This Airshare Merchant Services Agreement is updated as of August 1, 2017. Airshare’s goal is to have customer’s purchase and redeem many Airshare gifts our Merchants. This Airshare Merchant Services Agreement, and the agreements, policies, and documents incorporated herein, (this “Agreement”), is entered into by and between Airshare Technologies, LLC, and the entity or individual who enters into this Agreement (“Merchant”, “you”, our “your”). The primary goal of the Agreement is to create successful Airshare transactions and a safe environment for all participants. This Agreement sets out the terms and conditions under which you may utilize Airshare Merchant Services.
This Agreement becomes a legally binding contract and is effective as of the earliest date you do any of the following (the “Effective Date”):
Enroll in an Airshare Merchant account at https://portal.airshare.com; Accept this agreement online; or Begin using Airshare Merchant Services.
Please be advised that if you your business is in the United States, this Agreement contains provisions, including an Agreement to Arbitrate, that govern how claims you and Airshare have against each other are resolved, which will, with limited exception, require the parties to submit claims they may have against one another to binding and final arbitration. Under the Agreement to Arbitrate, the parties will (1) only be permitted to pursue claims against each other on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding and (2) only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
Section 1 — Airshare Merchant Services
1.01 “Airshare Merchant Service(s)” means the services provided by Airshare defined as:
“Airshare Merchant Services” means the digital reward & e-gift card services offered by Airshare which provide Merchants with the ability to send Airshare gifts as rewards or promotions to a Merchant’s own customers, and to redeem Airshare gifts from Airshare recipients or “Giftees” given to them by the Merchant, or another person, or “Gifter”. Airshare gifts generated by the Merchant, and redemptions of all Airshare gifts for that Merchant will be tracked and reported to the Merchant in each Merchant’s dashboard.
1.2 “Approved Airshare Merchants” are:
- Merchants who have completed the Airshare Merchant Enrollment and who have received acknowledgement that they are an Approved Airshare Merchant.
- Airshare reserves the right to preclude any Merchant from utilizing Airshare Merchant Services and the Airshare Marketplace. All Merchants must comply with the Airshare Marketplace Policy found at http://business.airshare.com/legal/marketplace_use/
Section 2 — Airshare Redemptions
2.01 Authorized Redeemers It is the Merchant’s responsibility to authorize who can redeem Airshare gifts on behalf of the Merchant. To do so you will need to provide Authorized employees with your unique Airshare redemption link or Merchant ID.
- Ensuring security and appropriate use of the Airshare Merchant redemption link or ID is the responsibility of the Merchant
- Ensuring Merchant account password security and Merchant account information integrity is the responsibility of the Merchant.
Upon each Airshare redemption the Merchant’s employee will be required to:
- Enter the amount of the Airshare to be redeemed.
- Type their name
- The employee’s name will be included in the redemption record in the Merchant dashboard. Please note that this is provided to help with Merchant management of their Airshare Merchant Services and is subject to error and fraud.
- Acknowledge they are an Approved Redeemer for the Merchant
2.02 Authorized Redemptions
The Merchant and designated employees are only authorized to redeem Airshare gifts for that Merchant. That is redemptions for which the Giftee has provided the Merchant the Airshare redemption value generated from the Airshare in the gift recipient’s Airshare application. Merchant and Merchant employees will not attempt a fraudulent redemption of an Airshare for that, or another Merchant.
2.03 No Redemption Refunds
Once the Airshare is redeemed by the Merchant, Airshare will not refund that amount to the Merchant or to the Giftee as Airshare will have already provided payment to the Merchant. Any disputes that arise between the Giftee and the Merchant after the redemption are the responsibility of the Merchant to solve with the Giftee in accordance with the Merchant’s refund policy.
Airshare will, however, refund the Airshare redemption fee for any refunds of goods or services purchased with the Airshare gift in accordance with the Airshare Refund Policy.
Section 3 — Airshare Fees and Applicable Taxes
3.01 Airshare Fees
In exchange for Airshare providing you with the Airshare Merchant Services, you agree to pay Airshare the fees including applicable Merchant Service Plan and Airshare redemption fees, as listed in the Airshare fee schedule, available at http://Merchant.getairshare.com/MerchantPricePlans.pdf, and incorporated herein by this reference. We reserve the right to revise our fees at any time, subject to a thirty (30) day notice period to you prior to the new fees taking effect. Interest shall accrue at the lower rate of 1.5% per month, or the maximum amount permitted by law, on all overdue amounts. In the event that you have a good faith dispute as to the amounts due, you agree to pay the undisputed amounts. Interest shall not accrue on any disputed amounts so long as you pay such amounts within thirty (30) calendar days after resolution of the dispute.
3.02 Payment of Fees, Payouts, and Right to Set-off
Payments for Airshare redemption fees will be subtracted at the time of the redemption. Subject to the terms of this Agreement, Airshare will send to your Bank Account all amounts due to you from your Redemptions, minus any fees, Invalidated Payments, or other amounts that you owe to Airshare under this Agreement.
Merchant shall pay, indemnify, and hold Airshare harmless from (i) any sales, use, excise, import or export, value-added, or similar tax or duty, and any other tax or duty based on income from the Merchant’s customers use of Airshare gifts. Such taxes, fees and duties paid by Merchant shall not be considered a part of, a deduction from, or an offset against, payments due to Airshare hereunder.
Section 4 —Restricted Activities, Representations and Warranties
4.01 Restricted activities
You agree that you will not:
- Breach this Agreement, or any other agreement that you have entered into with us in connection with the Airshare Merchant Services;
- Violate any federal, state, or local laws, rules, or regulations applicable to your business;
- Fail to provide us with any information that we reasonably request about you or your business activities, or provide us with false, inaccurate or misleading information;
- Refuse to cooperate in a legal investigation or audit that may be required by law enforcement;
- Integrate or use any of the Airshare Merchant Services without complying with our requirements;
- Submit any Airshare Redemption for processing through the Airshare Platform which does not represent a bona fide, permissible Redemption as outlined in this Agreement;
- Process Redemptions or receive payments on behalf of any other party, or redirect payments to any other party.
4.02 Representations and Warranties by Merchant
Merchant has the full power and authority to execute, deliver, and perform this Agreement. This Agreement is binding and enforceable against Merchant and no provision requiring Merchant’s performance is in conflict with its obligations under any agreement to which Merchant is a party. Merchant is duly organized, authorized and in good standing under the laws of the state, region, or country of its organization and is duly authorized to do business in all other states, regions or countries in which Merchant’s business operates.
Section 5 — Liability for Customer Returns and other Liabilities
You are liable for all claims, expenses, fines and liability we incur arising out of:
- A request for refund or return by a customer who has already redeemed an Airshare with you, and for which Airshare has provided you payment;
- Any error, negligence, misconduct or fraud by you, your employees, or someone acting on your behalf; and,
- Any losses resulting from your failure to comply with the terms of this Agreement, or your usage of the Airshare Merchant Services.
Section 6 — Actions We May Take
6.01 Credit Report Authorization and Verification of Information
You authorize Airshare, directly or through third parties, to make any inquiries or take any actions we consider necessary to validate your identity, and verify information that you have provided to us.
In the event that we are unsuccessful in receiving satisfactory information for us to verify your identity, Airshare reserves the right to terminate this Agreement with immediate notice to you, cease to provide access to the Airshare Merchant Services, and refuse or rescind any further redemptions by your customers.
6.02 Actions by Airshare
If we believe that your Merchant generated Airshare gifts pose an unacceptable level of risk, that you have breached the terms of this Agreement, or that your account has been compromised, we may take various actions to avoid liability. The actions we may take include, but are not limited to, suspending or limiting your ability to use the Airshare Merchant Services, refusing to process any Redemptions, reversing a Redemption, holding your Payouts, and contacting Giftees to verify Redemptions and reduce potential fraud and disputes. If possible, we will provide you with advance notice of our actions and resolution steps. However, advance notice will not be provided if there is an immediate need to take actions such as a security threat, potential fraud, or illegal activity.
Airshare, in its sole discretion, may place a Reserve on a portion of your Payouts in the event that we believe that there is a high level of risk associated with your business. If we place a reserve on your Payouts, we will provide you with notice specifying the terms of the Reserve. The terms may require that a certain percentage of your Payouts are held for a certain period of time, that a fixed amount of your Payouts is withheld from payout to you, or such other restrictions that Airshare determines in its sole discretion. Airshare may change the terms of the Reserve at any time by providing you with notice of the new terms.
Airshare may hold a Reserve as long as it deems necessary, in its sole discretion, to mitigate any risks related to your Redemptions. You agree that you will remain liable for all obligations related to your Redemptions even after the release of any Reserve. In addition, we may require you to keep your Bank Account available for any open settlements, and other adjustments.
6.04 Security Interest
To secure your performance of this Agreement, you grant to Airshare a legal claim to the funds held in the Reserve. This is known in legal terms as a “lien” on and “security interest” in these amounts.
Section 7 – Account Security, Data, Intellectual Property and Publicity
7.01 Security of your access
You agree to:
- Not allow anyone else to have or use your password details and to comply with all reasonable instructions we may issue regarding account access and security. In the event you share your password details, Airshare will not be liable to you for losses or damages; and,
- Keep your personal details up to date. We may be unable to respond to you if you contact us from an address, telephone number or email account that is not registered with us.
7.02 Data Security Compliance
Merchant agrees to comply with its obligations under any applicable law or regulation as may be in effect or as may be enacted, adopted or determined regarding the confidentiality, use, and disclosure of consumer information.
7.03 Ownership of Data
All Airshare customer Data shall be owned by Airshare. Airshare may use, reproduce, electronically distribute, and display Customer Data for the following purposes: (i) providing and improving the Airshare Merchant Services; (ii) internal usage, including but not limited to, data analytics and metrics so long as such Customer Data has been anonymized and aggregated with other customer data; (iii) complying with applicable legal requirements and assisting law enforcement agencies by responding to requests for the disclosure of information in accordance with local laws; and, (iv) any other purpose for which consent has been provided by the Customer.
7.04 Software License
Airshare grants you a revocable, non-exclusive, non-transferable license to use Airshare’s software applications (the “Software”). This license grant includes all updates, upgrades, new versions and replacement software for your use in connection with the Airshare Merchant Services. If you do not comply with the documentation and any other requirements provided by Airshare, then you will be liable for all resulting damages suffered by you, Airshare and third parties. Unless otherwise provided by applicable law, you agree not to alter, reproduce, adapt, distribute, display, publish, reverse engineer, translate, disassemble, decompile or otherwise attempt to create any source code that is derived from the Software. Upon expiration or termination of this Agreement, you will immediately cease all use of any Software.
7.05 Trademark License
Airshare grants you a revocable, non-exclusive, non-transferable license to use Airshare’s trademarks used to identify the Airshare Merchant Service (the “Trademarks”) solely in conjunction with the use of the Airshare Merchant Services. Merchant agrees that it will not at any time during or after this Agreement assert or claim any interest in or do anything that may adversely affect the validity of any Trademark or any other trademark, trade name or product designation belonging to or licensed to Airshare (including, without limitation registering or attempting to register any Trademark or any such other trademark, trade name or product designation). Upon expiration or termination of this Agreement, you will immediately cease all display, advertising and use of all of the Trademarks.
7.06 Intellectual Property
Other than the express licenses granted by this Agreement, Airshare grants no right or license by implication, estoppel or otherwise to the Airshare Merchant Services or any Intellectual Property Rights of Airshare. Each party shall retain all ownership rights, title, and interest in and to its own products and services (including in the case of Airshare, in the Airshare Merchant Services) and all Intellectual Property Rights therein, subject only to the rights and licenses specifically granted herein.
Merchant hereby grants Airshare permissions to use Merchant’s name and logo in its marketing materials including, but not limited to use in the Airshare Mobile Application, on Airshare’s website, in customer listings, in interviews and in press releases.
7.08 Confidential Information
The parties acknowledge that in their performance of their duties hereunder either party may communicate to the other (or its designees) certain confidential and proprietary information, including without limitation information concerning the Airshare Merchant Services and the know-how, technology, techniques, or business or marketing plans related thereto (collectively, the “Confidential Information”) all of which are confidential and proprietary to, and trade secrets of, the disclosing party. Confidential Information does not include information that: (i) is public knowledge at the time of disclosure by the disclosing party; (ii) becomes public knowledge or known to the receiving party after disclosure by the disclosing party other than by breach of the receiving party’s obligations under this section or by breach of a third party’s confidentiality obligations; (iii) was known by the receiving party prior to disclosure by the disclosing party other than by breach of a third party’s confidentiality obligations; or, (iv) is independently developed by the receiving party. As a condition to the receipt of the Confidential Information from the disclosing party, the receiving party shall: (i) not disclose in any manner, directly or indirectly, to any third party any portion of the disclosing party’s Confidential Information; (ii) not use the disclosing party’s Confidential Information in any fashion except to perform its duties hereunder or with the disclosing party’s express prior written consent; (iii) disclose the disclosing party’s Confidential Information, in whole or in part, only to employees and agents who need to have access thereto for the receiving party’s internal business purposes; (iv) take all necessary steps to ensure that its employees and agents are informed of and comply with the confidentiality restrictions contained in this Agreement; and, (v) take all necessary precautions to protect the confidentiality of the Confidential Information received hereunder and exercise at least the same degree of care in safeguarding the Confidential Information as it would with its own confidential information, and in no event shall apply less than a reasonable standard of care to prevent disclosure.
Section 8 - Indemnification, Limitation of Liability, Disclaimer of Warranties
8.02 DISCLAIMER OF WARRANTIES
THE AIRSHARE SERVICE IS PROVIDED “AS IS” WITHOUT ANY WARRANTY WHATSOEVER. AIRSHARE DISCLAIMS ALL WARRANTIES WHETHER EXPRESS, IMPLIED, OR STATUTORY, TO MERCHANT AS TO ANY MATTER WHATSOEVER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY AIRSHARE OR ITS EMPLOYEES OR REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF AIRSHARE’S OBLIGATIONS. THE PARTIES ACKNOWLEDGE THAT THE SERVICE IS A COMPUTER NETWORK BASED SERVICH WHICH MAY BE SUBJECT OT OUTAGES AND DELAY OCCURRENCES. AS SUCH, THE AIRSHARE PARTIES DO NOT REPRESENT OR WARRANT THAT THE SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SERVICE OR THE SERVER THAT MAKES THE SERVICE AVAILABLE IS FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES. THE AIRSHARE PARTIES DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS) ON THE SERVICE IS ACCURATE, COMPLETE, OR USEFUL. MERCHANT ACKNOWLEDGE THAT MERCHANTR USE OF THE SERVICE IS AT MERCHANTR SOLE RISK. MERCHANT FURTHER ACKNOWLEDGE THAT ACCESS TO THE AIRSHARE SERVICE OR ANY AIRSHARE WEBSITE MAY BE RESTRICTED FOR MAINTENANCE OR DUE TO OUTAGE. AIRSHARE WILL MAKE REASONALBE EFFORTS TO ENSURE THE TRANSACTIONS ARE PROCESSED IN A TIMELY MANNER; HOWEVER, AIRSHARE WILL NOT BE LIABLE FOR ANY INTERRUPTION, OUTAGE OR FAILURE TO PROVIDE THE SERVICE.
BY ACCESSING OR USING THE SERVICE MERCHANT REPRESENT AND WARRANT THAT MERCHANTR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE MERCHANT ACCESS OR USE THE SERVICE.
THE AIRSHARE PARTIES DO NOT ENDORSE CONTENT AND SPECIFICALLY DISCLAIM ANY RESPONSIBILITY OR LIABILITY TO ANY PERSON OR ENTITY FOR ANY LOSS, DAMAGE (WHETHER ACTUAL, CONSEQUENTIAL, PUNITIVE OR OTHERWISE), INJURY, CLAIM, LIABILITY OR OTHER CAUSE OF ANY KIND OR CHARACTER BASED UPON OR RESULTING FROM ANY CONTENT.
8.03 LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES WILL THE AIRSHARE PARTIES (INCUDING, BUT NOT LIMITED TO AIRSHARE DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, INTERNS, SUPPLIERS, SERVICE PROVIDERS OR LICENSORS – COLLECTIVELY “AIRSHARE PARTIES”) BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES) THAT ARE DIRECTLY OR INDIRECTLY RELATED TO: (A) THE SERVICE; (B) THE AIRSHARE CONTENT; (C) USER CONTENT; (D) YOUR USE OF, INABILITY TO USE, OR THE PERFORMANCE OF THE SERVICE; (E) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY THE AIRSHARE PARTIES OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR OR ANY OTHER PARTY'S USE OF THE SERVICE; (F) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; (G) ANY ERRORS OR OMISSIONS IN THE SERVICE'S OPERATION; OR (H) ANY DAMAGE TO ANY USER'S COMPUTER, MOBILE DEVICE, OR OTHER EQUIPMENT OR TECHNOLOGY INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF FORESEEABLE OR EVEN IF THE AIRSHARE PARTIES HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR TORT (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF THE SERVICE). IN NO EVENT WILL THE AIRSHARE PARTIES BE LIABLE TO YOU OR ANYONE ELSE FOR LOSS, DAMAGE OR INJURY, INCLUDING, WITHOUT LIMITATION, DEATH OR PERSONAL INJURY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. EVEN IF AIRSHARE HAS BEEN ADVISED TO THE POSSIBILITY OF SUCH DAMAGES, UNDER NO CIRCUMSTANCES SHALL AIRSHARE’S TOTAL AGGREGATE LIABILITY TO MERCHANT OR ANY THIRD PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE DIRECT DAMAGES SUFFERED BY SUCH PARTY IN AN ACCOUNT PAID OR PAYABLE BY MERCHANT TO AIRSHARE UNDER THIS AGREEMENT DURING THE FIRST (12) MONTH PERIOD AFTER THE EFFECTIVE DATE OF THIS AGREEMENT.
YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF AIRSHARE'S ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY WEB SITE, SERVICE, PROPERTY, PRODUCT OR OTHER CONTENT OWNED OR CONTROLLED BY THE AIRSHARE PARTIES, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY WEB SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER CONTENT OWNED OR CONTROLLED BY THE AIRSHARE PARTIES.
BY ACCESSING THE SERVICE, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
AIRSHARE IS NOT RESPONSIBLE FOR THE ACTIONS, CONTENT, INFORMATION, OR DATA OF THIRD PARTIES, AND YOU RELEASE US, OUR DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD PARTIES.
Section 9 - Term and Termination
9.01 Term and Termination
The term of this Agreement shall commence on the Effective Date and shall continue on until terminated as set forth herein. You may terminate this Agreement, without cause, by providing Airshare with notice of your intent to terminate, or by ceasing to use the Airshare Merchant Services. Airshare may terminate this Agreement or suspend services to you if any of the following occurs: (1) we believe that you have breached this Agreement, or are likely to do so; (2) if we determine that your use of the Airshare Merchant Services carries an unacceptable amount of risk, including credit or fraud risk; or, (3) any other legal, reputational, or risk-based reason exists, in Airshare’s sole discretion. In the event that Airshare must terminate this Agreement, Airshare shall provide you with written notice as soon as reasonably practicable.
After termination by either party as described above, Merchant shall no longer have access to, and shall cease all use of the Airshare Merchant Services. Any termination of this Agreement does not relieve Merchant of any obligations to pay any fees, costs, penalties, or any other amounts owed by you to us as provided under this Agreement, whether accrued prior to or after termination.
Section 10 – General Provisions
10.01 Independent Contractors
The relationship of Airshare and Merchant is that of independent contractors. Neither Merchant nor any of its employees, consultants, contractors or agents are agents, employees, partners or joint ventures of Airshare, nor do they have any authority to bind Airshare by contract or otherwise to any obligation. None of such parties will represent anything to the contrary, either expressly, implicitly, by appearance or otherwise.
In the event that any provision of these Terms of Service is determined to be unlawful, void or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from these Terms of Service, such determination shall not affect the validity and enforceability of any other remaining provisions.
No term or provision of this Agreement shall be deemed waived, and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other party, whether express or implied, shall not constitute a consent to, waiver of, or excuse for any different or subsequent breach.
This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Merchant may not assign this Agreement without the written consent of Airshare. Airshare may assign this Agreement in its sole discretion without the written consent of Merchant.
We may amend this Agreement at any time by posting a revised version of it on our website. The revised version will be effective at the time we post it. In addition, if the revised version includes a substantial change, we will provide you with 30 days’ prior notice of any substantial change by posting notice under the “Policy Updates” section of our website. If you do not agree to the updated terms, you can terminate your Agreement by providing us with notice in the manner indicated below in Section 10.09. If you provide us with termination notice within 30 days of the date of update, then your current terms and conditions shall apply during this notice period.
10.06 Entire Agreement
The failure of us to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. This Agreement and any policies or operating rules posted by us on this site or in respect to The Service constitutes the entire agreement and understanding between you and us and govern your use of the Service, superseding any prior or contemporaneous agreements, communications and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of this Agreement). Any ambiguities in the interpretation of this Agreement shall not be construed against the drafting party. Nothing in this Agreement, express or implied, is intended to confer or shall be deemed to confer upon any persons or entities not parties to this Agreement, any rights or remedies under or by reason of this Agreement.
Sections 3 (Fees and Tax), 5 (Liability for customer Returns and other Liabilities), 6 (Actions We May Take), 7.08 (Confidential Information), 8 (Indemnification, Limitation of Liability, Disclaimer of Warranties), 9 (Term and Termination, Data Portability), 10 (General Provisions), and Exhibit “A” (Definitions), as well as any other terms which by their nature should survive, will survive the termination of this Agreement.
10.08 Communication; Recording Calls; and Availability of Contractual Documents
You consent to receive autodialed or prerecorded calls and text messages from Airshare at any telephone number that you have provided us or that we have otherwise obtained to (i) notify you regarding your account; (ii) collect a debt; (iii) resolve a dispute; (iv) contact you about exclusive offers; or (v) as otherwise necessary to service your account or enforce the Agreement. We may share your telephone numbers with our service providers (such as billing or collections companies) who we have contracted with to assist us in pursuing our rights or performing our obligations under the Agreement, our policies, or any other agreement we may have with you. You agree these service providers may also contact you using autodialed or prerecorded calls and text messages, only as authorized by us to carry out the purposes we have identified above, and not for their own purposes.
Airshare may, without further notice or warning and in its discretion, monitor or record telephone conversations you or anyone acting on your behalf has with Airshare or its agents for quality control and training purposes or for its own protection.
If you have a question or complaint relating to the Airshare Merchant Services or your Transactions, please contact the Airshare customer support as defined in the “Contact” link of the Airshare website. The general terms and conditions for the Airshare Merchant Services will be available at all times on http://business.airshare.com/legal/, and/or be made available during signup process as an electronic copy per e-mail. You may request at any time free of charge electronic copy of your contractual documents.
10.09 Notices, Contracting Entity
a. Contracting Entity. “Airshare,” “we,” and “our” in this agreement refer to the contracting entity. b. Notice to Merchant. Merchant agrees that Airshare may provide notices and disclosures to Merchant by posting them on Airshare’s website, emailing them to Merchant, or sending them to Merchant through postal mail. Notices sent to Merchant by postal mail are considered received by Merchant within three (3) Business Days of the date Airshare sends the notice unless it is returned to Airshare. Disclosures and notices posted on Airshare’s website or emailed shall be considered to be received by you within 24 hours of the time it is posted to our website or emailed to you unless we receive notice that the email was not delivered. Furthermore, you understand and agree that if Airshare sends you an email but you do not receive it because your primary email address on file is incorrect, out of date, blocked by your service provider, or you are otherwise unable to receive electronic communications, Airshare will be deemed to have provided the communication to you. In addition, Airshare may send Merchant emails, including, but not limited to, those relating to product updates, new features and offers and Merchant hereby consents to such email notification. You also agree that electronic disclosures and notices have the same meaning and effect as if we had provided you with a paper copy. c. Notices to Airshare. Notice to Airshare shall be considered valid only if sent to email@example.com or by postal mail to 211 E Victoria Street, Suite D Santa Barbara CA, 93101 .
10.10 Governing Law and Agreement to Arbitrate for Merchants Domiciled in the United States
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL IMPACT HOW CLAIMS YOU AND AIRSHARE HAVE AGAINST EACH OTHER ARE RESOLVED.
- A. Governing Law - You and Airshare agree that the laws of the State of California, without regard to principles of conflict of laws, will govern this Agreement and any claim or dispute that has arisen or may arise between the parties, except as otherwise stated in this Agreement.
- B. Agreement to Arbitrate - You and Airshare agree that any and all disputes or claims that have arisen or may arise between you and Airshare shall be resolved exclusively through final and binding arbitration, rather than in court, except that you may assert claims in small claims court, if your claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis. The Federal Arbitration Act governs the interpretation and enforcement of this provision.
THE PARTIES ALSO AGREE THAT YOU AND AIRSHARE MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND AIRSHARE AGREE OTHERWISE, THE ARBITRATOR(S) MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR(S) MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER AIRSHARE MERCHANTS.
The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules, as modified by this Agreement to Arbitrate. The AAA’s rules are available at www.adr.org. Payment of all filing, administration, and arbitrator fees will be governed by the AAA’s rules. All issues are for the arbitrator to decide, except that issues relating to arbitrability, or the scope or enforceability of this Agreement to Arbitrate, shall be for a court of competent jurisdiction to decide. If a court decides that any part of this Section 10.10 is invalid or unenforceable, the other parts of this Section 10.10 shall still apply.
The arbitration shall be held in Santa Barbara County. Airshare may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and Airshare subject to the discretion of the arbitrator(s) to require an in-person hearing, if the circumstances warrant.
The arbitrator(s) will decide the substance of all claims in accordance with the laws of the State of California, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator(s) shall not be bound by rulings in prior arbitrations involving different Merchants, but is/are bound by rulings in prior arbitrations involving the same Merchant to the extent required by applicable law. The arbitration award shall be final and binding and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
EXHIBIT A – Definitions
- “Agreement” means this Airshare Merchant Services Agreement, including all exhibits and other agreements and documents incorporated herein.
- “Business Day” means Monday through Friday when the banks are generally open in the United States.
- “Confidential" Information” has the definition ascribed to such term in Section 7.08.
- “Customer(s)” means the customer of Airshare.
- “Customer Data” means all information that Customer provides in the course of purchasing an Airshare gift or making a Redemption with you.
- “Gifter” is the one who gives or gifts the Airshare.
- “Giftee” is the recipient of the Airshare.
- “Intellectual Property” means all of the following owned by a party: (a) trademarks and service marks (registered and unregistered) and trade names, and goodwill associated therewith; (b) patents, patentable inventions, computer programs, and software; (c) databases; (d) trade secrets and the right to limit the use or disclosure thereof; (e) copyrights in all works, including software programs; and (f) domain names.
- “Intellectual Property Rights” means the rights owned by a party in its Intellectual Property.
- “Invalidated Payment” is defined in Section 5 above.
- “Merchant” or “you” means the entity and/or individual who enters into this Agreement.
- “Payout” means the amount due to you from your Transaction minus our fees or other amounts due to Airshare.
- “Redemption” means the amount of the Airshare the customer utilizes to pay for Merchant goods and services.
- “Reserve” means an amount or percentage of your Payouts that we hold in order to protect against the risk, exposure and/or potential liability to us related to your use of the Airshare Merchant Services.
- “Restricted Activities” means any breaches of our Acceptable Use Policy and any activity specified in Section 4.01.
- “Software” is defined in Section 7.04.
- “Trademark(s)" is defined in Section 7.05.
- “Transaction” means a utilization of Airshare by the customer to pay for the Merchant’s goods or services and settlement via ACH payment from Airshare to the Merchant.