account, funds are held by Sutton Bank for your benefit. At no time do funds pass into GiftYa’s legal ownership.
Following your redemption of a GiftYa, GiftYa will notify Sutton Bank that funds are to be disbursed to your payment card or financial institution account. Sutton Bank will then disburse funds to your card or account through the appropriate network.
Contests, Sweepstakes, and Special Offers or Promotions
We may, from time to time and in accordance with applicable law, conduct contests, sweepstakes, special offers or promotions, and/or similar activities. We may set forth specific terms and conditions governing any such activity that are in addition to or different from these Terms of Service. Where we set forth specific terms and conditions governing any such activity, those terms and conditions will govern the activity. By participating or otherwise engaging in such activity, you agree to the terms and conditions governing the activity.
Account and Purchase/Receipt Verification
No GiftYa Purchase Transaction is complete, and we will incur no payment or delivery obligations to the Recipient of a GiftYa, until we verify the authenticity of the Purchaser’s and Recipient’s Enrollments. We accept no responsibility for any delays in GiftYa delivery or redemption due to verification requirements. Upon our verification that the Purchase Transaction is valid, we will notify Purchaser of a completed Purchase Transaction and the GiftYa will be delivered to the designated Recipient’s registered and connected payment card or financial institution account.
Fraud and Abuse
We reserve the right to review, postpone, or cancel the purchase or redemption of any GiftYa in our sole reasonable discretion. If we receive a claim or otherwise suspect that a GiftYa purchased or redeemed through GiftYa was fraudulently purchased or redeemed or otherwise unauthorized, we reserve the right to immediately cancel the GiftYa and recover any costs associated with the fraud. You give us express authorization to share information about you, your Enrollment, your purchase/redemption, and any of your activity with law enforcement authorities as needed to investigate any claim of fraud. If your Enrollment is determined to be fraudulent, we may suspend your Enrollment immediately and all pending GiftYas or other transactions that have not yet been redeemed may be suspended.
Access and Use of the Service
General Practices Regarding Use and Storage: You agree that we may establish general practices and limits concerning use of the Service, including but not limited to the maximum period of time that data or other content will be retained by the Service and the maximum storage space that will be allotted on our servers on your behalf. You agree that we have no responsibility or liability for the deletion or failure to store any of your information, account data, or other content maintained or uploaded by the Service. You acknowledge that we reserve the right to terminate any Enrollments that are inactive for an extended period of time or that are determined to be fraudulent. You further acknowledge that we reserve the right to change these general practices and limits at any time, in its sole discretion, with or without notice as long as there is no material adverse impact on any of your pending GiftYas.
Mobile Services/TCPA Consent: To the extent you access the Service through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. Use of certain features of the Service may be prohibited or restricted by your carrier, and not all features of the Service may work with all carriers or devices. When accessing the Service through a mobile device, unless you allow us access to your location, we may not be able to provide access to certain content if such content has geographic limitations.
By acknowledging these Terms, you consent to our 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 and that certain information about your usage of the products and features may be communicated to us. You are not required to enter into this agreement as a condition of using the Service. By providing us with a telephone number, 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 Service. 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 through your account profile at https://www.giftya/secure/account/profile. You also may opt out through your GiftYa account or otherwise according to instructions included in the communication you receive (for example, replying “STOP” to an SMS message). Even if you revoke this consent, you acknowledge that the remaining sections of the Terms will remain in effect. In the event you change or deactivate your mobile telephone number, you agree to promptly update your GiftYa Enrollment information to ensure that your messages are not sent to the person that acquires your old number.
Account Password, Security, and Activity: You are responsible for maintaining the confidentiality of your password and account, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to (i) immediately notify us of any unauthorized use of your password or Enrollment or any other breach of security, and (ii) ensure that you exit from your Enrollment at the end of each session when accessing the Service. If you remain signed into your Enrollment at the end of any session, any user accessing your device may be able to view and manipulate your Enrollment information and other sensitive information. We recommend that you exit from your Enrollment at the end of each session and that you use other security measures (for example, password protecting/”locking” a mobile device when not in use). We will not be liable for any loss or damage arising from your failure to comply with this Section.
Modification: We reserve the right, at our sole discretion, to discontinue, change or modify portions of these Terms at any time. If we do this, we will post the changes and will indicate the date these Terms were last revised. Your continued use of the Service after the date any such changes become effective constitutes your acceptance of the new Terms. Any changes to these Terms will be effective upon posting; provided that these changes will be prospective only and not retroactive. If you do not agree to the changes, you may cancel your Enrollment and you should not use the Service after the effective date of the changes. We suggest you revisit our Terms regularly to ensure that you stay informed of any changes. You agree that our posting of any changes on the Terms page is adequate notice to advise you of these changes.
Please contact us at legal@GiftYa.com to report any violation of these Terms or to pose any questions regarding them.
You agree that we, in our sole discretion, may suspend or terminate your Enrollment (or any part thereof) or use of the Service and remove and discard any content within the Service, for any reason, including, but not limited to, for lack of use or if we believe that you have violated or acted inconsistently with the letter or spirit of these Terms. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of Service, may be referred to appropriate law enforcement authorities. We may also in our sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of these Terms may be effected without prior notice, and acknowledge and agree that we may immediately deactivate or delete your Enrollment and all related information and files in your Enrollment and/or bar any further access to such files or the Service. Further, you agree that we will not be liable to you or any third party for any termination of your access to the Service.
You agree that you are solely responsible for your interactions with any other user or Merchant in connection with the Service or any GiftYa, and that we will have no liability or responsibility with respect thereto. We reserve the right, but have no obligation, to become involved in any way with disputes between you and any other user of the Service or Merchant, in each case in connection with the Service.
You agree to indemnify and hold us, Merchants, payment processors, payment facilitators, financial institutions, technology platforms with which we integrate in order to provide you with the GiftYa Service, Advertising Partners, and their officers, employees, directors, and agent harmless from any and all losses, damages, expenses, including but not limited to reasonable attorneys’ fees, rights, claims, actions of any kind, and injury (including death) arising out of or relating to your use of the Service, your violation of these Terms, or your violation of any rights of another.
Disclaimer of Warranties
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. COMPANY AND ITS LICENSORS AND SUPPLIERS (INCLUDING PAYMENT CARD NETWORKS AND PAYMENT PROCESSORS) EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. We are not responsible for the quality, safety, legality, or any other aspect of any goods or services you purchase from a Merchant.
COMPANY AND ITS LICENSORS AND SUPPLIERS (INCLUDING PAYMENT CARD NETWORKS AND PAYMENT PROCESSORS) MAKE NO WARRANTY THAT: (I) THE SERVICE WILL MEET YOUR REQUIREMENTS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.
Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT COMPANY, OUR CORPORATE AFFILIATES, ADVERTISING PARTNERS AND LICENSORS AND SUPPLIERS (INCLUDING PAYMENT CARD NETWORKS AND PAYMENT PROCESSORS) WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, DAMAGES RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (V) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL COMPANY’S OR ITS LICENSORS’ AND SUPPLIERS’ (INCLUDING PAYMENT CARD NETWORKS AND PAYMENT PROCESSORS) TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID GIFTYA IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100). IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU.
At our or your election, all disputes, claims, or controversies arising out of or relating to the Terms or the Service that are not resolved by mutual agreement may be resolved by binding arbitration to be conducted before JAMS, or its successor. Unless otherwise agreed by the parties, arbitration will be held in Pittsburgh, Pennsylvania before a single arbitrator mutually agreed upon by the parties, or if the parties cannot mutually agree, a single arbitrator appointed by JAMS, and will be conducted in accordance with the rules and regulations promulgated by JAMS unless specifically modified. We will take all reasonable commercial actions to ensure that the arbitration commences within forty-five (45) days of the date on which a written demand for arbitration is filed by either party, and that the arbitrator’s decision and award will be made and delivered within sixty (60) days of the conclusion of the arbitration and within six (6) months of the selection of the arbitrator. The arbitrator will not have the power to award damages in excess of the limitation on damages set forth in these Terms and may not multiply actual damages or award punitive damages or any other damages that are specifically excluded under these Terms, and each party hereby irrevocably waives any claim to such damages. The arbitrator may, in his or her discretion, assess costs and expenses (including, but not limited to, the reasonable legal fees and expenses of the prevailing party) against any party to a proceeding. Any party refusing to comply with an order of the arbitrators will be liable for costs and expenses, including, but not limited to, attorneys’ fees, incurred by the other party in enforcing the award. Notwithstanding the foregoing, in the case of temporary or preliminary injunctive relief, any party may proceed in court without prior arbitration for the purpose of avoiding immediate and irreparable harm. The provisions of this arbitration section will be enforceable in any court of competent jurisdiction.
We are independent parties to these Terms, and nothing contained herein will be deemed or construed to create the relationship of principal and agent or of partnership or joint venture. This Agreement and the rights and obligations of the Parties hereunder shall be governed by, and construed and interpreted in accordance with, the laws of the Commonwealth of Pennsylvania, without regard to the conflict of laws provisions thereof. We and you hereby submit to the jurisdiction of the courts of Pittsburgh, Pennsylvania for the enforcement of any arbitral award or other action. These Terms set forth the entire agreement between us pertaining to the Service. You agree that we will not be liable for any delay or failure in our performance of any of the acts required by these Terms when such delay or failure arises from circumstances beyond our control and without the fault or negligence of us. Such causes may include, without limitation, acts of God, acts of local, state or national governments or public agencies, acts of public enemies, terrorism, widespread or extended utility or communication failures or delays, earthquakes, fire, flood, epidemics, riots or strikes. If any provision of these Terms (or any portion thereof) is determined to be invalid or unenforceable, it will be stricken and the remaining provisions of these Terms will remain in full force and effect and shall be binding on us and enforceable in accordance with their terms, as though the invalid or unenforceable provision (or portion thereof) was not contained in this Agreement.
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